1Assume you’ve just had to use your lawfully-carried firearm in self-defense. The aggressor is on the ground, wounded, perhaps dying. The police ask you to come to the station and make a statement. What do you say, and why?
If you have had a class on the lawful use of deadly force, your instructor probably told you to say as little as possible until you’ve talked with an attorney. Some of you may have been skeptical thinking “I’ll be innocent, what do I have to lose.” Sadly, innocence may not help you during a police interrogation.
When you call 911, or when police respond to the scene, your Miranda rights have not yet attached; Miranda applies to custodial statements. This can start before the officer formally places you under arrest and handcuffs you. If you have any doubts about the situation, ask if you can leave. If the officer says “no, then you are in custody and your Miranda rights apply. If you don’t ask, your Miranda rights would still apply if a reasonable person in your shoes would not think he or she could leave. Of course, you could also ask if you are under arrest, but “can I leave” may be less confrontational and cover a broader range of situations.
If the officer merely asks you to come to the station and has not arrested you, he or she may not have to advise you of your Miranda rights. But that doesn’t mean that your statement may not lead to your arrest, or your conviction at trial. Before you go to the station, talk with an attorney first. If the police arrest you, talk to an attorney before you talk with them.
Stepping back to the scene or the 911 call for a moment – what should you say?
- Identify yourself.
- Briefly explain what the aggressor did – he threatened you, assaulted you, tried to kidnap or rape you, etc. Do not get into details at this point, you merely want to establish that you were the victim of a crime.
- If the aggressor or his buddies escaped, briefly describe them to the officer.
- If you are wounded or think you might be wounded, ask to go to the hospital.
- If there is any important evidence or witnesses about, point them out to the officer.
- Tell the officer that you want to talk with your lawyer before giving a more complete statement.
- If you are hurt, or think you might be hurt, then ask to go to the hospital.
Why so brief? Because you are speaking in the immediate aftermath of a very stressful situation. As an instructor may have told you, it is common in self-defense situations for your perceptions and memory to be inaccurate due to psychological and physiological reactions to the stress of the incident. (This is not an essay on psychology, but you may want to look at some of the recommended reading to learn more about this topic.) Thus
you may not perceive or recall key details correctly. If you give specific information like distance, numbers of shots fired, and things you said and did and your answers disagree with the crime scene analysis, then a prosecutor may portray you as a liar. Also, the responding officer may be taking some notes, but he or she is going to also rely on memory when drafting a written report later and may forget things or make good faith mistakes. It is hard to challenge the officer’s report later. (Calls to 911 are generally recorded, so there will likely be an accurate record of what you said, and how you said it, later.)
If you are hurt, or even think you might be hurt, or otherwise don’t fell well, then ask to be taken to the hospital or for an ambulance to be called. Even if a wound seems minor, you may not be aware of the extent of your injuries given the stress of the incident. Err on the side of caution and ask to go to the hospital if you have any reason to think you are hurt — particularly if the attacker shot at you, or had a knife or other weapon and was close enough to strike you. However, do not lie to the officer about your condition. If the officer believes that you are exaggerating or lying to buy time or win false sympathy, he or she is going to be very skeptical about anything else you say, including your claim that the aggressor attacked you. A prosecutor may be able to use false or exaggerated claims against you at trial.
Your statements to a medical provider like an EMT or the Emergency Room staff about your medical condition are, under most circumstances, privileged. This means that it is hard for the prosecutor to gain access to those records or to ask the medical staff about them, and it is hard for them to be used against you at trial. However, if there is a police officer accompanying you who overhears statements, he or she might be able to testify about them. (You can ask the officer to give you some privacy, but he or she may not be willing to do so if you have been arrested or are in custody.) Again, this is a time for brevity — stick to your medical needs and don’t discuss the incident. While you are there, you might want to try to have any injuries photographed or measured and described in your records. If you are arrested, your wounds will likely have long healed by the time of trial — a record of your injuries may be important later.