... from Greg Ellifritz. One of the topics that was addressed was whether to talk to police after a shooting incident. Notwithstanding what you hear or read, the answer is not a simple "yes or no" but involves some nuance. Greg links to a recent blog post from Massad Ayoob, entitled "When Something Needs To Be Said". Ayoob acknowledges that trying to answer simple questions like “Exactly how far away was he when you fired? How many shots did you fire? What exactly was said before the shooting started?” can come back to haunt you because it is too easy to be mistaken--your memory may very well betray you.
Ayoob favorably cites an earlier article by Ellifritz with the title "What Do I Say After a Shooting?" in which Ellifritz discusses some of the issues that come up with false memories:
The crux of the issue is that our brains don’t work very well when we are under extreme amounts of stress. When the adrenaline is coursing through your system, it’s extremely difficult to calm down enough to allow for rational thought and clear recall. No matter how cool and collected you may feel, you’ll likely make a mistake when answering police questions immediately after a shooting. Research has shown that the clearest memories of a stressful incident aren’t fully recalled until after two to three complete sleep cycles! That’s several days’ time. It’s for this reason that cops involved in shootings are generally not questioned until several days after the event.
You might think “Sure, I might screw something up. Who wouldn’t after such a harrowing ordeal? Won’t the prosecutor, judge, and jury understand that?” Maybe. Maybe not. It’s best not to take the chance.
Ellifritz continues:
Here’s how this will play out if you have an unethical prosecutor or one who is more concerned with garnering political favor than truly seeking “justice”…
Let’s say that you answer all the questions the cops ask you. One of the questions is “How many shots did you fire?” You answer “I think I shot four times.”
Evidence at the scene establishes clearly that you actually shot eight rounds, but you didn’t remember firing them all.
When you are on the stand, the line of questioning from the prosecutor will sound like this:
“Is it true that you told officers at the scene that you only fired four rounds?”
“Yes, but…”
He cuts you off
“I submit the autopsy report into evidence your honor. The deceased has eight bullet wounds and all the recovered bullets match the rifling of the defendant’s handgun.” Clearly the defendant shot more than the four rounds he claimed.”
Looking at you, “So we’ve shown you lied about the number of rounds you fired. What else are you lying about? The whole story about this man breaking into your house is a lie as well. We believe you killed an innocent man in cold blood and then lied to police to establish your innocence.”
Lest you think this couldn't happen to you, Ellifritz related the following anecdote:
I assisted in the investigation of a police-involved shooting in my department a few years ago. Three officers fired their guns at a burglar who was trying to run them over with his car. One of the officers fired one shot (and remembered it) before being struck by the car. Another officer told me he shot 2-3 rounds. When I took his gun for evidence, the magazine was down a total of six rounds. The third officer initially stated that he didn’t shoot. About an hour into the investigation, that officer came up to me and said, “Greg, I was thinking about everything again and I think I may have actually shot my gun.” I examined his gun and its magazine was missing four cartridges. And he initially didn’t even remember shooting!
Interestingly, another article included in Greg's round up of articles on "Situation Awareness ... Once The Bullets Start Flying" related a similar type of incident (underline added):
I recall the first rape case I handled as a new police officer fresh out of the academy. A single female was sleeping in her bed and awoke to find a man with a gun standing over her. She focused intently on the weapon as he gave her orders. Facing a deadly threat, she was forced to comply. What stuck in my mind, however, was how she decided she was going to survive. More than this, she decided she was going to prevail. She began plotting a strategy as the unthinkable was happening to her. She knew she had a gun in her nightstand and made a conscious effort to distract him and move him in that direction. She used the circumstances to her advantage and finally reached her handgun. She fired a few shots, failing to hit the suspect, but she did cause him to take to his heels and flee. That’s situational awareness during the fight. Incidentally, she could recount the story in detail but couldn’t remember if she’d fired the gun and, if so, how many times she shot. She heard no gunshots and thought her gun had failed.
But back to the Ayoob article. He advocates a more nuanced approach to responding to police questioning at the scene of the accident:
... the conventional wisdom of “Say nothing to the police without a lawyer present” is great advice for guilty people but sub-optimal for those who fired in legitimate self-defense. If the cops don’t have your side of the story, they don’t know what evidence to look for, what witnesses might support your account of events, etc. You will have left them without your side of it, without the truth of the matter. I’ve told my students for years that “A guilty man’s lawyer who gives you a guilty man’s advice and a guilty man’s defense is likely to get you a guilty man’s verdict.”
And back to Ellifritz's article, he notes that it is a situation of not talking so much that you hang yourself, but also not providing so little evidence that evidence or witnesses is overlooked or lost because you didn't point it out. Ellifritz notes:
The police questioning process is a balancing act. You don’t want to provide statements that may later turn out to be incorrect. You also don’t want to provide evidence against yourself. But your case would be strengthened if you could point out evidence that is in your favor and if you could provide a description of your attacker so that we can arrest him. You are on the tightrope.
He suggests following Ayoob's 5-Point Checklist when speaking to police after a shooting:
Massad Ayoob’s Five-Point Checklist
1. Tell responding officers “I’m the victim; he is the perpetrator.”
2. Tell responding officers, “I will sign a complaint.”
3. Point out pertinent evidence.
4. Point out any witnesses who saw what happened.
5. If there is any hint that you are a suspect, say “Officer, you will have my full cooperation after I have counsel here.
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