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,