Investigative Incompetence

In a recent article called “Investigative Incompetence” by Marty Hayes, in Gun Digest Volume 40 Issue 8 June 2023, a startling claim was made:

“In fact, based upon the cases I’ve worked, I’d estimate that at least half of the homicide investigations have major flaws in them. If you’re involved in a self-defense homicide, you probably have a 50/50 chance of the homicide being investigated competently.”

Wow. Put another way, you have a 50/50 chance of your self-defense case being investigated incompetently. This statistic, of course, is based upon Hayes’ experience, but the article doesn’t list his years of expert witness experience, only his 30-year teaching experience. However, given his listed credentials, I see no reason to doubt Hayes’ experiences.

After covering some cases of bad investigation, the second half of the article critiques “internet commandos” who say, “Never talk to the police.” While I’m sure there are such people, there are also respected criminal defense attorneys who recommend minimal communication with the police. The question is, why?
The reason is that everything you say to the police in this situation can be used against you. Furthermore, it will only be used to prosecute you. Your defense can’t use this information to protect you. In addition, it may be months before your trial. All the law enforcement officer has to remember about their encounter is what they wrote down. How accurate will that be? In conclusion, Mayes writes:

“The moral of the story is that, after a self-defense shooting, make sure the police know the reason why you used deadly force so they can correctly investigate the incident. This means you need to either explain what the deceased was doing that caused you to fear for your life and – as importantly – what evidence exists to back up your story. If there are witnesses, make sure the police know who might have seen the event. Next would probably be a good time to invoke your right to remain silent […].”

Sadly, I’ve never seen these articles convey why you should invoke your right to be silent at this point. After all, if you trust the police to investigate the situation, why wouldn’t you tell them everything you know at this point?

The critical point is that it won’t matter – you will likely say way too much following this advice. Why? Let’s look at Mayes’ fictional example:

“[…] let’s say you’re accosted by an armed robber who threatens you with a knife, and you respond with deadly force. The shot you fire doesn’t drop the perpetrator immediately, but he runs off, tosses the knife in some bushes, and then expires. You refuse to talk to the police. They have no evidence of the robbery or the knife, because you refuse to tell them about the knife and where the deceased tossed it.”

Let’s provide some background to this example:

This is likely the first time you have ever been in a violent incident as a civilian. You will be incredibly nervous and stressed out.
Given that you have just taken a life, even though you feel you were justified, you are probably worried about going to prison if the police aren’t on your side.
Most concealed carriers strongly support law enforcement.
Contrary to the example, I’m going to assume the suspect didn’t know the perpetrator threw the knife away, much less see where it was thrown. I find that unlikely.

Now, let’s walk through some sample dialogs here between you the suspect and the police. You are at the scene when the police show up, and let’s assume your firearm is far away from you and clearly unloaded.

Scenario 1

Scenario 2

Scenario 3

POLICE: Tell me your name and what happened here.
SUSPECT: My name is John Smith; I’m a concealed carry permit holder. I was walking to my car, and a man tried to rob me with a knife. I felt he was going to kill me, so I shot him.
POLICE: This area is common for drug dealing. Are you the dealer or the druggie?
SUSPECT: blab blab blab blab

Scenario 4

In short, based on the background information, we can see how incredibly easy it would be to get a suspect talking. Police are trained how to make people spill their guts in these situations. Too often, people focus on TV style interrogations and “come down to the station” style scenarios. However, these “at the scene” situations are much easier for police to extract information. All the police need to do is offer an opinion the suspect is in the wrong. That opinion, given the background assumptions, is all that is needed to get a suspect to sing like a canary. So, while I’m sympathetic to Mayes’ argument, I don’t have confidence that many people can pull it off given our background assumptions.

Before we get too critical of the police, an important point here is that the police rarely deal with cut-and-dried situations. Often, two parties are blameworthy in the escalation that proceeded the violence. If you ever had a friend whose relationships are never successful and they always blame the other person (and they have no self-awareness about their own deficiencies), this situation is a lot like what police deal with daily, except the stakes are much higher. Let’s go through a more realistic scenario.

Scenario 5

POLICE: Tell me your name and what happened here.
SUSPECT: My name is John Smith; I’m a concealed carry permit holder. I was walking to my car, and a man tried to rob me with a knife. I felt he was going to kill me, so I shot him.
POLICE: So, you’re telling me that the first thing he does is pull a knife and tell you he will rob you?
SUSPECT: No. He asked me for a cigarette, and I said I didn’t smoke. Then he asked me if I had any money I could give him.
POLICE: Then you shot him?
SUSPECT: NO! I told him I didn’t have any money to give him. He got upset and started cussing me out. He then told me he could kill me right now, take my money, and no one would ever know.
POLICE: Then he pulled the knife?
SUSPECT: No. I backed away, put my hand on my gun, and told him I was armed.
POLICE: Oh, so he pulled the knife after you threatened him with your gun.
SUSPECT: I’m no longer talking to you without my attorney present.

Now, imagine your criminal defense attorney looking at this transcript. What will they say about your willingness to talk to the police? Unfortunately, as much as a concealed carrier values law enforcement, they are not your friend in this situation. Do you know who your friend is? You are. Here is my recommendation.

Get an attorney on retainer. Ask your attorney about body cameras, whether they are legal in your state, about whether your state has one-party consent for audio recording, whether to tell the police about your body camera and so forth. Assuming these devices are legal, if you strap on a gun, strap on your recording devices. For starters, any time you are going back and forth from your vehicle or hotel room, start recording. Your own evidence is the best evidence in this situation.

If you feel like your body cam / audio recordings can convict you, then you probably shouldn’t be carrying a firearm. They are what will allow the jury to feel what you felt, see what you see, and optionally hear what you heard. In comparison, the jury will only have the police officer’s testimony about what happened. Revisit Scenario 5 and ask yourself if that is what you want.

In short, stop relying on investigators who may or may not be competent, witnesses who may or may not be there, and the police who are not your friend. Keep in mind that their mistakes, or your mistakes from talking too much, can send you to prison. Rely on yourself.

The good news is that despite 330 million people in the United States and millions of concealed carriers, the number of justified homicides by a private citizen is incredibly tiny (typically, less than 500 per year). Instead, when we look at Defensive Gun Use (DGU) statistics (DGUS happen over 1.5 million times per year), we see these common circumstances:

80 percent of DGUs happen at the home or the property of the home.
80 percent of DGUs do not result in the victim discharging their firearm.
Less than 10 percent of DGUs happen in normal concealed carry situations.

These statistics are the reason I spend a lot of time in my book on home security. Properly preparing your home can prevent crime as well as provide substantial evidence against any perpetrator.