Attorney Question of the Month
This month, we conclude a topic of discussion that we started several months ago with our affiliated attorneys when we asked–
Suppose that a member keeps an extensive collection of legal rifles, shotguns and handguns locked in a safe, and uses his or her carry gun in justifiable self defense.
Can the gun collection be discussed in a trial to suggest to a jury that the armed citizen is a blood-thirsty monster, not a good member of the community?
How would a prosecutor or plaintiff’s attorney introduce that line of reasoning? If defending the member, how would you counter the accusation if it arose?
Our affiliated attorneys have provided a lot of great intel on this topic. If you missed the foregoing months, you’ll also want to read the responses from October and November then pick up the discussion with the responses below.
Edward J. Zohn
Zohn & Zohn LLP
7 Mount Bethel Road, Warren NJ 07059
The fact pattern states that the member uses his or her firearm in “justifiable self defense,” but I must assume that the member is being civilly or criminally prosecuted for the effects of this use.
Therefore, this is primarily an evidence issue, and evidence rules differ from state to state. Does the evidence of other firearms meet the threshold relevance requirement? Even if relevant, is it unduly prejudicial? Can character evidence be admitted by the plaintiff’s attorney or prosecutor if the character issue is not raised by the defendant first?
If defending the member, my objective would be to prevent the evidence from being admitted based purely on the evidence rules and precedents.
Kelly & Chapman
PO Box 168, Portland, ME 04101
The obvious first question is: how does anyone know you have a firearm collection? If the incident occurs somewhere other than within the residence, or even in the residence at a distance from the safe, probable cause to search will be questionable. A motion to suppress would be appropriate to raise the issue. “Not talking” before consulting with counsel is a good way to keep from sharing irrelevant information. Generally, you will want to avoid an entire collection admitted into evidence. Firearms are likely to be damaged or lost, and might be difficult to get back even if you win.
Important point–the collection MIGHT provide evidence of the plaintiff’s motive. In short, it might provide both an explanation for why an intruder was entering or attempting to enter the house, and what the consequences MIGHT be if he was not stopped. Bad guys often steal guns.
The usual way to keep irrelevant information out of a jury’s ken is a “motion in limine,” forbidding mention of or even reference to the firearm collection. The basis would be Rule 403–evidence whose probative value is outweighed by the prospect of “unfair prejudice.”
Voir dire of the jury should be conducted with questions designed to keep out, or at least expose, jurors with a belief that possession of firearms equals propensity for violence. If not removed for cause, those jurors would be the subject of peremptory challenge.
Of course, the existence of a collection is probably relevant in a burglary case. The value also might be. The way it became known outside the household also might be. The specific firearms would probably be irrelevant, unless the defense somehow “opened the door.”
Note that many firearm dealers, especially Class III dealers, are felt by most jurisdictions to have a reason to carry a firearm. A business inventory, once again, might provide evidence more useful to the defense than the prosecution.
At the end of the trial, the judge might give you an instruction as to “propensity for violence,” and that a firearms collection alone is not that.
Gene Anthes, Jr.
Gunter, Bennett & Anthes, P.C.
600 West 9th Street, Austin, TX 78701
In response to your recent question, absolutely a member’s gun collection and love of guns in general would be used against him by a prosecutor or plaintiff’s attorney. In fact, membership in this very organization would likely be brought up. A skilled prosecutor or civil plaintiff’s attorney would simply ask the accused on the stand about it. I can envision a line of questioning as follows:
Prosecutor: “Mr./Mrs. Armed Citizen, isn’t it true that you have a vast gun collection?”
Mr./Mrs. Armed Citizen: “Yes, I believe in the Second Amendment.”
Prosecutor: “Isn’t it also true you’re a member of the Armed Citizen Legal Defense Network?”
Mr./Mrs. Armed Citizen: “Yes, I believe in being educated about the Second and Sixth Amendment.”
Here’s where counsel for Mr./Mrs. Armed Citizen can be critical. When called to the scene on a recent home-invader incident I asked my client about his experience with guns. I learned that he kept a blog about self defense. We immediately shut this down so that the press could not get it (part of a good defense is managing the press surrounding your client).
Had the case gone to trial (client was no-billed by the grand jury) we would have spent hours preparing for his testimony. I would have asked him about his gun collection and membership in ACLDN before the state could. I would have him explain his thoughts behind gun ownership and why he is a member in such a way as to sound like an educated and rational person who simply collects guns and puts an emphasis on self defense. I would also question the various police officers involved about their guns (in my experience, most police officers are gun aficionados). When picking a jury I would also ask the panel about their experience with guns and groups like ACLDN. I tried a manslaughter case a couple months ago with great self-defense issues and tried to get as many CHL holders on the jury as I could.
As an aside, someone I know has a very strange gun collection. He likes to collect guns used by Nazis in WWII. He also had thousands of rounds of ammunition. I mean THOUSANDS; as in, if the world goes down the toilet, I’m going to his house. When asked about it he has very simple explanations. He’s simply a WWII buff and collects all WWII memorabilia. Apparently, the Nazi guns he collects are very rare and worth a lot of money. As for the ammo, he stumbled across an estate sale where the family was selling the deceased’s ammo for literally pennies a round. It was too good to pass up.
In short, the key is to get ahead of the questions. Never try to hide what may sound like bad testimony from a client. Keeping it out of the press is one thing, but if they think you are keeping something from them a jury will never believe your client. A skilled defense attorney will have his client speak to these things in advance.
Jerold E. Levine
Law Offices of Jerold E. Levine
5 Sunrise Plaza, Ste. 102, Valley Stream, NY 11580
If the prosecutor wants to paint the defendant as a gun loony, he may start at the time of arrest. Public statements will be released either from the DA or the police indicating that a “cache” or “small arsenal of weapons were confiscated” from the defendant. If there were any ARs or similar guns, read that “military weapons.” The intent will be to try and poison the potential jury pool (local community) right from the start. Federal prosecutors have been infamous for doing this.
Regarding the trial, the defense attorney might apply to the court for a pre-trial order. Such an order often is sought to restrict in advance what the prosecutor can do at trial, and sensible arguments can be made for the defendant. However, the purpose for seeking the order here really is not to keep out the evidence of other guns, because in the real world of criminal trials that evidence most likely will be admitted. The real purpose behind making the application is to alert the judge to the defendant's concerns, which may make the judge sensitive to the issue and cause him to prevent the prosecutor from going too far afield at trial.
Regarding how the evidence comes in, the prosecutor can use various questions, such as asking the investigating officer, “What did you find when you arrived at the scene?” There really is nothing objectionable about that question, and it permits the prosecution witness to say a whole lot of things, such as: “A weapons safe. We followed normal procedure and vouchered all the weapons.”
- As for defending against it, this is where the real artistry of the defense lawyer can shine. There are so many angles of attack that they cannot be listed in a brief statement here, but, some areas include introducing evidence about:
how commonly people collect guns,
- the defendant’s personal gun story (began target shooting in the Boy Scouts at age 12 and earned the Rifle Merit Badge, joined the High School rifle team, teaches hunter safety courses, etc.);
- the defendant’s military service and training, etc.
Essentially, the defense lawyer will do everything possible to normalize the defendant’s image and his ownership of guns. And if the prosecution was obvious in its attempt to make the defendant look like a loony, effective rebuttal by the defense lawyer actually can make the prosecutor look mean and grasping.
Jurors usually react negatively when they see an over-zealous prosecutor obviously trying to smear a defendant; particularly where the defendant does not objectively seem like a bad person.
A big "Thank You!" to our affiliated attorneys for their contributions to this interesting and educational discussion! Please return next month for a new Question of the Month.
To read more of this month's journal, please click here.