“Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances.”
-Robert Jackson, Chief Justice, United States Supreme Court, writing in Watts v. Indiana, 388 U.S. 49, 59 (1949).
Don’t be caught without a lawyer when you need one most – at the spur of the moment after a self-defense incident.
The Fair Shooter: A Case Study
When you’re “jumped” by five guys all at once who proceed to punch, kick and pummel you until you need medical attention; when you’re walking by the same group of guys days later at the trunk of a car and they flash you a look at an assault rifle and flat-out say they’re going to kill you; when they know where you live and slowly cruise by your house, repeatedly; when later they see you at the fair and surround you, threaten your life again, and one of them reaches into a jacket for what common sense screams to you is a weapon – should you have bought a gun to protect yourself? And if so, can you then legally draw your gun and shoot the guy?
That is exactly what happened to my client R.D., who until that day at the fair had never fired a shot in anger. He saw the guy going for a gun and R.D. moved faster, successfully getting his weapon (a .45 Glock 30) out of his pocket and firing three shots. Two hit the aggressor. Neither caused fatality or even permanent injury. They surely saved his life. The third grazed the aggressor’s accomplice’s shoulder.
So why was R.D. charged, arrested and locked up? Because the police had multiple witness reports of a shooting, a severely injured “victim,” and R.D. who told them (“confessed”) that he shot the guy. Honesty and candor here did R.D. no favors.
Why was he kept incarcerated before trial for over a year? Under South Carolina’s Stand Your Ground law, R.D. acted within his rights not to run away from those guys at the fair. He had a legal right to a hearing, but his prior attorney (a lawyer whose practice included exclusively criminal law) unfortunately did not request a Stand-Your-Ground hearing for R.D.
By the time I met R.D., he’d already been incarcerated for over a year awaiting trial. A year out of work, with no income. Other people pitching in to provide for his family. It was a nightmare for him.
As a gift to R.D., his dad retained me during the holidays. I promptly filed a series of motions, including a demanded for the prosecutor’s file and a notice of self-defense. I got the file, and had the charges dropped within a month of when I received it, getting R.D. out of jail for the first time since the shooting (and with no further charges to address later).
What could R.D. have done differently? A good lawyer at the scene could have siphoned the necessary information to the police without incriminating R.D. with a “confession.” Had it been me there, I would have spoken in detail with my client in private (such conversations are privileged and cannot be eavesdropped on, nor used later). Armed with the background of harassment to which he’d been subjected by these supposed “victims” I would have set out for the investigating detectives the nature of the self-defense incident that occurred. Sometimes with full and complete contact information, the police can be persuaded to think it through before running to a judge for an arrest warrant. And if they think it through, then that gives me time to provide additional evidence to support our self-defense argument. By that point, my client and I have migrated from being police adversaries to working with the police to close the case satisfactorily.
Legal Process of Shooter in South Carolina
If arrested, usually held overnight until a bond hearing in front of a magistrate judge.
Bonds for murder are heard by Circuit Court judges, not magistrate judges, and often require over ten days to schedule (while you are held in jail).
Unlike non-capital charges, murder does not require that a judge grant a bond at all – judges can legally refuse to set a bond, keeping unlucky defendants in police custody for months, until trial.
Murder suspects can be held without bond for more than 18 months.
Murder bonds often exceed $100,000.
If the incident was possibly self-defense, then you’re entitled to a “Stand Your Ground” (SYG) hearing – long before trial, in which we ask a judge to dismiss the charges based on self-defense.
A “SYG” hearing affords you the opportunity to call witnesses on your behalf.
If you win the “SYG” hearing, the case is dismissed.
The judge’s SYG ruling cannot be appealed before trial.
First Things First: Secure the Scene
The fine line between securing a scene and tampering with a scene must never be crossed. Unless the assailant is clearly dead, I recommend moving his weapon out of his reach, using a shoe or tool with minimum contact. In obvious death cases, touch nothing.
Say Nothing, Starting Immediately
If the person who is shot remains alert or awake (or is still breathing), I recommend that you move out of hearing range before saying anything because in a criminal or civil case (if he sues you for shooting him) your statements may be used against you.
Civil cases based on GSWs can result in significant verdicts against the shooter, even when the shooting occurred in self-defense.
Making the Call to 9-1-1
9-1-1 calls are an exception to a person’s right against self-incrimination. That means anything a caller says can and will be used against him (or his spouse, etc.) even though there is usually no Miranda warning provided to the caller by the 9-1-1 operator.
Ex. 1: If I shoot an intruder in my home and then call 9-1-1 for medical assistance, and say “I just shot a guy who broke into my home” and the guys later dies from his injuries, then the police now have a recording of me confessing to murder.
Similarly, if my wife calls 9-1-1 and says that I shot a guy who broke into our home, and the guy dies from the GSW, then the police have her accusing me of murder, which may waive her Constitutional privilege not to incriminate her spouse.
Who Should Call 9-1-1
It is not wrong to call 9-1-1 to obtain help for an injured person, and some people may think it looks better to make that call before any other call (like to your lawyer). If the shooter does call 9-1-1 himself, he should state only 2 Facts: “There is a GSW injury at (fill in the blank) address.” Then I would give my name and hang up without making any other statements. Anything you say on a 9-1-1 call can be used against you.
Alternatively, the advantages of your lawyer calling 9-1-1 for you are:
1) Your statements to your lawyer are absolutely privileged – under normal legal conditions they will be known only by you and your attorney. This matters: if a neighbor calls 9-1-1 for me and says a guy was shot in my home, the police will likely ask how he knows that. When it comes out I told him so, the cops will compel him to testify against me to restate what I told him. This can’t happen if the call is placed by my attorney.
2) Your lawyer can get in route sooner and possibly arrive before the police, providing an immediate buffer for you.
3) Your lawyer can call 9-1-1 and get help on the way within a minute of when you call him.
4) Any differences between the forensics and the description of events provided by your lawyer will not impeach you or otherwise be considered “the defendant’s lies.”
Lawyer Gets There Quickly After Shooting
Police build cases: they often do not seek the truth, or they ignore facts and evidence that conflicts with their theory. Rely only on your own team to properly collect, test, and establish a chain-of-custody (that can be used in court) for all physical evidence suggesting the shooting was justified.
Your statements to police CANNOT be used to help you at trial. Under the Rules of Evidence, only your “bad” statements may be allowed at trial.
Do not confess – on purpose or accidentally – but also do not deny it, because that could be used against you by a judge later.
Do not exaggerate or make any mistakes or you will appear to have lied.
Do not discuss motive or opportunity, even if true: i.e. “I didn’t like him, but I didn’t shoot him.”
Do not implicate yourself in another crime (there are over 10,000 crimes).
Talking to the police without immunity exposes you to their memories if a cop doesn’t recall your statements with 100% accuracy. Your statement that “he raised his gun first,” may easily be forgotten to “the Defendant said he raised his gun first,” making you the aggressor.
Even your 100% truthful, accurate statements to police may conflict with statements provided by other witnesses (who may be mistaken or unreliable).
Born 1976, Aaron has defended charges under the murder statute over a dozen times. He prefers to prevent charges from being filed, and guarantees he will arrive at the scene within one hour of receiving a call or text on the client-only 24-hour hotline.
The cost for this on-call service is about $99 the first year, and $49 afterwards.
Forms and Contact
Aaron Mayer, Attorney
Mayer Law Practice
2000 Sam Rittenberg Blvd.
T: (843) 225-7240
F: (888) 446-3963
The single-page retainer agreement, weapons information and more about Aaron is available upon request by phone or email.