January 2013 - Pg 11-Attorney Question of the Month
AFFILIATED 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. This month's journal focuses on self defense use of knives, so we asked our affiliated attorneys the following:
Where carrying a gun is impermissible, Network members often carry knives for self defense. Unfortunately, using a knife against another person will likely result in arrest and charges of assault or homicide, even in cases of self defense. If you had a client who used a knife in self defense, and you believed the act was legitimately self defense, what argument(s) would you make to the jury to acquit your client? Have you had this kind of case? What was your winning argument?
James B. Fleming
Fleming Law Offices, P.A.
P O Box 1569, Monticello, MN 55362
There is only one instance in the course of a criminal jury trial when counsel gets the opportunity to argue anything to the jury, and that is in closing argument. And, until the evidence is in, attorneys seldom have more than a general sense of how exactly they are going to craft their closing. That is because, in contrast to what people see in the movies, until the evidence is in, you don’t know exactly what you will be able to talk about and what you will not.
Few things will poison a jury quicker than having an attorney called down by the Judge for “arguing facts not in evidence.” This makes the attorney appear as though he or she is attempting to fleece the jury, and any trust you might have built with those jury members is gone in an instant.
Obviously, the attorney is going to want to craft an argument around the elements of self defense, as they exist under the law of his or her state. In Minnesota, as in the vast majority of jurisdictions, that is going to entail an argument built around evidence which supports the claim that the client had a reasonable apprehension of death, or great bodily injury occurring to himself or to another. However, the similarity is going to end there. Defending a knife-wielding citizen is going to be tougher, presenting additional subjective challenges that are going to be hard to decipher, but nonetheless critical.
The question can be framed in this fashion: How are the jurors going to react to the fact that the accused used a knife on another human being, and how is defense counsel going to know of that reaction for each and every juror? A physical confrontation involving a knife is going to be very intimate, it is going to be very violent, and it is going to be very bloody. And the jurors are going to get to see the wounds, and the blood, and the weapon. There is simply no chance whatsoever that the accused is going to receive the benefit of a “jury of his peers” because the vast majority of potential jurors are not going to have a level of experience with such violence that will bring them anywhere close to the mindset of the accused.
Certainly, counsel can attempt to inquire on these issues during voir dire, but this effort may be defeated if the court rules that until the requisite level of evidence is presented justifying a self-defense instruction, counsel if not going to be able to discuss self-defense issues while picking the jury. More than one criminal defense attorney has run headlong into this obstacle in the past without ever seeing it coming. We have the appellate cases from around the country to prove it.
But, it’s a real issue for, as Marc MacYoung noted in his interview with Gila Hayes in the December 2008 eJournal, “If you stab or cut somebody and expect them to fall down like they do in the movies, it is not going to happen.