Cases involving self-defense are extremely fact-specific. In other words, every case is different. There are some general rules that do apply, however. First, it is generally a bad idea to argue the merits of your case to investigators. Eyewitness testimony is often absent, or unreliable. The results of forensic testing will not be available for weeks. Many times the decision to make an arrest is a direct consequence of a suspect’s statement. Say the wrong thing, or lie, and you go to jail. Believe me, experienced investigators are very adept at getting suspects to say the wrong thing. On the other hand, silence cannot be used against you. Investigators despise suspects who “lawyer up,” but the only safe course of conduct is to politely request the assistance of counsel when dealing with people who may wish to send you to prison for the rest of your life. This is where the second general rule comes then: you need to consult with an attorney.
It is always better to have a skilled advocate tell your side of the story. After all, this is what you pay an attorney to do. It is important to retain counsel as early in the process as is practicable. Witness memories fade and evidence disappears. An experienced attorney can obtain witness statements and preserve evidence while it is still fresh. He can also pursue forensic testing by independent laboratories, or request additional testing by crime laboratories. Many times a successful claim of self-defense hinges on physical evidence involving firearms, ballistics, blood spatter, DNA, crime scene reconstruction, or medical testimony.
Under current Florida law, every citizen possesses a privilege of self-defense. The Florida Supreme Court has held that this immunity from prosecution entitles a defendant to a hearing before a Judge to determine whether the prosecution has sufficient evidence to overcome the privilege. An attorney who has been involved in the case from day one is better- equipped to file a motion challenging the arrest in a timely fashion. I have seen defendants sit in jail for a year or more before a jury trial could be scheduled. It can be a hollow victory if a wrongly accused person loses everything in his personal life before he can win an acquittal in his case. Unfortunately, most cases will not be disposed of by arguing the motion in front of a judge. Judges are inclined to permit juries to make these types of decisions.
Rule number three: you need an experienced trial attorney who is not learning on the job. The law of self-defense is a mine field. Unless an attorney has actually tried one or more self-defense cases he will not be prepared to deal with all of the issues that arise during a trial. For instance, the standard jury instructions are confusing and contradictory. An attorney must be prepared to tailor the instructions to fit the facts applicable to his client’s case. There are actually two ways a person may use deadly force against another person: defense of self, and defense of felony. Typically, the jury is told that a defendant may use deadly force only in the event that he is under imminent threat of death or great bodily harm , an often difficult obstacle to overcome. On the other hand, one can use deadly force to prevent the imminent commission of a forcible felony, without the need to demonstrate genuine probability of bodily harm. It is always easier to show that a defendant believed that he was the victim of a crime, such as an assault or a burglary, instead of showing that the victim was about to kill him. The standard jury instructions do not properly differentiate between the two types of self-defense and the jury is left with the impression that a defendant cannot use self-defense unless it is established that the victim would have shot or stabbed the defendant if he had not acted first. This is not the law.
There are also two gradations of force: deadly force and non-deadly force. As you might expect, a person has much more leeway in using non-deadly force. Whether a particular instrumentality constitutes deadly force or non-deadly force is often a question for the jury. Many people assume that if a gun is involved, the law applicable to deadly force controls. In fact, the law equates the discharging of a firearm with the use of deadly force. Merely pointing a gun in the direction of a person is not. Likewise, simply because the victim died does not automatically mean that the defendant used deadly force. A lawyer must be prepared to convince the judge and the jury that the law of non-deadly force applies in those situations.
Self-defense, or “justifiable homicide,” as it is defined in the jury instructions, is related to yet another separate and distinct doctrine, namely,”excusable homicide.” Excusable homicide is a death that occurs by accident and misfortune. I have read dozens of statements given by defendants who tell investigators: “I don’t know what happened. The gun just went off.” This brings us back to rule number one concerning statements to investigators. Don’t try to explain what happened. Even though this statement may have been truthful, it is harmful to the defense. Justifiable homicide is an intentional act. Excusable homicide is an act that occurs unintentionally. It is difficult to argue self-defense if the defendant did not know what happened. Again, where deadly force is used, the law requires a defendant to have a reasonable belief that he is about to be injured or killed by the victim. At the very least, it would require the defendant to tell investigators: “I thought he was about to rob me, rape me, or break into my house.” An inexperienced attorney may compound the dilemma by arguing that it was either self-defense or an accident. This strategy is doomed to failure. Jurors are not receptive to a defense that asserts, in effect, “I didn’t do it, and if I did, it was an accident.”
On the other hand, I have represented defendants who, acting on the suggestions of investigators, thought it was better to turn an excusable homicide case into a justifiable homicide case by claiming they were afraid of the victim. If a gun goes off accidentally because a defendant does not know how to operate the firearm safely, that is a defense to a charge of murder. It is not necessary to make up facts concerning a relationship between the defendant and victim in order to substantiate a claim of self-defense. Instead, the attorney should argue that the State has the burden of proving that it was not an accident. This is difficult to do without exploiting statements made by the defendant.
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