What Happens Legally After You Defend Yourself, Twelve Questions

Hollywood ends the story when the smoke clears. The attacker is down, the music swells, the hero lowers his weapon and the credits roll. Real life, folks, starts a different movie right there, and it is a long, slow, paperwork-heavy picture with no music and a lot of waiting rooms. Nobody makes a thriller about the grand jury, and I suspect it is because the pacing is terrible.

Here is the honest part. Everything below is general information about how the American legal process works, not legal advice. Every state is different, every case turns on its facts, and the right person to tell you what to do in a specific situation is a licensed lawyer in your own state, preferably one you already know before you need one. I am going to walk through twelve questions that people ask, in the order the stages tend to come, so that when you meet these words in a news story, or in a conversation with your own attorney, you are not hearing them for the first time. Knowing the stages is part of being a responsible citizen. It is also part of why you should find the lawyer first.

The first hours

1. What happens in the first hour?

Police arrive, medical help is summoned and the scene is secured. In general, officers treat the place as a crime scene until they learn otherwise, which is the same thing they would do whoever was involved. People who have been through a use of force are often detained for a time, questioned and sometimes taken to a station. Do not read the detention as an accusation. It is how investigators separate the people involved while they work out what happened.

The first thing that matters in the legal sense is what is said in that hour. Statements made at the scene, or in the first interview, are evidence and can be used later. That leads to the next question.

2. Do I have to talk to the police?

The Fifth Amendment says no person "shall be compelled in any criminal case to be a witness against himself." That is the right to remain silent. In general, a person is not required to answer questions about a possible crime, and a person is entitled to speak with a lawyer.

There is a detail that surprises people. In Salinas v. Texas (2013), a plurality of the Supreme Court held that a person who is questioned voluntarily, when not in custody, and who simply stays silent in response to a question may not be protected unless he expressly invokes the privilege. In plain English, the safest way to use the right is to say that you are invoking it. Courts and lawyers disagree on how this plays out in different settings, which is exactly why this is a question for your own attorney and not a blog post.

3. When do I get a lawyer?

The Sixth Amendment guarantees "the Assistance of Counsel" in criminal prosecutions, and under Miranda v. Arizona (1966), a suspect who is in custody and being interrogated has the right to an attorney during questioning. In general terms, the Sixth Amendment right attaches when formal charges are filed, while the Miranda right applies earlier, during custodial questioning.

The practical lesson is that the right to a lawyer is only useful if the lawyer is there. That is why people who think about this subject in advance are told to identify a defense attorney before an emergency, the way you would identify a family doctor. A name and a phone number are worth having. Pick one in your own state who handles self-defense cases.

Investigation and the charging decision

4. What does the investigation look like?

Detectives collect physical evidence, photographs, video from doorbells, businesses and phones, 911 recordings, medical records and statements from witnesses. They also interview the person who used force. In many jurisdictions the evidence is reviewed by a prosecutor, who decides whether to file charges.

Investigations can take days, weeks or months. During that time the person involved may be arrested, released without charges or released while the case is under review. None of those outcomes is a verdict. They are stages. Nothing about a release without charges means the file is closed, either. In many places a prosecutor can still decide later, after reviewing lab results or a witness's statement, to go forward, and the length of time a case stays open before a decision is also set by state law, so ask about it.

Two things are worth saying about video. Cameras are everywhere now, and investigators will look for footage you did not know existed. And the footage may show something different from what any one participant remembers, because memory under stress is not a recording. Nobody should be ashamed of that, and it is one more reason to let a lawyer sit beside you before you try to reconstruct events aloud.

5. Who decides whether I am charged?

The prosecutor. In most states the elected district attorney, county attorney or state attorney has wide discretion to decide whether to bring charges, which charges, and in which court. This is why we say, in How to Read Your District Attorney's Record Before You Vote, that voters should know who holds that office. The same incident can be handled very differently depending on the prosecutor's judgment about the evidence.

The prosecutor asks two questions in a self-defense case. Is there enough evidence to prove a crime? And can the state overcome the self-defense claim? In most states, once the defendant produces some evidence of self-defense, the prosecution must disprove it beyond a reasonable doubt. A few states have placed the burden on the defendant. Ohio, for example, did that for years, and the Supreme Court upheld the practice in Martin v. Ohio (1987); Ohio changed its statute in 2019 to put the burden on the state. Check your own state.

6. What is a grand jury?

The Fifth Amendment requires an indictment by a grand jury for federal felony prosecutions. That requirement has not been applied to the states, so state practice varies. Some states use grand juries to decide whether there is probable cause for a felony charge. Others use a prosecutor's "information" and a preliminary hearing before a judge.

A grand jury is a group of citizens who hear evidence presented by the prosecutor, usually without the defense lawyer in the room, and decide whether there is probable cause to charge. It is not a trial and does not decide guilt. Its work is secret. A prosecutor can also present a self-defense case to a grand jury as a way of sharing responsibility for a hard decision, and some do.

Immunity, defenses and trial

7. What is a pretrial immunity hearing?

Some states have statutes that give a person who used force lawfully immunity from prosecution, not just a defense at trial. The difference is large. A defense is something you raise at the end of a trial. Immunity is something you ask a judge to rule on before one.

Florida is the best-known example. Its statute gives immunity from criminal prosecution and civil action to a person who used force in accordance with its self-defense provisions. In 2017 the Florida legislature amended the statute to say that once a defendant raises a claim of immunity, the state must overcome it at a pretrial hearing by clear and convincing evidence. Before that change, the defendant had to prove entitlement to immunity, generally by a preponderance. The Florida Supreme Court later held, in 2019, that the change is procedural and applies to cases in which the pretrial hearing had not yet been held when it took effect. Other states have different rules, or none.

8. What is the difference between a defense and an immunity?

A defense says: I did it, and here is why it was lawful. It is decided at trial, and in most states the state must disprove a properly raised self-defense claim beyond a reasonable doubt. An immunity says: the law forbids this prosecution at all, so the case should end before trial. Immunity is a procedural shield and a defense is a substantive one, and a state may offer either, both or neither.

9. What happens if I am charged and the case goes to trial?

A jury decides, in most felony cases, whether the state has proven each element of the charge beyond a reasonable doubt. In a self-defense case the jury is instructed on the law of self-defense in the state where it happens. Typical elements include a reasonable belief that force was necessary to prevent imminent death or great bodily harm, and a proportionate response. The jury is asked what a reasonable person in the defendant's position would have believed.

Instructions matter enormously. A jury is told what the state must prove, what self-defense means in that state, and often that a person who started the fight, or who was committing a serious crime at the time, generally cannot claim it. Many states define when deadly force is justified by reference to a "forcible felony" or to a threat of death or great bodily harm, so an attack that is only an insult, or a shove with no serious threat behind it, does not qualify. The instructions are a matter of state law, and lawyers on both sides argue about the wording before the jury hears it.

The trial is where the standard we discuss in Stand Your Ground Versus Duty to Retreat, Compared Rule by Rule matters: whether the state's law imposes a duty to retreat, and where.

Civil suits, costs and the lawyer

10. Can I be sued even if I am not convicted?

Yes. Criminal and civil cases are separate. A criminal case asks whether a person committed a crime and is decided beyond a reasonable doubt. A civil case asks whether someone owes money for a harm and is decided by a lower standard, usually a preponderance of the evidence, which is more likely than not. A person who is acquitted, or never charged, can still be sued, and a plaintiff can win a civil judgment on evidence that would not have supported a criminal conviction.

Some states have passed statutes granting civil immunity to people who use force lawfully. Florida's, for example, covers civil actions as well as criminal prosecution. These provisions vary in whether and when a judge decides the issue and whether the defendant can recover costs. Whether such a statute protects you, and how, is a question for your own lawyer.

11. What about insurance and legal costs?

Defense costs can be substantial, and the money is spent before any verdict. Standard homeowner or renter policies usually exclude intentional acts, and the question of whether any policy responds to a self-defense incident depends on the policy language and the state. Some organizations sell products marketed as legal-defense coverage, and regulators in several states have scrutinized how those products are described. I will not tell you whether to buy anything. I will tell you to read what a policy actually promises, ask a licensed insurance professional what it covers, and ask your lawyer what it means. For a related piece on rights and protections after a crime, see What to Do if You Are a Crime Victim, Your Rights Step by Step.

12. So why find a lawyer first?

Because every answer above begins with "it depends on your state," and the person best placed to tell you how the state handles the police interview, the charging decision, the grand jury, the immunity hearing and the civil suit is a lawyer licensed there. Everything in this article is a map of the territory, and a map is not a guide.

There is also a moral point. The person who lawfully defends himself or his family is not a wrongdoer. He is a citizen who did what the law allows, and the legal system should treat him that way. But it will treat him that way more reliably if he knows the stages and has someone beside him who knows them better. The Founders put the right to counsel in the Sixth Amendment because they knew from the experience of colonial prosecutions that an accused person facing the state alone is at a disadvantage. Use the right.

A few things this post does not say

I have not told you what to do in any particular situation, and I will not. I have not told you that a given statute covers you, that a particular insurance product is worth buying, or that any set of facts is lawful. I have also not said that self-defense is easy to claim or that a successful defense is quick or cheap. The process can take a long time and can be expensive and stressful even when the person did nothing wrong.

What I have said is that the stages are knowable. A citizen who understands the difference between a defense and an immunity, who knows the state has the burden in most places, and who understands that a criminal acquittal does not end the civil risk is better prepared to act responsibly and to support the laws that protect the law-abiding.

For the history behind these rules, see A Man's House Is His Castle, and the Castle Doctrine Is Older Than America, and for the broader case on armed citizens, see How often Americans use guns in self-defense and why the estimates differ.

The case in brief

1. A self-defense incident starts a legal process that begins with police questioning and runs through a charging decision, possibly a grand jury or preliminary hearing, possibly a pretrial immunity hearing, a trial and sometimes a civil suit.
2. The Fifth Amendment protects the right to remain silent and the Sixth guarantees counsel, but the details of how and when to invoke them are a matter for a lawyer.
3. In most states the prosecution must disprove self-defense beyond a reasonable doubt, though a few states have placed the burden on the defendant, and states differ on pretrial immunity, including Florida's 2017 change.
4. Criminal and civil cases are separate, and civil immunity statutes vary.
5. This is general information, not legal advice, and the first step is to identify a licensed defense lawyer in your own state.

What you can do: look up your state's self-defense and immunity statutes on your legislature's website, then ask your state bar's referral service how to find a criminal defense lawyer near you.