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Lisa SteeleSo let’s assume you get into a self-defense situation. You stop the aggressor by injuring him or her with a lawfully-owned-and-carried weapon. You do not seem to be in any danger from the now-stopped aggressor. There are no confederates in sight.
And you just walk away and call your lawyer from the safety of your home an hour or so later. What’s wrong with doing this? Why is your attorney likely to tell you that you’ve been an idiot?
Looking like the Bad Guy
The wicked flee when no man pursueth: but the righteous are bold as a lion.
Sometimes, when an attorney writes or talks about self-defense, we start with the assumption that the defender has been arrested and charged with a serious felony and talk about how to act in ways that improve your defense, or at least don’t make it worse.
Attorneys are pessimists by nature – we don’t normally see the cases where the police respond to the scene, look at the situation, decide the shooting was justified, and do not arrest the defender.
As defense attorneys, we are also less likely to see the cases where there has been an arrest, but the prosecutor either decides not to pursue charges or the grand jury decides not to indict –
the case never goes to a plea or to trial.
Cases where the defendant wins on all counts never make it to the appellate courts and never make it into the law books.
We’ll assume here that you have not just committed the perfect crime – that there were witnesses, or a security camera, or some other information that can lead police to your door.
We’ll start with how not calling the police can affect whether you are arrested and prosecuted for your act, which you felt was lawful self-defense.
Certainly, you shouldn’t depend on the police recognizing you as “the good guy”, not investigating the case as an assault or homicide, and not arresting you.
But police and prosecutorial discretion is a real thing, and something to discuss with an attorney familiar
with your local prosecutors and your local police department when you think now about what you might want to do should you ever be forced to use a lawfully-owned-and-carried weapon in self-defense.
Once police start thinking of you as the bad guy and your self-defense shooting as a crime, a certain amount of tunnel vision and confirmation bias tends to creep in.
This is normal – the detectives will tend to focus on things that support their case and discount or ignore conflicting evidence. Ambiguous things will tend to be seen in the worst light. And that can affect how the investigation proceeds.
From the perspective of police and prosecutors, good guys call the police. Bad guys flee. If you run away, you look more like a bad guy than like the good guy acting in self-defense.
Does that mean your case is doomed? No, but it may be a bit harder. You may need to explain, likely with the help of your attorney, why you ran and did not report the aggressor’s assault – whether you were afraid the aggressor had friends, or were shocked, or scared, or needed medical help yourself.
There is a balance between protecting yourself in case you are prosecuted and avoiding being prosecuted by not looking like the bad guy, and it will depend on what happened in your case. There is no right answer here – there will be your answer in the heat of the moment.
Consciousness of Guilt4
If you walk away, your actions after the crime might be admissible under a rule called “consciousness of guilt”.
5 The basic idea is that the State can offer evidence of your actions and the jury can decide whether they suggest you have a guilty conscience.
One of the most common things to come in under consciousness of guilt is “flight” evidence – when you run away from a crime scene; making false statements about the crime; and concealing or destroying evidence. Like all evidence, the prosecution must show that the consciousness of guilt evidence is relevant; material or “of consequence”; and more probative than prejudicial.
(See Lifestyle [Link to that article] for a more detailed discussion of these concepts.)
Some of the questions a trial court might consider would be whether you were reasonably afraid that the aggressor or his/her associates might continue to harm you, whether you were aware of the extent of the aggressor’s injuries, whether you could summon help in safety, whether there were others nearby that could help you or the aggressor or could call for help, and so on.
Flight normally includes leaving the crime scene completely, but it can be an issue in self-defense cases when the defender says that he retreated (as required by state law), but that he didn’t flee. The Connecticut Supreme Court cautions trial courts in this situation, but says that introducing flight evidence is not inherently unconstitutional. State v. Luster, 279 Conn. 414, 424 (2006).
Turning an Assault Case into a Homicide Case:
A bigger problem if you delay calling 911 or just walk away is that your action may lead to the aggressor’s death from the wounds you inflicted. If you wound an aggressor, walk away, and he dies from a wound you inflicted, and there is no intervening cause (negligence by an EMT or ER doctor, for example), then this may be a homicide case, not an assault case.
Homicide cases are much more serious, both in how they are investigated, whether the prosecution or police are willing to not charge you, and in the possible penalties if the jury decides your actions were not self defense.
A live assailant, who may have a long criminal record, is likely less sympathetic to jurors than a dead assailant’s parents, siblings, and children in the audience at your trial.
A live assailant showing his scars may be less sympathetic than autopsy photos and the cold, hard, deformed bullets pulled out of the body and entered as evidence.
Yes, a live assailant may lie about what happened, but your call for help for someone who tried to hurt or kill you speaks well of your character.
Homicide detectives and medical examiners may hear a less sympathetic story from a body left to bleed to death.
Often, under the law, if you put someone in peril, you have a duty to rescue them from that peril. But does that duty extend to imperiling someone by an act of self-defense?
As one author asked “When self-defense is proven, the [defender] is justified in taking the attacker's life.
How can the same [defender] be held criminally liable for failing to render aid to the attacker later, and for the injuries inflicted justifiably by the [defender] while defending herself?”
7 In Montana, at least, you would only be criminally liable for the aggressor’s death if you injured someone in self-defense and your failure to summon aid was the cause in fact of the aggressor's death, not the justified use of force itself.8
There are no magic words and no script to memorize. Every situation is going to be different. You are going to be very emotional – somebody just tried to hurt or kill you after all.
Try to keep things short and to the point. Key points may be where you are (so police and an ambulance can find you), that someone attacked you and you defended yourself, and that you need police and an ambulance at once (given the flight-or-fight hormones running through your system, you may be hurt and not know it).
If the aggressor or any associates have run away, try to give a description with as much detail as you can recall.
(You may make mistakes, people are often bad at guessing height, weight, age, etc., but do your best.) You may want to describe yourself so the dispatcher can tell responding officers that you are not the aggressor – especially if you are holding the aggressor at gun point.
Otherwise, try to say as little as you can.
Don’t get into details about the incident itself – your memory about distances, number of shots fired, and even the order of events may turn out to be wrong because stress has bad effects on perception and memory.
If you are charged, the prosecutor may believe that your good faith mistakes are instead attempts to lie, and may make that argument to a jury.
In Massachusetts, custodial interrogations are normally recorded – ask to make sure this is being done if you decide to waive your Miranda rights and talk to police. (See Miranda [Link to that article] for a more detailed discussion of these concepts.) In Connecticut, interrogations are not required to be recorded – you can ask that this be done. Witness interviews are normally not recorded in either state.
What if I say the wrong thing?
There are no magic words. Be brief. Be honest. And let your attorney do his or her job in explaining if you mis-speak out of fear, shock, and stress.
What if the aggressor is still dangerous?
Get to a safe distance first.
And remember that being on a cell phone is bad for your situational awareness.
If you do delay for any significant amount of time, be able to explain to your attorney why you felt you had to go that far, or wait that long, to safely call for help.
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