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

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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.

Background
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.

Take-Away
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.

About the Author

Andrew Branca
Andrew F. Branca, Esq. is currently in his third decade of practicing law, and is an internationally-recognized expert on the law of self-defense of the United States. Andrew is a Guest Lecturer at the Federal Bureau of Investigation’s National Academy, a former Guest Instructor at the Sig Sauer Academy, an NRA Life-Benefactor Member, and an NRA Certified Instructor. He also teaches lawyers how to argue self-defense cases as a certified instructor with the Continuing Legal Education (CLE) system in numerous states around the country. Andrew is also a host on the Outdoor Channel’s TV show “The Best Defense” and contributor to the National Review Online. Andrew has been quoted as a SME (subject-matter expert) on use-of-force law by the Wall Street Journal, the Chicago Tribune, the Washington Post, and many other mainstream media, including nationally syndicated broadcast media. Recently, Andrew won the UC Berkeley Law School debate on “Stand-Your-Ground,” and spoke at the NRA Annual Meeting Law Symposium on self-defense law. He is also a founding member of USCCA’s Legal Advisory Board. In addition to being a lawyer, Andrew is also a competitive handgun shooter, an IDPA Charter/Life member (IDPA #13), and a Master-class competitor in multiple IDPA divisions.

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