From a reader:
"Did you see Mas Ayoob's recent video about a 5 point checklist when speaking with the police after a self defense shooting? What do you think about that?"
Given the fact that I am answering on this blog, and have linked the video to the question above, the answer to the first questions is "yes, I saw it." The answer to the second question is more in-depth.
Caveat
Mas Ayoob is one of the great expert witnesses of our time when it comes to use of force. His credentials when it comes to that are unparalleled. With all due respect, Mas giving legal advice for what to say to police would be akin to a self-defense firearms instructor teaching someone how to throw a punch for self defense, presuming said firearms instructor is not an instructor of unarmed self defense. While it is close, it is not his area of expertise.
I will listen to what a criminal defense attorney says about the topic.
For the record, Reid Henrichs of Valor Ridge taught a finger poke to the eye in Pistol Craft and gave the caveat that he was not qualified to teach that technique properly. I advised him that I was qualified to teach it properly and he had demonstrated the technique more than adequately.
Breakdown:
* Mas opens by advising that the self defense shooter should be the one to call police and establish that you are the victim.
Thoughts: This is 100% accurate the way he describes.
* Point 1: Establish the active dynamic of what has happened.
Thoughts: Yes, but more briefly than he indicates. Something along the lines of "he attacked me with a knife!" and shut up.
* Pont 2: Indicate you will cooperate.
Thoughts: NO! If your attorney later advises you to exercise your 5th Amendment rights, the police or prosecutor will paint this as you being uncooperative, hence lying, hence untrustworthy, hence guilty!
* Point 3: Point out evidence.
Thoughts: NO! At best, this is unnecessary, and at worst it is evidence tampering. Let police do police work.
* Point 4: Point out witnesses.
Thoughts: NO! Witnesses are horrible. They may get mad and paint you in a bad light. There is no way this helps you. At best, you break even.
* Point 5: "Finally" Request an Attorney.
Thoughts: This should be part 2, and shut up.
Yes, these are my opinions.
No, I am not a lawyer, nor did I stay in a Holiday Inn last night.
No, this is not legal advice.
Then why should you listen to these opinions?
My opinions mirror the opinions of Criminal Defense attorneys, much of which came from the following videos:
And the king of all "talking to police" videos:
This video should be mandatory high school curriculum.
Thoughts?
As to your positions on this: AMEN! AND AMEN!
ReplyDeleteIt's complicated. Even the experts don't all agree.
ReplyDeleteAnd each of us has to do what we think makes sense, under pressure.
I've taken Ayoob's MAG-40 but I also have taken, and take, other training. The only other "what do you say to the cops afterwards" training or education that's on a level with Ayoob would probably be Andrew Branca, who is a criminal defense attorney with this niche specialty. (I listened to him in a podcast once and it was great, but unfortunately part of what he said was that he (Branca) is so busy that if you want him to defend *you*, you have to effectively subscribe to his service before the incident. Not break the bank but it wasn't cheap either)
Two opposing points of view on do you talk, or don't you that I thought were intelligent.
One is Ayoob's view- say just enough to the responding officers to get it out there that you were attacked, you defended yourself, point out evidence and witness then you don't say more.
That makes sense to me, but it's not risk free. If you take Ayoob's MAG-40 class, he provides a number of examples where the not saying anything approach caused evidence to disappear or to not be available to support the defender's claim of self-defense.
The opposing view, well explained by Jim Duane (Don't Talk to the Cops pt 1 and 2) is that saying anything at all can cause problems. And he provides plenty of examples of how/when someone saying something truthful and honestly has gotten them in trouble.
It's possible for both points of view to be correct.
For the best balance of both, I'd recommend listening to the recent "The Arms Room" podcast with criminal defense attorney Myles A. Schneider. He favors the "don't talk until you're lawyer's present" approach. His explanation made sense to me: under the stress of just having defended yourself and facing the responding cops, if you start talking, you're probably not going to be able to contain yourself unless you've practiced and drilled saying just enough but no more.
Ayoob also pointed out that criminal defense lawyers 99+% don't defend truly innocent people. (in his class he mentions discussions he had over the years with criminal defense lawyers when he was working the defense side of a case) In most criminal defense cases, the lawyer tells you not to say anything because their clients are guilty of the crime or of a lesser included offense, and saying anything at all will make it worse for the client.
We each have to do what we think makes sense and chart our own course, if we end up in the situation. I would agree that a person who has given no thought to this ahead of time, should keep his mouth shut, he's got no chance under stress with a cop trying to wheedle stuff out of him.
There is no assured outcome way to get through a self-defense incident without the risk of getting into some kind of trouble, whether you say some things as Ayoob recommends or if you say nothing, as criminal defense lawyers will recommend.
"Even the experts do not agree." While true, one of the points was to ask the question "Expert in what, exactly?" Ayoob is an expert in firearms handling and deployment. Ayoob is an expert at being an expert witness. He is not, and does not claim to be, an expert defense attorney. Therefore, his explanations of "why" certain cases turned out like they did is as suspect as if you or I made those claims. Perhaps there were also other contributing factors. In either event, to conclude that "experts don't agree" is to suggest that criminal defense attorneys do not agree. And to this point, I've seen very little evidence pointing towards criminal defense attorneys suggesting you speak to police. Possibly a better way to put it is to agree with your quote from Schneider - "don't talk until your attorney is present." That offers the opportunity to tell the police what needs to be told to them, with the protections of attorney-client privilege.
DeleteGood point about "expert".
ReplyDeleteI would say that Ayoob's expertise and experience extends quite a but further than just using a firearm. Among other things, he was a prosecutor in New Hampshire (whichever state up there where he used to live) even though he's not a lawyer- that's allowed up there in some places. And he has been an expert witness in use of force cases on both prosecution and defense sides for decades, and is a frequent speaker at legal continuing education conferences for lawyers.
That doesn't make him a criminal defense attorney of course, but he is 'more than just a part time cop'.
I hadn't thought of your point until you said it about levels of experts, though.
Whatever you or I or anyone else does following a self-defense incident though, I think it would be best to understand what and why you'll do whatever your plan is.
It's not that saying something or not saying something is always correct, it looks to me more like there are different ways you'll get screwed if you talk to the cops or ways you could get screwed if you don't tell them anything and some evidence gets missed that could help your case. It's frustrating but there isn't anything you can say or not say that will get you out of there unmolested.