Updated: Feb 15
Do you have a right to to remain silent - really?
I have written elsewhere about calling 911 after a self-defense incident. The context was about should you "say nothing" or "say little". The bottom line was that the "say nothing" option is good advice, but limited. In many ways, it makes sense not to say anything. What if during the call you make a mistake or get the order of events confused, etc., etc., etc.? That does not look good in front of a jury.
The blog sort of favored the "say little" option, because it added some information to the call that may potentially help your case. Although the options seem contradictory to each other, the advise comes from attorneys who just disagree in how to handle the situation. However, universally, defenders are urged to call 911 and report an incident/attack. However, that is not the whole story.
So, where does the 911 controvery leave us defenders? The push to call 911 comes from everbody - attorneys, police, prosecutors, etc. It is the thing to do! In fact, not calling 911 can be a serious mistake, because, in today's legal processes, it can be used against you! How can that be? Is it really a legal requirement? Is it a law? As far I know, no state has a law that says it is a crime to not call 911. What a predicament! A defender may not "legally" be required to call 911, but could be in serious trouble if he/she doesn't!
Let's look deeper into this problem. First, what are the known facts about a 911 call?
A. The call is recorded.
B. The call is to police (as a practical matter)
C. The recorded call will be used as 'Exhibit A' in court.
To make matters worse, in reality, when you tell the 911 operator you were attacked and had to defend yourself, you are saying to police that you used force against another person. You used force on another human being? Sorry, but that is a crime on its' face. So, your 911 call is really a confession, right? That is a problem! By calling 911, you have made statements to police without your attorney, no one has advised you of your right to an attorney, and statements can be used against you, etc. Confusing, right?
NOTE: The above may bring to mind that the situation is a violation of the "Miranda Ruling" of the Supreme Court years ago--not so. The protections of the Miranda ruling only applies to police in a custody situation or when you are identified as a supect in a crime. Those protections of advising you of your rights would not apply to a voluntary 911 call or to police questions when they arrive at a scene and and trying to figure out what happened.
Given the note above, in a 911 call or when police arrive at an incident scene, you are not yet in custody or a real suspect in a crime. But, you are a little vulnerable and likely to make seemingly innocent statements that indeed could be used against you in court later. After all, you will likely be all jazzed up and have an overwhelming desire to say something - anything. Gee whiz, what about the 5th Amendment? What about you can't be compelled to be a witness against yourself? What about you have the right to remain silent? What about the right to have an attorney present during questioning? Do you see the conundrum/paradox? Could calling 911 or speaking to responding police be a threat to your case?
Is there a solution? Can a defender protect himself/herself from an attacker and also from possible self-incrimination? Possibly! There is a controverial theory/suggestion by some that instead of calling 911 immediately, a defender should call his/her attorney first and have the attorney call 911 with the report. That way, you have complied with the reporting requirement, avoided making any regretable statements, and have attorney-client priviledge status.
But wait, that is still not the whole story! Some attorneys might agree to do the above, but many others would refuse! An attorney might be willing to make the 911 call for you, because it would iliminate the chances of you making any statements that could haunt you later. It could be a cleaner case for the attorney. In defense of those who would refuse to make that 911 call, why should an attorney put himself in that position? Does the attorney know you? Have you talked to him/her about this issue? Are you really a client yet? Have you paid him/her anything? Does that mean your attorney may be called as a witness at your trial? A given attorney could just not consider calling 911 to be his/her job.
In the aftermath of an attack, what unintentioned, adrenaline fogged statements would you utter? Nobody knows those things for sure. All you can do is think about the issues raised here, and generalize some kind of response. I don't mean some memorized statement - just a limited statement of who, what, where.
A question - If you spout off some pre-determined script to responding officers, is that some form of premeditation? Do you think that there are not some prosecutors who who jump at the chance to mention your pre-planned statement to a jury?
There is something you might do that could help and also shed some light on the problem. It is always good idea pick an attorney now - before an incident. Interview him/her. Ask how they feel about self-defense cases and what their advise would be on this and other issues. It is good that they know who you are. Give them a folder with your photo and contact information. Consider giving them a small retainer in case they are needed in the immediate aftermath of an incident.
There is no real consenus from attorneys on how to handle a 911 call. Why? Their education and
experiences are different. Further, each and every self-defense incident will be unique and have it's own set of circumstances and facts. Their advice and engagement could be incident specific.
What's the bottom line? For now, we are stuck with the traditional call to 911 coming from you, the defender victim. It has been basically the same since 911 was invented by AT&T back in 1968. Even though calling 911 has issues, it is still the best way to protect your self-defense claim. What is needed is a little thought from you in case you ever have to make such a notification, God Forbid! Reread the earlier 911 call blog (Calling 911 After an Incident - What to Say!) published on this site on 6/18/2020.
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