Attorney Question of the Month
Last month, we started a new topic of discussion 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?
There were so many responses that we carried this topic forward into this month. If you missed last month, you’ll also be interested to read the comments at https://armedcitizensnetwork.org/october-2017-attorney-question and then pick up the discussion with the responses below.
Arthur R. Medley
The Medley Firm
141 N St Andrews Street, Dothan, AL 36303
The only way I see a prosecutor getting into the fact that an armed citizen has an extensive collection of guns locked in a safe is in a situation where our armed citizen lies or exaggerates about the self-defense encounter by saying something along the lines that “I can’t believe I shot the assailant; I’ve never handled a gun before.” Then the collection goes to knowledge about guns in general and the ability to handle them and being familiar with them as well as impeachment, where impeachment is a pretty wide-open proposition. This all presupposes that the prosecution has any knowledge of the gun collection. If it’s locked up in a safe, obviously not involved in a self-defense shooting, then how does the prosecution/law-enforcement ever get a search warrant to even justify looking for a collection? Bottom line, don’t lie, but don’t run your mouth. You have the right to remain silent, demonstrate your ability to remain silent.
As for the defense in a criminal case, there are many waves of attack to be directed at this evidence. First wave, how did they find it? Valid search warrant? Second, if being offered as evidence, the question is evidence of what? How is this relevant to the perception of immediate danger and the need to defend oneself or another? Third, this is evidence of other bad acts which are generally excluded in criminal cases because such evidence cannot be the basis upon which to support guilt. So how did a gun collection at home in the safe make you shoot somebody? Answer, it didn’t, which cycles back around to the relevancy issue.
Even in a civil case the relevancy issue still jumps out. How are guns tucked away under lock and key relevant? I don't see that they are relevant and I don’t see this evidence coming into a trial, criminal or civil, and being used against the armed citizen.
From the perspective of Indiana law, I believe the answer to this question is relatively straightforward. I do not believe that a prosecutor or plaintiff’s attorney in Indiana would be allowed to introduce evidence of any extensive collection of legally owned firearms under evidence in the scenario provided. In Indiana, our courts have said that evidence of firearms possessed by defendant, but not used in a purported crime for which the defendant is charged, generally should not be introduced because the evidence is irrelevant and highly prejudicial.
Please keep in mind that this response is referring to firearms not connected with the purported crime or self defense. This is not to say that it wouldn’t be possible for a prosecutor or plaintiff’s attorney to argue for the admission of evidence as support for corroboration of some other factual dispute, but I believe under Indiana law it would be highly unusual to expect that evidence of a gun collection would be heard by any potential jury. This would apply to both a civil and criminal case.
To ensure that the evidence of a gun collection is not introduced, one would expect defendant’s attorney to file a motion in limine or other pretrial motion to preclude the prosecution in a criminal case or plaintiff attorney in a civil case from mentioning or attempting to introduce evidence of any gun collection.
Kevin E. J. Regan
The Regan Law Firm, L.L.C.
1821 Wyandotte, Suite 200, Kansas City, MO 64108
Under Missouri or Kansas law, where I chiefly practice, competent defense counsel would spot this issue and file a Motion in Limine, which is Latin for “Motion to Limit” or exclude the evidence of the client’s firearms collection.
The legal argument would be that the other firearms had nothing to do with the case at bar, or the instant case, involving the defendant’s use of justifiable force.
The attorney would argue to the court that the prejudicial value of these other firearms clearly outweighs the probative value of them in this case.
They were remotely locked in a safe, far away from the occurrence at hand. They have absolutely nothing to do with the commission of the acts that are at issue in this civil or criminal case.
Plaintiff’s counsel in the civil case or counsel for the prosecution in the criminal case would only be offering those items to unduly prejudice the jury against the defendant or citizen accused.
It is my belief that, based on the facts given in the question, these other irrelevant items should be excluded from evidence by a conscientious judge.
The Law Offices of Eli Wainman PLLC
114 W. Magnolia St. Ste 400, Bellingham, WA 98225
The prosecutor or plaintiff’s attorney can certainly try to have defendant’s gun collection introduced to the trier of fact, arguing e.g. that the arsenal kept by defendant indicates a preexisting desire to do violence, or a habit, or a disorder, or whatever - my point is that plaintiff certainly is free to make the argument that the gun collection is relevant to the elements of the charge or the cause of action; it’s what lawyers do! The real question is: would it work? That’s more complicated.
Defense counsel should object to any mention of defendant’s battery of guns as irrelevant and excessively prejudicial to defendant. Defendant should make a pretrial motion to exclude any evidence of a gun collection, and to get a ruling on that evidentiary question, so as to avoid unpleasant surprises at trial.
The court would hear counsels’ arguments for and against examination of such evidence, and make a ruling which would become part of the record. In the event that defendant’s motion is granted, plaintiff will be prohibited from introducing evidence on the subject. If the motion is denied, at the very least the issue will have been preserved for appeal. If defendant is convicted or found liable, the appeals court can then be asked to review the trial court’s ruling on the issue for abuse of discretion.
In all likelihood, such a ruling by the trial court will be upheld by the court of appeals, as the standard of review is quite deferential to the trial court on such questions. Why? Besides the unlikely event that the trial court is found to have abused its wide discretion, usually the evidence in question isn’t really that prejudicial.
After all, and this would again be on defense counsel to argue to the jury, the existence of a gun collection safely locked up elsewhere has zero relevance to the establishment of whether the use of force was reasonable in a claimed self-defense shooting.
Attorney & Counselor at Law
700 Camp Street, New Orleans, LA 70130
Q. Suppose that a member keeps an extensive collection of legal rifles, shotguns and handguns locked in a safe. The member uses his or her carry gun in justifiable self defense.
A. If it is justifiable, then hopefully it would not get to trial. Most attorneys when hired early enough would meet with the district attorney to present reasons why bringing the case to trial would be a waste of taxpayer money.
Q. 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?
A. If the shooting took place away from the home, then the police would have no reason to search the home and seize the other guns as evidence. If it took place in the home then the guns may be seized or at least photographed. In Louisiana, the other guns would not be admissible to prove the character of the defendant, but may be mentioned in the case when the detective is explaining the total investigation to the jury. However, the defense attorney could and should file a pre-trial motion to exclude the mentioning of the other guns because of the fact that it could cause a juror to unfairly consider that as evidence of the defendant’s character.
Q. How would a prosecutor or plaintiff’s attorney introduce that line of reasoning?
A. The prosecutor would simply ask the detective about his investigation including whether a search of the house was done.
Q. If defending the member, how would you counter the accusation if it arose?
A. Countering evidence of a gun collection starts in jury selection. I would make sure to cut jurors who have a fear of guns or believe that a person does not “need” that many guns. I would select jurors who own guns for self defense and have a collection themselves. I would not shy away from it during the trial and in fact would highlight that the defendant had a collection and was well trained in using all of the firearms.
Additionally, I would hope that the client had taken a self-defense course where the use of deadly force was covered, showing him to be a responsible gun owner. Finally, I would request a jury instruction that instructed the jurors that they are not to consider other guns as evidence of bad character.
Kevin L. Jamison
2614 NE. 56th Terrace, Kansas City, MO 64119
Evidence of character is generally not admissible in court, unless the entire collection is relevant. I know of an elderly man who was selling his collection of over 200 guns. He was charged with being in the business without a license. The prosecution brought all the guns into court. He was acquitted.
I think it might come in during sentencing to show he is a gun nut. My response to that is “I am a gun nut.” I am a collector. I go through every single gun, why he bought it, for how much, why and what significance it has for him. I go through ammunition and why he bought that type of ammunition. I always do this in self-defense cases. Juries want to know “why?”
In a civil case there is more latitude to introduce character evidence, especially if punitive damages are involved. I would still try to keep the information out with a motion in limine to prevent mention of the collection. Failing that I would try to keep holophobes off the jury. This will make jury selection longer and more detailed. There is a limit to how well this will work.
I would introduce the safe. My client put this safe between his collection and the world. Once I have re-focused on the shooting itself I would hammer away at the evidence.
We greatly appreciate our affiliated attorneys’ generous participation in this interesting and educational column! Please return next month when we wrap up this discussion with our Affiliated Attorneys.
To read more of this month's journal, please click here.