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Old December 29, 2009, 05:12 PM   #1
Skans
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If a person shoots and kills a person in self defense....

If a person shoots and kills a bad guy in self defense, does the law require the shooter to turn himself in to the police? Or even report the incident?

The reason I ask this is because it seems contrary to the Constitutional right to the 5th Amendment where a person is not required to divulge information to the Police which may incriminate him in a crime. In at least some states, the shooting of a person is considered a crime, to which self defense is merely an affirmative defense to the crime. Does anyone know the answer to this?
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Old December 29, 2009, 05:35 PM   #2
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If a person shoots and kills a bad guy in self defense, does the law require the shooter to turn himself in to the police? Or even report the incident?
Are you serious? I'm not a criminologist by any means, but doing what you asked is a crime...shooting in SELF DEFENSE is not...the 5th amendment protects you from self incrimination IN a crime. If you didn't commit a crime then you wouldn't have to "plead the 5th."
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Old December 29, 2009, 05:35 PM   #3
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Yes, you had better call them in any situation you pull your weapon whether it's fired or not. When they get there, just tell them you feared for your life and want to help them in their investigation but are too shaken up at the moment and would also like to talk to your attorney before giving a statement. I'm sure they will try to coax info out of you but remain tight lipped. You will be experiencing many emotions plus the adrenaline dump so don't risk inadvertantly saying something incriminating. In the event you have shot someone, when you call 911 make sure they send an ambulance ASAP as this is what a "normal" person would do. In the event it should go to trial before a jury, it's imperative that you appear as a caring, concerned and "normal" citizen of the community.

Regardless of what state you're in, you shoot or kill someone and don't report it...you're in a world of crap.
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Old December 29, 2009, 05:47 PM   #4
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Freakdaddy said you have to report it but didn't really the best reason why... First, it is a crime to not report a crime. I'm not talking about the "crime" of shooting someone in self defense (that's not a crime), but the attempted assault, rape, robbery, murder, or whatever that caused you to have to use your weapon in self defense. Failure to report that stuff is a crime. Second, and most importantly, you do not want the perp to call YOU in. Because they won't say that they tried to murder/rape/rob you, they will just say that you shot them. At the point, to the police, THEY are the victim. Then the police find you, arrest you, question you, and you say "well he tried to kill me!" and the police say "Really? Why didn't you call us?" and they don't believe you. Then you are the one being charged with attempted murder. Bottom line: it is in your best interest to report the incident.
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Old December 29, 2009, 05:53 PM   #5
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I am not sure of specific laws, but I'm sure there are some as far as reporting an injured person or a dead body. You do not have to admit to doing the shooting when you call, just say someone has been shot and they need an ambulance. In VA to use self defense as a defense you have to admit to manslaughter. In most cases you are certainly better off saying this is the bad guy and I feared for my life, then request a lawyer before giving any details.

If you do not admit to shooting the dead person they would have to prove you did. How that would effect a later self defense claim I do not know.
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Old December 29, 2009, 06:23 PM   #6
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Let me be clear here. I know all of the reasons why you SHOULD report a self-defense shooting. Please don't take my inquiry as though I am advocating not reporting such an incident.

My question is really more of a legal one. It seems contradictory to me that you can be required by law to report a shooting, which may or may not be later determined to have been done in self defense. This seems contrary to the protections of the 5th Amendment.

To my knowledge, there are no laws that would make it a criminal act to not report a crime that you witnessed. Certianly, if you were involved in a crime, you are not committing additional crimes by not reporting yourself to the authorities - this I know is contrary to the 5th Amendment.
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Old December 29, 2009, 06:37 PM   #7
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If you are that concerned about incriminating yourself maybe you should immediately call your attorney. Let him make the call.
Also here in MN, it is a crime to shoot anyone and not provide care. The min. requirement is calling 911.
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Old December 29, 2009, 06:43 PM   #8
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Quote:
Originally Posted by Sefner
First, it is a crime to not report a crime. I'm not talking about the "crime" of shooting someone in self defense (that's not a crime),
Actually, my understanding is that it IS a crime. You have committed homicide if you kill someone. The distinction is that you are JUSTIFIED in committing that crime.

I'm no lawyer, and I'm sure that one will be along shortly to clear this up, but that's my understanding.

Quote:
Originally Posted by Skans
My question is really more of a legal one. It seems contradictory to me that you can be required by law to report a shooting, which may or may not be later determined to have been done in self defense. This seems contrary to the protections of the 5th Amendment.

That's why you say on the phone that you were attacked and feared for your life and were forced to defend yourself and tell them where you are and the you say NOTHING ELSE except "I really want to help you all that I can but I need to talk to my lawyer." and then you SHUT UP. Reporting the crime is different than testifying against yourself. You're not answering questions, you're reporting an incident.
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Old December 29, 2009, 07:01 PM   #9
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Here we go again.

My understanding is this.

If you display your weapon and dont fire it... as long as you believed that you would have been justified in using it, and in fact you would have been justified.... No crime has been commited. But the police may see it differently.

If you fire your gun at a human, and strike that human, and that Human dies as a result of that gunshot, that would be a homicide. A grand jury, or coronors jury, or a judge at a felony hearing may rule the shooting a reckless homicide, a criminally neglegent homicide, a justified homicide, an accident, or some degree of murder.

A justifiable homicide requires an affermative defense. In order to claim justification you must admit that you fired the shot. An affermative defense shifts the burden of proof from the state to the subject. With the same standard of proof. "BEYOND A REASONABLE DOUBT".

The decision of talking to the police at the scene is personal, and should not be taken lightly. I'm sure a lot of folks will chime in with good advice for talking or not talking.

This information is based on criminal law from the state of NY. Every state has their own criminal law, and may differ from state to state.
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Old December 29, 2009, 08:14 PM   #10
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Quote:
It seems contradictory to me that you can be required by law to report a shooting, which may or may not be later determined to have been done in self defense.

If it is done in self defense, and then later proved not to...then was it really done in self defense? He said, she said? or a dead man can't testify? If HANDS DOWN its a self defense shooting then I wouldn't worry about the 5th. If it was later proven that it wasn't self defense, then something went awry.

So to answer your 1st question:
Quote:
If a person shoots and kills a bad guy in self defense, does the law require the shooter to turn himself in to the police? Or even report the incident?
Yes and yes.
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Old December 29, 2009, 09:38 PM   #11
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If you draw a firearm with the intent to use it, you have employed deadly force. No shot needs to be fired.

If you use the firearm in self defense and a human being dies, you have committed a homicide--the taking of a human life by unnatural means, in which you were the agent of inflicting a lethal injury. You will find that in most State statutes, you will find a definition of Homicide.

You will also find statutes that resemble this: "Homicide--When Lawful"...

In other words, the law recognizes that there are instances when you may legally and morally employ deadly force to preserve your own life or limb, or to save you or another from the same or other maiming, crippling injury.

If you fail to report the homicide, you have now placed yourself in the realm of the offender. If the incident is reported right away, there are more than likely bits and pieces of evidence present to support your claim of self defense.

If you flee the scene, then you will more than likely be charged with Murder. This is the unlawful taking of life.

So, what do you do?

If I answer a call of "shots fired", and come on the scene to see you there, with a dead body, I will approach you, asking you to keep your hands where I can see them. I will disarm you, and read you the rights admonishment.

If there is OVERWHELMING evidence that you fired to save your life--or the life of another (children, wife, other innocent person), you might not even go to jail!

But remember this well--I (and other officers) are NOT the triers of fact in ANY instance. We simply observe, and determine if there is probable cause to believe that a criminal act has been/will be/is being committed. And, with a homicide, we have habeas corpus--literally, the body of the evidence--in the most literal sense of the phrase, laying right there. Thus, we have probable cause to effect an arrest.

You will more than likely be arrested, on SUSPICION of Homicide. What happens after that is up to the Court.

But, do NOT conceal or run away from the evidence. It only makes you look more like the criminal and less like the victim.
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Old December 29, 2009, 10:07 PM   #12
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Normally if you were in the right you have nothing to worry about, at least from the Police. Now if you just plugged 3 members of the messican mafia, the possible retribution from them might induce you to keep your mouth shut..

There was a case in Phoenix where a guy shot 2 bad ass bouncers who he had a road rage altercation with, they followed him into a parking lot, he shot annd killed both and took off. The only details they had on him was that he had a Honda of some kind. If he went to the poliice right away he could have pleaded self defence, sounded like it to me. Took the police 3 years, but they tracked him down eventually by interviewing every owner that sold a Honda, and he went to jail.
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Old December 29, 2009, 10:42 PM   #13
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Quote:
If a person shoots and kills a bad guy in self defense, does the law require the shooter to turn himself in to the police?
That is a two pronged question; First, If you shoot and kill anyone a crime (statutorily, Homicide) has been committed. I would think, in almost every State you would be required to report that the incident occurred.

Second; whether you " turn yourself in" would depend greatly on the circumstances, and what information you volunteer to the investigating authorities once they arrive.

In an "affirmative defense" you are admitting that you committed the homicide. Thus, you have waived at least part of your 5th amendment rights in order to mount your defense.

As to the question of whether it was a justified homicide, that will be hashed out by the authorities in that jurisdiction.
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Old December 29, 2009, 11:49 PM   #14
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[1] For a pretty extensive discussion of the subject, see http://www.thefiringline.com/forums/...d.php?t=379063

[2] If you actually do shoot at someone, or even draw your gun in self defense, running away is a very bad idea. You will want to be the first person to report the event to the police. Running equates to guilt. If you run, you'll have a very tough time selling the proposition that you were justifiably defending yourself.

And let's say someone presented a lethal threat, you drew your gun; and he ran away. There's a possibility that he'll run to a phone, call the police and report that "some nut up the street just drew a gun on me." Now the police are looking for you, and you might have an uphill fight convincing them that you drew your gun in legitimate self defense.

You will be better off if you are the first to report an incident. The first to call tends to have the most credibility.

[3] As to the right to remain silent, the nature of a self defense claim is that you will have to tell your story. It's something of a question of where and when, but being the first to report the incident helps establish your credibility and your bona fides as the "good guy."

Ordinarily, in a criminal prosecution the state must prove the elements of the criminal offense beyond a reasonable doubt. So if the crime charged, and for which the defendant is on trial, is, for example, manslaughter, the state must in general prove to the jury beyond a reasonable doubt that (1) the defendant was there; (2) the defendant shot the decedent; and (3) the defendant intended to shoot the decedent. The burden of proof falls solely on the prosecution, so the defendant's strategy is to say nothing and put the prosecution to its proof; or attack the prosecutions evidence to create a reasonable doubt; or try to cast doubt on the state's claim that he was there (alibi defense), that he pulled the trigger (some other dude done it), or that he intended to shoot the decedent (the gun went off by accident).

But all of that is completely inapplicable when the defendant pleads self defense. If the defendant claims self defense, the prosecution doesn't have to prove, at all, that the defendant was there, that he shot the decedent or that he intended to shoot the decedent, because the defendant will have admitted each of those elements of the crime of manslaughter. If the defendant is claiming self defense he necessarily must admit that he (1) was there; (2) shot the decedent; and (3) intended to shoot the decedent.

If you are claiming self defense you will have the burden of producing evidence that your conduct met all the elements needed to satisfy the applicable legal standard for justification. Only once you have done so does the prosecutor now have the burden of proving that the defendant's actions were not justified. And even though you may not have the burden of proving justification, the less convincing your evidence is, the easier it will be for the prosecutor to disprove justification.

The principal evidence supporting your self defense claim will be your testimony. You will need to testify, and that means you will be subjecting yourself to cross-examination.

How difficult it will be for the prosecutor to successfully attack your self defense claim will in part depend on how convincing your story is, and how strong the evidence supporting your story is. Things that could, in the minds of your jurors, damage your credibility will be bad for you (and things that enhance your credibility will be good for you). Not having promptly reported the incident or having left the scene equates to guilt and may irredeemably damage your credibility.

[4] If you shoot someone in self defense, stay, get out your cell phone, call 911 and tell them that you have just been attacked and defended yourself. Ask for police and an ambulance. And then you wait.

When the police arrive, basically what Massad Ayoob, Marty Hayes, Kathy Jackson and others recommend is:

* Say something like, "That person, or those people, attacked me." You are thus immediately planting the notion that you were the victim.
* Say something like, "I will sign a complaint." That establishes that you viewed the conduct of the other party to be criminal. It also shows a spirit of cooperation.
* Point out possible evidence, especially evidence that may not be immediate apparent. So if the assailant's knife slide under a car, tell the investigating officer. If the assailant dropped his gun in the bushes as he ran away, mention that. You don't want any such evidence to be missed.
* Point out possible witnesses.
* Then say something like, "Officer, you know how serious this is. I'm not going to say anything more right now. You'll have my full cooperation in 24 hours, after I've talked with my lawyer."

[5] Take a class from Massad Ayoob and/or read Kathy Jackson's and Mark Walter's book, Lessons from Armed America. Doing so will be very helpful in dealing with these kinds of questions.
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Old December 29, 2009, 11:50 PM   #15
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OK, guys. Homicide isn'ta crime. Homicide is the killing of one human being by another. It may be accidental or on purpose, and may be criminal in either case (negligent homicide, involuntary manslaughter, manslaughter, murder). If a homicide is justifiable or excusable (the difference is really moot) then the slayer has committed no crime. However, in all but the most blatent cases of self-defense, it is likely that the slayer will be arrested and possibly charged with murder, manslaughter, or some similar crime.

Getting back to the original question, there is nothing in the law that requires you to notify police or anyone else if you shoot someone in self-defense. However it is almost always in your best interests to do so. Failure to report the incident, and leaving the scene can be construed as flight to avoid prosecution, and may well convince a jury that the shooting was not really in self-defense. Moreover, if, by failing to report the shooting, the "victim" dies when (s)he otherwise might have been saved by timely medical treatment, you may, indeed, be guilty of negligent homicide or involuntary manslaughter, depending on statutes.
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Old December 29, 2009, 11:51 PM   #16
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Quote:
Originally Posted by peetzakiller
Actually, my understanding is that it IS a crime. You have committed homicide if you kill someone. The distinction is that you are JUSTIFIED in committing that crime.
I was assuming you are justified in the shooting, thus making it legal. Also innocent until proven guilty. In other words, semantics (oh man that is an awesome pun).

Quote:
Originally Posted by Powderman
But remember this well--I (and other officers) are NOT the triers of fact in ANY instance. We simply observe, and determine if there is probable cause to believe that a criminal act has been/will be/is being committed. And, with a homicide, we have habeas corpus--literally, the body of the evidence--in the most literal sense of the phrase, laying right there. Thus, we have probable cause to effect an arrest.
This is insightful. Expect to be arrested regardless.
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Old December 30, 2009, 12:00 AM   #17
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Now let's look at this another way.
Quote:
Originally Posted by Skans
...It seems contradictory to me that you can be required by law to report a shooting, which may or may not be later determined to have been done in self defense. This seems contrary to the protections of the 5th Amendment....
So what?

Maybe there are no laws requiring that you report it, or if there are you successfully avoid liability under one by pleading the 5th Amendment.

However, the practical effect of not reporting the event is that you have substantially increased the likelihood that your self defense claim will fail. So you won't go to jail for a failure to report. You'll be convicted of aggravated assault or manslaughter, depending on whether your victim lives or dies.
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Old December 30, 2009, 08:48 AM   #18
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I've read all of the responses so far. Many of the responses are excelent - very informative. But, here is something I struggle with based on fiddletown's first comprehensive response: If a person happens to shoot and kill someone in self defense, it seems that an immediate decision must be made - report the incident and avail yourself of the self-defense affirmative defence, or not report the incident and make the authorities prove all of the elements of the crime.

If the shooter decides to report the shooting death, then he can expect to be arrested, spend some time in jail, have to bond out of jail (or if he can't afford to bond out continue to stay in jail until trial), if charges are pursued, be subject to trial, testifying and cross examination, and then roll the dice that he will not be convicted. The State basically is being handed a big portion of their case against the shooter on a silver platter.

If the shooter decides not to report the shooting death, perhaps because there are no witnesses or whatever reason, then he has no immediate concerns (legally speaking) unless and until he is somehow connected with the shooting. Then (I believe) the prosecutor will have to jump through all sorts of hoops to attempt to prove all of the elements of his case, if he even has enough evidence to get the shooter charged with the crime. If it looks like the prosecutor has all of the evidence to prove up his case, then the shooter could still acknowledge the shooting and avil himself of a self-defense claim, but that claim will be a weakened one.

There seems to be one element to this discussion that is missing that might entice a shooter who acted in self defense to call in the shooting. The police could look at the evidence and decide not to even charge the shooter with anything - if it's a clear cut case. Or could they? From what I've read, most folks who clearly shoot in self defense are never even arrested or charged with a crime. Is this correct, or am I wrong on this point? If there is a good chance that a shooter who clearly shot in self defense will not be arrested or charged, if he promptly calls 911 and cooperates with the police, then this is a huge incentive to take this path rather than the other. But, if you can plan on being arrested, charged, and tried regardless - I still think there is a decision to be made of whether or not to even report the shooting.
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Old December 30, 2009, 09:46 AM   #19
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Quote:
If it looks like the prosecutor has all of the evidence to prove up his case, then the shooter could still acknowledge the shooting and avil himself of a self-defense claim, but that claim will be a weakened one.
I'd say that this would be an understatement. Your claim will be seriously weakened by the fact that you did not report it. Not only that; but the evidence supporting your version of events may go unnoticed or uncollected without you there to help with the investigation. If you are trying to hide your participation, it may even require evidence useful to your self-defense case be destroyed.

So in addition to the really, huge problem of immediately looking like a criminal in the eyes of pretty much every reasonable person out there - you may also lose a lot of evidence that would actually help establish your self-defense claim by not reporting the attack.
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Old December 30, 2009, 10:32 AM   #20
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Quote:
Originally Posted by Sefner
I was assuming you are justified in the shooting, thus making it legal. Also innocent until proven guilty. In other words, semantics (oh man that is an awesome pun).
It is a technicality to be sure but I think that it's more than semantics. I'm not entirely sure how it breaks down legally and it may be different from one state to another. As far as I know, it is still technically a crime to shoot someone, even when it justified, except that the justification essentially "nullifies" the crime. It's not that you didn't commit the crime or break the law, you did. The difference is that you don't pay the penalty for the crime if you have sufficient justification.

Essentially, there is a second law that says that it's OK to break the first law in certain circumstances. Sort of, more or less.
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Old December 30, 2009, 11:24 AM   #21
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Quote:
Originally Posted by Skans
...There seems to be one element to this discussion that is missing that might entice a shooter who acted in self defense to call in the shooting. The police could look at the evidence and decide not to even charge the shooter with anything - if it's a clear cut case. Or could they? From what I've read, most folks who clearly shoot in self defense are never even arrested or charged with a crime. Is this correct, or am I wrong on this point? If there is a good chance that a shooter who clearly shot in self defense will not be arrested or charged, if he promptly calls 911 and cooperates with the police, then this is a huge incentive to take this path rather than the other. But, if you can plan on being arrested, charged, and tried regardless - I still think there is a decision to be made of whether or not to even report the shooting.
It does seem that if you use a gun in self defense, most of the time the matter will not wind up going to trial. This is based on reports of DGU published in the press and such sources as the NRA's "The Armed Citizen" column, and similar sources.

That doesn't necessarily mean that you won't get detained, or even arrested, that you won't get "taken downtown", that you won't want a lawyer. It also doesn't mean that you won't feel like you've "been put through the wringer" to some extent.

But I'm convinced that if you handle the aftermath properly, and that includes reporting the event right away, your chances of a good outcome are substantially improved. And in most cases, when the prosecutor evaluates the situation he will conclude that there is no case to take to trial.

Quote:
Originally Posted by Skans
...If the shooter decides not to report the shooting death, perhaps because there are no witnesses or whatever reason, then he has no immediate concerns (legally speaking) unless and until he is somehow connected with the shooting. Then (I believe) the prosecutor will have to jump through all sorts of hoops to attempt to prove all of the elements of his case,....
Aside from that fact that is something an honest, upstanding individual would not even consider doing, what would your life be like if you did something like that? You'd be constantly looking over your shoulder wondering when the police would catch up with you. You'd never know if you were in the clear. You'd never know whether or not there were witnesses you didn't see or some other pieces of evidence that will ultimately connect you to the shooting.

What I understand from discussions with Massad Ayoob is that things often don't turn out well at all for folks who run or folks who have lied.
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Old December 30, 2009, 11:57 AM   #22
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Skans,

I think that you've got to look at this from the opposite perspective. Let's say that you're involved in an absolute 100% legitimate SD shooting but you do not report it.

What's going to happen when the body is found or the bad guy goes to the hospital? There's going to be an investigation, they're going to look for witnesses, security cameras, they're going to get a statement from the BG if he lives and it's NOT going to be "Yeah, I attacked this guy and he defended himself." If the guy is dead then the police have an unsolved murder on their hands. Odds are that they will eventually find you. They're not going to be happy that you didn't come forward. There WILL be a presumption of guilt. I promise you that. Innocent until proven guilty is a nice concept.... anyone remember the Duke lacrosse case?

I agree that there could be a danger of "self-incrimination" to some degree but the other side of the picture is worse. Much worse.
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Old December 30, 2009, 12:24 PM   #23
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What Fiddletown said.

Departing without reporting kicks in the legal principle most judges will allow to be argued, that "Flight Equals Guilt." It will create a vastly higher mountain for your defense team to climb.
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Old December 30, 2009, 01:33 PM   #24
Skans
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Quote:
Departing without reporting kicks in the legal principle most judges will allow to be argued, that "Flight Equals Guilt." It will create a vastly higher mountain for your defense team to climb.
Mr. Ayoob, thank you for your reply. I know that you are an expert in this area. But, what about the fact that by reporting the incident and claiming self-defense, you have wiped out your 5th Amendment right against self incrimination as well as making the prosecutor's case against the shooter by eliminating his burden of presenting evidence on several elements necessary for him to estabish his case?

Depending on the circumstances surrounding the shooting, there is certianly no guaranty that charges won't be brought against the shooter and at least a possiblity of trial and conviction for some crime. I understand that with a well trained shooter, this is not a likely outcome, but what if the shooter is not well trained? What if the bad guy didn't actually have a weapon, just pretended to have one or something else along these lines?

It seems to me that it is a valid discussion to have with regard to not reporting the incident. Assuming that the shooting turns out to be questionable, is the shooter breaking another law (depends on location, I gues) if he simply flees and doesn't report the incident?

I'm just trying to take an honest, unbiased look at this situation. I am not encouraging anyone to break any laws. Every SD shooting is going to be different. Some are going to be more questionable than others. Is it never valid to even consider not reporting - IF not reporting doesn't constitute the breaking of another law?
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Old December 30, 2009, 02:04 PM   #25
OuTcAsT
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I understand that with a well trained shooter, this is not a likely outcome, but what if the shooter is not well trained? What if the bad guy didn't actually have a weapon, just pretended to have one or something else along these lines?
I would think that your own testimony about the circumstances, is going to be paramount to your defense in this type of situation.

If the circumstances are questionable from the beginning, not reporting it could only make it worse...IMHO.
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