Are you Your Own Worst Character Witness?
Because you carry a firearm, you are at a higher risk of ending up in court. Yes, you may also be less likely to die at the hands of an attacker, but you carry a firearm to mitigate that risk. What do you do to mitigate the risk of ending up in court that could cost you everything you have, or, worse, prison?
If your answer is ‘I'd rather be judged by twelve than carried by six' you're way behind the power curve. The incident does not end once the scene is secure and you are no longer at risk of being attacked. No, it has just begun.
Generally, any physical evidence of what happened on scene will be collected. But specifically, the character evidence that will be uncovered is what I want to address in this article.
In court, the only thing that matters is what can be proven. This should make sense as our system is designed around the principle that it is better that a guilty person walks free than to imprison an innocent person. And to prove a case, evidence is presented.
But the traditional evidence you may be thinking of — crime scene reconstruction, witness statements, or your own statement (though it is not advisable to give a statement without legal representation present) are not flawless and can produce unpredictable outcomes.
Many concealed carriers incorrectly believe their actions will be judged starting at the time of the incident. The truth is your actions will be scrutinized way before you are ‘judged by 12.' Even before the responding officers secure the scene and gather evidence.
And it is this judgment that can play a massive factor in a district attorney filing a charge against you. So any criminal charge (or civil charge for that matter) comes with great jeopardy. Not to mention the financial and emotional strain to you and your family.
We can sometimes be our worst enemies when it comes to our own defense.
Any statements we post online are an obvious one as explained in this article about the pitfalls of posting statements such as ‘I will kill any attacker'. This post will undoubtedly be found and it will be presented as evidence of an aggressive mindset that caused you to continue shooting, even when there was no longer a deadly threat.
That is pretty obvious, but what about other posts in general? Posts like ‘I don't care about no firearm signs' may not even be related to the specific incident. But it can show a general disdain for the rule of law. That may or may not be true, but it is a huge chink in the armor when it comes to your claim of innocence/that you were not the aggressor.
How about any posts that could be construed as showing any racial, ethnic, or any other bias? Yes I realize in today's world where there is a race to claim victim group status and even benign things are labeled as hateful.
But that is the world we currently live in, and that is the world your peers will be plucked from. And even with the voir dire process, you're bound to get jurors who are hyper sensitive to certain words. Again, you may not have a racist bone in your body, but words can be twisted.
Try in your daily life to think very hard if what you post or say can be reasonably construed as hateful. And I will mention that I am not saying you should neuter your 1st Amendment rights. I am saying choose better words when possible.
Any inscriptions on your gun or clothing, etc., can be problematic. While wearing a shirt that reads ‘Kill 'em all and let God sort 'em out' is perfectly legal, wearing one at the time the reasonableness of your actions are being determined is not good.
Again, your actions may be reasonable and appropriate, but a shirt like that does not scream ‘I used my firearm when all lesser means failed or were unreasonable.' Same for grim reaper grip plates, punisher emblems or inscriptions like ‘smile and wait for the flash.'
They're all perfectly legal, and those alone do not make you a bad person, but they could raise a cloud of doubt about your actions and if they were, indeed, reasonable. Ask yourself, do I want what is written on my shirt to be what people think is in my head?
Interactions you had with co-workers, former relationships, police, or random people will also be used as a snapshot to show your true demeanor. It may feel good to always get the last word in, or stand up because ‘nobody is going to disrespect me!'
But in reality, if anyone comes forward to say they have had interactions with you and they describe those interactions as you being a hot head, having a short temper, being a generally aggressive person etc., you should bet on that fact weighing in on the reasonableness of your actions.
These are things you can do to limit future interactions and posts, but what about posts or incidents we regret? My best advice is if the time ever comes where you are in a situation like this, be upfront with your legal representation.
Give them a heads up that for example ‘you had a fight with a co-worker and threatened to kill them.' Sure nothing came from it back then, and you never acted on it nor even intended to actually kill them. But your attorney can be better prepared if they see that person's name on the witness list.
Don't try to downplay, cover up or whitewash your history. Things have a strange way of coming to light, and people in general are pretty forgiving when they see someone who generally accepts wrongdoing. It is actually a mark of good character to accept responsibility.
So, while you may not testify, if you do, instead of stating that former co-worker is lying about you saying you would kill them during the fight, for fear it may make you look like a hot head, own it.
Instead saying something like, I did say that during a heated argument, but I regret saying it and realized that is not the kind of person I am. Since then I have changed the way I react in these situations and find I can deescalate arguments very well.
Owning up to it displays a mature character and may even resonate with a juror who remembers saying something they regret, but believes themselves to be reasonable.
I anticipate some who read this will argue that these are all compromises they should not have to make.
My answer to this is: Okay, I promise not to force you to do anything I mentioned in the article, in fact I imagine you did not read it at gunpoint. The advice in this article is not for people who acted illegally or unreasonably.
These people will have to face the consequences of their own actions.
This advice is actually for the overwhelming majority of readers who would only use force morally and legally. I just want to make it harder for a prosecutor to even think about charging you with a crime after you just had to fight for your life.
Stay safe and God bless.
P.S. If you don't have some sort of self-defense insurance, you really should. You can compare the bigger companies in that space on our self-defense insurance chart.
Great post Matthew. Save advice indeed, and learning to leave, at least the damaging part, of your testosterone at home and not needing to get the last word will serve the well-intentioned. After all, we WILL be judged. Just how it is!
Good stuff. Given that jury selection was mentioned, one caution: jury “selection” is a misnomer. Your attorney does NOT get to SELECT your jury. If he had that authority he’d win every case. Your attorney has a modest ability to DE-select individual jurors. He’s largely stuck with whatever the jury pool gives him. For better or worse.
But seriously, nice job, enjoyed reading.
Attorney Andrew F. Branca
Law of Self Defense LLC
Thank you! I appreciate you explaining that up much better than I did. That is why you’re the expert you are!