Four Lies: You, Our Courts and Self-Defense

Discussion in 'Self Defence' started by Marc MacYoung, Nov 9, 2012.

  1. Marc MacYoung

    Marc MacYoung Valued Member

    I'm going to start by lying to you.

    In fact I'm such a big liar, I'll tell you four falsehoods about the US legal system, self-defense, and what to expect when you are caught in the meat grinder.

    Well to be more precise, I'm going to tell you four 'lies to children.'

    It's funny that I use the word 'precise' because 'a lie-to-children' is: A statement that is false, but nevertheless leads the child's mind toward a more accurate explanation, one that the child will only be able to appreciate if it has been primed with the lie.

    Those are Terry Pratchett's exact words in his book The Science of Discworld (a very funny fantasy series). I got the term 'lies to children' from him.

    But let's expand on the concept. The Discworld Wiki says: Any explanation of an observed phenomenon which, while not 100 percent scientifically accurate, is simple enough, and just accurate enough, to convey the beginnings of understanding to anyone who is new to the subject. There is always time to fill them in on the fine detail further down the road. This describes the sort of axioms we tell young children when they are beginning to get to grips with science. (

    Got it? Not exactly true, but true enough to get you ready to understand more complex -- and nuanced -- information.

    So here are the four lies about what you will encounter in court when you claim 'self-defense:'
    1) "Most attorneys don't know how defend an innocent person."
    2) The burden of proof is on you.
    3) The roles change.
    4) There are prosecutors who think if someone died, there must be a crime.

    These four 'lies' will help you understand what you will be facing and not be traumatized by what happens to you after a self-defense situation.

    1) "Attorneys don't know how to defend an innocent person."

    I first heard this statement from Massad Ayoob. It is a great sound bite. One that makes you stop and say, "Wha ... ?" And well it should.

    Mas told me this before I started doing expert witness work in court. Even then it made sense. But to tell you the truth, that was before I had first-hand experience with how much lawyers DON'T know about violence, much less self-defense. Or how little they understand about effectively defending someone who acted in legitimate self-defense. There is a big reason why it tops the list of lies to children you need to know.

    To understand why, you have to know something not about the law but our legal system. (For the record, those are not the same thing.)When it comes to how criminals interact with the legal system, hands down, the most common 'defense' is SODDI (Some Other Dude Did It).

    Simplifying an incredibly complex process, it is up to the prosecution to 'prove' it was the defendant, not some other dude, who did it. This is done -- partly -- because of 'burden of proof.' The state brings evidence to prove to the jury it was the defendant who acted, how he did it, and why.

    It is the defense's job to tear down the state's case, to pick it apart. And in doing so convince the jury the state is wrong. Erroneous in either having the wrong person, mistaken about what happened, or incorrect about how the police went about investigating and collecting evidence. Often this is done by tearing apart what the state brings to meet their burden of proof requirement.

    Without opening a huge can of worms let me give you another gross simplification: What the 'facts' are (read, what the jury is allowed to know) and what the facts 'mean' is going to either convict you or set you free.

    Each side is going to try to sell the significance of the evidence to the jury. If the prosecutor can get them to believe this means that, you're going to prison. If you defense attorney can convince them this means something else, you'll be acquitted. This is all done in an 'adversarial' process. Keep that in mind because dealing with the legal system will be the second attack on your life (and freedom).

    Now the ironic thing is a defense attorney defends an innocent person (someone who actually didn't do it) in much the same manner as a guilty person. whom the attorney is trying to get off. Basically, if the guy didn't do it, you rip apart the state's case, challenge the evidence, and show that the 'proof' ... well ... isn't.

    This same strategy attempts to undermine the state's case when the guy did do it. Guilty or innocent, when SODDI is maintained throughout the process the defense strategy is basically the same.

    But now, let's restart the process at the police station. After SODDI doesn't work with the cops, the most common tactic is for the criminal to try to claim 'self-defense.' This is a real stupid move if it wasn't. That's because claiming 'self-defense' is what is known as an 'affirmative defense.'

    In essence, it is you confessing to a crime.

    Keep that fundamental point in mind. By claiming self-defense, you have just done three-fourths of the prosecutor's job for him or her.

    Now, there is no need for the state to disprove SODDI. The self-defense defense (and no I didn't stutter) is you saying, "Yes, I did it. I committed an act that is normally a crime. BUT I had justifiable reasons to do it."

    That is where things start going off track from the normal strategies of 'he did it' vs. 'no he didn't.'

    It also is here that the original sound bite needs to be modified. Modified to "most attorneys do not know how to defend a legitimate affirmative defense."


    A horribly gross oversimplification is: Their primary strategy to tear apart the state's case *doesn't* work with an affirmative defense. In fact, I agree with Mas's next contention: An attorney's default defense strategy will convict someone who legitimately acted in self-defense.

    But, I'm going to add a caveat.

    It's been my experience that defense attorney's shift into 'damage control' mode when it comes to affirmative defense cases. That is to say, they figure you're going to be convicted so they try to reduce what you are convicted of. This still works with tear-apart-the-state's-case because the attorney goes after the worst charges -- like it was murder, instead angling for manslaughter.

    This also puts us in the land of plea bargains. Realistically most defense attorneys don't want to go into court with a self-defense defense. The attorney's reasons why are of no concern. There is something you need to know: If you don't take the plea, go to court claiming self-defense on the original charge AND you lose, you're going to get the book thrown at you. Right, wrong, fair or not, that's how it works in our legal system -- deal with it.

    Wow, that makes you feel all warm and fuzzy about your chances doesn't it? Are you now beginning to realize why you need an attorney who knows how to defend you and your affirmative defense?

    I'm going to give you a teaser about which direction a defense attorney needs to shift in order to defend someone who is legitimately claiming self-defense. Unfortunately, it's a teaser -- until you know the next two lies to children (which I'm also about to give you) -- that won't make much sense.

    That is instead of adversarial, use a strategy of "Yes and ..."

    2) The burden of proof is on you.

    This statement makes lawyers' teeth itch. That's because they know exactly what the term 'burden of proof' means in our legal system. It is a very specific term with an exact meaning. And I'm using it way wrong.

    It's also, however, the best and fastest way to communicate to the Average Joe what he and his lawyer have to do in order to prove it WAS self-defense. It is a really good 'lie to children.'

    Just so the lawyers reading this won't try to use anti-itch cream as toothpaste, the proper term is 'production of evidence.' But for the layman, calling it 'burden of proof' is something they've seen on TV.

    That's why knowing it is now 'on you' is so important.

    The idea is, once you claim 'self-defense' you're going to have to show up with a boatload of evidence why it was. Why what he was doing was dangerous enough to warrant the level of force you used. Why your response was both reasonable and necessary. What you did to try to avoid it. And most important: Why you aren't some homicidal maniac, a dangerous idiot with a weapon, a vigilante or some douchebag trying to escape justice.

    All of that is a lot harder to do than you think. Prosecutors have a lot of experience getting violent offenders and lying criminals convicted. That's their job after all. If they decide you're one of those undesirable types, they're going to turn their not insignificant skill and experience on you. They'll do everything in their power to convince the jury you are a lying, violent, douche who was just itchin' to kill someone -- including this poor innocent mugger.

    Let me give you fair warning: If you knew the person, it's even worse. (Some bad news here. An overwhelming majority of murders are between people who know each other. If you had to defend yourself against someone you know don't think the prosecutor won't try to turn it against you.)

    You need to have an attorney who knows enough about the subject of violence, crime, how danger affects our perceptions, and other related issues to counter what the prosecutor is trying to sell the jury. He needs to know these things so he can not only counterbalance the prosecution's accusations, but make the jury understand -- understand that there's more to the issue than what the prosecutor is telling them. Understand why the danger you were facing made your actions reasonable and justifiable.

    If your attorney doesn't understand what's involved in violence, that is going to be a hard sell. It will be made harder because the prosecutor will be selling the jury the idea that you're lying.

    Take for example a hypothetical, but common, scenario; the defendant is on the stand (and, yes, there is huge debate about that strategy in legitimate self-defense cases). The prosecutor asks, "How far was the victim from you when you killed him?" (For the moment, let's ignore the loaded phrasing and spin-doctor framing of the question.)

    The defendant says, "About five feet."

    Whereupon the prosecutor runs the security camera footage that shows the attacker was fifteen feet away. What follows is a barrage of accusations, condemnation, and innuendos about the defendant lying, his character, and what a horrible person he is for murdering his fellow human being.

    That's what the jury is going to see. They heard the defendant say five feet. They saw fifteen feet on the film. As there is both a bias against violence and a belief in the prosecutor being the good guy. They're going to 'think' the prosecutor has caught the defendant in a lie. If he's lying about that, what else is he lying about? Hmmmmmmm?

    If the defense attorney doesn't know about the effects of adrenal stress on perception, the absolute best he can do is damage control. He is in a desperate scramble to try to salvage is client's credibility. He has to try to fix the apparent 'lie' his client has just told.

    Except it isn't a lie.

    A well-known and documented aspect of adrenal stress is 'spatial distortion.' We hyperfocus on the threat. That means your perceptions change. Things look bigger, closer, and more menacing when you experience spatial distortion. I often joke I have never had a knife or a gun aimed at me. I've had swords, machetes, and cannons pulled on me -- I've also been attacked by a saber-tooth mouse. At that moment, I would have sworn its fangs were at least a foot long. Those are practical examples of spatial distortion, but so too is fifteen feet looking like five.

    Bringing up spatial distortion is to convey the idea that the defendant is NOT lying. What he is saying is not factually accurate, but it *is* what he perceived under adrenaline. He is telling the truth -- as he perceived it. That attacker did 'look' five feet away to him. Knowing this, it changes the jury's mind from 'he's lying' to 'well, that's what happens under adrenal stress.'

    But ONLY if the defense attorney knows to introduce this kind of information. Because you can be certain, the prosecutor isn't going to mention it.

    This is the kind of production of evidence you and your defense attorney *must* bring into the court room when you claim self-defense. Your side has to have all kinds of information to bring up -- not to debunk the prosecution's points -- but to expand on them.

    This is where it becomes 'yes and...' Yes he said it looked like five feet. Yes the video shows fifteen. And *that* is the spatial distortion we talked about earlier. He is not lying, he's accurately reporting what he perceived at the moment under the threat to his life.

    3) The roles change.

    This is another big lie to children. But there's a really simple way to understand it.

    You know the actual burden of proof is on the prosecution. You know ordinarily the defense is going to try to pick apart the state's case. Taking a massively complex process and reducing it to the silliest image possible, it means the defense's role is to chant, "Liar! Liar! Pants on fire! Neener neener!" about everything the prosecution says.

    When you claim self-defense, the prosecutor gets that role.

    He is going to pick apart your story. He's going to nitpick every inconsistency, every poorly stated phrase, every detail to try to sell his story. I'm not even going to say his 'version' of the story because often what he is selling is entirely different. Different versions would be it's self-defense vs. a conflict that escalated too far. No, odds are what he's trying to sell is that it is cold-blooded, premeditated murder. The only two things those two stories have in common is the body on the floor and you.

    To tell you the truth, this is not a hard sell. Remember, you've confessed to a crime -- but you've said there were good reasons for it.

    Even if he isn't promoting the idea you're a cold-blooded murderer, you're still in trouble if he's selling the idea you overreacted.

    Because of the bias against violence in this culture and the fact he has decided to prosecute, the jury is often skeptical. You've already admitted you did it. The jury is already thinking if there wasn't something wrong with the situation, you wouldn't be there. Now the only 'burden of proof' the prosecution has is to prove your reasons weren't good enough. All the prosecutor has to do is hyperfocus on a few inconsistencies, blow other points out of proportion, plant the seed of doubt in the jury's minds, and -- voila -- you're convicted.

    You are going to get hit with 'liar liar.' Your attorney needs to know how to counter the very tactics he often uses to win cases.

    There is something else you need to know. And I mean tattoo it on your forehead in reverse so you see it in the mirror every morning. That is: The higher the use of force, the more microscopic the examination of the case will be.

    I was recently on a TV show where I and other experts were shown re-creations of crimes and self-defense scenarios ( ). We got to watch the videos once and then comment. The key word in that last sentence is 'once.' As an expert witness, I can tell you I have spent not only hours and days, but weeks, poring over security videos of incidents. We're talking a two-minute clip at one-quarter speed, slow motion, again and again to pick out tiny details of the event. I'm looking for details, which unless you know what to look for and know their significance, the jury will not see nor understand the danger. Nor will they understand why the level of force was appropriate or inappropriate.

    Well the prosecutor is going to do the same thing. Except he's looking for your participation in the situation. He's looking for things you did that make you look bad and that he can point out to the jury. He's looking for mistakes you made about your use of force decision. He's looking for any action, any detail or decision he can use to make you look like a cold-blooded murderer or an out-of-control vigilante.

    In short, he is going to attack your self-defense defense. If and when that 'defense' is undermined -- then you're convicted of the crime you confessed to.

    This is why you and your attorney need to show up with a boatload of evidence to prove it was self-defense. But even with cargo containers of evidence, *your* side must withstand the barrage of 'liar liar.' You have to be ready to have your credibility challenged and endure the sneers, insinuations, and being called a liar to your face.

    If your side fails to provide this mountain of evidence, you're going down. I don't care how obvious you think it is and your belief the jury will see it your way.

    For example, I worked on an appeal case where the guy was ambushed and stabbed eight times by his drunk girlfriend. He collapsed and got up. She went to the kitchen, got another knife, returned, and attacked him again. Pulling the first blade out of his chest, he fought back. Simple, right?

    Except he's in prison for second-degree murder. The prosecution claimed it was 'imperfect self-defense,' and he had 'over defended' himself. Worse, his attorney felt the self-defense aspect would be obvious to the jury. So obvious, he did not bother to learn what is involved in violence, self-defense or what a 'professional drunk' (like the girlfriend) is capable of. In fact, the defense attorney was so certain the claim of self-defense would be so obvious, he didn't even bother to call witnesses or experts. That's not a mistake the prosecution made, they had their experts. The defense attorney was shocked when his client was convicted.

    4) There are prosecutors who think if someone died, there must be a crime.

    This lie is going to be the one that has prosecutors screaming for my hide to be nailed to the cabin door. In fact, I'll bet it will even be brought up in court that I dared put these words in writing. Well, the truth is even I have to admit there are all kinds of things wrong with this particular 'lie to children.'

    Having said that, it's an important perspective to understand. It will save you all kinds of emotional distress about the aftermath of a self-defense situation. But more than that, it can help keep you from going to prison.

    This is a critical factor. You may think you're a 'good guy.' You may think the prosecutor is a 'good guy,' too. You may have nothing but respect for the police. But that does *not* automatically mean you're all on the same side -- especially after you've taken another citizen's life.

    That's a very important point I just slipped in. I'm going to give a hat tip to the Armed Citizen's Legal Defense Network here ( and bring up an issue they like to remind folks: The law doesn't see a self-defense situation as you vs. some douche bag. Legally, it is considered two citizens in dispute.

    That means you and the person you consider to be a douche bag-criminal-lowlife have the *same* rights to life, liberty, and not being gunned down in the street.

    It is the DA's job to take umbrage at citizens killing citizens. That you've come to his attention for doing so ... well ... let's just say he might be suspicious. Until it is proved you did not wrongfully take a person's life (as in that person was going to wrongfully cause your death if you didn't act) the prosecutor is NOT your friend.

    Here's the problem with that. There is a big difference between it being proved that you acted in self-defense (e.g., found not guilty in a trial) and the prosecutor not having enough evidence to win a case saying otherwise. That's an ugly limbo. A limbo you'll need to learn about in a seminar about legal use of force instead of from me. But know to ask about it -- because it will last for the rest of your life.

    Remember I said earlier there's also a difference between the law and our legal system? Well the latter is strongly influenced by a lot of factors that have nothing to do with the 'law.' This is the elephant in the room people pretend has no bearing on what is happening -- especially with whether or not a prosecutor decides to act.

    Ours is one of the few countries where district attorney is an elected position (or is the appointee of an elected official). As in if the DA's office doesn't have an impressive conviction rate, there's a good chance that the boss man is out of a job. The more convictions, more plea bargains the DA's office has, the better they look for being 'tough on crime.' Incidents that make it on the news really need to be actively pursued to show the public the system 'works.' Political pressure, public outcry, and -- of course -- internal pressures from the 'boss' are very real factors on how the prosecutor's office will act.

    I often tell people who buy a gun for self-defense they need to plan to spend about $3,000. Most of that is in training. I'm not just talking about the fun run-around-and-go-'bang!-bang!' kind of training. I'm talking about training in legal use of force, use of force decisions, violence dynamics, articulation, and what to expect during the aftermath of a self-defense situation. I'm talking about spending a weekend in a classroom learning how to protect yourself from threats you never thought of. This kind of training can keep you out of prison *and* keep you from being sued for everything you own. This is very distinct and different training than just shooting. (For example: Armed Citizen's Rules of Engagement - .) I also recommend this same 'insurance' training for knife or any other effective 'combative' systems someone is learning. If you can kill or cripple someone with your self-defense measures, then you need this training to learn how *not* to put yourself into prison or the poor house.

    This is critical because your actions before, during, and after a self-defense incident will be gone over with a microscope to find *any* hint of wrong doing you can be prosecuted for. Remember by claiming self-defense, you have confessed to what is ordinarily a crime. The prosecutor is going to try and make that stick, not the self-defense part.

    Another point of consideration is that the information the prosecutor has is only as good as the reports. In the book "Campfire Tales From Hell," I wrote an essay on 'Talking To The Cops.' ([ame=""]404 - Document Not Found[/ame]) In that essay, I stated the primary job of an officer is to investigate, to find out what happened. If in the process, however, the officer suspects a crime has been committed, there is a subtle -- but important -- shift in emphasis. The officer then starts collecting information to help build a case for the prosecution. This shift has a lot to do with what goes into his or her report. Unfortunately after the shift, a lot of information that could help your self-defense case can get left out of these reports. And what is -- or is not -- in the report is seriously going to influence the DA's decision to prosecute.

    Now in all fairness to both the police and the prosecutor, an overwhelming amount of violence is indeed illegal. Using made up numbers (still another lie to children) I often say 95 percent of all physical violence is illegal. This includes situations that started as self-defense, but crossed the line. This is a BIG problem. ( ) It's also why, these days, I'm really emphasizing 'knowing when to stop' before what you are doing becomes illegal.

    Stop and think of the significance of this.

    Ninety-five percent. That isn't just an overwhelming majority, that's nearly everything. How do you think it affects how cops and prosecutors view claims of self-defense? This includes how often they hear 'self-defense' by someone for whom SODDI wasn't working. It's *real* easy for them to slip into an attitude of 'just another murder, just another scumbag trying to get away it by claiming self-defense.'

    The technical term for this is 'they're jaded.'

    What is the most traumatic and horrible event for you is just another day at work for them. It is very easy for jaded people to get not only sloppy, but cynical in pursuit of their goals. As in "my job is to convict criminals -- if you come across my desk, you must be a criminal." Once the prosecutor has made that decision, he's going to do everything in his power to convict you. Oh yeah, something else you should know. They're real good at tripping up people who are lying about it being 'self-defense.' Unfortunately, the same techniques that work to discredit a false self-defense claim can also undermine a legitimate one.

    No matter how convinced you are that you acted in self-defense, it's smarter for you to act according to the idea that the police and prosecution are going to assume a crime has been committed. A crime they don't think there is a good reason for. Regardless on how justified you think you were, remember they will do everything in their power to build a case against you and prosecute.

    Lie #4 will save you all kinds of emotional distress when that happens to you. After all, you're one of the good guys ...

    This not only will help you emotionally, but it will help you consciously deal with the aftermath -- like knowing what to say to the police. It will also help you to remember the higher level of force, the more you *need* to have an attorney present when you are being questioned.

    A special hat tip to Rory Miller for the following statement: I will cooperate and give a full statement, but we both know what kind of civil problems come from these kinds of situations. So I'd like to have my attorney present before I answer any questions about what happened.

    From that moment on, do *not* say anything else about the incident without an attorney present. After you invoke your right to have an attorney present during questioning, do not be baited into responding to questions about the incident (like, "What? Do you have something to hide?"). Do not talk to anyone in the jail cells. (And oh yes, do not be surprised or offended if and when you are taken into custody -- much less handcuffed.) You can give them your name and address. You can ask for water. You can do all kinds of things, but -- I repeat -- do not talk about what happened except with your attorney. Then, in the presence of your attorney, you make your statement to the police about what happened.

    This last 'lie to children' is a basic introduction to a much more complicated and nuanced process than you can imagine or I can go into here. A process filled with pitfalls, dangerous miscommunications, bad information, and outright traps. This is where saying the wrong thing will get you into deep trouble. It also is where simplistic, Internet clichés about what to do and say after a self-defense situation are a disaster waiting to happen.

    It is because of Lie #4 I say *spend* money on 'insurance' training. It is that kind of training that will keep you out of prison and prevent the family of the guy you had to defend yourself against from owning your home.

    But more than that, Lie #4 is easy enough -- even in the adrenalized aftermath of a self-defense situation -- you can still remember it. So although it is technically the most inaccurate lie to children, it is the most important. Under adrenaline you will want to babble, you'll want to tell your side of the story, you'll want to make sense of what happened, and Officer Friendly is there to listen to -- and take down -- you saying the absolutely wrong things. A huge part of this is your unwittingly saying something the officer is going to interpret as indicating this was a crime and not self-defense.

    Let me end this article by pointing out this is not legal advice. It is to make you an informed consumer. It is to acquaint you with what you will be facing when dealing with our legal system after a self-defense situation. It's informed consumerism because it can help you better pick a qualified attorney for your affirmative defense. He's going to be the one giving you legal advice -- as it should be.

    Do yourself a favor and don't limit your training on this subject to just the physical. Unfortunately in most training, there is entirely too much emphasis on 'winning' in a violent situation. A popular fad is how to overcome the freeze response and explode into blindingly fast response time. People are afraid of failing in a self-defense situation, and that's what they want to know. I will say: This new training is good, it is important.

    But so too is what I call 'planning for success.' If you successfully use your training, there WILL be an aftermath. An aftermath that can be more complicated and dangerous (in other ways) than the original situation. This article is to introduce you to just one aspect of the aftermath.

    Unfortunately -- in most so-called 'self-defense' training -- subjects like avoidance, violence dynamics (de-escalation and deterrence), 'do you have to engage' decision making, and legal consequences are all given a hand wave. By this I mean: "Oh sure we teach that too, now let's spend the next six hours learning how to bust someone up" or "Well, obviously you should try and escape, but here's all the things you can do with your weapon when you can't escape."

    There is no denying that this kind of training is fun and exciting. It is a confidence builder. It can be good exercise. It also can be very powerful fear management, but it is not danger management. (

    Add to this, there is the assumption that the student will always be in the right. The raw truth is we all have bad days. We all have times when our tempers flare, and we act impulsively (think about the last time you made a rude gesture while driving or swore at someone). These are the acts that put us into conflict -- and possibly danger. It is our active participation in a conflict that is most likely come back to haunt us if the situation escalates to physical violence. It is that participation the prosecutor will use against you.

    Lately I've shifted my focus to violence dynamics and conflict communication ( ). In doing this, I've gained a deeper understanding of the different types of violence and the ways people unwittingly get themselves into conflict. Behavior that seems so right and natural at the moment is exactly what is going to allow the prosecutor to slam dunk your case.

    I tell you this because often there is a resistance to looking beyond the physical aspect of self-defense. In fact, I have often heard variations of the following: Knowing the law will make you hesitate in a self-defense situation. This is (or some variant) is the excuse for what I consider willful ignorance. More than that, it's usually the justification to spend all your time and money on the fun, run around and play bang, bang training. Which let me tell you if the prosecutor finds out you refused to take this training, he's going to have a field day with it.

    But more than that, the idea that knowing the law will make you incapable of acting is just flat out wrong.

    In my work, I've found a strong symbiotic relationship between understanding violence dynamics and staying within the parameters of 'self-defense.' Recognizing what you are dealing with is a critical component in a shoot/no shoot decision. But more than that: Actions which are likely to de-escalate a 'social violence' situation serve many purposes. (

    First, there's a good chance it will solve the problem. For example, a good faith effort to withdraw does wonders to prevent violence. Often just apologizing and leaving means you don't have to shoot or stab someone.

    Second, they give you articulatable facts about what you did to avoid the situation and why it didn't work. This is the kind of evidence you need to support your plea of self-defense. For example, you tried to avoid it, but his actions countered and limited your viable options (preclusion).

    Third is knowing the difference between social and asocial violence (see above link). When what you have done should have de-escalated social violence and the problem persists, then what you are facing is not normal social conflict. That's a game changer. This is an important step in formulating your use of force decision.

    Fourth, you are likely to encounter a strange paradox. The willingness to use force often means you don't have to -- especially against potential asocial violence. That 'mental shift' in the previous step often results in a person changing the behavior that was making it necessary to shoot him in defense of yourself. The immediate threat evaporates removing the need to use force. You must be able to recognize this shift in circumstances and be able to stand down; otherwise you cross the line and become the aggressor.

    Fifth and finally by understanding these dynamics you can 'scale your force' to appropriate levels -- even during the heat of the moment. Scaled force makes it much easier for your attorney to defend you. ([ame=""]Scaling Force: Dynamic Decision Making Under Threat of Violence: Rory Miller, Lawrence A. Kane: 9781594392504: Books[/ame])

    This has just been an introduction to a much larger world than just what gun you carry or what deadly martial art system you know. There are many links to follow and subjects to investigate. Get yourself a cup of coffee, you have some more reading to do.

    ©2012 all rights reserved
  2. Sketco

    Sketco Banned Banned

    In summary...
    Know your Federal and Provincial/State laws
    Know your legal system
    Know the use of force continuum used by your police
    Remember Murphy's law

    Honestly I'm really glad I got my security lisence because it gave me a fair amount of training in the law, legal system, and legitimate defenses for using force.

    That said I still train to be able to deliver lethal force for a SHTF situation because I always remember Murphy's law.
  3. John Titchen

    John Titchen Still Learning Supporter

    A good article Marc.

    There's a lot of stuff here that really refers only to the US system of Justice, however even in the UK (where the CPS is tremendously supportive of people acting in self defence and few cases ever go to trial or result in convictions for excessive force/manslaughter/murder) I think it is vital that people are aware of how their actions can be misconstrued.

    It is important to know what the Law allows you to do and to train with this in mind. I shudder when I see people drilling lethal responses (often in TMA) to non lethal stimuli.

    Finally I absolutely second what both Marc and Rory say about getting a lawyer to be present before answering questions if you have to go to a station for questioning.
  4. LilBunnyRabbit

    LilBunnyRabbit Old One

    I started reading this not expecting for a moment for it to be as good, or informative as it was. From the title I was actually expecting something borderline conspiracy about how the courts are out to get us. I'm very pleased that I was wrong, and as jwt's said it's an excellent article.
  5. Alansmurf

    Alansmurf Aspire to Inspire before you Expire Supporter

    Thank you excellent article with sound transglobal advice ..

    Last edited: Nov 9, 2012
  6. Marc MacYoung

    Marc MacYoung Valued Member

    If you look at my schedule ( you'll see that I'm going to be in the UK repeatedly next year. Part of that is to hash out the details with a solicitor about writing a book on the English Court system and claiming self-defense.

    "Scaling force' is a critical issue. One that most trainers don't address and the "I'd rather be judged by 12 than carried by 6" crowd willfully ignore.

    As scaling force is important, so too is knowing when to -- and being able to -- stop.

    I say that "95% of all violence is illegal." In this example 60% is just outright crime, assaults and 'fights.' No-ands-ifs-or-buts about it being illegal. However, there is there is a good 35% that starts out as self-defense, but the person crosses the line(s) from self-defense into criminal assault.
    ( )

    This can happen before the violence (like leaving your property to go confront someone down the lane who is being too loud), refusing to leave the situation (by doing what I call 'a good faith attempt to withdraw'). During the violence (like pulling a knife because you're losing a fight that you helped create). Or after (like kicking the guy when he's down because he 'might' get up or because that's what your killer commando system teaches you to do in order to 'finish' your opponent).

    Then of course there's always the problem of you are so freaked out and hyped on adrenalin that -- even though the guy is trying to turn and run away -- you just keep on going ballistic on him. You're claiming self-defense but the CC camera footage shows you chasing the dude down the street, slashing his his back with your knife. Not going to hold up in court, but in your adrenalized and fearful state you thought he was still attacking you -- because he was still right there.

    What your adrenalin kept you from seeing was
    a) that he was trying to flee
    b) the reason he was still there is you were charging him
  7. John Titchen

    John Titchen Still Learning Supporter

    All good points Marc.

    Over here the recent Section 76 of the Criminal Justice and Immigration Act 2008 is very supportive of people in such situations. It essentially clarifies the case law approaches that had previously existed to statutes.

    This may also be of use to people over here:

    In an oral interview I have in recorded form, Professor of Law Gary Slapper noted that the CPS had found in 2005, when they looked at prosecutions over the preceding 15 years, there had been over 20 million crimes that they had looked into with regard to the use of force, but during that time there had only been 11 cases where people had been prosecuted for excessive use of force in self defence.

    As you say, adrenaline (and emotion) can have huge implications for perception. In one of your previous posts which I made a sticky in the self defence section, I posted a video of a training scenario (where Alansmurf was also present) where a trainee preempted well before the threat really manifested without any attempt to defuse the situation. In the debrief it became evident that he had, based on prior experience and under the influence of adrenaline, visualised a significant amount of primal posturing on the part of the person he preempted that had not yet even happened.

    This is an area that underpins all the physical drills and briefings I give. I look forward to learning more of your work in this area (and of course wish you luck).
  8. Marc MacYoung

    Marc MacYoung Valued Member

    Well come on up to Sheffield or Down to Bristol early next year. I'm going to be doing 'standard packages' -- Crime Avoidance/Martial Mechanics/Knife Survival

    Advert removed.

    A lot of the stuff I'm talking about you'll get to see first hand -- especially about threat assessment and articulation.

    Sorry Marc, we don't allow free advertising. Please contact site Admin if you'd like to place an advert.
    Last edited by a moderator: Nov 9, 2012
  9. John Titchen

    John Titchen Still Learning Supporter

    Marc, you might not be aware of this, but there is already a series of books aimed at the average citizen, police, care workers, social workers, education professionals and security professionals which set out the relevant laws for the use of force in this country. In addition to that they discuss a number of cases where defendants have been successful or otherwise and explain why. The books are written by an expert witness in coordination with very experienced Law professors and successful barristers. They are available in paperback, ebook and audiobook formats. There are a number of very skilled trainers over here who teach this material.

    I'm currently working on a re-release and series of new editions of some Karate material that I have already published. After that though I will also be publishing work that covers this material.
  10. Marc MacYoung

    Marc MacYoung Valued Member

    Here's something I wrote elsewhere
    It's funny you say 'It's just too darn comprehensive." I honestly feels it just skims the surface of countless, fascinating and important subjects. But, I am a total geek when it comes to studying human behavior. What I find 'keeewwwwwwwl' often others go 'yeah so?'

    In this case, it's all the unconscious/subconscious/semi-conscious/perceptual stuff that's beyond the 'yeah so' that will get someone into deep legal trouble -- or even into a violent encounter in the first place. That's the stuff I'm looking at now. Take for example 'winning.'

    How many of us had to learn good sportsmanship? I mean you win a game and thank your opponent and congratulate him on a good game. So although there was competition, forms are still followed to keep things at an even keel, socially functioning and, last in line, soothe the other person's emotion.

    Sure, someone jumping up and down chanting "Nyah nyah nyah" triggers us on an emotional level. But it also works on a much deeper, more primitive and 'socially subconscious' level. A level that will guide our actions without us recognizing their significance - either contributing to the conflict or punishing the person for his/her unacceptable behavior. This is over and above just the desire to 'win.'

    When we give into that, we make bad mistakes. Mistakes that the cops and prosecutors see way too often -- and why they are so jaded about claims of 'self-defense.'

    Alain Burrese has a story about having to explain to a guy -- who WAS attacked -- why he was being charged with aggravated assault. "Look I understand he attacked you. That's not what you're being charged for. When you knocked him down, that was self-defense. But when you started kicking when he was down, that wasn't self-defense. That's why you're being charged." (Of course it didn't help that the defendant told the cops 'I wanted to get my licks in'.)

    How do we learn -- much less teach our students -- how to not give into to the impulse to punish the guy? This especially in light of the legal aftermath of violence? A place where such behavior is going to screw you royally.
  11. yorukage

    yorukage Valued Member

    Great article. This may not always work in every situation, but I picked up a bit of good advice from Jack Hoban at a seminar. Basically, if someone attacks you and you act in self defense and injure the guy right away, it may look to bystanders as if this was a fight because they may not have seen the initial provocation. If you can, and it's a big if, but if you can, act purely defensively and gain distance from the attacker. Yell out STOP, twice, this will gain a lot of attention and people will see that you are trying to avoid conflict and the attackers is being the aggressor. Then you have have a whole bunch of eye witnesses for when you finally do neutralize him. Again, not going to work in every situation, but it's a good concept to think about and even play with in the dojo.

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