Courtroom Survival by Lyn Bates

Last April I was privileged to attend a class on Courtroom Survival – what armed citizens (and firearms instructors) need to know before a self-defense encounter in order to save themselves from a truckload of legal troubles after the fact. How can you keep from being wrongfully convicted for manslaughter or even murder? Who better to instruct about police investigations and criminal prosecutions following a self-defense incident than the police and attorneys who are have broad experience in exactly those areas?

The class was arranged by Lisa Steele, Esq., an appellate attorney in Massachusetts and Connecticut, and a board member of We are AWARE. She enlisted a panel of experts to discuss the topic:

Chief Bert DuVernay, Chief of Police, New Braintree, MA, was admirably suited to talk about crime scene investigation, interaction with a suspect, and how police make the decision to arrest or not.

Attorney Robert Griffin, a barrister who has had 13 years experience as a prosecutor in Massachusetts, discussed what goes into the decision to bring charges, how expert witnesses are viewed, and how a firearms instructor might be involved in a case.

Attorney Kevin Reddington, a criminal defense counselor in Massachusetts who has been involved in more than 70 murder cases, presented considerations regarding the trial, and specific aspects of a self-defense case.

Attorney Lisa Steele, an appeals attorney, outlined the appeals process in Massachusetts and discussed several self-defense cases that have gone awry for the self-defense shooter.

A more experienced and knowledgeable panel would be hard to find.

You have probably heard the adage “Every bullet comes with a lawyer attached.” It is good to know before you shoot what advice a lawyer or police officer would give you. Remember, private citizens are armed because, “When seconds count, the police are only minutes away.”

Long time readers of this column have seen many admonitions that this panel reinforced. For example:

Don’t mix guns with alcohol or drugs.
Don’t agree to an unarmed fight, even if you think it will not escalate.
Be able to explain your choice of gun, holster and ammo to the police, lawyers, and a jury; equipment that is close to what the police use is easiest to explain.
Try not to leave the scene after a shooting because you may be viewed as a guilty person trying to flee. Leave only for an extremely good reason, such as no cell phone and trying to call 911, or because there is still clear danger to you at the scene.
Don’t have your gun in your hand when police arrive; put it in your holster or lay it down somewhere safe.
The prosecutor will try to use against you your interest in guns, your level of training, and your experience with guns, but do them anyway.
Gunshot residue tests have serious problems and often don’t give accurate results, but juries may believe them.
Defending yourself in a murder trial is hugely expensive; expect $75,000 – $100,000 in legal fees, plus expenses for investigators, expert witnesses, and more.
After being shot, a person is more likely to run than to drop; don’t shoot them running away.
In states with grand juries, some prosecutors invite defendants to testify there; usually this is a bad idea, but consult with your lawyer before deciding.
No matter how friendly they seem, the police and detectives investigating a shooting are not your friends; don’t confide in them.
People who know they are innocent are very likely to think they don’t need a lawyer; that’s a big mistake.
Most self-defense criminal cases are very grey, not as clear-cut as the defendant thinks they are.
In some states, such as Massachusetts, self-defense is a matter of case law, not statute, making it particularly important for a good lawyer to be involved in your defense.
States differ on this, but many are allowing the jury to hear information about prior bad acts of the person who was shot, even if that information was not known to the shooter before the incident, if it may be relevant to who started the altercation.
Forensic evidence is extremely important, and is often what makes or breaks a shooting case. Your defense may need expert witnesses to help the jury understand confusing evidence.
Don’t count on winning an appeal; make your best case at your trial; do all you can to avoid a trial.

One of the most interesting aspects of this day was how this group of experts differed on what one should say to the police who are first on the scene after a shooting. The police chief and appeals attorney felt that it was important to say a few things before you ask for a lawyer. The prosecutor and defense attorney advised that you say nothing at all, not one word, until you have a lawyer at your side. Let’s look at the reasoning behind these differing opinions.

The advantage of saying just a little at the beginning is that you might be able to help the police come to view your situation as self-defense, starting with the police dispatcher if you are the person who calls 911 after the incident. It is the dispatcher’s job to find out what happened (in just a sentence or two), where it happened, and who to send (police? SWAT team? three ambulances?). Saying more won’t help, will be recorded, and may come back to haunt you in court.

What should you say to the police on the scene? A few facts, and a few feelings. The facts are things like your name, your firearms license and pointers to any important evidence or witnesses that might otherwise be overlooked. The feelings are what you felt before and during the incident – that your life was being threatened, that you had to defend yourself so you fired your gun. The kinds of things you should not say are anything about how close the assailant was, how many shots you fired, whether he had a gun, what kind of gun he had, how many shots he fired, how long the incident took – all the sorts of quantitative information that you are very likely to get wrong because your memory for the event may conflict with witnesses, video recordings or other evidence. Most of those quantitative things the police should be able to determine from studying the physical evidence. You may well want to demand that all of your words be audio recorded or video recorded; this protects you against the police report being an unfortunate summary of an officer’s memory of what you actually said, and it can buy you time while the police get a tape recorder or camcorder.

The disadvantage of trying to say just a little is twofold. First, you will want, desperately, to explain in detail what happened, but if you give in to that desire to talk, you will get some facts wrong, and that can later be used against you. Second, the police will have been trained to try to get as much information from you as possible; they may come across as completely sympathetic to your situation, and they will ask an unending stream of questions. What they put in their report will not be your words verbatim, but what they remember to summarize, so mistakes are easily made, but juries tend to believe police reports.

The advantage of saying nothing is that it is easy to remember, and much easier to do. Just memorize a statement like “I want to make a statement, and I will do so after I talk to a lawyer,” and train yourself to say nothing else. This tactic protects you against the “verbal diarrhea” that could get you into serious trouble. It buys you some time before you have to give a formal statement, and assures that you have a chance to discuss what happened under lawyer-client privilege.

The disadvantage is that the police are very likely to think you are being evasive, and they will be very likely to assume that you were the aggressor in the incident, and treat you accordingly. Also, the police may need important information that only you can tell them such as “There were 2 guys with one gun. I shot him. His friend grabbed the gun and ran away down that alley.”

Everyone agreed that it is a very good idea to say that you want to be taken to the hospital (even if you think you have not been injured). The police must comply with that demand. The adrenaline rush you will be experiencing will mask pain that you would normally experience from injuries ranging from minor to serious. You need to be looked over by a doctor, whether you think so or not, so demand it. The doctor may be able to document objective signs of stress or injuries that bolster your self-defense claim. Also, a trip to the hospital it may buy you more time to recover your wits before being questioned again, though you should expect police to accompany you to the hospital and continue to try to question you.

When you talk about getting a lawyer, make that very definite, too. If you say only “I think maybe I should talk to my attorney,” the police can ignore that and continue to question you. If you say “I will speak to you after I speak to my attorney,” they have to respect that.

So, what are you going plan to do as part of your post-incident planning? Make your decision now, to talk a little or not to talk at all.