This column focuses on demystifying legal defense issues so members better understand what they may face if they use force to defend themselves or their families. This month, we discuss trial testimony.
Traditionally, criminal defense attorneys suggest clients should not testify in court, hoping instead that the presumption of innocence and holes in the State’s case will lead to acquittal. When an armed citizen uses force in self defense, he or she has committed elements of a violent crime, and justification for those actions needs to be explained to a jury’s satisfaction. We asked–
When representing a client who has used force to defend themselves, what has been your experience if the defendant testifies or does not testify at trial?
Our affiliated attorneys had much to say, so we ran the first half of the responses in our May journal. The second half of their commentaries run this month.
John I. Harris III
Schulman, LeRoy & Bennett PC
3310 West End Ave., Ste. 460, Nashville, TN 37203
615-244-6670 Ext. 111
https://johniharris.com/ • https://slblawfirm.com/john-i-harris-iii/
This question requires that the reader consider that there are many different types of self-defense laws in this nation. In Tennessee, for example, the law of self defense is primarily classified as an “affirmative defense” that is a “justification” which can excuse criminal responsibility if the elements of the statutory defense are met. In Tennessee, that defense and its elements are primarily contained in Tennessee Code Annotated §39-11-611.
Tennessee law does not require that the issue of self defense be considered by the arresting officer, prosecuting attorney or even the trial judge. It is only required to be considered by the jury since it involved predominately factual issues. Now, that does not mean that an officer or prosecuting attorney is prohibited from deciding whether to prosecute based on the self-defense issues but they are not required to do so.
Under Tennessee’s self-defense law and depending on the circumstances, the burden is on the accused to raise the issue of self-defense in the criminal trial. That does not require that the accused be the witnesses introducing such testimony or evidence but the defense attorney would be tasked with presenting a witness or other evidence to establish the factual basis for the self-defense claim. Of course, if there are no witnesses or other evidence (e.g., video) then it is sometimes necessary for the accused to testify.
In situations that I have handled, the individual who was forced to use self defense has testified in every case so far. It is not required, but depending on that individual and their ability to testify, it can be powerful and effective testimony. It also eliminates the question that some jurors may have of “If it was really self defense, why didn’t he testify?”
Donald O. Chesworth
Tully Rinckey PLLC
400 Linden Oaks Suite 110, Rochester, NY 14625
585-899-1423
https://www.tullylegal.com/
As a former prosecutor and currently acting on behalf of defendants, I believe that one who uses deadly physical force should testify to explain why the force was used. Declining to testify will leave the jurors or the judge on their own to try to figure out what was going through the mind of the defendant.
On the other hand, if the defendant has a criminal history of any kind I would consider the nature of the criminal history, how recent it is and if it will damage him in cross-examination.
In either case the defendant needs to be properly prepared. It is my belief that silence is treated as an admission of guilt in many cases.
Larry P. McDougal
The Law Office of Larry P. McDougal
809 Houston St., Richmond, TX 77469
281-238-8500
https://www.larrymcdougal.com/about/larry-p-mcdougal-sr-/
When I studied at the Trial Lawyers College, Gerry Spence always told us to never, ever let your client testify. Yet in self-defense cases, often your client is the only other witness and the only one who can tell the story. In these cases, it takes lots of preparation before you can allow your client to get on the witness stand. These are done on a case by case basis. A good prosecutor can do a lot of damage with a scared defendant once they take the stand. Yet, juries want to know what really happened; you need the jury to place their self in the client’s shoes and say, I would have used my weapon, too.
There are some clients who just make horrible witnesses and every effort is made to keep them off the stand. If your client does not come across as credible then the decision becomes even harder.
The truth is most self-defense cases are resolved in Grand Jury. There your client almost always has to testify to get no billed, but there are those that do go to jury trial.
In Texas, once we put on any evidence of self defense, the burden shifts to the prosecution to prove beyond a reasonable doubt that your client was not justified in using force including deadly force. As stated earlier, sometimes your client is the only witness who can raise the issue of self defense and they must testify.
James E. Hensley, Jr.
Hensley Law Firm, PA
P. O. Box 11127, Conway, AR 72034
501-327-4900
https://jhensleylaw.com
Typically, having a client as a criminal defendant excludes his/her testifying. It is too easy to be abused by the prosecutor. While prosecutors are called to do justice, often, they are hired guns who attempt to win at all costs.
We must remember though that many of our clients are law enforcement. Garrity allows us some flexibility to protect a client, but if your client choses not to talk, he often joins the ranks of the unemployed. So, what to do?
If your client is looking at incarceration, he should choose his/her family and freedom over being an officer. I am a former officer. Too often, when I made an arrest, I was able to quickly rid my case of such meaningless issues like Miranda and presumption of innocence. In fact, the 4th, 5th, 6th & 14th amendments were much ado about nothing.
After all, I said the Miranda warning: You have a right to shut up and plead guilty. Anything you say will not matter because I know you did it. If you want a lawyer and are too poor to pay for one, we will give you a very experienced but tired and overworked lawyer with a drinking problem and no friends.
Why would I carry this attitude? Because I knew the government paid for the prosecutor, the cops, judges, buildings, law schools, crime labs, and all the time and resources possible. Sadly, that’s how it still works in many jurisdictions.
What does the defendant have? They have US and the Constitution. One person against the government which should be marginalized at every opportunity. In fact, I believe every prosecutor should be a public defender before joining the ranks of lordship. But I digress.
Every case is different, but I begin representation with the simplistic proposition that, “If no one talks, everyone walks.” All juries want to hear from the accused but that’s not how the law works. The government bears the sole burden to prove their case. Make sure you hammer that throughout your case. And remember that even when your client does not take the stand, he is still testifying!
Spend lots of time getting your client prepped for the hearing. Jurors are watching your every move. They will see your client on the phone, eating, how he talks, walks, drives, hair length, tattoos, facial hair and his hands and nails. Old clothing is fine. Dirty clothing is not. Slumping is avoided. Quiet confidence is expected.
Remember that jurors want a show. You must be the star attraction. On your words alone, you command compliance. Your confidence is soothing. You should have a tailored suit that fits. Your shoes should be clean and shined. Long hair is for hippies. You should look professional and traditional. No facial hair is necessary. You should have clean and white teeth. Your nails should be manicured. Your jurors expect to see what they will never be: prepared and confident. Speak clearly and with authority.
Even though your client will not take the stand, he will nonetheless testify. And you should be the confident, professional instructor and guide that everyone in the court will be watching.
Love being a part of ACLDN. Each of us should read the oath we took to become a lawyer regularly and read Armed Citizens every month. We are brothers and sisters. Without defense attorneys, there is anarchy.
Timothy A. Forshey
Timothy A. Forshey, P.C.
1650 North First Ave., Phoenix, AZ 85003
602-495-6511
http://tforsheylaw.com/
Vehemently, yes! Most criminal defense lawyers are loathe to put their client on the stand in most cases—the fifth amendment is generally NOT number five in order of usefulness! Self-defense cases, however, are different. Despite the fact that the State (here in Arizona, thanks again to the late Harold Fish) has the burden of proving a defendant with a colorable self-defense claim was NOT acting in fear for the imminent loss of a human life, I still feel adamantly that it is hard to expect a jury to understand that was exactly what faced my client unless we can get my client to patiently and honestly explain that to the jury in his or her own words (and often, tears). This requires a significant amount of time to prepare the client—what we often refer to as “sandpapering.” Smoothing out and de-splintering if you will. This will also involve some very aggressive faux cross-examination from other role-playing attorneys hell bent on preparing the client for the worst on the stand as inoculation against the worst-case scenario: real-life prosecutor’s best efforts. We will make sure you are ready by the time of trial to tell your story in a believable, and hopefully impenetrable manner.
If you don’t take the stand, and you lose, you will have a LOT of time on your hands to Monday morning quarterback the decision. I, for one, would not want to look back on that decision with that regret.
Craig R. Johnson
Anderson, Fife, Marshall & Johnson, LC
2500 N. University Ave., Provo, UT 84604
801-458-2285
https://craigjohnsonlaw.com
Each case is unique and different. That being said, in almost every self-defense case, I would advise my client to take the stand and testify in his own defense. The one exception might be if he has criminal history of violence in other cases that may come in to impeach his credibility if he were to testify.
Batting Clean-Up
The Attorney Question of the Month column in March and April journals generated one final response that arrived after our May publication deadline, so we’ll fill the balance of this page with this commentary. If you missed the original question, it was an interesting one and we suggest you return to the March and April editions to study all of the responses.
Before posting the question, we had been told of instructors advising students to divest themselves of knives, pepper spray, second or back up guns and entrust them to another person before police arrive and, worried that divesting oneself of other weapons would likely result in obstruction or tampering with evidence charges, we had asked —
How does your state law or case law address removing weapons that were not used in the self defense act but that were carried on one’s person?
Mark Nicholson
Law Office of Mark Nicholson
6284 Rucker Rd., Suite M, Indianapolis, IN 46220
317-667-0718
https://www.marknicholsonlaw.com
First, it is important to note that the issue of removing weapons in self-defense cases is highly fact sensitive and each case is evaluated individually. However, there are some general principles that apply in Indiana’s legal system.
According to Indiana state law, individuals have the right to use reasonable force, including deadly force, if they believe it necessary to protect themselves or others from imminent threat or harm. This includes the use of weapons that one may possess on their person. In such cases, it is crucial for individuals to act swiftly and decisively in order to neutralize the threat.
However, as mentioned in the question itself, removing weapons after a self-defense act can raise suspicion among law enforcement officials. They may perceive it as an attempt to cover up evidence or justify one’s actions retrospectively. Therefore, it is advisable for individuals not to remove any weapon used or carried during a self-defense situation unless absolutely necessary.
In fact, not removing any weapons post-incident and allowing them to be seen by law enforcement officers can actually strengthen one’s case for self defense. It serves as tangible evidence that shows all possible precautions were taken before resorting to using deadly force. It also proves that there was no premeditated intention or malicious intent on behalf of the individual involved.
Moreover, “heat-of-the-moment” situations where an individual believes their life or safety is at risk may not allow for a lot of time for rational thinking and meticulous actions such as carefully removing weapons post-incident.
In conclusion, Indiana’s approach towards removing weapons in a self-defense situation – it is better to let law enforcement officials see all weapons present at the scene, even if they were not used during the act of self-preservation. This can serve as crucial evidence in showing one’s innocence and justifying their actions under the state law. Remember, self defense is a fundamental right, but it comes with a great responsibility to act wisely and swiftly in life-threatening situations.
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Thank you, affiliated attorneys, for sharing your experience and knowledge. Members, please return next month when we will explore a new question.