Indiana has a strong affirmative defense penal provision that allows Hoosiers to protect their life, home/curtilage and stop forcible felonies.1 It is a crime to pull a gun on someone and, if it goes further, to shoot them. However, an affirmative defense means even if the State (the prosecutor) meets all of the elements of the crimes associated with pulling a gun and even killing a person, you may be acquitted. The affirmative defense says, in essence, the killing is excused because it is justified. This blog covers the four key points that are generally necessary for a person to maximize his or her chance of being acquitted if they find themselves in that situation based on the affirmative defense of self-defense.
The first is to retain criminal defense counsel deeply familiar with deadly force and its complexities. There are many reasons for this. As a practical and beginning matter, the skilled criminal defense counsel will walk through the details with you moment by moment to find the weaknesses in the charges and why you have the affirmative defense of self-defense. For instance, to be successful in this type of case you must have objectively believed you were at risk of serious bodily harm or death (not addressing protecting your home/curtilage or forcible felonies). In some cases, this may be obvious such as if a person is running at you with a knife. But what if there is no weapon? This is where good lawyering comes in. A 5’ 2”, 100-pound female with a handful of groceries and a purse may well have a reasonable fear of serious bodily injury or death if she finds a 6’ 6” male running toward her in a parking lot late in the evening at a local grocery store. These minute facts are the difference between a successful defense and being convicted and perhaps going to prison. Further, it is most likely your counsel will not allow you to make any further statements to police or otherwise. The reason for this is the more you say—even if you are totally justified—the more likely you will appear to make inconsistent statements because ordinary human communication is not linear and has some circular loops built-into it. The takeaway is you need counsel and to not make statements.
The second part to building your case defense is sometimes time sensitive. For instance, the decision to arrest and charge one of two people in such situations rests with the initial law enforcement responders and then the prosecutor (who decides to make the charge). It is possible a mistake is made by initial responders because one person simply cannot articulate what happened correctly (there is a chemical reaction in the brain that impairs memory in flight or fight situations). Thus, the wrong person is may easily be charged. However, a skilled defense lawyer may do a site survey, discovering there are video cameras that might cover the event, or canvas the area for reluctant witnesses who did not talk with the police. These may make your defense. About every seasoned defense attorney has encountered a client who waits too long to retain counsel and a videotape has been written over or potential witness unable to be located because of the passage of time. Seasoned defense counsel will look at every angle to obtain evidence that may make or break your affirmative defense. This is a gross oversimplification of what occurs with your counsel but presents some examples of why you need to act quickly.
The third and related part of the case is assembling all of the evidence, from police statements and reports, to photos, as well as that additional evidence obtained by your counsel to see how it lines up with your story and affirmative defense—why you were in fear of serious bodily injury or death. A single piece of evidence, considered with your statement, may turn the case in your favor, and clearly show the justification for pulling a firearm or exercising deadly force. This may seem obvious, but evidence of any alleged crime probably will not be pulled together as it related to your case except by your defense counsel. The State (prosecution) focuses on what evidence they need to show they meet the elements of the crime to obtain a conviction.
The fourth part of the case comes from showing you had a reason for self-defense, which requires the self-defense (affirmative defense instruction) to be given to the jury (if you are having a jury trial) and developing a theme in the physical evidence and testimony (normally defendants do not testify) to create reasonable doubt for the jury (the prosecution has to prove every element of the crime beyond a reasonable doubt) by showing you had an objective fear of serious bodily injury or death. This may include innumerable variables, such as location, time of day, different sexes of the alleged “victims” and “perpetrators”. If the jurors believe you committed the crime but had a reasonable belief you did what you did to protect yourself or a third party from serious bodily injury (and even a broken finger may be a serious bodily injury) or imminent death, then you are likely to be acquitted. Due to double jeopardy, you cannot be recharged.
This blog post on what to do if you are charged for pulling a firearm and potentially exercising deadly force is written by attorneys at Dixon & Moseley, P.C. who are intimately versed in firearms law and criminal defense. It is written for general educational purposes only and is not intended as legal advice or solicitation for services. It is an advertisement.