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Old November 9, 2010, 12:23 PM   #1
WeedWacker
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Talk or Don't Talk: The Aftermath of a Self Defense Situation

I've always been of the ind to keep your mouth shut until a lawyer is available to represent oyu and keep you from saying something that comes across as incriminating. Then I read this story about a common real time scenario that plays down. Now I'm not sure what I would do. Here's the part that gets me:

Quote:
You shoot one of them, maybe wounding him - maybe killing him, and the other one runs off into the night. You saw the first man drop his pistol in a clump of ivy and the other man throw his knife on a rooftop as he ran away.

You immediately call 911 and give a very cryptic account of what happened..."there has been a shooting...I'm the victim...send help".

Crimescene In the meantime, one of the assailants...the one who got away, is also calling. His story is a little different. According to him you called them "Dirty Ghetto Norwegians", and pulled your gun on them, shooting his buddy. As far as the police know...they got two calls. One a cryptic call, from someone who seemed to be concealing something, and another reporting what amounts to a racial hate crime by a right wing Nazi.

They arrive on scene and after controlling the event, ask you what happened. What you do now will have a bearing on the rest of your life.

The guys who advocate saying nothing will not be able to point to the two weapons which were discarded...and which will disappear as soon as the scene is cleared. The police may not even look for them since no one told them they were in existence. No one will tell them you are a good guy who was a victim of an attempted robbery, as the ONLY info paints you as some KKK wannabe.

Sure...you'll have a lawyer...but all of the evidence the police may have collected will no longer be available, and the investigation will not have been an even and equal one, but rather one where you alone are the suspect.
My first thought is "what if you DIDN'T see where they ditched the weapons? Do you hope they have a rap sheet as it will turn to a hearsay argument and the case is thrown to a civil court? I suppose your best bet is to not miss those shots and hope some evidence is left behind.

What sayeth the wise of those in TFL community?
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Old November 9, 2010, 12:44 PM   #2
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You not wise to say NOTHING. We've always been instructed to give the basics and articulate that you were in fear for your life.

There's a Lawyer who teaches CCW classes here at Scottsdale Gun Club. He makes the good point that EVEN THOUGH the responding officers may be slam dunk on your side, and pro gun, and straight up guys... There is at least one prosecuter in our area who is an anti gun butt wipe. And that person will try to prosecute anyone who uses a gun for self defense.
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Old November 9, 2010, 12:51 PM   #3
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Here are some links to some past threads dealing with the subject:

http://thefiringline.com/forums/showthread.php?t=379063

http://thefiringline.com/forums/showthread.php?t=390985

http://thefiringline.com/forums/showthread.php?t=425540 (see specifically post #8)
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Old November 9, 2010, 12:53 PM   #4
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"Shoot and Shutup"


give the VERY basic situation-if needed only.
no details, no nothing.
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Old November 9, 2010, 12:55 PM   #5
Frank Ettin
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And to expand a little on my prior post:

If Claiming Self Defense, Keeping Completely Quiet Is Not the Best Idea, But Don't Say Too Much.

Call 911. Be the first to report the incident and do so immediately. If you don't report it, or if there's a long delay, you will appear to have a guilty conscience.

Then, having taken LFI-I with Massad Ayoob, spending time with him and helping with a class of his in Sierra Vista, AZ not too long ago, I'll go along with his recommendation for when the police arrive.

[1] While one has a right to remain silent, clamming up is what the bad guys do. Following a self defense incident, you'll want to act like one of the good guys. You also won't want the investigating officers to miss any evidence or possible witnesses. What if the responding officers miss your assailant's knife that you saw fall down the storm drain? What if they don't know about the guy you saw pick up your assailant's gun and walk off with it?

[2] The police arrive and see a body on the ground with bullet holes in it, and they see you with a gun nearby. They will immediately be inclined to think of the ventilated corpse as The Victim and the guy still standing as The Attacker. But you're really the victim, and you'd prefer the police to have that in their minds as they begin their investigation.

[3] At the same time, you don't want to say too much. You will most likely be rattled. You will also most likely be suffering from various well known stress induced distortions of perception.

[4] So Massad Ayoob recommends:
  • Saying something like, "That person (or those people) attacked me." You are thus immediately identifying yourself as the victim. It also helps get the investigation off on the right track.
  • Saying something like, "I will sign a complaint." You are thus immediately identifying the other guys(s) as the criminal(s).
  • Pointing out possible evidence, especially evidence that may not be immediate apparent. You don't want any such evidence to be missed.
  • Pointing out possible witnesses.
  • Then saying something like, "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."
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Old November 9, 2010, 01:11 PM   #6
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I agree with giving a general account of what happened to the police, but my opinion is to avoid giving specifics regarding distances, length of time, the number of shots fired, etc. Your perception of such things is likely affected by the stress of the situation and you don't want to be proven wrong by forensics.
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Old November 9, 2010, 01:21 PM   #7
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(if posting videos is a "no-no" please let me know and i will adjust. i have read the rules, but am still learning.)

no. i watched these videos a while back, and the things that are stated by both sides is both shocking and eye opening. if you have ~45 minutes to spare before the day is over, watch these.

http://www.youtube.com/watch?v=i8z7N...eature=related

http://www.youtube.com/watch?v=08fZQWjDVKE
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Old November 9, 2010, 01:56 PM   #8
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Talk or Don't Talk: The Aftermath of a Self Defense Situation

"I was in fear of my life. I have nothing else to say until I speak to a lawyer."

No one ever got in trouble NOT talking to police. Plenty of people have dug their own graves by running off at the mouth and saying things that came out wrong.

Last edited by pax; November 9, 2010 at 04:21 PM. Reason: Rule 5.7
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Old November 9, 2010, 02:54 PM   #9
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Quote:
Posted by Weedwacker: I've always been of the mind to keep your mouth shut until a lawyer is available to represent you and keep you from saying something that comes across as incriminating. Then I read this story about a common real time scenario that plays down. Now I'm not sure what I would do.

http://www.facebook.com/topic.php?ui...99&topic=17230
Suarez is correct, and the comments on his article that disagree do not represent good advice in a self defense case. I'll join fiddletown in trying to explain why.

Quote:
Posted by demigod: You not wise to say NOTHING.
If you do not want to be charged after a self defense shooting in which what happened to require you to shoot is not clear except to you, or if you would intend to mount a defense of justification if necessary, that double negative is vey correct indeed.

Quote:
We've always been instructed to give the basics and articulate that you were in fear for your life.
So, how much is enough, and how much is too much?

For advice that requires a less subjective interpretation, see fiddletown's post above (the Massad Ayoob advice).

Quote:
Posted by boredom: i watched these videos a while back, and the things that are stated by both sides is both shocking and eye opening.

http://www.youtube.com/watch?v=i8z7N...eature=related

http://www.youtube.com/watch?v=08fZQWjDVKE
These provide excellent advice for most situations, but not for self defense cases. Most criminal investigations, charges, prosecutions, and trials involve trying to determine who had the opportunity and means and perhaps the motive to commit a criminal act and trying to establish beyond reasonable doubt that the person so identified did commit that act. The mission of the defense is to attack the evidence and to establish reasonable doubt about whether the accused did commit the act.

A self defense case is different. In order to avoid conviction, one who uses deadly force to protect himself must necessarily admit to having used such force. To successfully mount a defense of justification or to avoid being charged in the first place, there must be some evidence indicating that the actor did not provoke the incident, that he had reason to believe that he had been in imminent danger of death or serious bodily harm, and that he had no other reasonable choice. That evidence will have to indicate that the actor had reason to believe that the person against whom such force had been used had had the ability and the opportunity to seriously injure the actor and that the actor was in fact in immediate jeopardy. If the case happens to go to trial, it is up to the defense to produce that evidence.

The distinction is important. It is not up to the police to convince anyone that you did it. You will have to admit to it. It is up to you to establish that you had no other choice.

If witnesses who could support your case drive away and you can't find them, or if the assailant's weapon, accomplices, or if other evidence such as empty cases disappear, the actor may well become a defendant with a very difficult defense to conduct.

That, and the fact that you do not want the police to regard you as the suspect from the outset (thus establishing in their minds that what they need to look for is evidence that will incriminate you), make following the usual "don't talk to the police" advice to the letter something that can actually help lead to the criminal conviction of the wrong person in a self defense case.

For much better advice, see fiddletown's posts above.

His first post calls attention to what has been said on his before and recommends reviewing them, and particularly this:

http://thefiringline.com/forums/show...84&postcount=8

The second contains specific advice on what to do (be the first to call) and what to say and not to say.

Quote:
Massad Ayoob recommends:
Saying something like, "That person (or those people) attacked me." You are thus immediately identifying yourself as the victim. It also helps get the investigation off on the right track.
Saying something like, "I will sign a complaint." You are thus immediately identifying the other guys(s) as the criminal(s).
Pointing out possible evidence, especially evidence that may not be immediately apparent. You don't want any such evidence to be missed.
Pointing out possible witnesses.
Then saying something like, "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."
One other thing: if you want to ask an attorney about this, choose one that has real experience in defending the self defense case. Most lawyers I know cannot address the question very well at all. Many law schools devote less than two hours to the subject of affirmative defenses.

By the way, if the shooting occurred in your house in a castle doctrine jurisdiction, particularly if there is obvious indication of unlawful entry and there has been only casual prior contact, if any, between you and the intruder, the defense should be relatively straightforward. The rub comes when you have been accosted in a parking lot or on a sidewalk, and what happened is not clear to those who arrive after the fact.

I hope this helps.
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Old November 9, 2010, 03:02 PM   #10
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Old November 9, 2010, 03:21 PM   #11
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I would suggest everyone read the provisions of your particular state's "castle doctrine", I'm left with the impression that many believe it makes your home a free fire zone when some enters it. I don't believe that is always accurate.

As for talking, I have taken LFI-I (mag-40) and Ayoob does an excellent job of covering this material, better than any I have seen. I also agree with his suggested course of action outlined above. I am a criminal defense attorney, and he covers it better than lawyers. The devil is in the details of the various state laws.
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Old November 9, 2010, 03:42 PM   #12
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Quote:
[4] So Massad Ayoob recommends:

Saying something like, "That person (or those people) attacked me." You are thus immediately identifying yourself as the victim. It also helps get the investigation off on the right track.
Saying something like, "I will sign a complaint." You are thus immediately identifying the other guys(s) as the criminal(s).
Pointing out possible evidence, especially evidence that may not be immediate apparent. You don't want any such evidence to be missed.
Pointing out possible witnesses.
Then saying something like, "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."
Sounds like good advise. Guy here in Omaha had folks there that told the police who was the bad guy and what happened.
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Old November 9, 2010, 03:47 PM   #13
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You know, it really depends on the specific situation. There is no one answer to this question. You are going to have to say something. You don't want to blabber on and on. If you just killed someone, your heart is going to be racing and you are going to be feeling a bunch of intense feelings. It is going to be hard to shut up and say nothing.

Most lawyers will tell you that you should say absolutely nothing. They know that most cases they have to defend hinge on how much their clients talked to the police. The more they talk, the more likely a conviction - that is their perspective, and it is not wrong.

Cops have a different perspective - if you clam up and say nothing or simply demand that you have an attorney before saying anything at all, that can screw up their investigation and make them suspicious of you - which won't make for a good time.

YOU NEED TO BE THE JUDGE OF WHAT TO SAY. It's good to think and discuss these things, even if they've been discussed a hundred times. Its good to hear both perspectives, but ultimately you must rely on your own intellect, assessment of the situation and wisdom to steer your actions and discussions with the police, should you ever shoot someone in SD.
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Old November 9, 2010, 04:00 PM   #14
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Yiur In Good Company Here

I agree with Massad Ayoobs advice posted above.

It's my undrstanding that if you say nothing, you will face a Grand Jury Indictment. I would say nothing beyond what has been advised. Hard to control the mouth; I know because I've been working on that my whole life.

Probably the folks on this forum would be using the gun in a defensive situation rather than offensive. Your in good company here.
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Old November 9, 2010, 04:04 PM   #15
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Quote:
Originally Posted by Skans
You know, it really depends on the specific situation. There is no one answer to this question.
Yay! Skans and I sometimes don't agree, but this is the right answer. Why must we be forced into this false dichotomy of "Tell life story" and "Immediately lawyer up"?

If that guy tossed a gun in the bushes, why in hell would you not want to point that out? You get absolutely no benefit from not pointing it out. It only helps your case. Does that mean that you tell the police everything? Not at all. People need to use their best judgment, there are few axioms when it come to this sort of thing.
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Old November 9, 2010, 04:23 PM   #16
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Quote:
Posted by Luggo: I would suggest everyone read the provisions of your particular state's "castle doctrine", I'm left with the impression that many believe it makes your home a free fire zone when some enters it. I don't believe that is always accurate.
Yes, that is a widespread belief, and no, it is by no means always accurate, but no one should read the law and rely on his own lay interpretation.

Quote:
The devil is in the details of the various state laws.
And, of course, in the case law.

My point above was that if a justified shooting were to occur in one's home after a stranger or very casual acquaintance has broken in, the police are apt to size up the situation and start looking for evidence in a way that differs from that which one would face in the case of a shooting that occurred in a parking lot.
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Old November 9, 2010, 04:27 PM   #17
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I have edited two posts in this thread.

Both of them advocated illegal activity, which is against TFL Forum Rules for many good reasons.

To be clear: altering a crime scene is not just illegal. It's also a really stupid thing to do. And advocating stupid, illegal activity isn't allowed on TFL because our prime forum charter is to promote the advancement of responsible firearms ownership.

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Old November 9, 2010, 04:39 PM   #18
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Follow police instructions :

"They arrive on scene and after controlling the event, ask you what happened. What you do now will have a bearing on the rest of your life." Not so much. It sounds like they forgot one important thing . . . . to your benefit: "... you have THE RIGHT TO REMAIN SILENT..." All together now : Keep quiet.
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Old November 9, 2010, 06:27 PM   #19
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Quote:
Originally Posted by Luggo
...I'm left with the impression that many believe it [a Castle Doctrine law] makes your home a free fire zone when some enters it. I don't believe that is always accurate. ...
And I agree. If one reads any Castle Doctrine law carefully, he will see that there are certain, specific criteria that need to be satisfied in order to come within the protection of that law. In any given case, there may be some uncertainty, disagreement or dispute about whether one or more of those criteria have actually been satisfied. It might take a bunch of your lawyer wrangling with the DA to sort that out in your favor; or it might take a grand jury or even a trial to finally decide matters.

Castle doctrine laws can be a great help to someone who has had to use a gun in self defense, but they are by no means licenses to just blast away.

Quote:
Originally Posted by Luggo
...As for talking, I have taken LFI-I (mag-40) and Ayoob does an excellent job of covering this material, better than any I have seen. I also agree with his suggested course of action outlined above. I am a criminal defense attorney, and he covers it better than lawyers....
I'm a lawyer also, albeit not a criminal defense lawyer, and that was my impression as well.

Quote:
Originally Posted by Skans
...Most lawyers will tell you that you should say absolutely nothing. They know that most cases they have to defend hinge on how much their clients talked to the police. The more they talk, the more likely a conviction - that is their perspective, and it is not wrong...
Not if they understand how to handle a self defense case. A great many criminal defense lawyers, including many of the top ones, have never handled a self defense case. They may understand and be expert in normal criminal defense strategy, but, as alluded to by OldMarksman, self defense is different.

The basic approach in normal criminal defense is, "You can't prove that I did it." So normal criminal defense strategy is to undermine the prosecution's attempts to prove beyond a reasonable doubt that you committed all the elements of the crime. So the criminal defense lawyer focuses on trying to keep out evidence that could help the prosecution's case and trying to cast doubt on the prosecution's witnesses to create a reasonable doubt ("Mrs. Smith, it was very dark that night and you weren't wearing your glasses, yet you claim you are sure that the man standing over the body was my client....").

But if you claim self defense you will be admitting that you did it. Your defense will be that you were justified. You will now have to put on evidence establishing prima facie that your conduct satisfied all the elements needed to meet the legal standard justifying the use of lethal force against another human being.

Quote:
Originally Posted by Sefner
...Why must we be forced into this false dichotomy of "Tell life story" and "Immediately lawyer up"?...
And we shouldn't be. The point is to be prepared to say just what's been recommended, just enough, not too much -- and then keep quiet and immediately lawyer up.

Quote:
Originally Posted by HotShot.444
. . . . to your benefit: "... you have THE RIGHT TO REMAIN SILENT..." All together now : Keep quiet.
But if you are claiming self defense, has has been discussed above, keeping completely quiet is not really the best idea.

Quote:
Originally Posted by boredom
...no. i watched these videos a while back, and the things that are stated by both sides is both shocking and eye opening. if you have ~45 minutes to spare before the day is over, watch these...
But as has been pointed out, these videos discuss police contact in general and are irrelevant to the self defense situation.
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Old November 9, 2010, 07:16 PM   #20
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Quote:
[4] So Massad Ayoob recommends:

Saying something like, "That person (or those people) attacked me." You are thus immediately identifying yourself as the victim. It also helps get the investigation off on the right track.
Saying something like, "I will sign a complaint." You are thus immediately identifying the other guys(s) as the criminal(s).
Pointing out possible evidence, especially evidence that may not be immediate apparent. You don't want any such evidence to be missed.
Pointing out possible witnesses.
Then saying something like, "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."
The question isn't "do I talk or shut up?"

It's "what do I say before I shut up".

Answer: Enough to establish yourself as the victim by pointing out witnesses, tossed weapons, accomplisses, and signing a complaint against your assailant.

FACT: A typical defense lawyer doesn't defend many innocent clients. His advice that one should say absolutely nothing is excellent for his/her guilty clientel. A guilty man can't point out the aforementioned above.

The proceedure advocated above is endorsed by the Armed Citizens Legal Defense Network. Ayoob is part of that organizatioin.

I am, too.

http://www.armedcitizensnetwork.org/
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Old November 9, 2010, 07:16 PM   #21
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Just a few observations to add to the discussion...

First, you lose nothing by providing information that is incontestable. It establishes that you are willing to participate in their investigation (to a point):

"My name is Joe Citizen. I live at 123 Sugarbush Lane in Anytown."

Second, also from Massad Ayoob - but also from a number of defense lawyers in Colorado who assist with NRA courses - "self defense" is an affirmative defense. As fiddletown stated, to use 'self defense' one must first admit to the act. But in admitting to the act, be cautious in how you state things:

"I was attacked by that person there (point to attacker)."

"I fired in their direction."

(e.g. don't say "I shot them". As you are not a doctor, you have no idea what their condition is or whether or to what degree you are responsible for it. You may not know in fact whether you hit them. Perhaps they had a stroke and fell down unconscious... Be cautious about how you phrase any statement you choose to make.)

But as others said, it would certainly be wise to establish up front the fact that as far as one eyewitness is concerned (you), you are the victim and the other person is the assailant.

Third, you may be arrested and booked, etc. If charged, you may even be convicted - IOW, (in Colorado) an affirmative defense establishes that your actions were reasonable under the circumstances, however, the court may recognize neverthless that you were responsible for homicide - justifiable though it may have been. So you certainly want to have counsel with you whenever talking to the police afterwards.

But making careful statements on the scene to responding law enforcement officers regarding information that either is incontrovertible; may preserve evidence useful to your defense; or otherwise establishes your relationship vis a vis any corpse on the scene ('he's the attacker, I'm the victim') generally cannot hurt you and often can help your case.

Refusing to say anything at all is seldom helpful.

It's a matter of how you say what you choose to say.
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Old November 9, 2010, 07:34 PM   #22
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Any of you guys watch the A&E show, "The First 48?"

You will see real interviews of suspects, some innocent some guilty as sin.

99 percent of the interogators are not really trying to twist things (but a few DID AWFUL JOBS on a drunk.)

So from watching the show on sees you give them the dynamics of the situation. Who is the bad guy, who is the good guy, the jest of the situation, and point out any evidence. THEN ASK FOR A LAWYER. Do tell the LEOs you will cooperate 100 percent!! BUT, after talking to a lawyer.

Watch the show. I's a very good revealing show!

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Old November 9, 2010, 09:07 PM   #23
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Nothing on TV is real. Many parts of the first 48 is staged. Huge portions of the investigations are left out. Including parts of the interogations.

As I've stated in past postings, In a self defense situation your going to have to say something. The police will 99% of the time figure out what really happened. But it helps to give them a head start.

I'd advise that if the police get you in the box (interrogation room) it may be time for legal representation.
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Old November 9, 2010, 10:00 PM   #24
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Quote:
Originally Posted by fiddletown
And we shouldn't be. The point is to be prepared to say just what's been recommended, just enough, not too much -- and then keep quiet and immediately lawyer up.
I was referring to how this argument pans out on the Internet. One side always tries to peg the other into an absolute and that's not how things work.

I, too, enjoy the first 48. But it is TV, so we need to be careful there.
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Old November 9, 2010, 10:12 PM   #25
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Quote:
Originally Posted by Sefner
I was referring to how this argument pans out on the Internet. One side always tries to peg the other into an absolute and that's not how things work.
Nonetheless, it's probably the best idea to get a plan ahead of time. If it every happens, it won't be the time to be thinking on your feet.

If you decide not to say anything, it's probably best to fix that in your mind now. Under the stress of the immediate aftermath, you might not then be in a great position to be making a choice. I don't think resolving not to say anything is the best choice, but if it's what you want to do, I think you're better off deciding ahead of time.

If you decide to say just a little, it's a good idea to decide now what your approach will be. If it happens, you'll be under great pressure, flustered and might make a hash of things -- unless you're prepared. The big risk, if you're going to say anything, will be saying to much -- unless you have pre-programed your cutoff and the resolve to stick to it.
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