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 is a Massachusetts lawyer and the author of the seminal book “The Law of Self Defense, 3rd Edition,” available at the Law of Self Defense website (autographed copies available) and Amazon.com (paperback and Kindle), and many other re-sellers. Andrew just launched his latest product, the LOSD Instructor Program, designed for gun safety, marksmanship and tactical strategy instructors. Be an elite member of the self defense community, understanding your state's self defense laws to a depth even lawyers rarely achieve. Check it out here.   Andrew also gives live, in-person, ~5 hour-long state-specific Law of Self Defense Seminars all over the country. Click here to find a live seminar covering your state's self-defense laws.   Andrew also produces many 4-5 hour online, on-demand state-specific Law of Self Defense training courses. These online classes are enriched versions of the live, in-person state-specific Law of Self Defense Class Andrew gives all around the country. Click here to find an online course for your state. These online classes are priced at $249/HOUSEHOLD. You can learn more details and view the first section of the training class for free (about 30 minutes worth of self-defense law training) by clicking here.

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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