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Old May 2, 2013, 05:42 AM   #1
johnelmore
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Silence

I read the Supreme Court was taking up the issue of silence. My standard advice to all my friends and family is to stay silent when approached or questioned by the police. Only cooperate through an attorney. Even right after the incident stay silent and decline to answer any questions. However, it looks like that silence is being used against some folks.

As a result of this case my standard advice has changed from being passively silent to being actively silent meaning that when the police come tell them you wish to exercise your right to stay silent instead of saying nothing. I thought prior court cases were clear on the issue of silence but I think I was wrong.

I post this because many gun owners oftentimes find themselves in trouble with the law as a result of a lack of silence or cooperating with the police outside of an attorney. Many times prosecutors and police will go after innocent gun owners using their words against them. I can site many examples where gun owners went through a lot of trouble with the authorities only to be found innocent and sometimes after spending time in jail. Know your rights...silence is golden.
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Old May 2, 2013, 07:56 AM   #2
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If you carry, CC Insurance is worth looking into. It's not really that expensive.
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Old May 2, 2013, 09:39 AM   #3
Gaerek
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If you carry, CC Insurance is worth looking into. It's not really that expensive.
That's great advice. Most people don't realize just how much it can cost to defend your act of self defense. And that's just the criminal trial. If you go to a civil trial, it can cost you in the $500,000 range and up. USCCA offers $300,000 for civil liability, and $75,000 for criminal liability for what works out to be about $25 a month. I believe they now have a lifetime plan that has the same protection for $3000.

Then of course, there's the Armed Citizens Legal Defense Network which isn't insurance, but instead a fund you can have access to if you're a member, and have to defend your use of self defense. One year of membership is $125. For the cost, either, or both together isn't that much, considering what it could cost you.
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Old May 2, 2013, 10:53 AM   #4
johnelmore
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I might add insurance wont protect you from jail.
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Old May 2, 2013, 11:12 AM   #5
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I am not an attorney, but I suspect johnelmore is not, either. You do have a legal (and moral) obligation to cooperate with investigating officers up to the point of an arrest (Miranda warning) or to the point where you believe you are being treated as a suspect.

Obviously, if you shoot someone on the street, your best course is to not answer anything other than name and address without an attorney present. But the idea that you should never talk to the police except through an attorney is absurd. If johnelmore had seen one of the Boston bombers dropping his backpack, would he refuse to give the police a description without an attorney present? I hope not.

Jim
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Old May 2, 2013, 11:20 AM   #6
Gaerek
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I might add insurance wont protect you from jail.
Absolutely right. But it will help protect you from losing your house, savings, retirement, and possibly anything else they can get from you. If you're in a self defense shooting, there's a good chance you'll be put in handcuffs, booked, and placed in jail until bail can be met. But that's the least of your worries at that point.
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Old May 2, 2013, 11:40 AM   #7
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Moving to Law & Civil Rights -- off topic for T&T
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Old May 2, 2013, 11:42 AM   #8
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Check out the You Tube link!

http://www.youtube.com/watch?v=6wXkI...ature=youtu.be
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Old May 2, 2013, 11:54 AM   #9
Frank Ettin
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Yes, we have a right to remain silent. But there will often be a question of when to invoke that right, and when to speak up. If we witness a crime, should we not report it. If we witness a crime, should we not cooperate with a proper investigation.

But this issue usually comes up when we might be involved in an incident. And even then. silence might or might not be the best idea.

Quote:
Originally Posted by James K
I am not an attorney, but I suspect johnelmore is not, either. You do have a legal (and moral) obligation to cooperate with investigating officers up to the point of an arrest (Miranda warning) or to the point where you believe you are being treated as a suspect.

Obviously, if you shoot someone on the street, your best course is to not answer anything other than name and address without an attorney present. But the idea that you should never talk to the police except through an attorney is absurd. If johnelmore had seen one of the Boston bombers dropping his backpack, would he refuse to give the police a description without an attorney present? I hope not.
I am an attorney. But I'm not your attorney. I'm not giving legal advice. I'm providing comment on a legal topic based on my training and experience. So --

Keeping Silent Isn't the Best Idea in a Self Defense Matter

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] 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.

[3] 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 before they vanish.
  • 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."

Pleading Self Defense is Very Different From the Common Lines of Defense to a Criminal Charge.

A lot of folks point to the "Don't Talk to the Police" video that is making the rounds on gun boards. But it is about a police contact in general. It works fine when you aren't claiming self defense, and it's up to the State to prove your guilty beyond a reasonable doubt. But things work differently if you are pleading self defense.

Basically --

[1] The prosecutor must prove the elements of the underlying crime beyond a reasonable doubt -- basically that you intentionally shot the guy. But if you are pleading self defense, you will have admitted that, so we go to step 2.

[2] Now you must present evidence from which the trier of fact could infer that your conduct met the applicable legal standard justifying the use of lethal force in self defense. Depending on the State, you may not have to prove it, i. e., you may not have to convince the jury. But you will have to at least present a prima facie case, i. e., sufficient evidence which, if true, establishes that you have satisfied all legal elements necessary to justify your conduct.

[3] Now it's the prosecutor's burden to attack your claim and convince the jury beyond a reasonable doubt that you did not act in justified self defense.

Let's go through that again.

In an ordinary criminal prosecution, the defendant doesn't have to say anything. He doesn't have to present any evidence. The entire burden falls on the prosecution. The prosecution has to prove all the elements of the crime beyond a reasonable doubt.

If the crime you're charged with is, for example, manslaughter, the prosecution must prove that you were there, you fired the gun, you intended to fire the gun (or were reckless), and the guy you shot died. In the typical manslaughter prosecution, the defendant might by way of his defense try to plant a seed that you weren't there (alibi defense), or that someone else might have fired the gun, or that it was an accident. In each case the defendant doesn't have to actually prove his defense. He merely has to create a reasonable doubt in the minds of the jurors.

So in such cases, it probably doesn't pay for you to say anything to the police, at least early on. Let them do the work of trying to amass evidence to prove the case against you. There's no reason for you to help.

But if you are going to be claiming self defense, you will wind up admitting all the elements of what would, absent legal justification, constitute a crime. You will necessarily admit that you were there, that you fired the gun, and that you intended to shoot the decedent. Your defense is that your use of lethal force in self defense satisfied the applicable legal standard and that, therefore, it was justified.

So now you would have to affirmatively present evidence from which the trier of fact could infer that your conduct met the applicable legal standard justifying the use of lethal force in self defense. In some jurisdictions, you may not have to prove it, i. e., you don't have to convince the jury. But you will at least have to present a prima facie case, i. e., sufficient evidence which, if true, establishes that you have satisfied all legal elements necessary to justify your conduct.

Then it will be the prosecutor's burden to attack your claim and convince the jury (in some jurisdictions, he will have to convince the jury beyond a reasonable doubt) that you did not act in justified self defense. And even if you didn't have to prove self defense (only present a prima facie case), the more convincing your story, and your evidence, is, the harder it will be for the prosecutor to meet his rebuttal burden.
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Old May 2, 2013, 12:03 PM   #10
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Thank you Frank. This is one of the best write ups on the subject I think I've ever seen. I might suggest making this a sticky? It's information everyone who carries should know, and I think the subject comes up often enough to warrant it.
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Old May 3, 2013, 08:24 PM   #11
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This sounds like good conventional advice and it just might be, but there are some folks out there who do not have the maturity, experience and/or intelligence to deploy such a conversational strategy. So to young folks I just say not to say anything because I know chances are they wont be able to execute Franks/Ayoobs strategy. Someone who has rehearsed the situation and mature enough might be able to deploy the strategy however.

Good advice is best obtained from successful and established criminal defense attorneys in your local area. I took the time to meet with one a while back who gave me a card and told me to call any time I run into trouble with the police. On the back of that card gives specific instructions. I trust in his instruction and if I do run into trouble before I say anything Im going to call him. They cant use the fact that I wanted to talk to a lawyer against me. Thats my right.
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Old May 3, 2013, 10:23 PM   #12
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Quote:
Originally Posted by johnelmore
...there are some folks out there who do not have the maturity, experience and/or intelligence to deploy such a conversational strategy. So to young folks I just say not to say anything because I know chances are they wont be able to execute Franks/Ayoobs strategy...
Yes, it's better to say nothing than to say the wrong things.

But it's better yet to learn to say the right things. Part of learning and building one's skills and understanding involves going beyond the minimum sufficient response to find the best response.
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Old May 3, 2013, 10:45 PM   #13
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+1 make it a sticky!
And thanks Frank.
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Old May 3, 2013, 11:04 PM   #14
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Frank Ettin are you a criminal defense lawyer or have you ever been a criminal defense lawyer? There are alot of different type of lawyers...which type are you?

The reason I ask is your giving commentary on criminal law.
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Old May 3, 2013, 11:25 PM   #15
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Quote:
Originally Posted by Plumbnut
Frank Ettin are you a criminal defense lawyer or have you ever been a criminal defense lawyer? There are alot of different type of lawyers...which type are you?
My specialty was not criminal law (I'm retired now) although I have participated professionally with the U. S. Attorney, the FBI and local prosecutors in connection with the investigation and prosecution of a number of matters. I have also taken an array of continuing education classes in criminal law and have studied use of force law extensively.

Also, the matters I comment on are pretty basic.

As an aside, I've not only taken Massad Ayoob's LFI-1 class, but I was also asked, a couple of years ago, to assist with another of his classes. And when he gave a class in Northern California a while ago, he invited me to give a guest lecture on preventive law and risk management in connection with self defense.

But if you want to cross check my comments, contact another moderator here, Spats McGee, who is also a lawyer and does currently practice criminal law.
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Old May 5, 2013, 02:20 AM   #16
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Quote:
This sounds like good conventional advice and it just might be, but there are some folks out there who do not have the maturity, experience and/or intelligence to deploy such a conversational strategy. So to young folks I just say not to say anything because I know chances are they wont be able to execute Franks/Ayoobs strategy. Someone who has rehearsed the situation and mature enough might be able to deploy the strategy however.

Good advice is best obtained from successful and established criminal defense attorneys in your local area. I took the time to meet with one a while back who gave me a card and told me to call any time I run into trouble with the police. On the back of that card gives specific instructions. I trust in his instruction and if I do run into trouble before I say anything Im going to call him. They cant use the fact that I wanted to talk to a lawyer against me. Thats my right.
I have a problem with this. In the context of lawful use of lethal force in a self defense situation, you're saying someone is mature enough to carry a gun and use it properly, but not mature enough to know how to talk (and what to say and not say) to a cop? Part of carrying a gun is learning all of these things. The problem is most people think, "Cool, I have a CCW! I can carry a gun now!" Yet, they haven't taken the time to look into or consider the legal side of things. What Ayoob et al suggest isn't rocket science, or difficult to do.

What can potentially get you in more trouble (whether they can use it against you or not is irrelevant) is to clam up every time you have an encounter with the police. They'll find a way to get their reasonable suspicion, to investigate further, because bad guys clam up with police. Good guys cooperate, and answer questions.

Bottom line, if you're mature/responsible enough to carry a gun, then you should be mature/responsible enough to get proper training in ALL aspects (before the fight, during the fight, after the fight) and know how to handle yourself in those situation. If you have to clam up every time you confront a cop because you're afraid of saying something stupid, I question your responsibility/maturity of being able to carry.
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Old May 5, 2013, 02:38 AM   #17
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There are people who are mature enough to carry a firearm but they are not mature enough to speak effectively or carry out a conversational strategy. Social and communication skills can be difficult for some folks. So Im just saying there are some folks who are better off remaining silent.

The strategy outlined above is good for most, but there are those people who will not be able to carry it out so effectively. You have to look within yourself and make an honest assessment.
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Old May 5, 2013, 10:35 AM   #18
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Quote:
Originally Posted by Gaerek
Bottom line, if you're mature/responsible enough to carry a gun, then you should be mature/responsible enough to get proper training in ALL aspects (before the fight, during the fight, after the fight) and know how to handle yourself in those situation. If you have to clam up every time you confront a cop because you're afraid of saying something stupid, I question your responsibility/maturity of being able to carry.
Yes, exactly.
Quote:
There are people who are mature enough to carry a firearm but they are not mature enough to speak effectively or carry out a conversational strategy. Social and communication skills can be difficult for some folks.
A person whose social skills aren't good enough to manage an adult conversation probably shouldn't be carrying a gun in social situations.
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Old May 8, 2013, 12:13 AM   #19
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I'm what many would call socially inept. I have difficulty with large groups of people. I have difficulty talking to people I don't know. But, I know how I would handle the aftermath of a shooting situation. The problem most people have is that they get their CCW, buy a gun and a holster, take it to the range, punch some holes in paper, and figure, "Good, I can hit the broad side of the barn, I'll be able to protect myself if I'm attacked." The problem with this logic is that the actual shooting part of a self defense situation is only about 1/3 of the situation. You need to be prepared, and train for the Before, During, and After of a shooting. All are equally important.

Knowing what to do before the shooting will help you get the proper gear/training. It will help you to know how to avoid a fight, get out of bad situations, and know when you are justified in drawing and firing. I've seen it many times. "Man, someone attacks me, I'mma blast em!" It's not that simple, but most people don't understand that. You need to know when you can shoot. And more importantly, how to avoid altogether.

Knowing what to do during the shooting is what most people focus on. This is what will help you to survive should lethal force be needed. I don't really need to elaborate on this because so many people focus on this and believe it's the important part of training.

Lastly, knowing what to do after the fight can help keep you out of prison, and keep all your savings, retirement, etc from being taken from you. The common line you see about this one is, "Well, I'd rather be judged by twelve than carried by six!" Well, me too, but I don't want to give those 12 any excuse to say I'm guilty.

If you aren't willing to take responsibility for all three aspects of self defense, then I question whether you should be carrying a gun. Saying that you're socially inept is an excuse. And a jury sure isn't going to take that as an excuse as to why you acted like a criminal when you were questioned by police after defending yourself.
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Old May 8, 2013, 09:18 AM   #20
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Quote:
Originally Posted by Frank Ettin
Quote:
Originally Posted by Plumbnut
Frank Ettin are you a criminal defense lawyer or have you ever been a criminal defense lawyer? There are alot of different type of lawyers...which type are you?
. . . .But if you want to cross check my comments, contact another moderator here, Spats McGee, who is also a lawyer and does currently practice criminal law.
Plumbnut, I'll save you the trouble of contacting me about Frank's comments. My credentials: I'm a lawyer, licensed in the state and federal courts of Arkansas, the 8th Circuit Court of Appeals and SCOTUS. I've been practicing law for ~11 years, in the following areas: civil rights defense, domestic relations, criminal defense, and prosecution. I've also spent the last few years (since I started carrying) keeping abreast of the law surrounding the RKBA.

I've read Frank's post, and it is dead on correct. There are some nuances that will vary from state to state, such as whether SD is a defense or an affirmative defense, and what burdens of proof are attached to it (preponderance of evidence, beyond reasonable doubt, etc.). Frank's post, however, lays out the basics extremely well. If anyone has any questions about how SD defenses work, I'd suggest reading Frank's post a few times.

IMNSHO, everyone that carries a firearm really should become intimately familiar with the laws surrounding the RKBA in their home jurisdiction, and, if at all possible, in every jurisdiction in which they are going to carry. I am perpetually amazed at the folks that I see on the internet that appear to have spent hours and hours trying to figure out "the right gun" and "the right load" and "the right equipment," but refuse to put any thought into "what do I do after it goes bang?"
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Old May 10, 2013, 03:50 PM   #21
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I haven't been asked but I'll jump in anyway. I'm a lawyer with 30 years experience, the last eight years solely in criminal law. I'm a prosecutor. I'm licensed in Kentucky, the federal district courts in my state, the 6th Circuit Court of Appeals, the 4th Circuit Court of Appeals, and the U.S. Supreme Court. Frank's assessment is "spot on."

I have seen more than one instance where a claim of self-defense never surfaced until at or just before trial and I've never seen it succeed. It''s extremely difficult to mount a claim of self-defense without the defendant taking the stand. You can bet the prosecutor is going to make it known through questioning that the self-defense claim is something new and that the defendant has concocted it and tailored his/her story to fit what the prosecution has turned over in discovery.

While I am not giving advice, I can tell you what I would do if I had to justify a shooting. I would give the basic version and then affirmatively assert my right to remain silent and talk with my attorney. Assuming my attorney agreed, I would then give a thorough statement later. That's pretty much what Frank said.
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Old May 10, 2013, 04:40 PM   #22
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Quote:
What can potentially get you in more trouble (whether they can use it against you or not is irrelevant) is to clam up every time you have an encounter with the police. They'll find a way to get their reasonable suspicion, to investigate further, because bad guys clam up with police. Good guys cooperate, and answer questions.

Bottom line, if you're mature/responsible enough to carry a gun, then you should be mature/responsible enough to get proper training in ALL aspects (before the fight, during the fight, after the fight) and know how to handle yourself in those situation. If you have to clam up every time you confront a cop because you're afraid of saying something stupid, I question your responsibility/maturity of being able to carry.
That might be reaching just a little bit. May I suggest a happy medium between Frank's and the OP's post? Rather than totally clam up, cooperate to a reasonable extent, but consider that in this situation, one may under a whole lot of stress and go rattling off at the mouth from the adreneline, and everything you say can and WILL be used against you. With the political climate what it is towards guns nowadays, they may want convict you to make you an example to discourage such practice among others and further blacken us gun owners image.

So talk but not too much. If you find yourself rattled, display your willingness to cooperate yet dodge probing questions by statements such as Oh my God, I don't believe that he actually forced me to shoot him! I am so upset, I never thought this would happen to me!!And so forth. This may derail some of trick questions designed to get you to incriminate yourself.
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Old May 11, 2013, 03:01 PM   #23
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Whats the difference between saying something right now and waiting an hour or several hours for your attorney to arrive? In a court of law how can the fact that you wanted an attorney be used against you?

Training is always a good thing but its not a solution which will stop things from going wrong. Lots of well trained people get themselves into bad situations all the time. I think the solution is to have a responsive well known criminal defense attorney at the ready who you have consulted with previously. Any person who uses firearms for work or leisure should always have one at the ready. Anytime you get a hint you might be in trouble the first call should be to that attorney. I think there are quite a few people out there (we wont get into specific names) who would have been better off calling an attorney from the start then dealing with it in their own way or in a way prescribed on an internet message forum.
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Old May 12, 2013, 02:23 PM   #24
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Quote:
Originally Posted by johnelmore
Whats the difference between saying something right now and waiting an hour or several hours for your attorney to arrive?...
That was addressed in post 9 and 21. To expand a little --
  1. When the police arrive they will probably see something like a person on the ground bleeding from bullet hole in him and you with or near a gun.

  2. The first impression will be that the guy bleeding is the victim and you are the assailant. There might not be anything immediately apparent to contradict that impression. The investigation will begin with that in the minds of the investigating officers -- unless you say something to perhaps suggest that impression is not really correct.

  3. Also evidence that could be useful to you might get missed or witnesses might leave before they've been identified as possible witnesses.

  4. In many jurisdictions, standard protocol in an officer involved shooting is to wait a day or two before requiring the officer to provide a detailed statement, BUT is is usually still expected to provide a brief preliminary statement to (1) help guide the investigation; (2) preserve evidence; (3) identify witnesses; and (4) identify any possible accomplices.

Quote:
Originally Posted by johnelmore
...Anytime you get a hint you might be in trouble the first call should be to that attorney...
If you are involved in a use of force incident and expect to claim self defense, your first call needs to be 911. A delay in reporting the event will not look good for you.
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Old May 13, 2013, 05:34 PM   #25
Gaerek
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Just to make it clear, IANAL.

Quote:
Whats the difference between saying something right now and waiting an hour or several hours for your attorney to arrive?
A lot, if you're basically saying you won't say anything without an attorney. A lot of it has been mentioned here already, but I'll give a summary.

-You need to establish that you were the victim (cop comes on scene, sees someone lying in a pool of blood, and another with a gun...who do you think they're going to think the victim is right away? Who do you think is going to be the victim in their initial report?)
-You need to point out witnesses that can attest to your being the victim
-You need to point out evidence that might be missed (as an example, "I think one of my attackers shell casings went down the storm drain")
-You will need to call 911...are you going to call and not say something? Or were you suggesting not calling? If you were going to call, what would you say? You NEED to call 911.

Quote:
In a court of law how can the fact that you wanted an attorney be used against you?
They can't. But they can use the report they wrote saying you were uncooperative, and that you wouldn't tell them what happened, so they assumed the person lying in the blood was the victim. Although it might not be much, it is something they can use against you, and make your case tougher.

Quote:
Training is always a good thing but its not a solution which will stop things from going wrong.
Then I think you misunderstand the purpose of training. It's not to "stop things from going wrong" as you put it. It's to help mitigate any possible problems that might go wrong. Cops are trained to shoot bad guys. But look at how well they did on the Empire State building shooter. Their training didn't stop them from doing something bad, but it likely stopped them from doing something far worse.

Training can help you know what to say after a shooting. It's really not that tough. Don't get chatty. It's simple:

"I was attacked and I feared for my life, so I defended myself."
"I will sign the complaint"
"Those people in that house over there saw what happened"
"I stood here when I was attacked. My attacker was over there and came at me with a weapon."
"I fully intent to cooperate officer, however, at this point I do not wish to speak without my lawyer present."

With those few things, you've established you are the victim. You've shown cooperation with the police. You weren't too verbose, and when you told them everything they needed at that time, you lawyered up, but making sure they knew you would be more than willing to cooperate. There's really nothing there that can be used against you. Whereas there's a lot that can be used against you if you don't say anything. It's not just about the "well they can't use my wish to have an attorney against me." That's true, but there's a lot of things they still can use against you if you clam up.

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Lots of well trained people get themselves into bad situations all the time.
Again, misunderstanding the point of training.

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I think the solution is to have a responsive well known criminal defense attorney at the ready who you have consulted with previously. Any person who uses firearms for work or leisure should always have one at the ready.
I completely agree. So, in the time it takes your attorney to show up, what are you planning to do?

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Anytime you get a hint you might be in trouble the first call should be to that attorney.
No, your first call should be to 911. Whether it's right or wrong, the winner of the race to call 911 gets to be the complainant. Where as the loser gets to be the bad guy. Besides, it shows a willingness to work with LE and concern for your fellow human (even if he was the attacker) who you may have shot. When criminals commit crimes they think they're going to get caught with, who do you think they call first? Their attorney. You call 911 first...then you can call your attorney.

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I think there are quite a few people out there (we wont get into specific names) who would have been better off calling an attorney from the start then dealing with it in their own way or in a way prescribed on an internet message forum.
Without specifics, I can't really comment on this. Though, in general, I disagree with this statement (I'd like to know specifically what you're talking about, however). This could be a case of, "My friend was trapped by his seatbelt in his car and was killed, so now I won't wear a seatbelt." I agree, you will want to call an attorney. But 911 comes first, always. Then you call your attorney.

I will add this, although I am not a lawyer, my information comes from a variety of sources. Some here on this forum, some books I've read (Mas Ayoob comes to mind) instructors who are police and ex-police, as well as my attorney, and not a single one has ever suggested to remain completely silent. They all state, basically what I wrote above. Be cooperative, don't talk to much, give the very basics, establish yourself as the victim, point out witnesses and possible missed evidence, then lawyer up.

Last edited by Gaerek; May 13, 2013 at 05:45 PM.
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