Zimmerman Trial Day 2: Video, Analysis of State's Case & Witnesses

Hey folks,

Today marks the second day of the trial proper, with the State continuing to present it’s case and witnesses.

We will be covering the trial all day, with live-coverage, streaming video, and a dedicated Twitter feed of selected contributors (to cut through the background Twitter hub-bub).  You can watch it all here:

Zimmerman Trial LIVE VIDEO – Day 2 – State’s Witnesses

To see yesterday’s opening statements, click here:

Zimmerman Trial Day One – Analysis of Opening Statements

To see our analysis of yesterday’s first four witnesses for the State, click here:

Zimmerman Trial Day One – Analysis of State’s First Four Witnesses


My twitter handle: @LawSelfDefense
My Facebook Page

Drunk, angry guy is kicking your front door, but the court decides that YOU are the aggressor?

The Facts

Eugenio Correa (the Defendant) was visiting with his girlfriend.  Her estranged husband, with whom she had separated five months earlier, phoned her, drunk, seeking to see their daughter.  The girlfriend and Correa were about to leave for the evening, and she told him it wasn’t a good time.  Her ex continued to make repeated, and increasingly menacing, phone calls.  At one point Correa shouted “Let him come over and take on a real man.”

The Girlfriend’s Ex was living with his mother at the time, so she called her to ask that he be prevented from leaving, but his mom said he had already departed.  The Girlfriend immediately called the police.

It wasn’t long before he was at her door, kicking and banging on it.  Correa, hearing the noise, armed himself with a handgun and went down to meet the guy at the front door.  His Girlfriend later testified that she heard Correa say, “Man you’re not coming in here, you’re not getting in here.”  She then heard a loud bang, and Correa came back up the stairs to meet her.  He told her that he had shot her ex, claiming that he had “jumped him.”

The Girlfriend went downstairs and found her estranged husband lying in a pool of blood.  (It would turn out that he had been shot through the head.)  She again called the police.  When they arrived, she told them what had happened.

The Trial

When Correa was ultimate brought to trial, he chose a bench rather than a jury trial.  In a bench trial, the judge assumes the “finder of fact” role that would normally be carried by the jury.

A key defense at trial was that the Defendant had acted in justifiable self defense in using force against the man.

The trial court, however, rejected his argument.  Instead, the court found that it was the Defendant, not his Victim, who had been the initial aggressor, and on that basis the Defendant could not justify his use of force as self defense.

The trial court noted that Correa had yelled through the phone to “come on over and take on a real man,” and then later chose to greet him at the front door with a gun.  He opened the door himself, enabling his Victim to gain access to the home’s vestibule.  Collectively, these actions were sufficient to make Correa an aggressor in the conflict, and therefore not entitled to the legal defense of self defense.

The Defendant was convicted at trial of voluntary manslaughter.

The Appellate Decision

The Defendant appealed his conviction.  In an August 1994 decision, Commonwealth v. Correa, 648 A.2d 1199 (PA Superior Court  1994), the appellate court ruled that “the evidence supports the [trial] court’s finding that [the Defendant] provoked and continued the altercation,” and was therefore not eligible to qualify his actions as lawful self defense.  His conviction for manslaughter was affirmed.

Take-Home Message

It may seem to many that if your girlfriend’s estranged husband comes drunkenly banging and kicking on the front door, threatening to kill, a perfectly natural reaction is to arm yourself and confront him to prevent him from entering.  As we can see from this case, however, actions that might seem chivalrous and brave in the moment can easily drive a narrative of provocation and aggression in the cool, calm, 20-20 hindsight of a safe courtroom.

As armed citizens we must always ask ourselves: Could the actions we are considering in self defense be innocently misperceived–or deliberately misrepresented—by the prosecutors and trial judge as provocative?  Could the prosecutors point to the many alternative actions that you could have taken instead, and argue that your use of force was therefore not necessary or justified?  And could these arguments sway the finder of fact, whether that be a learned judge or a novice jury, that your actions were not necessary, and therefore not self defense?

Having the legal right to act in self defense and defense of our families, even if it necessitates killing, is a fundamental human right, and we are fortunate to live in a country that recognizes this to be so.  Nevertheless, the law of self defense is layered with mine fields that can easily take out the poorly informed armed citizen.

Don’t let that happen to you.  Be prepared to win BOTH the physical fight for your life AND the legal fight for your liberty.

Know the Law.

When trial courts go stupid on self defense law . . .

I recently came across a 2011 self defense case out of Kentucky in which the trial court apparently went stupid on the reading of a brief and rather straightforward self defense statute.  Worse, not a lawyer in the room, for either the prosecution or defense, saw the obvious error and corrected matters.  The result was that the Defendant, who might well have been acquitted on the basis of self defense without this error, was instead convicted of second degree manslaughter and sentenced to 10 years in prison.

Although the case is out of Kentucky, rest assured that similar kinds of senseless errors happen in trial courts all over the country, and all too often every expertly trained legal professional in the court room manages to miss the mistake.  This bleak reality is all the more reason why all armed citizens need a robust competence in the law of self defense–including statutes, the court cases that interpret those statutes, and the jury instructions that guide jurors in how to apply those statutes to real people in real cases.

The facts

In this particular case the evidence showed that the Defendant (Barker) was, admittedly, a bit of a jerk.  Well, a REAL jerk.  And not a very bright one, at that.

He had identified the home of someone who had been giving him a hard time.  In revenge, he slashed their car tires.  Unfortunately for the Defendant, it was the wrong guy’s car.  Even worse, the room mate of the actual owner saw the tire slashing, and he alerted the Defendant of his error.  Having been spotted, the Defendant began to depart the scene–perhaps his only non-stupid act so far.

Even worse yet, the owner of the car (the Victim) happened to be home . . . and he owned a handgun.  Alerted by his roommate to what had happened,  the Victim armed himself and set out in angry pursuit of the Defendant.

It didn’t take long for the Victim to catch up to the Defendant.  As it happens, the Defendant had a handgun, and a gunfight ensued.  When the smoke cleared, the Victim lay mortally wounded, and the Defendant was charged with murder.

The Trial

The law of self defense is intended to protect innocent people.  A person who sets out to provoke a conflict cannot normally later claim self defense as a justification for their use of force in those scenarios.  This is the law in Kentucky, as in every other state.

With that principle in mind, the trial the judge had instructed the jury:

“[i]f you believe from the evidence beyond a reasonable doubt that [the Defendant] provoked [the Victim] to use or attempt to use physical force upon the defendant, and that they did so with the intention of causing death or serious physical injury to [the Defendant], then the defense of self-protection is not available to him.”

As a practical matter, this instruction all but assured a guilty verdict.  It was uncontestable that the Defendant’s slashing of the tires had provoked the Victim’s armed pursuit.  And it was inarguable that the Victim had intended to cause the Defendant death or serious bodily force, as he had armed himself with a handgun for his pursuit of the Defendant.

Inevitably, then, the jury returned a verdict of guilty of second degree manslaughter, a lesser-included offense of the original charge of murder.  The Defendant was sentenced to 10 years in prison.

The Supreme Court

Fortunately for the defendant, the Kentucky Constitution allows a direct appeal to the Kentucky Supreme Court where a defendant is sentenced to twenty years or more, allowing the defendant to avoid the intermediate appellate court.  Barker v. Commonwealth, 341 S.W.3d 112 (KY Supreme Court 2011)

The Supreme Court was presented by the Defendant with a large number of substantive reasons to reverse the conviction, along with an equally large number of responses from the Prosecution why the conviction should stand.

The Court, however, never got to any of that.  Because here, for the first time, someone noticed that the trial judge had gotten the law back-assward, a fact that not one of the many trained legal experts involved in the case up to that point had even noticed.

Now, it’s important to understand that a state Supreme Court will usually only be willing to make decisions on specific issues properly brought before it by the parties.  They don’t engage in fishing expeditions for reasons to overturn a verdict.   An issue could be real and important, but if the parties themselves haven’t appealled it, off the side of the ship it goes.

Here, though, the Supreme Court felt itself compelled to act.  The error by the trial judge was such a “palpable error” and such a “manifest injustice” that they simply could not let it stand.  As they noted:

“This issue was not raised on appeal. Neither did this Court go looking for it. However, we bump into it squarely out of the gate because of the general objection to the justification of giving the instruction in the first place. While this Court will not go looking for error not called to our attention, neither can we ignore one which is so glaring and flows naturally under our appellate review of the issue raised.”

The (Correct) Law

In Kentucky, the effect of provocation on the right to self defense is governed by statute KRS 503.060. “Improper use of physical force in self-protection”:

“[T]he use of physical force by a defendant upon another person is not justifiable when:

(2) The defendant, with the intention of causing death or serious physical injury to the other person, provokes the use of physical force by such other person . . .”

The actual statute, like the trial judge’s instruction, has two elements.  First, did the Defendant provoke the Victim’s response–the part is the same as the judge’s instruction. Second, did the defendant intend to cause death or serious bodily injury to the others–this part is the opposite of the judge’s instruction.

The trial judge’s instruction, you’ll remember, required the jurors to determine whether the victim, not the defendant, intended death or serious bodily injury.  And there lay the error.  As the state Supreme Court put it:

“The instruction given in this case is fatally flawed because it fails to properly set out the elements of the statute. It lacks the statutory element requiring Appellant to provoke the victim with the intent to cause death or serious physical injury to him. Instead, the instruction requires that [the Victims] have the intent to cause death or serious physical injury to Appellant. The provocation exception, under KRS 503.060(2), is concerned with the defendant’s state of mind, not the victim’s. . . . [T]he jury was erroneously required to get into the mind of the wrong person.”

Interestingly, the Supreme Court also noted that it appears that the trial jury was sympathetic to the Defendant.   Even with the erroneous instruction, they convicted him only of the lowest degree of homicide permitted to them, rather than the far more serious original murder charge.  The Court speculated whether an ourtright self defense acquittal might not have been the verdict had the jury been property instructed.

The manslaughter conviction was reversed.

Lesson Learned

Not everyone can be a lawyer—heck, we have too many as it is.  Also, there are lots of areas of the law which are so commonly and routinely practiced that it’s reasonably safe to leave them in exclusively in the hands of the legal experts—rules of evidence, for example, or criminal procedure.  In any case, those areas of the law are generally too complex and subtle to be conveniently mastered by a layman.

The law of self defense, however, is different matter entirely.  It is manageable enough in scope that any interested person of reasonable intelligence can become seriously competent with only a modicum of effort, if they have access to the necessary resources.  At the same time, genuine self defense cases are so rare that very few lawyers ever handle more than a handful over their entire careers—and the vast majority of lawyers will never handle even one.

All armed citizens have an obligation, to themselves and their families, to establish and maintain a robust competence in the law of self defense.  Just as the responsible CCW gets initial training in the handling and use of his sidearm, and then builds upon that with regular practice to maintain an acceptable level of proficiency, so should the armed citizen be proficient in the law of self defense in their jurisdiction, and keep up to date on changes, small and large, in the law so as to maintain that proficiency.

And remember, the law of self defense consists of far more than statutes.  Statutes may change only rarely, but the courts apply them frequently, and important if subtle changes in the law often happen in the actual court cases, with such changes being reflected in modifications to the jury instructions.  Having complete competence in the law of self defense means being up to date on all three–statutes, court cases, and jury instructions–just as effective self defense competence with your sidearm means actually having the sidearm with you when you need it, having it loaded, and having the physical and mental skills to appropriately bring it to bear.

Never forget, when you act in self defense the war for your life consists of two major battles—the physical battle, and the legal battle.  You need to win both.  And winning is a lot more likely if you are trained and competent, than if you trust to luck and a kind-hearted prosecutor.

Has Zimmerman Waived His Right to a Pre-Trial "Stand-Your-Ground" Hearing? Learn the Truth.

Since Tuesday’s court hearing on the George Zimmerman case various news organizations and websites have gone into hysterics claiming that Zimmerman has “waived” his right to a pre-trial “Stand-Your-Ground” hearing, and speculating about the implications for such a “bizarre” decision by his lawyer, Mark O’Hara.  Mostly they conclude that it must mean Zimmerman’s legal defense is in serious trouble.  (You can enjoy the theatrics for yourself by simply Googling “George Zimmerman waives hearing”.)

The only problem is that they’re completely wrong.  The pre-trial hearing under discussion has nothing to do with “Stand-Your-Ground”, which is governed by Florida statute §776.031.  It’s actually a hearing on whether Zimmerman is entitled to self defense-based immunity, which is governed by §776.032.  But what is most astounding is that their initial premise, the waiving of Mr. Zimmerman’s rights, didn’t even happen.  There was no waiver—none, nilch, zip.

The flurry of news reports has also prompted a great deal of internet discussion about Florida’s self defense immunity law.  As is not uncommon with internet communications a lot of what is being said is incorrect.  In an effort to help further a more accurate discussion I’ve prepared the following description of Florida’s immunity law, how it’s applied, and the real-world implications for Zimmerman.

The Florida statute that governs immunity in the self defense context is entitled “Immunity from criminal prosecution and civil action for justifiable use of force” and adopted by the state in 2006. Part 1 of the statute provides that a person who engages in legitimate self defense is immune from criminal prosecution.  The reason for such an immunity law is to prevent the all too common situation where a person who lawfully acted in self defense is nevertheless made to suffer the enormous economic and personal costs of a lengthy and pointless trial—often including a devastating loss of income, savings, home, employment, and more.  In such nightmare scenarios even when the exonerated defendant “wins” his criminal trial it is at the cost of losing everything else.

Unfortunately the self defense immunity statute doesn’t say how it is to be implemented.  What is the legal test of qualification? Who applies it?  When?  It fell to the courts to come up with the necessary procedures to answer these questions..  The story of how they did so involves three key court cases:  the appellate decisions of Peterson v. State, 983 So.2d 27 (FL Ct. App.  2008) (Peterson) and Dennis v. State, 17 So.3d 305 (FL Ct. App.  2009) (Dennis I), and the result of an appeal of Dennis I heard by the Florida Supreme Court, in Dennis v. State, 51 So.3d 456 (FL Supreme Court 2010) (Dennis II).

The story really starts with Peterson.  The defendant, Zak Peterson, was charged with attempted first-degree murder for shooting his brother.  Prior to trial he had asked the court to dismiss the charge on the grounds that he was immune from prosecution under §776.032(1).

The judge noted that no rule or procedure had yet been enacted to provide guidance on how to decide such a claim.  So, absent any direction, he decided to conduct a pre-trial hearing where he would make the call himself.  After reading the various depositions and legal arguments, the judge decided that immunity had not been established, and denied the defendant’s request.  The defendant appealed this decision.

On appeal the defendant argued simply that he was entitled to immunity as a matter of law.  The State prosecutors argued that immunity should be denied if there are any facts that dispute the defendant’s self defense claim, no matter how tenuous.  In addition, the State argued that the courts should treat §776.032(1) as simply providing an additional affirmative defense at trial, rather than as providing a means to preclude a trial altogether.

The appellate court made three key decisions:

(1) Florida meant for §776.032 to provide a means to request immunity before trial so that a qualified defendant could avoid the trial altogether.

(2) Immunity should not be denied just because a factual dispute exists.  Instead, the court must decide whether by a “preponderance of evidence” (meaning, “more likely than not”) the defendant was lawfully acting in self defense.  If so, immunity applies.

(3) Should the request for immunity be denied at pretrial, the defendant can request immunity again at trial.

(FYI, this Florida appellate court found excellent guidance for these findings from Colorado, which had struggled with similar self defense immunity procedures.  Of particular help was the Colorado Supreme Court’s analysis in People v. Guenther, 740 P.2d 971 (CO Supreme Court  1987) .)

The following year a different Florida appellate court came to a contradictory conclusion in Dennis I.   Clarence Dennis had been charged with attempted first-degree murder. The lower trial court denied him pre-trial immunity because there was some evidence that contradicted his self defense claim — essentially, the position that lost in Peterson.   Ultimately, Dennis was convicted at trial of the lesser-included charge of felony battery and sentenced to 6 months in prison.

He appealed his conviction.  In a one paragraph decision the appellate court in Dennis I ruled that the lower court’s procedure was appropriate.

With appellate courts from two different districts coming to such contradictory conclusions, the matter caught the eye of Florida’s Supreme Court.  In 2010 it heard the appeal of Dennis I, publishing its own decision that entirely adopted the Peterson approach in Dennis II.

So, what is the Florida’s procedure for self defense immunity as it applies to Zimmerman (or any other defendant seeking self defense immunity)?  First, Zimmerman can make a pre-trial motion for immunity.  At the hearing to decide this motion Zimmerman must show that a preponderance of the evidence supports his claim that his use of force was legally justified.  If the court agrees, the criminal charges are immediately dismissed.

But what happens if Zimmerman loses at the pre-trial hearing?

He will proceed to trial where he is free to make the motion again.  Typically, such motions would be made immediately following the closing of the prosecutor’s case, and again after the defense finishes.  But although at pretrial Zimmerman will have to prove his case by a preponderance of the evidence, at trial the prosecution will have to prove beyond a reasonable doubt that the defendant’s use of force was not in legitimate self defense.

In other words, at pre-trial Zimmerman loses if the prosecution’s can disprove his claim of self defense if it’s merely not the most likely truth.  At trial, however, he loses only if the prosecution can disprove self defense beyond a reasonable doubt, a considerably burden for the prosecution to achieve.

So, a win at the pre-trial immunity hearing is great for Zimmerman in that he is immediately cleared of the charges and he saves the cost, hassle, and risk of going to trial.  On the other hand, a loss at the pre-trial immunity hearing is hardly devastating for the defense. They would proceed to trial exactly as they would have done directly in a jurisdiction without a self defense  immunity statute.  At trial they can again raise the issue of self defense immunity, this time asking the court to rule that the prosecution has failed to disprove self defense beyond a reasonable doubt.

Now that we understand what is meant by a pre-trial immunity hearing (rather than a pre-trial Stand-Your-Ground hearing, which doesn’t exist), and understand Florida’s procedure for determining self defense immunity from prosecution, what exactly happened in the Zimmerman case this past Tuesday?

Zimmerman explicitly did NOT waive his right to a pre-trial motion on immunity.  Rather, he has merely told the court that they would not make the tentative April 22 date for which such a hearing had been originally scheduled.  We know this to be so because the judge herself says so:

Here’s a transcript of the relevant discussion:

Prosecutor:  May I be heard regarding, I know the court briefly touched upon the stand-your-ground under chapter 776.032, and I appreciate the court clarifying that April 22, or asking the defense and then clarifying that we’re not going to have that–

[Note that even the prosecution can’t get this right.  As previously noted,  §776.032 is the immunity statute, and for which the courts have created a pre-trial hearing.  It is §776.031 that covers Stand-Your-Ground, for which there is NO pre-trial hearing.]

Judge Nelson:  Two weeks.

Prosecutor:  –two weeks, that we’re not going to have that.  If understand the defense correctly, they are waiving that, because there has been mention of roll-over to a trial, there has not been a formal motion . . .

Judge Nelson:  I didn’t ask them if they were waiving it, what I asked them was if they were going to be using that two-week period of time.

Prosecutor:  OK.  And the other reason I just wanted to make sure that the record is clear that we would be addressing it a some point if they are or they are not.

Judge Nelson:  We’ll know that when the motion is filed.  So, the two weeks are being released to other people that need the time.

If you keep watching the video you’ll see that the next speaker is Mark O’Hara, Zimmerman’s lawyer.  If he had indeed intended to waive his right to a pre-trial motion on immunity he could certainly have corrected the judge’s “misunderstanding” in real time.    That he didn’t do so is telling.

So, all the media gesticulation about the implications of Zimmerman having “waived” his right to a pre-trial hearing on immunity is meritless.

Nevertheless, it’s clear that Zimmerman has at minimum delayed any such hearing, and may in fact delay it all the way to trial (the so-called potential “roll-over” of immunity into the trial).  Looking forward, there remain a variety of possibilities for Zimmerman to continue to pursue immunity:

(1) He could make a motion for immunity at any point prior to the start of the trial.  The Judge is free, solely on her own discretion, to deny such a motion if it occurs shortly before the trial, but there’s no law prohibiting the request of such a motion.

(2) Zimmerman could wait until the prosecution has presented its case at trial.  Then he would be asking the judge, in essence, to conclude that no reasonable jury could believe, based on the prosecution’s case, that self defense had been disproved beyond a reasonable doubt.

(Incidentally, it is not necessary to have an immunity statute to make such a motion.)

(3) If that mid-trial motion is denied, the defense would present its case, and then before the case is submitted to the jury the defense would again make a motion to dismiss on the basis of immunity from prosecution, for the reasons just discussed.

(4) If that end-of-trial motion is denied, the case would go to the jury, and they would be instructed that unless they find that at least one element of self-defense has been disproved beyond a reasonable doubt they are to find the defendant not guilty of the charges.

Given all that, it’s nevertheless true that Zimmerman has decided not to take advantage of the original April 22 hearing date to pursue a pre-trial motion for immunity.  What rationale could possibly support such a decision?

Zimmerman could possibly believe that a delay puts him in a stronger position.  The discovery process for this trial has more than once resembled a pulling of nails.  Evidence is taking longer to access than it seems should be the case.  Prosecution witnesses once believed to have been telling the truth are now shown to have lied.  It may well be that Zimmerman feels things will continue to move in his favor, and that his case for immunity will be stronger the closer he gets to trial.

Of course, that’s speculation on my part.  What is NOT speculation is that Zimmerman wholly retains the right to make a pre-trial motion on immunity moving forward, and nothing that happened in court this past Tuesday has changed that in any way–no matter how many journalists claim otherwise.

IMPORTANT: This blog post does NOT constitute legal advice, nor does it purport to accurately communicate the laws or court decisions of the jurisdiction of the actual case discussed. This blog post is intended solely for ILLUSTRATIVE PURPOSES, and to provide a forum for the discussion and debate of important issues relevant to the law of self defense. If you are in immediate need of legal counsel, retain a competent attorney in your jurisdiction.

Can a "colorful" past damage a claim of self defense?

I came across a recent Indiana Court of Appeals case that does a good job of explaining what kinds of prior bad acts can be brought up in court to impugn someone’s claims of self defense. Anyone who has led a pure-as-snow life needn’t worry about such issues, I suppose, but if you’ve lived a more, well, colorful past, it might be useful to know whether a jury is likely to hear about that past if you ever find yourself arguing self defense in front of them.


The case at hand is Perry v. State, 956 N.E.2d 41 (IN Ct. App. 2011). (If you’d like to see the full text of the case, I’ll provide a link at the bottom of this post.)

Perry, the Defendant, was accused (among other charges) of assaulting his ex-girlfriend, the Victim. At trial he was found guilty of the assault charge in particular, despite having argued that his use of force against the Victim was justified as self defense. He appealed his conviction on numerous grounds, among which was that the trial court had made a reversible error when it admitted evidence of a number of prior arrests of him for various domestic disturbances.

It was in exploring this argument that the appellate court set out the guidelines for what kinds of prior acts evidence could be admitted, and under what circumstances, in case involving self defense.

Normally, evidence of a Defendant’s past acts cannot be admitted into evidence for the purposes of arguing the Defendant’s propensity for committing the crime for which he is being charged. In other words, the fact that the Defendant did bad thing “X” in the past is not allowed to be considered as a factor in deciding whether he did bad thing “Y” with which he is now charged. The courts do not want to have the jury convict a defendant on charge “Y” simply because they feel he’s a “bad character” based on the prior crime “X”.

There are a few well-accepted exceptions to this general rule, however, where evidence of prior bad acts can be introduced for reasons other than demonstrating “bad character”. For example, acts of prior misconduct may be admissible to prove motive or intent or some other material facts at issue in a case.

For our purposes, however, the most relevant exception is where the defendant is claiming self defense. Once the defendant injects self defense into the court, the prosecution is now free to use evidence of prior misconduct to prove that Defendant was the first aggressor–and if they are successful in this effort they effectively strip the defendant of self defense entirely. (Indiana law provides that “a person is not justified in using force if . . . the person . . . is the initial aggressor.” See IC 35-41-3-2(g)(3).

But does that exception, once self defense is claimed, apply to any and all past acts of misconduct, or only to certain categories of them? Is a mere rumor of a prior bad act enough to get it into evidence, or must there be a criminal conviction of the bad act, or something in between?

Court’s Analysis
The appellate court decided to draw a line in the sand, so to speak, to make clear what types of prior acts would be admissible, and what types would not. Specifically, they decided that “before a defendant’s alleged prior misconduct evidence can be admitted . . . there must be sufficient proof from which a jury could find that the defendant committed the prior acts in question.”

Of course, that simply begs the question–what is a “sufficient proof”? In its wisdom, the court decided that the proof had to be something more than simply an arrest or the bringing of charges. In its view, a mere arrest or charge is not “sufficient proof” that the alleged act even actually occurred, and so it’s not enough to get the prior act admitted into evidence even in a case involving self defense.

Having said that something more than arrest or charging is required, however, the court also made clear that “something more” doesn’t mean “a lot more”–just about anything more will do. (Say, for an example, an affidavit of a witness to the offense charged, perhaps?) Also, the fact that charges remain adjudicated or even resulted in a dismissal doesn’t necessarily mean they can’t be brought into evidence. Indeed, even where the defendant was outright acquitted of the alleged crime, it may still be allowed into evidence as a prior bad act.

But if all the prosecution has is an arrest or a charge, that’s not going to cut it in terms of getting a prior bad act introduced into evidence to show that a defendant claiming self defense was, in fact, the aggressor.

In this particular case, the appellate court decided that the trial court’s admission into evidence of the defendant’s prior bad acts was sufficiently unjust that they reversed his conviction, and remanded the case for retrial consistent with the new rule it had set down. And if you read the case, you’ll see that they made this decision despite the fact that this particular defendant was very much not a nice guy.

IMPORTANT: This blog post does NOT constitute legal advice, nor does it purport to accurately communicate the laws or court decisions of the jurisdiction of the actual case discussed. This blog post is intended solely for ILLUSTRATIVE PURPOSES, and to provide a forum for the discussion and debate of important issues relevant to the law of self defense. If you are in immediate need of legal counsel, retain a competent attorney in your jurisdiction.

Anything you DON'T say can be used against you . . . ?

We’re all familiar with the portion of the Miranda warnings, given upon arrest, that states: “Anything you say or do may be used against you in a court of law.”

But what about anything you DON’T say during the arrest, can THAT be used against you in a court of law, particular in the context of self defense? Doesn’t your right to remain silent mean that you can keep silent without any negative legal consequences?

It may surprise you to learn that the answers to the first question is “yes,” and to the second, “no.” Things left unsaid during the arrest phase in the immediate aftermath of having acted in self defense CAN be used against you in later trial proceedings, and can threaten your ability to successfully argue self defense, and your “right to remain silent” does NOT protect you against such consequences.

This perhaps unexpected reality was brought home to me again when I came across a recent appellate court decision, State v. Gil, 2012 Ill. App. (1st) 110321U (2012), that was decided just this past September.

Gil (the Defendant), was appealing a trial conviction of second degree murder for having stabbed the Victim to death following an argument. At trial, the Defendant testified on her own behalf, stating that she had acted in self defense. The Victim had physically attacked her, she thought the Victim was going to kill her, and the Victim continued striking her until she stabbed him. The Defendant dialed 911 promptly, but the Victim died of his injuries. The Defendant was charged with first degree murder, and ultimately convicted of second degree. She appealed her conviction on numerous grounds.

Appellate Court
On appeal, the Defendant argued that the trial court erred when it refused to admit testimony of prior acts of abuse by the Victim against the Defendant. Such evidence of prior acts of abuse are not normally admissible, but the Appellate Court agreed that such evidence can become admissible in cases of self defense, as proof that the Defendant’s perception of the Victim’s dangerousness were reasonable.

The Appellate Court, however, decided that this Defendant was not entitled to have such evidence admitted because she was not entitled to argue self defense in the first place, no matter what her claims at trial and on appeal. In particular, the court noted explicitly that although the Defendant argued at trial that she had stabbed the Victim in self defense, “When the police arrived, she told [the police officer] that she stabbed the victim because he ” ‘p***** me off,’ ” not because he had beaten her or that she was in fear of her life.” Her admission of being “p***** off” in combination with her failure to speak to being in fear for her life while speaking with the investigating officers convinced the appellate court that her later claims to have acted in self defense were without merit.

The Appellate Court affirmed both the Defendant’s second degree murder conviction and her 20-year prison sentence.

Strategies for what to say to responding officers in the aftermath of having used lethal force in self defense is too lengthy a discussion to cover here. This case does, however, suggest what one should NOT do. You may want to tell the investigators that “I believed he was trying to kill me” –in fact, I’d advise it. You may even want to tell the investigators “I believed he was trying to kill me, and it p***** me off,” (though I wouldn’t recommend that approach. But you definitely do NOT want to tell the investigators that “He p***** me off,” without including anything about being in fear for your life. Doing so can carry profoundly negative implications for later trial and appeal that might not be apparent in the moment.

IMPORTANT: This blog post does NOT constitute legal advice, nor does it purport to accurately communicate the laws or court decisions of the jurisdiction of the actual case discussed. This blog post is intended solely for ILLUSTRATIVE PURPOSES, and to provide a forum for the discussion and debate of important issues relevant to the law of self defense. If you are in immediate need of legal counsel, retain a competent attorney in your jurisdiction.