What to Do after a Self Defense Encounter

[Kleanbore]

Note: For discussion of this specific post, see http://www.thehighroad.org/showthread.php?t=589269
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This subject comes up repeatedly on THR. In the event of a self defense encounter, whether it involves shooting or the mere presentation of a firearm, what one says and what one does not say can have a critical impact on the legal aftermath.

There have been a number of articles and taped lectures, some of them published by renowned attorneys, advising persons who are questioned by police officers or investigators to say nothing until counsel is present.

That is very good advice for most kinds of investigations. However, due to the very nature of a defense of justification involving a self defense incident, it is not recommended by knowledgeable legal experts for the kind of situation that arises when deadly force, or the threat of deadly force, has been employed to protect oneself or others.

The reasons for that have been explained on numerous occasions here on THR. One of the most clear explanations has been posted on more than one occasion by our member fiddletown, who is an attorney, and who prefaces this with "I am a lawyer, but I'm not your lawyer. I'm not giving legal advice. I'm providing comment on a legal topic based on my training and experience". We are posting it for easy reference.

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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Note: For discussion of this specific post, see http://www.thehighroad.org/showthread.php?t=589269

 

[Kleanbore]

Here is Massad Ayoob on video discussing this subject.

 

[Kleanbore]

This interview of one of our members by a defense attorney also pertains to this subject.

 

[Kleanbore]

It is important to remember that one's objective here is not to memorize a rote statement for recital, but to be prepared to best further one's chances for a favorable outcome should worse come to worse. The key for that lies in knowledge and understanding.

For those interested in further reading on this subject, a very thorough and thought provoking discussion of the subject at hand among several is recounted in this book. It should prove an eye opener for anyone who believes that a shooting that is thought to have been completely justified by the shooter will be necessarily seen as such by others after the fact.

For those who are interested in reading more about burdens of proof and related subjects pertaining to self defense claims, see this. Fiddletown expands upon his explanation contained in in Post #1 that addresses how pleading self defense differs from most other criminal defenses, and adds a discussion of how "castle doctrine" laws enter into the picture, along with a discussion of laws that provide immunity from criminal prosecution and from civil suit for someone who uses force in justified self defense.

The discussion of this last item covers Florida law in some specificity, but as noted, several states now have similar laws.

As always, it is important to know the use of force law--law--the code, the case law, and how the law is applied--in any jurisdiction in which one may be traveling.

Also as always, one's objective should not be to figure out how when to justify the use of deadly force, but to understand what one should do in the unfortunate event that all efforts to avoid the use of deadly force have failed.

 

[Kleanbore]

This is also very relevant and worth bookmarking and reading.