News: "Better Presume Your Use of Force Was Caught on Camera"

So you've been involved in a use-of-force event.  A thousand thoughts are running through your adrenaline-distorted brain.  

One thought might be to flee the scene, to try to keep from getting involved in any kind of investigation and all the accompanying legal risk.  After all, you were the good guy, that dude attacked you, you weren't bothering anybody, right? 

Another thought might be to wait for the cops and tell them everything--EVERYTHING!--that happened, to the slightest detail, and answer all their questions fully, on the spot.

Neither of those are good ideas, for reasons to extensive to cover in this blog post, but they do have one particular vulnerability in common--that using either strategy you might well run afoul of a recording that was made of your use-of-force event.

In terms of flight, the recording might well lead to your identification, and now your flight looks like nothing more than consciousness of guilt evidence (a legal doctrine discussed in this recent post). 

In terms of sharing your version of events with responding officers on the scene, the recording might provide in conflict with your stress-influenced and almost certainly badly defective recollection of what happened, making you look like a liar--and lying to police also constitute consciousness of guilt evidence.

Maybe you're objecting, hey, I know if I'm in the city or a well-to-do-neighborhood, there may be surveillance cameras to worry about, but what if I'm in a neighborhood too poor for such stuff? What if my use of force event took place deep in the woods, where there's unlikely to be anything or anyone else anywhere nearby.

The chances that there's a record of your use-of-force may be greater than you think, and the only safe presumption (since you can never be certain that there isn't  such a record) is that in fact a recording has been made.

This all comes to mind as a result of a recent report of a police use-of-force event out of Maine, involving police shooting a male victim, resulting in the victim's death.  

The details of the matter aren't all that important, except that it was a domestic call to the victim's residence, the victim had been reported as intoxicated, and the victim apparently retrieved a firearm upon being contacted on scene by two officers and immediately threatened them with deadly force.  The officers defended themselves, and it has just been announced that no charges will be brought against the officers as it has been determined by prosecutors that their use of force was lawful self-defense.

What's interesting about this case, however, is that despite there being no surveillance cameras at the victim's residence, and apparently no body cam or dash cam video from the police officers involved, a recording of this event was nevertheless made.

How so? By an outdoor surveillance camera on a neighbors residence.  The camera failed to capture video of the shootout, which is nor surprising, but it also had audio capability, and it managed to capture both the officer's shouted commands to the victim as well as the shots fired during the fight. 

So just because there's not camera in sight--and you may well simply be overlooking ones that actually can see you--that doesn't mean their out of sound, and an audible record of events can be as damning as a video recording.  (See, for example, the "loud music" trial of Michael Dunn, in which there was a surveillance recording in which the video was not very helpful to understanding what happened, but in which the audio, combined with forensic evidence, was decisively against Dunn's claim of self-defense.)

Now, the fact that you should presume you are under surveillance while you're defending yourself is not something that should drive you into a panic. The fact is, good guy cases of self-defense don't tend to get into trouble because there's too much evidence in the case.  Good guy cases of self-defense tend to get into trouble because there's too little evidence, too little evidence consistent with self-defense, and the claim of self-defense can be made to look fabricated or speculative.  Generally speaking more evidence is good for us.

Indeed, I'm reminded of the George Zimmerman trial, at a point where he's being questioned by Investigator Chris Serino (sadly, since deceased).  Serino used a perfectly legitimate interrogation technique and lied to Zimmerman about the evidence the police had.  He essentially told Zimmerman that he didn't believe his story of self-defense, because the police knew what had really happened--they'd found, he falsely claimed, surveillance footage of Zimmerman's fight with Trayvon Martin.

Zimmerman's response?  "Thank God."  Because Zimmerman knew that any such surveillance recording could only support his claim of self-defense.

--Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

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