By Seth Richardson
It’s hunting season, and the Colorado Division of Wildlife is dispensing bad, and very probably flatly illegal advice on it’s website. In the “Rules and Regs” section, the DOW gives the following recommendation:
“If you make a mistake, your best course of action is to contact a DOW officer as soon as possible to report the problem. While you will still be subject to penalties, those could be less severe if the officer determines that you are cooperative, that the error was not intentional or that it was unavoidable given the circumstances… Hunters who make errors can be penalized with fines, suspension points against license privileges, felonies and misdemeanors, loss of meat, license suspension or confiscation of equipment.”
Yeah, right. It’s the best course of action for the DOW, not you. What part of the Fifth Amendment of the U.S. Constitution does the DOW fail to understand? What part of “nor shall [any person] be compelled in any criminal case to be a witness against himself” escapes their understanding? Or yours?
Read it, learn it, live it. Never volunteer anything to the police, and remember that DOW officers are the police. The penalties for making a “mistake” while hunting include criminal penalties, and this means that hunters have the right to remain silent and not incriminate themselves. That includes refusing to report your mistakes to the DOW in the first place.
Don’t be stupid and take the DOW’s word that they will go easy on you if you ‘fess up and admit making a mistake. They are under absolutely no legal obligation whatsoever to go easy on any violator, and their vague promises of leniency for being “cooperative” cannot be relied upon, nor is a judge or jury obliged to go along with any “deals” a wildlife officer might tout while trying to get you to incriminate yourself.
Typically, the “interview” will start with a simple request to inspect your hunting license and ID. They have the right to do this and you should comply. Then they will get all chatty-Cathy with you about your hunt. They will play the good-old-boy routine and will engage in all manner of deceptive psychological tactics in an attempt to ferret out information about crimes or hunting offenses. They are very, very good at this, and it’s a serious mistake to think that you can out-psych these professional interrogators. Don’t do it. Keep your mouth shut, opening it only to ask if you’re free to leave. When he returns your license and ID, then leave.
The propaganda goes on with this: “Penalties can be much more severe against those who purposefully attempt to hide mistakes from wildlife officers.”
Don’t be fooled by this disingenuous weasel-wording, what they are referring to here is the crime of tampering with evidence. The clue is the words “purposefully attempts to hide.” This means if you accidentally illegally kill an animal, you shouldn’t try to conceal it or dig out the bullet to prevent ballistic matching, or even gut and field-dress the carcass to preserve the meat, you should just turn around and walk away. You’re not hiding anything, you’re just exercising your right not to incriminate yourself.
It’s a felony to “waste” big game meat, but it’s also a crime to tamper with evidence that you illegally killed an animal. Hunters are generally loathe to waste meat by not field-dressing anything they’ve killed. That’s an ethical stance that is worthy of respect, but when it comes to field-dressing an animal you have killed illegally, even if you did it by simple mistake, you’re tampering with evidence, and in doing so you are creating a damned-if-you-do, damned-if-you-don’t cleft stick. If you field dress the animal and report it, you’re saving the meat, but you’re incriminating yourself and giving the DOW an opening for them to charge you with evidence tampering. If you don’t field dress the animal and report it, you’re giving them the opening to charge you with wasting big game, a felony.
Your only option is to do nothing. Don’t field dress the animal and don’t report it. That way you aren’t incriminating yourself or tampering with evidence, and if the DOW catches you and charges you with wasting the meat, you can argue in court that you refused to commit a crime by tampering with evidence, and you rightfully refused to report the illegal kill because it would incriminate you.
There’s a significant distinction between refusing to incriminate yourself in a potential criminal matter by not reporting a “mistake” while hunting, which is both legal and your absolute constitutional right, and tampering with evidence to conceal a crime, which is itself a crime.
And it’s a very, very important distinction.
The propaganda from the DOW implies that failing to report a hunting mistake is the same thing as tampering with evidence, and you’ll make things worse for yourself if you don’t report a mistake. It’s not, and it won’t, or at least it shouldn’t, if the DOW is behaving ethically. Just keeping your mouth shut and walking away is perfectly legal and they can’t drop the hammer on you any harder because you failed to incriminate yourself than they could if you did, the Fifth Amendment prohibits that. They might do so, but if you’re going to throw yourself on anyone’s mercy, save it for the judge.
Don’t believe for one second the DOW claim that they will go easier on you if you are cooperative and confess to committing a crime. They are lying through their teeth, and they are under no obligation to go easier on you because you confessed. They just want you to confess to make their job easier, because proving hunting “mistakes” is incredibly difficult and time-consuming. Most of the time, unless a hunter admits to the mistake, nobody will ever know it happened. It’s not like shooting your toe off at a bar downtown. The whole penalty-assessment process the DOW uses, whereby they issue you the game-management equivalent of a traffic ticket that allows you to plead guilty and get off with an established fine and point penalty is efficient for the DOW because they don’t have to gather evidence and bring a case to court under circumstances where they have caught you dead-to-rights in the act of breaking the law. In such cases, they won’t be asking you questions or recommending that you report yourself, so there’s no harm in keeping your mouth shut and taking the ticket.
But when they start asking questions it means that they didn’t catch you doing anything illegal and they are on a fishing expedition hoping that you’ll shoot your mouth off and incriminate yourself. Don’t do it. The DOW knows that most hunters are honest, ethical people who are truly remorseful for making such mistakes, and so they are likely to own up and confess. They love it when credulous hunters hand them the evidence they need to prosecute, it makes their job so much easier.
Well to hell with that! Stand up for the Constitution and refuse to make their job easier at your own expense.
If you make a mistake while hunting, and its easy to do, your best, and legal course of action is to say nothing to anyone, particularly not a DOW officer, and leave the area. I mean it, say NOTHING to ANYONE, including your hunting partners if you have them. Don’t engage in a conspiracy to cover up a crime, just shut up, walk away, and never speak of the incident to anyone, ever.
That’s hard to do, and most true criminal poachers get caught because they like to brag about their misdeeds. But if you made an innocent mistake, and you keep your mouth shut, even if the DOW figures out who did it and comes looking for you, you can still argue that you made a mistake to the judge, not the DOW officer. Your failure to confess to the DOW cannot legally be used to enhance the penalty you might face. And since it’s the judge that’s going to decide the penalty, not the DOW, save your explanations for the courtroom.
Let’s say you mistake a lynx for a bobcat and kill it illegally, by mistake. DOW regulations require that you report it within 24 hours and turn the carcass over to the DOW within three days. If you don’t, it’s considered unlawful take and possession. They say “you will not be charged if you comply with these requirements.”
Don’t believe them. There is no provision in the state (or federal) statutes controlling wildlife and hunting that creates a legal safe-haven for any hunter who makes a mistake, dutifully reports it, and throws himself on the mercy of the DOW. The DOW says as much in the first paragraph I cited. If you confess, and they investigate and decide that the illegal take was not an accident, and that you acted either recklessly or carelessly, they can and probably will charge you.
Moreover, the DOW is not the only one who can file criminal charges for the killing of an endangered or threatened species like a lynx. The federal government can also do so, using the evidence you provided the DOW, and it’s not in the least bit bound by the DOW’s promise not to prosecute.
Until the state and federal legislatures put a “safe haven” for reporting hunting mistakes into the law so that it’s either an affirmative defense or not a crime if one follows the procedure, the DOW’s promises (and they aren’t even that, they are just suggestions) are meaningless. They can just ignore what they put on the website (and will) and prosecute you to the max anyway, using the evidence that you handed to them on a silver platter. Don’t be that stupid.
While you might get a lesser penalty if you confess, the idea of trying to coerce and intimidate hunters into admitting guilt by making unenforceable promises is extremely unethical and probably illegal. In the end, it’s not the DOW that determines the penalties, it’s the courts, and they don’t have to honor any promises a DOW wildlife officer makes in the field. Only an official plea-bargain signed by the District Attorney has any legal value at all, and even then a judge can reject the bargain.
Hunters, think very, very carefully about telling DOW officers anything that might incriminate you, ever. Just refuse to talk to them. Show them your hunting license and ID if they demand it, and let them inspect the game in your possession, which they have a right to do, but SAY NOTHING to them. Nothing at all. You don’t have to, so don’t. What you’re going to do or where you’re going to hunt is none of their business.
Standing on your Fifth Amendment rights and remaining silent is almost always the right thing to do. Let the DOW do their own investigating if they think a crime has been committed, don’t help them convict you. Don’t tamper with evidence, but don’t tell them anything either. If they get snippy, ask if you’re under arrest or if you’re free to go. If they say you are, then leave. If not, verbally invoke your right to remain silent and demand an attorney be present any time a DOW officer starts asking you questions. Then shut your yap till your lawyer tells you to open it.
Remember, they are police officers, and they are not your friend, they are looking for violations and for a reason to give you a ticket or arrest you. Don’t help them convict you.
© 2010 Altnews