Info. to keep in mind
From John Farnam:
12 July 13
What to say to police:
When involved in a lethal-force incident, where you fired shots, otherwise attempted to apply deadly force, or even brandished a gun without firing, you'll likely be confronted by police a short time later. They're just doing their job, but you need to be the one to look after your own best interests.
In light of the recent "Salinas Case" ruling by the US Supreme Court, my advice to students in this regard has changed only slightly. In any event, it bears reiterating.
I've recently consulted with a group of distinguished a lawyers, who are also my friends and colleagues, on this subject, and what follows is in general agreement by all:
Simply "remaining silent" is not sufficient, by itself, to assure your rights and best interests are preserved. Interesting that we live in a country where you have to speak, in order to assert your right not to speak!
And, once one stops answering police questions and demands that his lawyer be present before continuing, he shouldn't start up again prior to his lawyer arriving. When he does, we get into an ambiguous situation, where the prosecution can later claim that, having asserted the right to remain silent at one point, the defendant subsequently changed his mind, thus, in effect, waiving his rights.
In addition, one should not wait until he is arrested to invoke his rights. Any time you are party to a police investigation, certainly when you are "Mirandized," your rights need to be unmistakably, unilaterally invoked, and without delay!
Invocation of your 5th Amendment rights to decline to answer questions and have your lawyer personally present before questioning resumes must be unconditional and unambiguous. "Do you think I should have an attorney?" won't suffice!
No need to be snotty, but you must be clear, and you must mean it! Confusion and ambiguity are always the enemy! Slam the door shut with a clear, unequivocal statement that you wish to exercise your 5th Amendment rights, now. Don't ask them what they think!
Insisting that police call an ambulance for you that will take you to a hospital may also be a good strategy. Most will agree that going to a hospital to be checked-over is probably good advice for anyone who has been involved in a lethal-force incident.
So, here is my advice when confronting arriving police in the wake of a lethal-force incident:
Palms out at chest-level, no weapons in sight:
1) "Officers, thank God you're here!"
2) "I'm the one who called."
3) "Those men:
(a) attacked us,
(b) tried to murder us.
(c) We were in fear for our lives"
4) "I will sign a complaint."
5 "I'm happy to chat with you when my lawyer is present. I absolutely request my attorney, and I am respectfully invoking my 5th Amendment Rights to decline to answer any questions until he is personally present, sir."
It is appropriate to call officers' attention to:
(a) evidence that may not be obvious,
(b) witnesses who may not be obvious,
(c) danger that may not be obvious (eg: an armed suspect still in the area)
Always be polite and non-threatening, but take a deep breath and speak clearly. Don't mumble and don't become chatty.
Finally, when you are "Mirandized," the officer will probably ask you, "Do you understand your rights, as I've explained them to you?"
The best answer is, "Officers, I'm not answering that question, nor any other, until my lawyer is here, nor will I sign, nor initial, any document."
We could go on for many more pages, but the foregoing pretty much sums it up. You must protect yourself, as no one else will!
"After victory, tighten the straps on your helmet."
Tokugawa Ieyasu, third and final "Great Unifier" of Japan, founder of the Tokugawa Shogunate
/John
John S. Farnam
(In contrast to the advice in the book After You Shoot, I endorse the gist of John's advice. The key to it is another concept of John's - “programming tape loops” in advance. Mental rehearsal of what you will say is key to making the crucial statements, then not running on into chatter that may come back to haunt you. I would not wait for a Miranda warning to assert my rights to silence and counsel nor would I consent to a warrantless entry or search. I would assert the former at the first suggestion that anything more was being sought than my statement as a witness. A list member who recently retired as a prosecutor recommends not participating in “consensual” encounters initiated by officers. If stopped for something other than an obvious traffic violation – such as while walking – ask if you are free to leave. If stopped for a traffic violation, do the same if the officer continues conversing with you after he has issued the citation. Numerous people in and around the legal system advise simply saying “no” if asked if you understand your rights after a Miranda warning. To my knowledge, that question is not required by the Miranda ruling and is normally just a part of a departmental protocol. Don't get sucked into discussing what part you don't understand – if asked, simply say “I'm not a lawyer.” The Salinas ruling – along with the Zimmerman trial – should serve to emphasize all these points.)
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