Hi. Thanks for sharing that. It's really helpful to me to hear of people's real world experiences.
Originally Posted by battlefields
Firstly let me say I'm glad everything went well for you in court.
It's interesting what you say about being left out of the process as it were. That seems to be a common experience for clients. That's why I'm trying to de-mystify the legal mumbo jumbo for people.
As you've seen, it's not exactly rocket science. My aim is to assist people in knowing how the legal *process* works as much as understanding the law itself.
To use a fighting analogy, knowing what style an opponent is proficient in will give you an idea of the sorts of techniques available to him, but if you also know how he applies those moves tactically (by watching videos of him fighting say) then that will probably assist. Like Sun Tsu says: You need to know your enemy as well as yourself. In this case your enemy is the legal system itself. Luckily the system's 'style' is pretty predictable.
If people know the 'tricks of the trade' then that's an advantage (a) if you do get to the stage where you need a lawyer you will, hopefully, have not said/done anything that makes the lawyer's job harder and (b) if you get it right from the start hopefully you won't need a lawyer in the first place.
Oh, if only people would stop eating animals, then PETA wouldn't have to keep producing those posters of naked hot chicks.
Originally Posted by Vieux Normand
Hey, wait a minute....
Excellent thread! Thank you Al for the great posts; this is information that would be of great use to a martial arts practitioner (especially the "strike to kill" folks).
I would like your take on a situation that happened a few years ago. Some friends and myself were at at the third floor of a bar to get drinks and play pool. While standing around a little old man (I will call him LOM) who was around 5'4 and 150 Ibs starts berating us that this was a private event and we were not invited. I'm not sure how much he had to drink but he was at that stage where he thought he was much more intimidating then he really was.
After talking to the bartender, it turned out the private event was over and the third floor was open to the public. The LOM mumbled something under his breath and said he was ok with us staying then.
My wife (being the calm peaceful flower she is) calls the guy out on his attitude and tells him to stop being a F'ing asshole. At this point LOM puffs up his chest, gets right in her face and says "I really want to hurt you right now"
At this point I react and tell him if he touches her I will drop him where he stands. He then gets in my face and says "Oh, you think you can take me?"
I start to laugh at the ridiculousness of the situation. What could I do? I outweigh this guy by at least 40 pounds (18 kilos I believe), am 20 years younger, and am trained in martial arts. Even if he threw a punch and I tossed him I would probably look like a big mean bully considering his delicate nature.
Luckily it didn't come to it as a bouncer escorted the old fool out. My question is, what would have been a legally safe reaction if he had thrown a punch at me? What if he had thrown a punch at my wife?
Originally Posted by CoffeeFan
Why, thank you, it's nice to know people are finding this helpful. it's also useful when people ask specific questions that give me an idea of how to tailor my posts to be useful; I don't just want to pontificate in the abstract.
Your post leads me nicely into the next topics I want to cover: Pre-emptive action and 'triggers' i.e. pre-selected circumstances that will cause you to react in particular ways.
For example, these could include:
If I see a knife i will do x
If he threatens my child/loved one I will do y
If he touches my 'fence' twice i will do z
I'll formulate a proper response to your query whilst I'm at it.
I should have the post up on Friday. I'm currently recovering from a knee to the face so I'm a bit spacey (I'm also off on a date tonight and I've got a nose like a baboon's arse; typical)
This is the best thread I have read for a long time .
OK, so following on from Mr Coffeefan’s post let’s look at the concept of ‘justification’ i.e. How do you establish the honesty of your assessment as to the nature of the threat?
Now, if the assailant was charging at you with a pole-axe whilst shouting “I’m going to kill you!” in front of witnesses then that might not be much of a problem.
However it may be the case that to an outside observer the situation you find yourself in didn’t look that threatening (for example, when the attacker is much smaller than you and/or had not yet done overtly dangerous).
This is especially going to be an issue if you used pre-emptive force.
Now as I have stated before the test is merely the honesty of the belief. That belief can be mistaken but doesn’t have to be reasonable (for criminal law purposes; the situation is different in civil law).
However the more reasonable your belief the more likely it is that people will accept it was honest.
If you simply state: “I honestly thought I was about to be hurt” then that may well be true, but you’ll be in a much better position if you can say: “I honestly thought I was about to be hurt because….”
So, let’s look at ways we can back up our contentions.
Firstly let me make clear that all common law jurisdictions do allow the use of pre-emptive force when that force is justified. You do not have to wait for the assailant to strike the first blow.
However in the real world the police and prosecuting authorities (and indeed any witnesses) may be sceptical if you take out a seemingly innocent person who had done nothing to you.
This is where a bit of background research comes in handy.
If you can demonstrate that you have a rational threat assessment system then that will go a long way in assisting your defence.
Now the thing to remember is that there is no ‘one size fits all’ solution. For example I like the ‘5 stages of a violent attack” methodology for assessing threats. However you may prefer a different model.
That’s fine. The law recognises that reasonable people may have different approaches.
In common law jurisdictions the test for establishing that something was unreasonable is that “NO reasonable person would have come to that conclusion”.
So it doesn’t matter if the majority of people might have believed/done something else. So long as your approach isn’t completely off the wall you’ll be ok.
As I’ve stated before, you want to come across as informed but not paranoid.
So saying “I always assume that any persons of, say, a particular ethnicity, are violent so I got him before he got me” isn’t likely to go down very well. But saying “From news reports I am aware that the apparel the youth was wearing are gang colours and there have been a lot of unprovoked attacks by gang-bangers in this area” then this goes a long way in justifying your wariness.
Of course the more reasons you can put forward for your suspicions the better.
If we call a general understanding of risk (say, knowledge that there have been a number of assaults in a particular area) strategic awareness then we can call assessing a given situation (people taking up particular positioning/stances, verbal clues, body language etc.) tactical awareness.
Good tactical awareness is a great asset in assessing threats; so long as you can explain it to the relevant authorities.
Let me give an example.
Imagine you work for the CPS or DA. You are reviewing a case where someone has used force against a random person in the street.
In scenario 1 the force user says: “There was something not quite right about the person, so I hit him”
In scenario 2 the force user says: “A stranger approached me. He encroached upon my personal space and was right in my face. He was muttering something in broken sentences that didn’t make much sense. I know from my research that the lack of coherence is often associated with the imminent use of violence. He was initially red in the face but suddenly went pale. I am given to understand this is caused by blood flowing to limbs and means a strike is imminent. I therefore believed he was about to strike me. I am ware that even a single blow can have fatal results. Therefore I stuck first in order to prevent the assault”
Which scenario leads to a prosecution?
Now two things to remember here.
Firstly, a ‘gut feeling’ that something is amiss is probably a good indicator. There’s nothing magical about intuition. It is the subliminal processing of situational cues. However it helps if you can rationalise your intuition so you don’t come across as a paranoid lunatic.
How you do that is up to you. One of the best works I’ve seen on this subject is Gavin Debecker’s ‘Gift of fear’ but there are plenty of other resources out there.
Secondly, it doesn’t really matter what system of tactical awareness you use. The key thing is to demonstrate that you are at least using one to assess the situation; rather than just making unwarranted assumptions.
The test is ‘were you honest?’ not ‘were you correct?”
You don’t have to show that you’ve got it right only that there was a basis for your decision.
Of course in both legal and practical terms it’s probably best not to wait until you are about to be attacked to consider all this. So maybe come up with some guidelines in advance.
You can’t envisage every conceivable scenario but think in general terms. You must also take into account context. The way you deal with someone grabbing your collar will probably be different if the grabber is a drunken relative at a wedding reception rather than a crack addled gang-banger down an alleyway.
I stress again there are no definitive right approaches. The key is to merely have given some thought to the matter.
So people may for instance decide things along the lines of:
If someone is wielding a knife I will do (x); or,
If someone says they have a knife I will do (x); or,
If someone moves their hand towards their pocket I will do (x)
[Where (x) is some form of pre-emptive use of force]
The thing is, although the thresholds are different, they are all potentially justifiable.
Or you may have a rule: “If someone merely asks for my wallet I will give it to them but if they seem to threaten my spouse/children then I will use force”
It’s horses for courses but the mere fact that one person’s response may be to cooperate, another’s may be to run away and a third’s may be to use force doesn’t make any particular one of them the right response. They may all be acceptable.
Some of you may be familiar with the concept of ‘the fence’ (a la Geoff Thompson). I have a rule that if I’m ever in a scenario where I need to use the fence the perp gets one verbal warning to back off if he touches my fence but if he touches it a second time I will react. But a rule that he only gets one touch or even that the he gets merely the warning and no free touches may be equally as justifiable. You just need to be able to explain the rationale behind your particular approach.
Another thing to consider is how things look.
I often say: “It’s not what you do that gets you into bother but what you say afterwards”. However it will assist if you can ‘set the scene’ as it were.
Some drunken idiot is making inappropriate comments about your wife and begins to approach her.
Now it may be that you can use verbalisation to head off any threat.
You could for instance say, in a firm manner: “Stay away from my wife” and adopt a suitable posture.
Alternatively you could adopt a submissive stance, use a more plaintive voice and wail: “Please don’t hurt my wife”
Now, whilst the first approach may deter the attacker, if it doesn’t and you then have to take him out, which approach is going to be best when the police start taking statements from witnesses?
It would be easy for the police to infer in the first instance that this was a case of some jealous husband beating up some unfortunate perceived romantic rival.
But the first approach may actually be the one most likely to resolve the issue without the use of violence.
So, as I’ve said there’s no one right response. You just need to be able to show why you (a) assessed the threat as you did and (b) chose that particular response.
I’m not going to teach any of you how to suck eggs on the actual mechanics of confrontation. You’ll all have your own ways of dealing with such encounters. The key thing is that you learn how to rationalise and justify any action you take (or indeed don’t take).
I hope that the previous posts have given you some ideas on how best to do that. One interesting exercise if you do ‘live’ training is, after a scenario drill, explain to the class why you acted like you did. Encourage your classmates to call you out on things (e.g. “why the knock-out strike to the head when you could have just taken him down and pinned him?” etc.) This will set you up in good stead for if the s**t ever gets real.
OK, you’ll be pleased to know that’s the last of the actual ‘law’.
The next and final posts will be about the actual investigative stage and how to deal with questioning in court if you have the misfortune to ever end up on trial.
Of course if anyone has any specific queries feel free to ask. Apart from anything else it’s useful to me to know what people’s concerns are in this field.
If you’d prefer confidentiality feel free to PM me.
Stay safe y’all.
Cheers for that PDA. Glad people are finding this useful.
Originally Posted by PDA
I have a question: if you get into an altercation, is there any obligation to stick around afterwards? Would leaving the scene be seen as guilty behavior? If I seriously injure someone do I have any obligation to help him get medical aid?
Wow Permalost, you psychic or something!? I'm was literally just drafting that topic for my next post!
Originally Posted by Permalost
If you can hang on for a few days I should have the post finished by then. We'll be looking at what 'duty of care' you owe to an assailant.
But quick answer: If you've just given some mugger a bit of a slap and he's not in any immediate danger, then 'no' as a matter of law you probably don't have to stick around (and we'll look at the pros and cons of doings so) but if someone is in a situation where they may suffer permanent injury or death if not treated immediately then something called "the duty of common humanity" (as the courts say in the UK) may kick in.
But as always, there's no definitive answer. if say you were in a rough area or you were worried his mates may turn up then you could justify moving to a safe place before you consider his needs.
OK, so you’ve dashed to the rescue of a damsel in distress. You’ve successfully applied your “Too lethal for special forces”/”Ancient warrior tradition of the Um-Bongo tribe” techniques and now stand triumphantly atop a pile of unconscious adversaries with nary a scratch on you.
What happens next?
Well, most of this is as much common sense as law so I won’t blather on too much. You’ll all have your own, equally valid, opinions about how to deal with he post force scenario. I’ll just set out a few pointers you may want to consider.
Firstly, do you even involve the law at all?
Sometimes that may not be down to you. If there are witnesses then it’s likely that someone will inform the authorities (‘Genovese’ effect notwithstanding).
In that case you should perhaps remain where you are.
Ideally you should keep your mouth shut but because of logorrhoea that’s not always possible; but try not to say anything that will look bad later.
Whilst I secretly would love an opportunity to say: “Quick tip girls, if you’re picking the wrong fight at least pick the right weapon” something along the lines of “Oh my god, I thought they were going to kill me” is going to sound better when read out in court.
If it’s safe to do so and you have the right equipment, it might be a good idea to get someone to snap some pics of any injuries you have sustained, damage to clothing, weapons used by bad guys etc.
The authorities may do this anyway but it’s notorious in the profession that photographs taken later can be deceptive. Bruises change colour, blood may dry/be wiped clean/ swellings go down etc. So an early record is advantageous.
If there are no witnesses then you have to consider whether to call the police.
As a matter of law you owe what is called a “duty of common humanity”; even to criminals.
That’s not to say that if you’ve given a mugger a bit of a slap you have to hang around and comfort him. In that circumstance where there are no life threatening injuries you’re perfectly entitled to go your own way and leave him to limp home.
There may be practical considerations (Does the person know you? Might there be retaliation (either physical or litigious) to consider; but they’re not legal issues so your opinion is as good as mine.
Leaving the scene isn’t necessarily indicative of guilt. It’s often common sense to move from an area of potential danger.
If you are able to say that you managed to stop an attack and run away then that’s fine. You can say that you didn’t think it warranted taking up the police’s valuable time.
If however the assailant is in a bad way and likely to need medical intervention then the ‘duty of care’ does place some obligation on you. You don’t have to put yourself at risk. So leaving the scene in case he has mates or may make a sudden recovery is fine. But once you have got to a safe area then you should contact the authorities.
Think carefully about what you say.
“I’ve just neck cranked a guy and left him choking to death in an alley” sounds bad.
“I’ve just been attacked. I’ve managed to escape but I don’t know if he’s coming after me. Please come quickly” will probably evoke the question “Where is your attacker now?”
You can say where you last saw him. Then it’s for the police to find him and, if necessary, get medical help. But you’ve done your bit.
If you are going to stay on the scene whilst the police arrive take some precautions.
Firstly you should call the police; even if you think someone else has.
Use this as an opportunity to get your side of the story across from the start.
Begin every emergency call with something along the lines of “I have just been attacked” and give details. Then say you have managed to subdue the attacker. Don’t make the first reference the fact that you have injured someone.
Stay on the phone until the police arrive. Describe yourself and what you are wearing. The dispatcher will be relaying this information to the police officers attending.
You need to ensure that they know who the good and bad guys are.
This is especially important in jurisdictions with routinely armed police. If they arrive without prior knowledge of who is who and they see you standing over a downed person, well, you can imagine the potential for fatal misunderstandings.
Give a running commentary: “I am wearing…. I am currently standing in the doorway at…. The attacker is lying on the floor at….Please hurry, I don’t know how long he’ll take to recover and attack me again” etc.
Stay on the phone until the police arrive and you have been positively identified as the person who made the emergency call.
Now remember, if all’s gone well you should be the last man standing. The police haven’t really got a clue as to what’s gone down. They might not take your word for it.
So, whatever happens, be polite and co-operative. Learn to be handcuffed like a gentleman. You’ll be desperate to tell your version of events but WAIT.
Firstly, because of the shock, you may well not have perfect recall of events or the wherewithal to give an accurate account anyway.
Secondly, whilst police will try to make a ‘contemporaneous’ record of what you say, they’ll be quite busy so they may not be able to record your comments at the scene and, as is more likely, if they write them down afterwards they may unintentionally distort what you say.
So wait until there’s an opportunity to give your comments when there will be an accurate record.
The police are very likely to say something along the lines of: “Hang on, we’ll take your statement at the station” anyway.
It’s better to wait until you’ve had a chance to ‘cool down’ anyway. Remember all we said about perceptual distortions/faulty recall etc.
Be polite and cooperative with the police. If you are calm and collected and act as if you are so grateful that the police are involved (notwithstanding being handcuffed, arrested etc.) and the assailant is mouthing off and being aggressive, this will be a good indication as to who is the good guy and who is the bad guy.
Now for some law:
If the police have reasonable suspicion/probable cause for thinking you may have committed an offence then they must caution you/remind you of your rights before questioning you if those answers are to be admissible in court.
However any unsolicited statements you make before being cautioned are admissible. So if you blurt something out that could be incriminatory before you are cautioned it can be used against you.
The police are also allowed to ask preliminary questions before caution to establish whether you are a suspect. So “Were you at such and such location?” is permissible before caution as, until you answer, they can’t really establish whether they need to question you further.
If they decide to question you formally get a lawyer. I’m not just trying to drum up business for the trade here but you are on unfamiliar territory so it’s good to have a guide who knows the ropes.
Whilst “lawyering up” is sometimes seen as indicative of guilt if you deal with it along the lines of: “Do you think I should get a lawyer? I can’t see that I need to as I was the victim.” The police will probably advise you that you should. So that way it looks like you only got a lawyer because the police insisted.
If you get to that stage your own lawyer can advise you on how to proceed better than I can. However ideally you want a lawyer who is experienced in such cases. You don’t want to be having to explain to them about the perceptual distortion/recall aspects of combat.
So, it makes good sense to have the contact details of a lawyer who you can trust in advance. As we used to say in the boy scouts “Be prepared”.
One final word about interviews.
Remember all we said about the threat being subjective but the response being objective?
Technically the only admissible evidence you can give is about your assessment of the threat.
However you can use the interview as an opportunity to give details about why you used the force you did.
Theoretically if an interview is ‘self serving’ i.e., totally exculpatory it is inadmissible. Only incriminating comments are admissible.
You may think this is a bit unfair but the rationale is that out of court statements are hearsay so prima facie inadmissible.
However incriminating statements are an exception to the rule. The theory being that you can’t put much weight on someone saying they are not guilty (after all, they’re bound to say that) but why would someone say something ‘against their interests’ (to use the legal term) unless it was true?
However ‘mixed’ statements are admissible. So where part of the interview supports the prosecution case and part supports the defence case it all goes in.
In a self defence scenario the fact you used force is part of the prosecution case so that bit is admissible; therefore your justification for that force is also admissible.
Remember also that the test for whether to go ahead with a prosecution considers the likelihood of a conviction taking into account any issues the defence may raise. Now is the time to highlight your defence. If the DA/CPS see that you’ve got a good argument they may decide to “NFA” as we say (No further action).
If you just stay schtum and don’t mention your defence then all they’ve got to go on is the fact you’ve just laid someone out. That’s a prima facie case so they will likely proceed with prosecution.
OK, so that’s the investigative stage. The next and final post will be about the trial itself.
I’ve set out a little anecdote below that you may find amusing but feel free to skip it and I’ll see you next time.
I had a client who was accused of ‘Grievous Bodily Harm’. The prosecution case was that my chap was a drug dealer and the victim was someone who owed him money.
My chap was alleged to have invited the victim to meet him at his (my client’s) house) and sawn his arm off.
My client’s case was that the ‘victim’ had in fact come round to his house and tried to sell him some drugs. My client being a respectable sort of chap told him in no uncertain terms that he wasn’t interested. The ‘victim’ then attacked my client. Luckily my client was able to reach for a nearby saw (he’d been doing some DIY) and held it up to defend himself. The ‘victim’ caught his arm on the saw and backed off momentarily. Bu then he attacked again. Luckily my client was till holding the saw up and it caught is arm again causing him to back off. The victim however still kept attacking. Fortunately he caught his arm on the saw every time and eventually his arm fell off.
Now by the time of the trial the ‘victim’ had gone into hiding and had not signed a statement.
The only evidence in the case was my client’s interview where he had set out the above account. The prosecution thought it was a bit unbelievable and were happy to invite the jury to think the same.
However before the trial started the judge, of his own volition and despite the protestations of the prosecution, decided to throw out the interview on the grounds it was entirely self serving!
Without the interview the prosecution had no evidence that my client had even met the ‘victim’ so they had to drop the case!
Last edited by wiccaman; 5/26/2013 3:38pm at .
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