This month’s question concerns witnesses at the scene of a defense shooting. Police officers involved in shootings are rightly advised to wait for 48 to 72 hours before making a statement to investigators. Should the same 48 to 72 hour principle apply to witnesses closely involved in a defense shooting? We asked our Network Affiliated Attorneys for their thoughts on the following–
If a Network member uses deadly force in defense in the presence of family, close associates, or in a workplace or church, what concerns would you as the member’s attorney have about accuracy of witness statements given by those in close proximity to the incident?
If the incident is witnessed by co-workers or church members or others who are present during a defense shooting, would you recommend witnesses request time to gather their wits before giving a witness statement? How can the witnesses be advised of that protection without impeding investigation of the incident?
In a related matter, it is well-established that the person using force in self defense should have an attorney present when making a statement. May a spouse or child of a self-defense shooter be attended by legal counsel during questioning?
In this edition we present the final set of responses. If you missed the previous commentaries, please return to our November and December 2019 editions to read them.
Kelly & Chapman
PO Box 168, Portland, ME 04101
The major reason to wait a significant period of time is to recover from emotional trauma and sleep deprivation. If those two things are not present, you may lose exculpatory evidence if you wait.
I have had cases where evidence literally would have disappeared if my client hadn't done a look at the scene afterwards. In one case a crime lab tech's boot was dissolving a note that had been on the door, via the melting snow on said boot.
Regarding other witnesses–beware of saying things that could get you accused of “tampering.” Some kind of script is possibly the best way to go. This stuff isn't easy. My job is made easier by the fact that most of my clients are LEOs. Someone in the private sector won’t have that luxury.
S. Magnus Eriksson
20860 N. Tatum Blvd #300, Phoenix, AZ 85266
I have a different strategy in a situation like this. Assuming a justified shooting, I believe that the best way forward is for members to have a Network lawyer that they can call to the scene immediately. This contact should be made as soon as the member signs up and has access to the Networks’ affiliated attorneys. I recommend that the member have several lawyers to call, in case one is unavailable.
I believe that it is critically important that the member talk to the investigators ASAP, BUT after they speak to the attorney, assuming that the member is not in need of medical or emotional treatment. The reason being is to set the correct tone in the investigation for the reasons underlying this month’s questions. We will have little to no control over what witnesses say and when, therefore I would treat it as LE shootings are dealt with here in Phoenix, AZ.
Assuming a justified shooting, the officer involved cooperates with the investigation right away, but AFTER speaking to the union-provided lawyer. In a civilian shooting let’s say in a church, it is quite possible that witnesses will see the member shoot a perpetrator, but not realize that the member is the good guy and the perp is a bad guy. If such a scenario arises and the member insists on waiting a couple of days to cooperate, there is a good chance the member will be arrested for a serious crime.
In my experience it is easier to give the officers the correct description on the scene–the sooner the cooperation begins the better–and thereby setting the tone of the investigation. Also, by following the local LE routine, it is my estimate that the investigators will more likely treat the Network member the way they would a colleague they are investigating. It is my experience that cooperating with the officers right away will lead them to believe that the cooperator is not the perpetrator in nine out of ten cases. I know many jurisdictions function differently, and that my modus operandi here would not be advisable. But in Arizona, my recommendation would be to cooperate ASAP.
Jerold E. Levine
5 Sunrise Plaza, Ste. 102, Valley Stream, NY 11580
This is a subject that RKBA lawyers have written about previously, and the main problem faced by ordinary citizens is that their refusal to speak to police immediately can be used against them; regardless that police are treated differently after a shooting and are permitted to gather their wits. Since neither prosecutors or legislators are interested in promoting the idea that ordinary citizens need a wits-gathering period after a self-defense shock, the RKBA bar and other organizations should start raising the issue loudly.
It should become one of our regular talking points that a person involved in a self-defense shooting ought not immediately give a detailed statement, because the statement easily can be unreliable. There is good research work that has been done on this point, specifically, that while mild stress sharpens memory, significant stress impairs it. This demonstrates that the traditional concept–the closer in time to the incident, the more accurate the memory–often is false.
As lawyers, we are in the perfect position to start this public discussion, and to start giving legal cover to citizens who choose not to speak to police immediately after a powerful emotional shock. And in that discussion, it is essential that we obtain the support of mental health professionals and others who can verify the truth behind our advice.
John William Boelke
Boelke Law, PA
3495 Maebert Rd., Mims, FL 32754-4946
Your Question of the Month is actually two parts concerning the accuracy of eyewitnesses and the right to representation during questioning. According to Psychology Research (https://psychology.iresearchnet.com/social-psychology/social-cognition/eyewitness-testimony-accuracy/):
“Every year in North America at least 75,000 people are identified from police lineups and subsequently prosecuted. There are hundreds of documented cases in which mistaken eyewitness identification has led to false imprisonment. Although it is impossible to know how often eyewitnesses make mistakes, it is known that mistakes are made. For example, of approximately 8,000 sexual assault cases in which DNA was tested by the U.S. Federal Bureau of Investigation, the suspect was exonerated approximately 25% of the time. In most of those cases, eyewitness identification was the primary way in which suspects were identified. Furthermore, of 140 cases in which people have been falsely imprisoned and subsequently exonerated, more than 80% involved mistaken eyewitness identification.”
This means that at any given scene at least one in four witness statements (again “at least” is the operative term here with as much as four of five potentially) will be incorrect and could potentially result in a wrongful conviction. As a shooter it is well established that the trauma and stress of firing at and/or hitting an intruder or attacker will cause distortion and mistaken perception as well as faulty memory. The sudden flow of adrenalin causes an enormous change in the body that will affect all of the senses. This stress factor diminishes with removal from the scene and the passage of time. However, as stressful and traumatic as this is on the shooter it is equally as stressful and traumatic on a witness. Yet police insist on getting statements while the event is still “fresh” in the minds of anyone who was at the event.
No different than the shooter, the witness will also be subject to the same distortion and mistakes during the immediate aftermath, resulting in statements taken at that time that are highly suspect. Therefore, if I can recommend anything to someone caught in the aftermath of a shooting it would be to take some time before saying anything to recover from the shock, gather their thoughts and really consider what they saw in a calmer environment.
This leads to the second part of legal representation during questioning, whether shooter or witness. The law is very clear that once you are a suspect you must be read your Miranda rights which say, “everything you say can and will be used against you in a court of law.” Again, the operative term is “can and will” because that is what will happen. As a witness making a statement you are initially not considered a suspect so no rights will be read, you are merely aiding in an investigation. But if any statement you make reveals any wrongdoing then your statement will be referred for prosecution.
Bottom line is to always have an attorney present when talking to the police, their job is to close a case and they will document everything you say for later use. Later use does NOT mean the police can come to court and testify on your behalf; they are specifically prohibited from any testimony during prosecution other than what is uncovered during their investigation.
Mike and Alex Ooley
Boehl Stopher & Graves
400 Pearl Street, Suite 204
New Albany, IN 47150
We have significant concerns regarding the accuracy of witness statements provided immediately by witnesses in close proximity to a self-defense encounter involving deadly force. One must assume that witnesses near a deadly force encounter may have reactions to the deadly force incident much like an individual who actually was compelled to use deadly force. Unless a witness has experienced extensive stress inoculation, the witness is likely to react to the “fight or flight” circumstance of a deadly encounter in physiological and psychological ways that can create inaccurate perceptions of an occurrence. This reaction to a high stress encounter takes the form of an “adrenaline dump” that can include associated symptoms such as auditory exclusion, tunnel vision, heightened visual clarity, a sense that time is in slow motion or even happening faster than normal. Perhaps more importantly, a witness may experience memory distortion that would involve remembering things out of sequence, or even innocently reconstruct an event with things that did not happen.
These are only some of the possible reactions to a fight or flight encounter a witness might experience. These natural reactions are understandable and innocent in nature, but they could produce factually inaccurate statements that could be used against an innocent person who was compelled to use deadly force in a defensive encounter. These are also all reactions that support the conclusion that eyewitness testimony is not necessarily reliable evidence. It also explains why it is not a good idea to immediately discuss such things as distances, number of shots, and timing.
To combat the potential reactions that a witness may have to a “fight or flight” encounter, it would be advisable to take some time to gather his or her wits. This could take the form of undergoing at least one sleep cycle before giving a statement. Preferably, wait 48 to 72 hours before giving a statement. It also might be a good idea for the witness to write down his or her memory of the event on paper for an attorney that is representing the witness. This will protect the document under attorney client privilege and allow the attorney to help the witness separate fact from assumption.
There is no question that an attorney for the witness can be present for any statement the witness gives to law enforcement. Generally, no statement has to be given to law enforcement at all, and there should be no issue with having counsel present when a statement is given.
With respect to conveying the fact that a witness can and should take time to gather their wits before giving a statement, it would be best to educate and train spouses, family members and close associates regarding what to expect and how to react to a deadly force encounter well in advance of any potential encounter. In other words, now would be a good time to have that conversation–not after an encounter has occurred. It would be concerning to wait until after the self-defense encounter to communicate to a witness that they should not give a full statement until some time has passed. This approach has the risk of producing allegations of improper conduct that could be used against you by the police or prosecutor despite honest intentions.
Although the likelihood of a deadly force encounter is very low, the magnitude of harm, in terms of legal jeopardy is so great that we want to be prepared. That preparation includes understanding the immediate aftermath of a deadly force encounter and how to react so that an accurate history of the event can be documented and innocent defenders remain free. That preparation is appropriate for the responsible armed citizen, and his or her spouse and family members. In an ideal world, the witnesses should all be prepared to point out evidence and witnesses that might otherwise disappear and could provide exculpatory evidence. A discussion of the types of information an ideal witness should be prepared to provide would take up too much room for this article. We would suggest referring to the ACLDN videos you were provided when you joined the Network regarding issues related to the aftermath of a self-defense encounter.
A big “Thank You!” to our affiliated attorneys for their very detailed contributions to this interesting discussion. Please return next month when we ask our affiliated attorneys for their thoughts on a new topic.
To read more of this month's journal, please click here.