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Legal Training: The Key to Post-Incident Survival

Legal Training: The Key To Post-Incident Survival

Copyright January 2009, John Freeman, Esquire

May not be reproduced, published, or distributed without written permission of the author.

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I frequently speak with gun owners about the nuances of self-defense law. Many times these conversations involve hypothetical fact patterns. Often these fact patterns include an armed citizen having an honest and reasonable belief that deadly force is immediately necessary to stop the murder, serious physical injury, or sexual assault against themselves or a third person. Therefore, the person I am speaking with rightly concludes under Michigan law (which may or may not mirror your jurisdiction) that the use of deadly force to stop the attack is legally justified and no criminal charges or other legal headaches should be forthcoming.

If only things were that simple in the real world.

Many people forget to factor in several wild-cards that are universal in criminal cases, namely the quality and integrity of the law enforcement officers who are responsible for determining whether a particular shooting is justified. A particular shooting may be as righteous as the day is long to you, your family, friends, and gun-range buddies. However, if the police conclude differently, perhaps because of incompetence, poor training, laziness, or even malicious motives, success during the physical fight may lead to an all out war in court.

Fortunately, in the 16 years I have practiced criminal law, the majority of my experiences as both a prosecutor and defense attorney have involved top-notch police investigations. Nevertheless, even assuming a quality investigation, one must beware of a second and perhaps more important variable – the quality and integrity of the prosecutor.

It goes without saying that prosecutors are amazingly powerful, particularly when it comes to their discretion. They decide what, if any, charges to bring against someone. In the absence of blatant misconduct, this discretion is virtually unreviewable by the courts.

In many places, prosecutors commence a case by filing a “complaint”, which is a formal document charging someone with specific offenses. Even in jurisdictions requiring judicial approval of the complaint, the prosecutor often files one based upon unchallenged allegations and hearsay. Once a complaint is filed the damage to the accused is often done, regardless of whether the case is eventually dismissed. Such damage may include adverse consequences to ones reputation, employment status, psychological well-being, financial status, and interpersonal relationships.

To get beyond the complaint stage, some jurisdictions require a grand jury indictment based on probable cause before the prosecutor may pursue felony charges. Other jurisdictions require a preliminary examination and a judicial determination of probable cause. Regardless of the procedures in a particular jurisdiction, only a minimal amount of evidence is required to sustain a probable cause determination. Therefore, most of the time, the grand jury and/or preliminary exam only provide a theoretical barrier between the prosecutor and the accused.

Moreover, the prosecutor controls what evidence to present in the grand jury or at the preliminary exam. And in most jurisdictions, the prosecutor is not required to present evidence that is favorable to the accused.

And sometimes even competent and ethical investigators and prosecutors make mistakes. Fortunately, most of the prosecutors that I know have the professionalism and integrity to admit a mistake by dismissing the case. However, often times such a dismissal is the result of a long defense investigation at considerable financial and emotional expense to the accused.

Infinitely more troubling are instances where the prosecutor is unable or unwilling to make a difficult decision, admit error, and dismiss the case. Instead, the prosecutor proceeds to trial and lets the jury figure it out. Hopefully, the jury gets it right.

Given these practical realities which are inherent in our criminal justice system, it is critical that the armed citizen prepare in advance for what may lie beyond the immediate gun-battle. In short, armed citizens should obtain legal training.

Failure to train legally and prepare for the aftermath may severely limit ones ability to mount a successful defense.

Self-defense is an affirmative defense. The citizen and his/her attorney will be required to introduce evidence that the actions in question were legally justified. Do not count on the police or prosecutor to do this for you. The time to start thinking about this is now, not after shots are fired and the police are on the way.

Skeptics may suggest that such advanced thinking and planning will be used against the armed citizen – that it demonstrates a calculated evil intent. I disagree.

Most people knowledgeable about personal protection do not dispute that tactical training is required for anyone truly serious about surviving a deadly encounter. Legal training is no different. Without it, anyone serious about emerging victorious once the police and prosecutor are finished is missing a critical component of a comprehensive protection plan.

Copyright January 2009, John Freeman, Esquire

May not be reproduced, published, or distributed without written permission of the author.

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