Skip to main content

Posted on November 29, 2018 by in The Law of Self Defense

Case Of The Week with Andrew Branca-November 29th, 2018



Case of the Week 11-29-18

How to Turn An “Accidental” Shooting into Negligent Homicide

This case of the week involves a Montana man who reportedly managed to shoot his hunting partner just as they returned from a hunt to their cars in a K-Mart parking lot, according this ABC Fox news report.


The shooter is said to be an NRA Instructor in handgun and rifle. The victim was struck in the chest by a rifle round and died a short time later at a local hospital.


Hunting “Accidental Shooting” or “Negligent Homicide”?


I haven’t hunted in many years, but while I was active it was my experience that it was rather common for hunting-related shooting deaths to be treated as accidents that resulted in no criminal charges for the shooter. I have always thought this to be rather inexcusable. 


If you’re hunting with a firearm you have an obligation to know what the heck you are shooting at, and to ensure that what you are hoping might be a game animal is not in fact a human being. Failure to do that is, to my mind, outright negligence, and the death ought to be charged as a negligent homicide. 


In addition, any time you’re handling a modern firearm, it can only discharge if the trigger is depressed. It’s on you to prevent that from happening unintentionally. This obligation ought to be particularly understood by a certified NRA Instructor, which the shooter in this case apparently was.


That said, even the traditional “accidental shooting” could still result in criminal charges if there were some aggravating factor present. A good example might be if the shooter was intoxicated. Another might be if it turned out there was some pre-existing animus between the shooter and victim. 


Consciousness of Guilt Evidence, Inconsistent with Innocence


This particular case presents a classic means by which a shooting death that might well have not been pursued by authorities suddenly becomes an extremely attractive case for prosecution—the presence of consciousness of guilt evidence.


Consciousness of guilt evidence has to do with the recognition that the behavior and conduct of someone who believes they’ve done something wrong often differs in observable ways from the behavior and conduct of someone who doesn’t believe they’ve done something wrong. Such “guilty behavior” might include things like lying to the police, flight from the scene for purposes other than safety, or tampering with evidence.


In effect, such conduct suggests that not only does the prosecutor think the defendant is guilty of a criminal offense, apparently the defendant thinks the defendant is guilty of a criminal offense. Otherwise, why lie to the police, flee the scene, or tamper with the evidence?


Don’t Do This: “If You Shoot Someone Outside Your House …”


One timeless and dangerous classic piece of self-defense advice is that if you shoot someone outside your house, make sure you drag them inside the house before you call the police. Why? To make the scene appear to be a more favorable self-defense scenario than was actually the case. 


I can assure you that when the cops show up and find a big blood smear from the sidewalk up through your front door to the body, it’s not going to require CSI to figure out that the scene has been tampered with in a manner to make it appear more favorable to the shooter. 


That kind of tampering with evidence is utterly classic consciousness of guilt evidence—why do it, except that you don’t believe the scene as it actually was, was consistent with a lawful use of force?


Did Tampering Lead to Negligent Homicide Charge?


In this particular case, the shooter has been charged not just with negligent homicide, but also with tampering with evidence, a separate felony charge. I expect it’s highly likely that the negligent homicide charge was brought in large part precisely because of the presence of the tampering evidence—that is, the consciousness of guilt evidence—and that absent the tampering evidence there likely would have been no criminal charge at all.


Indeed, it is noteworthy that the criminal complaint charging the shooter with both felonies (linked here) was sworn on November 26, 2018, more than five weeks after the shooting on October 21. 


This suggests that the shooting wasn’t perceived as a negligent homicide on its own merits at the time it occurred, but that this perception changed after further evidence was developed. The complaint does not, unfortunately, specify the precise nature of the alleged tampering, but the summons on negligent homicide and tampering was issued the same date the complaint was sworn (linked here).


Destructive Consciousness of Guilt Jury Instruction


Not only can consciousness of guilt evidence encourage a criminal prosecution, it can also result in a consciousness of guilt jury instruction. Essentially the jury is told that the prosecution has claimed that the defendant lied to the police, fled the scene, tampered with evidence, etc., and if the jury believes that this conduct has been proven beyond a reasonable doubt they are permitted to infer from that conduct that the defendant is guilty. That’s going to leave a mark.


Bottom line: Don’t do things that will appear as conduct inconsistent with innocence to the police, prosecutors, judge and jury that are going to be determining the lawfulness—or not—of your use of force.