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Old April 1, 2014, 03:56 PM   #51
Quadpod88
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When the assailant is no longer a threat, you should stop. Otherwise it's murder, then it's called to question whether or not you were aware the assailant was non-combatant.
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Old April 1, 2014, 04:28 PM   #52
2damnold4this
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For those people who plan on stopping an attacker with birdshot from a revolver by blinding him, what's the plan if the attacker has on glasses?
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Old April 1, 2014, 04:34 PM   #53
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The fact that you intentionally fire a less lethal round could be twisted to imply that you did not fear immediate death or serious bodily injury.
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Old April 1, 2014, 04:49 PM   #54
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Spats probably has it right, but I think an experienced defense attorney wouldn't be given latitude to cross examine officers as to the work done on the case, including their interview with the defendant.

For example, Did the deceased have a knife? None that I found. But did you have any information that the deceased had a knife? If he says, "yes". Ask him what information he had. If he says no, ask if it isn't true that the accused told him . . .

I am not so sure that what the accused said at the scene wouldn't be a statement of a party against interest, since the statement taken as a whole admits that he was the shooter and, like Frank and others have pointed out, having to admit such is a risk you take if you claim self defense.
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Old April 1, 2014, 08:11 PM   #55
leadcounsel
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Good grief...

Talk about a thread derail... now we're onto the hearsay rule and exceptions to same....

A good defense lawyer will find multiple ways to introduce that evidence without having an accused/defendant testify.

Going into a trial assuming my client is going to have to testify rarely is a good strategy. Sure, sometimes they do, or are 'expected' to testify by the jury/panel (admittedly in self defense cases and nearly always in rape or sex assault cases where the defense is consent).

For the love of God, I'm trying to suggest that you don't use obscure weapons which will REQUIRE you to testify, and you lay the foundation immediately after the event so that you best preserve your ability to not testify.

The mindset that YOU, and person accused of murder, are going to just get on the stand, tell your side, and explain it all away, is a losing strategy. That is the point. Some people here have allowed, in fact participated in, huge thread hijack...
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Old April 1, 2014, 08:29 PM   #56
Frank Ettin
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Quote:
Originally Posted by leadcounsel
...A good defense lawyer will find multiple ways to introduce that evidence without having an accused/defendant testify...
And that is where you are seriously misleading our readers.

A good defense lawyer might be able to keep the defendant claiming self defense off the witness stand, but no one should count on that.

As I pointed out in post 42, the lawyer Lisa Steele, writing in The Champion, then journal of the National Association of Criminal Defense Lawyers, stated that in a self defense case:
Quote:
...Often, the defendant will need to testify in order to establish his subjective belief about the threat and need to respond defensively....
Believing the testimony of the defendant claiming self defense can always, or even frequently, be avoided is fatuous. Trying to convince folks that's the case is irresponsible.

Quote:
Originally Posted by leadcounsel
...That is the point. Some people here have allowed, in fact participated in, huge thread hijack...
And you initiated that hijack by trying to foist lousy information on us.
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Old April 1, 2014, 09:45 PM   #57
KyJim
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Did not have a chance to reply earlier. I've been working on a brief due tomorrow which ironically involves a claim of self-defense.

Every case is different and anybody charged with a homicide or assault should listen to the advice of his or her attorney and then decide whether to testify -- that is a right personal to the client which the defense attorney must accede to.

Having said that, I think it is a rare case for a defendant to be able to pull off a claim of self-defense without testifying. Impossible? No. Difficult? Yes.

First, let's take a look at the scenario LeadCounsel posits -- that the defendant gives a statement to the police claiming self-defense and the defense introduces this statement by cross-examination of the police officer. First, I have seen defendants attempt to do this, usually because of a criminal history. It usually doesn't work.

Second, the out of court statements of the defendant are hearsay. The prosecution can introduce statements of the defendant which are admissions. However, the portions favorable to the defendant may or may not be admissible depending upon whether it is necessary under what is called the "rule of completeness."

The rule of completeness basically is a rule that says if a portion of a statement is introduced by a party, additional portions may or may not be admissible. As one court put it, the test is “whether the meaning of the included portion is altered by the excluded portion.” I pulled up four published cases in five minutes from my jurisdiction which upheld exclusion of favorable portions of a defendant's statement to police. A number of the leading questions LeadCounsel uses would call for non-admissible hearsay from the police officer. I should add that these observations are based on my state's rules of evidence but they are modeled after the Federal Rules of Evidence and are in the mainstream of most states' rules.

My second observation is simply one of common sense. If someone shoots and kills another person and claims self-defense, the jury is going to want to hear the shooter's story first hand. Clear cut cases of self-defense don't get to a jury (at least not in jurisdictions which aren't rabidly anti-gun). Yes, they are instructed on the presumption of innocence and not to hold the defendant's silence against him. In many, many types of criminal cases they will follow that instruction but, IMO, as a practical matter a defendant starts behind the eight ball if he or she doesn't testify about a claim of self-defense.
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Old April 1, 2014, 10:25 PM   #58
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And sadly, the very people who are in a position of an unclear cut case of homicide or self defense, and facing charges, are likely not going to make great witnesses in their own defense.

The great witnesses of course are the ones that are given a No Bill... they made the best decisions at all times under ideal circumstances.

There are inherent risks of putting clients on to testify... I've gone both ways and have seen even the best prepared clients say really bone-headed things under brutal cross exam...

Anyone using birdshot or flashbangs as a first round, followed up with a slug, would not be advised to testify!

Quote:
Believing the testimony of the defendant claiming self defense can always, or even frequently, be avoided is fatuous. Trying to convince folks that's the case is irresponsible.
Never been my position. Please re-read my position on the entire matter of the post.
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Last edited by leadcounsel; April 1, 2014 at 10:32 PM.
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Old April 1, 2014, 10:37 PM   #59
Frank Ettin
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Quote:
Originally Posted by leadcounsel
Quote:
Believing the testimony of the defendant claiming self defense can always, or even frequently, be avoided is fatuous. Trying to convince folks that's the case is irresponsible.
Never been my position. Please re-read my position on the entire matter of the post.
Well, it all started with this statement of yours in post 34:
Quote:
...Here's a final consideration. Often, very often, it's best that the defendant not testify. There are often sound reasons for even the most innocent person to not testify...
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Old April 1, 2014, 11:04 PM   #60
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SO, we have a general consensus that (in no particular order)

its a poor idea to defend yourself with birdshot

an attacker who isn't attacking at the time of being shot shouldn't be shot

it is both a good and a bad idea to testify on your own behalf

if your opponent resumes the attack, you may resume the defense

Blinding (permanent) is somehow a fate worse than death

where else can we go with this?
(holds fork at the high ready position...)
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Old April 2, 2014, 03:19 PM   #61
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One thing is clear from all this. Self defense is not a simple issue. And no one has even mentioned the elephant in the room, race. Anywhere in the U.S., any shooting of a person of one race by a person of another race will be a big story no matter what the circumstances. Add the press antipathy to self defense and anyone claiming self defense may have serious problems in both the real court and the court of public opinion.

IMHO, the best course, if at all possible, is to avoid circumstances where the issue may arise. That does not mean you shouldn't carry a gun where it is legal or that you should not defend yourself and your family if necessary. But the best course is always to avoid trouble.

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Old April 2, 2014, 05:40 PM   #62
Venom1956
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I would say blinding a full grown human being could even possibly make him more dangerous. Blinding someone doesn't remove them from the fight physically. Perhaps mentally it will from person to person. ie "well crap I cant see anymore best give up...."

But Physically he or she is still fully in control of their body. if hes blinded while running at you odds are he will still reach you. He can still stab shoot or swing. While it will be much harder for them to hurt you its still possible. The fact they cannot see could even increase aggression and desperation as instincts take over.

It would be hard to recommend to anyone that anything less then unmoving on the floor with hands visible (no weapon) would acceptable as compliance when you and your loved ones lives are on the line. This does not require the attacker to be killed but is often a byproduct. I would not recommend approaching them to render aid or check for life signs.

The trouble with this is convincing the court it was necessary which is tricky.
Widowed mom of three blinding a large male attacker...
Middle aged man blinding stupid teenager that broke in...

Which ones gonna make news?

We had a teen couple here attack a senior man with baseball bats. He responded with a firearm, resulting in both their deaths. Outcry was idiotic. Some guy on the news said and I quote "they were only baseball bats... why would you shoot them?" Like hes the villain.

Its all perception after the fact but during I guess I'd just say give it your all because you might not get another shot protecting your family if you give them the slightest edge...
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Old April 3, 2014, 08:51 PM   #63
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Quote:
JamesK wrote: And no one has even mentioned the elephant in the room, race. Anywhere in the U.S., any shooting of a person of one race by a person of another race will be a big story no matter what the circumstances.
I strenuously disagree. In Los Angeles County we have Hispanic on Black / Black on Hispanic happen quite often and it NEVER makes the news other than "so and so was shot" in the daily bird cage liners. As long as it isn't White Man shoots "insert race, ethnicity, social orientation here" it is not a story. If White man shoots intruder it still isn't a story. Gang Banger shoots Gang Banger is something like a page G12 blurb. If you want to call me out on this go to LATIMES.com "Local / Crime" section and see the crime stats and stories. They even have a section for the murders this year to date! Currently at 122 as of this post.

I have been through the DA's meat grinder before. I would talk to the points from the perspective of BTDT but I have no desire to bandy words with attorneys that are not criminal defense specialists.
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Old April 4, 2014, 10:09 AM   #64
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The race issue, while germane to how the press treats a story, is something we can do nothing about, and NOT a factor in the topic under discussion.

The only place race has in our current discussion is human vs animal, and its a tiny place, at that.
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Old May 20, 2014, 04:18 PM   #65
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"The bad guy might recover completely. OR he might spend the rest of his days in a wheelchair. Either way, I don't give a rat's posterior how the rest of his life is lived, once he is stopped from hurting me or mine."

What if you made a mistake? Accidental deaths happen all the time. People make mistakes, especially when their adrenaline is surging. Would you still not give a rat's ass?
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Old May 21, 2014, 09:25 PM   #66
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I would think intentionally blinding a burglar with birdshot is going way beyond self-defense. We don't have to maim the bad guys. They suffer the risk of death or serious wounding, even permanent disability like wheelchairs or amputation, but that's the luck of the shot placement, not a deliberate plan.
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Old May 22, 2014, 11:21 AM   #67
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My big concern is that several of the strategies suggested in the initial question are essentially lower levels of force on the force continuum. A firearm is capable of causing death or serious bodily injury. If you aren't justified in using deadly force, you shouldn't be using a firearm. If you are legally justified in using deadly force, that is a big clue that it is probably a bad idea to use lower levels of force.

The idea that you can shoot some mischevious urchins stealing your watermelons with rock salt is foggy thinking. You can kill someone like that. In most jurisdictions, that is still lethal force. You are using the wrong tool for the job. The opposite of that is the "I'm going to scare off the intruder making forcible entry into my occupied home" by using a gun but I don't want to do anything that might cause serious harm. That is someone who has the wrong mindset to be using a firearm in self-defense.
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Old May 22, 2014, 11:37 AM   #68
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Quote:
Originally Posted by stayingsafe
"The bad guy might recover completely. OR he might spend the rest of his days in a wheelchair. Either way, I don't give a rat's posterior how the rest of his life is lived, once he is stopped from hurting me or mine."

What if you made a mistake? Accidental deaths happen all the time. People make mistakes, especially when their adrenaline is surging. Would you still not give a rat's ass?
Please do not turn the conversation into something it is not. Comments have a context and it is disingenuous to remove them from it and make negative connotations. 44AMP is clearly speaking of a hypothetical scenario wherein someone who is actively and intentionally endangering his life or the life of some other innocent. The context and meaning of his comment is clear and it has no implication of any accidental shooting of an innocent.
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Old May 23, 2014, 11:47 AM   #69
mehavey
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Good grief...

If in imminent fear of grievous bodily harm to yourself or others -- and you cannot safely retreat (home excluded):

- Use the weapon most available/likely to immediately stop that threat
- A shotgun* is nice, but unwieldly in tight spaces
- A 22 pistol is not particularly effective in immedately stopping** an imminent threat, but may be all you have.
- Center mass aimpoint into whatever is exposed, repeated until the threat is neutralized***
- Never be so presumptuous as to shoot to wound/maim. If you are in imminent threat of another's use of deadly force, do not fool around****



* 00-Buck to slug preferably. But if a skeet load is all you have, that's all you have.
** Unless a CNS shot
*** Goes down, flees, drops his weapon and does not approach further, "is out of action" etc
**** This includes deliberate/pre-mediated blinding actions -- of whatever type/source/weapon -- unless that is all that is exposed to you

Last edited by mehavey; May 23, 2014 at 12:07 PM.
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