Do you shoot again after you discombobulate your opponent

[Frank Ettin]

Tell that to George Zimmerman ... there was no legit evidence with which to charge him. The bulk of the state's evidence exonerated him, including the testimony of the detectives....

There's a lot of dispute on that question, and we're not going there.

...Yes, this was a hypothetical to illustrate a basic point of how the process works... not to get into the weeds of lawyering 401...

And an excellent illustration of why hypotheticals are so often worthless. A hypothetical can be fashioned to support anything. So you constructed a hypothetical to prove your case. But you have not established that your hypothetical bears any relation to reality.

Your hypothetical does nothing to illustrate how the process works. It was constructed by you for the sole purpose of appearing to confirm your position.

 

[Frank Ettin]

...A basic principle of trial lawyers is to (absent some huge reason/exception) never have your client testify if the evidence can come out in another way (another credible witness, forensics, etc.) and it's BEST if it comes out from the opponent's witnesses on cross exam...

And that's very nice when possible. But one shouldn't count on being able to do so in a self defense case.

A several years ago a lawyer by the name of Lisa Steele wrote an excellent article for lawyers on defending a self defense case. The article was entitled "Defending a Self Defense Case" and published in the March, 2007, edition of the journal of the National Association of Criminal Defense Lawyer, The Champion. It was republished in four parts, with permission, on the website, Truth About Guns. The article as republished can be read here: Part 1; Part 2; Part 3; and Part 4.

As Ms. Steele explains the unique character of a self defense case in Part 1:

...Self-defense is all-or-nothing. In order to establish it, the client has to admit being at the crime scene, with a weapon, which he or she used to intentionally harm the aggressor. The client has to admit that he injured the aggressor. The client has to convince the jury that if a reasonable person had been standing in his shoes, the reasonable person would have done the same thing. In effect, the aggressor invited his fate by threatening or inflicting serious bodily harm, or by threatening to kill the client.

In one fell swoop, the client has given up alibi and mistaken identity defenses. He or she has given up any claim that the wound was made by accident. Generally, the client must give up provocation (heat of passion or extreme emotional disturbance). Logically, provocation implies an unreasonable response to a situation, and mitigates murder to manslaughter. Self-defense implies a rational response to a very dangerous situation and, if successful, results in an acquittal. Similarly, the client must give up claims of mental illness or insanity and defenses based on intoxication or drug use....

And as she further notes:

...Often, the defendant will need to testify in order to establish his subjective belief about the threat and need to respond defensively....

 

[leadcounsel]

And an excellent illustration of why hypotheticals are so often worthless

Nonsense.

By this logic, shoot-houses are worthless; range practice at known distances is worthless; studying possible self-defense scenarios is worthless; studying past self-defense or military/LEO encounters is worthless because of low probability that the exact same thing will occur... etc. etc. etc.

The 'hypothetical' is a practical and experienced understanding of how the system works and what happens both after an incident, and law enforcement interactions, and charging, and trial testimony tactics.

It directly relates to the original posting in that someone using non-lethal loads would face a finite number of probable results, as there are only a few possible general scenarios with which to ponder. And some of them are very bad for the defender.

Hypotheticals are how we learn to train, think, and react to the possible and likely scenarios we may be faced with in all walks of life. Basic logic 101: If A then B. That's a hypothetical.

To discount them is nonsense. This applies to what load to put in your shotgun, and the 'hypothetical' effects, and the likely 'hypotheticals' as to how that plays out in trial, if it goes that far.

While these last back-and-forth has really taken this thread off course, this is a law related thread and quite relevant to as to the WHY with regards to the OP...

Done discussing this point.

Back to the OP, people can load whatever fantasy load they want, but I would advise to use standard common self-defense loads and only use lethal self defense when the law permits.

 

[Frank Ettin]

By this logic, shoot-houses are worthless; range practice at known distances is worthless; studying possible self-defense scenarios is worthless; studying past self-defense or military/LEO encounters is worthless because of low probability that the exact same thing will occur... etc. etc. etc....

...Hypotheticals are how we learn to train, think, and react to the possible and likely scenarios we may be faced with in all walks of life. Basic logic 101: If A then B. That's a hypothetical...

Those sorts of hypotheticals are imagined situations or facts to which we respond. The learning takes place in the responding.

So when I interact through a shoot-house or force-on-force exercise, or work through a stage at a USPSA match, I learn by working through the problems. Those problems are not set up to illustrate anything. They are set up to provide a challenge, and we learn by responding to the challenge.

Hypotheticals we might work through to better learn and understand something, like the law, are similarly not set up to illustrate, but rather to challenge.

Your hypothetical was not offered for such purposes. You were purporting to prove a point you had made. And your hypothetical can have relevance for that purpose only if it conforms to reality -- something you have merely assumed and not established.

 

[44 AMP]

Where are we going? and why are we in this handbasket?

 

[JimDandy]

I have to agree with the prevailing opinion: if you need the gun, it needs to be lethal.

Given the stories of people being "on trial"/accused for trying to use hollow points, handloads and so on as being more "blood thirsty", people already pointing out that taking someone's eye is more... more, than shooting someone center-mass, and people being convicted for using a warning shot so they didn't have to actually shoot someone, how would this sort of thing end well?

For that matter, how is a jury going to feel figuring out that they're now going to have to help care for the dangerous, now blind, felon for the rest of his life because you took his eyesight rather than kill him, which they would have been equally horrified over, but less inconvenienced by?

 

[gary24153]

I can only imagine how a prosecutor could use a "poor blind guy" only trying to feed his family.

 

[Spats McGee]

Here's a final consideration. Often, very often, it's best that the defendant not testify. There are often sound reasons for even the most innocent person to not testify. Therefore, as in another recent thread, a person should be aware of what he/she should say to the police, and then invoke. . . .

While I agree that "a person should be aware of what he/she should say to the police, and then invoke" (the right to remain silent), I'm not convinced that "very often, it's best that [an SD-Defendant] not testify." I would agree with you, if we were discussing a garden-variety criminal defense. In those cases the defendant can, & often should, take the position that "it's up to the State to prove each and every element of the offense(s) charged, and I'm not going to help them make any evidence against me." OTOH, in an SD case, and particularly in jurisdictions where SD is an affirmative defense, the SD-Defendant really has to take the position of "I did it, but I had a really good reason." Even in jurisdictions where SD is simply a defense, rather than an affirmative defense, the defendant will need to put on some competent evidence to support his or her claim of the elements of SD (imminent threat of death or serious bodily injury, for example).

Franks comments on my prior comments is getting afield of the topic... however to clarify from an experienced criminal prosecutor and defense attorney, smartly worded statements to the law enforcement before invoking can be elicited through the police and detectives through effective direct or cross examination, thereby eliminating any need to have the accused testify.

Q: And isn't it true Detective Johnson, that Mr. Smith told you that the deceased came at him with a knife in the parking lot?
A: Yes
Q: And Mr. Smith told you that he told the aggressor to stop at least three times?
A: Yes, that's what he said.
Q: But the man with a knife kept coming and didn't stop?
A: That was Mr. Smith's version.
Q: And he said he feared for his life so he drew his pistol?
A: Yes
Q: And he has a lawful concealed carry permit?
A: Yes
Q: And the requisite training?
A: Yes
Q: And the ammunition used was XYZ?
A: Yes
Q: And that's identical or very similar to what the police carry in their guns?
A: Yes
Q: And in your investigation, you determined that both shots were fired at about 10' distance, in rapid succession, while the deceased was standing?
A: Yes
Q: And when you talked to witness ABC, she told you that a version of events that is generally consistent with what Mr. Smith had told you?
A: Yes
Q: When you talked to Mr. Smith at the scene, he told you he acted in self defense?
A: Yes
Q: And he told you that he wanted to press charges against the attacker for assault?
A: Yes

You get the idea. The same would be done with the forensics scientists, other experts, witnesses, etc.

There would be little, if anything, an accused to add to this by his testimony, and many times accused people look shady when testifying, or just say REALLY DUMB things on the stand, and this can sink them. Call it nerves, or trying to impress, or being tricked into getting angry, etc.

An accused should rarely need to testify if the event was justified (forensics will most likely tell a clear story) and a person is intelligent about what he says to the police before invoking.

Sorry to take this afield, but it's an important understanding of criminal law.

My apologies for quoting such a long post, but I didn't want to risk taking anything out of context here, leadcounsel. I do have one primary concern about the utility of using the bolded statements on cross-examination. There's a whole lot of "didn't the defendant tell you" in there. Such questions may be useful for a variety of reasons, but they're hearsay. As such, they're not admissible for the truth of the matters asserted therein. Specifically, take a look at the lines that are both bolded and underlined. They seem useful enough for showing what the police told police (that the BG had a knife, for example), but as hearsay, they're not admissible for the truth of the matter asserted (that the BG actually had a knife, for example). For those, you really need an eyewitness. If you've got a little old nun who just happened to be standing nearby, that's great. The SD-shooter may not be so lucky, though.

 

[Dreaming100Straight]

My experience with CL is extremely limited, but hearsay is often admissible under exceptions to the rule. I can imagine such questions being permitted to establish state of mind (that defendant was in fear of imminent bodily injury from an intruder). Not sure but much of this should be in the police report and would it come in as a business record? Then there is spontanieous amd contemporaneous declarations.

 

[Spats McGee]

Hearsay may be admissible for a number of purposes, but not, as a general rule, for the truth of the matter asserted in the statement. The exception that immediately springs to mind is an admission by a party-opponent, but the statements laid out by leadcounsel are not admissions, as they are not statements against the party-opponents interest.

As for police reports, they are often used to refresh an officer's memory, but (at least in AR), they're inadmissible. As far as the defendant's statement, as contained in the police report, frankly, that goes even further down the hearsay rabbit hole, as it's hearsay (defendant's statement to the officer) within hearsay (the police report).

 

[Quadpod88]

When the assailant is no longer a threat, you should stop. Otherwise it's murder, then it's called to question whether or not you were aware the assailant was non-combatant.

 

[2damnold4this]

For those people who plan on stopping an attacker with birdshot from a revolver by blinding him, what's the plan if the attacker has on glasses?

 

[Dreaming100Straight]

The fact that you intentionally fire a less lethal round could be twisted to imply that you did not fear immediate death or serious bodily injury.

 

[Dreaming100Straight]

Spats probably has it right, but I think an experienced defense attorney wouldn't be given latitude to cross examine officers as to the work done on the case, including their interview with the defendant.

For example, Did the deceased have a knife? None that I found. But did you have any information that the deceased had a knife? If he says, "yes". Ask him what information he had. If he says no, ask if it isn't true that the accused told him . . .

I am not so sure that what the accused said at the scene wouldn't be a statement of a party against interest, since the statement taken as a whole admits that he was the shooter and, like Frank and others have pointed out, having to admit such is a risk you take if you claim self defense.

 

[leadcounsel]

Good grief...

Talk about a thread derail... now we're onto the hearsay rule and exceptions to same....

A good defense lawyer will find multiple ways to introduce that evidence without having an accused/defendant testify.

Going into a trial assuming my client is going to have to testify rarely is a good strategy. Sure, sometimes they do, or are 'expected' to testify by the jury/panel (admittedly in self defense cases and nearly always in rape or sex assault cases where the defense is consent).

For the love of God, I'm trying to suggest that you don't use obscure weapons which will REQUIRE you to testify, and you lay the foundation immediately after the event so that you best preserve your ability to not testify.

The mindset that YOU, and person accused of murder, are going to just get on the stand, tell your side, and explain it all away, is a losing strategy. That is the point. Some people here have allowed, in fact participated in, huge thread hijack...

 

[Frank Ettin]

...A good defense lawyer will find multiple ways to introduce that evidence without having an accused/defendant testify...

And that is where you are seriously misleading our readers.

A good defense lawyer might be able to keep the defendant claiming self defense off the witness stand, but no one should count on that.

As I pointed out in post 42, the lawyer Lisa Steele, writing in The Champion, then journal of the National Association of Criminal Defense Lawyers, stated that in a self defense case:

...Often, the defendant will need to testify in order to establish his subjective belief about the threat and need to respond defensively....

Believing the testimony of the defendant claiming self defense can always, or even frequently, be avoided is fatuous. Trying to convince folks that's the case is irresponsible.

...That is the point. Some people here have allowed, in fact participated in, huge thread hijack...

And you initiated that hijack by trying to foist lousy information on us.

 

[KyJim]

Did not have a chance to reply earlier. I've been working on a brief due tomorrow which ironically involves a claim of self-defense.

Every case is different and anybody charged with a homicide or assault should listen to the advice of his or her attorney and then decide whether to testify -- that is a right personal to the client which the defense attorney must accede to.

Having said that, I think it is a rare case for a defendant to be able to pull off a claim of self-defense without testifying. Impossible? No. Difficult? Yes.

First, let's take a look at the scenario LeadCounsel posits -- that the defendant gives a statement to the police claiming self-defense and the defense introduces this statement by cross-examination of the police officer. First, I have seen defendants attempt to do this, usually because of a criminal history. It usually doesn't work.

Second, the out of court statements of the defendant are hearsay. The prosecution can introduce statements of the defendant which are admissions. However, the portions favorable to the defendant may or may not be admissible depending upon whether it is necessary under what is called the "rule of completeness."

The rule of completeness basically is a rule that says if a portion of a statement is introduced by a party, additional portions may or may not be admissible. As one court put it, the test is “whether the meaning of the included portion is altered by the excluded portion.” I pulled up four published cases in five minutes from my jurisdiction which upheld exclusion of favorable portions of a defendant's statement to police. A number of the leading questions LeadCounsel uses would call for non-admissible hearsay from the police officer. I should add that these observations are based on my state's rules of evidence but they are modeled after the Federal Rules of Evidence and are in the mainstream of most states' rules.

My second observation is simply one of common sense. If someone shoots and kills another person and claims self-defense, the jury is going to want to hear the shooter's story first hand. Clear cut cases of self-defense don't get to a jury (at least not in jurisdictions which aren't rabidly anti-gun). Yes, they are instructed on the presumption of innocence and not to hold the defendant's silence against him. In many, many types of criminal cases they will follow that instruction but, IMO, as a practical matter a defendant starts behind the eight ball if he or she doesn't testify about a claim of self-defense.

 

[leadcounsel]

And sadly, the very people who are in a position of an unclear cut case of homicide or self defense, and facing charges, are likely not going to make great witnesses in their own defense.

The great witnesses of course are the ones that are given a No Bill... they made the best decisions at all times under ideal circumstances.

There are inherent risks of putting clients on to testify... I've gone both ways and have seen even the best prepared clients say really bone-headed things under brutal cross exam...

Anyone using birdshot or flashbangs as a first round, followed up with a slug, would not be advised to testify!

Believing the testimony of the defendant claiming self defense can always, or even frequently, be avoided is fatuous. Trying to convince folks that's the case is irresponsible.

Never been my position. Please re-read my position on the entire matter of the post.

 

[Frank Ettin]

Believing the testimony of the defendant claiming self defense can always, or even frequently, be avoided is fatuous. Trying to convince folks that's the case is irresponsible.

Never been my position. Please re-read my position on the entire matter of the post.

Well, it all started with this statement of yours in post 34:

...Here's a final consideration. Often, very often, it's best that the defendant not testify. There are often sound reasons for even the most innocent person to not testify...

 

[44 AMP]

SO, we have a general consensus that (in no particular order)

its a poor idea to defend yourself with birdshot

an attacker who isn't attacking at the time of being shot shouldn't be shot

it is both a good and a bad idea to testify on your own behalf

if your opponent resumes the attack, you may resume the defense

Blinding (permanent) is somehow a fate worse than death

where else can we go with this?
(holds fork at the high ready position...)