Unintended Consequences of Silence

This article first appeared in the Network's November 2009 journal.



by Marty Hayes, J.D.

You cannot read an Internet firearms forum these days without running across a thread about what to say to the police after a self-defense shooting. The in-vogue advice from Internet pundits is, “Say nothing. Demand to speak to a lawyer.” And, that is very good advice, if you are a criminal.

If I were practicing law, which I could do if I wanted to take six months out of my life to study for and pass the bar, I would give that advice to all my clients who were criminals. After all, not much good can come from telling lies to the police, and certainly not much good comes to the criminal if he confesses to committing the crime. So, while well intentioned, the advice to keep your mouth shut until your attorney arrives has some potentially severe unintended consequences for the innocent.

Still, the question of what to tell police merits consideration, but because each self-defense incident will be unique, the question cannot be answered uniformly or with a one-liner. What you should do or say if you shoot a burglar in your home in self defense is likely different than what you should do or say if you shoot someone in the middle of a parking garage late at night during a robbery attempt. Why? Because the circumstances and events differ. Your decision to shoot comes in response to actions by the perpetrators, and events unfold differently during those dissimilar attacks. As you know, one size does not fit all, and neither does one uniform statement to the police–or no statement at all–work effectively in all cases. Let me explain.

First, after an incident occurs, you have no idea when your attorney will arrive. Unless you happen to have an attorney who is a family member, or somehow know the whereabouts of your attorney at all times and you know that he or she can show up at a moment’s notice, you may wait many hours, or even a day before your attorney is at your side. So, off you go to the jail in the back of the police car, to await the arrival of your attorney.

This time gap creates a huge problem when you have invoked your Miranda rights and told police you will not talk to them without an attorney present. Why? Because, absent justification, shooting someone fulfills the elements of the crime of assault or murder, depending on what happened. With the elements of the crime satisfied, you will be arrested, and once arrested, you will be booked into jail. The eventual charges depend on whether the person lives or dies. Of course, the titles of the crimes vary from state to state, so for the purposes of this discussion, let’s limit the possibilities to aggravated assault or murder. For this example, let’s imagine you were out in public when you were forced to use deadly force in self defense.

Now, put yourself in the role of the responding officers who received the “shots fired-man down” call. Arriving on the scene, the police know a crime has just been committed, because it is illegal to shoot someone without justification. They know it is their duty to arrest people committing crimes, and in fact, they get lots of “atta-boys” when they make good arrests, so they are likely going to arrest someone if they can. They have two potential candidates for arrest in this scenario: either the shooter (you), or the guy on the ground, who might have been committing a crime against you.

In my experience, cops cheer–perhaps silently but they cheer nonetheless–when a good guy shoots a bad guy. They may wish and hope that this is the case, but what are they going to do when you, cloaked in your righteousness, demand to speak to your lawyer before you utter another word? Most likely, they are going to arrest the guy holding the smoking gun, because that is the only immediately visible evidence that a crime has been committed.

Once police make that arrest, they shift all their attention to proving that their arrest was a valid arrest. This means investigating the assault or murder of which you now stand accused, and not the underlying crime about which they have little or no knowledge. If this occurs, you are in for a long trip through the legal system.

“But wait!” you cry. “I’m innocent!” Yeah, I know you are innocent, you know you are innocent, and even God knows you are innocent, but at that critical juncture, no one has told the cops that you are innocent, and they had no information to make them believe you’re not just another guilty suspect. Why? Because, you–perhaps the only truly credible witness who is still alive–refused to give a statement to police. The one person who knew that a crime was being committed against you refused to talk to the cops! By immediately invoking your Miranda rights, you have just earned a trip to jail, and prosecution for assault or murder. As grim as that sounds, it can get much, much worse.

Witnesses–Pro or Con?

Perhaps other witnesses hear and see the shooting. With a sigh of relief you think, “I don’t have to risk making a statement, because others will tell the police what happened.” This brings up two problems. The worst arises if witnesses lie. Perhaps police interview witnesses who include the person you shot or his accomplices. They were committing a crime, most likely a violent felony, and if the one you shot dies, the others could be convicted of felony murder. Do you honestly think that they are going to confess to the police that they were part of a robbery team? Not likely. Instead, their lies will be long, loud and abundant, and at trial you must convince the jury that one, two or three other people who say that you just pulled your pistol and started blasting away are, in fact, lying.

Their stories will likely be the same, rehearsed many times, perhaps even with the aid of the prosecutor. Prosecutors don’t like to lose, and in fact, if they lose too many cases, they may also lose the prosecutor’s position. So, the prosecution will pull out all the stops to convict you, and if that means helping the witnesses communicate better with the jury, expect them to do so.

In the end, because you decided to follow the advice of some anonymous Internet poster, remaining silent and demanding to talk to your attorney, you face a trial in which you desperately need to prove that the people the prosecution and their witnesses paint as poor suffering victims were actually committing a crime against you.

The witnesses extend well beyond those present at the scene. You can be sure that the doctor that performed the surgery on the guy you shot will be at your trial to describe every excruciating detail of the injury you inflicted. If your assailant dies, the Medical Examiner or forensic pathologist will go to the witness stand to give the same testimony.

Can you now see why I titled this article Unintended Consequences?

It can get even worse! Perhaps there were independent witnesses who saw what happened. “You’re saved!” your friends and family may cry. Not necessarily. Witness dynamics is a fascinating subject in itself, and one you should study up on. What the witnesses saw or heard is not necessarily what actually happened.

Their observations and experiences will be filtered by many variables. Distance, lighting, ambient sound, and even their own physical limitations in eyesight and hearing will come into play when they give their honest, independent account of what they saw or heard. And these simple physical limitations are nothing compared to the filter of social or political bias that also might be present.

An independent witness or two provides no guarantee that the truth will come out at trial. Those witnesses may be unavailable, may have moved away between the time of your arrest and trial, or may for their own reasons make themselves inaccessible. It happens, especially if the witness might be related either through blood or social strata with the criminal suspects. In other words, when asked by the police what they saw, they told the truth, but by the time your trial gets underway, they are nowhere to be found. It happens all the time. Still, it can get even worse.

Evidence Overlooked

Because you never told the cops that the dead guy attacked you first, they felt no driving concern to search out evidence at the shooting scene that might support that version of events. Lost is evidence, let’s say, of a knife or even another shiny object that could reasonably be mistaken for a knife that perhaps the assailant threw in the bushes after you shot him. Later, one of his buddies may sneak back and retrieve it, before your attorney shows up bleary eyed at the jail to advise you while you tell the police what happened.

Do you think a jury will believe you when you say a guy threatened you with a knife, when there is no knife to be found? Wouldn’t it have been much better, to tell the police succinctly that you were attacked, that the man lying on the ground placed your life in danger, and you were forced to shoot to save your life? That the guys standing over there saw what happened? That after falling down, the assailant threw the knife in those bushes–as you point to the clump of bushes 30 feet away? Maybe, just maybe, the police will consider the idea that you were justified in shooting, and they will investigate and document all the pertinent facts surrounding the incident. Wouldn’t that be nice?

What if you are hurt during the assault? Were you struck first? Is there a bruise on your neck where the assailant tried to strangle you? If you clam up, how do the police know about this exculpatory evidence? Having your lawyer tell the police three days after the event, “By the way, my client was assaulted,” isn’t going to do much good. It is best to turn the police detectives into your detectives, by letting them know of any injuries or other attacks to your person.

The “Go Directly to Jail” Card

Another example of the law of unintended consequences of well-intentioned acts comes in the form of the “wallet card” which is supposed to alleviate the problem of confessing to the elements of a crime, while preserving your rights against self-incrimination. These cards usually are printed with words to the effect of:

“Officer, if I am handing you this card, I was just attacked and had to use justifiable force to defend myself. I am invoking my rights against self-incrimination, and wish to make no statements until my lawyer is present.”

Ahem…you have just handed the officer a damning piece of evidence that can be used against you in court. This card can be used to transform an intentional albeit self-defense shooting into a premeditated shooting. It can be used to turn a life sentence into the death penalty. Do you honestly think a jury would view this printed statement the same way they do the car insurance card in your wallet? Even a rookie prosecutor trying his first case would be likely able to turn this against you, to say nothing of the picture an experienced prosecutor could paint around that detail. If you insist on presenting such a card to the responding officers, let’s profoundly hope the assailant lives, because the element of pre-meditation is not usually a factor in assault cases.

The argument for having this card in your wallet goes something like this: “Well, I am likely to be so upset and confused that I won’t be able to speak clearly, and might make a statement that could be used against me.” While that might be true, at least a misstatement due to stress could be explained in court by a competent expert. I don’t know of any competent legal expert who can explain why having this card in your wallet is a good idea.

To further address that concern, however, we should ponder what details you fear you may misstate? The fact that you were attacked? The fact that you felt your life was in danger? The fact that witnesses saw what happened? The fact that, having stated these few points, you now want your attorney, before giving a formal statement?

The 9-1-1 Call

The card has another weakness: it cannot dial 9-1-1 and speak with the dispatcher. Seriously, after you are in a self-defense situation, who is going to call the police? Sure, an onlooker who heard the shots or saw the action, may call 9-1-1, but you can’t count on that. No, to best protect yourself, you are going to have to be the one to call the police. Your call is necessary if you want any hope that the legal system will view your act of shooting or killing another person as justified. If you believe you cannot effectively tell the responding officer that you felt your life was in danger, how on earth can you expect to call 9-1-1 and effectively report the same situation? I can see it now.

Dispatcher: “9-1-1, what is your emergency?”

You: “Ahh, I would rather not say, but I really need the police.”

Dispatcher: “Sir, we are rather busy here at the moment, unless you are reporting a crime in progress, or some other emergency, I am going to hang up.”

You: “Wait. Don’t hang up. Someone has been sho.. er, injured.”

Dispatcher: “What is the nature of the injury?”

You: “He has a hole in his chest, and he is bleeding a lot.”

Dispatcher: “Okay, sir, how did he get the hole in his chest?”

You: “I would rather not say. In fact, could you do me a favor and call my attorney for me?”

Laughable? Sure, but you get the idea. Here is the deal: society, made up of the very same folks who will be on your jury, expect other members of society to tell the truth to the police, to be good witnesses to crimes in progress, and to help out other members of society when possible. Your actions will be judged against those expectations, and to the standard of a reasonable and prudent person, knowing what you knew, and standing in your shoes. If you don’t believe me, ask any attorney.

Do you think the members of the jury will find it a little odd that instead of telling the police that you shot the guy who was attacking you, you whip out your “sure to go to jail card” and hand it to the first police officer who asks, “What happened here?” Do you think that the members of the jury would have done the same thing under the same circumstances, or do you think perhaps they might simply tell the police that they were attacked and that man on the ground attacked them?

A Time for Silence

Finally, there are times where the advice of “say nothing” might be the best advice. I can envision the circumstances where you have been arrested, handcuffed and read your Miranda warnings. Under these circumstances, my default response will be to give no response, other than asking to speak with my attorney. Even then, I must be sure to find a way to communicate with police about witnesses and evidence, because once those are lost, they can never be retrieved. Most of the time though, before an arrest is made, the responding officers want to hear the bare-bones facts to figure out what happened, who the actors were and what they did. This is your time, in fact, this is the only time, to light the path for the cops so they understand that you were the victim, and that the victim is not the guy bleeding to death on the ground doing a surprisingly good imitation of a victim.

In closing, please understand that this article is intended to be educational in nature, and it is not legal advice. You, the readers, need to critically assess whether or not my words make sense, and then to decide which path you want to take following a self-defense shooting. I wish you the very best.

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Marty Hayes is the president of the Armed Citizens’ Legal Defense Network, LLC, holds a Juris Doctor degree and is a former police officer. In addition to operating a regional firearms training academy, working as a court-recognized expert witness keeps him busy.

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