September 2012 - Pg 10–Attorney Question of the Month
Attorney Question of the Month
With the generous help of our Network Affiliated Attorneys, this column helps our members understand the world our affiliated attorneys work in, and demystifies various aspects of the legal system for our readers. Recently, we asked our affiliated attorneys:
If a Network member is involved in a self-defense incident, is charged with a crime and goes to trial, how likely is it that the prosecution will try to spin belonging to the Network as planning to shoot someone? What response would you make if you were defending a Network member and opposing counsel tried to discredit your client that way?
Schaffer, Black and Flores PC
129 W. Patrick Street #5Frederick, MD 21701
I think it is highly likely that this could become an issue. After 22 years in criminal law I would never put it past that certain subset of “win at all cost” prosecutors to spin anything they can to their advantage. We have all seen how a collection of guns becomes “an arsenal” or “a cache of weapons.” It is something that all Network attorneys should be prepared to counter at trial.
The defense would be to prevent the prosecution from even being able to raise the issue in the first place. Maryland Rule 5-411, which applies to both civil and criminal trials, states in part that “evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.” Now ACLDN makes it abundantly clear that they are not an insurance plan but I think that an analogy could be drawn and strongly argued to use this rule to preclude the prosecution from even raising the issue in the first place. The spirit of the rule is that a person should not be harmed for taking proper steps to protect themselves financially.
Should this argument not bear fruit with the judge then one must be prepared to explain the membership of your client in the ACLDN to the jury. At argument before the jury I again think the insurance analogy would be useful. After all just because you have car insurance does not mean that you plan to crash your car.
I also think it would be important to highlight the educational aspect of the Network.
During the trial if the other side raised the issue of membership, I would highlight the DVDs and other educational materials provided by the Network to show that the Network is strongly educational and my client took advantage of these opportunities to minimize the possibility of an incorrect response.
If this was a criminal case it would certainly be worth cross examining any law enforcement officers as to what training requirements they have and why they train. No officer will say on the stand that they train to make it more likely they will shoot someone. I believe that with the proper foresight and preparation you can paint your client’s membership in the Network in a positive light and turn it into a plus to show your client as a thoughtful and prepared individual.
Robert S. Apgood
2400 NW 80th St., #130, Seattle, WA 98117
I tend to attempt to analogize these types of questions to scenarios that the “average” juror understands. Aside from the examination and cross-examination repartee we employ in pursuit or attack of witness testimony, I suggest that the use of an argument that appeals to the juror’s own understanding helps to put the question/answer in a perspective that builds on their own life experiences. Medical insurance, theft insurance, homeowners liability insurance, automobile liability and collision insurance, and fire insurance are all types of protection that are not foreign to jurors, nor are they considered as indicative of a “heinous” intent on the part of the acquirer.
We don’t acquire medical insurance coverage on the premise that we intend to suffer life-threatening injury or perpetrate a fraud on the insurer or innocent bystander. No. We seek this coverage “in case” some devastating occurrence is inflicted on us or by us and we need to protect our homes and families from financial ruin that we might otherwise suffer as a result of the sheer costs associated with medical emergencies or infirm health. It is because of this potential financial devastation (or foolhardiness in tempting fate for lack of protection) that we virtually DEMAND this coverage from our employers or from the government.