I was asked this question: Assuming that the defender has just needed to shoot an attacker in self defense, and the attacker is alive and talking, telling his side of the story to police, what are the issues influencing whether or not the armed defender should give a statement to police in order to counter the statement being given by the wounded attacker?
First of all, you will not likely hear what the attacker is saying to the police, at least not at that time. You will only find out what he said later when your lawyer gets discovery documents from the prosecutor’s office. This is because the police will almost certainly separate the two of you before quesioning. Of course you may hear the attacker blurt something out before the police have had a chance to separate you. You may also hear witness if they begin talking to the police right away, but that’s sort of rare unless the witnesses are comrades of the attacker.
The question really is whether you talk to the police at all. There is a Youtube video you make like to watch called Ten Reasons Why You Should Never Talk to the Police. It’s entertaining and I highly recommend it. I’ve watched it several times just because the lawyer, Mr. James Duane, is the fastest talker I’ve ever seen whom I can understand. He’s terrifc.
Here comes the “but.” It’s only good advice for criminals who do not want the police or prosecutor to learn the truth about what happened. Of course, they should not talk to the police because they are going to be lying and will probably not be believed. Seen for the liars they are it will only make their case harder for their lawyer to offer whatever defense might be possible.
But if you are an honest law-abiding citizen who reasonably believed you would be killed or seriously injured unless you acted in your own defense, things are much different.
I guess if you don’t say anything in this situation you are hoping the police will figure out what happened on their own. That’s probably not a good strategy and it sure didn’t work in a Florida case where a landlord was cleaning a house after the tenant abandoned the property, leaving a mess.
While the landlord was there, the tenant showed up demanding his security deposit back. The landlord explained why he could not give it to him until all the cleaning was done and he could tally up the expenses. This angered the tenant who went to his vehicle to retrieve a tire iron. Using the tire iron as a weapon he first went into the bathroom and started bashing the porcelain fixtures to pieces. He then turned the tire iron on the landlord, approaching him in a fast walk and hitting him in the head. In reasonable fear for his life the landlord drew his legally carried .357 magnum revolver (loaded with .38 special ammo) and shot the tenant twice, who proceeded to stagger out the front door and collapsed on the front porch.
The landlord called 911 and requested medical response for the wounded tenant. He also began administering CPR to try to keep him alive until help arrived. When the responding officers arrived they handcuffed the landlord, who had not yet said anything to them. Soon thereafter a detective arrived and the landlord told him he wanted to give a statement. The detective put him in the back seat of a police car and said he’d be back for his statement as soon as he had cleared the crime scene. Sitting there waiting for the detective to come take his statement he recalled being told once never to talk to the police until your lawyer is present. When the detective returned he told the detective he had changed his mind and would have nothing to say.
Meanwhile the tenant’s common law wife was spinning a tale to the cops about how they had just come to request the return of their damage deposit and the landlord flew into a rage and shot her husband for no reason. There were other witnesses on the scene: the landlord’s girl friend and her 14-year old son. They saw what really happened but were so stressed out and in shock at what they had seen they could barely talk and never said anything to counter what the tenant’s common-law wife was saying. The tenant’s common law wife continued her hysterical rant. When the landlord decided to clam up the police were left with only one explanation of what had just happened. A hysterical woman telling them how violent the landlord was and how scared she was and how her husband never had a chance to even defend himself must have been powerful.
As a result, the landlord spent 18 months in jail awaiting trial and was very nearly convicted of murder. Were it not for Mark Seiden, a highly gifted legal defense lawyer and Massad Ayoob who gave expert testimony that helped the jury understand what had really happened, this entirely innocent landlord may have spent the rest of his life in prison. It cannot be over stated what a close call this was. If you didn’t know, a life sentence in Florida means life. You will stay in prison until you die. If you should get the death penalty, although it may take years, in all likelihood you will be executed. When the detective took the stand the landlord’s attorney asked him if he’d ever seen a murderer giving CPR to the person he’d just shot. The detective said, no he hadn’t.
There were many things the landlord could have said and done that might have helped him and might have even prevented him from being arrested. First, he could have explained in general terms why he was the victim and the tenant was the aggressor who threatened him. He could have pointed out the obvious that he had been hit with a tire iron just after witnessing the tenant tear apart a bathroom. If the tenant had made verbal threats, which is likely, he could have told the officers what the tenant said and that the threatening words combined with the way he was wielding a tire iron as a deadly weapon made him, the landlord, fear for his life. He could have told them he never drew his firearm until after the tenant had viciously attacked him with a deadly weapon. [yes, a tire iron when used to strike someone in the head is a deadly weapon] He could have pointed out the wreckage in the bathroom and told the police that the tenant had done that with the tire iron after being told he wasn’t getting his damage deposit back until an accounting of cleaning expenses had been made.
So the lesson from this is, when the scene doesn’t tell the real story of what happened, you have to tell that story. But do it in general terms, “I was attacked, I thought I would be killed, I defended myself.” Then point out any evidence, especially any weapon used by the attacker. If you were hit or stabbed but it isn’t obvious to the police, point out your wounds and how you got them. Point out any witnesses who saw what happened and ask the police not to let them leave without getting their statement.
Categorical fact statements should be avoided. The landlord in this case answered the 911 operator when she asked how long ago it happened by saying, “About five minutes ago.” It had actually been less than a minute. The landlord was in time dilation from the stress of being attacked. He should have said, “Just now.” Later at trial the prosecutor used his statement to claim that he waited five minutes to call 911 because he was staging the crime scene.
Another reason to speak only in generalities after a stressful event is that in addition to all the usual physiological effects of tachypsychia, tunnel vision, auditory exclusion, loss of fine motor skills, there is also something I call “Critical Incident Temporary Amnesia.” I’ve seen people who after a minor fender bender have trouble recalling their own phone number or remembering where they keep their registration and proof of insurance.
This is all caused by the stress hormone cortisol, which is released along with adrenaline. While the adrenaline dissipates rather quickly the cortisol remains for hours and interferes with our ability to remain calm and collected. Attempting to give fine details of what just happened is almost guaranteed you’ll get it wrong in some way.
Once you’ve explained what happened in general terms and how you reasonably feared for your life, tell the police you want to cooperate fully as soon as you’ve had a chance to confer with your legal counsel. That’s when you can go into more detail so long as you don’t attempt to give answers that require you to assume something that might not be completely true. Always remember that any mistake you make in the details of what happened will hurt you. In officer-involved shootings cops may get the benefit of the doubt when they get something slightly wrong, but citizens seldom do.
Every specific fact detail you give the cops, the exact time, distance or other precise details will be checked and if found to differ from what you said the police may conclude you’re lying. That’s why you should initially tell the story only in general terms. Wait for a lawyer to help you before you start nailing down all the specific facts, preferably about 24 hours later after you’ve had a chance to calm down.
Stay safe! It’s a dangerous world.