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Debunking “Don’t talk to police”

Debunking “Don’t talk to police”

Let’s focus on making judicious use of the 5th Amendment.

Some of you may be familiar with a popular Youtube video entitled “Don’t talk to police.”  And by popular, I mean POPULAR; it’s had over 4 million views.

In that video a lawyer makes an energetic argument that you should never talk to the police under any circumstances, ever.

[UPDATE:  In my own video I note that the lawyer making the “Don’t talk to police” case is never identified in that video.  Today I was informed by a source who preferred to remain anonymous (even from me) that the speaker is Professor James Duane, of Regent University School of Law, in Virginia Beach, VA. Professor Duane’s faculty photo seems a match.  🙂

Professor James Duane

Professor James Duane

I feel obliged to point out that the Professor’s credentials certainly appear stellar, including having graduated from Harvard Law School, cum laude, and from Harvard College, magna cum laude. He also has many very interesting looking papers listed at the link above. Thanks to the anonymous source who has finally solved this mystery for me. 🙂 ]

It’s long been my position that this is excellent advice for actual criminals who have caught the attention of the police, but is less suited to those engaging in lawful self-defense.

I’ve finally found (made) the time to do a thorough walk-through of that video and explain point-by-point that while it may have general utility in the case of most police interactions, it is likely not the best approach in cases of self-defense.

Here’s the Law of Self Defense Institute Video Lecture; set aside some time, as it’s almost an hour long. (If you’d prefer to simply listen to it as a podcast, I’ve provided the necessary links.)

Podcast #009 (audio-only): iTunes, Stitcher, RSS, Download

–-Andrew, @LawSelfDefense


Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.

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Comments

Henry Hawkins | October 5, 2014 at 11:10 am

Thanks for this. I’ll watch it tonight. I’ve never felt totally comfortable with refusing to talk to LEO after a self-defense event. On the one hand, that it is a self-defense event at all is my opinion, the local DA decides whether to prosecute. If I’ve judged wrong, I’m screwed if I spoke with police without representation. On the other hand, I’ve always been pro-LEO. On the third hand (?), LEOs are not necessarily pro-me, eh? Plus, it is possible there will be witnesses to the event I cannot control in terms of whether they talk to police before representation is available. If the po-po put Mrs. H in the box, she’ll break.

Hopefully, this will help me better delineate the issue.

IF that guy is even a lawyer, he’s a real idiot lawyer.

He doesn’t understand the rules of evidence.

Plus, he talks too fast. He’d be a good spokesman for Pres. ScamWOW.

    Yeah, a few of his anecdotes I was, “Huh? How would THAT happen in the real world?”

    To give him the benefit of the doubt, I suppose he could have been “simplifying” for illustrative purposes–but that hardly seems appropriate when speaking to law students, for whom getting it right even at the detail level ought to be of paramount importance.

    Or perhaps he’s simply the Neil deGrasse Tyson of lawyers?

    In any case, his Youtube video has been out for YEARS (the most recent case he mentions, as I recall off-hand, was Michael Vick, who pleaded guilty in 2007), and yet I’ve NEVER been able to find anyone who could tell me that guy’s name. I guess he’s in Virginia, as he incorporates VA into several of his anecdotes, but that’s it.

    –Andrew, @LawSelfDefense

      “Yeah, a few of his anecdotes I was, “Huh? How would THAT happen in the real world?””

      Am I, as a layman, in a moment of high anxiety, both mental and physical(adrenaline etc) supposed to make that decision, ‘what could or could not happen in a court of law’ ?

        With the notable context that this comment first only within the scope of the Video Lecture, I always find this line of reasoning odd: “How could I, as a layman, be expected to know what to say in the stressful aftermath of a self-defense shooting?”

        Isn’t that EXACTLY the argument the gun control crowd uses when claiming that if you allow regular people to carry firearms on their person that there will be shoot outs on every corner, a slaying with every fender bender, a murder with every minor argument?

        After all, according to them, how could you be expected to know how much force you can lawfully use in the stress of the moment?

        The vast majority of gun owners–me among them–believe that we can trust our law-abiding citizenry to carry guns and be trusted to make the appropriate life-or-death decision as they go about their day.

        But that same law abiding citizenry can’t be trusted to tell a police officer their name and location? That they were attacked, in fear of their life, and defended themselves? That there is the attacker’s knife, there are there witnesses, and can I have medical attention? Oh, and assert silence and counsel?

        Fortunately, unlike actual CCW there’s no organized group trying to use governmental power to either compel us to make such statements to the police or to deny us the ability to make such statements–so the choice is ultimately up to each of us.

        Anyone more comfortable playing the mute is certainly entitled to do so. 🙂

        –Andrew, @LawSelfDefense

          I DO know what to say. Other than pointing out physical evidence, witnesses, etc, as you say, and making clear that “I was forced to defend myself”, I STFU.

          No it is not ‘the GC crowd argument.’ When in a situation where I decide that I have to do a thing in self defence, that is a right I never want to HAVE to use, but that I never relinquish, including the right to the tools needed. But what I choose to talk about afterwords, when and to whom, THAT is a different question, less pressing but5 of potentially equal effect on me. But there is time to consider the latter post-facto.

          Of course I would tell them my name, location, state the fact that I was forced to act in self defense (without giving any blow-by-blows, or answering the inevitable question ‘OK, tell me what happened’ or ‘why did you do it’ etc. Then it’s SFU time.

          “Of course I would tell them my name, location, state the fact that I was forced to act in self defense (without giving any blow-by-blows, or answering the inevitable question ‘OK, tell me what happened’ or ‘why did you do it’ etc. Then it’s SFU time.”

          I think that’s precisely what I advise in the video lecture, no?

          Well, I add requesting medical attention, and explicitly asserting right to counsel/silence, but I presume we agree none of that would be incriminating.

          Some also advise that you tell the police you want to press charges against your attacker. Mas Ayoob makes this recommendation, which I believe is the only point on which we don’t entirely agree on this issue.

          My concern with saying you want to press charges is that inevitably the police will respond, “Well, what do you want us to charge him with?” Then you say assault, or whatever, and the cop replies, “Well, to charge him with assault I’d need you to tell me what he did. Let’s step over here and you can tell me all about it.”

          And I don’t see ANY good coming of THAT, at least not where deadly force was used in self-defense.

          –Andrew, @LawSelfDefense

          No disagreement here. Some words or screens in the podcast I interpreted differently than what you clarify for me here.

          Sharpshooter in reply to Andrew Branca. | October 12, 2014 at 3:37 pm

          I’d have little inclination NOT to talk to the cops were it not for the fact than many will deliberately twist what you say to adhere to their own agenda.

          That doesn’t so much mean the cops as it does the County Attorney or AG (whoever is going to have jurisdiction).

          Where I live the CA is very much pro-self-defense, but your police and especially your elected prosecutors might be very different.

      mjshee1049 in reply to Andrew Branca. | October 5, 2014 at 6:58 pm

      1) The ‘thumbs down’ icon is dangerously close to the ‘reply’ icon.

      (Please discount one of them — having fat fingers on the keyboard is a general problem of mine.)

      2) Information about Professor Duane can be found at:

      http://www.regent.edu/acad/schlaw/faculty_staff/duane.cfm

      foofighter20x in reply to Andrew Branca. | October 6, 2014 at 2:01 pm

      My understanding of the video is that he was asked to give the experience of a law school lecture to undergrad students thinking about law school, and decided to focus on a topic that would be useful knowledge to a common citizen if that was the only law lecture they would ever have in their life.

      Prof. Duane’s analysis runs through all the possible ways a person *generally* could be guilty or innocent of a crime, and how talking to the police never helps, and only hurts, in each of those *general* cases. As always, there are exceptions that prove the rule, such as your self-defense video here.

      Your NDGT comment seems in bad faith to Prof. Duane. In what manner did he misremember or fabricate a quote?

    sequester in reply to Ragspierre. | October 5, 2014 at 4:45 pm

    Mike Hayes of the Armed Citizens Self Defense Network describes the unintended consequences of silence.

      Marty Hayes, not Mike. 🙂

      It’s a great post, well worth saving.

      He’s a colleague, in the sense that he founded the Armed Citizen Legal Defense Network, and I’m a lawyer member.

      –Andrew, @LawSelfDefense

        Andrew, I might agree with you and Marty except for one individual: Scooter Libby.

        If you have an anti-gun DA/prosecutor, all he will do is pick apart anything you say until he has a perjury charge he can sell to a jury.

        At which point you are hosed.

          Did Libby limit himself to the specific talking points I mention? He did not. That’s on HIM.

          Anybody stupid enough to go motor mouth as a suspect talking to cops should expect a negative outcome.

          –Andrew, @LawSelfDefense

Fundamental flaw in your argument –

‘ …the STFU rule is fine for criminals, but you are not a criminal (at least, this video assumes that.)’

Who can tell ? Who has any damn thing at all to say about that judgement call ? DA’s, prosecutors, judges, juries ? Yes. Me, ‘Joe Citizen’, in what is probably a moment of high stress and angst, with zero legal training to boot ? No.

“Do not falsely confess” is a straw man ???? What ?

“Lying and Logorhea” is a straw man ? Huh ?

Of course you do not advocate doing these things, so how is someone else saying ‘don’t do them’ a straw man ?

    By “criminal” I mean you have not committed a crime for which self-defense is not a legal justification.

    I suspect you would know if you’d committed, say, a carjacking or an armed robbery, no? If you have, then I suggest you keep your mouth shut when dealing with the police.

    If all you’ve done is act in self-defense, sure you can be accused of a crime of violence, such as assault or battery or manslaughter or murder–but all of those are crimes for which self-defense is a legal justification.

    And is your claim of self-defense going to be stronger if you refrain from identifying exculpatory evidence and witnesses? Or if you remain silent and the exculpatory evidence and witnesses disappear.

    For all we know, for example, Michael Dunn WAS threatened with a shotgun by Jordan Davis. Certainly, had a shotgun been found in the SUV at the scene, Dunn’s story would have been entirely credible.

    Giving Dunn every benefit of the doubt, he totally screwed himself by fleeing the scene and not identifying that exculpatory evidence to the responding officers. By fleeing he effectively “kept his mouth shut.” How’d that work out for him? Life in prison, right?

    Of course, if you believe Dunn was simply lying about the shotgun, then it wasn’t a self-defense case at all, and therefore irrelevant for purposes of this discussion, which is limited to that context.

    And, naturally, if there IS no exculpatory evidence or witnesses that need pointing out, then you obviously wouldn’t need to point them out.

    As for the other information–your name, your location, the fact that you were threatened/fear of your life/defended yourself–if you’ve shot someone, don’t you think you’re inevitably going to have to make those statements, anyway? If you don’t, you can’t claim self-defense. If you don’t claim self-defense, what do you expect the verdict will be?

    Unless, I suppose, you simply intend to flee the scene and not interact with police at all–like Dunn tried to do.

    As for requesting medical attention–if that can be made to look incriminating, I’d like to know how.

    Similarly with asserting right to counsel and silence.

    But of course, anyone is free to play the mute, if they prefer.

    –Andrew, @LawSelfDefense

      I don’t think we are are at odds on substance, Andrew. By STFU, I did not intend to imply ‘stand mute, don’t even give your name’, etc.

I see very little difference…except PERHAPS at the margins…in this situation and a bad car wreck.

If you don’t trust yourself to have the presence of mind to conduct yourself as Andrew wisely suggests, you should NOT carry a gun, knife, or bother defending yourself.

You also shouldn’t be driving.

    Hi, Rags. I see you’re still an idiot.

    Gremlin1974 in reply to Ragspierre. | October 6, 2014 at 10:31 am

    BINGO!

    “The aftermath” is also something that you should give thought and practice. We practice shooting, we learn about the law, force on force, and defensive tactics, but it seems very few people give any forethought to what happens if you actually have to employ any of those tactics in a real world situation.

    Just like any other type of mental practice, thinking about what you would or wouldn’t say in the aftermath of a lethal force self defense situation may actually help you in that situation.

    You actually have to think about what you are going to do. What are you going to do with your gun? How would you go about relinquishing your gun to police, since it will be taken as evidence. These things are things that need to be thought about before you are forced to draw your weapon and fire.

I have a standard speech that I give to my clients and those groups of individuals who occasionally I give lectures to:

0.) If you can WITHOUT BEING SEEN start an audio recording of the encounter, do so. That protects YOU if (when) the officers lie about the reasons for the encounter or the order of events later in order to make their stop “reasonable.” DO NOT, UNDER ANY CIRCUMSTANCES, TELL THEM YOU ARE RECORDING.

1.) If you are approached by the police, be polite.

2.) If they ask if they may speak with you, politely say “no, I’m sorry officer, I choose not to speak with you at this time” and LEAVE. This is the “consensual encounter” and you are free to END it AT ANY TIME, SO END IT IMMEDIATELY. If they have come to your door, DON’T EVEN SPEAK, DO NOT STEP OUTSIDE; close the door IMMEDIATELY.

3.) If they tell you to stop, immediately comply, but ask “am I UNDER ARREST?” If the officer says no, ask “am I free to leave?” If the officer again says no, ask “please state your reason for detaining me. I do not consent to any type of search of my person. I wish to contact my attorney now and will not answer any questions without him/her present.” This puts the officer “on the spot” to at least have “reasonable suspicion” of a crime before continuing to detain you (less than probable cause, but still an articulate, specific reason better than a simple “hunch” of criminal activity). (we just had a VERY good, thorough case on this from the Court of Criminal Appeals of Texas last year).

They may then search you anyway via “Terry Stop” regardless of your protest “for the officer’s protection” (Horse-Shit – they’re looking for contraband, but its been blessed by SCOTUS). However, this is the point of the recording if you can get it, because they have had to articulate their ‘reason’ for detaining you. If that doesn’t hold water later, everything after that goes bye-bye as a 4th Amendment violation.

4.) If placed under arrest, state “I assert my 5th amendment right to remain silent and wish to speak to my attorney. I will not be answering any questions without him or her present, I would like to contact him via my phone RIGHT NOW.” After that, only basic information: Name, Address, DOB, SSN, name of attorney. Don’t offer anything, don’t be “helpful.” Do NOT make any “admission.” Be SILENT until your attorney is present. Do not speak to any other “prisoners” either. Cops have occasionally been known to “plant” an informant in the jail to wheedle confessions out of prisoners while they await their attorney.

5.) If YOU have engaged in an act of “self-defense” and are the one calling the cops: State “Officer, I have engaged in an act of self-defense. I require both police and medical assistance at [address]. The offender attacked me by [state reason]. I do not wish to make any further statements without my attorney present. Do not EVER say the word “accident”, “accidentally” or any derivation thereof. If possible, CALL YOUR ATTORNEY BEFORE THE POLICE ARRIVE SO THAT HE/SHE is on the way.

Anyway, that’s most of my standard speech.

    All that sounds pretty good to me.

    You don’t explicitly mention pointing out exculpatory evidence/witnesses, but I presume you’d want your clients to do so if relevant (e.g., if the evidence/witnesses might otherwise be lost).

    Or not? Don’t want to put words in your mouth.

    –Andrew, @LawSelfDefense

      Depends on the circumstances and the potential witnesses.

      I want to know about them. Whether or not they get pointed out immediately to the police becomes a judgment call as to who they are, what relationship they have to the “self-defender” (if any), their interaction with the circumstances of the self-defense, and their own current interactions with law enforcement. Examples:

      1.) Immediate family, relative or close friend, who witnessed the event and was traveling with and paying attention due to immediate danger to said family member? Yes.

      2.) Recent acquaintance or unrelated individual who happened to be walking by on the street when Thug A attempted to rob / accost my client? Maybe. More investigation on individual needed. Was individual paying attention? Did they see the entire event? Were they “situationally aware” of the danger? What are THEIR feelings on firearms and/or self defense? I want to KNOW those things COLD before I make that person known to the police.

      3.) Unrelated individual who happened to be walking by on the street when Thug A attempted to rob my client, when after further investigation it is discovered that individual has either past criminal history or current ongoing criminal case, parole, probation, immigration issue or any other type of negative Law Enforcement interaction? HELL NO! Risk is far too high that police will pressure to “testilie” that he/she saw something that will undercut self-defense use-of-force facts for a “favorable disposition” of his/her own case. Can be cross-examined on bias later, but I would rather that the police simply don’t know about that person to begin with.

        Fair enough.

        In my experience, however, if the police want witnesses that are bad for you, they’ll find witnesses that are bad for you.

        In genuine self-defense cases it’s largely the case–not always, but largely–that more evidence is good for the defender.

        Sure, ANY witness can lie. But if you ASSUME that’s the case, you’ll have NO witnesses to your act of self-defense.

        I advise my clients, if they are in a self-defense situation, to be yelling as loud as they can to both verbally challenge the attacker and to attract as many witnesses as possible. The more witnesses, the better for the lawful defender.

        Always? No, not always. But almost always. And because we don’t get to pick the time and place of our attack, we have to play the odds that are handed to us.

        Also, I have to say, you write this:

        “Unrelated individual who happened to be walking by on the street when Thug A attempted to rob my client, when after further investigation it is discovered that individual has either past criminal history or current ongoing criminal case, parole, probation, immigration issue or any other type of negative Law Enforcement interaction? HELL NO! ”

        First of all, the client has to make the decision about whether to point out the witness LONG before any “further investigation.”

        Second, the prospects that a random person walking down the street “either past criminal history or current ongoing criminal case, parole, probation, immigration issue or any other type of negative Law Enforcement interaction” is statistically VERY low.

        Very low, that is, for the typical law-abiding self-defender.

        For a criminal defense attorney, whose pool of clients are NOT drawn from the law-abiding, I would expect you’d see a VERY HIGH rate of people with “either past criminal history or current ongoing criminal case, parole, probation, immigration issue or any other type of negative Law Enforcement interaction”.

        But I can tell you that in the many self-defense I consult on, the defendant does NOT have regular–or usually EVER–interactions with people with “either past criminal history or current ongoing criminal case, parole, probation, immigration issue or any other type of negative Law Enforcement interaction”.

        Again, the criminal defense advice that works best for a defendant drawn from a high-crime community–or who is simply an actual criminal–is not necessarily the best criminal defense advice for the defendant who has lived their entire lives with no prior interaction with the criminal community–and is NOT a criminal.

        I assume you’re a criminal defense attorney, Chuck. How many of your clients would you say are innocent of ANY criminal offense. Not even necessarily the one they’ve been charged with in your care, but that they are legitimately law-abiding people who have NEVER deliberately committed a serious crime?

        I’d bet good money it’s under 5%. Likely under 1%.

        But I’d be interested in your opinion.

        –Andrew, @LawSelfDefense

          El Paso is definitely atypical.

          I have four main practice areas: Criminal Defense, Deceptive Trade Practices (DTPA), Child Protective Services (representing Children in the CPS system), and General Family law. I think that I might be the only attorney left in El Paso who is willing to look at the DTPA stuff, as every other attorney I mention it to ends up saying “hey, I’ve got somebody I’d like to refer to you on that….”

          How many of my clients are actually innocent of ANY criminal offense? Over the last 2 years and roughly 200 criminal clients, I’d say … maybe four. Definitely under 5%. An “Assault,Family Violence” case, 2 “Possession of Marijuana” Cases and a “Racing on an highway” charge are what is coming to mind where the clients were actually innocent and had no other police interaction at all (all were dismissed).

          This will paint with a broad brush, but a LOT of the police in El Paso and Socorro are just plain lazy. Not all, but enough that with a bit of digging, a criminal defense attorney can make a mess out of a DA’s case. I’ve had DA’s describe most of the Police, and some of the Sheriff’s as “Gorillas.” More than once, I’ve been handed a file where I’ve taken a Court Appointed criminal case, and less than 10 minutes later I have a dismissal in my hand because I point out to the DA that the “complaint” and “information” signed as being sufficient by one of the DA’s to make a prima facie case is missing a required element of the crime.

          As for finding witnesses later, maybe I’m spoiled due to the excellent quality of the private investigators here in El Paso. I am routinely shocked when I (or other criminal defense lawyers) give those investigators some mere description of a person who was in a place at a time, and effectively without any further information the investigator manages to come up with a name, address and telephone number of the person, who was at that location at that time.

          As to the criminal element of the population, here we have a bigger issue. The greater El Paso area has a population of about 750K. Of those, the best guess is that 100K – 120K are illegal aliens. They came across the bridge on short-term entry / day trip papers and just never went home, or sneaked across the border and settled in the “Colonias.” DHS has effectively written off El Paso, Socorro, Van Horn and Las Cruces NM as lost causes, placing the checkpoints 90 miles away from El Paso in any given direction.

          Stack those illegal aliens on top of the 20 thousand or so criminal cases (15K misdemeanors and 4k+ felonies) we get every year, and the likelihood of having someone with a criminal background gets a lot higher than in most places.

          Stack the above on top of the fact that about 1/3 of the legal population here is military, government or law enforcement of some form or another or family thereof, that may or may not have their own agenda regarding self defense, and it gets ugly really, really fast that you may have someone testifying that you don’t want anywhere near the stand for one reason or another.

          Here, also, is a separate matter: A lot of the individuals who do carry in El Paso do so exactly because they live in high-crime neighborhoods OR must travel through said neighborhoods in order to get from one place to another. As an example, the Fort Bliss Army Base is less than a mile from “Angel’s Triangle” (aka Devil’s Triangle) one of the highest crime neighborhoods. I don’t think I’ve met a single base contractor who doesn’t carry, for exactly the reason that they effectively have to cross heavy crime infested areas daily to get from their homes to work at the base. The likelihood of a witness being a criminal or junkie with his/her own Law Enforcement problems gets to be outsized.

          I suppose that’s part of the reason that I tell my clients to call me as soon as possible. If I can get there and talk to witnesses personally before they disappear into the smog, that gives me a better idea whether I (as the attorney) want the police to know about them for the purposes of exonerating the client’s actions.

          Very interesting, Chuck, thanks!

          –Andrew, @LawSelfDefense

One very important point has to be mentioned here. It will be impossible for you to stand mute throughout the investigation into a shooting in which you are involved. Shooting someone is a criminal offense, everywhere in this country. Self defense is usually an affirmative defense to a charge of murder or wrongful death. So, if you do not speak to the investigators, then you will surely end up in court. This not a bad thing for your attorney. He is not going to be convicted of a felony crime and sent to jail, you are.

In a shooting situation, the body is going to have your bullet in it. So, a crime already exists. The weapon that the bullet came from has your finger prints on it, your DNA on it and there is probably powder residue on your hand. This pretty well links you to the shooting and will result in your arrest, unless you put forward some reason for that not to happen. So, sooner or later you are going to have to talk to investigators.

The question has always been, how much to tell the police. Unfortunately, once you start talking, it is difficult to justify stopping the conversation, if you are innocent. And, in all the shooting that I investigated, I never had an innocent person talk themselves into jail. Even straight confessions require corroborating evidence to result in a conviction. The same is true of defenses, but at least the prosecution has to discredit the defense. The problem arises in the cases where people have no idea what the requirements for self defense are. Simply being in fear is not enough to utilize deadly force, in most states.

The place for standing mute is when a person is so shaken up, by the experience, that they are not thinking clearly. In such a case, it is a good idea to tell the officers that you are not feeling well and request medical treatment. Then refuse to discuss the incident until you have been medically cleared. Remember, without a claim of self defense, unless there is other evidence to support such a claim, sufficient probable cause exists for you to be arrested and held. The police are probably not simply going to allow you to go home, unless they have some reason to believe that viable self defense exists.

The problem, in self defense situations, is that one size does not fit all. If the shooting was legally justified, and the shooter is conversant with the law and knows this to be true, then not giving the facts to the investigators might well land someone in jail, needlessly. If the shooter is a notorious criminal miscreant, then he has problems anyway and simply refusing to give any testimony without his attorney present may be a good idea. The involved individual has to make the call.

    platypus in reply to Mac45. | October 7, 2014 at 10:32 am

    Sorry I’m late to the party. I must challenge your statement that shooting someone is a crime. An accidental shooting that wounds or kills someone is not per se a crime but the shooter still shot someone. I would go further and say that Zimmerman NEVER committed a crime, and the verdict shows it. Criminal intent is a necessary element of every crime and what we’re really talking about in this thread is whether criminal intent can be dragged out of whatever the cop has available at the scene.

      Shooting someone certainly IS a crime, absent legal justification or excuse.

      Intent is not some mysterious issue that is difficult to prove. The mere fact of shooting someone is more than sufficient to show an intent to kill.

      You also misunderstand, I think, what “intent” means under the law. The Theodore Wafer case is a good example. Under Michigan law, in order for the state to convict Wafer for second degree murder there was ZERO requirement that they prove he had ANY intent to cause McBride ANY harm whatever.

      Further, in order to claim self-defense, you necessarily have to concede that it was you who fired the shot. You can’t claim self-defense as justification for a use of force if you deny outright the use of force.

      So if you shoot someone in self-defense, and wish to claim self-defense as justification for the shooting, you must concede having fired the shot. If you concede having fired the shot, bada-bing, bada-boom, intent is all taken care of.

      As for accident, indeed accident is a legal excuse for what would otherwise be a crime, but accident requires that the defendant had no fault–none–in the harm caused. Accident as a defense involving a firearm fatality or injury almost never works these days, because of the increasing (and correct) view that firearms are inherently dangerous instruments and demand a greater duty of care than most common objects.

      So called “accidents” involving firearms fatalities are today routinely prosecuted, successfully, as involuntary manslaughter, criminally negligent homicide, and so forth.

      –Andrew, @LawSelfDefense

        platypus in reply to Andrew Branca. | October 8, 2014 at 10:04 pm

        Andrew what is wrong with you? You just stated, in essence, that shooting someone is a crime except when it isn’t a crime. Come on, you are smarter than that. Is this some law school professor trick proposition? 🙂

        My point regarding intent is that it is always an element that has to be proved or be present in the statute conditions. Of course you are correct about the details but your closing paragraph shows the flaw – you list various scenarios where strict violation of the statute is all that’s needed. For instance, involuntary manslaughter is NOT the result of an accident – generally it is the result of an accident which could have been avoided by the person charged. I call this inexcusable negligence but that may not be a proper term to use. Next step up is reckless indifference but that seems like it would be voluntary manslaughter. (this is not the area of law with which I am familiar)

        Anyway, my real point about shooting was his faulty grammatical construction which conveyed a meaning he probably didn’t intend. And like you did, even though I knew what you meant.

        We have to stay focused on the real problem – our justice system has been replaced with a legal system that hurts people.

TrooperJohnSmith | October 5, 2014 at 9:56 pm

Now, y’all can see why fully 60% of the people who take a CCL class and get certified never actually carry a concealed weapon. It’s a sobering responsibility.

Too bad voting isn’t perceived the same way.

Other than the very narrow exceptions of pointing out where evidence might be (casings under parked cars, weapon tossed in a dumpster, etc.) and identifying witnesses, there is no reason to give any further statements.

The “excited utterance” that “I was afraid for my life” seems relatively harmless, but it doesn’t need to be said at the scene to the first cop. Saying it without being Mirandized may be fine, sure.

Beyond that, however, it is fundamentally naive to assume the cops and prosecutors are on your side in a justified shooting. Ask George Zimmerman how protected you are by being open and truthful with authorities.

If your case is “clear cut self defense,” that won’t change by delaying any interview until you have an attorney present.

And if the person you shot is a member of a preferred or protected group, the odds are you are going to trial if only to cover the cops’ and prosecutors’ hind parts.

Self defense is a trial defense. The only way you won’t go to trial is if prosecutors have nothing at all to dispute it. And sometimes, you will be on trial even if they don’t have anything. Again, the politics with poor George.

So the general “never talk to the police” rule seems pretty sound. Even the exception about pointing out witnesses is fraught with danger since you have little idea how much a witness actually saw or how he perceived it.

I find this topic rather confounding. Although, criminals should never talk to the police, a person who acted in lawful self-defense is not a criminal and the defensive act must be explained. Police behavior and reaction will likely vary be jurisdiction and State. The decision on exactly how to behave must be tailored to the police reaction.

In Florida an elderly person in a “good neighborhood”, who shoots a thug in the middle of the night who forcibly entered his/her dwelling will likely be met with a different police reaction than in Massachusetts or Michigan.

In Florida, the police and investigators will try to determine if the dead person was truly a burglar and if the shooter knew the dead person. They will also look into the criminal history of both the shooter and dead thug. Florida law provides a legal presumption that the home invasion shooting was justified. Standing mute or even insisting on an attorney might only make otherwise sympathetic police think you have something to hide. Police will likely be conducting much of the investigation inside the home.

Of course, if police “invite” you to come to the police station to clear some things up — it would be wise to ask for an attorney. But such an invitation is not always given in the case of a home invasion shooting. Police are not quick to make an arrest absent clear evidence because of Florida’s immunity statute and its speedy trial statute.

I suspect though that in Massachusetts the reaction may be very different.

I’m open to this, but would like to caution everyone. Conservatives tend to see the police as their friend. The good guy. Not true. They are the arm of the state – and everything you dislike about huge, nanny government. And regardless of how you view the world, to most cops it is us vs them — and you are “them.” They are trained to see no distinction between you driving your Honda to work and the gang member waiting for a drug drop on a street corner. Regard these people the way you would regard the Stassi or Gestapo.

In my personal opinion concerning a self-defense shooting, I would only provide the basic facts to the on-scene policeman as it pertains to the shooting. For example, I am walking my dog and a vehicle approaches. A man gets out and points a weapon(pistol) at me and demands money. I draw and shoot him first.

The police arrive. I would tell them I was innocently walking my dog, a vehicle approached,I did not know him, man exited car, pointed pistol directly at me, I feared for my life, and shot back. Nothing more. I would then tell the officers I will answer any more questions in the presence of my attorney. I would not tell them the robber demanded money nor I may have had a reason to be suspicious of the vehicle as it approached. A prosecutor may try to say that if I thought the vehicle was suspicious, I should have ran or retreated. If the robber just wanted money, why didn’t you just give him your wallet. You didn’t have to shoot him. I would also never say anything stupid like it was an accident nor say the punk deserved to die.

I am not saying I would lie, I am saying I would not offer any more information than necessary to the officers on scene. The other info can be told, or not, at the station or even at trial if it goes that far.

However, this is just a guess, most people are unaware of self-defense laws in their state so it may be of benefit to keep quiet from the start if you are not sure.

foofighter20x | October 6, 2014 at 1:02 pm

The law professor in the video is James Duane of Regent Uni. School of Law.

While I’ve only seen the excerpts of “Don’t Talk to the Police” that are in Branca’s embedded video, wasn’t Duane (or at least likely Duane) talking to law students about how to handle their clients after an arrest– or being investigated, being a person of interest, and what not– and not talking about what they themselves should say and do immediately after a criminal accusation or an act of self-defense? Or am I completely missing something from Duane’s argument?

While I agree right around 100% with the “say little” strategy Branca outlines, it seems like Branca is arguing apples and oranges against Duane.

And no, I’m not defending Duane’s presentation. I’m not a lawyer and I have no opinion on how handle/represent a client, etc.

    platypus in reply to Yukio Ngaby. | October 7, 2014 at 10:57 am

    It’s good that you don’t know about “handling” a client. That’s one of the bland descriptions. I’ve worked for attorneys whose clients (some not all) needed to be gagged and hogtied, though we never actually did it. A client is generally interested in one thing – getting it over with. Most of what Andrew is saying has to do with dispelling the fantasy that saying something at the scene can ever accomplish this.

I’m in trouble as I trust law enforcement a great deal. If I ever get into a situation where I have to use deadly force in self defense, I figure it is in my best interests to point out all the important evidence, including witnesses , the weapon, etc.

I feel that if I acted lawfully in a justified self defense shooting, the officers responding will be on my side as they can easily empathize with my situation and put themselves in my shoes.

However, even LEOs themselves will shout it from the mountaintops to know your rights, get an attorney. Other than the immediate time sensitive evidence that they need, further cooperation will have to be with an attorney and I know that they will not hold that against me. After all, if they were in my shoes, they would be doing the exact same thing.

Yeah… I trust cops. Prosecutors? Not so much…

So best I speak with the full knowledge that anything I say can and will be used against me in court. So , give the officers what they need to know (security camera footage, witnesses, location of weapon, breakdown of what happened, that time sensitive exculpatory evidence). Further information, only with a lawyer present.

I’d likely be very stressed out and not in a position for completely rational thought. I’m not a battle hardened veteran.

It is certainly helpful to think about these things and account for them in advance rather than have that situation happen and have no plan. I value my freedom and my rights very much. Would not want to lose them to a prosecutor just looking to add another notch to their belt.

Thank you very much for putting this together Andrew.
There is so much conflicting/confusing opinion out there.
-Walt

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