Why you should talk to a lawyer before talking to the police...

This article is about surviving the trauma of killing or seriously wounding an attacker that was trying to kill you or someone in your family, the social trauma that I call being shaken by the neck by a huge gorilla.

If you survive the battle, the fight is not over yet.  Now you must pass the police test, the prosecutor’s test and perhaps even the court room battle. And what you say can be used against you later in the process.

To start with, I am relying upon two studies (backed up by many more), that discuss the effects of high stress due to violence (called either critical incident stress, CIS or Sympathetic Nervous System Stress, SNS) upon trained police officers and military personnel.

I recommend that you read both of these articles for yourself, and apply the findings to yourself as an ordinary citizen who lacks the back up and point of view of a trained professional.

In short, high stress causes both memory loss and false memories of what happened. While the police are cautioned to take this into account in their debriefing of an officer after a shooting, there is no onus upon them to deal with you in the same gentle way. In fact, if someone is dead on the ground after a fight, it is usually the attacker still standing, so they will be looking at you with prejudiced eyes.

If you are under the influence of stress related memory problems, your story will radically change as your memory returns, opening you to charges of lying or obstruction.

The first report I have chosen is called:

Perceptual and memory distortion during officer-involved shootings: as published in the FBI Law Enforcement Bulletin, Oct, 2002 by Alexis Artwohl


While the opening paragraphs are very eye-opening about officer reported memories and perceptual distortions while being involved in a shooting incident, I’ll leave them for you to read yourself. I have selected six paragraphs from this nine page report, to highlight the ideas I believe are important to our topic.

1.
“…representative samples, taken from actual officer-involved shootings, exemplify the quirky nature of perception and memory. Law enforcement officers fully realize that their superiors, legal authorities, and the public they serve will hold them completely accountable for their every action during an officer-involved shooting. These same individuals also will scrutinize the accuracy and truthfulness of statements made by officers taking part in such incidents. Therefore, it becomes important to understand that expecting officers to have perfect recall of any event is not realistic. Indeed, the body of research on perception and memory supports the fact that people rarely are capable of total and perfect recall of events.”

2.
“In 1998, two other researchers studied a variety of reactions in 348 officers involved in shootings. 22 percent of the officers reported memory loss for part of the incident.”

3.
“Regardless of the methodological differences that might have contributed to these deviations, the most important finding remained the same for all. That is, independent studies using different methodologies found that memory and perceptual distortions, in fact, did occur to some degree in officer-involved shootings. Therefore, those who analyze the actions and statements of officers involved in shootings must take these findings into account. Two researchers stated this clearly after finding that 22 percent of officers in their survey experienced memory loss.”

4.
“While other studies have reported even higher numbers, 22 percent remains a highly significant amount given that the officers will be expected to testify regarding their actions sometime in the future. What appears to be a relatively common perceptual disturbance following involvement in a critical incident has the potential of opening up the officers to accusations of either outright lying or withholding the truth. This is particularly relevant should subsequent interviews result in additional observations or clarifications, as is often the case.”

5.
“When confronted with a videotape that conclusively proved that he saw things that did not happen, a veteran SWAT officer told the author, "Doc, I now intellectually know that what I thought I saw didn’t really happen, but it still feels more real to me than what I saw on the tape." Some witnesses sincerely and vehemently will insist that their perceptions and memories are accurate when, in fact, they may not be accurate at all.”

6.
“Another research review found that traumatic situations will inevitably result in memory impairment. These researchers pointed out, and the author agrees, that officers may make more thorough and accurate statements if they wait at least 24 hours, during which time they should get some sleep, before participating in their formal interview with investigators.
Research evidence suggests that REM (rapid eye movement) sleep, in particular, helps integrate memories and facilitate learning and memory retrieval. Some officers might appear unusually calm shortly after an incident and may prefer to give an immediate full statement.
Often, however, it is best for officers to sleep first and give their statements later. This does not preclude their providing enough brief information during an immediate on-scene "walk-through" to get the investigation started.”

 


It is my contention that if sleeping for one sleep period or even two, helps an officer have better recall of the incident, how much more is it necessary for us ordinary folk? Taking the tip from paragraph six here, we can give enough brief information for the investigation to get underway, but then we should clam up and ask for a lawyer to be present. If someone implies that only the guilty need a lawyer, inform them that you are just too shaken up and highly stressed out to talk and you need your lawyer’s advice. Then be quiet. You must take the time to allow your heart rate to reduce, your emotions to quiet and your mind to settle.

Your lawyer can instruct the police that you are quite willing to cooperate when you feel more emotionally balanced, and will return to give a statement within the next 48 hours. If you are held in custody, it may be hard, but sleep is your most important survival tactic at this time. And all this is especially relevant if you justifiably defended yourself from a life threatening attack.


Here is the second report (three paragraphs exerpted) I’ve chosen to back up this idea that your memories of what just happened may be false or distorted and therefore you should not talk to the police beyond some simple indications of what happened so they may start their investigation.

SURVIVAL STRESS RESEARCH ABSTRACT
by By Darrell L. Ross, Ph.D. and Bruce K. Siddle


1.
“Table 3 reveals the impact of stress on thoughts, emotions, and memory. Almost one-third of the physical force officers and slightly over one-third of the lethal force officers experienced memory loss after the event. For a majority of the officers reporting memory loss, it took two sleep cycles (20/17%) to recall the event. More commonly, memory was restored between a few hours and one sleep cycle for both groups. Of the lethal force group, 42 percent compared to 36 of the physical altercation officers reported a triggering event assisted in the memory of the event, the most significant being a visual trigger. A significant number of both groups did not recall when the memory returned following the event.”

2.
“These findings underscore what Grossman (1995) and Siddle (1995) independently found through different research in the combat arena (military vs. police).

Grossman and Siddle (1995) combined their research and labelled the memory loss phenomena as “Critical Incident Amnesia” (1998), reporting that the greater the stress the greater potential will be for memory problems to occur.”


3.
“During high levels of SNS (Sympathetic Nervous System) excitement, however, cortisol is released at higher levels. A release of too much cortisol can lead to individual neuron binding, resulting in a burning of the nerve cell.

This results in the hippocampus’ inability to organize the components of a survival stress event into a whole memory unit (Ratey, 2001). Thus, memory will be fragmented, especially within the first 72 hours.”


It is this report that punches up the time required for complete memory integration and recall to as high as 72 hours. Instruct your lawyer to get you as much time as he can (you may not be able to get into REM sleep for a night or two) to help with memory integration. It may be necessary to provide him with copies of these articles to get him to pay attention, perhaps by giving him the url for defendyourself101.ca <hint, hint>.

Also, the line in paragraph 1. “...officers reported a triggering event assisted in the memory of the event, the most significant being a visual trigger,” refers to walking through the scene of the attack and going over the details in sequence.

While the lawyer is invaluable in instructing you on fine points of the law and how to speak to the investigating detectives, his most important role may just be helping you to get some sleep.

ADDENDUM: since I am Canadian and therefore know nothing about gun laws and stats from the states, I quote this essay:

When I am asked by lawyers to provide them with expert consultation in shooting cases, I always make it a point to ask several, general questions about strategies for gun owners/carriers. This advice I, in turn, pass on to my students:

 The most dangerous and damaging single thing one can do in the wake of a lethal confrontation, the one act that fatally damages most claims of legitimate self-defense? Answering questions asked by police investigators, at the scene, without first insisting on having your attorney present.

———————————————————