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Alan,

As you know,in the aftermath of defensive use of force [ deadly or not] there will be intense pressure by the police to get a statement from you. They will even come into the hospital to interview you as you lie there recovering from shock/injuries.

The police may threaten to arrest you if you do not make a statement, or may arrest you.

1]Can the police really threaten to arrest you, or in fact arrest you, if you say you wish to speak to your lawyer before making a statement?

2] How much time do you have before having to report to the station, or coming up with a statement while in custody? 24/48 hrs?

3] If the police wants to record or videotape the interview, can you refuse?

3] Do you have to make a statement at all or be subjected to an interrogation, or can your attorney handle it on your behalf?



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Van Canna

To: Van Canna Sensei,

The questions you pose are very relevant to reality in a real life situation.

After all, we preach what self-defense consists of and what the law says, but nothing in the case law actually reports the conduct of LEO’s even in a situation where there is a clear cut case of self defense, regardless of whether the matter results in injury or deadly force.

LEO’s have a duty to zealously inquire into such incidents as you pose, but the physical defense may save your ass, but not justification.

Your second line of self defense is obviously your verbal defense in the interrogation of any incident in which LEO’s appear.

First you have to make the determination if you are seized (detained or arrested) in which case you are required to be advised of your Miranda Rights, If the circumstances do not constitute a seizure, you may ask if you are free to leave or whether or not you are being detained. You then invoke the constitutional question of detainment. My best advice, is if you are told that you are free to leave, leave at once and obtain counsel. If you are being detained for what they give as a reason or good cause, then you invoke your Miranda rights. If they say we just want you to cooperate and answer a few questions, your response should ask if you can make an appointment

United States v. Mendenhall, 446 U.S. 544 (1980) Under the Mendenhall test, the police do not effectuate a seizure merely by asking questions unless the circumstances of the encounter are sufficiently intimidating that a reasonable person would believe that he was not free to turn his back on his interrogator and walk away.

“The judge’s finding that McDermott’s initial request to the defendant to stop for questioning was not a seizure is supported by the record. McDermott remained in his cruiser while asking to speak to the defendant, and he did not impede or restrict the defendant’s freedom of movement. As cited in Commonwealth v. Murdough 428.Mass760.officers may make inquiry of anyone they wish and knock on any door, so long as they do not implicitly or expressly assert that the person inquired of is not free to ignore their inquiries”.

They can threaten you with arrest, and whether or not you are technically seized or arrested, you can always, at any time, refuse to answer questions and assert your Miranda rights, and refuse to answer any questions other than the usual, name, rank, serial number and address.

It is only if you are in custody, arrest, seizure or what ever else they want to name your detention, that they have to advise of your Miranda rights. You can assert them at any time, and call your lawyer.

If however you have only witnessed an event, you may be required, as a material witness to make a statement, but even here you may request counsel to be present.. I believe objection should be made to any taping or video taping of an interview without counsel being able to define the parameters, and have the opportunity to voice formal objections.

The psychology is to disarm the person from whom the statement is requested by insinuating that if you are not guilty nothing can harm you in the interview.

Miranda rights should always be asserted since the person accused or questions cannot be objective in such situations and the interviewed person may be led into traps by leading questions, especially those which make assumptions to which you may innocently concede, but when read in retrospect can appear damaging.

My advise, whether in a scenario where you are not detained, or in the case of being in custody whether or not booked, is to always insist on the presence of counsel.

You can only be held a short period of time before being booked (formally charged at PDHQ), and if booked arraignment must follow in a reasonable time.

Remember that in self defense cases, the right to plead must be established, by evidence, which if believed by a fact finder, could explain your right to use of force to defend. A good lawyer could assist in establishing this by being at first interviews and statements. If the statement made is evidence of the State, even the state’s evidence could establish the right to assert the self-defense plea.

The “you” in this case is the all persons you, and not you personally Van since many of us know your history as an investigator.

Thanks for the post,

Alan K

Alan,

Thank you. Very informative.

As you know,the problem is that the victim/defendant will be in a state of shock and fear of being arrested in the immediate aftermath, and he will have a tendency to talk too much [logorrhea] in spite of knowing better.

There will also be a tendency to "want to tell it all" to exculpate his actions out of righteousness.

In many occasions, upon arriving at the scene of a fatal accident, I have found the driver we insured, shaking and talking up a storm with the police, and being charged with vehicular homicide as a result.

In my cases I have found that most people under the stress of the event, have given rambling statements to the police.

Another problem is the police officer writing down information totally contradictory to what was said, or omitting vital information from the written statement.




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Van Canna

Yet another problem is that the officer starts with an informal chat with you[before mirandizing you], about what happened, then , based on what he hears, he decides to place you under arrest.

Can he get away with it?

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Van Canna

[This message has been edited by Van Canna (edited November 13, 2001).]

Van, sensei

Your statements about the statements made by people in these situations pretty much sums up the problems defense counsel are faced with.

Many times the client will honestly not believe that such statements were uttered; it is almost as if they were in a hypnotic state.

Your second post concerning statements made to a police officer, after the officer engages in conversation with the defendant, the defendant makes statements, the officer formally places defendant under arrest.

Yes, the officer can get away with it if he does not reasonably cause the defendant that the defendant is not free to leave.

If the detainment (a/k/a seizure, restraint, or other conduct or speech consistent with causing the defendant to believe he is not free to walk away is present, then the defendant could prevail in a motion to quash or to delete the statement from admission.

Detainment of this sort, although not a formal booking, arrest or charge, may give rise to Miranda rights.

Police officers are routinely instructed to start a friendly dialogue and make the defendant feel confortable. If the defendant spills his guts out in friendly chatter, with no reasonable basis for the officer making the defendant believe that he is accused or apprehended, then freely given statements made may be used to form the basis of arrest, without first giving Miranda warnings.

We had a District Court charged with OUI, in this area recently and he was his own worst enemy.

Sitting for years in a District Court, should have made him an expert on what to do or say but he didn't.

I suppose that human nature is such that our defenses go awry under such stress to the same extent that they do in a fight or flight situation, and we react exactly as you stated in this post, and as you teach in self-defense confrontations.

Alan K

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote

Thanks for clearing this up. This can be a lethal trap for the unwary who is reeling from shock and subconsciously welcomes the officer's friendly tone cutting through fear and possibly guilt. Also there is that feeling that if you cooperate the police will not charge you.

And, as you say, I have had so many cases where the defendant, while in the fog of the aftermath, made many ridiculous statements with no sense to them at all, and which he could not recall making 24 hours later.

That always caused charges by the police which were difficult and expensive to overcome at probable cause hearings/trials with experts and attorneys' fees skyrocketing.

Some of our scenarios training should include creating extreme adrenaline dumps and "friendly interrogation" tactics immediately afterwards.

Problem is that the numbing shock of the moment will turn us into different persons than we think we are.

This will never be totally understood.

A good example is the footage of a real fight as posted by Dana.



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Van Canna

Alan,

One of the questions posed by readers, is that if you have the right to remain silent, and you exercise that right by stating you want to talk to an attorney, are you still required to submit to an interrogation/statement, recorded or videotaped, albeit with your Attorney present?

Or can the Attorney submit a written affidavit to the police without you having to be grilled?

Van, sensei

Your last question poses a question that is difficult to answer even for experienced criminal defense attorneys.

The right to remain mute or silent is based only on the theory that the 5th amendment guarantees the right to persons not to incriminate their selves.

The balancing act comes in to play with the state having the right to investigate an alledged crime, the duties of citizens not to withold evidence, and to answer questions in an investigation which are not self incriminating.

In most instances the state would have the right to inquire.

The attorney must weigh the question posed and advise the client.

The DA can file motions with the Court to Compel answers, and if ignored again can result in contempt of court rulings.

We see this quite a bit in cases where investigative authorities seek to compel media reporters to disclose their snitch, or when a defendant acts like in the McCarthy hearings by pleading the fifth on answering his correct name and address.

As you have tried to point out, people should automatically assert their rights no matter how innocent they feel, and no matter how simple the statement that you give seems to you.

Let a dispassionate attorney make the decision based upon his/her interview with you, and the story he hears from the prosecution. The attorney should be present at all times; it is cheaper to do this now and a matter of good self defense.

In summary the right to refuse to answer questions in a police investigation is predicated on the right to avoid self incrimination. What questions that if answered, may be incriminating are best determined by an attorney, and lastly, that attorney should be present in any conversation with the authorities.

Once in custody and Miranda warnings are given, in most instances, even casual conversations with PO's guards or cell mates might be damaging.

Alan K