Why JHP?


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WhistlinDixie
January 3, 2012, 03:43 AM
Does anyone load their own defensive ammo? I've noticed that it seems to be heavily advised to only carry factory ammo to ensure legal safety. So why are so many excellent self-defense JHP bullets available? Is there some advantage to using JHP in competition or something? Or are there lots of you out there that are loading your SD rounds? I know that I am looking to buy a press kit and get into reloading soon. Not having to buy anymore expensive JHP ammo sure would be nice.

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GP100man
January 3, 2012, 04:39 AM
WD , it`s an age old arguement that the lawyers could use handloaded ammo against ya in court .
But here in my neck of the woods I`ve shot clays & hunted with & on ocassion had to use there services ,but the conversation came up 1 day & 1 lawyer offered to search our records to see if even the ammo was mentioned in any case tried .

NONE !!

So I load my own SD/HD ammo , but it gets "different" inspection & handling than my hunting & plinkin ammo !

Hondo 60
January 3, 2012, 05:06 AM
1 lawyer offered to search our records to see if even the ammo was mentioned in any case tried .
http://www.msnbc.msn.com/id/15199221/#fullstory
Check out the story of Harold Fish.
One line in the story says, and I quote "And this juror was disturbed by the type of bullets Fish used."


Also...
JHP will mushroom or peal back without losing much mass.
This leads to great hunting results.

And on top of that...

Manufacturers will give the consumer anything he wants.
Whether it makes sense or not.

A prime example is a plated hollow point.
I've shots thousands & recovered dozens.
None of them were deformed when shot into wet newspaper & multiple milk jugs full of water.
But yet that's still what I buy, so bullet companies will make them.

GLOOB
January 3, 2012, 05:31 AM
Sure, some people recommend we buy ammo specifically made to mess up other human beings as effectively as possible. But it's bad to make your own ammo specifically tailored for blowing up milk jugs.

I don't load SD ammo. I load ammo. If I ever need to shoot someone, I'm pretty sure it'll be with ammo. Hopefully it'll be the good watermelon exploding kind, but any ammo will do.

If I end up shooting at someone that didn't clearly need shooting, then I hope I'm loaded with Win Clean environmentally friendly target ammo and that I miss. I'm not sure I wanna spend the money on factory ammo, but I guess I could spend more time learning how to miss. And if I have to use a knife, I hope it's got a dull, factory edge. If I sharpened it, myself, the attorneys would have a field day.

beatledog7
January 3, 2012, 08:36 AM
Old argument about lawyers and handloads, lots of threads on THR, including one from a couple months ago that got quite heated.

YMMV, but I will use the best ammo I can afford. "Best" is a combination of reliability, accuracy, and probable terminal ballistic effect.

I'm with GLOOB on this. The idea that we should use factory ammo whose maker touts its person-killing ability so we won't be accused of deliberating making ammo to effectively kill humans is silly.

I know, many THRers will say that "silly" is taking a greater legal risk than is necessary. To me, the chances of actually needing to shoot someone are tiny, and if I do have to take that step, I'm prepared to defend the decision. So I'll add using the best ammo to the legal risk.

Choosing lawyer/jury-proof ammo is analogous to tornado-proofing your home. If the legal system decides to take you down, down you go.

Renigeid
January 3, 2012, 08:47 AM
I roll my own SD folks. One of my rights that I still have. Just be sure it's a good shoot. that's the important thing. Jim

1911Tuner
January 3, 2012, 08:53 AM
. So why are so many excellent self-defense JHP bullets available?

To sell.

357 Terms
January 3, 2012, 09:32 AM
So why are so many excellent self-defense JHP bullets available?

Huge market for them.

Most people own handguns for self defense, JHP's are the most effective in hangun calibers. That and ammo companies charge $$ big bucks for them, and get it.

Most HP designs are effective, yet ammo companies are introducing new designs all the time, and then charging more $$ for them.

also-
After you have decided to pay 36$ for 20 Cor-bon DPX rounds, make sure you shoot at least 200 rounds from your hangun to ensure it functions properly! :eek:


and yes, I roll my own (SD ammo included)

MtnCreek
January 3, 2012, 09:45 AM
Does anyone load their own defensive ammo? I've noticed that it seems to be heavily advised to only carry factory ammo to ensure legal safety. So why are so many excellent self-defense JHP bullets available? Is there some advantage to using JHP in competition or something? Or are there lots of you out there that are loading your SD rounds? I know that I am looking to buy a press kit and get into reloading soon. Not having to buy anymore expensive JHP ammo sure would be nice.

I would suggest getting a lot of experience under your belt before loading your own defensive ammo. A good JHP should fly better than a FMJ for comp shooters, but I don’t shoot well enough to see the difference. I do load a lot of Hornady HAP’s; it’s basically a XTP w/o the cuts for expansion and is a lot cheaper for target shooting.

Edit: Legal issues? I have no idea. The way I see it, if I'm justified in shooting someone to protect my family or self, I don’t know why it would matter if I used factory ammo, reloaded ammo or a ninja sword.

Blue68f100
January 3, 2012, 10:12 AM
There are a couple of things against FMJ ammo. 1st it does not have controlled expansion and passes on through hitting whats behind your target. I'm not going to get into the legal stuff but you do not want over penetration. Since you are responsible for everything that bullets hit. It's better to have one that stops in CM. 2nd point is that mfg of HD ammo use a special powder that in not available to the public. This is a Low Flash powder so your not blinded at night. I buy by carry ammo but my practice ammo matches the same feel as the factory stuff.

cfullgraf
January 3, 2012, 10:26 AM
I tend to use factory ammunition for self defense mostly because I do not want to change over my reloading set up for a different bullet. I know, an insignificant reason.

Also, the firearms I shoot the most, i do not use for self defense so I use components that are reasonable in in cost and accurate in my firearms.

For the self defense firearms, I practice with reloads, then shoot some of the factory once in a while to re-familiarize myself with its performance. But the reloads and factory do not perform very differently, just the bullets are different.

As far as the legal aspect, in my unsupported, uneducated opinion, if the prosecutor is ambitious and has his or her sights set on the Supreme Court or some fact simile, it won't matter if you are using reloads or factory for self defense. You are toast in his or her eyes.

Striker Fired
January 3, 2012, 11:22 AM
I just load what shoots good out of my guns,some of it happens to be using "good" sd bullets.I have a couple half empty boxes of factory ammo that i keep around so if anything happens I'll just say that is what I used,even if it was my own(just have to make sure my loads look the same as the factory).

bds
January 3, 2012, 11:27 AM
This is my "opinion" only. For many decades, especially living in "sue happy" California, I held the notion like many others that I needed to use factory JHP to reduce/minimize legal liabilities for justified shooting situations.

In recent years, especially after reading several exhaustive THR threads on the pros/cons of loading your own defensive ammunition, I reached the conclusion that this was not necessarily the case as I have yet to find a single case that led to conviction of a justified shooting that involved reloaded ammunition.

Gun powder residue argument that's often referenced "helps" crime scene/forensic personnel but the use of reloaded defensive ammunition have not changed the outcome for justified shooting cases I have referenced.

Now, I use the following argument for those who still believe reloading your own defensive rounds is "illegal/wrong". I live in a city where home invasion robberies that often ends with murder is a regular occurrence. Even if I was reloading my plinking/range practice ammunition such as 45ACP 200 gr lead SWC in the garage/reloading room where a home invasion robbery "attempt" results in a justified shooting situation, I would not hesitate to use whatever resources I had available to defend my life and the lives of my family. If anyone asked why I used my own reloaded ammunition, I would answer, "Because that's what was available to me at that moment to defend my life." If I had to, I would not hesitate to grab the calipers on the bench to defend my life. ;)

Justified shooting is justified shooting, regardless of what ammunition is used to protect one's life or lives of others. Yes, I do use bulk Gold Dot and Golden Saber JHP bullets to load my "practice" SD/HD ammunition to duplicate same factory JHP's POA/POI.

I am not a lawyer, so take my opinion for what it's worth. ;)

This is what California Penal Code Sections 197 through 199 say - http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=pen

197. Homicide is also justifiable when committed by any person in
any of the following cases:
1. When resisting any attempt to murder any person, or to commit a
felony, or to do some great bodily injury upon any person; or,
2. When committed in defense of habitation, property, or person,
against one who manifestly intends or endeavors, by violence or
surprise, to commit a felony, or against one who manifestly intends
and endeavors, in a violent, riotous or tumultuous manner, to enter
the habitation of another for the purpose of offering violence to any
person therein; or,
3. When committed in the lawful defense of such person, or of a
wife or husband, parent, child, master, mistress, or servant of such
person, when there is reasonable ground to apprehend a design to
commit a felony or to do some great bodily injury, and imminent
danger of such design being accomplished; but such person, or the
person in whose behalf the defense was made, if he was the assailant
or engaged in mutual combat, must really and in good faith have
endeavored to decline any further struggle before the homicide was
committed; or,
4. When necessarily committed in attempting, by lawful ways and
means, to apprehend any person for any felony committed, or in
lawfully suppressing any riot, or in lawfully keeping and preserving
the peace.

198. A bare fear of the commission of any of the offenses mentioned
in subdivisions 2 and 3 of Section 197, to prevent which homicide
may be lawfully committed, is not sufficient to justify it. But the
circumstances must be sufficient to excite the fears of a reasonable
person, and the party killing must have acted under the influence of
such fears alone.

198.5. Any person using force intended or likely to cause death or
great bodily injury within his or her residence shall be presumed to
have held a reasonable fear of imminent peril of death or great
bodily injury to self, family, or a member of the household when that
force is used against another person, not a member of the family or
household, who unlawfully and forcibly enters or has unlawfully and
forcibly entered the residence and the person using the force knew or
had reason to believe that an unlawful and forcible entry occurred.
As used in this section, great bodily injury means a significant
or substantial physical injury.

199. The homicide appearing to be justifiable or excusable, the
person indicted must, upon his trial, be fully acquitted and
discharged.

WhistlinDixie
January 3, 2012, 11:45 AM
Thanks guys. Lots of good replies. A good shoot should be a good shoot. The tornado analogy is a good one, I think.

I am curious if anyone has any more info on the "low flash powder" used in factory SD ammo. Any truth to that?

340PD
January 3, 2012, 12:06 PM
I load them and call them anti ricochet rounds.

gamestalker
January 3, 2012, 12:19 PM
Our attorney says that he can't find one case in which someone was convicted for using excessive lethal force the sole result of using a hand loaded round. Although the argument will continue well beyond this point, I feel it is certain that if you were with no option but to use lethal force, no one is going to care if it was hand loaded or factory made.

I carry the a nastiest hand loaded .357 magnum HP round I can find, pushed by a full house H110 powder charge.

popper
January 3, 2012, 12:37 PM
For pistol, the heaviest chunk of any kind of lead I can get a 2 shot center of mass hit at 50 ft. If they are wearing kevlar, the stun will let me get closer and more accurate. Same thing for rifle, at 50 yds. Longer than that, it's not SD.

zxcvbob
January 3, 2012, 01:02 PM
At home and at church, I carry .38 Special +P's hand-loaded with soft lead 158 grain HP's. I am unlikely to need any GSR testing to corroborate my story in either location, and that's actually where I carry the most often.

When I'm out and about, I usually carry Fiocchi 125 grain JHP's (.38 Special +P) or Silver Bear 9mm Makarov JHP. If I was out of factory ammo I would carry handloads if I needed to, but I prefer factory stuff for that.

USSR
January 3, 2012, 01:07 PM
I carry the a nastiest hand loaded .357 magnum HP round I can find, pushed by a full house H110 powder charge.

Good load, gamestalker. Even if you miss him, the muzzle blast is liable to at least singe him.:D

Don

Waywatcher
January 3, 2012, 01:08 PM
The way I would explain it, if someone asked, is: "I use handloads for defence because I can't afford factory; it's about triple the cost for my .357 magnum. I also enjoy making my ammo, it's a hobby and like making homemade cookies--you get to use your favorite ingredients." I think it would also be easily defensible if you have a load that is simply on hand; one that you use all the time for target practice and hunting.

If you are reloading specifically to make "nasty" or "hot" loads, I think you are setting a bad stage, though...

WhistlinDixie
January 3, 2012, 01:24 PM
Good point, waywatcher. I would be loading as close to factory silvertips as possible, strictly because it would be cheaper.

glockky
January 3, 2012, 01:44 PM
Well I personally do not carry my reloads right now because I havent been able to find a powder that will give me the 1200fps in a 185gr 45. But i do not see how anyone could tell the difference as far as the appearance of the cartridge. My double taps are loaded with nosler JHP just like the ones me and you buy.

But i think many people carry reloads and bullet manufactures realize that, and then there people like me who prefer to carry a premium hollowpoint like an XTP whenever i am running around on the farm and might decide to pop a deer or varmit with my pistol.

BullfrogKen
January 3, 2012, 06:06 PM
So why are so many excellent self-defense JHP bullets available?

Like Tuner says, because there's a market for them.

Those who compete and win at the highest levels of competition in the shooting sports use hand-loaded ammunition. I'm not in that league, but I use handloaded ammunition in competition. I use it in my training classes. I use it when I practice. Because it costs much less, I can shoot much more and stay proficient. I can get better quality, and the variety lets me tailor my ammunition to my needs.

I use handloaded ammunition pretty much exclusively.


Shooting handloaded ammunition in practically everything I do, I don't know why I'd opt for a poorer substitute - that I'd shoot rarely - for carry ammo.

4895
January 3, 2012, 07:36 PM
I load Speer Gold Dots in my SD ammo. It is just too expensive to buy SD ammo at $1+ per round. It may be better to carry Police ammo instead. I wouldn't expect more than a 15 foot self defense shot. At that range, center mass is pretty big.

James2
January 3, 2012, 08:44 PM
I do. I give no heed to the lawyer thing. I figure reliability is one thing I would really like in my defense ammo. In many thousands of rounds I have had none fail to fire. I usually carry a 44 spl loaded with Berry's HP bullets with a good dose of Unique behind them. Only thing I can say more is, I darned sure would not want to stop one of those.

BeerSleeper
January 3, 2012, 09:18 PM
The way I see it, if I'm justified in shooting someone to protect my family or self, I don’t know why it would matter if I used factory ammo, reloaded ammo or a ninja sword.
You have a gun that shoots ninja swords!?:eek:

I am curious if anyone has any more info on the "low flash powder" used in factory SD ammo. Any truth to that?
I shot several different loads, in 9 and 40, in twilight to near dark conditions about a month ago, to see. My test results:

Winchester and Federal standard FMJ rounds: light to average flash

Reloads over winchester 231 powder: light flash

Reloads over Power Pistol powder: flash like a camera on fire

Reloads over Ramshot Silhouette (said to be flash suppressed powder): very faint, dark flash.

Factory Remington Golden Sabers: very faint, dark flash.

I have some Hornady Critical defense, but didn't test it on that particular outing.

twohightech
January 4, 2012, 12:37 AM
Beer had the best info in his post that i found out of this anyway. I know what I need to load for SD if i get lost in the dark.

35 Whelen
January 4, 2012, 01:29 AM
Because expanded hollowpoints make prettier pictures than a boring ol' semi-wadcutter. I load all my ammo and regardless of the bullet style (I load ONLY home-cast bullets), it's all SD ammo. After all, what bad guy is going to know whether the bullet that just shattered his sternum was a hollowpoint or a semiwadcutter?

35W

bds
January 4, 2012, 01:51 AM
I am curious if anyone has any more info on the "low flash powder" used in factory SD ammo. Any truth to that?
Although I like W231/HP-38 for lighter target loads, I have used WSF for full power defensive loads. I am in the process of switching to AutoComp for 9mm/40S&W as some claim it is WSF with flash retardant.

9mm, 4" barrel, CCI 500 SP:
125 GR. SIE FMJ W231/HP-38 OAL 1.090" Start 4.4 gr (1009 fps) 24,600 CUP - Max 4.8 gr (1088 fps) 28,800 CUP
124 GR. FMJ WSF OAL 1.169" Start 4.7 gr (1015 fps) 27,700 PSI - Max 5.3 gr (1115 fps) 32,700 PSI
125 GR. SIE FMJ AutoComp OAL 1.090" Start 4.7 gr (1055 fps) 28,900 PSI - Max 5.2 gr (1120 fps) 33,300 PSI

40S&W, 4" barrel, Winchester SP:
165 GR. SIE JHP W231/HP-38 OAL 1.125" Start 4.8 gr (946 fps) 28,100 PSI - Max 5.3 gr (1001 fps) 32,500 PSI
165 GR. SIE JHP WSF OAL 1.125" Start 6.3 gr (1055 fps) 28,100 PSI - Max 6.7 gr (1115 fps) 32,700 PSI
165 GR. SIE JHP AutoComp OAL 1.125" Start 6.5 gr (1037 fps) 25,600 PSI - Max 7.1 gr (1124 fps) 31,500 PSI

Ridgerunner665
January 4, 2012, 01:54 AM
For years I carried nothing but my hand loads...then I realized that since I travel all over the country, that may not be such a good idea.

My wife still carries my hand loads...and there at home I know it won't be an issue if she has to use them.

I bought a bag of cheap HP bullets for 45acp at the last gun show...after testing them in a few things (wet pack, milk jugs, plywood, and an old car door)...I've decided they are better than my beloved XTP's...thing is, I can't remember who they are made by (the guy that sold them to me told me the name...)

RhinoDefense
January 4, 2012, 02:00 AM
The handloads thing has been discussed at length so I'm going to leave that alone.

The JHP history, look up a company called Super-Vel. They needed a marketing niche and had developed JHP bullets. They marketed these high velocity super duper bullet designs and their ammunition to LE agencies citing that this prevented pass throughs in police shootings which would reduce the agency liability. It was nothing technical and purely marketing. This was not an issue before JHP bullets were developed, despite the stories.

Frank Ettin
January 4, 2012, 02:03 AM
The legal issues related to using handloads for self defense have been heavily discussed here. The background and links to past discussions may be found here (http://www.thehighroad.org/showthread.php?t=618021). And this (http://www.thehighroad.org/showthread.php?t=623165&highlight=bias) is a recent, and long, thread on the subject.

I'm a lawyer, and I won't use handloads for self defense. If you want to, be my guest.

bds
January 4, 2012, 02:25 AM
I'm a lawyer, and I won't use handloads for self defense. If you want to, be my guest.
With all due respect, hear me out.

Factory premium JHP rounds recoil differently from factory target rounds in regards to point-of-aim (POA) and point-of-impact (POI). It does not matter what caliber/bullet weight/bullet type/bullet capacity/factory or reloaded ammunition we carry in our SD/HD pistols IF we CANNOT hit our threat, whether it be a wild four-legged animal with teeth or two-legged human with weapons.

I subscribe to the notion that we fight like we train. Due to the higher cost of premium JHP ammunition, most of us shoot a lot more of cheaper factory target or reloaded ammunition. Even for match shooters, it does take some time to get used to different bullet/powder combinations that vary in recoil/POA/POI from rounds we are accustomed to. Add to this the stress of fight-or-flight response, our usual tight shot groups will probably get larger.

For me, if I am defending my life or the lives of my family, I need to be able to hit my threat. Period. This takes deliberate practice and trigger time. If there's greater chance that I will miss my threat due to lack of practice with a particular ammunition's recoil/POA/POI characteristics, then I much rather use ammunition my body is accustomed to shooting accurately and range tested under variety of shooting situations.

I hope you understand where I am coming from as this applies to a lot of us.

GLOOB
January 4, 2012, 05:39 AM
The whole idea that a regular joe who reloads should swap to factory ammo just for the off chance they need to shoot someone, and the off chance that they go to trial, and the off chance that the forensic evidence is changed, and for the off chance that they have a dumb jury, and for the off chance that they become the first case ever where it made a difference is ridiculous. That's like advising people they should only drive a car if they're wearing clean underwear just in case they have an accident, as if they'd give a rat's behind how clean their underwear is when they've had a car wreck.

beatledog7
January 4, 2012, 08:27 AM
I will use the ammo that gives me the best chance of successfully ending a potentially lethal attack upon myself or those in my company.

Once I've had to shoot an attacker, the only thing that will keep me out of jail is the jury's recognition that given the scenario in which I chose to shoot, my decision was sound and justified.

There is less than a snowball's chance that any jury is going to think, "Mr. Smith was fully justified in defending himself against what was clearly a lethal attack by Mr. Jones, but since Mr. Smith's gun was loaded with ammunition he made himself, we have to send him to prison."

I concede that the number of documented cases where homemade ammo is called into question is not zero, but I'll take my chances.

MtnCreek
January 4, 2012, 09:20 AM
Good article below by Massad Ayoob. Worth reading IMHO.
http://www.backwoodshome.com/articles2/ayoob93.html

You have a gun that shoots ninja swords!?
I'm just cool like that.:)

bds
January 4, 2012, 10:17 AM
Why JHP? Does anyone load their own defensive ammo? I've noticed that it seems to be heavily advised to only carry factory ammo to ensure legal safety. So why are so many excellent self-defense JHP bullets available?
Since this is the "Handloading and Reloading" category of THR, I will try to provide a "High Road" version of my take on this.

- WhistlinDixie, answer to your OP of whether any of us load our own defensive ammunition is "Yes".

- As to many advising others to only carry factory ammunition to reduce legal liabilities is done in the interest to "better protect" THR members and guests based on the legal process of how the "typical" jury would "perceive/view" the justified shooting in terms of their lack of knowledge and understanding of firearms and the reloading process. If you look below the often heated discussions, they are really trying to help save our butts.

- There are many excellent JHP bullets available to us reloaders simply because there is a market for those products and profit to be made by the companies who manufacture them.


Keep in mind that many of us reload simply because certain handloaded/reloaded ammunition combinations are more accurate than factory target or premium ammunition, whether they be FMJ/TMJ RN/FP or JHP bullets. Some of us have physical conditions (vision, arthritis, etc.) which make shooting certain factory JHP ammunition (typically loaded for higher muzzle velocities and not necessarily for optimal accuracy/less recoil) less accurate than "custom tailored" reloads. Many hold the notion that regardless of legal implications, not being able to hit the intended target may result in continued advancement of the treat and/or hitting unintended targets.


For those unwilling or unable to read through the exhaustive and numerous discussion threads on this issue, this is what some of us (including myself) have concluded and decided to do:

1. Only use factory JHP ammunition of your choice in your SD/HD pistols. This will help your legal defense team, law enforcement crime scene/forensic personnel, subject matter experts, and members of the jury.

2. Using the same JHP bullet as factory JHP ammunition or very similar type/weight bullet, duplicate the Point-of-Aim (POA) and the Point-of-Impact (POI) of factory JHP as close as possible using available powders for practice. For this reason, I use factory Speer Gold Dot and Remington Golden Saber JHP ammunition in my SD/HD pistols and practice with reloads using the same bulk GD/GS JHP bullets that produce comparable POA/POI.



FYI, if you are trying to further reduce the cost of range practice, I have found that many lower cost FMJ/TMJ/plated and even lead bullets with certain powder combinations can be developed to produce close enough POA/POI of factory JHP. Once such loads are identified for your pistols, range practice can be done to the benefit of knowing that you'll perform similarly with factory JHP ammunition.

Frank Ettin
January 4, 2012, 11:00 AM
...Factory premium JHP rounds recoil differently from factory target rounds in regards to point-of-aim (POA) and point-of-impact (POI). It does not matter what caliber/bullet weight/bullet type/bullet capacity/factory or reloaded ammunition we carry in our SD/HD pistols IF we CANNOT hit our threat, whether it be a wild four-legged animal with teeth or two-legged human with weapons...I'm sorry, but no. That is a complete red herring.

In competition, classes and practice, I've fired many tens of thousands of rounds of various commercial ammunition. I've also fired many tens of thousands of rounds of my own handloads. Any differences in POA/POI comparing roughly ballistically similar loads, factory or handloads, are inconsequential.

The whole idea that a regular joe who reloads should swap to factory ammo just for the off chance they need to shoot someone, and the off chance that they go to trial, and the off chance that the forensic evidence is changed, and for the off chance that they have a dumb jury, and for the off chance that they become the first case ever where it made a difference is ridiculous....That's up to you. You've participated in some of the threads I've linked to, and it's been clear that you haven't really understood the issues. So what?

You're free to make your choices. However, knowing what I know, having the training and experience that I have, I would not make the same choices. Have a nice life.

...Once I've had to shoot an attacker, the only thing that will keep me out of jail is the jury's recognition that given the scenario in which I chose to shoot, my decision was sound and justified.

There is less than a snowball's chance that any jury is going to think, "Mr. Smith was fully justified in defending himself against what was clearly a lethal attack by Mr. Jones, but since Mr. Smith's gun was loaded with ammunition he made himself, we have to send him to prison."...Yes, if you are really unlucky, whether or not it your use of lethal force was justified, and therefore whether or not you go to jail, will be decided by a jury. You will have to put on evidence that will lead the jury to conclude that you were justified. And if you can do that, it won't matter if you did use handloads.

On the other hand, consider the case of Randy Willems. He was able to convince a jury that his shooting someone was justified, and thus avoid going to jail, in large part because he did not use handloads. His case is described in more detail in this post (http://www.thehighroad.org/showpost.php?p=7698639&postcount=41).

Willems was a police officer. A man tried to take his gun. During the disarming attempt, Willems shot his assailant in self defense. His attacker survived and claimed that Willems had shot him for no reason from a substantial distance.

Willems wound up on trial. At trial, Willems was able to introduce into evidence expert opinion testimony that, based on gunshot residue testing of exemplar rounds of the same type of factory ammunition Willems had been using, Willems fired the shot from a distance of approximately 18 inches. That corroborated Willems' account of what happened and impeached his accuser's testimony.

Willems was able to use that expert opinion to exonerate himself because he had used factory ammunition. He would not have been able to use that expert opinion if he had used handloads. Why is more fully discussed in the various threads I've linked to.

357 Terms
January 4, 2012, 11:17 AM
Willems fired the shot from a distance of approximately 18 inches. That corroborated Willems' account of what happened and impeached his accuser's testimony.

Most if not all reloads for personal defense will leave similiar if not identical GSR residue from 18 inches. ( as to that of factory ammo )

He would not have been able to use that expert opinion if he had used handloads.

If the GSR is obviously from a close range shot why would he not be able to call in an expert?
A shot from 20ft will leave a whole lot less GSR than one from 18in. Obvious is obvious.

Frank Ettin
January 4, 2012, 12:40 PM
...Most if not all reloads for personal defense will leave similiar if not identical GSR residue from 18 inches. ( as to that of factory ammo )...You've also participated in the other threads I've linked to, and also appear incapable of understanding the issues. All of your questions and comments have been answered in those other threads.

...If the GSR is obviously from a close range shot why would he not be able to call in an expert?
A shot from 20ft will leave a whole lot less GSR than one from 18in. Obvious is obvious. The short answer is that the law of evidence would not allow it. One just can't put on anything he wants as evidence in a trial. Certain requirements must be satisfied in order for something to be admitted into evidence.

In the case of expert opinion based on scientific testing, in order for the opinion to be admitted into evidence the party offering it must establish to the satisfaction of the judge (1) that the expert is really professionally qualified to render an opinion; (2) the testing was done in a manner accepted as valid in the scientific community; and (3) that the material tested was substantially identical to the material that is the subject matter of the trial.

If you fired a handloaded round, you will not be able to establish that whatever rounds are fired in GSR testing were substantially identical to the round you shot. If you fired a round of, for example, Federal .45 ACP 230 grain HST, you could establish, with a witness from Federal if necessary, that firing exemplar rounds of Federal .45 ACP 230 grain HST would be valid for comparison.

This is all discussed in greater detail here (http://www.thehighroad.org/showpost.php?p=7706914&postcount=120), here (http://www.thehighroad.org/showpost.php?p=7611181&postcount=33), here (http://www.thehighroad.org/showpost.php?p=7612159&postcount=43), here (http://www.thehighroad.org/showpost.php?p=7612294&postcount=48), here (http://www.thehighroad.org/showpost.php?p=7612314&postcount=49), and here (http://www.thehighroad.org/showpost.php?p=7698639&postcount=41).

357 Terms
January 4, 2012, 12:51 PM
The short answer is that the law of evidence would not allow it. One just can't put on anything he wants as evidence in a trial. Certain requirements must be satisfied in order for something to be admitted into evidence.


So your saying that if there was a sufficient amount of GSR around an entry wound in a SD shooting (say enough to show that there was no way, under any circumstances that the shot came from 15 or 20ft) that a defendant would not be allowed to have an expert testify to the obvious?

357 Terms
January 4, 2012, 01:39 PM
the material tested was substantially identical to the material that is the subject matter of the trial.

How do you explain GSR evidence that has been entered when the origin of the cartridge (manufacterer) is unknown?

GLOOB
January 4, 2012, 02:12 PM
Originally Posted by beatledog7
...Once I've had to shoot an attacker, the only thing that will keep me out of jail is the jury's recognition that given the scenario in which I chose to shoot, my decision was sound and justified....
No. The police decide if there's enough to bring to the DA. Then the DA decides if there's enough to go to trial. If you go to trial, like Fiddletown the lawyer said, you're either very unlucky (or you made a bad shoot, and you deserve to go to trial and get hung).

Fiddletown, I understand all the issues. I understand fully that there's a snowball's chance in hell that handloads can throw a monkey wrench in the forensic evidence. Or that an impressionable jury can feel that handloads are inherently evil. And that there's an even smaller chance that this will change the outcome of the case.

You don't understand that there's still no case that shows handloads have changed the outcome. There are only a tiny handful of cases that show that it is theoretically possible, even. If Wilems had used handloads, and if the jury wasn't allowed to know that there was imbedded GSR in the wound, and he lost the case despite all other evidence consistent with his innocence (per similar cases where factory ammo was used and the jury found innocent), then that could have been the first. Oh well. So close. Only off by a mile.

You're claiming that tying a red ribbon on your finger can significantly save your life in a car accident. Then you're proving it by showing a case where someone had a minor fender bender and they lived.

Show me one guy you think was innocent and who was found guilty, and where the outcome was clearly affected by the use of handloads.

Frank Ettin
January 4, 2012, 02:16 PM
So your saying that if there was a sufficient amount of GSR around an entry wound in a SD shooting (say enough to show that there was no way, under any circumstances that the shot came from 15 or 20ft) that a defendant would not be allowed to have an expert testify to the obvious? A trial is a serious and formal matter. Evidence upon which serious decisions affecting someone's life and liberty must clear a high bar. "Obivious" won't do.

Frank Ettin
January 4, 2012, 02:20 PM
How do you explain GSR evidence that has been entered when the origin of the cartridge (manufacterer) is unknown?

Exactly when did this happen? Under exactly what circumstances? In exactly what context? And for exactly what purpose?

GLOOB
January 4, 2012, 02:29 PM
Even if GSR distance testing is not allowed at trial, the presence of GSR will be noted by police forensics testing and can clear you before even going to trial, handloads or not.

Originally Posted by 357 Terms View Post
So your saying that if there was a sufficient amount of GSR around an entry wound in a SD shooting (say enough to show that there was no way, under any circumstances that the shot came from 15 or 20ft) that a defendant would not be allowed to have an expert testify to the obvious?
A trial is a serious and formal matter. Evidence upon which serious decisions affecting someone's life and liberty must clear a high bar. "Obivious" won't do.


Correct me if I'm wrong, but won't the presence or absence of GSR will more than likely be allowed to be presented to the jury? Even if your expert witness isn't allowed to present tests of your reloads to establish the exact distance, the GSR will still be able to stand on its own for whatever that's worth.

IOW, you could have an expert witness testify that it's impossible for that amount of GSR to embed at a distance of 20 feet, in his expert opinion. But he wouldn't be allowed to present actual testing of your reloads. In fact, I don't see why he wouldn't be allowed to do actual tests on a variety of factory ammo and present that just for a reference. The prosecution was allowed to do exactly that in the Bias case, despite Bias didn't use factory ammo. They presented the lack of imbedded GSR as evidence, and they presented testing of a random factory round to show the presumable distance.

357 Terms
January 4, 2012, 02:29 PM
A trial is a serious and formal matter. Evidence upon which serious decisions affecting someone's life and liberty must clear a high bar. "Obivious" won't do.


You haven't, and cannot seem to definitivly answer my question.

Exactly when did this happen? Under exactly what circumstances? In exactly what context? And for exactly what purpose?

So your saying that GSR evidence has never been entered into a trial when the origin of the cartrige is unknown?....under ANY circumstances?

Frank Ettin
January 4, 2012, 02:40 PM
You haven't, and cannot seem to definitivly answer my question....Your question has been definitively a answered by me and others In the posts I've linked to. You just don't like or can't understand the answers.



...So your saying that GSR evidence has never been entered into a trial when the origin of the cartrige is unknown?....under ANY circumstances?My statements speak for themselves.

GLOOB
January 4, 2012, 02:47 PM
My statements speak for themselves.
+1 Completely agree! :neener:

Waywatcher
January 4, 2012, 02:52 PM
Chill out, guys. No need to act like someone shot your dog.

That being said, I appreciate fiddletown's contributions to this thread. I still feel confident in my selection of ammunition. I think BullfrogKen mirrored my sentiments, and expressed them better than I could.

beatledog7
January 4, 2012, 02:56 PM
Quote:
Originally Posted by beatledog7
...Once I've had to shoot an attacker, the only thing that will keep me out of jail is the jury's recognition that given the scenario in which I chose to shoot, my decision was sound and justified....

Added by GLOOB
No. The police decide if there's enough to bring to the DA. Then the DA decides if there's enough to go to trial. If you go to trial, like Fiddletown the lawyer said, you're either very unlucky (or you made a bad shoot, and you deserve to go to trial and get hung).

GLOOB,
I grant your technical accuracy, but I was writing based on the assumption that we're already in a trial. I took that approach because the thread of the argument presumed that Mr. Smith would be defending himself in court, so the police and the DA and all the players that would have a role in deciding whether the case should go to trial have already had their say.

Peace.

357 Terms
January 4, 2012, 02:58 PM
Quote

Your question has been definitively a answered by me and others In the posts I've linked to. You just don't like or can't understand the answers.



I just can't let myself take speculation as fact.

GLOOB
January 4, 2012, 03:06 PM
Chill out, guys. No need to act like someone shot your dog.
No one shot my dog. Someone said this to me, and has only backed it up with vagueries, insinuation, and non-answers.
That's up to you. You've participated in some of the threads I've linked to, and it's been clear that you haven't really understood the issues. So what?

You're free to make your choices. However, knowing what I know, having the training and experience that I have, I would not make the same choices. Have a nice life.
Now if you (edit) have actual answers, how about posting them. Specifically to 357's specific, pertinent, straightforward questions and to my own post #46.

WhistlinDixie
January 4, 2012, 03:10 PM
Hey guys, I was just wondering what people were doing with these JHP bullets. I thought conventional wisdom went against carrying reloads, and perhaps there was an advantage in competition.

I got some good answers. Apparently they can be more accurate. Some people do carry reloads. Also it's possible to reload cheaper rounds that are similar to your factory carry rounds for practice. That's good enough for me. I didn't start this so it could turn into another argument about court cases and the liabilities of using reloads for SD.

357 Terms
January 4, 2012, 03:35 PM
^^^glad we could help/confuse!

Good shooting!

Bubba613
January 4, 2012, 03:43 PM
Lawyers will typically post their scare tactics of "do what you want but no one else will be in the cell with you."
The chances of getting involved in a shooting period are pretty slim. The chances that your choice of ammo will be an issue are even slimmer. The chances that GSR will be a factor are almost miniscule.
It's a non-issue as far as I'm concerned.

BeerSleeper
January 4, 2012, 09:08 PM
Getting bent out of shape over non-issues, and running wildly off topic, when certain subjects, like SD handloads come up, is what we do here.

My take on it, is that whether the legal drawbacks are real, or not, or whether they are significant, or not, doesn't matter. It doesn't matter, because I spent $20 on a box of factory SD ammo, just in case. So, for $20, I don't have to worry about it.

POI/POA arguments are useless, given the circumstances of a SD shooting. Under the stress of a SD shooting, in what is surely going to happen fast, you're not slow-fire drilling the bullseye at 25 yards. If you can shoot inside of 50 MOA (that's fifty, five-zero), that's what it takes to hit a human sized target at a realistic SD range. If they're outside of that range, you're gonna have bigger problems proving SD than your ammo selection.

Frank Ettin
January 4, 2012, 09:14 PM
...Correct me if I'm wrong, but won't the presence or absence of GSR will more than likely be allowed to be presented to the jury? Even if your expert witness isn't allowed to present tests of your reloads to establish the exact distance, the GSR will still be able to stand on its own for whatever that's worth....Why would it be presented? How would it be presented? The significance of GSR or an absence of GSR would not be considered to be within the common knowledge of a lay jury. And without expert evidence regarding its meaning, neither the lawyers nor other witnesses could comment on it.

...you could have an expert witness testify that it's impossible for that amount of GSR to embed at a distance of 20 feet, in his expert opinion. But he wouldn't be allowed to present actual testing of your reloads...First, it would be unlikely for any expert to be willing to testify thus. Second, without acceptable test results to backup the opinion (and how do you establish "impossible"), he'd get torn to shreds on cross-examination. Having your expert witness humiliated on the witness stand is generally not helpful to your case.

...The prosecution was allowed to do exactly that in the Bias case, despite Bias didn't use factory ammo. They presented the lack of imbedded GSR as evidence, and they presented testing of a random factory round to show the presumable distance....No actually. The rounds tested for the prosecution were apparently Bias' handloads. Massad Ayoob explains it in his article on Bias ("Handloads for self-defense: the Daniel Bias case" (http://findarticles.com/p/articles/mi_m0BTT/is_181_30/ai_n26806104/), pg 1):...Danny was careful to tell the investigators the revolver had been charged with handloads. During the grand jury inquest, the following exchange came with a senior investigator on the stand:

Prosecutor: "In fact, the uh, the rounds that were uh, taken that night and the rounds that were tested were rounds that Mr. Bias himself had reloaded, is that correct?"

Sergeant: "Yes, that's correct."

However, the test ammunition taken from the Bias home and submitted to the crime lab for examination included cartridges with R-P, Remington-Peters, headstamps. The loads in the gun, and in the box it was loaded from, were all in Federal P cases.

Apparently, the handloads taken for testing were full power loads. They deposited visible gunshot residue until a distance of 50" was reached. Factory Federal 158-grain lead semi-wadcutter P would leave visible GSR at that distance or greater....

But luckily, this sloppy procedure on the part of the prosecution didn't get Bias convicted. The first trial, the one in which this evidence was offered, ended in a hung jury. Ayoob discusses how at the second trial this prosecution evidence blunted ("Handloads for self-defense: the Daniel Bias case" (http://findarticles.com/p/articles/mi_m0BTT/is_181_30/ai_n26806104/), pg 2):...The Public Defender's office appointed another skilled lawyer, Elizabeth Smith, to represent him in the second trial.

Seeing the devastating effects of the GSR evidence against Bias the first time around, Smith attacked the evidence gathering. She explained to me much later, "I think in the second trial, I was able to effectively cross examine Dr. Mihalakis (the ME who did the autopsy) about how the evidence was collected (and) was able to really raise doubts about the GSR issue. I don't think the second jury was convinced one way or the other about the GSR evidence." Thus, while the state was unable to show that the GSR should convict Danny, the defense was likewise unable to show GSR evidence that would have exonerated him. The second trial also ended with a hung jury....

420Stainless
January 4, 2012, 09:29 PM
I read an article (probably by Ayoob) that recommended carrying factory ammo for the reasons being argued about above, but to try and duplicate that load and performance as close as possible with handloaded components for lower cost practice. That reasoning made sense to me, so that is why I buy JHP from time to time for my self-defense practice. I also buy JHP from time to time for full power magnum revolver loads mainly because they are constructed for those high pressure loads and are widely available.

Most of my shooting is done with cast lead bullets.

357 Terms
January 4, 2012, 09:40 PM
Pour a good glass of wine fiddletown ( lets not debate Bias)

The OP is done and has had answers.......another thread :)

Seedtick
January 4, 2012, 11:20 PM
Hey guys, I was just wondering what people were doing with these JHP bullets. I thought conventional wisdom went against carrying reloads, and perhaps there was an advantage in competition.

I got some good answers. Apparently they can be more accurate. Some people do carry reloads. Also it's possible to reload cheaper rounds that are similar to your factory carry rounds for practice. That's good enough for me. I didn't start this so it could turn into another argument about court cases and the liabilities of using reloads for SD.


Looks to me like it's been asked and answered then.

Where is that portly chanteuse?

Seedtick

:)

bds
January 5, 2012, 12:20 AM
Any differences in POA/POI comparing roughly ballistically similar loads, factory or handloads, are inconsequential.
Correct, hence why I practice with cheaper reloads that comparably duplicate the factory JHP POA/POI.

Mottos I live by are "Holes on target speak volumes" and "Accuracy is everything". :D

Peace.

BullfrogKen
January 5, 2012, 10:23 AM
So, if I get your meaning right fiddletown, the issue I'd face by using hand loads surrounds Gun Shot Residue, right?

Anything else?

Frank Ettin
January 5, 2012, 11:57 AM
So, if I get your meaning right fiddletown, the issue I'd face by using hand loads surrounds Gun Shot Residue, right?

Anything else? Exemplar testing of GSR, that is the primary issue. How often that could come up is impossible to know. We know that it was significant for Randy Willems. We know that it was an issue in a case (http://www.thehighroad.org/showpost.php?p=6258724&postcount=66) Marty Hays was involved with.

There's the probably minor secondary issue of strange jury response -- such as we saw in Fish regarding JHPs and that Glenn Meyer studied in connection with gun type (see this article (http://www.thejuryexpert.com/2009/09/will-it-hurt-me-in-court-weapons-issues-and-the-fears-of-the-legally-armed-citizen/)). And I have some personal experience with the sorts of factors that can influence jurors from post verdict interviews of jurors in cases I've been professionally involve in.

I know that some upstanding citizens of my acquaintance have looked at me as if I had two heads when they found out I handloaded (manufactured my own ammunition). For many non-gun people that's a very strange concept. I wouldn't want anyone with that sort of attitude on my jury if handloads were involved.

My general approach to risk management (stacking the deck in my favor) is to avoid possible wild cards (1) that aren't necessarily going to be a meaningful help to me on the street; and (2) that I don't have a good, non-technical explanation for. Things like training and good, factory JHP ammunition will help me on the street and I have a good story for. Things like handloads -- not so much.

The jury concerns are subjective. The objective issue is that if one needs to use his gun in what he believes is self defense and it winds up that expert opinion testimony based on exemplar GSR testing will be important to helping him establish that his use of force was justified, he's going to have big problems if he used handloads.

newbuckeye
January 5, 2012, 12:42 PM
My general approach to risk management (stacking the deck in my favor) is to avoid possible wild cards (1) that aren't necessarily going to be a meaningful help to me on the street; and (2) that I don't have a good, non-technical explanation for. Things like training and good, factory JHP ammunition will help me on the street and I have a good story for. Things like handloads -- not so much.

The jury concerns are subjective. The objective issue is that if one needs to use his gun in what he believes is self defense and it winds up that expert opinion testimony based on exemplar GSR testing will be important to helping him establish that his use of force was justified, he's going to have big problems if he used handloads.

So, in my non-lawyer mind, another of those "possible wild cards" to be avoided is a .44mag for CCW when a 40sw or .45 ACP will do?

Frank Ettin
January 5, 2012, 12:57 PM
So, in my non-lawyer mind, another of those "possible wild cards" to be avoided is a .44mag for CCW when a 40sw or .45 ACP will do? A lot depends on whether a .44 Magnum is really a better choice. From what I've read and based on my training a .44 Magnum might not be the best choice for self defense, in part because the amount of recoil can slow down follow up shots. On the other hand, it might be the appropriate choice if one will be out in the wilds where a concern is animal defense.

Personally, I'll stick with my .45.

BullfrogKen
January 5, 2012, 02:29 PM
I know that some upstanding citizens of my acquaintance have looked at me as if I had two heads when they found out I handloaded (manufactured my own ammunition). For many non-gun people that's a very strange concept. I wouldn't want anyone with that sort of attitude on my jury if handloads were involved.

I know people who'd look at me like I was an evil assassin working for the Mafia if I told them I carried a concealed handgun. Or if I shot many thousands of rounds a year. Or that I spend hundreds of dollars and use vacation time to take training classes when I'm not a cop or serve in the military.

Those are all hurdles that can be addressed, including the "odd concept" of assembling your own ammunition. So let's set aside all those subjective arguments so as not to get lots in the weeds over them.


You're concerned with exemplar testing. I would assert it could still be possible to achieve some level of testing with handloads, were that necessary.

But even if I'd used factory ammunition, gun shot residue is going to be different depending on the gun used. The residue from a 2" revolver with porting is going to be substantially different than that of 8" barrel. The same can be said for a short-barreled automatic with porting vs. a 5" barrel.

How would you suggest a defendant address those disparities?

Frank Ettin
January 5, 2012, 02:58 PM
...But even if I'd used factory ammunition, gun shot residue is going to be different depending on the gun used. The residue from a 2" revolver with porting is going to be substantially different than that of 8" barrel. The same can be said for a short-barreled automatic with porting vs. a 5" barrel.

How would you suggest a defendant address those disparities? The exemplar testing would have to be done with a substantially identical gun. Marty Hayes noted that in the post I linked (http://www.thehighroad.org/showpost.php?p=6258724&postcount=66) to above:...I must conduct testing with a Glock 19 and Silvertip ammunition. It is critical for the defense to show the distance from the shooter to the shootee, and that should be done with a reasonable degree of acuracy BECAUSE I CAN USE THE SAME GUN/AMMO COMBO as the shooter/defendant....

Frank Ettin
January 5, 2012, 03:37 PM
...You're concerned with exemplar testing. I would assert it could still be possible to achieve some level of testing with handloads, were that necessary....There's no question that testing can be done. The problem is getting expert opinion testimony based on that testing into evidence if handloads were used in the event that is the subject of the trial. The rules of evidence appear to present an insurmountable barrier to putting such information in front of a jury.

I discussed the applicable evidentiary principles at length in a number of the threads linked to in this sticky (http://www.thehighroad.org/showthread.php?t=618021) of Kleanbore's as well as this post (http://www.thehighroad.org/showpost.php?p=7698639&postcount=41).


Daniel Bias was unable to introduce such evidence on his behalf. The Bias case is discussed at great length in the various threads linked to by Kleanbore, and I also write about it in this post (http://www.thehighroad.org/showpost.php?p=7698639&postcount=41).


Another lawyer on this board, Bartholomew Roberts, has also commented in the various threads that Kleanbore has linked to on the problems of introducing such testimony into evidence, including in this post (http://www.thehighroad.org/showpost.php?p=7612159&postcount=43), this post (http://www.thehighroad.org/showpost.php?p=7612294&postcount=48) and this post (http://www.thehighroad.org/showpost.php?p=7611181&postcount=33).


Another lawyer known as Spats McGee, who is not a member here but who posts on TFL, as also commented extensively on the problems of getting such opinion testimony before a jury if handloads were used. Some of his comments from a recent TFL thread on this topic may be found here (http://thefiringline.com/forums/showpost.php?p=4879796&postcount=35), here (http://thefiringline.com/forums/showpost.php?p=4880306&postcount=47) and here (http://thefiringline.com/forums/showpost.php?p=4880837&postcount=58). Spats McGee also assembled this archive (http://thefiringline.com/forums/showthread.php?t=452627) of TFL threads on the topic.So the evidentiary issues with GSR testing and handloads have been pretty fully discussed.

BullfrogKen
January 5, 2012, 04:04 PM
Perhaps that would work with a substantially similar firearm, if one existed. But I would contend that the ammunition used must come for the same LOT for the results to be valid to achieve any hope of determining a distance with any degree of confidence. One of the big secrets in manufacturing is the ammunition companies can use entirely different powders from lot to lot. But most often powders are blended to achieve a similar burn rate for the powder they're looking to use.

Perhaps a company as large as Winchester can set aside batches of Winchester Silvertips for posterity. In that case it might be possible to get some rounds from the same lot. But what do we do when the rounds are made by smaller houses, like Wilson Combat? Or perhaps I bought the ammo and no longer have the box it came in; or it's so old the lot number is no longer visible; or I have two boxes from two different lots in the gun?

I may not know a lot of people who reload, but I do know a LOT of people who cannot locate an original ammo box. And given magazines that hold up to 20 or more rounds, they could very likely have ammo from different lots in their magazines.


Additionally, what do we do when the gun isn't a Glock 19, with literally hundreds of thousands of similar models made on a production line? What would be your advice if I shot a handmade 1911 from a shop like Novak's, or made by someone who is now deceased like Mr Swenson?

Couple that with some ammo made by a small house like Wilson's and I'd contend the hard science of determining exact distance based on GSR becomes a lot more vague.

By the point we start talking about lot differences, about as much confidence as I'd have in the science is to convince me that either a shot was made in close proximity or it wasn't.

Frank Ettin
January 5, 2012, 04:50 PM
...But I would contend that the ammunition used must come for the same LOT for the results to be valid to achieve any hope of determining a distance with any degree of confidence. One of the big secrets in manufacturing is the ammunition companies can use entirely different powders from lot to lot. But most often powders are blended to achieve a similar burn rate for the powder they're looking to use...Yes, this is a potential concern. It would have to be addressed if the prosecution were to raise it as an objection to your introduction of the the opinion testimony. Perhaps testimony from the cartridge maker would help overcome those objections. Another possibility would be to conduct tests using a number of lots picked at random. That would show whether or to what extent results are sensitive to lot-to-lot variations.

If you were not able to overcome that objection, you would be out of luck and unable to put the information in front of the jury. I keep the boxes, hold back some rounds and make records when I load my magazines for self defense use.

...Perhaps a company as large as Winchester can set aside batches of Winchester Silvertips for posterity. In that case it might be possible to get some rounds from the same lot. But what do we do when the rounds are made by smaller houses, like Wilson Combat? ...I've been told buy Massad Ayoob that major cartridge manufacturers do indeed set aside batches from each lot. This would be a common practice for a variety of business reasons, including concerns over possible product liability or warranty claims.

Whether smaller houses do or not, I couldn't say, but it's my understanding that setting aside samples is a normal practice in manufacturing. I would also wonder how many smaller houses actually make the ammunition or have it private labeled by a larger manufacturer.

And indeed the ammunition concerns you raise are valid. But they all cut against the interests of a possible defendant. They are all objections the prosecutor could raise to the introduction of the information that could help you, so you will need to overcome them to get your expert's opinion into evidence. Using handloads makes it all that much harder.

...Additionally, what do we do when the gun isn't a Glock 19, with literally hundreds of thousands of similar models made on a production? What would be your advice if I shot a handmade 1911 from a shop like Novak's, or made by someone who is now deceased like Mr Swenson?... At least the gun used still exists (unlike the ammunition fired). That makes it possible to physically and dimensionally compare the gun used with any test gun.

I suspect that I would be able to find an expert who would testify that possible in GSR displayed by different guns, all else being equal, would arise from attributes such as barrel length, the presence of a compensator and possibly the strength of recoil spring (or in a revolver, the width of the cylinder gap).

These physical attributes could be reproduced in the test gun. If absolutely necessary, testing could be done with several similar guns. Comparison of results could show the sensitivity, or lack of sensitivity, of the results to various physical attributes of the gun or any possible differences among the guns used

...By the point we start talking about lot differences, about as much confidence as I'd have in the science is to convince me that either a shot was made in close proximity or it wasn't. And that would be the attack a prosecutor might make when the defense in a claimed self defense case wants to use expert opinion testimony based on GSR exemplar testing to support the defendant's position.

But if you're the defendant and you really want that sort of testimony into evidence, as I and other lawyers who have commented on the question have discussed, use of handloads will itself pretty much keep such testimony away from the jury. The fact that there are a variety of other objection that could be be raised by the prosecution doesn't change that.

.

BeerSleeper
January 5, 2012, 07:48 PM
How do they ID the ammunition used?

I can buy Remington golden sabers and load 'em up in nickel plated RP brass, with a nickel plated primer, and externally, visually, they are the same. Not all factory defense ammo can be created with identical components, but I would bet this isn't the only case where it is possible.

If you're carrying factory ammo, and shoot the mag empty, how do they verify what you were shooting?

massad ayoob
January 5, 2012, 08:00 PM
Hey, fellas,

The previously cited sticky contains anything I would have said here, but to briefly recap:

From my point of view, the ability to document GSR in a close-range shooting in which distance is a key issue and the main reason (though not necessarily the only reason) to use factory for SD. As explained in the sticky, NO ONE has yet found a case where the courts accepted a reloader's words or records for what was in the handload that was fired in the case at bar. We have seen from the Bias case the "canary in the mine shaft" that tells us why this evidence probably WON'T be allowed in our defense.

As others have noted, handloading practice ammo to duplicate the factory load fulfills all economy of training/practice/competition needs. Put a couple hundred of the factory loads through the gun to make sure it works, carry same, practice with handloads: best of both worlds.

Economy? If I've saved a dollar per cartridge by loading my own, I don't want to be on the witness stand as defendant and having to answer the question, "So, a dollar is the price you put on a human life?" Battles avoided are battles won.

Yes, we all have pride in the ammo we reload. If we end up like Bias or Willems in a case where GSR replication will make or break our defense, is that pride worth the agony we put ourselves and our families through in a trial?

That's an issue to discuss with your family, not with me or Fiddletown, but the fact is that Fiddletown has given good advice here.

357 Terms
January 5, 2012, 08:40 PM
NO ONE has yet found a case where the courts accepted a reloader's words or records for what was in the handload that was fired in the case at bar.


Has there ever been a self defense shooting involving handloads where the reloader/shooters data was not accepted? Especially where there is sufficient GSR evidence.

Frank Ettin
January 5, 2012, 09:24 PM
...If you're carrying factory ammo, and shoot the mag empty, how do they verify what you were shooting?The question isn't how "they" will verify what you were shooting. If you want to introduce expert opinion testimony based on GSR exemplar testing, it's how you will demonstrate to the judge's satisfaction what you were shooting. Randy Willems was able to do so. It also appears that Marty Hayes in a case (http://www.thehighroad.org/showpost.php?p=6258724&postcount=66) he was working on believed he would be able to.

How you might be able to do it, if you need it someday, will depend on all the circumstances and what sort of possible evidence might be available to help you do it. Things like one or more left over partial boxes of ammunition would help you. Remember that if you can't, you might have some problems if you're on trial following a shooting you claim was in self defense. So you might want to start thinking about some of the things you could do now to help. Or you could even choose to just leave it to fate.

Has there ever been a self defense shooting involving handloads where the reloader/shooters data was not accepted? Especially where there is sufficient GSR evidence. Explain to us why, under the law of evidence, it would matter if the shooting were a self defense shooting or some other kind. You've been repeatedly advised that as a matter of law it doesn't matter. If you continue to contend that it does matter, cite some applicable legal authority.

Yarddog
January 5, 2012, 09:24 PM
"[Correct, hence why I practice with cheaper reloads that comparably duplicate the factory JHP POA/POI.
Mottos I live by are "Holes on target speak volumes" and "Accuracy is everything".
Peace.]"

This^^^^^^^^ Is the way I practice/train, Not a bad idea & has Mass approval ; )PS I save alot of money this way.
Y/D

35 Whelen
January 5, 2012, 09:25 PM
I guess I don't understand all this "how" you defend yourself. Where I live, if you have the right to defend yourself, then that's just it. If someone enters my house and I defend myself with one of my handguns, no one's ever going to know whether I did so with handloads or factory loads simply because I was within the law when I defended myself and that's as far as the matter will go.

Are other states different? Texas laws lay out explicitely when a person may defend themselves or in the words of the statutes, "use deadly force".

Several years ago in San Antonio a gentleman walked out on the balcony and saw someone jacking his car. He went inside, retrieved his deer rifle and axed the guy from his balcony. No charges filed, end of matter.

Incidently, right or wrong, handloads are all I have ever or will ever fire.

35W

Frank Ettin
January 5, 2012, 09:41 PM
I guess I don't understand all this "how" you defend yourself. Where I live, if you have the right to defend yourself, then that's just it....Sorry, but that's not just it, at least not automatically. Our law in general frowns on one person intentionally injuring or killing another. Our law, however, recognizes that there are some circumstances in which it would be justified for one person to intentionally injure or kill another person.

You will not have the final say on whether or not your use of lethal force was justified. Other people will be deciding that. So if you think you were justified but the DA and/or grand jury disagree, it's not a "good shoot" unless your trial jury decides that it was.

Not all cases of claimed self defense are easily resolved. It depends on what happened and how it happened and a lot of factors that will not be in your control. Consider --

This couple (http://www.stltoday.com/news/local/crime-and-courts/article_e5733da4-9156-11e0-bec5-0019bb30f31a.html), arrested in early April and finally exonerated under Missouri's Castle Doctrine in early June. And no doubt after incurring expenses for bail and a lawyer, as well as a couple of month's anxiety, before being cleared.

Larry Hickey (www.armedcitizensnetwork.org/images/stories/Hickey%20Booklet.pdf), in gun friendly Arizona: He was arrested, spent 71 days in jail, went through two different trials ending in hung juries, was forced to move from his house, etc., before the DA decided it was a good shoot and dismissed the charges.

Mark Abshire (http://thefiringline.com/forums/showthread.php?t=391091) in Oaklahoma: Despite defending himself against multiple attackers on his own lawn in a fairly gun-friendly state with a "Stand Your Ground" law, he was arrested, went to jail, charged, lost his job and his house, and spent two and a half years in the legal grinder before finally being acquitted.

Harold Fish (http://www.haroldfishdefense.org/), also in gun friendly Arizona: He was still convicted and sent to prison. He won his appeal, his conviction was overturned, and a new trial was ordered. The DA chose to dismiss the charges rather than retry Mr. Fish.

Gerald Ung (http://www.thehighroad.org/showpost.php?p=7359920&postcount=34): He was attacked by several men, and the attack was captured on video. He was nonetheless charged and brought to trial. He was ultimately acquitted (http://abclocal.go.com/wpvi/story?section=news/crime&id=7960513).

Some good folks in clear jeopardy and with no way to preserve their lives except by the use of lethal force against other humans. Yet that happened under circumstances in which their justification for the use of lethal force was not immediately clear. While each was finally exonerated, it came at great emotional and financial cost. And perhaps there but for the grace of God will go one of us.

massad ayoob
January 5, 2012, 09:46 PM
A hearty applause to Fiddletown's post above.

Guys, several years of participating in dead-horse-beating debates on this topic have shown me that participants tend not to be on the same wavelength or discussing the same things, particularly around, oh, Page 4 or so.

I would respectfully suggest that we all review http://www.thehighroad.org/showthread.php?t=618021

This will save everyone a lot of wasted time and finger wear on keyboards.

357 Terms
January 5, 2012, 09:48 PM
Explain to us why, under the law of evidence, it would matter if the shooting were a self defense shooting or some other kind. You've been repeatedly advised that as a matter of law it doesn't matter. If you continue to contend that it does matter, cite some applicable legal authority.



I will rephrase; Has a reloaders data not been allowed into evidence when there was an ample amount of GSR evidence, under any circumstance?

35 Whelen
January 5, 2012, 10:05 PM
Sorry, but that's not just it, at least not automatically.


Have you read the Texas statutes on self defense? I bet they're wildly different from those in California. I had no earthly idea just how liberal they were until I acquired my first CHL and was subject to roughly 8 hours of reading and studying them in a classroom environment. For example, here's a copy of our states Castle Law (http://www.capitol.state.tx.us/tlodocs/80R/billtext/html/SB00378F.htm). I was stunned to say the least at the plethora of situations in which deadly force is justified in the state of Texas.

I'm not trying to argue with you and certainly not posing as some expert, for that I am not. But as a personal decision, I decided long ago that any intruder in my house or anyone posing a direct threat to me or my family would be subject to deadly force, no questions asked, regardless of any gray areas in the laws. If that lands me in a penal facility, so be it. At least said intruder won't bother my family or anyone elses for that matter.

35W

Frank Ettin
January 5, 2012, 10:25 PM
Have you read the Texas statutes on self defense? I bet they're wildly different from those in California....Yes I have, and they are clearly the most favorable in the nation -- from the defender's point of view. California's are pretty good and quite similar to many gun friendly, defender friendly States. For example, there's no duty to retreat in California. Force is used in self defense in California, and when justified the defender tends to be quickly exonerated.

But all use of force laws, no matter how favorable, have a conditions which must be satisfied for the use of force to be considered justified. So it's always possible for there to be disagreement as to whether or not those conditions were actually satisfied, e. g., equivocal evidence, a conflict between witnesses, etc. And when there is such disagreement, and it's not established the the use of force was justified, the DA will, and probably has a duty to, prosecute. Now the disagreement will be resolved by a trial.

Another thing to consider, many of us travel. If I need to defend myself in another State, the favorable laws back home won't do me any good.

...any intruder in my house...You will also always have more leeway in your home.

I will rephrase; Has a reloaders data not been allowed into evidence when there was an ample amount of GSR evidence, under any circumstance? Yes. Bias.

357 Terms
January 5, 2012, 10:36 PM
Yes. Bias.

Well there you go, my SD reloads will light someone on fire from the distance that Bias claimed his wife was shot (or I mean shot herself?) from.

I imagine that could make a big difference on how a D.A would look at GSR evidence.

It certainly would have made a differnce in the Bias case,, and would have corroborated his claims.

BullfrogKen
January 5, 2012, 10:52 PM
I had an interesting conversion tonight with an individual who worked in a certain state crime lab and headed the firearm's section.

Give me some time and I'll comment on what I can from that conversation tomorrow. I will share this tonight, though. What he recounts from how he and his lab worked do not reconcile with the information here in this thread.

BullfrogKen
January 6, 2012, 02:42 PM
As I mentioned, I had occasion to speak to a good friend yesterday, and I asked him if we could have a short discussion about the matter of reloads used in a shooting. I passed some of the assertions here past my friend, a state crime lab expert, last night. I won’t go into the entire conversation, but I’ll share a few relevant points.

The matter of ammunition in evidence –
Asserted here and in other discussions is the belief that ammunition in evidence must remain entirely preserved. That is entirely false.

Any recovered bullets, casings, and unexpended ammunition is thoroughly inspected at the lab. Furthermore, as a matter of procedure unexpended ammunition is disassembled to determine its characteristics as precisely as possible. The bullets and powder are examined, weighed and identified, as is the primer. An experienced and trained examiner will have the ability to determine with some certitude the manufacture of origin. In other words, the examiner can determine whether the rounds are loaded at a factory and by which manufacturer, or outside a factory.

Furthermore, if the firearm itself and enough ammunition were recovered, some of it will be fired through that firearm as part of the examination. If there isn’t sufficient ammunition in evidence, the lab will test some that is as similar to the evidence as possible. Most of the cases the lab works the lot number, or numbers, of the ammunition is simply impossible to determine. But the lab will have identified who made it, place a phone call to the manufacturer, and request some having the same characteristics and using similar components. And when it arrives, even the factory rounds are examined, disassembled and sampled to ensure the lab got what it asked for. If that’s not possible, the labs have reloading equipment. They will replicate, as close as possible, ammunition identical to the round they disassembled and use those to conduct their firing tests.

So, the notion that an examination of recovered ammunition can only be done through means of observation that completely preserves the evidence is not true.

If the state in any way suspects that hand loaded ammunition was used, a search warrant will include the seizure of the suspect’s components, loading equipment and loading data. I believe his quote was, “Ken, if you’re ever the subject of the attention of the state in a homicide, we can turn your entire life inside out. After the search warrant is executed you’ll be lucky to have carpet left in your house.” I asked him specifically if he’d ever worked a case where the crime lab used a hand loader’s data book to develop test ammunition. “Of course,” was his reply.


The matter of Gun Shot Residue –
Asserted here are many false notions of GSR examinations, most commonly repeated is the notion that GSR testing without independent factory exemplar data is not admissible as evidence in court. That is entirely false. We discussed this at length. I’ll leave you with this.

Quite often the crime lab works a case with evidence that contains GSR, but no gun or ammunition was recovered. Now according to some, without a gun and the ammunition the evidence is rather meaningless. Far from it. Much can be determined from that evidence alone. We discussed just how much information can be gathered, “But rather than take my word for it, Ken,” he says, “go to the Kentucky State Police Forensic Lab’s website and look for yourself.”

So I did. You can, too. http://www.firearmsid.com/A_labsys.htm

When a pattern of gunshot residues is found on a submitted article of clothing and the questioned firearm and ammunition are known, firearm examiners will try to bracket the muzzle-to-garment test results within a minimum and a maximum distance. Results may read something like:

Exhibit 1 (victim's shirt) was examined and a pattered deposit of gunshot residues was found around a bullet entrance hole located in the shirt's left shoulder. Exhibit 2 (firearm) was found to produce similar deposits of gunshot residues when fired at a target from a minimum distance of 6 inches out to a maximum distance of 18 inches.

Bracketing the muzzle-to-garment distance within a minimum and maximum distance is being pretty specific. To get a report back saying something like that listed above the exact firearm and ammunition used in the case must be known and there must be a significant pattern of nitrite residues on the garment.

So we see here that in order to get a precise distance, precise meaning within a foot at close distance, having the exact gun and ammunition isn’t enough. The GSR evidence itself has got to be both well-defined and well-preserved on the garment. Neither of those factors is within the shooter’s control. One is a result of pure luck. The other is subject to any number of factors such as handling by first responders and even the weather.

This module in particular addresses determining distance using only the evidence with GSR - http://www.firearmsid.com/A_distanceResults.htm

When a firearm is not recovered there still may be certain general conclusions that can be reached when gunshot residues are found on the evidence garment.

Contact or Near Contact Gunshot

Probably the easiest conclusion to report would be one involving a contact or near contact gunshot. The results may read something like:

http://www.firearmsid.com/jpgs/j_distan4.jpg

Exhibit 1 (shirt) was found to have a bullet entrance hole in the chest area that displays physical effects and gunshot residues consistent with a contact or near contact gunshot.

A contact or near contact gunshot will normally deposit a very intense ring of residue right around the margins of the bullet hole. A close range gunshot, like the one seen above, will typically be in the near contact to approximately 12-inch range of fire.


Close Range Gunshot

Another conclusion that is fairly easy to reach involves what can be call a close range gunshot. The results may read something like:

http://www.firearmsid.com/jpgs/j_distan2.jpg

Exhibit 1 (shirt) was found to have a bullet entrance hole in the chest area. A heavy deposit of gunshot residues were found around this hole that are consistent with those that would be deposited by a close range gunshot.

Close range gunshots will usually leave a very concentrated deposit of residue around the bullet entrance hole that is visible to the eye.

A close range gunshot, like the one seen above, will typically be in the near contact to approximately 12-inch range of fire.


Intermediate Range Gunshot

An intermediate range gunshot usually will deposit a significant amount of particulate residue that is not easily seen with the eye but can be detected through a microscopic examination and through chemical testing. The results may read something like:

http://www.firearmsid.com/jpgs/6605410b_shirt_pro.JPG

Exhibit 1 (shirt) was found to have a bullet entrance hole in the chest area. A deposit of gunshot residues were found around this hole that are consistent with those that would be deposited by an intermediate range gunshot.

An intermediate range gunshot, like that seen in the above image, can range from just beyond the 12-inch range out to 24 to 36 inches. This depends greatly upon the caliber, barrel length and powder type used in the ammunition.

So GSR evidence – or the lack of it – will become part of the discovery and admitted into evidence whether you used hand loaded ammunition or not. Furthermore, quite a bit of information will be gleaned regarding the distance the shot was taken, even if the gun and ammunition used is completely unknown. If your case and proving your innocence hinges upon knowing the distance down to matters of inches, you’ve got a big hurdle to overcome.


The matter of submitting evidence produced by the Defendant –
As I have already presented, part of the examination will include disassembling the ammunition in evidence. It may include firing some of those rounds in evidence. Even the National Institutes of Justice (NIJ) agrees this is within the scope of a proper investigation of evidence. The NIJ has a complete, and quite thorough, program that they’ve published on-line used as a training tool for Firearms Examiners. In Module 9 it mentions the use of evidence ammunition in testing.

http://www.nij.gov/training/firearms-training/module12/fir_m12_t06_08.htm

To reproduce results, the suspect firearm must be available. The size and density of residue patterns vary based on a combination of factors that may include the firearm, ammunition, barrel length, caliber, powder type, and powder charge. When residue patterns are reproduced in a shooting case, it is essential that the firearm and ammunition used in known-distance testing be as similar as possible to that used in the case.

Sources of testing ammunition may include


evidence ammunition from the case, per laboratory protocol,
purchased ammunition (same brand, stock number, with the same powder, projectile and primer components),
reference ammunition (same brand, stock number, with the same powder, projectile, and primer components).


Note: Examiners should always be aware that reference collections/database programs are seldom all inclusive; all available resources and examiners should be consulted.

If hand loaded ammunition was used, in order to replicate ammunition as similar as possible to the evidence, the lab may load it and use it for testing. The conversation I had last night discussed a case where a man used a round of .45 ACP ammunition dating back to the 1940’s. The lab simply could not find ammunition from that time period to use in testing. So the technician identified the components and loaded some that were as similar as possible to the ammunition and used it for testing.


Fiddletown, you seem to be under the impression that taking a Sharpie to your box of factory ammunition will be sufficient to substantiate to the examiner that this was the ammunition used in the incident. I’m not sure how you come to reconcile that this piece of “defendant-manufactured” evidence is of unimpeachable value, but loading data is not.

A competent Firearms Examiner will not take your half-empty box and merely assume since the evidence ammunition looks similar to the ammunition in your box no further examination is necessary. “I’d be derelict and negligent in my duty if I did not perform a thorough examination of the evidence ammunition,” was his comment to me. “A factory box is nice to have, because I can make my determination quicker. But I could do the same with a reloader’s box of ammunition, or his data. A competent examiner assumes nothing.”

“Remarks like this show ignorance and inexperience, both of how a Forensics Lab works and trial proceedings in general, and you don’t want them making your defense.” He made some other commentary that really isn’t High-Road material, and has little additional value here. But after roughly an hour’s conversation on the matter he reminded me of one thing –

“Ken, there is only one Finder of Fact. It’s not the ammunition factory. It’s not the Forensic Lab, or anyone else involved in the case. The only Finder of Fact is the jury. And they get to chose who they believe. They get to chose how much weight they want to give to each expert witness. Or even if they want to give it any at all. You can present all the expert testimony you want, and it can be clear and convincing in its findings, but the jury retains the right to discard all of it if they want.”



The assertion that you need to use factory ammo to ensure you’ll be safe from a difficult trial is nothing more than a fantasy floated about by speculative masters. The sword cuts both ways. If the GSR that studies say should be there from factory ammunition isn’t, or is inconsistent with the facts as you assert them, all you’ve done is trade one set of problems for another. Sure they can be explained, but once again, the jury gets to decide who to believe.

If you are involved in an incident where you used hand loaded ammunition, and your defense team says they can’t get this sort of ballistics evidence submitted into testimony, retain yourself another.

Sam1911
January 6, 2012, 03:01 PM
Wow. Thank you for taking the time to inquire into this, and for typing it all out so carefully! I'm sure it isn't absolutely the last word, but it sure is a much more direct and complete look at the subject than we've had to work with before.

Thank you for sharing this.

357 Terms
January 6, 2012, 03:11 PM
Thank your friend BullfrogKen, and thank you. I have always assumed that an investigation would be conducted in that manner, professionally and throrough.


I suggest that post be a sticky.

zxcvbob
January 6, 2012, 03:16 PM
You still have the case where the judge is in cahoots with the prosecutor and suppresses your evidence so the jury never gets to hear it, much less weigh it. Maybe that's grounds for an appeal? (and more $$$)

Extraordinary write-up, BFK. http://www.thehighroad.org/images/icons/icon14.gif

USSR
January 6, 2012, 03:23 PM
Well done research, BullfrogKen. But, I think it needs to be pointed out to all, that the methodology used in any criminal investigation will vary from state to state, since the prosecution is likely to be according to state law.

Don

waffentomas
January 6, 2012, 03:36 PM
I always enjoy reading the threads about hand loaded SD ammo...provided they stay civil.

I used to be on the side of the argument that as long as it's a good shoot, who cares what ammo I used.

We are, also, supposed to be responsible owners and get some training.

The Marines were my first, but they never talked about reloads, a different type of "training" I suppose. But after taking training from Arnold Teves and Ayoob in LFI, I'm just not willing to risk it. Ayoob is pretty adamant against reloads for SD, and if need him as an expert witness - God forbid - I only get him with factory, and that is enough reason for me not to use handloads.

I doubt many LFI graduates use anything but factory. It's nice to have a guy like that in your corner. If Fish had Ayoob, I doubt he'd of gone to jail.

Still, it's free country, use whatever makes you feel safe.

Tcruse
January 6, 2012, 04:24 PM
Thanks for the good information. However, it can still be taken to support both points of view about using reloaded ammo. I think that everyone should agree that it is simpler if the ammo is manufactured by one of the standard manufactures and can be verified as such. Now, is that worth the extra expense of factory ammo and maybe different performance than the ammo you practice with? Will it make any difference in the outcome?

I want to be thought of as a person that went out of their way to use good judgement, protect the rights of others, honor laws, and common actions associated with being a good neighbor/citizen. So, I choose a common caliber, carry a known quality CCW gun, and use a SD round that has been proven to be good and not something that generates too much attention. If everybody at the range comes over to see what you are shooting, then you might think that it is too much out of the norm. For example I really like the idea of the fn57, but would not consider it a good sd choice at the current time.

WhistlinDixie
January 6, 2012, 05:08 PM
Impressive, Ken. Thanks for the effort.

BullfrogKen
January 6, 2012, 06:03 PM
bob, it's not in the state's interest to suppress evidence without just cause. Arbitrarily suppressing GSR evidence does lay the ground for an appeal and re-trial. Judges do not like having their convictions vacated and the case remanded for a new trial. It's expensive for the state, and through the passage of time the decision to convict becomes increasingly harder to get.


I added a few pictures to the discussion. Thanks for the kind words. It wouldn't be the first time something I authored got "stickied" here.

Frank Ettin
January 6, 2012, 06:51 PM
Ken,

An excellent discussion of how a modern and efficient crime lab works, but actually not directly on point.

None of your narrative directly addresses the fundamental question of the admissibility into evidence on behalf of the defense of expert opinion testimony based on exemplar testing for GSR for the purposes of concluding at what distance a shot was fired. This was offered as evidence in Bias, where handloads were used, and rejected. This was offered as evidence in Willems, where factory ammunition was used, and accepted

A few things to remember --

[1] The role of the crime lab and the examiners that work there is to conduct a scientific investigation of physical evidence for the prosecutor. They are trying to determine as well as possible from all available physical evidence what happened to help the prosecutor decide whether or not to prosecute and to help him win if he does prosecute.

[2] The information and opinions developed by the scientific examination of available physical evidence is used by the prosecutor to help decide (1) if there's probable cause to believe a crime has been committed; (2) if there's probable cause to believe that a particular person committed that crime; and (3) if there's sufficient evidence in total, scientific and otherwise, to successfully prosecute that individual for that crime.

[3] It's not the job of the crime lab or firearms examiner to decide what is offered as evidence in court, how it will be offered or how it will be used. Nor is it the job of the crime lab or firearms examiner to get information accepted into evidence over any objections made by the defense.

[4] Not all the analysis done by the crime lab or the examiners will necessarily even be offered into evidence. The prosecutor will need to decide how to present his case and how to introduce evidence, scientific and otherwise, to support his case. The prosecutor will have to make his tactical decisions based on his determinations of what would or would not be admissible into evidence. And it will be his job to overcome any objections raised by the defense to the admission into evidences of anything offered by the prosecution.

[5] In this process, the crime lab examiners (scientists) and the prosecutor (lawyer) have very different jobs. They also have very different skill sets and knowledge sets. The conduct of the testing, the analysis of the results and deciding what the results mean are within the scope of the scientist's skills and knowledge. The admissibility of such information into evidence is within the scope of the lawyer's skills and knowledge.

Some specific points:

...Asserted here are many false notions of GSR examinations, most commonly repeated is the notion that GSR testing without independent factory exemplar data is not admissible as evidence in court. That is entirely false. We discussed this at length. I’ll leave you with this.

Quite often the crime lab works a case with evidence that contains GSR, but no gun or ammunition was recovered. Now according to some, without a gun and the ammunition the evidence is rather meaningless. Far from it. Much can be determined from that evidence alone. We discussed just how much information can be gathered,...That's no doubt true, but it still begs the questions: when; under what circumstances; in what contexts; and for what purposes.

There may be many ways GSR could be offered as evidence in a criminal trial and many purposes for its use. Whether or not it will be admissible under the rules of evidence will be a function of under what circumstances it is offered, in what context it is offered and for what purpose it is offered.

We've been discussing the use of GSR under certain specific circumstances, in a particular context and for a particular purpose:

Circumstances -- a defendant has claimed that he fired a shot in self defense at a particular distance, and the distance is material to his defense and is in dispute;


Context -- an opinion of the defendant's expert witness regarding the distance at which the shot was fired based on exemplar testing;


Purpose -- to corroborate the defendant's claim of justification.

Note that a key issue in both Bias and Willems was that the distance at which the shot was fired was in dispute:

In Bias the prosecution asserted that the lack of GSR on the decedent showed that the shot was fired at a greater distance than claimed by Daniel Bias. So Daniel Bias offered an expert opinion that, based on exemplar testing of rounds that Bias claimed matched the death round, the absence of GSR would have been consistent with the shot having been fired at the distance claimed by Bias. But that testimony was rejected because the judge would not accept Bias' authentication of the handloaded exemplar rounds as being substantially identical to the "death" round. Therefore the jury never heard that testimony and reached its verdict without that information.


In Willems, the prosecution claimed that Willems fired from a certain distance based on witness testimony. Willems asserted, to support his claim of justification, that he fired the shot at a much closer distance. Willems offered expert opinion testimony based on exemplar testing of the same commercial ammunition Willems had used that the shot was indeed fired at the distance claimed by Willems. That testimony was admitted into evidence. Therefore the jury heard that testimony and was able to consider that information in reaching its verdict of acquittal.

...Fiddletown, you seem to be under the impression that taking a Sharpie to your box of factory ammunition will be sufficient to substantiate to the examiner that this was the ammunition used in the incident. I’m not sure how you come to reconcile that this piece of “defendant-manufactured” evidence is of unimpeachable value, but loading data is not... And you seem for some reason to think that I'm an idiot and learned nothing practicing law for over 30 years.

What you apparently fail to understand is that the best legal arguments are based on multiple facts corroborating each other. So my retention of the box and some left over rounds, plus my email (and thus time and date stamped) note to myself regarding my loading of the magazines, plus the headstamps on the expended cases, plus the headstamps on the left over ammunition in the magazine(s), plus what the firearm and toolmark examiner gleans from examination of the expended case(s) and left over ammunition in the magazine(s) will when taken together, and if necessary, help to a high degree of probably convince a judge what was fired.

It's not a question of any one thing. It's a question of many things taken together.

...So we see here that in order to get a precise distance, precise meaning within a foot at close distance, having the exact gun and ammunition isn’t enough. The GSR evidence itself has got to be both well-defined and well-preserved on the garment. Neither of those factors is within the shooter’s control. One is a result of pure luck. The other is subject to any number of factors such as handling by first responders and even the weather...Yes, one could use factory ammunition and still be out of luck. But using handloads won't help.

...The assertion that you need to use factory ammo to ensure you’ll be safe from a difficult trial is nothing more than a fantasy floated about by speculative masters. The sword cuts both ways. If the GSR that studies say should be there from factory ammunition isn’t, or is inconsistent with the facts as you assert them, all you’ve done is trade one set of problems for another. Sure they can be explained, but once again, the jury gets to decide who to believe....[1] There is no "safe harbor", and no one ever said that there was. If you are on trial after a use of lethal force you claim was justified, you've got a whole lot of problems. You would not be there unless the prosecutor thought he had enough to convince a jury beyond a reasonable doubt that your use of lethal force was not justified. Handloads might be only one of those problems, but they wouldn't be any problem if you didn't use them. And factory ammunition might possibly help you address only one of those problems, but the use of factory ammunition couldn't even do that for you if you didn't use it.

[2] As to your testing not turning out the way you wanted, there's a reason that, if scientific evidence is wanted for the defense, defense counsel hires his own expert to conduct the testing on behalf of the defense. If the information turns out adverse than defense counsel doesn't use it. And if the results aren't going to be offered as evidence, the expert, his conclusions and everything about the activity is, and remains, completely confidential under what is known as the attorney work product doctrine.

...If you are involved in an incident where you used hand loaded ammunition, and your defense team says they can’t get this sort of ballistics evidence submitted into testimony, retain yourself another....[1] If that's what you've got and it's really important to your case, any good lawyer is going to try his very best to get the evidence in. He will. He is ethically obliged to.

[2] But that doesn't mean that he will succeed. So if you're doing "pre-need" risk management planning, it's not a good idea to count on him being able to get into evidence your expert opinion regarding the distance at which a shot was fired testimony based on exemplar GSR testing if handloads were used. If the issue comes up you'll be better off with factory ammunition.

Ken, you've provided wonderful insight into the workings of a crime lab and the processes of scientifically examining firearm and ballistic physical evidence. It brings back memories of some very interesting continuing legal education classes I've taken. Your narrative also should help put to rest the "how will they know I loaded the ammunition" and "how would they know I monkeyed with the gun" type questions that surface regularly.

But I'm afraid that it really has nothing to do with the legal question of the admissibility into evidence of the type of expert opinion testimony under the circumstance, in the context and for the purposes we'd be concerned with.

Sam1911
January 6, 2012, 08:01 PM
fiddletown, I'm unclear on a point related to this:

As to your testing not turning out the way you wanted, there's a reason that, if scientific evidence is wanted for the defense, defense counsel hires his own expert to conduct the testing on behalf of the defense. If the information turns out adverse than defense counsel doesn't use it. And if the results aren't going to be offered as evidence, the expert, his conclusions and everything about the activity is, and remains, completely confidential under what is known as the attorney work product doctrine.


So if you're trying to use the data your expert gathers, but it doesn't prove to back you up (not necessarily the same thing as damning you) you do not have to submit that finding in court. Got that. However, if the prosecution conducts those tests because they need (want, or plan to use) GSR evidence to strengthen their case, but their testing does not support their assertions, may they suppress or hold back that finding, or must they submit those findings anyway -- or at least answer affirmatively under cross-examination?

Or are you saying that the judge would accept their inclusion of data from your handloads, but would not accept your inclusion of the same kind of data?

massad ayoob
January 6, 2012, 08:07 PM
Ken, please thank your unnamed source for his input. Excellent recap of what firearms and toolmark examiners do.

However, as Fiddletown pointed out, it does not address the issues that were seen in the Bias case and can be expected in other cases involving handloads. You said:


If your case and proving your innocence hinges upon knowing the distance down to matters of inches, you’ve got a big hurdle to overcome.

In the Bias case, it did come down to "matters of inches." The defense wanted desperately to show the jury that, under the circumstances Bias described, very likely there would not have been GSR deposited. However, they were not allowed to do that because the court would not take the defendant's word (in testimony or in his meticulous loading records) as to how that particular cartridge was loaded. Your post was an excellent summary on INVESTiGATION, but did not touch on ADMISSIBILITY, the key element here.

The inescapable elephant in the room is, we have a case on point -- NJ v. Bias -- in which testing of the loads the handloader said were in the gun was not accepted. In seven years now of sometimes heated debate on this issue, no one has yet been able to show me a case where a court DID accept such evidence.

You would be doing all concerned a favor if you could ask your unnamed source whether he can cite an actual case where the reloader's testimony and/or records WERE accepted by a Court for GSR testing-as-to-distance purposes.

I totally agree with your source that the jury is the ultimate arbiter. I didn't see anyone here say differently. However, if critical evidence that favors the defense cannot be put before the jury, they will not have the whole truth upon which to make their decision...and the result of that can be an adverse, and unjust, verdict.

Respectfully,
Mas

357 Terms
January 6, 2012, 08:14 PM
In Willems, the prosecution claimed that Willems fired from a certain distance based on witness testimony. Willems asserted, to support his claim of justification,that he fired the shot at a much closer distance.
SO are you saying that if Willems HAD used hand loads that the GSR evidence would have been inadmissable?

Frank Ettin
January 6, 2012, 08:40 PM
fiddletown, I'm unclear on a point related to this:..Sam, good questions with fairly complex answers. And there are a couple concepts going on here.

I'm out and working on my phone right now. So I'll answer when I get back to my computer.

GLOOB
January 6, 2012, 09:22 PM
The judge made a seemingly bad decision in the Bias case that favored the prosecution. It could happen in any case. But I wouldn't get too wrapped up in the Bias case, in particular. The judge may have decided wrongly that since Bias was the one loading the rounds and the gun, that he in fact knew what rounds were in the gun and his "loaded at random" claim was a lie intended to open up reasonable doubt. And in the Bias case, the person that was shot and killed was the guy's wife. I don't think that's part of anyone's plan when they decide to have a firearm for SD.

But loading unusually light SD loads in 3 different power levels and loading them randomly from a mixed box is the opposite spectrum of using factory ammo, saving the box, saving the receipt, and emailing yourself a time date stamp of when you loaded your magazines. Most cases will be somewhere in the middle.

Now all that said, there is certainly a risk that using handloads can work against you in court. I don't think this fact escapes (most of) us. So yes. Pretty much everyone here agree it's a good idea to use factory ammo if you're ever in court (and you are innocent and have your story/recollection straight; cuz if not, the evidence might contradict you). But that won't sway every handloader to incur the cost or other perceived cons, especially the ones that don't CC on a regular basis and maybe just keep a gun on the nightstand as a last ditch to save their own bacon, vs the ones that carry daily and have every intention (or possibly part of their job description) of defending other people in need.

35 Whelen
January 6, 2012, 09:53 PM
So in the opinion of you guys who are up on this stuff:

I use handloads exclusively. The handloads in all my handguns consist of homecast bullets, nothing exotic, SWC's in the revolvers and TC's in my .45. So, given the fact that my SD loads are the same as my practice/target loads that is just cheap lead bullets made from wheelweights, am I more liable to be grilled or somehow held to a higher standard because I used these rather than some exotic, factory loaded hollowpoint "self-defense" load? Seems bass-ackwards to me.
Not trying to start an argument here, just curious and a little bewildered...

35W

BullfrogKen
January 6, 2012, 09:54 PM
I'll respond shortly . . .

bds
January 6, 2012, 10:01 PM
Wow, I had to double check to see if I was in Social Situations/Strategies, Tactics & Training category or Gear and Ammunition/Handloading & Reloading category of THR. :D


Since this is Handloading and Reloading, can I make a request in thread discussion focus shift that may help many reading this thread in this category? Thank you all in advance.


OP posted:
I've noticed that it seems to be heavily advised to only carry factory ammo to ensures legal safety.
For me and perhaps for many others, the question was not whether it was better to use factory ammunition for "defensive ammo" (If this was the question, the answer of course would have been an adamant YES), but whether the use of factory ammunition ensured legal safety.

My reply post (http://www.thehighroad.org/showthread.php?p=7846857#post7846857) focused on this aspect of OP's questions. And the answer to this question is NO. The use of factory ammunition DOES NOT ensure legal safety if the shooting was not justifiable according to local laws where the shooting took place and I thus quoted California's penal code sections that defined "justifiable shooting" as an example.

I am not a lawyer, just a lay person. And for me, the New Jersey v Bias court case in discussion dealt with not whether the shooting was justifiable in self-defense but whether the shooting was a suicide, an accident or murder (simply, husband shot wife or wife shot herself). Even if factory ammunition was used to better determine GSR data, it would not have changed the nature of the case which was not a justifiable self-defense shooting situation. And I believe the OP's questions had to do with defensive justifiable shooting and not with commiting crime and formulating an effective defense strategy. ;)


There have been many recent shootings locally and on national level where they were deemed as justifiable shootings and DA decided not to press charges. For these defensive shooting situations, even THR members fiddletown and Mr. Ayoob would have to agree that the use of any available ammunition (whether factory or handloads/reloads) would be appropritate for self-defense.

Example #1:
Teen mother shoots intruder in defense of herself and baby - http://www.foxnews.com/us/2012/01/04/teen-mom-shoots-kills-intruder-with-11-dispatcher-on-phone/

DA response - "Oklahoma law allows the use of deadly force against intruders, and prosecutors said [shooter] clearly acted in self-defense ... [Intruder] was holding a knife when he died ... initial review of the case doesn't indicate she violated the law in any way ... However, prosecutors have charged his alleged accomplice, 29-year-old Dustin Louis Stewart, with first-degree murder. According to authorities, Stewart was with Martin but ran away from McKinley's home after hearing the gunshots ... When you're engaged in a crime such as first-degree burglary and a death results from the events of that crime, you're subject to prosecution for it."


Example #2:
Teen shoots intruder in defense of himself and sister - http://www.wral.com/news/local/story/10553140/

DA response - "No charges are expected against the teen for firing on Henderson. North Carolina's Castle Doctrine law, updated on Dec. 1, allows homeowners to assume intruders mean them ill whether they have a weapon on not."


Of course I endorse the use of factory ammunition (http://www.thehighroad.org/showthread.php?p=7849633#post7849633) for defensive ammunition and especially if you plan on violating the law of the land, you better buy some factory ammuntion before you commit your crime. But that should not mean to say that when we are faced with potential/actual threat(s), we need to run back to the bedroom closet from the reloading room so we can use factory ammunition when we have reloaded target loads (or any reloads) on the bench right in front of us.

Maybe it's just me, but the way I see it, more and more time and effort seem to be spent on making law abiding citizens conform to endless and difficult to understand laws to protect them when the laws should be CHANGED AND REWRITTEN to better protect law abiding citizens from criminals. Then these endless discussion threads would not be necessary and we would just focus on handloading and reloading more accurate ammunition and training methods so as to not miss our targets when we are protecting ourselves and family.

Thank you all, specifically Ken for providing me some valuable information I have been looking for.

I have been a long-time reader of Massad Ayoob's writings and respect/applaud him for contributions he has made over the past decades and participating on THR. Incidentally, March 2012 edition of Combat Handguns magazine has a very timely article titled, "Self-Defense & The Law/When Justifiable Shots Can Kill You/Building An Impenetrable Defense" by who else, Massad Ayoob that I found beneficial in clarifying what I should/should not do.

http://www.thehighroad.org/attachment.php?attachmentid=156327&stc=1&d=1325901655

GLOOB
January 6, 2012, 10:18 PM
So, given the fact that my SD loads are the same as my practice/target loads that is just cheap lead bullets made from wheelweights, am I more liable to be grilled or somehow held to a higher standard because I used these rather than some exotic, factory loaded hollowpoint "self-defense" load? Seems bass-ackwards to me.
Not trying to start an argument here, just curious and a little bewildered...
The potential prejudice of a jury is only one part of the argument. The factor being predominantly discussed in this thread is the point of whether or not any potential exhonorating evidence is likely to be disallowed by the judge if handloads are used, namely GSR testing or ballistics.

It has already been established that handloaded ammunition can be tested and admitted in court. The issue is that the judge may accept only the biased testing of the prosecution and disallow testing done by the defendent. The cause of this concern seems to be largely centered around some of the decisions in the Bias case.

bds
January 6, 2012, 10:44 PM
For the benefit of many, I think we should clarify that some of the discussion content only applies IF you commit a crime and are charged by the DA and need a better/more effective defense strategy.

I believe the OP's questions had to do with "defensive" shooting. If you allow yourself and engage yourself in non-justifiable shooting, then you will be in trouble for breaking the law. Hence why we should educate/familiarize ourselves to the applicable local/state/federal laws concerning gun ownership/proper use and not violate them.
Does anyone load their own defensive ammo? ... So why are so many excellent self-defense JHP bullets available?

Frank Ettin
January 6, 2012, 11:12 PM
Okay Sam, I'm back. Let's get to your questions.

So if you're trying to use the data your expert gathers, but it doesn't prove to back you up (not necessarily the same thing as damning you) you do not have to submit that finding in court. Got that. However, if the prosecution conducts those tests because they need (want, or plan to use) GSR evidence to strengthen their case, but their testing does not support their assertions, may they suppress or hold back that finding, or must they submit those findings anyway -- or at least answer affirmatively under cross-examination?...[1] There is a general rule known as the attorney work-product doctrine. This says that an attorney's work-product is confidential and not discoverable (i. e., it need not be given to the other party in response to a discovery request).

[2] Work-product is generally the attorney's files, notes, drafts, mental impressions or thoughts, etc., i. e., anything he creates or prepares for his use in connection with his representation of a client in a matter.

[3] Work-product also includes anything prepared or created at his direction for his use by investigators, experts, consultants or other third parties.

[4] So if I engage an investigator, his thoughts, impressions, discussions with me, reports, etc., are all confidential and protected by the work-product doctrine. If I engage an expert to do tests, the same sort of array of things is protected.

[5] But the protection ends if I plan to use any such material as evidence. So if I'm going to put the expert on the witness stand, the expert's reports and notes are discoverable; and in a civil case the expert must be made available for deposition.

[6] Work-product protection is completely symmetrical in a civil case. The plaintiff's lawyer's work-product has the same protection as the defendant's lawyer's work product.

[7] It's not quite symmetrical in a criminal case. The defendant's lawyer's work-product is fully protected. And things like the prosecutor's notes, mental impressions, etc., are also protected.

[8] But in a criminal case, the Supreme Court has ruled that, "...it violates constitutional due process for the prosecution to suppress evidence favorable to the accused and material to guilt or punishment when there has been a defense request for such information...." So in general, in a criminal case, the defense has a right to get from the prosecution, "...information in possession of the prosecution and/or its agents when such information is favorable to the accused...." There are differing rules in different jurisdictions regarding whether or when the information must be requested by the defense or must be produced by the prosecution on its initiative.

[9] How the information is used by the defense depends on what it is and the circumstances. Sometime it will serve as the basis of some kind of motion limiting evidence, or dismissing charges. Sometimes it can be used to help attack on cross examination a prosecution witness. And sometimes it can lead to the offering of a witness/evidence by the defense.

That's all bit wordy and perhaps convoluted, but does it help with the first question?

Or are you saying that the judge would accept their inclusion of data from your handloads, but would not accept your inclusion of the same kind of data? If the same sort of foundation was needed for the introduction of the information as evidence, then yes, it would cut both ways. If you go back to post 58 and the quotes from the Ayoob article on Bias you can note that in the second trial Bias was able to challenge the prosecution GSR evidence. And he couldn't get his own in.

It really boils down to a question of relevance. If my case involves the amount of force necessary to bend a steel bar, testing to find out how much force is needed to bend an aluminum bar is irrelevant. Such tests would have nothing to do with the issue at hand.

Of course keeping out prosecution evidence will require that the defense first object. It's possible that the defense would not object because the particular evidence wasn't harmful, and could even be helpful. For example, from Harold Fish's appeal brief: ...The state’s firearms expert, Lucien Haag was unable to refute Fish’s account of the shooting, including the fact that Kuenzli was 5-8 feet away. [R.T. 5/02/06 , 202-203]. Haag also testified that the number of bullets in the gun, the bullet found at the scene, the placement of the ejected casings, the angle of the entry wounds were all consistent with Fish’s account. [R.T. 5/02/06 , 219; 222-223; 235]. Haag confirmed that Kuenzli, if running, would have been upon Fish is less than one second. [R.T. 5/02/06 , 223-224]...

...for me, the New Jersey v Bias court case in discussion dealt with not whether the shooting was justifiable in self-defense but whether the shooting was a suicide, an accident or murder (simply, husband shot wife or wife shot herself). Even if factory ammunition was used to better determine GSR data, it would not have changed the nature of the case which was not a justifiable self-defense shooting situation....As has been said many times, the rules of evidence are the same, and apply the same, no matter what type of case.

...There have been many recent shootings locally and on national level where they were deemed as justifiable shootings and DA decided not to press charges. For these defensive shooting situations, even THR members fiddletown and Mr. Ayoob would have to agree that the use of any available ammunition (whether factory or handloads/reloads) would be appropritate for self-defense....If after the event everyone agrees that your use of lethal force was justified, what you used doesn't matter. But if there's a disagreement on the point and you will need to establish that your use of lethal force was justified, if could matter. (see the stories of Larry Hickey, et al, in post 78). But you can't know ahead of time whether your bad day will be easy or hard to establish as justified self defense.

...I believe the OP's questions had to do with "defensive" shooting. If you allow yourself and engage yourself in non-justifiable shooting, then you are in trouble for breaking the law. Hence why we should educate/familiarize ourselves to the applicable local/state/federal laws concerning gun ownership/proper use and not violate them...But establishing that you shot in self defense could be simple or it could be very hard and expensive. Again, see post 78.

Sam1911
January 6, 2012, 11:22 PM
I think we should clarify that some of the discussion content only applies IF you commit a crime and are charged by the DA and need a better/more effective defense strategy.


bds, I don't think this is correct. In the case of Bias, the jury found that he was guilty. But the principle that fiddletown and Mas are putting forth flows this way:

a) You may have what you know to be a legitimate self-defense shooting, but which the evidence immediately visible leads investigators and prosecutors to charge as unlawful; and,

b) Your affirmative defense against the murder charge hinges on something that you feel you can prove through Gun Shot Residue (GSR) testing/sampling and comparison with that recovered (hopefully) at the scene of the event; and,

c) You will have your own expert(s) perform GSR testing using your ammo, or ammo recreated to be like what you say you used, in order to refute the State's claims against you -- BUT the judge overseeing the case may not allow your expert's findings to be admitted as evidence because of various factors.

Ken's assertion, based on his conversation with a retired crime lab professional is that such evidence would not be impossible to produce in ways that (almost) any court would accept as valid and admissible evidence.

The entire debate here boils down to whether, in the very unfortunate event that you are in a defensive shooting, and in the very very unfortunate event your justification for that shooting is challenged by the DA and you are tried for manslaughter or murder, and in the very, very, very unfortunate event that your own defense turns out to hinge on or be heavily influenced by GSR testing by your experts -- (whew!) -- what likelihood is there that the Court would deem that evidence inadmissible?

So, if I've got it all summed up correctly, that's the question, and it could directly apply to someone who did not commit a crime, but engaged in what we and they would believe to be lawful self-defense.

Sam1911
January 6, 2012, 11:24 PM
That's all bit wordy and perhaps convoluted, but does it help with the first question?


Absolutely, perfectly clear, thanks!

bds
January 6, 2012, 11:33 PM
I think we should clarify that some of the discussion content only applies IF you commit a crime and are charged by the DA and need a better/more effective defense strategy.
I did say "some of the discussion content" ... :)

< Taking more notes > :D

This is what I have so far:

1. I endorse the use of factory ammunition for defensive shooting.
2. Use any available ammunition (factory or reloads) to protect your life or lives of your family in "justifiable" shooting situations.
3. If/when possible, use factory ammunition.

Sam1911
January 6, 2012, 11:36 PM
If you go back to post 58 and the quotes from the Ayoob article on Bias you can note that in the second trial Bias was able to challenge the prosecution GSR evidence. And he couldn't get his own in.I read post 58 again. Was the reason that Bias' attorneys couldn't get his GSR testimony allowed because they'd poisoned the well, so to speak, in regards to the prosecution's use of such? I see that it was not allowed, but I've not yet understood why exactly it was not.

The prosecution in the first trial did something very similar to your iron bar -vs- aluminum bar analogy. That was pretty poor work and doesn't match up, even sorta, to what Ken has shared about proper procedure as outlined by PSP, KSP, DOJ, etc.

In fact, it would appear that a knowledgeable expert for the defense should have been able quite easily to have done a much more thorough and appropriate job of exactly the same testing. Would that not have been admissible under "normal" circumstances? And, if not, on what grounds?

(I remember the general answer to this question, from other conversations where we've touched on this, regarding repeatability and impartiality, etc., but I'm looking here for whether the judge actually spoke to that matter in disallowing it in the Bias case.)

It really boils down to a question of relevance. If my case involves the amount of force necessary to bend a steel bar, testing to find out how much force is needed to bend an aluminum bar is irrelevant. Such tests would have nothing to do with the issue at hand.

bds
January 6, 2012, 11:45 PM
...I believe the OP's questions had to do with "defensive" shooting. If you allow yourself and engage yourself in non-justifiable shooting, then you are in trouble for breaking the law. Hence why we should educate/familiarize ourselves to the applicable local/state/federal laws concerning gun ownership/proper use and not violate them...
But establishing that you shot in self defense could be simple or it could be very hard and expensive.
Thank you. I was hoping you would respond to that comment. ;)

But not all "victims" of crime are fluent in all applicable laws or in the right "frame-of-mind" when they are victimized, especially in a surprise, which many crimes often occur. Would an average jury consider a "reasonable" victim acting to protect themselves/others in a "reasonable" manner? If not, why?

Sam1911
January 7, 2012, 12:04 AM
But not all "victims" of crime are fluent in all applicable laws or in the right "frame-of-mind" when they are victimized, especially in a surprise, which many crimes often occur. Would an average jury consider a "reasonable" victim acting to protect themselves/others in a "reasonable" manner? If not, why? The jury is going to be educated by the court on what the law actually says. And then by the prosecution and the defense on how closely your actions followed the law, or how badly they deviated from it.

You MAY indeed find that your jury looks at all the evidense and simply "puts themselves in your shoes" and aquits you. But they very well may not, either.

Would an "average" jury consider a "reasonable" victim...in a "reasonable" manner, etc? Well, certainly! As long as we're all reasonable. :) But who's to say that?

The laws generally do favor a "reasonable man" standard -- what would a normal person in a normal state of mind have been likely to believe or do given the information he had to work with at the time of the shooting?

But all of those "reasonables" are refutable. If the DA doesn't believe it was reasonable, you're going to court. If the jury doesn't believe it was reasonable, you're going to jail.

Frank Ettin
January 7, 2012, 12:40 AM
But not all "victims" of crime are fluent in all applicable laws or in the right "frame-of-mind" when they are victimized, especially in a surprise, in the manner many crimes often occur. Would an average jury consider a "reasonable" victim acting to protect themselves/others in a "reasonable" manner? If not, why? I'm not sure what you're trying to say here. So let me see if it would help to go back to first principles.

[1] Our society frowns on one person intentionally hurting or killing another. It is generally a crime to do so.

[2] If you have intentionally hurt of killed another person (even if you will be claiming that you did so in self defense), you have prima facie (on the face of things) committed the elements of a crime. You have intentionally hurt or killed another human.

[3] Your act will initially be treated as a criminal act. It will be investigated as a crime. Evidence, both physical and witness (including any statement you give) will be collected and considered.

[4] Now our laws do recognize that there are circumstances in which it is justified to intentionally hurt or kill another. And the law defines certain elements that will need to be present for your act of violence to be found to be justified. Justification is a defense to the crime, so it is established that you were justified under the applicable legal standards, you will be exonerated of any criminal liability.

[5] The exact standards vary somewhat from jurisdiction to jurisdiction. But in general, if the evidence shows that a reasonable and prudent person in like circumstances and knowing what you knew would have concluded that lethal force was necessary to prevent the otherwise unavoidable immediate death or grave bodily injury to an innocent.

[6] If as a result of the investigation, the prosecutor concludes the the evidence he has shows that you met the legal standard for justification, you will not be prosecuted. But if that's not the case, you will be prosecuted.

[7] It may well be that you were justified, but the evidence didn't establish that. Now you will have to put on evidence establishing that you did meet the legal standard. The legal standard is a "reasonable person" standard, and if the jury agrees, you go home. If the jury does not agree, you will go to jail.

...The laws generally do favor a "reasonable man" standard -- what would a normal person in a normal state of mind have been likely to believe or do given the information he had to work with at the time of the shooting?

But all of those "reasonables" are refutable. If the DA doesn't believe it was reasonable, you're going to court. If the jury doesn't believe it was reasonable, you're going to jailAnd that's it in a nutshell.

Frank Ettin
January 7, 2012, 12:53 AM
...I read post 58 again. Was the reason that Bias' attorneys couldn't get his GSR testimony allowed because they'd poisoned the well, so to speak, in regards to the prosecution's use of such? I see that it was not allowed, but I've not yet understood why exactly it was not.

The prosecution in the first trial did something very similar to your iron bar -vs- aluminum bar analogy... Well there's a "sauce for the goose, sauce for the gander" element, certainly. But the reason apparently given by the judge for not letting the defense GSR in was the inability to establish the nexus between what was tested and the death round. And that also the reason the prosecution evidence was bad with an overlay of lousy evidence collection procedures.

Not all crime labs exactly always work like they're supposed to. Remember that at one time the FBI lab came under a lot of criticism.

And there can be a lot of moving parts to the process of collecting, testing, opining on and getting into evidence scientific analysis of physical evidence. The examiners could do perfect work, and a glitch in the collection procedures or preserving the chain of custody can make the information useless as evidence. I heard from the criminalist in our local PD that a lot of good evidence in the OJ case couldn't be used because of sloppy collection procedures.

bds
January 7, 2012, 01:18 AM
Not all crime labs exactly always work like they're supposed to.

And there can be a lot of moving parts to the process of collecting, testing, opining on and getting into evidence scientific analysis of physical evidence. The examiners could do perfect work, and a glitch in the collection procedures or preserving the chain of custody can make the information useless as evidence.
When I was summoned to serve on a jury for a robbery case, the DA made sure the jury understood the "real life" police investigation and evidence collection/processing was not as "perfect" as CSI shows on TV and asked us to lower our standards of expectations. When the DA heard I was victim of three burglaries and one close call home invasion robbery that her PD investigated, I was released. :rolleyes:

We now have three guard dogs. :D

357 Terms
January 7, 2012, 01:34 AM
Sam1911
The entire debate here boils down to whether, in the very unfortunate event that you are in a defensive shooting, and in the very very unfortunate event your justification for that shooting is challenged by the DA and you are tried for manslaughter or murder, and in the very, very, very unfortunate event that your own defense turns out to hinge on or be heavily influenced by GSR testing by your experts -- (whew!) -- what likelihood is there that the Court would deem that evidence inadmissible?


Exactly!

There is soooo much speculation regarding admissible GSR evidence.

In terms of citing Bias, the state of New Jersey was (in their mind, and many others) prosecuting a man they assumed executed his wife, and very well may have. Not to mention his "light reloads" would not mimick anyones SD reloads.

I still am not convinced that if Willems had been carrying handloads that his trial would have turned out any different.

No one, No one! has produced any case in which a person in a SD shooting has had ANY legal repercusions involving reloads.

Speculation and opinion.

Speculation and opinion.

Frank Ettin
January 7, 2012, 02:24 AM
...I still am not convinced that if Willems had been carrying handloads that his trial would have turned out any different...Then see this statement of another lawyer in this post (http://thefiringline.com/forums/showpost.php?p=4601176&postcount=139) on TFL:

...I'm a lawyer and I'm licensed in the Arkansas state courts, federal courts, the 8th Circuit Court of Appeals and the United States Supreme Court. I've done enough research on this issue to feel confident in my position on it. If I had to prosecute a shooting case with a handloader, I have absolutely no doubt but that I could get expert testimony based on a reload excluded....

...opinion...Professional opinion based on years of training, study and experience. The opinion of my doctor regarding my health needs to be taken seriously. The opinion of my mechanic on my health does not. Not all opinions are equal.

357 Terms
January 7, 2012, 02:36 AM
but I've been unable to find any cases in which the handloader's stuff was found to be admissible.


fiddletown-

That is the last quote of that post you just linked.

Do you agree?

That is that no handloaders "stuff" was admissible?

357 Terms
January 7, 2012, 02:54 AM
Spats McGee
If I had to prosecute a shooting case with a handloader

"If" so I can assume mr.McGee never knew of a SD shooting involving reloads? or at least was never involved with one professionally?

So his experience is about as equal as my mechanic.

Frank Ettin
January 7, 2012, 03:16 AM
but I've been unable to find any cases in which the handloader's stuff was found to be admissible. ...That is the last quote of that post you just linked.

Do you agree?...[1] That statement of course arises in the context of a discussion of the admissibility of defense expert opinion testimony, based on exemplar GSR testing, about the distance at which a shot was fired.

[2] Spats is an able, qualified and experienced lawyer, and I trust his research skills.

If I had to prosecute a shooting case with a handloader If" so I can assume mr.McGee never knew of a SD shooting involving reloads? or at least was never involved with one professionally?

So his experience is about as equal as my mechanic. Is your mechanic licensed to practice law in the Arkansas state courts, federal courts, the 8th Circuit Court of Appeals and the United States Supreme Court? If not, I'd say that your mechanic is unqualified to render an opinion on the subject. And no, Spats McGee is far more experienced as a lawyer and far more qualified to opine on legal matters than your mechanic.

357 Terms
January 7, 2012, 03:25 AM
And no, Spats McGee is far more experienced as a lawyer and far more qualified to opine on legal matters than your mechanic.

I don't doubt that, but by his own admission he has no personal or professional experience involving reloads and a SD shooting.

Frank Ettin
January 7, 2012, 03:39 AM
And no, Spats McGee is far more experienced as a lawyer and far more qualified to opine on legal matters than your mechanic. I don't doubt that, but by his own admission he has no personal or professional experience involving reloads and a SD shooting. Which for these purposes doesn't matter at all. An able and experienced lawyer, like Spat McGee who has, I know, experience as both a prosecutor and criminal defense lawyer is qualified to deal with a wide range of matters, even those of a type he has not previously dealt with.

357 Terms
January 7, 2012, 03:54 AM
ME
I still am not convinced that if Willems had been carrying handloads that his trial would have turned out any different.



Not sure why you quoted another lawyer in response to that quote of mine?
Especially when it doesn't apply.

357 Terms
January 7, 2012, 04:28 AM
BullfrogKen-
If hand loaded ammunition was used, in order to replicate ammunition as similar as possible to the evidence, the lab may load it and use it for testing

fiddletown-

It seems that THAT kind of experience is more, lets say "real world" than any you have posted.

GLOOB
January 7, 2012, 04:29 AM
...I'm a lawyer and I'm licensed in the Arkansas state courts, federal courts, the 8th Circuit Court of Appeals and the United States Supreme Court. I've done enough research on this issue to feel confident in my position on it. If I had to prosecute a shooting case with a handloader, I have absolutely no doubt but that I could get expert testimony based on a reload excluded....
So my question is this. Claimant states he was at least 30 feet away and running away when he was shot in the back. There are contact type burn marks on the front of the guy's shirt and in the wound, which is located over his navel. Both agree he was shot with a 9mm handgun, not a flamethrower. The defendent was using handloads.

So this lawyer thinks that he could essentially keep this information hidden from a jury, completely? Or would this hypothetical case be one where handloads make no difference? I'm dying to know.

IOW, does not GSR constitute important and admissible evidence in many (not all) cases without the need for exemplar testing? Or are all the nonlawyers here crazy stupid?

BullfrogKen
January 7, 2012, 05:43 AM
An excellent discussion of how a modern and efficient crime lab works, but actually not directly on point.

Actually, it was directly on point. You made some clear, broad statements about how evidence ammunition is treated, and what manner of testing that is done, or not done with it. I produced material that disputed it.

You also made points about the impossibility or uncertainty of determining proximity with a firearm without the specific, even exactly similar, ammunition. I produced lab procedures from a highly reputable source of which clearly shows that even in the absence of the gun itself, some general conclusions are possible about the nature of the GSR and proximity. The possession of merely the gun itself in GSR testing allows an expert to draw conclusions about proximity with even greater confidence.

The matter of determining proximity using GSR evidence has been around for many decades. Either it will show proximity, or it won’t. GSR only travels so far. Having the gun in evidence helps the state lab narrow the range down. Having evidence ammunition helps narrow the range down even more. If the evidence ammunition is reloads, the lab will use some of those rounds if enough exist, or they will manufacture ones that will replicate it.

The information will exist. The state will have it. Subpoena it.


The role of the crime lab and the examiners that work there is to conduct a scientific investigation of physical evidence for the prosecutor

And now that we’ve gotten deeper into the discussion of the state’s lab, we really ought to start calling it what it really is. As my friend constantly reminds me, it not a Crime Lab, it’s a Forensics Lab. And you couldn’t be more wrong on its role. The Forensics Lab doesn’t work for the Prosecutor any more than the Medical Examiner does. Just like the Judge, they work for the state. Their work is available to both the prosecution and the defense. And because of the nature of their work, barring some narrow and well-defined circumstances, the defense isn’t going to be able to conduct their own autopsies, or test the evidence garments with the GSR on them. Those agencies work for the state, and they strive for unbiased results and reports.

Don’t take this as an insult, but with some of the misstatements and misconceptions of its workings, I’ve really got to wonder how much criminal law you practice.

But I'm afraid that it really has nothing to do with the legal question of the admissibility into evidence of the type of expert opinion testimony under the circumstance, in the context and for the purposes we'd be concerned with.

But it does. Much of what you contend doesn’t happen in the lab, or is impossible to determine, does happen, and is possible to determine. It’s also possible to introduce as evidence.

I’ve seen the Bias case mentioned as the hallmark case for excluding tests on reloaded rounds from the courtroom.

I’ve got to tell you Mas, every time the story is told, and retold it fails to mention all the facts about the case, including when you submitted it for publication. I think they’re relevant. I’ll share them, and let the readers actually come to their own conclusions about the matter.

BullfrogKen
January 7, 2012, 05:44 AM
The Lehigh Valley’ paper Morning Call reported an astonishing amount of detail on the case, much more than I’d expect from a newspaper.

We will see here that the ballistics lab actually fired at least one of the three evidentiary rounds found in the gun. Additionally, since the matter of exactly what round was in the gun was in question, the lab conducted tests using rounds found in Bias’ home separate and apart from those in the gun.


During cross-examination, Dr. Louis Roh, deputy chief medical examiner of West Chester County, N.Y Roh (working for the defense) identified a speck on a gunshot residue test pattern, state's exhibit 81, as being gunpowder. The target was one that was used to test one of three bullets found in Bias' revolver. The shot was fired from a distance of 50 inches.

George Fassnacht, a former weapons officer for the Central Intelligence Agency (working for the defense) questioned the pattern testing conducted by Sgt. Carl Leisinger, supervisor of firearms identifications for the state police. He said the same type of powder, the same amount of powder and the same bullet weight would be needed to accurately make comparisons with the fatal bullet.

"Test patterns should have been made with the same powder and gun," he contended.

In earlier testimony, Sgt Leisinger said he used the death weapon and used the same kind of powder used in all of Bias' hand-loaded bullets.

I’m not sure what to make of this, because during one of the trials the defense team was offered the opportunity to test the handgun, but declined. However, we do see New Jersey’s Ballistics Expert testifying that the hand loading process is very accurate.

Fassnacht admitted that he refused to conduct his own test with the firearm in August 1989 because he felt there was no purpose in testing. He said hand-loaded bullets were used. "I wouldn't use a hand-load to conduct this kind of test."

However, in later testimony he said testing must be done with the exact hand-load.

During rebuttal testimony, Sgt Leisinger said that if a hand loader handweighs each powder load and uses the same loading equipment, the process is very accurate.

In earlier testimony, defense witness Thomas Major stated that the powder scale he and Bias used was very accurate.

Bias and defense attorney John Lanza contend that Bias' hand-loaded bullets would not leave powder burns at close ranges.

The prosecution is trying to prove that Bias shot his wife from across the bedroom with a special cartridge that he had loaded into the revolver that night. The state argues that there were no powder burns on the body and that the fatal bullet was different from other bullets found in the revolver.

Sgt. 1st Class Carl Leisinger III, of the New Jersey State Police Firearms I.D. Bureau, testified on his examination of Bias' hand-loaded ammunition and tests conducted for gunpowder residue.

Leisinger said the 110.2-grain hand-cast lead semi-wad-cutter bullet that killed Lise Bias was fired from Bias' revolver. He said the Remington-Peters shell casing and primer had distinctive marks showing it was fired from the gun.

Leisinger said the other three cartridges found in Bias' revolver were 133.7-grain cast lead semi-wad-cutter bullets with 3 grains of small-disc powder and loaded in federal casings. A fourth federal cartridge was found on the dresser in the bedroom. Other 110.2 semi-wad-cutter bullets loaded in Remington-Peters casings were found in Bias' attic. Tests showed that these bullets were loaded with 3.1 grains of powder.

Ballistics expert Sgt. Carl Leisinger III of New Jersey State Police testified about gunpowder residue tests that he conducted using hand-loaded .38-caliber bullets found in Bias' revolver and in his house.

Leisinger showed the jury gunpowder test cloth and said the bullets found in the revolver deposited residue on the cloth at distances of 20 and 30 inches. Hand-loaded bullets found in Bias' house also showed residue patterns when fired 20-30 inches from the test target, he said.


We see here that the ballistics lab did indeed conduct a wide range of tests, including ones with light powder charges.

State police ballistics expert Sgt. 1st Class Carl Leisinger testified about additional gunshot residue tests that he conducted in April 1989 and October 1990.

"It seemed that no matter how low I went with powder and how heavy a bullet I used, there was recoverable residue at 36 inches" from the muzzle, Leisinger testified. "There was very heavy residue at 20 inches. There would be massive recovery at 5 inches from the blast."


And from the final trial and conviction

Capt. Carl Leisinger III, a state police firearms expert, had tested the Bias' Smith & Wesson .357 magnum revolver in 1989. He also tested hand-loaded cartridges found in their home. Leisinger conducted several series of gunshot residue tests to help determine how close the muzzle was to Lise Bias' head. He did new tests on April 10, and photographed the revolver firing in the dark to show how far the muzzle flash goes when using the same gunpowder, amount of powder and lead bullet that was found in the Bias' revolver.

Leisinger said the muzzle flash was "in bulk at four inches, tapering off at five inches and undiscernible at six inches. It is fire. It is hot enough to singe hair and to burn skin if it touched it."

Leisinger said gunshot residue can travel up to four feet from Bias' revolver. The new residue tests using Bullseye gunpowder at 3.1 grains with a 110-grain lead semi-wadcutter bullet, just as Bias had hand-loaded years earlier, showed "tremendous carbonaceous black smoke and gunpowder" at distances of two to six inches from the muzzle. Leisinger said carbonaceous black smoke residue would be in the victim's hair if the revolver were fired from two to six inches away.

The importance of Leisinger's new tests is that in previous trials Dr. Isidore Mihalakis, the medical examiner, testified there was no singeing of Lise Bias' hair and no gunshot residue was found in her hair around the wound, nor was it found on her nightgown.


Now in your famous article you said -

The gun had been loaded with its four rounds at random from the box that contained 2.3 grain, 2.6 grain, and 2.9 grain Bullseye reloads. There was no way to determine which of the three powder charges was behind the bullet that entered Lise Bias' head.

There were no rounds admitted in evidence with less than three grains of powder.

Other ammunition was confiscated from the Bias home as evidence after Lise's death. The warrant search reported turning up eight semi-wad-cutter .38 Special cartridges from a desk in the attic; another from elsewhere; "two jacketed .38 cal"; and "one spent casing (headstamped) W Super W 38 SPL P."

However, the test ammunition taken from the Bias home and submitted to the crime lab for examination included cartridges with R-P, Remington-Peters, headstamps. The loads in the gun, and in the box it was loaded from, were all in Federal P cases.

As well they should have. The empty casing was a handload assembled using a Remington-Peters case. The recovered bullet was 110 grains. The unexpended rounds were 133 grain bullets over Federal cases. They were not “all Federal cases”. The fourth Federal round was found, unexpended, on the dresser in the bedroom.

Apparently, the handloads taken for testing were full power loads. They deposited visible gunshot residue until a distance of 50" was reached. Factory Federal 158-grain lead semi-wadcutter P would leave visible GSR at that distance or greater.

The three remaining cartridges from the death weapon could not be disassembled or test-fired. They were the property of the court, evidence in what was developing as a murder case, and the necessary tests would literally "destroy the evidence." It was not permitted.

Both of those statements are patently false. In fact, Leisinger at the state’s Ballistics Lab testified that he conducted testing with each of the light-powered rounds found in the home. The lab may not have allowed you, or anyone from the defense team to take those three evidentiary rounds for testing, but they most definitely conducted it.

In fact, they did precisely what I said a crime lab would do earlier in this discussion. They disassembled each one; identified what comprised each round; weighed the powder and bullet, and finally loaded one and fired it for testing – destroying it in the process.

What I said would happen, happened here. The ballistics lab had ammunition recovered from the scene and used the reloader’s ammunition to conduct their testing, replicating it, in this case over and over.

However, they were not allowed to do that because the court would not take the defendant's word (in testimony or in his meticulous loading records) as to how that particular cartridge was loaded.

The inescapable elephant in the room is, we have a case on point -- NJ v. Bias -- in which testing of the loads the handloader said were in the gun was not accepted.

It appears it wasn’t just because they wouldn’t take his word for it. There were no rounds found anywhere at the scene with less than 3.0 grains of powder. Now from your work it appears you tried to introduce evidence of rounds loaded with charge weights that weren’t consistent with what was found at the scene. Anywhere. The state managed to find rounds in the attic that appeared in many ways to match the expended round in the gun, but those with 2.3 and 2.6 grains of powder seem to have disappeared just like the gun shot residue. So the complaint is the judge wouldn’t allow defense to introduce evidence not consistent with anything found at the scene based on nothing more the Defendant’s say-so?

In the words on Boomer at ESPN – C’mon man! This isn’t about reloading data not being permitted; it’s about the lack of evidence at the scene to corroborate what you wanted to introduce. I can see why the judge wouldn’t permit it.

And I don’t know how you define meticulous reloading, but part of the discipline for me and everyone else I know who has good habits doesn’t store rounds with differing characteristics in the same box.


Perhaps there was only one 2.3 grain load left, and it was the one that was fired in the gun. I guess one answer could be to be more meticulous about we keep our rounds in our boxes, and have enough available for the state to seize and test. But that would be the case with factory-manufactured ammunition as well. I can’t envision many scenarios where the defense would be permitted to admit the testing of a particular round that was found nowhere among the evidence seized.

But that case has a lot more problems than just poor ammo storage habits. A right-handed woman using her left hand to shoot herself in the head; friends and family testifying to behavior completely inconsistent with a suicide; and a Defendant who changes a material answer to the police. It seems the jury made a decision of who to believe on a whole host of factors, and it wasn’t Bias.

I’ll say the actual testing protocol used doesn’t support your assertion that a Forensics Lab can’t or won’t replicate handloaded ammunition for ballistics testing. In this very case it looks like New Jersey sure went out of its way to do it for you. And if you want to continue using this article, you might want to correct it. As it is it’s full of material errors.

massad ayoob
January 7, 2012, 07:42 AM
Ken, it would be helpful if you could provide a link to the newspaper article you quoted. It was my understanding from defense counsel that this information was never put in front of the jury, and I believe you may be quoting an evidentiary hearing or voir dire of evidence that was outside the hearing of the jury.

I'm out the door and won't be able to contact the lawyers in NJ for their side of it until Monday anyway.

357 Terms
January 7, 2012, 10:56 AM
Ayoob
I believe you may be quoting an evidentiary hearing or voir dire of evidence that was outside the hearing of the jury.



Regardless...it certainly does show why his "phantom" load data was not allowed.


Again, thanks Ken.

bds
January 7, 2012, 11:49 AM
Thank you all for some great information and discussion. < taking even more notes >

Continuing from post #102 (http://abclocal.go.com/kgo/story?section=news/local/north_bay&id=8492435), another shooting example of "justifiable" self-defense shooting that happened on 1/4/2012 with DA response. Can someone comment whether the use of handloads/reloads would have mattered in these three examples as I could easily be in such situation where I live. TIA

Example #3:
A 90-year-old retired law enforcement officer defended his home against an intruder - http://abclocal.go.com/kgo/story?section=news/local/north_bay&id=8490389

"It happened in broad daylight ... The suspect forced his way into the house and was met by 90-year-old Jay Leone, a retired law enforcement agent who confronted him, shooting him three times. The suspect then shot Leone once."

DA Response (http://abclocal.go.com/kgo/story?section=news/local/north_bay&id=8492435): "We now know the legal fate of the 90-year-old ex-lawman who got into a gunfight with an armed intruder who broke into his Greebrae home on Wednesday; Jay Leone is not expected to face charges. Both Leone and the intruder are both are recovering at the Marin General Hospital.

It looks like he may not face charges since California law allows the use of deadly force against an intruder. It is commonly known as the "Make My Day" rule."

Frank Ettin
January 7, 2012, 12:56 PM
...You also made points about the impossibility or uncertainty of determining proximity with a firearm without the specific, even exactly similar, ammunition.... No. I made a point about the admissibility of expert opinion testimony by the defense's expert witness to challenge the evidence put on by the state.

Remember in both Bias and Willems it was the state's contention that the shot was fired at a particular distance. The state in each case introduced its evidence to support its contention. And in each case, the defendant needed to try to introduce expert opinion testimony (based the the defense expert's GSR testing of exemplar rounds) to rebut the claims made by the state. In Bias, the defendant was unsuccessful. In Wlllems, the defendant was successful in introducing the testimony into evidence, successful challenged the contention of the state, and won his acquittal.

...The information will exist. The state will have it. Subpoena it...As I pointed out in my discussion of the attorney work-product doctrine, based on several Supreme Court decisions evidence in possession of the state favorable to the defendant is available through discovery in a criminal case. But what in any given case is actually in the state's possession?

You are on trial because the state has concluded that it has sufficient evidence to be able to convince a jury beyond a reasonable doubt that you are guilty. I doubt that the state would be pressing the case, however, if it had in its possession forensic evidence clearly contradicting a core element of its case against you.

...The Forensics Lab doesn’t work for the Prosecutor any more than the Medical Examiner does. Just like the Judge, they work for the state. Their work is available to both the prosecution and the defense. And because of the nature of their work, barring some narrow and well-defined circumstances, the defense isn’t going to be able to conduct their own autopsies, or test the evidence garments with the GSR on them. Those agencies work for the state, and they strive for unbiased results and reports....[1] Yes, the Forensic Lab, ME, judge, and the police and prosecutor for that matter, do try to fulfill their responsibilities in a professional and unbiased manner. But in any given criminal case the defendant will be challenging one, or all, of them. The defendant would not be on trial unless the prosecutor believed, based on the material supplied to him by the police, the Forensic Lab, and/or the ME, that he had sufficient evidence to secure the conviction.

[2] Certainly a defendant may challenge rulings made by the judge. That's what an appeal is about. Sometimes a defendant will have need and reason to challenge the findings and opinions of the Medical Examiner. There are independent forensic pathologists who might be engaged to conduct on behalf of a defendant further pathological studies, or review and challenge those of a Medical Examiner. Similarly a defendant may need his own investigators to challenge the work of the police. Or the defendant might need his own forensic experts.

[3] And when your defense to the criminal charge is that you acted in justified self defense, your challenge to the state's prosecution takes on an additional dimension. It's not enough for you to create a reasonable doubt, as it is in most criminal defense work. You must affirmatively put on evidence establishing that you satisfied the legal standard for justification.

...Much of what you contend doesn’t happen in the lab, or is impossible to determine, does happen,...But I've really not been talking about what goes on in the lab. I've been talking about what goes on in the courtroom. And in the courtroom, if I, on behalf of the defendant offer opinion testimony of the defendant's expert regarding the distance at which a shot was fired based on GSR testing of handloaded ammunition that testimony conflicts with the evidence being relied on by the prosecution, the prosecutor will strenuously object. And based upon the rules of evidence the judge will sustain the objection (at least that's highly probable because the highly unlikely does sometimes happen).

918v
January 7, 2012, 01:43 PM
It looks like he may not face charges since California law allows the use of deadly force against an intruder. It is commonly known as the "Make My Day" rule."

I wanna clarify this a bit. California Penal Code section 198.5 shifts the burden of proof from the defendant onto the prosecution in home invasion cases. (in CA, the defendant has the burden of proving the justification for the deadly force) It does not specifically allow deadly force against an intruder, just makes a REBUTTABLE presumption the resident of a dwelling was in fear for his life at the time of the intrusion. The DA can still prosecute if he thinks he can persuade the jury the resident was NOT in fear for his life, i.e. if the intruder was unarmed, a child, a person physically smaller and weaker than the resident, etc. This law applies only to your home, and does not cover you in somebody elses house. In fact, we had a case where some guy shot his GF's ex in her trailer and tried to use this law. The appealate court ruled he was not at his house, and he used excessive force cuz the ex was unarmed. Same scenario as in the Fish incident, except dude was breaking into a trailer.

Frank Ettin
January 7, 2012, 02:05 PM
...California Penal Code section 198.5 ... just makes a REBUTTABLE presumption the resident of a dwelling was in fear for his life at the time of the intrusion...That's essential how a Castle Doctrine works. For example, compare --

California Penal Code 198.5:198.5 Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred...

Kentucky 503.055:503.055 Use of defensive force regarding dwelling, residence, or occupied vehicle -- Exceptions.

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred...The primary difference is that the Kentucky law extends to an occupied vehicle.

...California Penal Code section 198.5 shifts the burden of proof from the defendant onto the prosecution in home invasion cases...Not entirely. It creates a presumption that can make it easier for the defendant to establish his affirmative defense.

With the presumption of Penal Code 198.5, the defendant would not have to show specifically that he, "...held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household..." if he can show both that (1) the person shot "...unlawfully and forcibly enters or has unlawfully and forcibly entered the residence...."; and (2) he "...knew or had reason to believe that an unlawful and forcible entry occurred...."

But to get the presumption, the defendant must still establish those threshold conditions.

...makes a REBUTTABLE presumption...In law, all presumptions are rebuttable.

Sam1911
January 7, 2012, 02:07 PM
In Bias, the defendant was unsuccessful. In Wlllems, the defendant was successful in introducing the testimony into evidence, successful challenged the contention of the state, and won his acquittal.


fiddletown, as near as I can see, the only reason the defendant was unsuccessful in Bias was that what he was trying to introduce as evidence was something that the court saw was utterly unconnected with the case. He claimed that he had used another type of round that was different from anything the officers found on site, in the gun -- or in on a dresser, or in a desk in the attic.

He said, in essence, "If I am allowed to enter this other cartridge for GSR testing, it will support my claims." The judge, in essence, replied, "This other cartridge doesn't match ANYTHING the investigators found on site and we see no reason to accept that you had one round of this oddball thing."

If there had been any evidence to support his assertion that he must have used one round that didn't match, it seems the court would have allowed it. But the court seems to think he was trying to introduce something of a red herring and so didn't allow that.

Had he had even ONE more round of his claimed death round in the house, the court would have accepted the introduction. But he didn't so the court didn't accept his claim.

That appears to be the real lesson of Bias. Not that handloads can't be introduced to give GSR evidence, but that you can't introduce something as evidence if there is no supportable reason for anyone to believe what you're trying to introduce is something that was really present at the crime scene.

In other words, if I've got a revolver full of handloaded XTPs and I shoot them at an attacker, the state will test any loads left in the gun, and any loads I've got at home that match them, and if they need to, they'll make up duplicates of that load of their own. All will be admissible. And the results produced by the forensic labs -- testing my own loads -- will be available to both my defense team and the prosecutor.

Sam1911
January 7, 2012, 02:27 PM
Can someone comment whether the use of handloads/reloads would have mattered in these three examples I would say not. The only time the case is going to hinge on GSR evidence is if the testimony of those present and other crime scene evidence does not match up.

If you claim to have shot a guy from position X, and the body fell in a manner consistent with that, and some witness says, "yeah, he shot that guy from position X," and there are (or aren't) powder burns, blood splatter, etc. all consistent with that claim, the GSR evidence isn't going to be nit-picked over to this degree. It isn't necessary to either the prosecution or the defense.

And, as I'm coming to believe, it appears that IF you used handloads, the state would take them into evidence, just like factory stuff, and the forensic lab would test them, and would report whatever findings they made.

Now, if in any of those cases the defense claimed, "No! All the crime scene evidence is WRONG. The round I fired was an oddball low-charge round that I only ever made one of, and there are none others like it in my property, and no evidence exists that I had any, but that's what I used. And if you let me introduce one like it, IT will exonerate me..." -- well, then the defendant would be in trouble. The court will likely see no reason to accept the claim that the evidence you want to introduce as real. They'll think you're trying to deceive the court. And, honestly, you probably would be! :)

bds
January 7, 2012, 02:52 PM
So, let me get this straight.

Based on what's been discussed so far (let's say the shooting happened inside my house), the primary benefit of using factory ammunition is that my reloading equipment/components won't be taken into evidence by the police, only the weapon involved in the shooting?

If handloads/reloads were used in the shooting, all reloading related equipment/components/documents/even cleaning supplies would be taken into evidence along with the weapon?

Sam1911
January 7, 2012, 02:57 PM
Another thought obtains here, based on my reading of the final lesson of the Bias case:

You're walking across a bridge. You are accosted. You shoot the gun dry. The empty cases fly over the rail into the swift water below and are gone. The bullets similarly vanish and the one that kills the attacker "overpenetrates" (;)) and disappears into the drink as well. The State wants to prosecute you because you say you were standing in position X, near the attacker, and the State thinks you shot the guy from across the road.

The state says there is no GSR evidence as there would be if you had shot the man from up close. Your two spare mags were loaded with Buffalo Bore mega-max loads consistent with producing the wounds observed from a great distance. You say, "Not so! I had loaded my carry mag with six Federal low-flash, low power, target loads, and those will produce the results I need to support my case."

The investigators (including YOURS) will turn over every bit of earth they have to to try and find out if you actually did have any of those super-lite rounds. They'll look for a half-empty box at home. They'll check your CC receipts if they have to. Or interview the dude at the range you claim gave them to you. Whatever it takes. If there is no realistic reason to believe you ever owned six of those magic rounds, they're not going to allow them to be introduced as evidence.

The court will say there is no reason to believe that that's what you used, so there's no reason to accept any physical test of them to be introduced. Any test results will be contradictory to what we have any reason to believe actually took place, and may influence the jury in a dishonest way.

If the Bias case had involved ALL factory ammo, but his defense still wanted to claim he used one round of some other factory ammo that they could not believe he actually possessed at the time, they wouldn't have accepted that being introduced either.

Sam1911
January 7, 2012, 03:00 PM
Based on what's been discussed so far (let's say the shooting happened inside my house), the primary benefit of using factory ammunition is that my reloading equipment/components won't be taken into evidence by the police, only the weapon involved in the shooting?What? NO. The police will take into evidence anything they want to or think might be relevant. The primary benefit in dispute here is that GSR evidence from your handloads might not be allowed to help you defend your claim.

If handloads/reloads were used in the shooting, all reloading related equipment/components/documents/even cleaning supplies would be taken into evidence along with the weapon? According to Ken's friend, the forensic lab guy, YES, exactly. (Though...I don't know why cleaning equipment would be. But pretty much anything else that could speak to what load you really used to shoot the deceased.) They'll take anything they need to in order to reproduce the effects of the shot you took with the gun and ammo you used.

If they need to. If everything stacks up to persuade them of your claim without the GSR testing, they may not bother.

918v
January 7, 2012, 03:22 PM
A friend of mine who has worked homicide cases before told me that handloads are not taken into consideration as oftentimes the weapon is loaded with several types of different make ammo, obsolete ammo, etc. They find revolvers partially loaded. Autos partially loaded. There might be a FMJ, a JHP, a lead bullet. They stuff anything they can find.

Also consider the reality of the situation, and that is there is not enough difference between the various powders to cause a difference in the stipling pattern that can't be accounted for due to the difference between two rounds within the same box of ammo. Not every round ignites the same, burns the same, or prints to the same POI. There's not going to be much difference between WAP, which was used to load alot of Winchester's factory ammo, and WSF or HS-6 or Power Pistol. If you can find me a forensic tech that can distinguish the stipling pattern between these powders I'll swallow a 9mm round.

If we're talking the difference between a 2.7gr Bullseye load and 18gr of 2400, then I agree there's gonna be a difference, but not within powders of a similar burning rate.

Odd Job
January 7, 2012, 03:57 PM
What about different powder shapes, and their impact impressions on the base of the bullet?
And what about chemical testing of residues in the barrel of the gun? Surely those can help prove or disprove whether a certain load was recently fired in the gun?

Frank Ettin
January 7, 2012, 04:12 PM
In Bias, the defendant was unsuccessful. In Wlllems, the defendant was successful in introducing the testimony into evidence, successful challenged the contention of the state, and won his acquittal. ...as near as I can see, the only reason the defendant was unsuccessful in Bias was that what he was trying to introduce as evidence was something that the court saw was utterly unconnected with the case. He claimed that he had used another type of round that was different from anything the officers found on site, in the gun -- or in on a dresser, or in a desk in the attic. That's really reading a lot into the fairly superficial material we have. The only way we'd really know exactly why the judge ruled as he did on the evidentiary question that concerns us would be if we had a memorandum decision. One doesn't seem to have been done here. If it had been, I'd expect it to have surfaced by now. So we have to draw some inferences based on the rather sketchy information we have.

Ken posted excerpts from a newspaper article in which the reporter appears to quote some portions of testimony at what appears to have been one or more evidentiary hearings. But we don't have the whole transcript -- only those quotes the reporter decided to include in the article. I'm not faulting the reporter, but he had no way to guess that a bunch of years later some guys in an Internet forum would be reading parts of the article trying to figure out a technical issue about the rules of evidence. But in any case, we don't know all that went on in court.

It's true that the problem with introducing the defense GSR testing had to do with Bias' inability to connect the test exemplars to the event. Without the complete transcript we don't have the full story of how the defense tried to establish that connection. We only seem to have bits and pieces on each side.

And as I, and other lawyers, have said, the key to getting the defense exemplar testing into evidence is establishing the connection between the exemplars and the event. If you're ever in this position and you will need to make that sort of connection to get helpful information into evidence, exactly how much evidence establishing the connection will you need? Certainly the more such evidence the better. And using handloads won't help.

918v
January 7, 2012, 04:19 PM
Also, if you shoot dude multiple times, the stipling pattern will be compromised. If you shoot him from more than a couple feet away, there won't be any stipling.

BullfrogKen
January 7, 2012, 05:13 PM
The only way we'd really know exactly why the judge ruled as he did on the evidentiary question that concerns us would be if we had a memorandum decision. One doesn't seem to have been done here. If it had been, I'd expect it to have surfaced by now. So we have to draw some inferences based on the rather sketchy information we have.


Yeah, and one would have thought that the data I managed to collect from an area newspaper would have surfaced in the discussion by now, too. But as I said, the story about the case as it has been told over and over just isn't based on the totality of the facts.

Ken posted excerpts from a newspaper article in which the reporter appears to quote some portions of testimony at what appears to have been one or more evidentiary hearings.

No, they were during the trials. Yes I said trials, plural. Whoever decided the paper was going to follow the case, they followed it through it's entirety. Through the hung juries, through the first conviction and appeal, up through the final and last conviction. Much of that testimony is reported in very precise detail. Frankly I myself was amazed at the level of completeness and detail. I'm not used to seeing that from a reporter. They're certainly not transcripts, but not everyone here has access to transcripts.

But you're an attorney. If you question the accuracy, completeness and relevance of what I've offered, go look it up for yourself. I provided for everyone where that information was gleaned - a publicly accessible source, although you may have to subscribe online to search the database for the dozens upon dozens of articles.


I think at a minimum it's safe to conclude the story of the Dias case, as it's been reported regarding -

an assertion the state tested ammunition inconsistent with the evidence;
the refusal to fully examine the composition of the rounds;
the refusal to duplicate Dias' rounds in the manner he loaded them, and conduct GSR tests with them;


Does not square with what actually happened. The fact is it did. And it got introduced into the trial.

Again, I'm not asking you to take my word for it. Everything I've shared up to this point I've provided outside, open sources to corroborate. I don't play the, "I have inside knowledge" trick. Don't take my word for it. Don't take Massad Ayoob's word for it. Go do the research for yourself.


I've think I've done enough of other people's homework here. I guess it comes down to this. You're not going to convince me. And perhaps I'm not going to move you. But if nothing else be honest, transparent, and fully disclose the entirety of the available information before you come before us all and make definitive declarations about how the state treats reloaded evidenciary ammunition.

I'm not sure, is an acceptable answer. It's probably the most honest and truthful answer you can give. Acting the part of a protagonist, I may appear to have been arguing in its favor here, but's the one I give when pressed. The answer is reliable testing can be done. And any competent lab will do it. And the evidence can get into court.

But trials are never a sure thing; they're a gamble each time. So if asked, I don't offer anyone any surety about anything that could occur in court. It's a crap shoot every time.


Anyway. The Playoffs are about to start. Happy researching and peace.

357 Terms
January 7, 2012, 05:21 PM
Sam1911
That appears to be the real lesson of Bias. Not that handloads can't be introduced to give GSR evidence, but that you can't introduce something as evidence if there is no supportable reason for anyone to believe what you're trying to introduce is something that was really present at the crime scene

Right!

I have always wondered how the Bias case became the "poster child" for not carrying reloads. It is such a stretch!
I never have been able to grasp the logic that goes into that, or lack of.

918v
January 7, 2012, 05:35 PM
The rounds tested for the prosecution were apparently Bias' handloads.

So all this time you have been arguing that I would not be able to introduce my handloads into evidence, and yet Bias was able to.

Why would the prosecution be able to test and introduce my handloads into evidence, but I cannot?

Since the number one rule of evidence is that all relevant evidence is admissible, how is my handload evidence irrelevant if the distance of the shot is at issue?

Sam1911
January 7, 2012, 07:01 PM
If you can find me a forensic tech that can distinguish the stipling pattern between these powders I'll swallow a 9mm round.

If we're talking the difference between a 2.7gr Bullseye load and 18gr of 2400, then I agree there's gonna be a difference, but not within powders of a similar burning rate.


That seems to have been in play in Bias. It appears in his second try he wanted to say that if they let him introduce his version of the death load (containing less than 3.0 grains of Bullseye) instead of relying on the cartridges of his they found and tested (all containing just a little over 3.0 gr. of Bullseye) that his loads would not have produced the powder scorching, burning of the hair, and particle imbedment in the wound that the "heavier" loads did.

Which I think a reasonable person could dismiss off hand as bull-oney. The muzzle of the gun could hardly be more than 6 or maybe 10 inches away from the head in a suicide. There IS going to be residue, scorching, and imbedment in the wound with any gunpowder-driven projectile at such close distance.

At any rate, the judge did not allow testing of the ~0.5 gr. lighter loads, as there was no evidence that Bias actually had any at the time, or that they were in the gun when fired.

Sam1911
January 7, 2012, 07:09 PM
That's really reading a lot into the fairly superficial material we have. The only way we'd really know exactly why the judge ruled as he did on the evidentiary question that concerns us would be if we had a memorandum decision.

fiddletown, I certainly do understand that this is putting a few words into the judge's mouth. But aren't we scooping words into his maw with an even bigger shovel if we say that his reason for disallowing these other nonexistent rounds to be created and tested was because he would not accept data from handloads? They had certainly been allowed before, and have certainly been allowed in many other cases since (according to Ken's pal, anyway).

One reason appears (to this layman) to follow: why should we accept as relevant data from cartridges we cannot be compelled to believe were present at the scene?

One reason appears (again, to this layman) to be quite a stretch: In this one case, unlike many many others, I'm going to disallow handload GSR data, wholesale.

It seems that berg on which stands the whole "don't use handloads for Self Defense" argument appears to have melted away to one cocktail-sized ice cube of speculation concerning one judge's reasoning in one case.

Peter_S
January 7, 2012, 08:53 PM
Lawyers will typically post their scare tactics of "do what you want but no one else will be in the cell with you."
The chances of getting involved in a shooting period are pretty slim. The chances that your choice of ammo will be an issue are even slimmer. The chances that GSR will be a factor are almost miniscule.
It's a non-issue as far as I'm concerned.
+1 ...this makes most sense to me.

918v
January 7, 2012, 08:58 PM
I would use a cap and ball revolver. Even if I missed, I would have a smoke screen to make my escape like a ninja.

Frank Ettin
January 7, 2012, 10:16 PM
...No, they were during the trials...Was the jury present? Matters related to admissibility of evidence would be dealt with without the jury there.

...before you come before us all and make definitive declarations about how the state treats reloaded evidenciary ammunition...But the question has never been, "...how the state treats reloaded evidenciary ammunition...." The question is far narrower, specifically the admissibility into evidence of opinion testimony of the defendant's expert regarding the distance at which a shot was fired based on GSR testing of handloaded ammunition.

...accept data from handloads? They had certainly been allowed before, and have certainly been allowed in many other cases since (according to Ken's pal, anyway)....But that still begs the questions: when; under what circumstances; in what contexts; and for what purposes.

We're only interested in the admissibility into evidence of the defendant's expert's opinion regarding the distance at which a shot was fired based on GSR testing of handloaded ammunition. No one has been able to cite a case in which such testimony was allowed into evidence.

To be fair, this sort of thing probably doesn't come up much. It's entirely possible that Danny Bias was the only defendant ever to seek the admission into evidence of the opinion of his expert based on GSR testing of handloaded ammunition.

Randy Willems needed such testimony, and it was allowed into evidence; but factory ammunition was involved. It appears that Marty Hayes had a client who need such testimony; but again factory ammunition was involved.

It seems that handloads very seldom show up in self defense cases. Al Norris over at TFL did some research and found only 12 claimed self defense shooting in which handloads were used during a 37 year period (1970 - 2007). Only six were charged, and those wound up in convictions (four on pleas and two at trial). The other six were apparently clearly justified. I can supply links to the posts at TFL if anyone is interested.

...It seems that berg on which stands the whole "don't use handloads for Self Defense" argument appears to have melted away to one cocktail-sized ice cube of speculation concerning one judge's reasoning in one case. Not at all. Everything doesn't hinge on Bias. It's just that Bias seems to be the only case in which a defendant tried to get into evidence his expert's opinion regarding the distance at which a shot was fired based on GSR testing of handloaded ammunition.

The real key is the rules of evidence and a professional understanding of how those rules apply to the admissibility of expert opinion testimony.

In order to get admitted into evidence expert opinion testimony based on scientific testing, the moving party basically must establish (1) that the witness qualifies as an expert; (2) that the test is accepted as valid in the scientific community; (3) that the test reasonably duplicates the event that is the subject of the trial; and (4) that the thing tested reasonably duplicates the thing at issue in the trial. If this foundation can not be established, the offered testimony is considered irrelevant, the testimony will not be allowed into evidence and the jury will never hear it.

And as I noted in post 116, another lawyer, with experience as both a prosecutor and criminal defense lawyer, knowledgeable about the rules of evidence, and knowing how to do things in a courtroom, is confident that as a prosecutor he could keep out of evidence a defendant's expert's opinion regarding the distance at which a shot was fired based on GSR testing of handloaded ammunition.

How big a risk is the use of handloads? There really is no way to quantify it. It's certainly very small. If you like your handloads enough that carrying them and accepting the very small risk is worth it to you, go for it.

It's not worth it to me.

bds
January 7, 2012, 10:33 PM
How big a risk is the use of handloads? There really is no way to quantify it. It's certainly very small. If you like your handloads enough that carrying them and accepting the very small risk is worth it to you, go for it.
For me, I prefer to carry factory ammunition for SD/HD but felt that use of reloaded ammunition was not the "end all" for justifiable shooting. I feel better now about using "near duplicate" JHP loads if I had to use them.

Really want to thank Ken, Sam and fiddletown (among many others) for your information on this thread and curiously look forward to what Mr. Ayoob has to offer next week.
Ken, it would be helpful if you could provide a link to the newspaper article you quoted. It was my understanding from defense counsel that this information was never put in front of the jury, and I believe you may be quoting an evidentiary hearing or voir dire of evidence that was outside the hearing of the jury.

I'm out the door and won't be able to contact the lawyers in NJ for their side of it until Monday

357 Terms
January 7, 2012, 10:38 PM
Only six were charged, and those wound up in convictions (four on pleas and two at trial). The other six were apparently clearly justified

What were those men charged with? Did the use of handloads have anything to do with those men being convicted? Were reloads even a factor at trial?

Sam1911
January 7, 2012, 10:49 PM
In order to get admitted into evidence expert opinion testimony based on scientific testing, the moving party basically must establish (1) that the witness qualifies as an expert; (2) that the test is accepted as valid in the scientific community; (3) that the test reasonably duplicates the event that is the subject of the trial; and (4) that the thing tested reasonably duplicates the thing at issue in the trial. If this foundation can not be established, the offered testimony is considered irrelevant, the testimony will not be allowed into evidence and the jury will never hear it.
Certainly number 1 isn't really in question. Number 2 shouldn't be either. (We know, and forensics labs know, how to put together a round of ammunition to duplicate anything that really was present/involved in the event. They do it all the time.)

Number 3 seems to be kind of a gimme. The test has to be similar to the event in all critical ways.

4 seems to be where the defense screwed up in Bias' case, as he seems to have tried to introduce something that WASN'T actually similar to anything reasonably believed to be present at the scene.

So I'm not sure which of these points presents the problem for the handloader's defense team.

And as I noted in post 116, another lawyer, with experience as both a prosecutor and criminal defense lawyer, knowledgeable about the rules of evidence, and knowing how to do things in a courtroom, is confident that as a prosecutor he could keep out of evidence a defendant's expert's opinion regarding the distance at which a shot was fired based on GSR testing of handloaded ammunition.

That is his assertion. However, the state forensics here in PA (and others, as evidenced by the guidelines presented by KSP and DOJ) DO run such tests on handloaded ammunition and present their findings to the court, and the prosecution's expert witnesses are allowed to testify on the meanings of those findings all the time. If the prosecution's expert witnesses are allowed to do so, how could the defense's expert witnesses be barred from testifying on that same data?

It seems clear the data WILL be made available. If the State uses it to convict people (whether they used handloads or factory ammo) how then could the defense not be allowed to use it to acquit?

357 Terms
January 7, 2012, 10:52 PM
And as I noted in post 116, another lawyer, with experience as both a prosecutor and criminal defense lawyer, knowledgeable about the rules of evidence, and knowing how to do things in a courtroom, is confident that as a prosecutor he could keep out of evidence a defendant's expert's opinion regarding the distance at which a shot was fired based on GSR testing of handloaded ammunition.



This whole theory of handloads being a risk for SD seems to be fueled by speculation.
His Opinion is just more of that, he never was faced with such a case professionally.

Speculation and opinoin.

Sam1911
January 7, 2012, 10:54 PM
We're only interested in the admissibility into evidence of the defendant's expert's opinion regarding the distance at which a shot was fired based on GSR testing of handloaded ammunition. No one has been able to cite a case in which such testimony was allowed into evidence.
But neither Bias, nor any other case suggested, seems to provide an example of a case where such was NOT allowed into evidence due simply to the fact that it wasn't factory ammo.

(Again, Bias' last-ditch submission was refused, but we don't appear to know for sure why, though we each have our pet assumptions.)

And, as I said, the state clearly does use this testing to convict. Why then should there be some stumbling block to the defense calling the same to support the accused?

Sam1911
January 7, 2012, 10:56 PM
...a professional understanding of how those rules apply to the admissibility of expert opinion testimony. I'm asking to have that professional understanding shared here, but so far the critical question seems to reach the end of the trail here:

That's really reading a lot into the fairly superficial material we have. The only way we'd really know exactly why the judge ruled as he did on the evidentiary question that concerns us would be if we had a memorandum decision.

Which is simply saying, "You don't know why, and I don't either."

918v
January 7, 2012, 10:59 PM
If the State uses it to convict people (whether they used handloads or factory ammo) how then could the defense not be allowed to use it to acquit?


Several months ago, when this same point was being argued by a certain member, handload evidence was inadmissible to establish the distance from the shooter to the victim. Now it turns out it is admissible and has been admitted at trial. But another member continues to argue that only the prosecutuin can use it.

Frank Ettin
January 7, 2012, 11:10 PM
...the state forensics here in PA (and others, as evidenced by the guidelines presented by KSP and DOJ) DO run such tests on handloaded ammunition and present their findings to the court, and the prosecution's expert witnesses are allowed to testify on the meanings of those findings all the time. If the prosecution's expert witnesses are allowed to do so, how could the defense's expert witnesses be barred from testifying on that same data?..Still begging the questions: when; under what circumstances; in what contexts and for what purposes.

...as I said, the state clearly does use this testing to convict. Why then should there be some stumbling block to the defense calling the same to support the accused? Well, if the state's using its testing to try to convict, it would seem that the test results are adverse to the interests of the defendant.

918v
January 7, 2012, 11:20 PM
OK,

How about a scenario?

Turd breaks into a residence. The owner confronts the turd who is unarmed. The owner points his 1911 at the turd and orders him to leave the residence. The turd, instead, rushes the owner in an effort to take away his weapon. The owner fires from two feet away using a handload consisting of a 200gr SWC on top of 3.7grs of Bullseye. Turd stumbles to the rear about 50 feet and dies. The owner is arrested and charged with manslaughter. The prosecutor alleges the owner shot the turd from 50 feet away based on an absence of powder stipling on the turd.

The owner explains the lack of powder stipling is due to the entire 3.7 grains of Bullseye having been consumed in the 5" barrel of his 1911. The issue is the distance to the turd. The prosecution is saying at least 50 feet. The owner is saying 2 feet. The owner wants the remaining handloads in the magazine tested and introduced into evidence to refute the prosecutor's claim.

Mr. Fiddletown says the owner will not be able to introduce that evidence. Is that right?

Sam1911
January 7, 2012, 11:21 PM
Still begging the questions: when; under what circumstances; in what contexts and for what purposes.Not sure I understand how you're intending this question.

All I can answer is: preliminary to a trial; under the circumstances of a questionable shooting; and to establish within some range at what distance a shot was fired.

Isn't that what we're debating?

...as I said, the state clearly does use this testing to convict. Why then should there be some stumbling block to the defense calling the same to support the accused?
Well, if the state's using its testing to try to convict, it would seem that the test results are adverse to the interests of the defendant. Yes! Sure could be. There's only one way things REALLY happened. The purpose of a forensic test isn't to argue for either the prosecution or the defense but to establish some facts from which conclusions may be drawn. It thus follows that those facts established by the testing may be more agreeable to the prosecution or more agreeable to the defense, or inconclusive.

In Bias' case, at least the first time 'round, the results were admitted and were pretty clearly unfavorable. Apparently because he was guilty as sin, near as anyone can figure.

(I mean there was NO powder inclusion, or scorching of the hair, or GSR speckling on her body, and he was claiming that she shot herself in the head wrong-handed. I'd bet $100 you'd get powder inclusion, scorching, and speckling if you were shooting a .22 Short "Colibri" primer-only round at your own head, wrong handed. Let alone any full-sized centerfire cartridge with some quantity of powder in it. 'Course, the difficulty of surviving the test makes the $100 pot seem less compelling... ;))

Sauce for the goose, sauce for the gander. If we want the testing done, and the testing IS done, we have to accept that it could show in our favor or against.

At either event, it would or would not be admissible. We know that sometimes it IS admissible. We don't seem to have enough data to know for sure why it would not be in other cases.

BullfrogKen
January 7, 2012, 11:33 PM
But the question has never been, "...how the state treats reloaded evidenciary ammunition...." The question is far narrower, specifically the admissibility into evidence of opinion testimony of the defendant's expert regarding the distance at which a shot was fired based on GSR testing of handloaded ammunition.

Actually, according to you it was. I've seen you assert the idea that the state must preserve the evidentiary ammunition, and could not do anything to it that might destroy it. Now whether you said it because your own research led you to conclude it, or you repeated it because Massad Ayoob said it and you took him at his word really doesn't matter to me. I'm not looking to embarass anyone here.

But now that we seem to have settled the matter of what the Forensics Lab and the state's Firearms Examiner actually does with the ammunition, hopefully we'll begin to get past it. One bogus speculation struck down. Say it with me everybody - Hooray for science!


Was the jury present? Matters related to admissibility of evidence would be dealt with without the jury there.

As I said earlier tonight, I think I've done enough of other people's homework.

I provided you with a publicly accessible means to go find out where I gathered that specific information. You more than most here have both the education and the means to find out the facts for yourself, from the source. Don't take my word for it. If I could find this out, so can you.

We're only interested in the admissibility into evidence of the defendant's expert's opinion regarding the distance at which a shot was fired based on GSR testing of handloaded ammunition.

C'mon man. For some reason you seem to be completely wrapped around the idea that testimony on GSR can be admitted into evidence only when every facet of what caused the GSR is known. I showed you some three pages ago some pretty damn good work done by the state of Kentucky to help train Firearms Examiners on how to report on evidence containing GSR when the firearm and ammunition are completely unknown.

Do I really have to hold your hand the whole way through this?


No one has been able to cite a case in which such testimony was allowed into evidence

<raises hand> I can.

New Jersey v Bias.

:cool:


Begin here -


Gun Expert Hurts Defense In Bias Murder Trial
October 30, 1990 by JAY RICHARDS
http://articles.mcall.com/1990-10-30/news/2773663_1_mrs-bias-residue-bullets



Bias Suicide Defense Supported Expert Says Slain Wife's Hair Filtered Gunpowder Residue
November 09, 1990 by JAY RICHARDS
http://articles.mcall.com/1990-11-09/news/2771911_1_mrs-bias-residue-gunpowder


Go get the material. You'll see that evidence of GSR on handloaded ammunition was indeed introduced and admitted into trial. It was performed by the state's ballistics lab. It was first introduced by the prosecution. Defense counsel most certainly had access to the testing, and had their own expert witness testify about and to that evidence.


But yes, Bias did not get to introduce testing done using rounds he claims were used, but never turned up in evidence. But Sgt. Carl Leisinger, who through the course of the several trials eventually became Captain Leisinger, did do that testing. He performed tests over a range of charge weights beyond merely that found in the evidence ammunition and couldn't reproduce what the defense claimed should have been found.


Hasn't Bias' assertion become to look like a specious argument to you yet?


You know fiddletown, I've done a lot of work and gone through considerable effort here to frame and source my argument with information besides links to other internet forums. I'm just sayin' . . .

Frank Ettin
January 7, 2012, 11:37 PM
Still begging the questions: when; under what circumstances; in what contexts and for what purposes. All I can answer is: preliminary to a trial; under the circumstances of a questionable shooting; and to establish within some range at what distance a shot was fired. Then how about some citations and details?

...If we want the testing done, and the testing IS done, we have to accept that it could show in our favor or against...There's testing and there's testing. If I'm defending you, and the state is putting up some forensic evidence to put you away, I'd suspect that you'd want be to challenge it. In the history of criminal jurisprudence, the state's evidence hasn't always been correct nor has it's forensic evidence always been unassailable.

Sam1911
January 7, 2012, 11:37 PM
In fact, fiddletown, I think you just nailed the entire question shut with this point:

Well, if the state's using its testing to try to convict, it would seem that the test results are adverse to the interests of the defendant.

In Bias' first case, the handload evidence WAS admitted! Now, it didn't support his claims. As near as we can tell, it didn't do so for a very good reason. But if his claims had been true -- just saying IF, bear with me -- that data would have helped exonerate him.

How does the debate really continue beyond that point? We're all so concerned about how we might not be able to use GSR data from our handloads to establish the factuality of our claim. And in the model case used to prove why handload GSR data probably won't be admissible -- IT WAS.

Now, that data that WAS admitted showed something he didn't want shown -- apparently because he was lying -- but we're all giving ourselves the benefit of the doubt here and saying that we will be only involved in righteous shootings and will unquestionably want the TRUTH to be shown about what happened.

All I can conclude from this is that Bias is the model case of why handloads ARE admissible for the purposes of GSR evidence!

(Just be sure you're telling the truth...)

bds
January 7, 2012, 11:45 PM
< taking more notes > :D

How about a scenario? The owner fires from two feet away using a handload consisting of a 200gr SWC on top of 3.7grs of Bullseye. Turd stumbles to the rear about 50 feet and dies ... The prosecutor alleges the owner shot the turd from 50 feet away based on an absence of powder stipling on the turd.
50 feet? That's a big house.

At 2 feet, if 200 gr lead SWC bullet was used, won't the lead/lube residue from the muzzle to the body/floor help determine the distance to target? I would think that at that distance, there should be sufficient residue on the target to determine the distance.

Sam1911
January 8, 2012, 12:04 AM
Then how about some citations and details? Of what? Sorry, like I said, I'm not seeing what the question was there.

If we're going back to the beginning, I'm referencing the link Ken posted from DOJ and the words of his friend the forensic lab professional who explained how it is done. He says they use it and submit it and it is accepted as evidence. I can't do better than that, so if you're asking me to provide you with which cases he's been involved with, I can't.

Unfortunately, the only case we all seem to agree is clearly at all pertinent, and the one trotted out in every one of these debates over the years, is Bias and it now appears to support the opposite conclusion.

...If we want the testing done, and the testing IS done, we have to accept that it could show in our favor or against...
There's testing and there's testing. If I'm defending you, and the state is putting up some forensic evidence to put you away, I'd suspect that you'd want be to challenge it. In the history of criminal jurisprudence, the state's evidence hasn't always been correct nor has it's forensic evidence always been unassailable. But as said before, the forensics lab doesn't work for the prosecutor, it works for the court. If the conclusions drawn by the experts brought in by the prosecutor about the findings of the forensics lab are not to your liking, you'd be desiring to hire your own expert to challenge those conclusions, and I cannot see any reason to believe that your expert would not be allowed to testify about data provided by the court's forensic lab. Right? Establish his credentials, observe the data provided, and give a professional opinion to the court. If the court doesn't accept his credentials that's an entirely different problem, unrelated to the handloads, of course.

If you are asking whether another forensic lab could be hired to study the same evidence that the state forensic lab had reviewed to try to produce another set of data for both sides' experts to opine on, well, honestly I don't know why the court wouldn't allow that, but it doesn't seem exactly pertinent. It is the same possibility involved with the rejected expert witness. If the court doesn't accept that your testing agency can produce appropriate and admissible test results in an unbiased way, then that's not a problem or handloaded ammo. And besides, if we're to the point of trying to have the ammo tested by a second agency, the court must have accepted that your handloads CAN be tested and the results submitted as evidence. You may have a problem, but it is with the sufficiency of your testing agency, not with your handloads. The same argument would have to be made if you'd used a brand new box of Federals.

918v
January 8, 2012, 12:05 AM
50 feet? That's a big house.

At 2 feet, if 200 gr lead SWC bullet was used, won't the lead/lube residue from the muzzle to the body/floor help determine the distance to target? I would think that at that distance, there should be sufficient residue on the target to determine the distance.


I have more than that from my front door to my couch.

Should there not have been any lube or bullet debris in the headwound belonging to Bias' wife?

But say we're talking about a 200gr Hornady Jacketed SWC or a plated one? No GSR on the turd.

BullfrogKen
January 8, 2012, 12:07 AM
Agreed with Sam here.

GSR tests using handloaded ammunition got introduced into trial.

It just didn't show what Bias wanted it to.

Weighed with all the other testimony at the trial, he was found guilty.


But that's OK. Just because the testing didn't exonerate Mr Dias doesn't mean we can't use the fruits of that labor. We can still use the basis of what the State of New Jersey's Ballistics Lab did to establish precedent. New Jersey, whoda thunk? We've even got testimony by New Jersey State Trooper Capt Leisinger going on record for the state saying that a reloader's ammunition can be loaded very precisely!

Frank Ettin
January 8, 2012, 12:07 AM
In fact, fiddletown, I think you just nailed the entire question shut with this point:Well, if the state's using its testing to try to convict, it would seem that the test results are adverse to the interests of the defendant. Sam, please don't quote me out of context. Let's put it all on the table:

Post 157...as I said, the state clearly does use this testing to convict. Why then should there be some stumbling block to the defense calling the same to support the accused?Well, if the state's using its testing to try to convict, it would seem that the test results are adverse to the interests of the defendant.


Post 161..If we want the testing done, and the testing IS done, we have to accept that it could show in our favor or against...There's testing and there's testing. If I'm defending you, and the state is putting up some forensic evidence to put you away, I'd suspect that you'd want be to challenge it. In the history of criminal jurisprudence, the state's evidence hasn't always been correct nor has it's forensic evidence always been unassailable.

In Bias' first case, the handload evidence WAS admitted! Now, it didn't support his claims.The prosecution evidence was apparently admitted in the first trial that ended in a hung jury. the prosecution evidence was apparently substantially blunted in the second trial which also resulted in a hung jury and the judge throwing out the murder charges. (In the third trial, Bias was acquitted of aggravated manslaughter and convicted of reckless manslaughter, but that was overturned on appeal. The fourth trial resulted in Bias being convicted of reckless manslaughter.)

Now back to the rules of evidence. They've been outlined, and another lawyer has opined that he could keep this defense evidence out. You're all welcome not to accept that view. I'll stick with factory ammunition for self defense.

357 Terms
January 8, 2012, 12:09 AM
fiddletown
It seems that handloads very seldom show up in self defense cases. Al Norris over at TFL did some research and found only 12 claimed self defense shooting in which handloads were used during a 37 year period (1970 - 2007). Only six were charged, and those wound up in convictions (four on pleas and two at trial). The other six were apparently clearly justified. I can supply links to the posts at TFL if anyone is interested.


Are you insinuiating that these men had legal issues because the use of handloads?
Would they still have been charged had they been carrying factory ammo?

Are these the six drunks in Idaho? men who were charged with carrying a firearm while under the influence if alcohol?

Just a quick answer if ya would fiddletown.

Sam1911
January 8, 2012, 12:21 AM
Sam, please don't quote me out of context.I apologize. I didn't intend to -- certainly didn't think I was. Mea culpa.

bds
January 8, 2012, 12:24 AM
50 feet? That's a big house.
I have more than that from my front door to my couch.
OK, let's say the owner used jacketed bullet. Hopefully the "turd" drops some blood on the floor along his 50 feet trek. Since the turd broke into the house, perhaps the evidence of the break in and the rushing posture the turd assumed when shot (entry/exit would channel compared to position of body parts/muscle layers) may help.

GSR on the turd.
So for reloads, bullet/powder combination that produces more GSR may be beneficial? Well, there's something positive for the "dirty/smoky" loads :D

BullfrogKen
January 8, 2012, 12:38 AM
Why don't we confine the discussion to as few hypotheticals as possible fellas?

918v
January 8, 2012, 12:41 AM
Hope is nice, but change is what really counts.

I'd like (we'd all like) to get an answer on the admissibility of the handload evidence.

918v
January 8, 2012, 01:15 AM
Here are some helpful quotes from the Federal Rules of Evidence:

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.


Relevant evidence is admissible unless any of the following provides otherwise:
■the United States Constitution;
■a federal statute;
■these rules; or
■other rules prescribed by the Supreme Court.

918v
January 8, 2012, 01:19 AM
But some claim that a defendant testifying about the composition of his handloads is

inherently suspect

because he is an

interested witness authenticating an exemplar used as the basis for expert testimony

So where's the prohibition against that? Is not the credibility of a witness something the jury determines?

Frank Ettin
January 8, 2012, 01:32 AM
...Are you insinuiating that these men had legal issues because the use of handloads?...We don't know why each was convicted in connection with shooting his gun. We know that alcohol or drugs was involved, but we don't know that they were drunk. Do you?

And the point is that over a period 37 years only 12 claimed self defense shootings in Idaho involved handloads.

...But as said before, the forensics lab doesn't work for the prosecutor, it works for the court...Actually, that's not correct. It doesn't work for the courts. Who it works for will probably vary State by State.

In California, in the larger counties the county Sheriff's Department runs the county crime lab to provide services within that county. Some police departments also run their own forensic laboratories. And there's a state crime lab for cities and counties which don't have their own. The state crime lab is run by the Attorney General's Office.

...If the conclusions drawn by the experts brought in by the prosecutor about the findings of the forensics lab are not to your liking, you'd be desiring to hire your own expert to challenge those conclusions, and I cannot see any reason to believe that your expert would not be allowed to testify about data provided by the court's forensic lab. Right?...In general, if I have concerns about the government's forensic findings, much of the time my preference would be to have my experts do their own testing and come up with their own findings. Or, depending on circumstances, I'd use experts to impeach the government's findings. Or I could do both: have my experts do their own testing and generate their own findings; and help challenge the government's findings. Such challenges will often include disputes regarding methodology.

And if part of my strategy will be to challenge the government findings, a starting point will be whatever material I'm able to get from the government through the discovery process.

...If you are asking whether another forensic lab could be hired to study the same evidence that the state forensic lab had reviewed to try to produce another set of data for both sides' experts to opine on, well, honestly I don't know why the court wouldn't allow that,...My experts will not be able to use the same material used by the government. But my experts will be able to use identical or substantially identical material, and if I can lay the proper foundation as I described previously, the court will have to let it into evidence.

...if we're to the point of trying to have the ammo tested by a second agency, the court must have accepted that your handloads CAN be tested and the results submitted as evidence...An interesting point. If the government has done it's testing with handloads, and that testing supports its case; and if I've done my testing with handloads, and it supports my case, we have a very interesting tactical situation. The government could decide not to use its test results, if the prosecutor has enough other evidence in his opinion to get a conviction.

The problem for the government here is that if it offers its (favorable to it) test results, it's then is going to have a hard time keeping my (favorable to the defendant) test results out. But if it's not offering its test results, it objects to mine because since handloads are involved, a sufficient nexus between the test and the event can't be established. That's likely to hurt me more than the government, because the government has to have a good deal more to talk about than just GSR tests in order to be going to trial.

I'm stymied. I can't object to the government not using its test results as evidence. That's not my business. And the government's position will be that it is not using those tests because the results are of questionable relevance because an adequate nexus between the tested ammunition and the event can't be established since handloads were involved.

True, I have the government's test results that I got on discovery. But I can't really use them for anything because they're adverse to the defendant.

This is why what happens in court is so very different from what happens in a lab.

...You may have a problem, but it is with the sufficiency of your testing agency, not with your handloads. The same argument would have to be made if you'd used a brand new box of Federals. Not really. See above.

interested witness authenticating an exemplar used as the basis for expert testimony So where's the prohibition against that? Is not the credibility of a witness something the jury determines? Not when it comes to establishing a foundation for the introduction of expert opinion testimony based on scientific tests. Determining the adequacy of the foundation is the province of the judge.

918v
January 8, 2012, 02:02 AM
So you are saying that handload evidence is inadmissible because the judge doies not feel the defendant is credible, unless the prosecution decides to use it?

Why will the prosecution be able to lay the foundation for this evidence, but not the defense?

Why can the prosecution allege that a shot was fired from a certain distance without any proof? If defendant's handload cannot be replicated (because such information is self-serving) and did not leave any GSR on the victim, the distance to the victim must remain unknown unless there is other evidence establishing distance, right?

So then the fact one used a handload is really a neutral bit of info that neither helps or hurts a defendant.

Frank Ettin
January 8, 2012, 02:37 AM
So you are saying that handload evidence is inadmissible because the judge doies not feel the defendant is credible, unless the prosecution decides to use it?

Why will the prosecution be able to lay the foundation for this evidence, but not the defense?...No, you're missing the point.

If the prosecution offers the test results it is admitting that there is an adequate nexus between the ammunition tested and the event, and thus that the test results are relevant. The defense is not therefore going to object to the prosecutions offer of its results, because the prosecution by offering the test results has now opened the door for the defense to introduce its test results. We would have situation in which parties have in effect stipulated to the admissibility of certain evidence.

But it may be more likely that the prosecution will decide that it doesn't need it's test results, so it won't offer them into evidence. That preserves its objections to the defense's offer of its test results.

...Why can the prosecution allege that a shot was fired from a certain distance without any proof?...[1] Why does the prosecution have to allege the distance at which the shot was fired? That may not be material to the prosecution's case.

[2] Maybe the prosecution has other evidence on the question that it's willing to rely on, e. g., witnesses.

...So then the fact one used a handload is really a neutral bit of info that neither helps or hurts a defendant. No. It can hurt the defendant if he needs to have admitted into evidence over the objection of the prosecution the opinion testimony of his expert regarding the distance at which a shot was fired based on GSR testing of handloaded ammunition.

918v
January 8, 2012, 03:49 AM
So how can the prosecution establish this adequate nexus? By having a forensic lab examine the remaining ammo? Why can't the defense do the same? Say Bias's gun was a six-shooter and the wife popped one in her head, that would have left five unfired handloads in the gun for examination. Surely the forensic lab would have tested them to corroborte Bias' claim, hair filtering included. In my scenario the remaining rounds would have served the same purpose.

How do you lay the foundation? Why cant you have the defendant testify what he loaded? This would e corroborated by the forensic lab that took his ammo apart. Then have an expoert witness testify how those specific components behave when fired form defendent's gun.

Frank Ettin
January 8, 2012, 04:34 AM
So how can the prosecution establish this adequate nexus? By having a forensic lab examine the remaining ammo? Why can't the defense do the same? Say Bias's gun was a six-shooter and the wife popped one in her head, that would have left five unfired handloads in the gun for examination....If you're talking about Bias, what happened there happened.

...Why cant you have the defendant testify what he loaded? This would e corroborated by the forensic lab that took his ammo apart. Then have an expoert witness testify how those specific components behave when fired form defendent's gun. If you're talking about what might happen in some other case, you can't know what will or will not be available or possible. You can't assume that your proposed strategy would even be possible, let alone successful.

357 Terms
January 8, 2012, 10:15 AM
Originally Posted by 918v
So how can the prosecution establish this adequate nexus? By having a forensic lab examine the remaining ammo? Why can't the defense do the same? Say Bias's gun was a six-shooter and the wife popped one in her head, that would have left five unfired handloads in the gun for examination....

fiddletown-

If you're talking about Bias, what happened there happened.


LOL, yes it did!

As has been said before it was his "phantom" loads that were not allowed.

And for good reason.

Kleanbore
January 8, 2012, 11:48 AM
First, everything does not "hinge on Bias".

Everything hinges upon the rules of admissibility of expert witness testimony and the largely integral rules of admissibility of forensic scientific trace evidence.

There are two important aspects to the question. One has been settled. The other has not.

The first has to do with the admissibility of test results from the exemplar specimens for the purpose that has been discussed in this thread. Results from factory ammunition would be admissible, at this time. Results from ammunition that was not produced under factory conditions and for which the manufacturing and test data, and the custody of same, cannot be independently validated would be subject to challenge and, based current court rulings, would almost certainly not be admitted if challenged. The jury would not even know about them. That would almost certainly be the case had a defendant been the record keeper, for obvious reasons.

We do not have to look for rulings involving ammunition; the same rules apply whether the subject at hand has to with the admissibility of evidence regarding pharmaceuticals, drugs, DNA, other organic or inorganic chemicals, digital or other images, printed documents, signals, you name it. Some subsets of those rules even apply to the admissibility of records generated by computer programs.

I'm afraid that continued speculation about what might happen in a case involving the rare use of handloaded ammunition in an incident that becomes the subject of a criminal or civil case will prove a lot less useful than an evaluation of how the applicable rules of evidence apply in the general case.

The second aspect has been brushed upon in passing. It has to do with whether GSR distance testing results will continue to be admissible ,and for what purposes. They always have been, but GSR distance test results have not yet been tested in court against the rules of admissibility established in the Daubert cases. There is always the possibility that at some point in time, the use of GSR distance testing to determine the distance will go the way of polygraph tests. In states in which the Daubert rules apply, it is currently possible to challenge the validity of GSR distance tests, and the procedures for doing so are in place. I should think that could happen in other states, too.

At this time, GSR distance test results are admissible in criminal and civil trials. The problem comes up when the test specimens do not meet the rules of evidence for admissibility for forensic scientific trace evidence.

blarby
January 8, 2012, 11:53 AM
All I can conclude from this is that Bias is the model case of why handloads ARE admissible for the purposes of GSR evidence!

Thanks !

357 Terms
January 8, 2012, 12:15 PM
Kleanbore
Results from ammunition that was not produced under factory conditions and for which the manufacturing and test data, and the custody of same, cannot be independently validated would be subject to challenge and, based current court rulings, would almost certainly not be admitted.

Speculation.

If the reloads that I use for SD were consistent with the loads that were recovered, at the scene or on my reloading bench, why wouldn't they be addmitted?

Sam1911
January 8, 2012, 01:01 PM
Who it works for will probably vary State by StateOk. But it doesn't expressly work for the prosecutor. That would be a problem with impartiality.

My experts will not be able to use the same material used by the government.Why would this be? Is evidence collected at the scene not provided to all testing agencies considered allowed by the court?

If a blood sample collected at the scene is tested and those results are submitted as evidence, but the test is challenged by the defense, isn't a sample of the actual collected evidence then provided to the independent testing agency the defense wants to use? How could it not be?

918v
January 8, 2012, 01:19 PM
I think Fiddletown is saying that neither the prosecution nor the defense is likely to get "phantom handload" evidence admitted if the shooter expells all his rounds. This means they will not be able to argue the following:

That you made extra powerful vicious killer rounds.
That you were here and not there based on a lack of GSR.

The only disadvantage, therefore, is a shooter who has expelled all his rounds will not be able to prove his position (via GSR evidence) relative to the victim if he uses a pipsqueek load using a light charge of fast burning powder.

Sam1911
January 8, 2012, 01:32 PM
The problem for the government here is that if it offers its (favorable to it) test results, it's then is going to have a hard time keeping my (favorable to the defendant) test results out. But if it's not offering its test results, it objects to mine because since handloads are involved, a sufficient nexus between the test and the event can't be established. That's likely to hurt me more than the government, because the government has to have a good deal more to talk about than just GSR tests in order to be going to trial.


So now we're at the point where:
1) You've been in a defensive shooting.
2) Your justification has been challenged so you're being tried for a crime.
3) Your defense hinges on GSR evidence to establish how far away you really were.
4) The forensics lab has tested your handloads and the results DON'T support you.
5) You want to have another lab run the same test AND the court won't allow another testing agency to test your ammo, or reproduce ammo similar to what was found on site and/or in the gun to perform that test.

The odds of these things stacking up get slimmer and slimmer at every step. And the last one involves a decision by a judge that we can't find a single case to support one judge ever making.

I know it's an overused truism -- and the only thing that will matter is what happens in your trial -- but the old "angels dancing on pinheads" meme comes to mind.

The one trial we can point to involved a guy trying to provide test data for a red herring cartridge that we're all reasonably certain wasn't present at the scene, to support a claim that wasn't true, through an assertion that was (to any shooter and reloader) ludicrous.

It isn't a good example. (And, as I pointed out before, Bias' first trial seems to argue against handloads being any stumbling block at all.) And we don't have any others to go on.

Yes, it is important to understand the rules of evidence, but there are how many defensive uses of firearms every year? And how many trials? Over how many decades? And we're unable to find one time when this applied to a self-defense trial? And let's face it, firearms cartridges aren't pharmaceuticals. They are not terribly complicated -- and the thing that GSR evidence can support or refute do not depend on 17th-decimal-point levels of precision in duplication of the test. (You're getting a range of possible distances for example, which are supported near enough by a large variety of possible loads. There is little reason to accept that a load produced by one testing agency would be inadmissible, compared to a similar, admissible load produced by the state or county forensics lab to duplicate the load found at the scene.)

As Lee Lapin says, it isn't the odds, it's the stakes. Got that. But the odds appear to be statistically insignificant. So many things to make sure you've got squared away before you fire a gun in a hostile situation. So many questions of need and justification and training and, and, and... This issue seems to fade into ultimate insubstantiality. So many utterly random and completely unforeseeable things could trip you up (or help you) with much greater likelihood than that this collection of dice-rolls will turn up against you.

thorn-
January 8, 2012, 01:36 PM
Since we've gone so far out of the topic of reloading, and into the land of "what does a court do"... I'll just throw out a personal opinion:

The biggest contributing factor to Harold Fish getting convicted was that it was a bad shot. He over-reacted. The bullets he used might of "disturbed a juror", but his bullets shouldn't have wound up in someone else to begin with.

thorn

918v
January 8, 2012, 01:48 PM
4) The forensics lab has tested your handloads and the results DON'T support you.

Once that happens, you might as well hang yourself in your cell... or argue hair filtering or that the Santa Ana winds blew the GSR off course and deposited it in Mexico.

Similarly, a forensic lab could find your story don't jive by testing the factory ammo you used.

Sam1911
January 8, 2012, 01:51 PM
But it may be more likely that the prosecution will decide that it doesn't need it's test results, so it won't offer them into evidence. That preserves its objections to the defense's offer of its test results.
This, however, does not mean their objections will be sustained by the court.

Another improbability multiplier.

Sam1911
January 8, 2012, 01:58 PM
...Why can the prosecution allege that a shot was fired from a certain distance without any proof?...[1] Why does the prosecution have to allege the distance at which the shot was fired? That may not be material to the prosecution's case.

[2] Maybe the prosecution has other evidence on the question that it's willing to rely on, e. g., witnesses.

What the heck? Why does the prosecution have to allege the distance at which the shots were fired? Really? Because that's whole point of the GSR testing as used in the Bias case! That was the assertion he was trying to disprove by introducing his own testing. And it seems to be the one that we're all so worried we'd be trying to establish in our own hypothetical cases.

...

If you're talking about Bias, what happened there happened.

...Why cant you have the defendant testify what he loaded? This would e corroborated by the forensic lab that took his ammo apart. Then have an expoert witness testify how those specific components behave when fired form defendent's gun.
If you're talking about what might happen in some other case, you can't know what will or will not be available or possible. You can't assume that your proposed strategy would even be possible, let alone successfulOh come on. This entire debate is centered around trying to assume that a proposed strategy would be possible or impossible based on what happened in other cases. Using precedents set by similar cases. That's the whole point of discussing law, correct? How will this thing that happened relate to that thing that might happen?

If you can say that the entire discussion is moot because we can't assume anything based on what did (NOT) happen in the only case we know of that appears to be similar at all to the Grand Concern under discussion, then why would Mas, and you, and others have ever made these statements about what the Bias case was thought to teach us? Why claim there's some lesson to be learned here if we really can't assume anything based on what happened?

Sam1911
January 8, 2012, 02:20 PM
Results from ammunition that was not produced under factory conditions and for which the manufacturing and test data, and the custody of same, cannot be independently validated would be subject to challenge and, based current court rulings, would almost certainly not be admitted if challenged. The jury would not even know about them. That would almost certainly be the case had a defendant been the record keeper, for obvious reasons.
Except that they WERE admitted in Bias, and according to Ken's forensic lab friend, are tested and admitted regularly in his experience. Why do you claim that it almost certainly would not be admitted if challenged? If that was the case, the Prosecutor's claims based on the exact same test data would be instantly inadmissible as well, and that doesn't seem to be happening.

We do not have to look for rulings involving ammunition; the same rules apply whether the subject at hand has to with the admissibility of evidence regarding pharmaceuticals, drugs, DNA, other organic or inorganic chemicals, digital or other images, printed documents, signals, you name it. Some subsets of those rules even apply to the admissibility of records generated by computer programs.
Understood, but yet we're discussing evidence gathered at the scene of a supposed crime, that the defendant cannot tamper with (any further, at least) and has no custody of once the investigation has begun. The state DOES take his gun, his remaining ammo, loading equipment, loading components, loading data, and in the case of Bias, every round of ammo they found in the entire house. In Bias, they tested everything they found, tested even stuff they didn't find, but found notes about. Their findings were admitted (in the first trial, at least).

It can be challenged, as you say, but "sauce for the goose..." as fiddletown says. If it can be challenged by the prosecution it can be challenged by the defense as well.

According to Ken's friend who spent a career in a forensics lab this testing is done -- even absent the gun, or remaining ammo, handloaded or factory -- and it is admitted in cases. If it was not useful in a significant portion of cases, because whichever side could have it thrown out easily on challenge, then they wouldn't do it.

Frank Ettin
January 8, 2012, 02:21 PM
..Why can the prosecution allege that a shot was fired from a certain distance without any proof?...[1] Why does the prosecution have to allege the distance at which the shot was fired? That may not be material to the prosecution's case.

[2] Maybe the prosecution has other evidence on the question that it's willing to rely on, e. g., witnesses. What the heck? Why does the prosecution have to allege the distance at which the shots were fired? Really? Because that's whole point of the GSR testing as used in the Bias case!...Different cases are different.

In Bias, a major part of the prosecution's case was built on the distance from which the shot was fired, and so that had to be a focus of the defense. And pretty much the only evidence on the question was based on GSR. And as the collection of evidence and testing by both sides became an increasing contentious issue through the four trials, Bias went from being charged with murder in the first degree to being convicted of reckless manslaughter.

But in other cases, the distance from which a shot was fired could be less important or even relevant to the prosecution's theory of the case. And even if it is relevant, the prosecution might not need or want GSR evidence on the point. It may, for example, have witnesses.

In some cases, the matter of distance might not even be in contention. And in others, because of the circumstances, distance might be more important to the defense than the prosecution.

...Why would this be? Is evidence collected at the scene not provided to all testing agencies considered allowed by the court?...The court doesn't "allow" testing agencies. If I'm going to have any testing done by my experts, I'll have to get them qualified in court as experts.

The physical evidence collected at the scene belongs to the state. It's vital for evidentiary purposes that the chain of custody be preserved, i. e., everyone who touched the thing needs to be identifiable and held accountable for what he did with it while in his possession. So the state isn't necessarily going to give stuff out to anyone not within its dominion and control.

Just because someone has qualified to testify as an expert in court doesn't bring him under the control of the state or the state crime lab. In fact, he's my contractor. I pay him, and he works for me.

There may be times when the defense will have some access to physical evidence collected by the state, but those would be special occasions. So in general, if I'm going to be having testing done, it will be of exemplars, and I will need to be able to establish the connection between the exemplars used and whatever is involved in the case.

...As Lee Lapin says, it isn't the odds, it's the stakes. Got that. But the odds appear to be statistically insignificant...The irony of all this hoopla is that no one ever said that the risk was great or even statistically significant.

But any statistically insignificant legal risk associated with your use of handloads becomes a zero risk if you don't use handloads. If using handloads is important enough to you that you won't mind the risk, whatever it might be, go ahead.

For some, using handloads isn't important at all, so they would prefer to choose zero risk.

...So many utterly random and completely unforeseeable things could trip you up (or help you) with much greater likelihood than this collection of dice-rolls will turn up against you.Sure, but those things are outside your control. Something, like using handloads, are within your control.

Where you have choices, you make your choices. Where you don't have choices, there are no choices to make.

918v
January 8, 2012, 02:27 PM
then why would Mas, and you, and others have ever made these statements about what the Bias case was thought to suggest?

Because a certain person made his bones saying a certain something for the last twenty years and is now "dug in" for all intents and purposes.

Frank Ettin
January 8, 2012, 02:29 PM
...It can be challenged, as you say, but "sauce for the goose..." as fiddletown says. If it can be challenged by the prosecution it can be challenged by the defense as well....And it apparently was challenged by the defense beginning in the second trial which resulted in a hung jury and the murder charge being tossed by the judge.

Kleanbore
January 8, 2012, 02:38 PM
Posted by 357Terms: [The statement that results from ammunition that was not produced under factory conditions and for which the manufacturing and test data, and the custody of same, cannot be independently validated would be subject to challenge and, based current court rulings, would almost certainly not be admitted is] Speculation.No, it is not.

Anything is subject to challenge, provided that the timing of the challenges is within the rules. Once an item of scientific forensic trace evidence and the related expert testimony has been challenged, the judge has specific rules under which he or she must determine admissibility. These rules vary among states. They are not speculation.

In many states, the Daubert standard applies. The case(s) of Daubert v Merrell Dow, though having nothing to do with ammunition, established the legal precedent that applies in those states and in Federal courts.

Most people who have a working knowledge of the subject (some, but by no means all, attorneys have such knowledge, and I was at one time responsible for helping to ensure that certain items would be admissible in court under the Daubert rule) understand why evidence involving exemplar samples that were not produced under strict processes with strict independent verification would fail to meet the standard. The reasons have been explained on THR in summary form numerous times, but for those who choose to not accept the explanation, and for those for whom in depth legal study of the subject would not be practical, the only viable remedy would be to spend a half of day with a very patient and understanding expert in current evidentiary principles and the scientific process.

If the reloads that I use for SD were consistent with the loads that were recovered, at the scene or on my reloading bench, why wouldn't they be admitted?The one thing one can be pretty sure of is that if one is going to trial, the prosecutor, or in the case of a civil trial, the plaintiff, will be motivated to file a motion to exclude the evidence if said evidence would be favorable to the defendant. In the case of ammunition test results and expert testimony about same, the basis for such a motion readily exists.

What happens then is up to the judge, who must make his or her determination under the rules of evidence.

The reasons for exclusion could be manyfold, ranging from questions about verifiability to the size of the data sample and including anything in between.

By the way, what one trial court judge decides or has decided does not establish legal precedent. Precedence would only be established by the outcome of appellate rulings, and such precedence will set forth the universal evidentiary and other legal principles involved, rather than something specific about the kind of evidence in question.

In making a determination under a Daubert challenge, however, a trial judge may well base his or her decision upon the scientific analysis and peer review results used by another judge in determining admissibility or inadmissibility of the same particular kindof evidence.

One thing that has come up in these discussion is the possibility that, once a trial judge has made a determinative admissibility ruling in a case involving a particular kind of evidence, an appeal would be the next step. Not very likely. Unless a new evidentiary principle is in question or an error by the court is alleged, the appeals have already been made and decided upon, in United States v. Frye and in Daubert v. Merrell Dow.

Based on my knowledge, I think it is very, very unlikely that any judge in whose court a challenge is filed would rule to admit GSR test data involving the use of specimens that were not manufactured by an independent factory. There are too many obvious divergences from the Daubert principles to support such a decision

What does remain to be seen is whether the heretofore commonly accepted use of GSR distance testing results is ever challenged, and how the results will play out. That wouldn't have anything directly to do with handloads, but, should it ever be determined that GSR distance testing is not admissible anyway, that would make the handloads vs. factory loads question moot.

Sam1911
January 8, 2012, 02:40 PM
In Bias, a major part of the prosecution's case was built on the distance from which the shot was fired, and so that had to be a focus of the defense. And pretty much the only evidence on the question was based on GSR. And as the collection of evidence and testing by both sides became an increasing contentious issue through the four trials, Bias went from being charged with murder in the first degree to being convicted of reckless manslaughter.

But in other cases, the distance from which a shot was fired could be less important or even relevant to the prosecution's theory of the case. And even if it is relevant, the prosecution might not need or want GSR evidence on the point. It may, for example, have witnesses.


So, are we then agreed that we should abandon Bias as supporting this argument in any way? That using Bias to forward these assertions is disingenuous, or at least mistaken?

Sam1911
January 8, 2012, 02:47 PM
Based on my knowledge, I think it is very, very unlikely that any judge on whose court a challenge is filed would rule to admit GSR test data involving the use of specimens that were not manufactured by an independent factory. There are too many obvious divergences from the Daubert principles to support such a decision
I see your point, and why this would be so.

However, Ken's friend reports that over the course of his career they did do exactly these things and had them admitted as evidence, including this:

The conversation I had last night discussed a case where a man used a round of .45 ACP ammunition dating back to the 1940’s. The lab simply could not find ammunition from that time period to use in testing. So the technician identified the components and loaded some that were as similar as possible to the ammunition and used it for testing.

Now if you're saying that such shouldn't be admissible, or wouldn't now be admissible under these appellate rulings, I suppose that changes things.

Frank Ettin
January 8, 2012, 03:00 PM
...Now if you're saying that such shouldn't be admissible, or wouldn't now be admissible under these appellate rulings, I suppose that changes things.And as I mentioned before, it can all depend on under what circumstances, in what context and for what purposes something is offered into evidence. And, sometimes the introduction of something into evidence, for tactical reasons, or because opposition counsel has made a mistake, isn't objected to.

Kleanbore
January 8, 2012, 03:33 PM
Results from ammunition that was not produced under factory conditions and for which the manufacturing and test data, and the custody of same, cannot be independently validated would be subject to challenge and, based current court rulings, would almost certainly not be admitted if challenged. The jury would not even know about them. That would almost certainly be the case had a defendant been the record keeper, for obvious reasons.
Posted by Sam1911: Except that they WERE admitted in Bias, and according to Ken's forensic lab friend, are tested and admitted regularly in his experience.

What one trial court judge decides or has decided does not establish legal precedent. Precedence would only be established by the outcome of appellate rulings, and such precedence will set forth the universal evidentiary and other legal principles involved, rather than something specific about the kind of evidence in question.

The one thing one can be pretty sure of is that if one is going to trial, the prosecutor, or in the case of a civil trial, the plaintiff, will be motivated to file a motion to exclude the evidence if said evidence would be favorable to the defendant. In the case of ammunition test results and expert testimony about same, the basis for such a motion readily exists.

Why do you claim that it almost certainly would not be admitted if challenged? Most people who have a working knowledge of the subject understand why evidence involving exemplar samples that were not produced under strict processes with strict independent verification would fail to meet the standard.

Consider this: as a judge, you have to decide whether certain materials and data are sufficiently reliable, verifiable, and free from suspicion to to enable their proper use as evidence in a trial. If you can be assured that (1) the materials were manufactured, packaged, and shipped by an ISO certified concern(2) that the in-process and lot acceptance test data and calibration test data were independently prepared and maintained and (3) that the data included a large enough sample to establish error rates, you would have no reason to exclude the evidence.

However, if one eliminates strict manufacturing and quality standards, takes away procedures for determining how the materials have been handled and and by whom, reduces the sample size to a very small number, and introduce the possibility, however slight, that someone with a motive may have had the opportunity to have altered, lost, or substituted anything in the process, the assurance of reliability and verifiability is severely compromised.

It is for those reasons that I think it is very, very unlikely that any judge in whose court a challenge is filed would rule to admit GSR test data involving the use of specimens that were not manufactured by an independent factory.

By the way, not to complicate matters too much, but all of the foregoing is based on the assumed admissibility of GSR distance testing per se as evidence. Someday someone may file a challenge regarding the repeatability, error rate, etc. on that subject.

If that was the case, the Prosecutor's claims based on the exact same test data would be instantly inadmissible as well, and that doesn't seem to be happening.It depends entirely upon who challenges what (or who does not), and when in the process, along with what the evidence at hand is to be used to demonstrate.

So, are we then agreed that we should abandon Bias as supporting this argument in any way? That using Bias to forward these assertions is disingenuous, or at least mistaken?The mistake, if there is one, is try to base an answer on single non-precedential decision by a trial court judge involving an incident that happens very rarely indeed, rather than by looking at the principles involved. The Bias case illustrates an example of what can happen in one trial.

One has to look at how admissibility determinations are properly made. As it happens, the rules for same have always come out of cases that had nothing at all to do with handloads fired at human beings--but they do govern admissibility of said evidence, along with admissibility in various cases involving a very broad spectrum of other things.

357 Terms
January 8, 2012, 03:35 PM
fiddletown
The irony of all this hoopla is that no one ever said that the risk was great or even statistically significant.

But any statistically insignificant legal risk associated with your use of handloads becomes a zero risk if you don't use handloads. If using handloads is important enough to you that you won't mind the risk, whatever it might be, go ahead.



I still don't think there is ANY risk!

You still really haven't shown anyone that has had legal issues using handloads for SD, if there is no example how can you say there is any risk? Through speculation and legal interpretation?
I will keep my handloads, thank you.

918v
January 8, 2012, 03:42 PM
Based on my knowledge, I think it is very, very unlikely that any judge in whose court a challenge is filed would rule to admit GSR test data involving the use of specimens that were not manufactured by an independent factory. There are too many obvious divergences from the Daubert principles to support such a decision

The holding in Daubert has nothing to do with our predicament. Daubert was about the admissibility of expert testimony based on substandard testing. Our situation concerns admissibility of expert testimony based not the kind of testing, but the origin of the sample. Our problem is not that the expert is not an expert, or that the test is questionable. Our problem is whether the sample tested is the same as the sample used to kill the victim.

Kleanbore
January 8, 2012, 03:56 PM
Posted by 357 Terms: You still really haven't shown anyone that has had legal issues using handloads for SD,...

Not necessary to do so, nor is it meaningful.

First, the evidentiary issues extend beyond self defense and encompass, accidental shootings, negligence, manslaughter, suicide and murder--one of which every shooting will be determined to have been, if a self defense claim fails.

Second, the only way to find an example would be to read the trancripts of every trial in all of the three thousand plus courts in the US, and to determine through whatever means whether handloads may have been used without the knowledge of the jurors.

Third, the number of successful self defense case each year is very small (though many criminals do claim self defense); the number for which the evidence is unclear on balance is still smaller; and the number of those in which handloads were used is, as pointed out in other posts, much, much smaller.

One would not reasonably assess the risk from those records if one had access to them--and no one does.

...if there is no example how can you say there is any risk? Through speculation and legal interpretation?Through analysis and through interpretation of the governing appellate rulings. Works for most people.

There is risk to the extant that a defendant or supect may need to rely upon GSR evidence to make his or her case. Small, I think. But considering the stakes, I won't roll the dice.

I will keep my handloads, thank you.Do what you please.

Kleanbore
January 8, 2012, 04:06 PM
Posted by 918v:The holding in Daubert has nothing to do with our predicament. Daubert was about the admissibility of expert testimony based on substandard testing. Our situation concerns admissibility of expert testimony based not the kind of testing, but the origin of the sample. Our problem is not that the expert is not an expert, or that the test is questionable. Our problem is whether the sample tested is the same as the sample used to kill the victim.Do you somehow really believe that a test would not be questionable if the test sample used were questionable?

One of the things one has to do to ensure admissibility of evidence under Daubert is to demonstrate and ensure the origin of said evidence and how it has been stored, labelled, tested, measured, etc. since it's origin, and by whom.

Where Daubert applies, it has a great deal to do with our "predicament". Where it does not, questions concerning the origin of the sample will have a lot to do with our "predicament."

One more time: the reasons have been explained on THR in summary form numerous times, but for those who choose to not accept the explanation, and for those for whom in depth legal study of the subject would not be practical, the only viable remedy would be to spend a half of day with a very patient and understanding expert in current evidentiary principles and the scientific process.

357 Terms
January 8, 2012, 04:27 PM
Kleanbore
There is risk to the extant that a defendant or supect may need to rely upon GSR evidence to make his or her case. Small, I think. But considering the stakes, I won't roll the dice.


I think saying "roll the dice" isn't a good way to describe the risks (?) of carrying reloads.

I think there is a better way to describe the odds, Something more along the lines of:

Needle in a haystack.

A drop in the ocean.

One grain of sand on a beach.

A blade of grass in a field.

You have a better chance of winning the lottery!...a much better chance

Then again I don't see how I can put odds on something that has never happened. Hmmmm....

918v
January 8, 2012, 04:28 PM
We're not talking about fragile biological samples that are affected by temperature, storage conditions, etc.

We're talking about components that are relatively robust.

If all the rounds are spent, and only the defendant's claim remains, he should be allowed to testify what he loaded and his expert should be allowed to testify about what particular set of components does in his testing, the prosecution can then challenge the defendant's credibility, and the jury can then weigh his credibility.

If we were arguing the facts of the Daubert case, you'd be saying the paintiff would not be able to introduce his expert testimony because there is no proof he actually consumed the defendant's medicine.

918v
January 8, 2012, 04:47 PM
Wait...

I have it!

Videotape yourself making your self-defense handloads and post it on youtube. Then wear a helmetcam everywhere you go.

Thank You, thank you very much.

Sam1911
January 8, 2012, 04:50 PM
The irony of all this hoopla is that no one ever said that the risk was great or even statistically significant.


Perhaps this speaks to why this debate rages on: It HAS been suggested over and over again that the risk is real and significant. We even have a Sticky thread here in the S,T,&T forum that states that these are issues anyone engaging in preparations for self-defense needs to concern themselves over.

I am not familiar with all of Mas' writings, and I have to admit I've never taken his classes, but I've read and been told that this is a factor he considers important enough to mention as significant in the limited space of a book or class lecture.

(In fact, I've even heard that he will refuse to assist in a defense if reloads were used -- though I honestly don't know that he ever said such a thing.) I can certainly acknowledge that the matter is believed to be so important to him that his name is cited as authoritative in just about every one of these discussions -- along with the Bias case which now seems to be not at all what anyone, including Mas, thought it was.

To discover that this entire question is about as unlikely to be an issue as, say, being struck on the head by a meteorite at the moment you pull the trigger is distressing, and it makes me feel like we're doing our members and the public a disservice.

There are enough things for folks to actually worry about regarding justifiable shootings. Enough points of law, questions of skillset, mindset, tactics, (heck, even which caliber to use :rolleyes:) guidelines for dealing with first responders, permutations of justification and rights...this appears to be a distraction which has absorbed the attention of all of us to a disproportionate degree.

It seems that if our sticky needs to address this issue at all it should be as a sidebar with the caveat that this is a completely hypothetical matter that lawyers enjoy debating the infinitesimal possibilities of, rather than a real-world issue that has caused harm to anyone, anywhere, so far as anyone can tell.

BullfrogKen
January 8, 2012, 05:02 PM
One more time: the reasons have been explained on THR in summary form numerous times, but for those who choose to not accept the explanation, and for those for whom in depth legal study of the subject would not be practical, the only viable remedy would be to spend a half of day with a very patient and understanding expert in current evidentiary principles and the scientific process.

I have seen this explained numerous times. Each time the evidence to support the inadmissibility of handloaded ammunition has been the Bias case. And I think we've seen here not only has the story about the Bias case been called into question, it has been shown to support the polar opposite opinion of the admissibility of handloads in trial.

I have spent more than a day with the professionals you suggest, and I don't share your opinion.


Do you somehow really believe that a test would not be questionable if the test sample used were questionable?

I think we've shown here that reliability upon the test sample can be achieved. But if there's still some apprehension that the test sample you have your private lab develop will be impeached, subpoena the bench notes from the state's Forensics lab. Determine what they recorded when they disassembled the evidenciary ammunition, and use it.

Sam1911
January 8, 2012, 05:18 PM
Most people who have a working knowledge of the subject understand why evidence involving exemplar samples that were not produced under strict processes with strict independent verification would fail to meet the standard.

Consider this: as a judge, you have to decide whether certain materials and data are sufficiently reliable, verifiable, and free from suspicion to to enable their proper use as evidence in a trial. If you can be assured that (1) the materials were manufactured, packaged, and shipped by an ISO certified concern(2) that the in-process and lot acceptance test data and calibration test data were independently prepared and maintained and (3) that the data included a large enough sample to establish error rates, you would have no reason to exclude the evidence.


I certainly do see how that would be the most optimal path for producing admissible testing material.

However, as I said before,
...Ken's friend reports that over the course of his career they did do exactly these things and had them admitted as evidence, including this:

The conversation I had last night discussed a case where a man used a round of .45 ACP ammunition dating back to the 1940’s. The lab simply could not find ammunition from that time period to use in testing. So the technician identified the components and loaded some that were as similar as possible to the ammunition and used it for testing.


By your example, such should not be admissible -- or should be very VERY easily challenged and disallowed. And yet, that seems to not have happened, at least not in enough cases for Ken's expert pal to mention it.

Instead, what seems to be pertinent to the court is whether the testing is reasonably illustrative, and not clearly bogus. As we all know, gun shot residue patterns are not identical from one shot to the next, even between two rounds from the same box of factory ammo. We also know that what is proved by GSR testing is not that the shooter stood at four feet, three inches, and 37/128ths of an inch away from the entry point on the victim, but rather that the muzzle was between this and that distance away, or that the pattern produced was approximately consistent with what is observed from a shot taken as the defendant says, or that it clearly is not. Or that it the results are too close to call = inconclusive.

IF the results of a GSR test produced data that had to be precise to several decimal places in order to be illustrative, the ISO certified, large lot size, etc. would certainly come into play. It would simply be too easy to fudge things to a degree that would show an erroneous result.

But as Ken has pointed out (and some of the arguing in Bias' trials supports) the things GSR testing often proves are not so precise. They can't be and they don't have to be. In fact, such testing has been performed and submitted in cases where neither a gun nor any ammo were taken into evidence from the crime scene. The lab used approximately representative ammo and an approximately representative weapon to produce data which made a blanket statement that a claim was or was not realistic.

You may be right, that a judge may sustain an objection and disallow an independent test because there is no ISO certification possible with the handloaded ammo, but it seems such an objection would be quite arguable.

BullfrogKen
January 8, 2012, 05:36 PM
(In fact, I've even heard that <Mas> will refuse to assist in a defense if reloads were used -- though I honestly don't know that he ever said such a thing.) I can certainly acknowledge that the matter is believed to be so important to him that his name is cited as authoritative in just about every one of these discussions -- along with the Bias case which now seems to be not at all what anyone, including Mas, thought it was.


And that's OK if Mas won't. There are expert witnesses who will. I personally know a few of them.

There aren't many individuals who understand the workings of a state ballistics lab. Fortunately for us, many of those who work for the state retire early on nice pensions and go on to offer their services to the defense in private work.

I understand Carl Leisinger, who worked throughout the entirety of the Bias trials, is now retired from the New Jersey State Police. I have no idea if he now does work on retainer. But he would certainly be among my list of someone I'd approach if I needed such assistance.


Anyway, our rival Steerlers are about to play the Broncos, and I'm going to be occupied.

Lord, be with the Tebow and break Ben's leg. Amen.

Kleanbore
January 8, 2012, 05:56 PM
Posted by BullfrogKen: I have seen this explained numerous times. Each time the evidence to support the inadmissibility of handloaded ammunition has been the Bias case.First, handloaded ammunition per se is not inadmissible. The issue is that GSR tests from ammunition other than factory loads do not meet the rules of admissibility 9as I understand them) when the purpose of submitting the estimate is to prove or disprove something about the approximate distance of shots fired. Either side in a civil or criminal case can challenge the evidence before the trial, should it choose to do so, and it is likely that the challenge would be upheld under the rules.

I would not rely on the Bias case to support anything. It may imperfectly lllustrate a few things, but it doesn't really prove anything at all.

I have spent more than a day with the professionals you suggest, and I don't share your opinion.

My understanding is based on having taken law courses on this and related subjects and on working for an extended period with attorneys and other nationally known experts in the field of the rules of evidence and in related fields, such as the design of systems of internal controls and ISO certification.

Posted by Sam1911: ...Ken's friend reports that over the course of his career they did do exactly these things and had them admitted as evidence, including this:

Originally Posted by BullfrogKen
The conversation I had last night discussed a case where a man used a round of .45 ACP ammunition dating back to the 1940’s. The lab simply could not find ammunition from that time period to use in testing. So the technician identified the components and loaded some that were as similar as possible to the ammunition and used it for testing.By your example, such should not be admissible -- or should be very VERY easily challenged and disallowed.The two very key questions are, was the evidence challenged, and for what specific purpose was the evidence submitted?

One of the things that a prosecutor can do is test factory loads with the intention of introducing the test results into evidence for any purpose; he or she will succeed, at this point in time, though that may change. Another is to test handloads for the purpose of demonstrating something about distance of the shots, and that may work, because the defense may not have a tactical reason to challenge; or it may not. Another is to test reloads or similar lads for some purpose in which the potential differences from the loads used in the case would have no material dispositive influence on the conclusions to be argued. Still another is to perform the tests with no intention of introducing them as evidence, for the propose of developing a better ideas of what did happen to help them build their case.

Another thing the prosecutor can do is challenge the admissibility of test data submitted by the defense. Unless the sample for those data were produced by a factory, such a challenge is very likely to succeed, under the rules of evidence..

Instead, what seems to be pertinent to the court is whether the testing is reasonably illustrative, and not clearly bogus.Actually the threshold is not to show that the exemplar rounds and manufacturing data are "not clearly bogus". Rather, the problem lies in showing that there is no reasonable basis for questioning whether the evidence is verifiable--that it is in fact what it is supposed to represent.

As we all know, gun shot residue patterns are not identical from one shot to the next, even between two rounds from the same box of factory ammo.True, and should someone ever decide to challenge the admissibility of GSR data per se, we may have an entirely different ball game.

You may be right, that a judge may sustain an objection and disallow an independent test because there is no ISO certification possible with the handloaded ammo, but it seems such an objection would be quite arguable.Not if the basis for the ruling was clearly consistent with current SCOTUS or applicable state supreme court rulings on the subject.

I do not have access to the eight hour presentation I once received on the specific subject of ensuring the admissibility of evidence, or to the notes I took during the class that was conducted by several attorneys and data integrity experts, or to the test handouts, but I cannot think of a single sustainable reason for appealing a ruling against the admittance of test data base on samples other than factory product (whether ammunition or anything else assuming the ruling cited relevant parts of the current rules of evidence.

Of course, it just might happen....

Kleanbore
January 8, 2012, 06:35 PM
Posted by Sam1911: It HAS been suggested over and over again that the risk is real and significant.

We even have a Sticky thread here in the S,T,&T forum that states that these are issues anyone engaging in preparations for self-defense needs to concern themselves over. We posted a Sticky because the same subject, and many of the same misunderstandings ("a good shoot is a good shoot"; "no one has ever been convicted for using handloads" "there is no reason why my evidence would not be admitted"; "that was not a self defense case") keep coming up. They have come up again here.

We did not discuss the Bias case in that Sticky, except as it has come up in related posts that are linked in the Sticky.

The significance of risk is a matter of likelihood and of potential consequences. Most of us do not like the idea of being convicted of a serious crime if we can avoid it.

We have explained over and over that the handloads issue will become dspositive only if all of the following occur at the same time:

Evidence supporting a defense of justification is sparse or unclear.
There is testimony or other evidence that contradicts the defendant's accoiunt of the incident.
The distance at which the shooting occurred, and/or a discrepancy in accounts of same, is crucial to the case.
The distance is something that could be roughly approximated by GSR pattern data, or key testimony about the distance dould be suppprted or contradicted by such data.
It is important to the defense to introduce GSR pattern data based on the ammunition used.


To discover that this entire question is about as unlikely to be an issue as, say, being struck on the head by a meteorite at the moment you pull the trigger is distressing, and it makes me feel like we're doing our members and the public a disservice. Having to shoot someone is unlikely also. Should you have to do so, it may occur inside your house,and with a broken door. There may be witnesses whose recollections do support your account (in his classes, Mas explains why honest witnesses often do not recall what actually happened). The perp may not have friends who say they saw it all. There may have been a security camera. The distance may not matter.

But: absent those conditions, the likelihood that you may want to introduce GSR test results will likely be much, much higher; it's a simple matter of conditional probability; and if perchance you did not use factory loads, you would likely be out of luck.

Based on the above, I would have no concerns at all about keeping handloads in a bedside firearm. The problem for me is that I carry the same firearm with me when I go outside.

And frankly, I do worry that if I am accosted somewhere in a parking lot at night and have to use deadly force in self defense, there may well be a sparsity of supportive evidence. I do not consider the possibility to be at all like that of being struck by a meteorite.

It is a risk that I can mitigate somewhat at no cost.

This thread is incorporated into the Sticky.

357 Terms
January 8, 2012, 07:05 PM
This thread is incorporated into the Sticky

I think we could do better than that. Some of the points made by Sam and Ken in this thread deserve to be heard on their own.

kleanbore
I do not consider the possibility to be at all like that of being struck by a meteorite.



You may be right, I think someone HAS been struck my a meteor.

Sam1911
January 8, 2012, 07:10 PM
Well, thank you heartily for discussing this. I feel like I understand the odds & stakes better now than I did a couple of days ago.

BullfrogKen
January 9, 2012, 01:27 AM
The issue is that GSR tests from ammunition other than factory loads do not meet the rules of admissibility 9as I understand them) when the purpose of submitting the estimate is to prove or disprove something about the approximate distance of shots fired.

Well it appears the several Judges presiding over the Bias case allowed them. And the issue was key to the prosecution which disputed the death was a suicide. Just because the prosecution got it in doesn't mean the defense can't. There are a whole host of occasions when the state establishes a basis that years later becomes an opportunity for the defense to exploit.

True, and should someone ever decide to challenge the admissibility of GSR data per se, we may have an entirely different ball game.


Really?

The science has only been around for about 70 years.

http://www.nij.gov/training/firearms-training/module02/fir_m02_t15.htm

1975
In response to the need for forensic training, the FBI Laboratory offered a "Gunpowder and Primer Residues" course, the first of many training courses for firearm examiners.

Various Firearms Examiners and labs had been using the technology long before the FBI designed a nationwide training program. If somebody is going to successfully challenge the science, they better get around to doing it soon.


We'll look at another case. This is the case of Commonwealth v Briggs.

http://caselaw.findlaw.com/pa-supreme-court/1553074.html

On March 31, 2004 Daniel Briggs shot and killed two Bradford County, PA deputies who came to his home to serve some warrants on him and members of his family. Deputies Christopher Burgert and Michael VanKuren found Briggs when he was in his junkyard pulling radiators from cars. He used a Smith and Wesson .357 magnum revolver to shoot them at close range as they approached Briggs to take him into custody.

He fired all the rounds in the revolver, hitting both Deputies. Deputy VanKuren was shot twice, and Deputy Burgert three times. VanKuren fell to the ground, paralyzed as one round hit his spinal cord, and quickly bled to death. Burgert fell to the ground from the force of a round hitting his vest and penetrating his abdomen. The other entered the right side of his chest, pierced both lungs and exited the left. Briggs then put the empty gun to Deputy Burgert's face and demanded he put his service pistol (a .40 caliber Glock) on the ground. Briggs picked it up and pointed it at him. Burgert reached for it and the gun discharged, hitting Burgert in the thigh.

Briggs ran with both guns into his house, changed his clothes, and fled. According to the medical examiner, Deputy Burgert died within minutes from asphyxiation.

Just as a sidenote, I often make the statement that people are often hit in the hands and arms in gunfights. Both deputies sustained gunshot wounds to their hands and forearms in this case.


This case does not involve handloads in the sense you and I think of them. But it does involve testing of a handgun used at the scene, taken when Briggs fled. Police conducting the manhunt thought the murder weapon might be a long gun because the nature of the injuries were so severe, especially considering the Deputies both wore ballistic vests.

Briggs was captured the next day a mile from his home, without the gun. He would not tell the State Police Troopers where it was because he was a convicted felon who could not possess firearms. The actual gun used was not determined until three months later when it was found by two boys chasing a skunk through the woods. They found it under a pile of rocks along with Deputy Burgert's Glock. Found "secreted in a cavity underneath the rock were four unfired bullets, three of which were .357 Magnum cartridges and one which was a .38 caliber cartridge"

Subsequent ballistics tests performed on both recovered weapons indicated that the bullet lodged in Deputy Burgert's bulletproof vest and the one imbedded in the vertebrae of Deputy VanKuren's lower back came from the Smith and Wesson .357 Magnum revolver. N.T. Trial, 1/30/06 MS, at 112. The tests further established that the bullet taken from Deputy Burgert's thigh was fired from the Glock pistol. Id. In addition, ballistics tests showed that seven Winchester .357 Magnum shell casings recovered from various places on the ground in the Briggs' junkyard were discharged from the Smith and Wesson .357 Magnum revolver. N.T. Trial, 1/30/06 MS, at 101-102, 113


The actual nature of the rounds used in the killing were unknown. The revolver was emptied of all it's rounds in the fight. The Winchester casings found around the junkyard might have been those Briggs used in the fight, but he wasn't talking about it.

It was important to the state, though. Extensive examinations determined that the rounds used were factory-produced .357 magnum rounds of a nature that Winchester factory no longer makes. The plant was contacted, but they had none. So much for the case that factories "put away" samples from each lot and keep them forever.

The State Police's Ballistic Lab developed rounds substantially similar to what the factory once produced. The testing showed that the shots Briggs fired with the .357 magnum were made at very close range. This issue was so important that it was considered upon appeal. Because you see, this was a 1st degree murder case, and the Commonwealth sought the death penalty. It had to convince the jury Briggs actually intended to murder Deputies VanKuren and Burgert, and their deaths weren't merely the result of gunplay without specific intent and malice to kill.

Thus, in order for a first-degree murder conviction to be sustained, the Commonwealth is required to introduce evidence at trial which establishes beyond a reasonable doubt the following factors: (1) a human being was unlawfully killed; (2) the accused bears responsibility for the killing; and (3) the accused acted with malice and a specific intent to kill. Commonwealth v. Reed, --- Pa. ----, at ----,990 A.2d 1158, 1161 (2010); 18 Pa.C.S.A. §§ 2501, 2502(a).

Although Appellant denied in his declaration at the jail infirmary that he meant to kill the deputies, the specific manner in which he shot each of them belies this claim. Using a Smith and Wesson .357 Magnum revolver, Appellant shot, at close range, Deputy VanKuren twice in the chest and Deputy Burgert once in the chest and once in the abdomen. The chest and abdomen house the human body's chief circulatory and digestive organs, as well as a network of vital arteries and veins which supply them and, thus, are vital areas of the body. Appellant's deliberate and repeated use of a firearm to shoot the deputies in those areas clearly establishes his specific intent to kill both men with malice. The evidence was therefore sufficient to support the jury's conviction of Appellant for two counts of first-degree murder.


So we see here a death penalty conviction, upheld upon appeal, where the Commonwealth made a case with ammunition,


unknown by the state because Brigg's wouldn't disclose it;
determined to be factory ammunition that was no longer produced;
with ballistics testing presented in front of a jury using ammunition the forensics lab developed that was substantially similar


Furthermore, what I found especially interesting here is on appeal Briggs filed a “Denial of Appellant's motion for physical testing of pieces of evidence”.

This gets a bit convoluted, but Briggs filed an oral motion, through counsel, in pre-trial hearings to have some items in evidence forwarded to a private forensics laboratory - R.J. Lee Group, Monroeville – so they could conduct testing on it. Among these was one of the rounds found with the gun hidden under the rock.

The Commonwealth responded by requesting the defense make an offer as to why the requested testing was material to his defense.

What happened next was stupid on Briggs’ part.

Appellant refused, stating:

Your Honor, we believe that under Rule 572(b) [sic] subsection (1)(f), that we're permitted to examine any tangible evidence. It's a mandatory discovery. And that's our position. We-we have discussed whether it is our burden to come forth and to tell you in open court before the Commonwealth as to the reason behind that. I will tell you that it is Mr. Lepley (Brigg’s attorney) and my opinion that to do that would divulge our theory of the case, and that we do not believe that that's in the interest of our defendant to do that. And at this point in time, our request is-as you know, the one in-regarding Mr. Wently looking at the cartridges and taking ‘em apart. The other one is to have these items forwarded to the R.J. Lee group for examination. That's our offer. We believe that we're entitled to do that under the applicable discovery rules.


The trial court denied the motion. I’ll let you read it for yourself.

As noted above, Appellant refused at the hearing to offer a reason why the specific testing he requested was necessary to his defense. Further, even after the trial court indicated at the hearing that it would be denying the motion, Appellant's counsel reiterated his refusal to make an offer of proof regarding the reason for the request, stating he would not be calling his firearm expert to testify what he would be doing with the items. Additionally, he admitted to not having anyone from the R.J. Lee Group present to testify and explain what testing that organization would be conducting. N.T. Hearing, 10/7/05, at 6-7. Under these circumstances, the trial court denied the motion for testing, citing this failure to lay a proper foundation for the discovery request, and its concern for the potential destruction of evidence, i.e., “the ‘breaking down’ of cartridges.” Trial Court Opinion, 10/12/05, at 5. According to the trial court, it had, in fact, previously granted permission for Appellant to conduct tests on the evidence which could possibly consume the evidence, provided that a representative of the Commonwealth was present for oversight. Trial Court Opinion, 7/6/07, at 5. Appellant presented no rationale at the hearing as to why this requirement could not be met during the conduct of the testing he requested.

So, Briggs could have even had his own private lab conduct tests on the ammunition found and other articles, provided someone from the Commonwealth was present. He decided not to do it, and later changed his mind. What I find interesting though is the judge actually granted Brigg’s defense team permission to take evidentiary ammunition to a private lab for examination. They were even prepared to let him conduct tests that might destroy it.

How interesting.

Anyway Pennsylvania got its conviction, and the death sentence. The death sentence was awarded because the state could prove Briggs murdered the Deputies, shooting them in their vital organs at close range, an act that by statute in Pennsylvania is on it’s face is indicative of specific intent and malice. They showed it in part through circumstantial evidence – Gun Shot Residue testing that the Commonwealth’s Forensics Lab developed from ammunition that was substantially similar to Winchester’s obsolete ammunition.


Why is this significant? Because the court permitted a method used by the Forensics Lab to develop ammunition that was substantially similar, but not exactly similar, to the rounds used in the Deputies deaths. Had it not, Brigg’s might not be facing the death penalty.

Frank Ettin
January 9, 2012, 01:46 AM
...Because the court permitted a method used by the Forensics Lab to develop ammunition that was substantially similar, but not exactly similar, to the rounds used in the Deputies deaths. ...I've got to run, but need to comment here.

What is significant here is that --

[1] The forensics lab was able to identify the particular factory ammunition fired.

[2] At time the manufacturer no longer had samples. But don't you think that the folks at Winchester were able to provide detailed information regarding the components for and specification of that ammunition?

[3] And therefore the examiners would have been able to construct exemplar ammunition based on detailed information from the manufacturer, an uninvolved third party.

357 Terms
January 9, 2012, 08:33 AM
fiddletown[2] At time the manufacturer no longer had samples. But don't you think that the folks at Winchester were able to provide detailed information regarding the components for and specification of that ammunition?


Apparenly not.

BullfrogKen
Extensive examinations determined that the rounds used were factory-produced .357 magnum rounds of a nature that Winchester factory no longer makes. The plant was contacted, but they had none. So much for the case that factories "put away" samples from each lot and keep them forever


As has been pointed out before, even factory ammunition makers sometimes changes powders on some ammo from lot to lot. There would be little chance to get "detailed" info from just spent casings.

Kleanbore
January 9, 2012, 09:51 AM
Ken, there is no question that GSR distance testing has been around for a long time, is widely accepted by experts in the field, and is routinely used in forensic investigations and in criminal and civil court cases.

GSR testing was used in one case cited by fiddletown that ended in acquittal.

My comment that that might change at some point in time in some jurisdictions is based on the fact that GSR pattern tests happen to show up on a list of outlining a number of things that have not yet been validated as acceptable under the Daubert rules.

Nothing has happened yet that I know of, and the possibility of a change at a later was only mentioned for completeness.

Commonwealth v. Briggs is interesting, but rulings in trial courts do not constitute legal precedent. Further, I'm not able to judge whether showing that rounds are "substantially similar" would suffice for all purposes, while it might well serve the purpose for showing beyond a reasonable doubt that similar rounds from that the rounds could do the damage and that the rounds were fired "at close range". The point is that the jury was presented with evidence. Depending upon the source of the exemplar material, that will not necessarily be allowed.

It occurs to me that I may have introduced some confusion here by referring to factory manufacture in an ISO certified facility. Such product will meet the requirements for admissibility; it might be the only thing that a defendant might be able to get introduced if the evidence is challenged; and it is what I would want to use; but that's not the underlying requirement.

Fiddletown has put it better in a number of posts o this subject.

The real requirement has to do with the independent verifiability of the composition, consistency, and origin of each item introduced and of their relationship to the items said to have been used. Again, this isn't something that is peculiar to ammunition; it could apply as well to insulating foam that no longer exists.

As a matter of fact, it may benefit us to use something else for discussion, partly because, as handloaders, we will not believe that anything we do would not be very close to perfect, and partly because many gun people simply cannot understand that their word in a self defense case will not be accepted at face value.

I'll go back to lengthy discussions I had on the subject of ensuring admissibility. Here are some of the points came up repeatedly:


"That wouldn't meet the requirements, because he or she (being the person whose case requires the acceptance of the evidence) created the material.
"...because he or she controlled the process by which the material was created.
"...because the process has not been independently tested.
"...because quality checks were not independently performed.
"...because complete records have not been maintained.
"...because the records have not been independently maintained in a manner that ensures that there nothing has been lost, taken, added, or changed.
"...because there is no log of changes to the process that may have occurred.
"...because the consistency of the output has not been independently re-tested after each process change.
(and so on)...


These are real. The discussions included attorneys, auditors, data integrity experts, IT folks, process analysts, and others who had a job to do.

I think you can probably see from that why I jumped a step by going to ISO certification. By the time we had finished, we were essentially talking about that sort of thing.

Will the data developed by the State Police Ballistic Lab meet the requirements? You bet (depending upon the intended purpose of the evidence), if they followed their carefully developed procedures and made no errors. It is their business to know how to manage and control evidence.

And the fact that they were not trying to demonstrate something about the contents of home-made sauerkraut fermented by a defendant is a key point, also.

Kleanbore
January 9, 2012, 04:48 PM
The Sticky has been modified for accuracy as a result of this discussion.

bds
January 12, 2012, 03:02 AM
I thought the National Institute of Justice, Firearm Examiner Training website might be resourceful to this thread's discussion, particularly Module 12 that's titled, "Gunshot Residue and Distance Determination" - http://www.nij.gov/training/firearms-training/module12/fir_m12.htm


Distance Determination - http://www.nij.gov/training/firearms-training/module12/fir_m12_t06.htm

Powders and Residues

Burned or partially burned bullet propellants and other gunshot residues are expelled from the muzzle during the firing process and can be used to determine the distance of a muzzle from a garment or other surface at the time of discharge.

When a firearm discharges, the burning of the propellant powder immediately generates a large amount of heat and gas inside the cartridge, providing the pressure required to expel the bullet.

Gunshot residues are composed of the following:


Primer residues from the combustion of the cartridge priming mixture when the primer was struck by the firing pin
Residues resulting from the burning of the propellant
Material generated by the interaction of the bullet with the inside of the barrel
Unburned and partially burned powder



Significance of Results

A prime consideration in the interpretation of any type of gunshot residue is that conclusions must be given as a result of the presence of residue(s). All gunshot residues and physical effects should be mutually corroborative and consistent unless some extraordinary circumstance existed before, during, or after a shooting incident. Thus, the results of the Modified Griess Test, the Dithiooxamide Test, and the Sodium Rhodizonate Test should not be in conflict with each other or with any physical effects present.

The absence of gunshot residue cannot be used as a basis for distance determination. Only residues that are observed as present are a basis for reproduction and comparison.

Residues may be absent for a number of reasons:

Careless evidence handling
Life-saving efforts of emergency medical personnel
An intervening object at the time of discharge
Masking of gunshot residues by dried blood or other debris
Shot fired from a distance beyond the maximum distance for the deposit of any residue


Contact Shot

The most basic type of distance determination occurs when the muzzle of the firearm is in contact with the target at the time of discharge. When fired at close range, the bullet, high velocity gases, and residues commonly cause gross physical effects and residue deposits that are easily observed by the unaided eye.

The physical effects that indicate a contact shot may include


ripping and tearing of cloth,
burning and/or singeing of cloth,
melted tips of artificial fibers,
heavy vaporous lead (smoke) deposits around a suspected bullet hole.


The Modified Griess Test and the Sodium Rhodizonate Test may yield positive results and are confirmatory in nature if the physical effects are sufficient to support the conclusion of a contact shot. Because these effects indicate a contact situation (regardless of caliber or cartridge type), no suspect firearm is required to confirm distance.


Nitrite Residues

As the muzzle-to-target distance increases, the presence of nitrite residues becomes more important in determining distance. Patterns of chemically detectable nitrite residues of varying size and density can be found around a suspected bullet hole. These are extremely useful deposits and are often not visible, even microscopically. Through the application of the Modified Griess Test, these patterns can be detected. The patterns increase in diameter and decrease in density up to a point where no discernable pattern exists, simply scattered positive results. At greater muzzle-to-target distances, no nitrite residues will be deposited.

When a pattern of nitrite deposits is found around a suspected bullet hole, it is possible to reproduce this pattern using the suspect firearm and ammunition. When only scattered nitrite residues (not in a pattern) are found around a suspected bullet hole, it is possible to fire a succession of known distance patterns using the suspect firearm and ammunition to determine the maximum muzzle-to-target distance.

Prior to the ability to chemically test for nitrites, visible unburned or partially burned powder residues were used as a basis for a pattern or for a maximum distance determination. However, this obsolete approach ignores the frequently invisible nitrite residues and limits the specificity of the conclusion. Visible examination without chemical confirmation does not constitute a complete examination or an appropriate basis for conclusions presented in court.


Residues Consistent with the Discharge of a Firearm

In many instances, the discharge of a firearm will result in the deposit of particulate lead around a bullet hole. This deposit may be in the form of tiny solidified droplets resulting from the surface erosion of a bullet during its passage through the barrel, ejecta from a dirty barrel, or lead shavings from the surface of a bullet.

Such residues may be visible and are chemically detectable. However, these residues are not reproducible and therefore are not useful for a distance determination. On the other hand, they are consistent with the discharge of a firearm.


Reproduction of Results

To reproduce results, the suspect firearm must be available. The size and density of residue patterns vary based on a combination of factors that may include the firearm, ammunition, barrel length, caliber, powder type, and powder charge. When residue patterns are reproduced in a shooting case, it is essential that the firearm and ammunition used in known-distance testing be as similar as possible to that used in the case.

Sources of testing ammunition may include


evidence ammunition from the case, per laboratory protocol,
purchased ammunition (same brand, stock number, with the same powder, projectile and primer components),
reference ammunition (same brand, stock number, with the same powder, projectile, and primer components).


Note: Examiners should always be aware that reference collections/database programs are seldom all inclusive; all available resources and examiners should be consulted.

Selection of test target media is also an important factor. For the majority of cases, chemically uncontaminated white twill jean cloth is suitable to approximate the characteristics of a variety of fabric types.

However, there are instances in which the physical characteristics of the fabric of a victim’s garment preclude the reproduction of a meaningful test pattern. For example, artificial fibers, leather or plastic, or an open weave or fuzzy texture may require that fabric be purchased to duplicate the evidence material. It may be obtained at a fabric store, or a portion of the evidence may be used, based on laboratory protocol.

If the questioned surface is drywall, paneling, upholstery, etc., the same alternative sources apply.

Kleanbore
January 12, 2012, 10:38 AM
The above referenced link provides very interesting technical information about how GSR testing is performed today to estimate distance, and about the limitations of the process. It does not provide any information relevant to the subject at hand in this discussion (as attorney fiddletown has explained, what happens in a courtroom often differs from what is done in a laboratory, and that difference is largely dependent upon the intended use of the test results), or to the original question posed by the OP.

For those interested, the link also provides information on a number of other subjects that have come up from time to time: tool-mark identification (that has various applications; often, it comes up in the answer to the question, how would anyone know that a round had been reloaded, or loaded from new components, by someone outside of the factory) and the analysis of bullet markings to identify the forearm from which bullets have been fired.

The same information is contained in widely used textbooks, which are costly indeed. Thanks for the links.

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