This month’s question concerns witnesses at the scene of a defense shooting and comes to us from those involved in armed security for churches, although the question has broader implications. Police officers involved in shootings are rightly advised to wait for 48 to 72 hours before making a statement to investigators. This is well established. Armed citizens are similarly advised for the same sound reasons. 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?
Their thought-provoking responses follow–
James B. Fleming
PO Box 1569, Monticello, MN 55362
763-291-4011
http://www.jimfleminglaw.com/about-1.html
It is very common for family members, or others with a close affiliation to an individual involved in a self-defense encounter to be subjected to police questioning–about what they witnessed, about what they heard, and about what the defender said to them following the incident. However, a witness in immediate proximity to a violent encounter may be subjected to the same levels of detrimental impact on perception and memory from adrenaline dump as the defender, including false memories, memory gaps, time and distance distortions, and other adrenaline dump related effects. In order to protect a loved one, or other person, from being wrongfully charged with a crime for having had to defend themselves, it would be very wise for the witness to refuse to answer questions from the police until the witness has had the same opportunity as the defender to let the effects of adrenaline dump subside.
I have also had family members repeat statements to the police made by a defender in the immediate aftermath of a violent encounter that have later been proven to be seriously inaccurate, due to the impact of adrenaline dump on the defender’s own perceptions of events and memory. You are under no obligation whatsoever to relate to the police the substance of conversations you have had with the defender.
You have an absolute right not to speak to law enforcement at all. If you do decide to speak with investigators, I strongly recommend that you speak with an experienced criminal defense attorney before you do. You also have the right to have that attorney present while you are being questioned.
Your statement will be characterized as having been made by an eyewitness. Should you attempt to correct an inaccurate statement at a later point in time, your attempt may be characterized by the prosecution as an attempt to shield someone important to you from criminal or civil liability for having committed a violent crime. Therefore, it is very important that you be in a position to provide as accurate a statement as you can. That very well might not be immediately after the incident has ended.
John R. Monroe
John Monroe Law, PC
156 Robert Jones Road, Dawsonville, GA 30534
678-362-7650
http://johnmonroelaw.com
I would not have any more concerns about close friend eyewitnesses than any other eyewitnesses. Studies show, and my experience confirms, that eyewitnesses are not particularly reliable. Despite that, however, juries tend to put great faith in eyewitness testimony. So, the concern about any eyewitness is that he or she may not be reliable but may be believed anyway.
I would not recommend a shooter or other party try to “counsel” a potential witness. Any attempt to influence a witness could be either obstruction or witness tampering or both. Let witnesses say what they are going to say.
Anyone may seek to have legal counsel present when speaking to the police. If the police do not want legal counsel present, they may not get a statement at all.
Derek M. Smith
Offices of Smith and White, PLLC
717 Tacoma Ave. S., Suite C, Tacoma, WA 98402
253-203-1645
www.smithandwhite.com
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?
Witness statements tend to greatly impress juries, but as an attorney I can say that I have never, outside of active collusion by witnesses, seen witness statements that mesh and most of the time witness statements tend to be given to, and recorded by, officers with various biases and with differing, shall we say, work ethic. For example, I’ve seen 20-minute conversations reduced to a single topic sentence. I’ve also seen statements where the names of those involved have been so transposed and inconsistent as to make the statement worthless and, unless you have experience detailing stressful events, it can be hard to give a detailed and cogent story, especially to officers trying to get the job done ASAP.
If witnessed by family, 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?
There’s no real good answer to this other than, “It depends.” Give me one specific situation, I’ll give you specific advice. Change it a little and my advice might be very different. As a general rule though, if you are involved in a shooting never, ever should you tell witnesses what to do or say. Any possible good from that advise is vastly outweighed by the probability that an outsider, an investigating officer, or the witness takes your attempts badly.
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 while giving their statement to law enforcement?
With this, the answer is that it depends. Generally, only those in fear of criminal prosecution have the right to have an attorney present. Certainly, I can see that in some situations. A witness in a shooting could be in this situation, for example, say a fight occurred between spouse and the suspect and the other spouse shot the suspect in that conflict, but in other situations that isn’t going to be the case. It never hurts to ask though, especially if you are polite about it. Just know that a separate attorney will be needed for the spouse, i.e. one attorney for shooter and a separate and distinct one for the witness.
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A big “Thank You!” to our affiliated attorneys for their comments. Please return next month for the second half of our affiliated attorneys’ responses to this question.
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