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Van Canna
PostPosted: Sun Apr 24, 2011 11:08 pm 
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When Can a Prosecutor Use my Life Against Me in a Self-Defense Trial?


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Lisa J. Steele is a criminal defense attorney who represents indigent defendants in the
Connecticut and Massachusetts appellate courts. She is a co-chair of the National
Association of Criminal Defense Lawyers (NACDL) Forensic Evidence Committee,
a director of AWARE, and has lectured and written about self-defense issues for
attorneys and the public.


http://www.neshooters.com/lifestyle.pdf

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Van Canna
PostPosted: Sun Apr 24, 2011 11:09 pm 
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A question much on the mind of attendees at self-defense talks is, “to what extent can a prosecutor use my life against me if I have to defend myself”. The attendee may be concerned about his or her life membership in the NRA, or subscription to Soldier of Fortune, or the number or kinds of guns that they own, or how often they go to the range, or how many self-defense classes they have taken, or any number of other lifestyle issues. The answer is: “It depends”. It depends on the facts of the self-defense case.
Lisa Steele

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Van Canna
PostPosted: Sun Apr 24, 2011 11:15 pm 
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Be sure to read the article...thus far we have never given our individual lifestyles any thought...as to how they impact on our self defense claims.
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This article will primarily talk about the limitations on the use of lifestyle evidence at trial.

Remember, however, that trial is the end of a long process – police and prosecutors may use information that is not admissible evidence as part of their decision to make an arrest, prosecute the case, and/or in plea negotiations.

Police and prosecutors do not often talk about what factors go into these preliminary decisions, so there is not much guidance that one can give about whether, or to what extent, lifestyle issues affect the likelihood that you might be prosecuted for defending yourself.

It is possible that a prosecutor may infer that, for example, a person who subscribes to Soldier of Fortune or carries more than one firearm or extra ammunition was more likely to be looking for trouble and thus did not act in self-defense, but there is no way to know if that is the case – prosecutors and police do not have to explain their decisions so long as they have probable cause to arrest and prosecute, which they are likely to have in all but the most obvious self-defense case.

Instead, the article will talk about evidence rules and how,ultimately, lifestyle information can become evidence presented to a jury in a criminal trial.


Lisa Steele

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Van Canna
PostPosted: Sun Apr 24, 2011 11:19 pm 
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In a self-defense case, evidence about most of the defendant‟s life would come from the defendant himself or herself, when cross-examined after testifying in his or her own case. What the attendee wants to know, often, is “can I be asked by the prosecutor about the number of guns I own, how often I go to the range, what magazines I read, how much training I have had, and so on”. And again, the answer is, “it depends”.


Lisa Steele

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Van Canna
PostPosted: Sun Apr 24, 2011 11:29 pm 
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So the first question is – how is this fact relevant to this case? The weapon, if any, used in self-defense and any other weapons or equipment the defendant may have been carrying or had ready access to are, of course, relevant.

Thus, in Commonwealth v. Peppicelli, 70 Mass.App.Ct. 87, 872 N.E.2d 1142 (2007), the prosecutor could introduce testimony not only about the handguns used by the defendants, but also the amount of extra ammunition they carried, and the knives that each had.


Joey 'Pep' a good friend of mine, Uechi student under Jay Sal...[Bob Campbell organization] ...is presently an Everett Police officer...many of us see him at the annual Bob Campbell's dinner party [he will be sitting at my table this year]...

Well Joey's brother is the one mentioned in the case above.

And Joey has told me all about the prosecutor's ability to "introduce testimony not only about the handguns used by the defendants, but also the amount of extra ammunition they carried, and the knives that each had"

Think about it...pretty scary stuff.

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Van Canna
PostPosted: Sun Apr 24, 2011 11:32 pm 
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Lisa Steele
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A defendant might want to introduce handouts or contemporaneous notes from self-defense classes as relevant to his or her subjectively reasonable assessment of the need for self-defense.

The judge would have to consider how much of the offered evidence is material.

If, for example, the defendant took a class in martial arts for self-defense in college, some twenty years before the incident, a judge might conclude that evidence about what she learned two decades ago was not material in the current case.

A more recent class taken as part of the defendant‟s decision to obtain a carry permit, on the other hand, would likely be considered material, and thus testimony about it and handouts or notes from it could be admissible.

For those who have taken many classes, a judge might limit the defense to listing classes and choosing the most important handouts, notes or trainer(s) to present.

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Van Canna
PostPosted: Sun Apr 24, 2011 11:40 pm 
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In 1990, the New Jersey Supreme Court discussed whether the trial court should have allowed the prosecutor to introduce the following items seized from the defendant‟s home:

“a gun-cleaning kit, a customized holster, a target, a gun catalogue, a Soldier of Fortune magazine, silencer instructions, and three live rounds of nine-millimeter hollow-point bullets.” State v. Coyle, 119 N.J. 194, 204-05, 574 A.2d 951 (1990).

The prosecution theory was that these items showed the defendant‟s marksmanship and ability to accurately shoot the victim from range and that the defendant was “a man „mentally prepared to kill,‟ not a reasonable man who had acted in defense of another.” Id. at 205, 218-19.

The defendant acknowledged his interest in weapons and that he had told the person he defended that he was “very much against society and its rules.”. Id. at 207-08.

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Van Canna
PostPosted: Sun Apr 24, 2011 11:43 pm 
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The majority of justices agreed that the defendant‟s marksmanship was relevant and material to the prosecution‟s argument that the defendant deliberately wounded the victim before shooting him fatally in the head; however, most of the items were irrelevant to that question and should have been excluded.


The target could be introduced if the prosecution could show that the defendant used it, or a target like it, to practice shooting . Id. at 218-19.


The majority remarked that “Unlike a trained sharpshooter, a person unskilled in shooting a gun would probably lack the ability to try only to wound, but not to kill, someone from a distance.

More likely a novice would simply aim the gun and hope that the shot hit some part of the victim's body.” Id. at 219.

This suggests a fundamental misunderstanding about the difficulty of shooting a person in a dynamic self-defense situation; however, the opinion is unclear about whether the court had any evidence on this point before it.

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Van Canna
PostPosted: Sun Apr 24, 2011 11:46 pm 
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As to the prosecution‟s second reason, the majority stated that “There is no connection between defendant's ownership of weapons information and the reasonableness of his use of deadly force.

The determination of the reasonableness of deadly force is objective.

Neither defendant's marksmanship nor his ownership of the Soldier of Fortune magazine, the silencer instructions, and the gun catalogue bears on whether a reasonable person would have believed deadly force was necessary.” Id. at 219.

It continued “Even if defendant's possession of the items indicates that he is learned in weaponry, his expertise does not make it more likely that he believed that non-deadly force was sufficient to protect [the defendee] or that something short of killing [thevictim] would fulfill his stated purpose.

A non-expert would be just as able to assess the necessity of deadly force.” Id. at 220.

Thus, the Court, having decided to order a retrial on other grounds, said that during that retrial if the prosecution proved the relevance of the target, then the trial court should weigh its probative value vs. its prejudicial effect, and decide whether to admit that evidence. Id. at 220.


Justice Handler, writing separately to concur in part and dissent in part, agreed with the majority‟s conclusion that the items other than the target were irrelevant, and went further to chastise the prosecution for improperly using the items to argue that the defendant had an evil character and a predisposition to commit crimes. Id. at 245-46.[/quote]

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Van Canna
PostPosted: Sun Apr 24, 2011 11:53 pm 
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In People v. Pyne, 223 A.D.2d 910, 636 N.Y.S.2d 491 (1996), a New York court wrote that an unrelated handgun belonging to defendant, a holster, ammunition, targets, magazine cases, and letters regarding the National Rifle Association and a local gun club were all not relevant to the case at trial and “could have been offered for no other purpose than to inflame the jury, thereby depriving defendant of a fair trial”.

See also People v. Zackowitz, 254 N.Y. 192, 172 N.E. 466 (1930) (reversible error for prosecution to introduce, over objection, firearms seized from defendant‟s home – improper effort to use ownership to show propensity toward crime.

“To be armed from head to foot at the very moment of an encounter may be a circumstance worthy to be considered, like acts of preparation generally, as a proof of preconceived design.

There can be no such implication from the ownership of weapons which one leaves behind at home.”)

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Van Canna
PostPosted: Mon Apr 25, 2011 12:05 am 
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Common Concerns

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With these broad principles in mind, let‟s consider several common concerns:

Anything dealing with the incident itself is almost certainly admissible evidence.

This might include: any weapons used during the incident; other weapons or ammunition on the defendant‟s person or within his or her reach;

photographs, videos, and materials from the crime scene; testimony about the events leading up to the incident and in the immediate aftermath; and the defendant‟s reasons for carrying a weapon at that time.

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Van Canna
PostPosted: Mon Apr 25, 2011 12:08 am 
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And the 'can of worms'
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The defendant‟s training and knowledge about self-defense is admissible evidence about his or her intent and perception that the actions taken were subjectively reasonable.

Normally, this will be information the defense attorney will offer through the defendant‟s testimony and possibly by testimony of his or her trainers; however, once the defense has opened that door, the prosecutor can cross-examine further.


Now imagine the cross-examination. 8O

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Van Canna
PostPosted: Mon Apr 25, 2011 12:09 am 
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The prosecutor might also ask questions about how often the defendant practices with firearms or other weapons used, about competitions he or she may have entered or won, and anything the defendant may have written, blogged about, or posted about self-defense or firearms training, particularly if the prosecution is trying to argue that he or she could have shot to wound the victim or had options other than using deadly force.


:evilbat:

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Van Canna
PostPosted: Mon Apr 25, 2011 12:11 am 
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Again, the number and kinds of firearms or other weapons that the defendant owned, but did not have access to during the incident, are not relevant evidence in most self-defense cases and may be prohibited as they were in Coyle.

On the other hand, if he or she testifies, a prosecutor may ask this question and defense counsel may choose not to object for tactical reasons; concerned that the jury may speculate about the answer (even though it is told not to do so) and imagine something more damaging than the defendant‟s answer.

Lisa Steele

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Van Canna
PostPosted: Mon Apr 25, 2011 12:14 am 
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So do you or don't you?
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As every criminal lawyer knows, it's very difficult to get a client off unless he's prepared to take the trouble of going into the witness-box, to face up to the prosecution, and to demonstrate his innocence or at least his credentials as a fairly likeable character who might buy you a pint after work and whom you would not really want to see festering in the nick.
– Horace Rumpole, The Trials of Rumpole (1979)

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