One Drawback to the "Say NOTHING to the Police!" Approach

Many people advocate that in the aftermath of a defensive use-of-force event you say literally nothing to the police except that you want to speak with your lawyer. And that “Say NOTHING” approach is one way to go.

At Law of Self Defense, however, we suggest you consider an alternative, the “Say LITTLE” approach–meaning, saying a few very specific things, then asserting your rights to silence and counsel. Among the things we suggest saying, even before having your attorney present, is that your use of force was an act of self-defense.

One reason we suggest this is that most claims of self-defense are simply BS claims by bad guys, and these are often fabricated after the fact while they’re sitting in their holding cell. If you defer claiming self-defense until hours after your first interaction with the police, you begin to look a lot like one of those fabricators. And if you DO, you can rest assured that this fact will be brought up in trial.

As an example, there is currently a murder trial taking place in Las Cruces NM over a 2014 shooting. In that event the defendant “shooter” who is now claiming self-defense was read his rights, and then refused to say anything further.

This was brought up before the jury at trial:

After agreeing that he understood his Miranda rights, [defendant] Chan declined to be interviewed by LCPD detective Rene Molenda about the incident, according to audio, which sounded slightly muffled in the courtroom.

Rene Molenda said that Chan “appeared disassociated” when he spoke with him but not impaired.

[Prosecutor] Clark asked Molinda if any other officers had told him that Chan had claimed earlier the shooting was an act of self-defense.

“I don’t recall hearing that information,” Molenda said.

Source: “Trial Day 5: Hotel Encanto guests heard arguing, gunshots”

So the defendant “Said NOTHING!” about self-defense at the time of the event, raising the justification only much later.

Why do you think the prosecutor asked that question? Answer: to solicit that response. A skilled prosecutor NEVER asks a question without the deliberate intent of obtaining a specific response, and with a specific purpose for obtaining that response.

What do you think is the point the prosecutor is trying to get across to the jury? That the defendant was fully capable when first questioned by officers of stating that he’d acted in self-defense, if that were in fact the case, but he nevertheless didn’t say a WORD about self-defense when presented with that opportunity.  Sure looks a lot like the common criminal who fabricates a claim of self-defense after the fact.

What’s the jury going to think? That a person who has acted in lawful self-defense has no reason to defer saying so, because acting in lawful self-defense is LAWFUL.

If you’re going to EVER claim self-defense as a justification for your actions, you’re necessarily going to HAVE to concede it was YOU who executed that use of defensive force, ANYWAY. So there’s absolutely no legal harm that can come to you from stating to the police at the scene–I acted in self-defense–what you’re inevitably going to have to state later on in the process, anyway.

The advantage of the “Say NOTHING” approach is that if you say NOTHING, then nothing you say can be used against you in court.

But don’t for a moment imagine that the “Say NOTHING” approach doesn’t also come with some very substantial baggage. Being made to look as if you fabricated your claim of self-defense after the fact is just one of the weaknesses of the “Say NOTHING” approach.

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.

2 Comments on "One Drawback to the "Say NOTHING to the Police!" Approach"

  1. Well what you write is nice, but a law professor (James Duane, a professor at Regent Law School) and veteran cop (George Bruch, Virgina Beach PD) say otherwise:
    https://www.youtube.com/watch?v=i8z7NC5sgik
    https://www.youtube.com/watch?v=08fZQWjDVKE

    Love to hear what you think of what the two say in comparison to what you write above, and how you avoid the traps both the professor and the cop show that can easily take an innocent person and make them look guilty as sin (Leaving aside the long history of police departments, DAs, and police experts across this county “testilying” in court”.

    • Thanks for your comment.

      As it happens, I’ve previously thoroughly debunked Prof. Duane on this issue, and he’s declined my invitation to debate the matter. #shrug

      As for the police officer’s legal advice, I’ll take legal advice from a cop when we start sending lawyers to make felony arrests. 🙂

      –Andrew, @LawSelfDefense

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