Carrying Handloads, yes or no?


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Comrade Mike
August 5, 2013, 03:50 PM
Based on my reading into this topic I may be opening a can of worms here, but I was curious as to the idea of keeping some hand loads in my night stand revolvers. Reason being, they shoot better than any defensive ammo I've tried and they're easier on recoil and muzzle flash.

Are there any legal ramifications if you defend yourself with hand loads? Is this a good idea or should I stick to factory stuff?

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horsemen61
August 5, 2013, 03:53 PM
Well putting aside all manner of legal ramifications I carry my handloads the reason I chose to is because I know come crunch time it won't let me down and my handloads are tailor suited to my specific gun not some generic load for every gun in that chambering some will tell you it is bad I say go for it :D

Muddydogs
August 5, 2013, 04:15 PM
This has been discussed to death, do a Google search and you will find more then you want to know then you can make your own decision. Myself I carry my handloads.

elwoodm
August 5, 2013, 05:10 PM
i would not worry about it unless you are loading a super fast round or some special purpose bullet. anything that comes close to factory spec. that shoots good in your gun will do. my carry gun has reloads just say the factory stuff is too powerful for night stand use. that would show you are being careful with what you are doing.

buck460XVR
August 5, 2013, 06:17 PM
This has been discussed to death, do a Google search and you will find more then you want to know then you can make your own decision. Myself I carry my handloads.


ditto

41 Mag
August 5, 2013, 06:53 PM
I haven't bought any factory handgun ammo in over 10yrs. When I did I thought it was over priced then.

If I am ever faced with having to defend myself or my family it will be with my personal handloads.

beeenbag
August 5, 2013, 07:08 PM
For the most part, I roll my own defense loads.

Ya know, for everyone advising against reloading defensive carry rounds, it sure is hard to find any 124g gold dots in .355, or any gold dots for that matter.

BigN
August 5, 2013, 07:36 PM
I reload to use them.

BYJO4
August 5, 2013, 07:46 PM
I use my reloads for everything.

mljdeckard
August 5, 2013, 08:14 PM
It is POSSIBLE that there could be legal complications. But for me, that possibility isn't strong enough to break a tie. (Lots of things COULD happen.) My wife has handloads in her 9mm right now, because it's all we could get.

Casefull
August 5, 2013, 08:19 PM
Handloads in most of the handguns. If you have to shoot someone the least of your worries will be what kind of ammo you shot the guy with. I know there are cases...who cares.

hovercat
August 5, 2013, 08:35 PM
Unless you shoot a cop or politician, they will not CSI your ammo. It will be logged in as evidence as 2 empty cases 9mm 1 Winchester and 1 Federal. 13 unfired, 3 PMC, 2 frontier, 4 federal and 4 Remington (assuming you are shooting mixed brass.) Unless you say something, that will be all.

Rule3
August 5, 2013, 08:42 PM
ditto

double ditto;)

I believe in your research you should have found that there has never been a case that a person was found guilty solely on the use of hand loads/reloads.

rcmodel
August 5, 2013, 08:53 PM
In my view, reloads are no different then a freshly scrubbed cast iron skillet, a recently re-sharpened butcher knife, or a claw-hammer you put a new handle in last year.
Or grandpas old Model 12 trap shotgun and his clay target reloads he left you in his will if that's all the gun you have in the house.

If you have the justified need for deadly force self-defense?
It does not matter legally what is closest at hand to do it with.

If the SD deadly force is justified in the first place??

It should make no difference what you do it with, whether it is reloads, or the above refurbished kitchen & shop hand-tools.



But I am not a lawyer, and I Did Not stay in a Holiday Inn Express last night.

I will say however, if someone breaks into my home, or accosts me on the street with life threatening intentions?

He is as likely to get shot with my hand-loads as 'magic bullet', $$Buck a shot factory loads I can't afford to practice or function test with.

At least I know all the cases have flash holes in them.
Which is more then I can say for a couple of GI 5.56 NATO rounds I had 'pops' with in the service a long time ago.

rc

Comrade Mike
August 5, 2013, 09:18 PM
It seems to me the general consensus is use the best tool for the job, and that it's best to carry defensive ammo you can practice with a lot.

the count
August 5, 2013, 09:30 PM
I have been reloading for 5 years now and have probably made well over 10,000 rounds of various handgun calibers. And even now I once in a while come up with a round that (for whatever reason) is not quite up to spec. Not the powder load but maybe the OAL is off, or I did not properly factory crimp it or whatever... (never mind goof ups like upside down primers). It does not chamber or fire properly. In a life or death situation this would sux big time. So I would probably recommend to use good (as in non russian/maximo cheapo) US made ammo.

Catpop
August 5, 2013, 09:44 PM
When a big game hunter goes on a safari, he tests every round carries to load from the magazine and chamber without flaw! And his quarry cannot even shoot back!

Potatohead
August 5, 2013, 09:48 PM
Unless you shoot a cop or politician, they will not CSI your ammo. It will be logged in as evidence as 2 empty cases 9mm 1 Winchester and 1 Federal. 13 unfired, 3 PMC, 2 frontier, 4 federal and 4 Remington (assuming you are shooting mixed brass.) Unless you say something, that will be all.
This seems to make sense to me..never really thought about it like that.

rcmodel
August 5, 2013, 09:55 PM
Not the powder load but maybe the OAL is off, or I did not properly factory crimp it or whatever... (never mind goof ups like upside down primers).Then you need to further refine your reloading procedures, and/or final inspection before boxing it for use.

I can honestly say I have never ran into problems like you describe in 50+ years of reloading about everything that shoots.

But I might be more just a bit more OCD then you are?? :o

rc

zxcvbob
August 5, 2013, 10:29 PM
I have handloads in my home defense guns. I *usually* carry factory ammo (Fiocchi Extrema XTP's) Pretty sure the chances of anybody caring about GSR tests are pretty much zero inside my house; the longest shot I can possibly take is about 20 feet, and that won't be until after they've got past the dogs. I'm not going to shoot anyone out in the yard unless they shoot first.

Out in public, it isn't always so clear who the bad guy is (just ask George Z)

bluetopper
August 5, 2013, 10:32 PM
As I've said here in the past, a justified shooting is a justified shooting, no matter the ammunition.

rcmodel
August 5, 2013, 10:37 PM
(Fiocchi Extrema XTP's)How do you know an overzealous prosecutor won't come after you for using that 'Furan' deadly ammo??

He might think 100% American handloads are better then Italian sounding ammo with American bullets in them!!! :D

rc

zxcvbob
August 5, 2013, 10:48 PM
How do you know an overzealous prosecutor won't come after you for using that 'Furan' deadly ammo??
He might think 100% American handloads are better then Italian sounding ammo with American bullets in them!!!


It says "LOADED IN THE USA" in small print on the back of the box. Made in Ozark, MO. (How do you pronounce "Fiocchi" in hillbilly?)

longdayjake
August 5, 2013, 11:03 PM
If you have to shoot someone the least of your worries will be what kind of ammo you shot the guy with. I know there are cases...who cares.

Actually there are NO cases at all. In fact, we just saw the results of a case that was probably the MOST likely to try to demonize the shooter for ANY reason and there is no mention of the type of ammunition he used by the prosecutor.

To be honest I am very happy to see that it looks like the general consensus has changed in regards to this topic. A few years ago you would have seen most guys telling you that our master Ayoob says no so if you do it we will shun you and your name will forever be cursed and spat when spoken. I am happy to see that I am the only one to mention his name in this thread.

Nowadays most of the people that will caution you not to do it are lawyers in California. Cause California is all kinds of messed up.

rcmodel
August 5, 2013, 11:10 PM
(How do you pronounce "Fiocchi" in hillbilly)Mmmm?

I know how they pronounce it in Kansas flat-lander, semi-Ozark hillbilly.

But I can't post it here on THR without getting another infraction. :what:

Mkay?? :o

rc

longdayjake
August 5, 2013, 11:24 PM
Another infraction? I wonder what you could possibly have said to get even one. In fact, I don't think I have ever read anything that you have written that wasn't perfectly appropriate.

If you ask me, THR should give themselves an infraction for allowing that stupid ad with Biden on it. Not only is it false advertising, it is massively misleading.

rcmodel
August 5, 2013, 11:26 PM
Never mind!
Forget I said that!!

I should not have!

Shouldn't have had the second beer tonight.
Or was it the third??

rc

johnandersonoutdoors
August 6, 2013, 12:27 AM
I carry my handloads.

I was trying to remember where I had seen that "danger of prosecution" idea most recently and then it jumped into my head. Last fall while reading through the reloading manuals for the first time I saw it.

On page 57 of the 2nd edition of "Modern Reloading" it is repeated. I don't see anything wrong with carrying handloads.

Frank Ettin
August 6, 2013, 12:32 AM
As I've said here in the past, a justified shooting is a justified shooting, no matter the ammunition. This is completely bogus. The reality is that you will not be the one deciding if you were justified. If you're really unlucky, the question will be decided by a jury at your trial. The issues can arise when you need to establish that your act of extreme violence was justified.

And if you use handloads and it would be desirable to support your clam of justification with expert opinion based on certain ballistic testing, such opinion will in general not be admissible as evidence.

For an extensive discussion of the subject covering several years start here (http://www.thehighroad.org/showthread.php?t=618021).

...Cause California is all kinds of messed up. Really? You think it's just a California issue? Ask these folks if they agree.

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 (http://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 Oklahoma: 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 meat-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.


And note also that two of those cases arose in States with a Castle Doctrine/Stand Your Ground law in effect at the time.

And for a more in depth discussion of the legal issues associated with the use of force see here (http://www.thehighroad.org/showthread.php?t=721597) and here (http://www.thehighroad.org/showthread.php?t=589272).

Use what you like, but there is widespread misunderstanding of the legal issues.

ngnrd
August 6, 2013, 12:40 AM
Frank, did any of those cases hinge on the shooter using handloads?

Jim K
August 6, 2013, 12:45 AM
The concern over handloads was more in the context of a civil suit than in a criminal trial. I also am not an attorney, but I will make a comment. If you do carry handloads, keep your mouth shut about them (and everything else without an attorney). And be careful of "friendly" cops who might want to talk about your gun and ammo.

"Mr. Blotz, do you always use handloads?"

"Yeah, I sure do. I load those little babies with a 110 grain super expanding bullet and 37 grains of hot powder and they will really tear a chunk out of somebody and blow blood and brains all over. When I go out hunting for some %&$& to shoot I like to use really hot loads, yes, sir, officer."

That should about fix things up good.

Jim

Clippers
August 6, 2013, 12:46 AM
I asked this question a while back and after several replies it was locked. It's interesting though, this time around most guys are saying " I use handloads".

Rule3
August 6, 2013, 01:07 AM
Actually there are NO cases at all. In fact, we just saw the results of a case that was probably the MOST likely to try to demonize the shooter for ANY reason and there is no mention of the type of ammunition he used by the prosecutor.

To be honest I am very happy to see that it looks like the general consensus has changed in regards to this topic. A few years ago you would have seen most guys telling you that our master Ayoob says no so if you do it we will shun you and your name will forever be cursed and spat when spoken. I am happy to see that I am the only one to mention his name in this thread.

Nowadays most of the people that will caution you not to do it are lawyers in California. Cause California is all kinds of messed up.

I do believe this is where the "carry factory ammo " belief came from;)

Frank Ettin
August 6, 2013, 01:14 AM
Frank, did any of those cases hinge on the shooter using handloads? In the Hickey case, ballistic evidence became very important for the purposes of confirming Hickey's story. But Hickey was put at a significant disadvantage because gunshot residue swaps weren't taken and the GSR stippling pattern from one of the assailants wasn't recorded.

In the materials I linked to you will also find a discussion (in several places) of the case of Randy Willems (here (http://www.thehighroad.org/showpost.php?p=7698639&postcount=41), for example). Because he used factory ammunition he was able to introduce expert testimony to establish the distance at which he fired the shot that saved his life and thus be clearly exonerated from both criminal and civil liability, as described here (http://www.thehighroad.org/showpost.php?p=7698639&postcount=41):...I can also show you a case in which a defendant, because he was able to introduce expert testimony based on GSR test result established his claim of self defense and thus avoided a criminal conviction.[/b]

In about 1990, police Corporal Randy Willems of he Davenport, Iowa PD was able to successfully show he shot his accuser in self defense, and thus win acquittal, because he used factory ammunition and was able to introduce into evidence expert opinion based on GSR testing that supported his story. Here's what Massad Ayoob said about that case, as quoted by Bartholomew Roberts in this post on TFL (http://thefiringline.com/forums/showpost.php?p=4552265&postcount=43)(emphasis added):

Iowa v. Cpl. Randy Willems

A man attempted to disarm and murder Corporal Randy Willems of the Davenport, IA Police Department, screaming “Give me your (expletive deleted) gun, I’ll blow your (expletive deleted) brains out.” Willems shot him during the third disarming attempt, dropping him instantly with one hit to the abdomen from a department issue factory round, Fiocchi 9mm 115 grain JHP +P+. The subject survived and stated that the officer had shot him for nothing from a substantial distance away. GSR testing showed conclusively that the subject’s torso was approximately 18” from the muzzle of the issue Beretta 92 when it discharged. Randy was acquitted of criminal charges in the shooting at trial in 1990. Two years later, Randy and his department won the civil suit filed against them by the man who was shot.

I use this case when discussing handloads because it is a classic example of how the replicability of factory ammunition, in the forensic evidence sense, can annihilate false allegations by the “bad guy” against the “good guy” who shot him. The records of State of Iowa v. Corporal Randy Willems are archived in the Iowa District Court in Scott County, Davenport, Iowa. Those from the civil suit, Karwoski v. Willems and the City of Davenport, should be at the Iowa Civil Court of Scott County, also located in Davenport, Iowa.......

But the evidentiary issues are discussed at much greater length in the material I linked to, and there's no good reason to cover yet again such well trod ground.

ETXhiker
August 6, 2013, 11:18 AM
At least I know all the cases have flash holes in them.

Exactly.

jolly roger
August 6, 2013, 11:37 AM
I load cast wadcutter 38s for the wife's Model 65 in 357 brass...LESS powerful than most 357s but at 1000 FPS those flat cast bullets are GOING to smart...a LOT. Case can then be made that LESS powerful ammo was used if it indeed became an issue.

The Bushmaster
August 6, 2013, 12:06 PM
Federal cases. 7.8 grains of WSF under a Hornady 185 grain XTP. Works for me.

Lj1941
August 6, 2013, 12:38 PM
Massad Ayoob seems to be the "chosen" expert on these matters and he says NO HANDLOADS. My feeling is if the shooting is justified-no problem. I have bought some self defense loads. I have decided that I can not afford to shoot enough of these rounds to get good with them at $1/ pop,I would be better using some "GOOD" carefully crafted handloads. I recently tried a magazine of handloads that I loaded about 4 years ago and found them deadly accurate. I have decided that from this day forward-I will use my handloads.:cuss:

Frank Ettin
August 6, 2013, 01:03 PM
..My feeling is if the shooting is justified-no problem....We see that sort of silliness all the time and it is a bogus argument. As outlined in post 29, you are not the one who decides if the shooting was justified.

Carry handloads if you must, but folks should not persist in this fundamental error. If everyone agrees that the shooting was justified, there's no problem. But sometimes everyone does not agree, and it will be up to you to convince a DA, a grand jury or a trial jury that your act of violence against another human was justified.

...I have bought some self defense loads. I have decided that I can not afford to shoot enough of these rounds to get good with them at $1/ pop,...That's easily fixed. Make handloads that are ballistically equivalent and use those for practice, but carry factory.

Sam1911
August 6, 2013, 01:35 PM
Massad Ayoob seems to be the "chosen" expert on these matters and he says NO HANDLOADS. If you read the mega-thread we have on the subject you'll understand better the Bias case on which he founds that advice.

Here is probably the most exhaustive discucssion of the issue available, anywhere: http://www.thehighroad.org/showthread.php?t=634817&highlight=bias+case

The reasoning there is probably not at all what you'd believe. Basically a man who killed his wife in their own home used handloads tried to claim self-defense and there was a theory that his own loads could not be used to support his claims of self-defense due to the inadmissibility of GSR evidence becauase he made the ammo -- though those claims proved to be unfounded.

Honestly, the more commonly-held idea that maybe a prosecutor could use the fact that you used home-made ammo to try to paint you in a negative light in the eyes of the jury holds a drop or two more water.

But, no, YOU don't ever get to decide that your claim of self-defense is justified, i.e.: that it was a "good shoot." Anything and everything you did or didn't do could be used against you.

Using factory ammo for self-defense carry is a small thing you could do to remove one tiny avenue of attack a prosecutor might try to use in your disfavor. What you have to do is decide if the odds are long enough to risk the stakes.

Frank Ettin
August 6, 2013, 02:07 PM
...Basically a man who killed his wife in their own home used handloads tried to claim self-defense and there was a theory that his own loads could not be used to support his claims of self-defense due to the inadmissibility of GSR evidence becauase he made the ammo -- though those claims proved to be unfounded....That's not quite it, but for our purposes what's important is that Bias attempted to introduce expert opinion testimony based on testing of his handloads, which he claimed were identical to the cartridges his wife was killed with. The opinion would have been than the testing supported Bias' claim that his wife shot herself based on the distance from which the shot was fired.

The judge would not permit the introduction of the opinion testimony by the defense into evidence because since handloads were involved there was only Bias' claim that the death round was identical to the cartridges tested.

The various older threads linked to go through the Bias case in far more detail. In addition there are several lengthy discussions of the applicable principles of the rules of evidence and why the judge's ruling in Bias was probably correct, and why other judges in other cases where such ballistic testing was an issue would rule in similar ways.

So what does this mean for someone using handloads for self defense? Go back to post 34 (http://www.thehighroad.org/showpost.php?p=9053019&postcount=34) and read about the case of Randy Willems:...[QUOTE=Mas Ayoob]

Iowa v. Cpl. Randy Willems

A man attempted to disarm and murder Corporal Randy Willems of the Davenport, IA Police Department, screaming “Give me your (expletive deleted) gun, I’ll blow your (expletive deleted) brains out.” Willems shot him during the third disarming attempt, dropping him instantly with one hit to the abdomen from a department issue factory round, Fiocchi 9mm 115 grain JHP +P+. The subject survived and stated that the officer had shot him for nothing from a substantial distance away. GSR testing showed conclusively that the subject’s torso was approximately 18” from the muzzle of the issue Beretta 92 when it discharged. Randy was acquitted of criminal charges in the shooting at trial in 1990. Two years later, Randy and his department won the civil suit filed against them by the man who was shot.

I use this case when discussing handloads because it is a classic example of how the replicability of factory ammunition, in the forensic evidence sense, can annihilate false allegations by the “bad guy” against the “good guy” who shot him....

If Willems had been using handloads, the sort of GSR testing he put into evidence at his trial, and which completely exonerated him, would not have been allowed into evidence and would not have been available to the jury to help convince them that the shooting was justified.

Sam1911
August 6, 2013, 02:18 PM
If Willems had been using handloads, the sort of GSR testing he put into evidence at his trial, and which completely exonerated him, would not have been allowed into evidence and would not have been available to the jury to help convince them that the shooting was justified.I think one of the major points of (educated) contention as that thread developed was that GSR is not such a cartridge-specific phenomenon that there would be any sound reason to not admit GSR evidence produced by similar (or almost ANY) handgun ammunition tested by an impartial lab such as the state's own forensic lab.

The sort of thing proven by GSR is that someone was roughly 2 feet away, or roughly 10, or probably more than 10 feet (not to prove that someone was exactly 3'-8" to 4'-0" away) and there aren't such huge differences in the results produced by varying makes or recipes (even handloaded) to preclude obtaining that level of data.

To say that the State of Iowa would not have been able to enter into evidence a GSR test that showed that the attacker was roughly 1-2 feet away simply because it wasn't factory ammo seems suspect, to the point of ignorance of how gunpowder works.

ngnrd
August 6, 2013, 02:29 PM
Frank, did any of those cases hinge on the shooter using handloads?
In the Hickey case... gunshot residue swaps weren't taken and the GSR stippling pattern from one of the assailants wasn't recorded.

In ... the case of Randy Willems ... he used factory ammunition ...

... there's no good reason to cover yet again such well trod ground.

So... it looks like your answer to my question is 'no'.

And, shouldn't this thread be in the LEGAL section? It certainly isn't about handloading - at least not any more...

longdayjake
August 6, 2013, 02:59 PM
Frank, you kinda proved my point. A California lawyer basing his opinion on his experience with California law. Though you did post some cases from other states, your cases kinda point toward the idea that the actual facts of the case determined the outcome and not so much the type of ammunition used. Yes, a good lawyer should always advise his client to do the thing that he believes will be least likely to cause his client problems. So, I don't disparage you for saying that we shouldn't do it. I just disagree with you that it will ever be an issue. I left the legal profession for specifically that reason. The real world is so much more fun when you aren't constantly looking at liability and risk. And the other plus side is that I love my job.

And yes, people involved in justified shootings often go to jail for a time and they often spend a lot of money defending themselves, BUT so far as I can tell this was never the fault of the type of ammunition used.

PJSprog
August 6, 2013, 03:14 PM
If you're afraid for whatever reason to carry your own loads, then by all means carry factory rounds.
I'm not, and I will (or at least I will when my ridiculous state gets around to finishing our new CCW system).

When someone can point me to an abundance of evidence that it's legal suicide to do so, then I'll reconsider. Until then,...

zxcvbob
August 6, 2013, 03:19 PM
Just try to make an informed decision, and then be confident in your decision (either way) even if it's wrong because you don't have the luxury of hesitating during a crisis.

Frank Ettin
August 6, 2013, 03:30 PM
Frank, you kinda proved my point. A California lawyer basing his opinion on his experience with California law....In your profile you claim to be a law student. You really should know better.

The laws of evidence are pretty much the same in every jurisdiction. And in the course of my career I had occasion to deal with the laws of many States. Furthermore, I have studied use of force and related law in many States.

In addition, other lawyers who have been involved in these threads here on THR and over at TFL, notably Spats McGee and Bartholomew Roberts, have been in agreement with me. Spats McGee practices in Arkansas. Bartholomew Roberts practices principally in Texas and is also, I believe, licensed in Oklahoma.

I practiced law for over thirty years. How long have you practiced law?

...I think one of the major points of (educated) contention as that thread developed was that GSR is not such a cartridge-specific phenomenon that there would be any sound reason to not admit GSR evidence produced by similar (or almost ANY) handgun ammunition tested by an impartial lab such as the state's own forensic lab....Actually no.The only people making that claim have been non-lawyers, who apparently don't understand the business of actually getting things into evidence in court. The lawyers, me, Spats McGee and Bartholomew Roberts, when addressing this issue both here and on TFL (where it has also come up often) have been agreed on the inadmissibility of expert opinion based on GSR testing when handloads have been used.

The basic rule of evidence regarding the admissibility of expert opinion based on a scientific test is that it has to be relevant. In order to be relevant, a sufficient nexus between the test and the subject matter of the litigation must be shown -- in other words, the thing tested must be established to the satisfaction of the judge to be the same as the thing at issue in the litigation.

If the thing tested is a cartridge, the party submitting the opinion based on the test has to show that the cartridge fired in the test was the same as the cartridge fired in the incident that is the subject of the litigation. When handloads were used, the only way to connect the cartridge tested to the cartridge fired in the incident is the defendant's claim. That is inherently suspect and will not support a legally acceptable foundation for the introduction of the opinion based on the test.

If identifiable factory ammunition was involved, the manufacturer is a disinterested third party, and evidence from the manufacturer, such as quality control protocols, can be used to establish the comparability of the test cartridges and the incident cartridge.

Frank Ettin
August 6, 2013, 03:54 PM
...people involved in justified shootings often go to jail for a time and they often spend a lot of money defending themselves, BUT so far as I can tell this was never the fault of the type of ammunition used... I do need to specifically address this.

You should do some research into the case of Harold Fish (noted in post 29). He was initially convicted, and in post verdict interviews of members of his jury, at least one juror commented that the jury was very troubled by the fact that Fish used JHP ammunition. There we have an example of the type of ammunition used being a [negative] factor in the deliberations of a jury (in gun friendly Arizona).

Now we do prefer JHPs for self defense. So with regard to JHPs the lesson of the Fish jury is that we will need to be able to deal effectively with the possible negative implication of the use of that type of ammunition. There are indeed ways to deal with that issue, and the advantages offered by JHPs make it worthwhile to use them and prepare to deal with those negative implications.

If anyone thinks he realizes sufficient benefit from the use of handloads to justify the [minimal] risk, that's his choice.

On the other hand, while I've had excellent results in competition and practice with many tens of thousands of my reloads, I've also had excellent results with factory ammunition. I use factory for self defense, because it suits my needs and lets me take any possible handload issues completely off the table.

ngnrd
August 6, 2013, 04:07 PM
... at least one juror commented that the jury was very troubled by the fact that Fish used JHP ammunition. ...

This is the basis of your argument? What does one juror's opinion regarding the type of projectile used have to do with the use of handloads in a self defense situation?

Frank Ettin
August 6, 2013, 04:25 PM
... at least one juror commented that the jury was very troubled by the fact that Fish used JHP ammunition. ...

This is the basis of your argument? What does one juror's opinion regarding the type of projectile used have to do with the use of handloads in a self defense situation?I would have expected better reading comprehension skills from a civil engineer.

The statement was made that:...people involved in justified shootings often go to jail for a time and they often spend a lot of money defending themselves, BUT so far as I can tell this was never the fault of the type of ammunition used...Responding specifically to that comment, I pointed out a case in which we have reason to know that the type of ammunition used had a negative influence on a jury.

Sam1911
August 6, 2013, 04:26 PM
I understand that I'm not a lawyer and sometimes the answers to these questions really, legitimately, and maybe even appropriately ARE that if you're not a lawyer you just can't comprehend how the system works. Setting that aside, for the moment...

The basic rule of evidence regarding the admissibility of expert opinion based on a scientific test is that it has to be relevant. In order to be relevant, a sufficient nexus between the test and the subject matter of the litigation must be shown -- in other words, the thing tested must be established to the satisfaction of the judge to be the same as the thing at issue in the litigation. And that's where the question runs into trouble, I think. If all .45ACP cartridges produce roughly "X" GSR pattern and density at 0-5 feet and "Y" pattern and density at 5-10 feet, and "Z" pattern and density at 10+ feet (after which there's really no pattern to detect), then the cartridge doesn't have to be an exact match to produce relevant observable data. And even factory cartridges out of the same box aren't going to produce exactly the same pattern such that a technician can narrow the range down much below rough distances anyway. So it would be incorrect to say that a technician could not produce a true opinion based on testing even roughly similar loads. Now can that be admissible? As you said, that's up to the judge. The "easy" answer would be "no." The educated answer would seem to be "yes." It would probably be up to the defense to show the judge that the data collected was acceptably similar.

If the thing tested is a cartridge, the party submitting the opinion based on the test has to show that the cartridge fired in the test was the same as the cartridge fired in the incident that is the subject of the litigation. When handloads were used, the only way to connect the cartridge tested to the cartridge fired in the incident is the defendant's claim.Why would that be? Ammunition recovered from the magazine, matching the spent case on the ground, and matching other loaded ammo taken into evidence from the shooter's home would certainly be testable, and tested, and would produce results which would be very substantively similar to the round(s) fired. As pointed out previously in other threads, investigating agencies DO take such into evidence, and DO test it, and DO use their findings in trials.

Are there cases where handloaded ammunition needed to be used this way and WAS refused admission into evidence? I understand the technical theory about the rules of evidence by which it could be refused, but HAS it been?

Arkansas Paul
August 6, 2013, 04:32 PM
What does one juror's opinion regarding the type of projectile used have to do with the use of handloads in a self defense situation?

Possibly everything.
That one juror is one of the six or twelve that is deciding your fate.

jmorris
August 6, 2013, 04:43 PM
. Reason being, they shoot better than any defensive ammo I've tried and they're easier on recoil and muzzle flash.

Sounds like they might be "less lethal" than common ammunition, at least that's what my lawyer would say.;)

ngnrd
August 6, 2013, 04:56 PM
I would have expected better reading comprehension skills from a civil engineer.
And I would have expected that a moderator of THR would refrain from making personal attacks.

The statement was made that: people involved in justified shootings often go to jail for a time and they often spend a lot of money defending themselves, BUT so far as I can tell this was never the fault of the type of ammunition used.Responding specifically to that comment, I pointed out a case in which we have reason to know that the type of ammunition used had a negative influence on a jury.

And speaking of reading comprehension... 'type of ammunition' is not the same thing as 'type of projectile'. This thread is about legal implications regarding type of ammunition (specifically, hand loads vs. factory loads), not type of projectile. Your example specifically mentioned JHP projectiles - NOT handloads.

If a jury has an issue acquitting a person specifically because they used hand loads, this is an entirely different conversation. But the fact that a particular juror is uncomfortable that a defendant used JHP projectiles is irrelevant to this discussion. Let me say that one more time, loudly, in case you have issues with reading comprehension... ONE JUROR'S FEELINGS ABOUT THE USE OF A PARTICULAR TYPE OF PROJECTILE IS IRRELEVANT IN A DISCUSSION REGARDING THE LEGAL IMPLICATIONS OF USING HANDLOADS FOR SELF DEFENSE. THEY ARE TWO SEPARATE ISSUES.

X-Rap
August 6, 2013, 05:09 PM
From the arguments that I have read over the years it seems the primary if not only issue is the repeatability/consistency of a given lot of factory ammo and the subsequent admissibility as evidence.
I buy my 9mm HP's in lots of 500 or 1000 and load them up at one time and store them in one labeled ammo can so could that be considered an adequate sampling of a lot?
How can one be sure that the round/s fired from a given gun were all from the same box of factory ammo if your gun room has magazines full of various ammo used in practice, testing and self defense?
I understand that a gifted prosecutor will dredge up all kinds of evil intent and mischief against the accused in trying to get things to stick but the examples put forth in these posts seldom conclusively if ever amount to any conviction.
The sheer amount of defensive style bullets in non hunting diameters tells me there are a lot of reloaders packing their home rolled stuff.

Frank Ettin
August 6, 2013, 05:30 PM
I understand that I'm not a lawyer and sometimes the answers to these questions really, legitimately, and maybe even appropriately ARE that if you're not a lawyer you just can't comprehend how the system works...Sam, with all due respect, in this case that is really the bottom line.

The basic rule of evidence regarding the admissibility of expert opinion based on a scientific test is that it has to be relevant. In order to be relevant, a sufficient nexus between the test and the subject matter of the litigation must be shown -- in other words, the thing tested must be established to the satisfaction of the judge to be the same as the thing at issue in the litigation. And that's where the question runs into trouble, I think. If all .45ACP cartridges produce roughly "X" GSR pattern and density at 0-5 feet and "Y" pattern and density at 5-10 feet, and "Z" pattern and density at 10+ feet (after which there's really no pattern to detect), then the cartridge doesn't have to be an exact match to produce relevant observable data... Do they in fact do so? I'm not convinced that is true. Indeed in Bias the handloads Bias claimed were like the death round produced at the distance Bias claimed the shot was fired from a very different pattern from the commercial cartridges the State tested (which evidence itself was not allowed at a later trial).

...And even factory cartridges out of the same box aren't going to produce exactly the same pattern such that a technician can narrow the range down much below rough distances anyway...And that is going to be an issue with testing procedure. In doing any kind of a test, one doesn't just use one or do the test once. One does the test multiple times and analyzes the ranges of results. Tedious work, and can still remember the hours and hours I spent laboriously doing statistical analyses of test data for my college lab classes back before the days of electronic calculators and, of course, personal computers.

So an expert looks at an array of data and forms opinions. Those opinions have meaning because he is an expert.

And yes, such testing can narrow things down only so much. That sort of thing will be a part of the expert's opinion. So the expert will state that within a certain degree of confidence the shot was fired at a distance of between X and Y. If that will help you, you will really want to get the opinion admitted into evidence. If that won't help you, since it was done by your expert it can remain confidential (protected under what is known as the attorney work-product privilege).

...So it would be incorrect to say that a technician could not produce a true opinion based on testing even roughly similar loads. Now can that be admissible?...No, this takes you only two-thirds of the way to where you need to be.

The technician can perform the tests, analyze the patterns made by the test exemplars at various distances and compare those test results to the pattern made in the incident.


As an expert he could then truly opine that if the cartridge fire in the incident was the same as the ones he tested, the shot in the incident was fired at a distance of between X and Y.


But if handloads were used in the incident, the expert will not be able to opine, and the defense will not be able to satisfactorily establish, that the cartridge fired in the incident was the same as the test exemplars.

Why would that be? Ammunition recovered from the magazine, matching the spent case on the ground, and matching other loaded ammo taken into evidence from the shooter's home would certainly be testable, and tested, and would produce results which would be very substantively similar to the round(s) fired....Would it? How do we know? But let's assume that it does. How do we establish that the exemplars taken for testing from the defendant's assortment of handloaded ammunition was the same in all material respects as the cartridge fired in the incident (and which was thus destroyed in the incident)? Unless we can do that, the expert can't opine, and the opinion would not be allowed into evidence in any case, that the shot in the incident was fired at a distance of X to Y.

So if handloads were used, the only way to connect the test exemplars to the incident cartridge is the defendant -- a very interested party.

In contrast, if identifiable commercial ammunition is used, one would be able to introduce evidence regarding that manufacturer's quality control procedures. Manufacturers will have written quality control standards and testing protocols, and they will maintain logs of quality control testing. Because the manufacturer is an uninvolved third party, and because such records are routinely kept for its own business purposes, such records will be admissible as business records and have credibility.

...As pointed out previously in other threads, investigating agencies DO take such into evidence, and DO test it, and DO use their findings in trials....Yes, such evidence is routinely collected by the prosecution. Sometimes it may be offered into evidence at trail. However, evidence is collected and used for many purposes in the course of investigation. Things may be offered by the prosecution as evidence in trial in a variety of contexts and for various purposes.

What we are concerned with is the defense being able to have admitted into evidence expert opinion based on GSR testing for the purposes of corroborating the defendant's story.

...Are there cases where handloaded ammunition needed to be used this way and WAS refused admission into evidence? ...Yes, in Bias. That wasn't a self defense case, but it was a case in which the defense offered this type of expert opinion to corroborate the defendant's story.

And I'm not aware of any case in which this sort of an opinion based on testing of handloads was allowed into evidence.

Frank Ettin
August 6, 2013, 05:55 PM
The statement was made that: people involved in justified shootings often go to jail for a time and they often spend a lot of money defending themselves, BUT so far as I can tell this was never the fault of the type of ammunition used.Responding specifically to that comment, I pointed out a case in which we have reason to know that the type of ammunition used had a negative influence on a jury.

And speaking of reading comprehension... 'type of ammunition' is not the same thing as 'type of projectile'. This thread is about legal implications regarding type of ammunition (specifically, hand loads vs. factory loads), not type of projectile. Your example specifically mentioned JHP projectiles - NOT handloads.Once again, the statement was made that: people involved in justified shootings often go to jail for a time and they often spend a lot of money defending themselves, BUT so far as I can tell this was never the fault of the type of ammunition used.I responded specifically to that statement and pointed out a case in which we have reason to know that the type of ammunition used had a negative influence on a jury. The projectile is one of the components of "ammunition."

Frank Ettin
August 6, 2013, 06:06 PM
...As pointed out previously in other threads, investigating agencies DO take such into evidence, and DO test it, and DO use their findings in trials....Yes, such evidence is routinely collected by the prosecution. Sometimes it may be offered into evidence at trail. However, evidence is collected and used for many purposes in the course of investigation. Things may be offered by the prosecution as evidence in trial in a variety of contexts and for various purposes.

What we are concerned with is the defense being able to have admitted into evidence expert opinion based on GSR testing for the purposes of corroborating the defendant's story.Let me expand on that a bit.

In many, perhaps most cases, GSR data does not relate to a point of contention. So the prosecution introduces evidence regarding GSR tattooing, or lack thereof, and that evidence is not necessarily inconsistent with the the theory of the defense. The prosecution witness testifies that in his opinion based on GSR the shot was fired at a distance of greater than X feet or less than Y feet. And if that doesn't hurt the defendant's case, it's not an issue.

The potential issue arises when the defendant wants to put on evidence that the shot was fired at some distance other than the distance that the prosecution wants to claim. That probably doesn't happen much, but you can't know ahead of time if it will happen to you.

Potatohead
August 6, 2013, 06:18 PM
Carrying Handloads, yes or no?
Based on my reading into this topic I may be opening a can of worms here, but

Yes, it appears a can of worms has been opened!

longdayjake
August 6, 2013, 06:38 PM
Frank, looks like my profile needs some updating. I haven't been in law school for years now. I also do not practice law. I found a way to make more money in Idaho and to actually enjoy what I do. So, though I don't actually practice law, I do know how to read cases and research the law. And I have massive amounts of student loans to prove it. Granted, you have a lot more experience than I do, but when researching a legal issue, I tried to look at all the cases that would apply to a certain scenario. My reasoning is based on the thousands of other cases of self defense where the type of ammunition was not even considered by the jury. You have found one case where the defense claimed the reason he was convicted had only to do with an incorrect judgment to exclude exculpatory evidence and not the type of ammunition he used. What you cited was an example of a juror who obviously didn't "get it" in relation to instructions and rule of law. Yes, in law there are jokes about how stupid jurors are and how we shouldn't put the fate of people in their hands, but for that reason there are appeals. And Mr. Fish won his appeal and went free. That said, I will concede the point that you did find a case where it may have played a part.

Also, my comment about California lawyers was supposed to be partially in jest and partially true. I based my comment after having read thousands of cases from California where common sense was thrown out the window in order to reach a conclusion that fit with the law.

You never mentioned what type of a lawyer you were. Did you do criminal defense/prosecution? I have a few very good friends who do prosecution who feel that it would border on unethical to try to convict someone by establishing the defendant's character solely by the type of ammunition used. There has to be some other evidence showing malice aforethought besides just the type of ammo used before it even becomes something worth pursuing. But then again, not all lawyers think ethically when they have a chance to win. If a prosecutor can show that the defendant used HP ammunition to specifically cause undue suffering and pain, then the issue of ammunition may be relevant.

I really think that Californians should follow your advice. As well as residents from areas with similar legal precedent. Those of us who still live in free states probably don't need to worry about the type of ammo used and they should focus more on training for proper usage of deadly force.

mljdeckard
August 6, 2013, 06:39 PM
Parasite:

a justifiable shooting SHOULD BE a justifiable shooting. Harold Fish and George Zimmerman would probably disagree with you. No one can guarantee it.

ngnrd
August 6, 2013, 06:45 PM
The projectile is one of the components of "ammunition."

Agreed. And yet in your example, that fact has absolutely nothing to do with whether that projectile was loaded into a case in a factory, or in somebody's basement. Thus, regardless of one juror's reaction to the use of a JHP, that information is irrelevant in the context of this discussion.

Here is my question to you, Frank:

Has there been any case in which a guilty verdict was issued based solely on the fact (or it was a primary factor) that a defendant used hand loaded ammunition in a SD scenario, instead of factory loaded ammunition?

If there is such a case, this discussion changes significantly. If there has not yet been such a case, this discussion remains pure speculation and fear mongering.

longdayjake
August 6, 2013, 06:59 PM
Has there been any case in which a guilty verdict was issued based solely on the fact (or it was a primary factor) that a defendant used hand loaded ammunition in a SD scenario, instead of factory loaded ammunition?

If there is such a case, this discussion changes significantly. If there has not yet been such a case, this discussion remains pure speculation and fear mongering.

Frank is really not a bad guy in this discussion. He is merely relaying his beliefs based on his experience as a lawyer. I happen to think he is operating on an abundance of unnecessary caution but his points do have a little bit of relevance.

But you are right, there is not a case yet where handloaded ammunition was the primary cause for a conviction.

Here is my "not a lawyer" advice. Do your best to keep yourself out of places where bad stuff can happen to you. Take that a step further by not participating in groups or actions that would lead people to believe you are an evil lawbreaking scumbag. Be anxiously engaged in doing good. Follow those steps and it becomes infinitely more difficult for a prosecutor to show that you have any inclination towards malice and violence.

Frank Ettin
August 6, 2013, 07:14 PM
...Let me say that one more time, loudly, in case you have issues with reading comprehension... ONE JUROR'S FEELINGS ABOUT THE USE OF A PARTICULAR TYPE OF PROJECTILE IS IRRELEVANT IN A DISCUSSION REGARDING THE LEGAL IMPLICATIONS OF USING HANDLOADS FOR SELF DEFENSE. THEY ARE TWO SEPARATE ISSUES. Actually, they're not separate issues. Lawyers are very familiar with the range of things that can affect a juror's perception and must take that into account. For example:

We've already discussed that we know that the ammunition Fish used played a part in the jury verdict in his case.


Jury simulation studies as describe in this article (http://www.thejuryexpert.com/2009/09/will-it-hurt-me-in-court-weapons-issues-and-the-fears-of-the-legally-armed-citizen/) suggest that the type of gun used can also affect the perceptions of a jury. (The author, Dr. Glenn Meyer, is a moderator at TFL and know as GEM here.) (Note: the site (http://www.thejuryexpert.com/) seems to be down right now but is supposed to be back up in a couple of days)


I have personal knowledge, based on my participation in post verdict interviews of jurors, of how various things can affect how a juror views and evaluates evidence.
We will use, within the applicable rules, our understanding of jury perception to further the interests of our client. If I'm a prosecutor, my "client" is the State, and I'm looking for a conviction. So I'll use factors like the ammunition used (projectile, source, power, whatever else), the type of gun used or anything else in whatever manner I conclude might influence the jury in the way I want. And if I'm representing the defendant I'll want him to show up for court nicely dressed and well groomed.

Frank, looks like my profile needs some updating. I haven't been in law school for years now. I also do not practice law...Understood and all the best.

...I have a few very good friends who do prosecution who feel that it would border on unethical to try to convict someone by establishing the defendant's character solely by the type of ammunition used. There has to be some other evidence showing malice aforethought besides just the type of ammo used before it even becomes something worth pursuing...Again, there are all sorts of variables. Malice might not be an issue if the charge in manslaughter when the theory of the prosecution is that the defendant was not reasonable in his decision to use lethal force. There might be a variety of evidence helpful to the prosecution, and the ammunition is only one more thing. And the ethical border can be kind of fuzzy to some people sometimes.

...Has there been any case in which a guilty verdict was issued based solely on the fact (or it was a primary factor) that a defendant used hand loaded ammunition in a SD scenario, instead of factory loaded ammunition?...There has probably never been any sort of a case in which a guilty verdict has been based solely on any one thing. Every outcome of every case is based on an aggregate of many, sometimes minor, factors.

You are not going to be charged just because you used handloads. If you are on trial, you (like Fish and those other folks I mentioned) have a whole bunch of problems. Handloads could be only one of those problems making it possibly a bit tougher for you to get the type of outcome you want. But if will only be one of your problems if you used handloads. I'd prefer to avoid that additional wild card.

But we also have seen at least one case in which expert opinion based on GSR testing was helpful to the defense. The defendant would have had to do without that help if he had used handloads.

Anyway, relying on historical research is helpful only if there's sufficient historical data. If the question is something like, "Is a private citizen who shoots someone and claims self defense more likely to be charged if he used handloads compared with factory ammunition?", or "Is a private citizen who shoots someone and claims self defense more likely to be convicted at trial if he used handloads compared with factory ammunition?", the availability of useful data depends on (1) a large enough population of private citizens having shot someone in claimed self defense; and (2) a large enough subset of those private citizens having used handloads. I suggest that the vast majority of people who keep guns for self defense aren't enthusiasts and use stock guns and commercial ammunition. Indeed, even many of the members here, who are enthusiasts, use commercial ammunition for self defense.

In fact we have some evidence that reloads are very seldom used in self defense. Al Norris, a member here and a moderator on TFL, did some research on the subject. In a period of some 37 years in Idaho handloads were used in only 12 self defense shooting incidents. Six weren't prosecuted; apparently they were clearly justified. Six were prosecuted, resulting in six convictions -- four on pleas and two on jury verdicts (see http://thefiringline.com/forums/showthread.php?t=388901 posts 109 and 114). In the cases that resulted in a conviction, drugs and/or alcohol was apparently also involved.

And of course we still have Bias which illustrates that it's highly unlikely that GSR test results would be admitted into evidence if handloads were used. While, Bias is not a self defense case, but the rules of evidence apply in the same way whatever the type of case.

...If there has not yet been such a case, this discussion remains pure speculation and fear mongering. And yet again you're off base.

Just because there is insufficient historical data doesn't mean that professionals can't make reasoned estimates about how likely a particular result might be under certain circumstance. Indeed, it often happens in the practice of law that a particular issue of interest has not previously been addressed by an appellate court, and one must make a reasoned judgment without the guidance of on point precedent.

As Nassim Nicholas Taleb points out repeatedly in his books Fooled by Randomness, the Hidden Role of Chance (Random House, 2004) and The Black Swan, the Impact of the Highly Improbable (Random House, 2007), "Absence of evidence is not evidence of absence." Taleb, a securities trader and professor at the University of Massachusetts, provides some interesting and useful insights into strategies for dealing with rare events.

BullfrogKen
August 6, 2013, 07:21 PM
Typing a response . . .

X-Rap
August 6, 2013, 07:29 PM
The cases in post 29 are often cited here and given that they are the most spectacularly bizarre it is understandable but there are reportedly thousands of self defense shootings investigated every year and given that these are the few that are so frequently brought up I will take the odds in a similar fashion of winning the lottery, being struck by lightning or killed by a shark.

BullfrogKen
August 6, 2013, 08:04 PM
Frank,

It's a given you and I are going to disagree on this matter. Anytime this conversation has come up you'll pull out all your legal terms but you continually gloss over this thread - Why JHP? (http://www.thehighroad.org/showthread.php?p=7854215#post7854215) where beginning on page 4 I directly challenged your assumptions through a lot of well-researched homework.

Again you're trying to sell us a bill of goods.

That thread was full of examples of things like how to introduce gunshot residue testing without even recovering the gun used.

You have told us that testimony without extensive testing won't get in front of a jury. Look, I sat there along with millions of other Americans and watched as Dr. Vincent DiMaio gave his expert opinion on how far Zimmerman was from Martin - described in terms of inches. He even went to far as to testify that Martin was on top and leaning over him by the way the shirt was hanging forward.

I didn't see the judge reject that testimony because the Doctor didn't conduct exhaustive testing with the same gun and ammunition as Zimmerman used.

And I can't believe after that discussion of the Bias case last January you'd still be clinging to your version of the lesson it offers us all.

The true lesson is that the Bias case showed exactly how handloaded ammunition got introduced as evidence into those trials. There were several, because of the hung juries, all presided over by different judges, and at each one the fact is that the testing New Jersey's ballistics lab did in fact get introduced. You even had Leisinger telling everyone he ran tests on ammunition that wasn't even found in Bias' home -

"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."

Bias murdered his wife. It doesn't take an expert to know that when you hold a gun next to someone head and pull the trigger, there will be gunshot residue. She had none. The work the ballistics lab did on his handloads, and the testing they developed from it made it into evidence, and Bias was rightly convicted with it.

Frank Ettin
August 6, 2013, 08:51 PM
The cases in post 29 are often cited here and given that they are the most spectacularly bizarre it is understandable but there are reportedly thousands of self defense shootings investigated every year and given that these are the few that are so frequently brought up I will take the odds in a similar fashion of winning the lottery,...They're brought up because (1) they illustrate that it can not be a foregone conclusion that a legitimate use of force in self defense will be immediately or easily accepted as such; (2) in several cases they arise in gun friendly States or States with a Stand Your Ground or Castle Doctrine law, thus illustrating that the State something happens in is no guarantee that you'll get off the hook easily or cheaply; and (3) they are cases I happen to have handy to illustrating those points.

The odds that your self defense incident, if you have one and if you've learned your lessons about use of force law, will be easily resolved are very good. But you can't know if it'll actually work out that way if it actually happens.

HOOfan_1
August 6, 2013, 09:44 PM
We see that sort of silliness all the time and it is a bogus argument.

It might be a bogus argument, but that is because the silliness goes on in court. The argument is actually legitimate....what goes on in a court room is often silly and bogus. Unfortunately for us, what goes on in the court room is the final say in the matter, no matter how silly or bogus it is.

All of your arguments boil down to, the prosecutor will use everything they can think of against you...even if what they use against you is bogus....as long as they can convince the jury, it doesn't matter if it is bogus. All the prosecutor cares about is convictions...not fairness.

Any person who is convicted over using a handload in what would have been a justifiable homicide, just proves that the prosecution is good at obfuscation and sleight of hand, unfortunately that is all that matters in the end isn't it.

Sam1911
August 6, 2013, 10:03 PM
I understand that I'm not a lawyer and sometimes the answers to these questions really, legitimately, and maybe even appropriately ARE that if you're not a lawyer you just can't comprehend how the system works...Sam, with all due respect, in this case that is really the bottom line.:D I can accept that, but thanks for the explanations, regardless. I'm here to learn just like everyone else, and some things take a lot of explaining.

... If all .45ACP cartridges produce roughly "X" GSR pattern and density at 0-5 feet and "Y" pattern and density at 5-10 feet, and "Z" pattern and density at 10+ feet (after which there's really no pattern to detect), then the cartridge doesn't have to be an exact match to produce relevant observable data... Do they in fact do so? I'm not convinced that is true.To be honest, I don't know to what degree they do. Obviously to some level, a gun fired at close range peppers the target with SOME GSR and one fired at longer range applies less GSR, pretty much regardless of the load. It is my understanding that expert testimony here usually reflects that in that the opinion given is that a gun was fired close or far. Within a range of yards, not feet and inches. Now if that's not true, and/or an opinion needs to be able to be more precise such that the specific kind of ammo does substantively matter, then I see some of the reason for the question of admissibility.

Indeed in Bias the handloads Bias claimed were like the death round produced at the distance Bias claimed the shot was fired from a very different pattern from the commercial cartridges the State tested (which evidence itself was not allowed at a later trial).Right. At the distance Bias claimed..., right? But what about when fired at the distance that the state claimed was the actual distance?

...So it would be incorrect to say that a technician could not produce a true opinion based on testing even roughly similar loads. Now can that be admissible?...No, this takes you only two-thirds of the way to where you need to be.

The technician can perform the tests, analyze the patterns made by the test exemplars at various distances and compare those test results to the pattern made in the incident.


As an expert he could then truly opine that if the cartridge fire in the incident was the same as the ones he tested, the shot in the incident was fired at a distance of between X and Y.


But if handloads were used in the incident, the expert will not be able to opine, and the defense will not be able to satisfactorily establish, that the cartridge fired in the incident was the same as the test exemplars.Ok, right, but WHY can he not opine? I mean, if a shooter has factory ammo in his gun, it's nothing more than a plausible guess that he didn't load some other factory round or hand-loaded round as the first round(s) in the gun. How is it any less reasonable and less admissible to say that if he had a mag full of handloads, and a box more of them at home, the rounds he fired matched those loads? This is precisely as much of a supposition and unsubstantiate-able claim as the same claim made about the first guy's factory rounds!

Why would that be? Ammunition recovered from the magazine, matching the spent case on the ground, and matching other loaded ammo taken into evidence from the shooter's home would certainly be testable, and tested, and would produce results which would be very substantively similar to the round(s) fired....Would it? How do we know? But let's assume that it does. How do we establish that the exemplars taken for testing from the defendant's assortment of handloaded ammunition was the same in all material respects as the cartridge fired in the incident (and which was thus destroyed in the incident)? Unless we can do that, the expert can't opine, and the opinion would not be allowed into evidence in any case, that the shot in the incident was fired at a distance of X to Y.Again, how would we prove that if he says he was using FACTORY ammo? If we're going to guess that maybe his fired handloads differed, then why would we not make the same guess that maybe his first rounds in the gun weren't the same as the recovered factory rounds?

So if handloads were used, the only way to connect the test exemplars to the incident cartridge is the defendant -- a very interested party. Really? If he's arrested at the scene and his gun and ammo are confiscated, how does the narrative explain that he's some how compromising those pieces of evidence? You're STILL relying on his claim (probably not even a claim -- most likely a question never even asked or answered) that the rounds he fired were the same as the ones in the rest of the mag. Some of our members here admit to mixing up ammo ("Dutch" loads) and police reports of confiscated weapons mention completely random assortments of loaded rounds found in guns they take. This is not some wildly improbable idea.

In contrast, if identifiable commercial ammunition is used, one would be able to introduce evidence regarding that manufacturer's quality control procedures. Manufacturers will have written quality control standards and testing protocols, and they will maintain logs of quality control testing. Because the manufacturer is an uninvolved third party, and because such records are routinely kept for its own business purposes, such records will be admissible as business records and have credibility.Which would be grand, if such precision were required, but it seems uncertain why, or whether it would need to be. If ammo is taken from a guy's mag (handload OR factory) and tested, then it is assumed to be substantively identical to the rounds fired. If the destruction of the evidence is a concern, ballistics labs can and do pull bullets, identify components, weigh charges, and produce identical rounds for testing purposes. Either of which could be used to indicate general evidence of a rough distance from which a shot was fired.

...As pointed out previously in other threads, investigating agencies DO take such into evidence, and DO test it, and DO use their findings in trials....Yes, such evidence is routinely collected by the prosecution. Sometimes it may be offered into evidence at trail. However, evidence is collected and used for many purposes in the course of investigation. Things may be offered by the prosecution as evidence in trial in a variety of contexts and for various purposes.

What we are concerned with is the defense being able to have admitted into evidence expert opinion based on GSR testing for the purposes of corroborating the defendant's story.Right. Why can the defense NOT do this, if the prosecution CAN? Does the defense not have access to the results of the State lab's tests? Can the defense not have trusted, independent labs do their own tests, using the same protocols the prosecution's labs would do? What's the missing link I'm not seeing?

Is it simply that the judge will head that it wasn't factory ammo, say "not admissible," period, and that's all there is to it?

zxcvbob
August 6, 2013, 10:15 PM
Right. Why can the defense NOT do this, if the prosecution CAN? Does the defense not have access to the results of the State lab's tests? Can the defense not have trusted, independent labs do their own tests, using the same protocols the prosecution's labs would do? What's the missing link I'm not seeing?

Is it simply that the judge will head that it wasn't factory ammo, say "not admissible," period, and that's all there is to it?

It's because in one case (Bias?) the prosecution objected that the defendant "manufactured the evidence" and the judge thought that phrase was so clever he sustained it.

Always remember, "We don't have a justice system, we have a legal system." (not sure who said that first)

Sam1911
August 6, 2013, 10:15 PM
Has there been any case in which a guilty verdict was issued based solely on the fact (or it was a primary factor) that a defendant used hand loaded ammunition in a SD scenario, instead of factory loaded ammunition?

If there is such a case, this discussion changes significantly. If there has not yet been such a case, this discussion remains pure speculation and fear mongering.Not quite true. There are two elements to consider:

1) Prosecution using the fact that you handload and/or used handloaded ammo to establish some nefarious state of mind.

2) YOUR ability to use GSR evidence in support of your own defense claims.

Both could be a factor.

Frank Ettin
August 6, 2013, 10:52 PM
We see that sort of silliness all the time and it is a bogus argument.

It might be a bogus argument, but that is because the silliness goes on in court. The argument is actually legitimate....The bogus argument is the "a good shoot is a good shoot" business. There can be, and sometimes is, disagreement on that point. When there is disagreement, it'll be up to a jury. For a more in depth discussion of the law related to the use of force, see here (http://www.thehighroad.org /showthread.php?t=721597).

...what goes on in a court room is often silly and bogus. Unfortunately for us, what goes on in the court room is the final say in the matter, no matter how silly or bogus it is....That's often the view when the outcome isn't what someone wanted it to be. I dare say that there are some folks who feel that what went on recently in a certain courtroom in Florida was silly and bogus because they didn't like the result.

And sometimes criminal claim, without a good basis, self defense.

The reality in our world is that the courtroom is where we resolve certain disputes. Would you prefer trial by combat or trial by ordeal? Do you have a better way?

All of your arguments boil down to, the prosecutor will use everything they can think of against you...even if what they use against you is bogus....as long as they can convince the jury, it doesn't matter if it is bogus. All the prosecutor cares about is convictions...not justice....Actually, every lawyer has an obligation under the rules of professional responsibility of absolute loyalty to his client and to zealously, within the rules, represent the interests of his client; and every lawyer has the duty to use his best professional judgment and skill to achieve the best result he can, within the rules, for his client. A prosecutor's client is the state.

A trial is an adversarial proceeding. Each side has an ethical and professional obligation to, within the framework of the applicable rules, zealously and vigorously represent the interests of his client. And therefore:

The lawyer on each side of a dispute has an incentive and professional obligation to put forth, consistent with the applicable rules of evidence and procedure, every fact that will be helpful to his side's interests.


The lawyer on each side of a dispute has an incentive and professional obligation to argue the law as most favorable to his side's interests.


The lawyer on each side of a dispute has an incentive and professional obligation to challenge the other side if he thinks that the other side has overstepped the rules or if he thinks the evidence put forth by the other side is not credible.


The judge is there to rule on disputed matters of law and generally see that the rules of evidence and procedure are followed.


Thus the adversarial system encourages that all facts material to the deciding of the dispute get out on the table.

...Any person who is convicted over using a handload in what would have been a justifiable homicide, just proves that the prosecution is good at obfuscation and sleight of hand, unfortunately that is all that matters in the end isn't it.No one is going to be convicted just for using handloads, but as I discussed in another post, handloads can be a factor.

At the end of the day, if someone is convicted, it's because the prosecutor was able to convince the jury beyond a reasonable doubt, and against the efforts of the defense, that the defendant was guilty. See the discussion immediately above about how a trial works.

If the defendant thinks there were errors of law made at trial, he can appeal.

In any case, our legal system is what it is. You might have a jaundice view or it, but in the long run, it's better to understand it than simply complain. And if you understand how things work you have a better chance of being able to effective politically if you become interested in trying to change things you think are wrong.

rcmodel
August 6, 2013, 11:01 PM
SO then, in your professional legal opinion?

Per the OP's question?

Is using hand-loads in a SD shooting a factor you should be deathly afraid of, or not??

On top of everything else you should be more afraid of in a SD shooting that is??

rc

flynryn
August 6, 2013, 11:07 PM
i shoot handloads in all my guns, as soon as they make better stuff than i do thats what i shoot.

HOOfan_1
August 6, 2013, 11:12 PM
The reality in our world is that the courtroom is where we resolve certain disputes. Would you prefer trial by combat or trial by ordeal? Do you have a better way?

Better ways do not necessitate taking the dispute outside of the court room. I am sure we could all think of better ways that things can be done in the court room.


In any case, our legal system is what it is. You might have a jaundice view or it, but in the long run, it's better to understand it than simply complain. And if you understand how things work you have a better chance of being able to effective politically if you become interested in trying to change things you think are wrong.

Your posts go a LONG way toward giving everyone a better understanding of the way things are done. But often that understanding leads to "jaundiced views". The same thing could be said about understanding how things are done which affect legislation.

BullfrogKen
August 6, 2013, 11:16 PM
I posted this in the thread from a year and a half ago. I think few people will take the time to go read it, so I'll post it again.


Quite often the ballistics 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 just from that evidence alone. (My State Ballistics Lab Expert) and I 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 can be 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.


Furthermore, if you claim you shot someone at close distance in self-defense, there's a high probability some GSR will be present. It may even be the case that the prosecution uses the work of the ballistics lab to corroborate your story and decline to file charges. Or, like George Zimmerman, they may ignore it and proceed anyway. Regardless, the work will be done by the state and the results made available to both sides if the case proceeds to trial. And it'll probably get in front of the jury, just like in the Zimmerman trial.

1SOW
August 6, 2013, 11:36 PM
I carry my handloads.

Frank Ettin
August 6, 2013, 11:51 PM
Frank,

...Again you're trying to sell us a bill of goods...Ken,

You are not a lawyer. In fact I don't know what your profession is. But it's also clear that you do not independently have any personal training or experience in this area.


You also relied on conversations with state criminal laboratory technicians. While they know their business, their business is not the same as the business of lawyers nor do they have the same skills, education or experience as lawyers.


Dr. Vincent DiMaio testified for the defense; and, as far as I know, the introduction of his testimony was not objected to by the prosecution. (See also paragraph 7, below.)


The legal issue involved is very specific: the admissibility by the defense of expert opinion testimony based on GSR testing of exemplars for the purposes of corroborating the defendant's story of how a claimed self defense shooting happened. At least two other lawyers, Spats McGee and Bartholomew Roberts have agreed that getting such opinion testimony admitted into evidence is going to be highly unlikely if handloads were used.


That's because to establish the relevance of the tests, which is a threshold requirement for admissibility, it is necessary to establish that what was tested was the same as what was shot in the incident. Indeed it must be established that the conditions of the testing closely mimicked the incident that is the subject matter of the trial.


That applies, BTW for all sorts of test based evidence. The test, and what was tested, needs to be established as being duplicative of whatever the trial is about. Otherwise, the tests have nothing to do with the subject of the trial. And that also applies to all sorts of litigation -- civil, criminal, medical malpractice, product liability, negligence, etc. -- if you want to admit opinion evidence based on tests those tests must be duplicative of the subject matter at issue in the trial.


There can be all kinds of expert opinion testimony for all sorts of purposes introduced in all sorts of ways. For example, opinion based on an examination of the physical evidence at the scene or produced by the incident can also be offered for a variety of purposes and in a variety of ways. If the side not offering the opinion objects, the other side will need to convince the judge that the witness is qualified to form those opinions and that those opinions can validly be drawn from his observations of the physical evidence. But if the opinion is relying on some scientific test of an exemplar, the validity of the test and the character of the exemplar as validly reflecting what the trial is about must be first established.


Perhaps one's purposes will be adequately served by expert examination of available physical evidence. Sometime one's purpose will be better served by an opinion based on exemplar testing.


I do have reason to know something about the admissibility of scientific evidence. In managing litigation as a lawyer and officer for a major health insurance and health care company, I was frequently involved in working out strategies for getting scientific and expert opinion evidence introduced into evidence. I thus have personal, professional knowledge and experience relating to laying the sort of foundation necessary to get such evidence introduced. And the rules relating to the introduction of expert opinion evidence are the same no matter what the underlying legal matter is.


So the bottom line is that you have no way of knowing if someday you might find yourself in a legal pickle, having fired your gun in what you believed was legitimate self defense. And you also can know whether it would help you to get out of that pickle to be able to get into evidence expert opinion testimony based on GSR testing of exemplars of the ammunition you used. But if you find yourself in that situation, and you had used handloads, there's an excellent chance that you won't be able to make use to that sort of helpful expert opinion (i. e., it won't get into evidence).


The risk is non-quantifiable and most likely small. You might decide that you like your handloads enough to take it.


On the other hand, as good as my handloads have proved themselves to be, I've never found that they offered any advantage over quality factory ammunition to warrant even a small risk.

Frank Ettin
August 6, 2013, 11:56 PM
...Quite often the ballistics 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 just from that evidence alone.... I certainly don't say it. See my post, above, paragraph 7. But sometimes a person's legal defense might not be well served by that sort of evidence, and testing will be desirable or necessary.

Frank Ettin
August 7, 2013, 01:40 AM
...So it would be incorrect to say that a technician could not produce a true opinion based on testing even roughly similar loads. Now can that be admissible?...No, this takes you only two-thirds of the way to where you need to be.

The technician can perform the tests, analyze the patterns made by the test exemplars at various distances and compare those test results to the pattern made in the incident.


As an expert he could then truly opine that if the cartridge fire in the incident was the same as the ones he tested, the shot in the incident was fired at a distance of between X and Y.


But if handloads were used in the incident, the expert will not be able to opine, and the defense will not be able to satisfactorily establish, that the cartridge fired in the incident was the same as the test exemplars.Ok, right, but WHY can he not opine? I mean, if a shooter has factory ammo in his gun, it's nothing more than a plausible guess that he didn't load some other factory round or hand-loaded round as the first round(s) in the gun. How is it any less reasonable and less admissible to say that if he had a mag full of handloads, and a box more of them at home, the rounds he fired matched those loads? This is precisely as much of a supposition and unsubstantiate-able claim as the same claim made about the first guy's factory rounds!Of course if the prosecution, for example, wants to challenge whether Federal HST 230 grain, .45 ACP ammunition was used, there might be an issue; and it would be necessary for the defendant to establish that. And there might be some good bases upon which to do that: fresh rounds with the appropriate headstamp in the magazine; a partial box at the guys home; the expended cases with the right headstamps obviously only fired the one time; maybe even a receipt from the shop where he bought the cartridges.

But if there's no dispute about the cartridges being those Federal HSTs, it's easy to establish with evidence from the non-involved third party manufacturer that all such cartridges are subject to various quality control protocol during manufacture and can be expected to be consistent within a defined range. But with handloads there is no non-involved third party doing that sort of quality assurance, so how do you establish sufficient consistency to say that the round(s) fired in the incident were consistent with those pulled from the box of handloads?

So if handloads were used, the only way to connect the test exemplars to the incident cartridge is the defendant -- a very interested party. Really? If he's arrested at the scene and his gun and ammo are confiscated, how does the narrative explain that he's some how compromising those pieces of evidence? You're STILL relying on his claim (probably not even a claim -- most likely a question never even asked or answered) that the rounds he fired were the same as the ones in the rest of the mag. Some of our members here admit to mixing up ammo ("Dutch" loads) and police reports of confiscated weapons mention completely random assortments of loaded rounds found in guns they take. This is not some wildly improbable idea.None of this comes up until long after the arrest, when he's going to trial. That's when it comes up that it would be desirable if the rounds he shot were just like those handloads in his box at home. And sometimes the actor isn't arrested at the scene.

...If ammo is taken from a guy's mag (handload OR factory) and tested, then it is assumed to be substantively identical to the rounds fired. ...For getting something into evidence, assuming isn't good enough.

...As pointed out previously in other threads, investigating agencies DO take such into evidence, and DO test it, and DO use their findings in trials....Yes, such evidence is routinely collected by the prosecution. Sometimes it may be offered into evidence at trail. However, evidence is collected and used for many purposes in the course of investigation. Things may be offered by the prosecution as evidence in trial in a variety of contexts and for various purposes.

What we are concerned with is the defense being able to have admitted into evidence expert opinion based on GSR testing for the purposes of corroborating the defendant's story.Right. Why can the defense NOT do this, if the prosecution CAN? Does the defense not have access to the results of the State lab's tests? Can the defense not have trusted, independent labs do their own tests, using the same protocols the prosecution's labs would do? What's the missing link I'm not seeing?...

The defense can do that. But that might not serve their needs. Maybe to effectively tell the defendant's story it would be desirable to have a solid opinion based on solid testing put into evidence.


Yes, the defense would have access to the prosecution's laboratory data. But the defense might need to dispute those results or the conclusions drawn from them. That has happened before and no doubt will happen again. Among other things, some state laboratories are outstanding and some, at times, not so much so. I seem to recall some years ago some criticism of even the FBI lab.


The defense can indeed hire its own expert (as it did in Zimmerman) and have its own testing done. The expert could qualify and the test procedures themselves pass muster.


What you're missing is the need to establish that the exemplars tested were just like the cartridges used in the incident. And, as I've discussed, that's the problem with handloads.

Sam1911
August 7, 2013, 09:10 AM
But if there's no dispute about the cartridges being those Federal HSTs, it's easy to establish with evidence from the non-involved third party manufacturer that all such cartridges are subject to various quality control protocol during manufacture and can be expected to be consistent within a defined range. But with handloads there is no non-involved third party doing that sort of quality assurance, so how do you establish sufficient consistency to say that the round(s) fired in the incident were consistent with those pulled from the box of handloads?Or even the remaining rounds (if any) in the mag? As every one of us handloaders knows, a collection of handloaded rounds can be very similar in makeup, and a ballistics lab would have no trouble disassembling the rounds collected to verify how much of what powder, what bullet, what primer, etc. the shooter was using. And then there would be no question of consistency and of the rounds tested making exactly (to all relevant levels of statistical deviation) the same GSR pattern. The disinterested third party would be the state crime lab (or a verified independent lab engaged by the defense) which would be able to verify -- to a higher degree of accuracy than even an ISO9000 production facility -- EXACTLY what those recovered rounds were composed of.

The only remaining question would be whether or not the shot, or shots, actually fired matched the rounds recovered and analyzed.

..If ammo is taken from a guy's mag (handload OR factory) and tested, then it is assumed to be substantively identical to the rounds fired. ...
For getting something into evidence, assuming isn't good enough.

But, as I pointed out before, that problem exists to exactly the same degree if the shooter had used factory ammo. You're still making a reasonable assumption that the fired rounds matched the rounds recovered in the mag/gun. Since we do accept that assumption (unless some reason exists to indicate otherwise), then testing rounds that match those seems a very simple and non-controversial matter indeed.

What you're missing is the need to establish that the exemplars tested were just like the cartridges used in the incident. And, as I've discussed, that's the problem with handloads.I suppose this is what it boils down to. I can't seem to comprehend why a collection of recovered handloads would be dismissed out of hand as un-verifiable, untestable, and therefore inadmissible rather than being put through the investigative wringer, so to speak, and verified, tested, and admitted for the purposes of GSR pattern evidence?

Surely the loads could prove to be a motley collection of crap (as in the Bias case, IIRC), not able to produce anything consistent, but a great many of us would be able to empty a random selection of our handloaded ammo out of the mag on our belt which would test out to be least as consistent as good factory ammo. A ballistics lab could (and would!) verify this, and then the only assumption to be made is that the specific rounds that happened to be first-up in the mag and were fired at the attacker did indeed match the rest of the lot in our mag. But that's, again, just the same assumption we make as when the shooter was using factory stuff.

We keep coming back to "because it isn't factory ammo" as a prima facie or default answer, but the argument against the ability to test and verify handloaded ammo seems easily surmountable.

Frank Ettin
August 7, 2013, 11:08 AM
Or even the remaining rounds (if any) in the mag? As every one of us handloaders knows, a collection of handloaded rounds can be very similar in makeup, and a ballistics lab would have no trouble disassembling the rounds collected to verify how much of what powder, what bullet, what primer, etc. the shooter was using....That still can not establish what was in the fired empty case(s). The only connection with the contents of the fired empty case(s) is the defendant -- whose freedom might depend on what was in the fired empty case.

...But, as I pointed out before, that problem exists to exactly the same degree if the shooter had used factory ammo. You're still making a reasonable assumption that the fired rounds matched the rounds recovered in the mag/gun....That "assumption" will still need to be established by evidence. As I posited above we might be able to do so with: fresh rounds with the appropriate headstamp in the magazine; a partial box at the guys home; the matching, expended cases with the right headstamps obviously only fired the one time; maybe even a receipt from the shop where he bought the cartridges. If the other side challenges, and the judges declines to accept, that the foregoing supports the interference that the cartridges were all the same factory cartridges made by a third party and meeting the published specifications, then the defendant is in a very bad hole.

But it's still one thing to infer from fresh rounds in a magazine, expended cases fired only once with headstamps matching the fresh rounds in the magazine, and a partial factory box of cartridges consistent with the rounds in the magazine and the expended brass that the fired cartridges were the same as the rounds in the magazine and the remaining matching cartridges in the factory box -- all of which were made by a third party in the business of manufacturing and selling ammunition to the public. It would be another to infer from unfired rounds in a magazine, some spent brass and a box of handloads that the fired rounds were the same as the rounds in the magazine and box -- all of which were made by the defendant for his own use.

...We keep coming back to "because it isn't factory ammo" as a prima facie or default answer, but the argument against the ability to test and verify handloaded ammo seems easily surmountable. Except with handloads, you have no way of knowing independent of the defendant what was in the fired cases. You can only assume what was in the fired cases.

X-Rap
August 7, 2013, 11:12 AM
Sam
I tried to point that out earlier when I said I typically loaded in lots of 1000's and labeled them. I agree that should someone need to make comparisons with what is in my mag they need only to crack a few cans and pull them apart for a simple comparison.
On the other hand, another shooter may have just topped of his mag with factory and thrown the box with the lot number marked on it or bought remans at a gunshow/shop that while done legally they may have mixrd headstamps and show marks from multiple working in a die. Or the shooter could be one of the mixers in which case who the heck knows what came out of the muzzle.
I don't see that ones legal risk is much higher either way if the opposing atterny wants to press the ammo issue.

Sam1911
August 7, 2013, 11:22 AM
Except with handloads, you have no way of knowing independent of the defendant what was in the fired cases. You can only assume what was in the fired cases.And maybe that's (finally!) just the final fulcrum point of the whole debate.

I believe that there is just as much credible support for the supposition that what was in a fired case matches what was in the other un-fired cartridges in a magazine regardless of whether that was one of a collection of handloads or one of a collection of factory rounds. Especially as a ballistics lab can, and would, verify that the other rounds in the magazine were all of a kind.

For example, they remove 10 unfired cartridges from the mag that was in your Glock when they took it into custody. They pull the bullets and all are proved to be 124 gr. Hydrashocks. They weigh each charge and find out that the powder is all HS6, and the charge weights all varied between 6.4 and 6.6 grains. Any round they find or make that matches those characteristics will produce substantively identical GSR patterns.

The claim, by the defense or the prosecution, that the judge should not accept GSR testing of rounds matching that recipe exactly would be absurd -- unless the objector could sustain a claim that the rounds fired specifically did NOT match the rounds collected because of some certain knowledge to that effect.

In that case, the same claim could be made, and would have to be supported to the same degree, if the rounds collected were factory rounds. You'd still be assuming that the shooter had not topped up his mag with a round or two of oddball stuff he had laying around -- WHICH IS EMINENTLY PLAUSIBLE.

Frank Ettin
August 7, 2013, 11:29 AM
...On the other hand, another shooter may have just topped of his mag with factory and thrown the box with the lot number marked on it or bought remans at a gunshow/shop that while done legally they may have mixrd headstamps and show marks from multiple working in a die. Or the shooter could be one of the mixers in which case who the heck knows what came out of the muzzle....And if one did anything like that and it later becomes important that he is able to provide good evidence of what did go out the muzzle, he'll be out of luck. That's just the way it is.

...I don't see that ones legal risk is much higher either way if the opposing atterny wants to press the ammo issue... There are a couple of ways to look at this.

On one hand, it's unlikely that you will need to fire your gun in self defense, and it's unlikely that if you do and you're both smart and lucky about making your decision to use force you'll wind up charged in criminal court, and it's unlikely that if you do wind up in court you'll need the sort of expert opinion that we're discussing based on GSR testing of exemplar.

On the other hand, if that sort of expert opinion becomes important to you, and us can't use it, you might very well be unhappy with the outcome. And being able to protect yourself against that possibility really isn't a very big deal. Using factory ammunition, loading all magazines the same and keeping some partial boxes of the ammunition around should do it.

Maybe a small risk, but taking it off the table isn't hard either.

Sam1911
August 7, 2013, 11:32 AM
All of which leads me to believe that the idea that handloads must or will be rejected under these circumstances is simply taken as writ. That is to say, if a judge hears "handloaded ammunition" and rejects all GSR testing out of hand, that's poor work on his part. It isn't a very well-examined and educated stance to take.

Frank Ettin
August 7, 2013, 11:36 AM
...I believe that there is just as much credible support for the supposition that what was in a fired case matches what was in the other un-fired cartridges in a magazine regardless of whether that was one of a collection of handloads or one of a collection of factory rounds. Especially as a ballistics lab can, and would, verify that the other rounds in the magazine were all of a kind...That still doesn't, nor can it, tell us anything at all about the rounds that were previously fired. If they were handloads, all we can know about them is what the defendant can tell us.

Frank Ettin
August 7, 2013, 11:55 AM
All of which leads me to believe that the idea that handloads must or will be rejected under these circumstances is simply taken as writ. That is to say, if a judge hears "handloaded ammunition" and rejects all GSR testing out of hand, that's poor work on his part. It isn't a very well-examined and educated stance to take. Well maybe this will help, from a discussion of GSR test results on FirearmsID.com (http://www.firearmsid.com/A_distanceResults.htm) (my emphasis in underlined italics, bold in original):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.

The question comes back to how can the exact ammunition used in the case be known (not assumed or guessed at) unless it can inferred with a very high degree of confidence from objective evidence.

Sam1911
August 7, 2013, 12:06 PM
The question comes back to how can the exact ammunition used in the case be known (not assumed or guessed at) unless it can inferred with a very high degree of confidence from objective evidence.Like by recovering the rest of the rounds from the seized magazine and pulling them apart and seeing what was in them and testing that combination?

I don't see, at all, how that is any different from finding a stack of factory ammo in the seized gun and ASSUMING that the rounds fired matched that.

What is the difference?

Sam1911
August 7, 2013, 12:08 PM
That still doesn't, nor can it, tell us anything at all about the rounds that were previously fired. If they were handloads, all we can know about them is what the defendant can tell us.Not so. We can pull the other rounds taken off the defendant at the time of taking the evidence into custody and SEE, for real, what is in them. Don't even need to ask him.

Once more, we're assuming that the other rounds in his mag match the round(s) fired.

Which is the same assumption we're making if he's carrying factory ammo.

Frank Ettin
August 7, 2013, 01:09 PM
Like by recovering the rest of the rounds from the seized magazine and pulling them apart and seeing what was in them and testing that combination?That still only tells us what is in those rounds we examine. The only thing connecting those rounds to the rounds that were fired is the claim of the defendant -- whose interests are served by confirming that the rounds remaining in the magazine were the same as were fired. There is no way to independently establish by examination of the fired cases what was in them. One can only assume they were the same as in the magazine.

With factory ammunition we can base our conclusion on:...fresh rounds with the appropriate headstamp in the magazine; a partial box at the guys home; the matching, expended cases with the right headstamps obviously only fired the one time...

Sam, we're just repeating ourselves, and I can keep this up as long as you can. Do you really want to spend the rest of August on it?

Sam1911
August 7, 2013, 01:50 PM
So, in both cases we're going to make an assumption.

1) There's factory ammo in the mag and the fired cases seem to match those factory rounds. We'll go ahead and accept the imperfect assumption that the rounds fired were actually these same factory loads. Now the shooter COULD have loaded something else for those first few rounds, in new matching cases, but we'll ignore that possibility and proceed with admitting GSR tests.

2) There's handloaded ammo in the mag. The rounds recovered are tested and all match for bullet and charge weight and powder type. However, we cannot accept the imperfect assumption that the rounds fired were similar because the shooter COULD have loaded something else for those first few rounds and then fired only those few rounds at the top of the magazine. We could ignore that possibility, but we won't.

Really? That's what it comes down to?

A materially critical bit of evidence WILL be rejected from admission in the trial because of the seemingly substance-less difference between those two assumptions? That would appear obvious grounds for a challenge.

Sam, we're just repeating ourselves, and I can keep this up as long as you can. Do you really want to spend the rest of August on it?No, I don't really. I think I've finally got this boiled down to the minutiae at the heart of the claim made against handloads. And if that's all there is to it, at least folks can see it in all its glory. :)

Frank Ettin
August 7, 2013, 02:06 PM
...There's factory ammo in the mag and the fired cases seem to match those factory rounds. We'll go ahead and accept the imperfect assumption that the rounds fired were actually these same factory loads. Now the shooter COULD have loaded something else for those first few rounds, in new matching cases,...I've posited multiple items of evidence leading to the inference that the ammunition fired was factory ammunition. We have no actual evidence, just baseless conjecture, that the defendant loaded something else in the rounds fired, and we might even be able to eliminate that possibility by an examination of the tool marks on the fired cases.

...There's handloaded ammo in the mag. The rounds recovered are tested and all match for bullet and charge weight and powder type. However, we cannot accept the imperfect assumption that the rounds fired were similar because the shooter COULD have loaded something else for those first few rounds... Since these are handloads, we know absolutely that the defendant loaded something in the rounds fired. We just don't know what. We might assume that they were the same as the other rounds the defendant manufactured, but the only connection we really have is what the defendant claims.

...I think I've finally got this boiled down to the minutiae at the heart of the claim made against handloads. And if that's all there is to it, at least folks can see it in all its glory....Fair enough.

PJSprog
August 7, 2013, 03:10 PM
Never thought I'd see a post so thoroughly highjacked by "moderators" on THR.

johnandersonoutdoors
August 7, 2013, 03:13 PM
I understand what Frank is saying. It is weird that the rules work that way if you ask me, but if that is how they work that is it.

I find it odd because nobody knows for sure what is inside any given factory piece of ammo either. Yes, Winchester has a recipe for their 9mm 115grain FMJ rounds but the machine may have dropped a smaller or larger amount of powder. So nobody really knows anything for sure it seems.

HOOfan_1
August 7, 2013, 03:14 PM
Never thought I'd see a post so thoroughly highjacked by "moderators" on THR.

I wouldn't say it was hijacked...they are still talking about the topic of whether it is advisable or not to carry hand loads for self defense. Frank is explaining different things which can happen if you end up in court.

Risk management is what it boils down too.
With every aspect of carrying, even carrying itself, there is a risk should you end up in court. Frank is just trying to give information allowing people to assess that risk.

Sam1911
August 7, 2013, 03:29 PM
I understand what Frank is saying. It is weird that the rules work that way if you ask me, but if that is how they work that is it.Well, that's part of the bone of contention. We're not 100% sure how the "rules" work because there are VERY few cases where this has been a material factor. And the one or two cases where it was a factor, even the facts of what happened in the trial are hotly debated so it isn't even clear how this issue affected anything at all, ever.

PJSprog
August 7, 2013, 03:31 PM
I wouldn't say it was hijacked...they are still talking about the topic of whether it is advisable or not to carry hand loads for self defense. Frank is explaining different things which can happen if you end up in court.
It appears to me that Frank is explaining the possible implications of ending up in court over shooting someone. I have yet to see anyone offer a case (let alone overwhelming evidence) that proves carrying handloads is a legal liability. As such, the question posited by the OP is long lost.
Thus, I maintain, highjacked.

Sam1911
August 7, 2013, 03:33 PM
I have yet to see anyone offer a case (let alone overwhelming evidence) that proves carrying handloads is a legal liability. As such, the question posited by the OP is long lost.Yeah, you probably should read through the thread again if you don't understand what Frank's saying about why handloads would be a liability in a trial.

Unless you're suggesting that, literally, simply carrying handloads around with you might be illegal? Obviously not. So really, all this debate is about what happens if you do indeed SHOOT someone with those handloads. Does that make it more clear?

PJSprog
August 7, 2013, 03:38 PM
Oh, I understand "what" he's saying. I also understand that he has provided no solid evidence to support it. Only conjecture. Where is that evidence? Show me where someone has been convicted based on the use of handloads.

Sam1911
August 7, 2013, 04:13 PM
See, there's a lot more to the discussion than that. And there's a lot more to a criminal trial than that. You can't say that a person was convicted "BECAUSE OF" this one factor or that, especially something fairly tangential like what kind of ammo they used.

However, again, there are two factors at play:
1) Do handloads offer the prosecutor a tool to use against you in damaging your appearance in the eyes of the jury? This isn't going to be "THE" deciding factor, any more than using a tricked-out-tactical gun would be, or wearing a "Punisher" skull t-shirt to trial would be. But it conceivably could be influential to the jurors as they're deciding how they feel about your story. And that's what convicts you or acquits you: how they FEEL about your story.

2) Could you use handloaded ammunition in tests to produce Gun Shot Residue patterns that would be used by YOUR defense team to help bolster your case? Frank (and Mas Ayoob) says no, that will (most probably) not be allowed. Others don't agree.

So you can say there has been no case wherein handloads were THE deciding factor. But you can't say there have been no cases where they didn't play some role that hurt (or couldn't help) the defense because we just don't know that.

PJSprog
August 7, 2013, 04:45 PM
See, there's a lot more to the discussion than that. And there's a lot more to a criminal trial than that. You can't say that a person was convicted "BECAUSE OF" this one factor or that, especially something fairly tangential like what kind of ammo they used.

However, again, there are two factors at play:
1) Do handloads offer the prosecutor a tool to use against you in damaging your appearance in the eyes of the jury? This isn't going to be "THE" deciding factor, any more than using a tricked-out-tactical gun would be, or wearing a "Punisher" skull t-shirt to trial would be. But it conceivably could be influential to the jurors as they're deciding how they feel about your story. And that's what convicts you or acquits you: how they FEEL about your story.

2) Could you use handloaded ammunition in tests to produce Gun Shot Residue patterns that would be used by YOUR defense team to help bolster your case? Frank (and Mas Ayoob) says no, that will (most probably) not be allowed. Others don't agree.

So you can say there has been no case wherein handloads were THE deciding factor. But you can't say there have been no cases where they didn't play some role that hurt (or couldn't help) the defense because we just don't know that.
Yes, I understand all of that. I believe, however, that it's not nearly so complicated as some are making it out to be. Your last statement makes my point, though: there is no objective evidence, only conjecture.

The OP asked "Are there any legal ramifications if you defend yourself with hand loads?" The lack of case citation suggests that the answer is no. Anything else is pure speculation, which only serves to further the unsupported fear-mongering surrounding this issue.

PJSprog
August 7, 2013, 04:47 PM
I'm also glad to see that this conversation took a turn back to civility. It was getting kind of ugly there for awhile.

Frank Ettin
August 7, 2013, 06:32 PM
...The lack of case citation suggests that the answer is no. Anything else is pure speculation, which only serves to further the unsupported fear-mongering surrounding this issue. Lack of case citations can also be explained by the rarity of the use of handloads for self defense, compounded by the relative rarity of prosecutions of defensive gun use.

Have another look at post 64 and Al Norris' research. He found only 12 times over a 37 year period in Idaho in which handloads were used in a defensive shooting, and of those only six were prosecuted. So how many times would we expect the particular evidentiary issue to both arise in court and result in a published judicial decision. Most trial court decisions don't result in a published opinion.

But lawyers frequently have to exercise their professional judgment without exactly on point court decisions being available. However, there are court decisions dealing with the admissibility of scientific evidence. Those decisions might not involve GSR testing, but that really doesn't matter from a legal perspective. The same evidentiary principles apply no matter what's being tested and no matter what kind of case it is.

buck460XVR
August 7, 2013, 07:36 PM
The reasoning there is probably not at all what you'd believe. Basically a man who killed his wife in their own home used handloads tried to claim self-defense and there was a theory that his own loads could not be used to support his claims of self-defense due to the inadmissibility of GSR evidence becauase he made the ammo -- though those claims proved to be unfounded.



That's not quite it, but for our purposes what's important is that Bias attempted to introduce expert opinion testimony based on testing of his handloads, which he claimed were identical to the cartridges his wife was killed with. The opinion would have been than the testing supported Bias' claim that his wife shot herself based on the distance from which the shot was fired.

The judge would not permit the introduction of the opinion testimony by the defense into evidence because since handloads were involved there was only Bias' claim that the death round was identical to the cartridges tested.



From my understanding of the case, Bias claimed his wife committed suicide with his gun. Prosecution said it was murder. The reason that the GSR was not admissible is because Bias claimed that that his wife loaded the gun from a box of handloads that contained a mixture of different powder charges and there was no way to verify which charge was in the ammo she used. Testing of the remaining ammo in the gun showed she was shot at a distance impossible for her to do herself. It was the DEFENSE that pushed for the GSR evidence not to be admitted, not the Prosecution. The use of handloads DID NOT convict Bias, but got him OFF. This is why using the Bias case as an example of why not to use handloads for SD is so ridiculous.

In the case of the police officer, there was evidence he was a rogue cop and suspicions he may very well have shot the suspect at a distance greater than he claimed. GSR exonerated him, just as it would anybody by testing the rounds left in the firearm outta that firearm.......or ammo remaining in a labeled box. Where this belief comes from that handloaded ammo does not produce GSR or that the evidence derived from GSR deposited from handloads is unreliable is beyond the realm of reality. If one insists on preaching factory ammo because of possible legal issues, they shouldn't carry. Don't ya know, you are more likely to shoot yourself or someone you know by accident than you are to use your firearm in a SD/HD scenario......and unlike the handload issue, there is evidence to support that claim.:rolleyes:

longdayjake
August 7, 2013, 08:00 PM
Frank, what kind of lawyer were you?

Frank Ettin
August 7, 2013, 08:14 PM
Frank, what kind of lawyer were you? See post 79.

...Where this belief comes from that handloaded ammo does not produce GSR or that the evidence derived from GSR deposited from handloads is unreliable is beyond the realm of reality...I'm sorry that you apparently don't understand the issues. However, in posts 79, 81, 83, and 89 I discussed, based on my professional knowledge and experience, the legal rules for the admission into evidence of expert opinion based on exemplar testing and how those rules would apply to GSR testing. I'm not going to go through all that again.

You're free to believe my analysis or not, as you choose. I do not accept yours and instead will rely on my own professional judgment. I do keep guns loaded at home for home defense, I carry a gun whenever I legally can (mostly on visits to Arizona or Nevada), and I've trained extensively. My self defense guns are loaded with quality, commercial ammunition.

Cosmoline
August 7, 2013, 08:26 PM
That's because to establish the relevance of the tests, which is a threshold requirement for admissibility, it is necessary to establish that what was tested was the same as what was shot in the incident. Indeed it must be established that the conditions of the testing closely mimicked the incident that is the subject matter of the trial.

Can someone provide the rule of evidence that requires this? I'm aware of the 700's and state equivalents. I'm aware of Daubert and Frye. But I'm aware of no rule restricting testing to factory produced ammunition. Is there any authority so holding? If the handloads were produced with a record indicating the charge and other specs, and if that can be verified, then why would the court bar testing based on those same parameters? I can see a box of RANDOM handloads presenting difficulty. But most handloads are produced with greater attention to detail than factory ammo--which is produced based on lots of ball powder and may have considerable variation between production runs as a result. Put another way, there's nothing magical about a factory's process over a handloader's process. If the handloader keeps records and the loads are uniform, then there would be sufficient basis to assume the fired rounds were the same as the rest of the batch. Certainly enough to get in the door. But perhaps there's some case out there saying no, you must be restricted to factory loads only for testing purposes. Is there?

I'm aware of hearsay problems from the defendant's notations of loads, but even if these can't be overcome through the myriad of exceptions, an expert does not need to rely solely on admissible evidence.

The legal issue involved is very specific: the admissibility by the defense of expert opinion testimony based on GSR testing of exemplars for the purposes of corroborating the defendant's story of how a claimed self defense shooting happened. At least two other lawyers, Spats McGee and Bartholomew Roberts have agreed that getting such opinion testimony admitted into evidence is going to be highly unlikely if handloads were used.

Was GSR evidence from a batch of recorded and marked handloaded ammo ever excluded from trial?

That still can not establish what was in the fired empty case(s). The only connection with the contents of the fired empty case(s) is the defendant -- whose freedom might depend on what was in the fired empty case.

So you say, but is there any authority on this? I can find a long list of cases on the admissibility of PET scans under various rules. I can find reams of cases dealing with lie detector tests. Ditto on computer simulations. But handloads? There's nothing. So legally it seems to be a non-issue. It only becomes an issue on these boards.

As far as testing the defendant's records, that's easy enough. Check the other loads. If they're all the same, then it's a real stretch to claim the fired rounds were different. And of course all of this goes to WEIGHT not admissibility. The expert could be crossed on the potential discrepancy, but if the DA's plan is to argue that the defendant was so clever he made 48 cartridges identical but changed the load for the last two in order to throw off ballistics to his favor, well then he needs some other plan.

buck460XVR
August 7, 2013, 09:02 PM
I'm sorry that you apparently don't understand the issues.

I do understand the issues Frank. I have discussed this issue before here and with my local D.A. In his opinion GSR evidence from reloads is just as admissible as factory as long as there is sufficient reason to believe that the remaining cartridges are the same. No different than claiming you were using factory loaded ammo.

You're free to believe my analysis or not, as you choose. I do not accept yours and instead will rely on my own professional judgment. I do keep guns loaded at home for home defense, I carry a gun whenever I legally can (mostly on visits to Arizona or Nevada), and I've trained extensively. My self defense guns are loaded with quality, commercial ammunition.

We are all free to believe as we choose. We all should use what we are most proficient with and what we are comfortable using. In the end it is our lives or the lives of our loved ones we are trying to protect. If the scenario ever comes up that any of us have to use deadly force to defend ourselves, odds are our lives and our economic status will be changed forever, regardless of what ammo we have in our gun. Odds are, and history shows us, that whether it's factory or handloads, in a legitimate SD scenario, the ammo is of no consequence as to the final outcome. That is all the evidence I need.

Frank Ettin
August 7, 2013, 09:22 PM
Can someone provide the rule of evidence that requires this? I'm aware of the 700's and state equivalents. I'm aware of Daubert and Frye. But I'm aware of no rule restricting testing to factory produced ammunition. Is there any authority so holding? ....I've not found any case dealing with authentication of exemplars. The cases I've seen are primarily product liability cases in which the test exemplars are other examples of the same instrumentality or product that was involved in the matter, so the question of authenticity doesn't arise.

The fundamental issue I see is that in the case of handloads, the only basis upon which to conclude that the rounds fired matched the rounds tested would be the claim of the defendant -- who has a direct interest in the result. I've discussed this reasoning at length already, so there's really no reason to repeat it. But let me again point to post 89:

...from a discussion of GSR test results on FirearmsID.com (http://www.firearmsid.com/A_distanceResults.htm) (my emphasis in underlined italics, bold in original):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.
....

The fundamental concept is the doctrine of substantial similarity (http://www.herzfeld-rubin.com/publ_products_201007.htm). As noted in the linked article (emphasis added):... The objective of the "substantial similarity" requirement is to prevent misleading the jury, which may attach exaggerated significance to a "scientific" test or demonstration. The legal standard is not a test's duplication of actual conditions. Instead, the relevance of experimental evidence depends on whether or not the experiment was performed under conditions substantially similar to those of the actual occurrence sought to be proved.

The "substantial similarity" criterion is fact-dependent. Obviously, a scintilla of "similarity" is not enough. Neither is exact replication of conditions required. Between these extremes lies a gray area ripe for advocacy and trial court discretion. "Fairness" concerns and "relevance" criteria play a significant role. The burden of demonstrating substantial similarity of test conditions to accident conditions is on the proponent of the demonstrative evidence....I doubt that the defense will be able to meet its burden of showing substantial similarity when the claim that the exemplars match the incident ammunition rests solely on the interested defendant's word.

...Was GSR evidence from a batch of recorded and marked handloaded ammo ever excluded from trial?...Nor have I found a case in which it was offered. Are you aware of a case in which it was offered and admitted?

The absence of cases is discussed in post 105.

...I'm aware of hearsay problems from the defendant's notations of loads, but even if these can't be overcome through the myriad of exceptions, an expert does not need to rely solely on admissible evidence... Well let's look at one codification of a standard. In Delaware, a number of specific standards have been codified (State v. Cooke, 914 A.2d 1078 (Del. Super., 2007)), one being that (D.R.E.703):The bases for the opinion are those reasonably relied upon by the experts in the field;

Let's also look at Rule 703 of the Federal Rules of Evidence:An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

So perhaps it might come down to what assurance a diligent expert would require that the exemplars he was testing actually matched the rounds fired in the incident, because that would have to be material to his opinion. If he simply accepted the defendant's claim and had no more objective basis upon which to verify substantial similarity, I would be happy to have a go at impeaching the expert.

Frank Ettin
August 7, 2013, 09:26 PM
...I have discussed this issue before here and with my local D.A. In his opinion GSR evidence from reloads is just as admissible as factory as long as there is sufficient reason to believe that the remaining cartridges are the same....Well that's the issue. And as I've discussed here at length I doubt that the defense will be able to establish that there is sufficient reason to believe that the remaining cartridges are the same -- when that is based on the self serving claim of the defendant whose interests are furthered by the remaining cartridges being the same.

Jim Watson
August 7, 2013, 09:34 PM
Doggone it.
You are talking me out of loading my own carry ammo.
And I can't buy what I want.

Robert
August 7, 2013, 11:59 PM
I reopened this to allow for further discussion and presentation of additional information.

longdayjake
August 8, 2013, 01:10 AM
In managing litigation as a lawyer and officer for a major health insurance and health care company, I was frequently involved in working out strategies for getting scientific and expert opinion evidence introduced into evidence. I thus have personal, professional knowledge and experience relating to laying the sort of foundation necessary to get such evidence introduced.

So do you have any criminal law experience? If not, that is something that you should probably notify everyone about before you claim to have knowledge on the workings of criminal procedure. I mean, would you feel comfortable defending or prosecuting someone in court on a criminal charge of murder? Cause that is really what we are talking about here.

Frank Ettin
August 8, 2013, 01:17 AM
...I mean, would you feel comfortable defending or prosecuting someone in court on a criminal charge of murder? Cause that is really what we are talking about here.While I wouldn't be qualified to defend someone on a criminal charge, we're not talking about criminal procedure here. We're talking about the rules of evidence that apply to the introduction of expert opinion testimony based on exemplar testing. Those rules apply in the same way in all types of cases -- criminal and civil.

BullfrogKen
August 8, 2013, 01:31 AM
I thought we had settled the misstatements, mischaracterization, and untruths about the Bias case a year and a half ago. I’ve heard this quite enough, and you really need to let your version of the story go. Massad said that in his magazine article, and it’s just not true. If you want to challenge someone’s reading comprehension skills, challenge your own. You said, post #56,

Indeed in Bias the handloads Bias claimed were like the death round produced at the distance Bias claimed the shot was fired from a very different pattern from the commercial cartridges the State tested (which evidence itself was not allowed at a later trial). - emphasis added

Patently false. A year and a half ago I illustrated that New Jersey’s State Ballistic Lab did NOT use commercial 38 Specials in their testing. They seized the unexpended handloaded ammunition from the gun, and handloaded ammunition found in the desk up in the attic of Bias’ home. They identified the bullet that killed Lise Bias. Leisinger disassembled the ammunition seized, both the rounds in the gun and the rounds in the attic, and in the lab produced the same type of handloaded ammunition to conduct their tests.

Publicly accessible citation, so no one can assert I’m using super-secret “I can’t tell you or I’d have to kill you” sources - http://articles.mcall.com/1990-10-30/news/2773663_1_mrs-bias-residue-bullets

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.

Leisinger conducted gunpowder residue tests on both types of hand-loaded bullets at distances of 20 inches, 30 inches, 45 inches and 50 inches. Both types of bullets left heavy residue at 20 inches and medium residue at 30 inches. Leisinger noted that traces of residue were found at 45 inches and none was found at 50 inches.


In the lab Leisinger handloaded both the round that caused her death – the 110 gr rounds, and those not actually used – the 133 gr rounds. He even tested a large variety of ammunition found nowhere at the scene, “just to see” if he could find any combination of powder and bullets that could cause the fatal injury but not leave any trace of GSR.

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.

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."


In case I’ve lost you, three things happened here:
1 – Factory ammunition was not used to conduct the GSR testing for these trials, all of them. Cease and desist telling everyone it was.
2 – Bias’ handloads were examined, reproduced, and tested. Extensively. Additional experimentation with rounds significantly different from the round that killed Lise were also tested.
3 – The juries heard that testimony. It made it into evidence. In each trial. Under different judges.

The defense team were the ones who actually fought to keep that handloaded GSR testimony out. They brought in witnesses to impeach it. Christ, you even had Leisinger telling the jury that the handloading process can be very accurate.

George Fassnacht, a former weapons officer for the Central Intelligence Agency (working for the defense) 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.


Which is utter horse puckey. Even us non-expert laypeople here know when a gun is in close proximity to a body, like Daniel claims it was when Lise was attempting suicide, there will be GSR on the deceased. When the lack of GSR was weighed against the rest of the evidence, the jury convicted him in her death. She was right handed, and that round entered the left side of her skull. Daniel said she had the gun in her left hand when he tried to pry it from her. Her friends and family said she was not depressed or suicidal. Under questioning by police, Daniel materially changed some of his statements.

Regardless, your version of the story is wrong. Handloaded ammunition was tested, the results testified to before the juries, and it helped the state convict Daniel Bias.

Can you stop telling a false version of the events so we stop rehashing this ground now?

BullfrogKen
August 8, 2013, 01:32 AM
I’ve suggested that even without the gun at all, significant amounts of information can introduced about the proximity of the gun to the person shot with it. If Johnny Mobster shot someone and threw the gun in the East River, never to be found, the science of GSR is advanced enough that certain conclusions can still be made concerning proximity.

I mentioned the Zimmerman case earlier. Dr Di Maio used precisely that body of work when he described the nature of the fatal gunshot wound to Martin.

http://www.youtube.com/watch?v=xjZmp4B8IHs

Beginning a little after 14:30 he discusses what happens as a round is fired in slow motion detail, and the nature of GSR it produces. In front of the jury. He didn’t need to conduct actual testing with the gun to do it.

But the real meat is at 40:00 when for nearly 20 minutes he discusses the GSR in the Zimmerman case, how he knew with certainty just from the generic nature of GSR how far the muzzle was, in terms of inches, from Martin. He even knew the round contained ball powder from the nature of the tattooing, which the state’s firearms examiner also said it was in the report. It’s quite enlightening, and exactly what we’d expert from Dr Di Maio. Well worth the time to watch.

Here’s the cross:

http://www.youtube.com/watch?v=xjZmp4B8IHs

It seemed the prosecution didn’t want to touch it. They knew what the GSR shows, and it supported the claim that Martin was on top of Zimmerman when he was shot.

Dr Di Maio didn’t have to go through hours of testing with the specific gun and the specific rounds to come to his conclusions and get his opinion in front of the jury. My, how did that happen? According to you, it shouldn’t have been allowed. And this was a tough case to argue, with all the prosecutorial shenanigans and a judge who didn’t let the defense have much leeway at all. Isn’t that interesting? No exemplars, none of this highly complex ballet of proving the round used matched the rounds tested and getting factory ammo sent to them from the same lot and such. He simply stated his opinion, from what his 40 years of experience has taught him about gunshots, in very discreet terms of the proximity of the gun, and the position of Martin the instant he was shot. And it was permitted.

I simply cannot fathom why you have such a disconnect here. Factory ammo you think won’t be impeached because you do that exercise you go through when you stuff it in your magazines. And I think we’ve seen here than even without the gun in evidence, some degree of confidence regarding proximity can be determined merely based upon the general nature of GSR. But you want us to believe if you used handloads, none of that body of work will be available to aid you, not even the general nature of GSR.

Can you not see the strained mental gymnastics you’re asking us to accept in that argument?

BullfrogKen
August 8, 2013, 01:33 AM
Just because you practice healthcare law, you’re not an expert on criminal law. Right now you are on equal footing with the rest of us. And if I may, when I used citations to support my arguments last year, I didn't quote myself and take the position, "the matter is settled; I spoke; I know; you don't; end of discussion". I actually went out and did some hard work that added value to the discussion.


I really don't appreciate the "I'm a lawyer and you're not, so your input is of dubious value.” I thought I'd done a pretty good job last year debunking the misinformation surrounding what actually occurred in the Bias trials. I was disappointed to see you retell the same story this week as if that conversation never took place. I really don't want to embarrass you out in open forum, but your understanding of the criminal law process and the various actors in it does not at all square with the people who actually make their livings and careers practicing it. I think you'd be pretty upset if some criminal defense lawyer thought he knew everything about medical malpractice and product liability law because, "hey, I'm a lawyer, dontchaknow."

And as much as you go throwing your credentials around on this topic when it’s introduced, and demeaning the messenger without actually addressing the message, you do place a good amount of faith in non-attorneys who say what you like to hear. Even when I’ve shown what’s been said isn’t true.

Like I told you privately, I'm not interested in defending handloads. I'm interested in an honest discussion about them.

So let's have one, ok?

Frank Ettin
August 8, 2013, 02:21 AM
I thought we had settled the misstatements, mischaracterization, and untruths about the Bias case a year and a half ago. I’ve heard this quite enough, and you really need to let your version of the story go. Massad said that in his magazine article, and it’s just not true....Yes Ken, I understand that you disagree with things Massad Ayoob said in his article on Bias, and I also understand that I relied on his article. I'm not going to debate Bias, because at this stage it doesn't matter.

In my posts, above, I discussed the law relating to the introduction into evidence of expert opinion testimony based on exemplar testing. Since post 57 I haven't mentioned Bias, and I made only passing reference in post 56. I'll strike my response to Sam's question there. It won't really make a difference.

In any case, my comments above, and without reference to Bias, speak for themselves, and there's no reason to repeat everything here. I'm comfortable that I've generally described the evidentiary rules for he introduction into evidence of expert opinion testimony based on exemplar testing. I've attempted to relate those rules, which are rules of broad applicability, to GSR testing through general legal principles.

I've pointed out that I've uncovered no cases directly on point and hypothesized why (see post 111). Without cases, we must fall back on general legal principles; and I've pointed out, based on those principles why handloads make problematic the introduction into evidence of expert opinion based on exemplar testing.

Anyone is of course free to disagree. However, I order my own conduct based on my view. Perhaps if cases arise in the future they will either prove me right or wrong.

...I’ve suggested that even without the gun at all, significant amounts of information can introduced about the proximity of the gun to the person shot with it....Yes, and I acknowledged that in post 79, paragraph 7. The link you provided to the FirearmsID.com (http://www.firearmsid.com/A_distanceResults.htm) site shows a number of ways GSR residue and be evaluated, including by observation without the gun or ammunition, or by testing if the exact gun and ammunition can be identified. As described at that link, the various circumstances and means of evaluation will support opinions with varying amounts of information -- with proper testing apparently providing the most information.

...I simply cannot fathom why you have such a disconnect here. Factory ammo you think won’t be impeached because you do that exercise you go through when you stuff it in your magazines. And I think we’ve seen here than even without the gun in evidence, some degree of confidence regarding proximity can be determined merely based upon the general nature of GSR....I understand your views here, and if an expert opinion based on observation of physical evidence, as was Dr. Di Meo's testimony in Zimmerman, and as described in the FirearmsID.com (http://www.firearmsid.com/A_distanceResults.htm) page linked to above, would suit the defendant's evidentiary needs, then the use of handloads would not be an issue.

But we've been talking since the beginning about the introduction into evidence of expert opinion based on exemplar testing. As outlined on that page, different methods of evaluation will yield more or less information. Testing will provide the most. If testing would better suit the defendant's needs, and he used handloads, I still submit for the reasons stated that he will have evidentiary problems. Maybe future cases will prove me right or wrong. At this stage there are no definitive cases on point so I have to rely on general legal principles.

...Just because you practice healthcare law, you’re not an expert on criminal law....This is not a criminal law issue. This involves the law of evidence. Evidence law is the same in all types of matters -- civil and criminal.

...Like I told you privately, I'm not interested in defending handloads. I'm interested in an honest discussion about them.

So let's have one, ok? I think we've had one. I'd say I'm done. I laid out my views (without reference to Bias), and you, or anyone else, can decide if I know the law or I do not.

blarby
August 8, 2013, 04:05 AM
So, can we just sticky this one , and point every thread that comes up on carrying handloads from the next week onward towards this thread- memorialized forever ?

It does get kinda exhausting seeing it over and over again. Especially the Bias misrepresentation.

ngnrd
August 8, 2013, 05:32 AM
Ken - thanks for your last few posts.

BullfrogKen
August 8, 2013, 08:56 AM
I've pointed out that I've uncovered no cases directly on point and hypothesized why (see post 111).

OK. I'll go read that one.



...Was GSR evidence from a batch of recorded and marked handloaded ammo ever excluded from trial?...

Nor have I found a case in which it was offered. Are you aware of a case in which it was offered and admitted?


Really? Not a single case? You can't think of a single case where GSR testing was developed from a defendant's handloads, and admitted at trial?



For everyone else still following, can any of you non-attorneys think of a case we discussed recently where handloaded ammunition was duplicated, tested, and those GSR test results admitted at trial?

Elkins45
August 8, 2013, 09:35 AM
The very fact there is this much acrimony and disagreement among firearms enthuseasts (who presumably are more knowledgable than the average jury member) makes me trust my decision to carry factory ammo even more.

You know what we haven't seen in the previous 123 posts? We haven't seen an argument advanced that carrying factory ammo puts you at a legal DISadvantage.

I practice with handloads that functionally duplicate my defensive ammo, but I carry stuff that came fresh out of the factory box. Betting $20 against a potential $10,000 in additional legal expenses beyond the cost of a 'normal' trial for a defensive shooting seems like a good bet to me.

zxcvbob
August 8, 2013, 10:27 AM
For everyone else still following, can any of you non-attorneys think of a case we discussed recently where handloaded ammunition was duplicated, tested, and those GSR test results admitted at trial?

Bias?

I have kind of wondered about the suppression of GSR testing when (for instance) we are talking about such close ranges that *any* ammo would leave some residue -- the dispersal pattern would be much more dependent on the gun than the ammo. It could still happen if the judge and the prosecutor are good buddies who get together over drinks after work and discuss how to screw the defendant. Is the system THAT corrupt yet?

(I just thought of this) all this discussion does show why putting mixed loads -- factory or otherwise -- in your gun might be a bad idea. Let's say you load 2 rounds of .38-44HV (short .357 Magnums) in the cylinder, followed by four .38 Specials. You want more stopping power in those first 2 shots, then quicker followups if they didn't get the job done. Or something like that, I know you've heard people talk about doing that sort of thing with shotguns. In a self-defense shooting you only shoot the first 2. Now you have 4 example rounds in the gun that don't match at all the ballistics of what you actually shot. The state tests those rounds and you don't like their conclusions; gonna be a hard case to argue. And the brass looks the same.

buck460XVR
August 8, 2013, 10:35 AM
And as I've discussed here at length I doubt that the defense will be able to establish that there is sufficient reason to believe that the remaining cartridges are the same -- when that is based on the self serving claim of the defendant whose interests are furthered by the remaining cartridges being the same.


As opposed to what? The self-serving claim of the prosecution that the remaining cartridges MAY not be the same? Who's interests are furthered by the remaining cartridges being different? How is that any different in factory than in handloads?

buck460XVR
August 8, 2013, 10:50 AM
You're free to believe my analysis or not, as you choose. I do not accept yours and instead will rely on my own professional judgment.

One thing the extensive coverage of the Zimmerman trial was to expose all of us to many different Criminal lawyers. There were several on multiple panels on every news station on cable. One thing that was very evident from this, is that Lawyers are very opinionated and feel very strongly about their opinions. Another thing that was very evident, was that many of them were wrong in their judgement....altho they were supposedly the cream of the crop in their field. It was also evident that many of their opinions were biased and based on subjective thinking. They were just human, it is understandable. Again...... I have no problem with what other folks use in their SD firearms. I hope they are as comfortable in their decision as I am in mine.

Frank Ettin
August 8, 2013, 01:02 PM
Really? Not a single case? You can't think of a single case where GSR testing was developed from a defendant's handloads, and admitted at trial?It's not that I can't think of a case. I searched a legal data base I subscribe to of all reported decisions published by every state and federal court in the United States. I did multiple searches using various search parameters (both Boolean and natural language).

What we are really looking for in order to have something reliable to be able to cite in other cases is a published decision of a court on the question.

Frank Ettin
August 8, 2013, 01:06 PM
And as I've discussed here at length I doubt that the defense will be able to establish that there is sufficient reason to believe that the remaining cartridges are the same -- when that is based on the self serving claim of the defendant whose interests are furthered by the remaining cartridges being the same.


As opposed to what? The self-serving claim of the prosecution that the remaining cartridges MAY not be the same? Who's interests are furthered by the remaining cartridges being different? How is that any different in factory than in handloads?It is the burden of the party offering the evidence to convince the judge of its admissibility. As to the question regarding factory ammunition, I outlined that multiple time in posts above.

ReloaderFred
August 8, 2013, 01:22 PM
This whole argument comes up every year or so, and what it boils down to is each person will make a decision that they will live by if they ever have to use deadly force. Only that person, and their legal representative(s), will be bound to defend whatever that decision has been.

I made my decision while still working in my chosen career in Law Enforcement, where I testified as an expert witness on firearms on the witness stand. After being grilled by attorneys on both sides of the issue, I decided to limit the questions as far as ammunition is concerned in any case that might concern my own use of deadly force. With that said, if I happen to run out of factory ammunition, and I'm still able to fight back, I'll use whatever I have at my disposal to try to win the battle, and let the chips fall as they may, but all my carry handguns are loaded with factory ammunition. It's my choice, and only I have to defend it.

Hope this helps.

Fred

PS: These discussions usually solve nothing, and only result in hard feelings between the posters. This will be my only post on the issue, since I see no sense in continuing with it.

longdayjake
August 8, 2013, 02:32 PM
I think it is worth bringing this issue up every year or so. Especially as time goes by and new cases can be presented to justify either side of an argument. The thing about the law is that it is fluid and evolving with each judicial decision. Years ago, before carrying was as widely accepted as it is today, courts may have looked at handloads differently as they do today. As handloading becomes all more common, courts will have to adjust the way they accept evidence in relation to handloaded ammo.

We're talking about the rules of evidence that apply to the introduction of expert opinion testimony based on exemplar testing. Those rules apply in the same way in all types of cases -- criminal and civil.

Yes, you are correct in that the written rules of evidence apply equally. However, precedent shows that the standards for admission are different for civil and criminal cases. The standard for a criminal defendant to get evidence admitted is a lot less strict than in a civil case. How do I know this? I wrote a brief about it. The rules say one thing. Precedent often says another.

zxcvbob
August 8, 2013, 02:40 PM
The sad thing is, every time someone asks about what bullet or powder to use for loading self-defense ammo, instead of just asking "are you sure you want to do that?" and linking one of these thread (and then answering the original question) the thread is immediately derailed into yet another rehash of this and it never gets back on track.

Lj1941
August 8, 2013, 03:41 PM
I have followed this thread for quite a while. There are some good arguments both pro and con on whether or not a person should carry handloads for personal defense. I have decided that the advantages of using hand loads are overweighted by the possible consequences of their use. I will carry the best factory defense load possible from this day forward.I would rather take free advice offered on this forum than have to pay an attorney in the unlikely but possible event that I have to use deadly force.Thank you Frank for your input .Your input was the deciding factor for me!:evil:

Frank Ettin
August 8, 2013, 03:41 PM
...However, precedent shows that the standards for admission are different for civil and criminal cases. The standard for a criminal defendant to get evidence admitted is a lot less strict than in a civil case. How do I know this? I wrote a brief about it. The rules say one thing. Precedent often says another.Do you have some of the citations from your research still handy? I'd like to have then available in my library. If you do, please send me a PM.

And it would be interesting to see how that would play out in a criminal case involving GSR testing. As I've noted, my research did not find any reported cases (i. e., in our jargon that means a formal decision published by the court making the ruling) on the question.

rugerman
August 8, 2013, 07:28 PM
I've been reloading (rifle & pistol) since the early 70's, most of my guns have NEVER fired a factory round. I always carry my reloads, in every thing that I shoot that can be reloaded for (exception- 22 rimfires)

buck460XVR
August 8, 2013, 08:11 PM
I think it is worth bringing this issue up every year or so. Especially as time goes by and new cases can be presented to justify either side of an argument. The thing about the law is that it is fluid and evolving with each judicial decision. Years ago, before carrying was as widely accepted as it is today, courts may have looked at handloads differently as they do today. As handloading becomes all more common, courts will have to adjust the way they accept evidence in relation to handloaded ammo.





I gotta agree. Altho I may not agree with some folks here, I respect their opinions and enjoy the different point of view. If there ever is solid evidence contrary to what I believe, I hope they don't hesitate to come here and show/tell us.

beatledog7
August 8, 2013, 10:28 PM
The only rounds I've ever had fail to fire were factory rounds.

I do carry factory rounds in my usual CCW, but some day (even though I practice with them sparingly and most often use a handload designed to be very close) I'm going to run out of my favorites, and they are hard to find. I'll start carrying handloads when they're gone, and I won't worry a bit about what some prosecutor has to say about them.

My logs are sufficient to show beyond a doubt that everything I handload is semi-hot or less; nothing I load is in any way sinister or designed to go through an inch of steel of rip limbs off or any such nonsense as that.

Kleanbore
August 8, 2013, 11:02 PM
Posted by parisite: As I've said here in the past, a justified shooting is a justified shooting, no matter the ammunition.Regardless of whether you or someone else has said it before, that is a true statement. It is unimpeachable.

The problem arises when it comes to establishing after the fact whether a shooting was justified. Without a sound and video record from beginning to end, with multiple perspectives, that can be difficult to address, and subject to great uncertainty.

Gunshot residue (GSR) evidence is routinely used in shooting investigations.

On some occasions, it may be important to the defender as a defendant to introduce GSR pattern test evidence from exemplar ammunition of the type used in a shooting. Such evidence may be critical to countering other forensic evidence and/or unfavorable eyewitness testimony.

The applicable rules of evidence, whether derived from Frye v. US or Dow v. Merrell Dow or something else, depending upon the jurisdiction, and within jurisdictions, possibly depending upon whether the question relates to criminal culpability or civil liability, will mitigate very strongly against the introduction of such evidence if the ammunition used had not been assembled by a third party under controlled conditions, and the assembly records kept under independently controlled custody. That is something that some, but not all, experts understand. I have been trained in that field.

Many people do not understand that, and still others seem to refuse to accept it. Let us hope that they never learn it the hard way.

I understand the advantages of hand loaded ammunition. Given a choice, however, I will not carry it for self defense. It is a very simple matter of objective risk management.

Kleanbore
August 8, 2013, 11:16 PM
Posted by PJSprog: The OP asked "Are there any legal ramifications if you defend yourself with hand loads?" The lack of case citation suggests that the answer is no. Anything else is pure speculation, which only serves to further the unsupported fear-mongering surrounding this issue.I really hate to put it quite this way, but that statement indicates a lack of understanding of the principles of both legal principles and risk analysis.

We have a sticky in ST&T that touches on that concept. If it is not sufficiently clear, we can try to address that.

357 Terms
August 9, 2013, 09:35 AM
If it is not sufficiently clear, we can try to address that.

I think this thread has been trying to address the issue, what seems clear is the argument against using handloads is based on speculation, pure and simple.

Kleanbore
August 9, 2013, 09:49 AM
Posted by 357 Terms: ....what seems clear is the argument against using handloads is based on speculation, pure and simple.Mr. Terms, you have repeated that assertion over and over ad nauseum over the last several years.

Debating it with you is not productive, but for the benefit of others:

The use of GSR evidence is routine in shooting investigations.
As a matter of law, it is up to the defender to present evidence of justification.
Witness testimony and other evidence sometimes contradict the account of the defender.
GSR test evidence of the defender's ammuntion can, within limits, establish the distance at whaich a shooting took place, which can, of course, come into question and which can have a lot to do with the way the defendant's credibility is assessed by the triers of fact.
If the defendant used handloaded ammuntion, his chances of getting test results or expert witness testimony regarding same admitted into evidence are virtually zero, due to legal precedents that address admissibility of evidence and of expert testimony.


None of that is "speculation."

RealGun
August 9, 2013, 09:51 AM
Kleanbore - I understand the advantages of hand loaded ammunition. Given a choice, however, I will not carry it for self defense. It is a very simple matter of objective risk management.

Then smaller .357 Magnums cannot be carried with anything more than off-the-shelf .38 Spl in many people's hands, because my own experience is that such a gun requires custom ammo to be reasonable to shoot .357 Magnum in a small, lightweight platform. I was of the school that carried only commercial SD ammo until I acquired a Ruger SP101 3+" in .357 Magnum. If I had a short .44 Magnum, I would likely have the same issue, however then I would have to fight the .44 Mag stereotype and explain why I needed a "cannon" or didn't choose to shoot .44 Special.

357 Terms
August 9, 2013, 09:57 AM
If the defendant used handloaded ammuntion, his chances of getting test results or expert witness testimony regarding same admitted into evidence are virtually zero, due to legal precedents that address admissibility of evidence and of expert testimony.


Zero chances?...zero?

Kleanbore
August 9, 2013, 09:59 AM
Posted by RealGun: Then smaller .357 Magnums cannot be carried with anything more than off-the-shelf .38 Spl in many people's hands, because my own experience is that such a gun requires custom ammo to be reasonable to shoot .357 Magnum in a small, lightweight platform.I don't know how that relates to the evidentiary question, but I see no reason to carry anything other than factory .38 ammunition in a light .357. That's what I carry when I carry a revolver. Heck, that's what I keep in an L-Frame in the house.

If I had a short .44 Magnum, I would likely have the same issue, however then I would have to fight the .44 Mag stereotype and explain why I needed a "cannon" or didn't choose to shoot .44 Special.Why would the necessity for any such explanation ever arise?

Kleanbore
August 9, 2013, 10:07 AM
Posted by 357 Terms: Zero chances?...zero?Essentially, yes.

For anyone who may be interested in learning why, here (http://thefiringline.com/forums/showpost.php?p=5593548&postcount=66) is an excellent explanation written by an attorney.

Sam1911
August 9, 2013, 10:23 AM
If the defendant used handloaded ammuntion, his chances of getting test results or expert witness testimony regarding same admitted into evidence are virtually zero, due to legal precedents that address admissibility of evidence and of expert testimony.Except that that really hasn't held up to scrutiny, as Ken has pointed out now in two threads.

And now that I think it is clear to all that the Bias case does not in any way validate the idea, (despite the claims made by someone in the popular press) and there don't seem to be any other cases to point to where what we're saying COULD happen, DID happen, this is simply a truism. A legal practice good idea. A reasonable bet, but not a solid one.

When you look at just how far down the "rabbit hole" the case has to go -- how many factors have to turn against you, from the very basic question of being arrested and prosecuted in the first place, to you needing GSR testing to prove your self-defense claim, all the way to the ruling by a judge that he's not going to allow handload testing for GSR purposes when several judges in Bias DID, then the extreme amount of warning and alarm and anxiety over the matter appears to be a tempest in a teacup raindrop.

RealGun
August 9, 2013, 10:40 AM
RealGun: Then smaller .357 Magnums cannot be carried with anything more than off-the-shelf .38 Spl in many people's hands, because my own experience is that such a gun requires custom ammo to be reasonable to shoot .357 Magnum in a small, lightweight platform.

Kleanbore - I don't know how that relates to the evidentiary question, but I see no reason to carry anything other than factory .38 ammunition in a light .357. That's what I carry when I carry a revolver. Heck, that's what I keep in an L-Frame in the house.

It "relates" directly to the OP. What you carry does not relate to the "evidentiary" question either, does it. Does it need to?

You aren't loading a .38 Spl. It's a .357 Mag. The model SP101 is also available in .38 Special, and if that is what someone wants, they should buy it instead.

If I had a short .44 Magnum, I would likely have the same issue, however then I would have to fight the .44 Mag stereotype and explain why I needed a "cannon" or didn't choose to shoot .44 Special.

Kleanbore - Why would the necessity for any such explanation ever arise?

Because carrying such a gun can be, in my opinion, interpreted as aggressive rather than defensive.

buck460XVR
August 9, 2013, 10:45 AM
Except that that really hasn't held up to scrutiny, as Ken has pointed out now in two threads.

And now that I think it is clear to all that the Bias case does not in any way validate the idea, (despite the claims made by someone in the popular press) and there don't seem to be any other cases to point to where what we're saying COULD happen, DID happen, this is simply a truism. A legal practice good idea. A reasonable bet, but not a solid one.

When you look at just how far down the "rabbit hole" the case has to go -- how many factors have to turn against you, from the very basic question of being arrested and prosecuted in the first place, to you needing GSR testing to prove your self-defense claim, all the way to the ruling by a judge that he's not going to allow handload testing for GSR purposes when several judges in Bias DID, then the extreme amount of warning and alarm and anxiety over the matter appears to be a tempest in a teacup raindrop.

...add to that, the fact that none of the anti-handload crowd has EVER been able to give an example of where the use of handloads, in a legitimate SD scenario, has been the reason for a bad shoot conviction, tells me that zero cases outta thousands means the probability of it happening is improbable.

Except for the could happens, might happens. Kinda like crossing' a road. You don't cross a road when ten semi's are barrelin' down on you @ 70 MPH, you wait till the traffic has cleared, because there is a 100% chance you will get hit. If you can not see a vehicle in any direction your chances are now 100% that you won't get hit.....by a vehicle. There's always the chance of a meteor. Don't laugh. The probability of that happening using actual data, is greater than goin' to jail for using handloads.

weemsf
August 9, 2013, 11:08 AM
I am a reserve deputy, an armed Chaplain in fact. I use Department Ammo in my personal defense guns for both my wife and I. That means Speer Gold Dot. I bought several boxes of each caliber I needed some time back. The Department issues me one box in 40 S&W for my issued duty weapon and we are responsible for our own backup gun's ammo. We are given 60 rounds of 223/5.56 for our patrol rifles.

If we expect to be covered under the department's insurance, we must be using approved ammo. I understand that the average person does not have these same concerns. However, if you can obtain the same brand ammo as your local PD is carrying, it would be a wise decision in my opinion.

I, like many of you, reload. If I run out of my issue ammo, and there are still bad guys around, I will use whatever I have to stay alive and deal with the consequences afterward.

PJSprog
August 9, 2013, 11:08 AM
I really hate to put it quite this way, but that statement indicates a lack of understanding of the principles of both legal principles and risk analysis.
Well, your opinion is noted. I, too, hate to put it quite this way, but your statement indicates a lack of understanding of the question at hand.

Are there any?
No one in this thread - not you or Frank or anyone else - has been able to provide a single example of any legal ramifications from the use of handloads. That is the point of my statement. Yet somehow it's the rest of us who don't understand? We can speculate for days, as we've done here, as to the possibilities and potential risks of anything. But it seems to me that if after 100 years of reloading there are no cases to cite any negative legal consequences, then this is all purely unfounded speculation.

I stand by my statement until you can prove it otherwise.

Kleanbore
August 9, 2013, 11:11 AM
Posted by Sam1911: Except that that [the statement "if the defendant used handloaded ammunition, his chances of getting test results or expert witness testimony regarding same admitted into evidence are virtually zero, due to legal precedents that address admissibility of evidence and of expert testimony'"] really hasn't held up to scrutiny, as Ken has pointed out now in two threads. Actually, the legal principles involved have in fact "held up to scrutiny", in that they are based entirely on several appellate rulings by SCOTUS and are embodied in the Federal Rules of Evidence and the slightly varying rules of evidence of the states. This of us who have at one time or another made a living in the field of ensuring the admissibility of certain kinds of evidence know that and know why.

It's one thing to allow evidence that does not contradict evidence presented by the state, and quite another to allow evidence that would be probative against the state's evidence. Or vice versa.

Sam1911
August 9, 2013, 11:19 AM
The legal principles indicate that it COULD work out that way. But when HAS it? How many people has this ever affected? It it a real concern that any of us need to take careful consideration of, or a theoretical concern way out at the extremes of the ragged edge of the worst of possible outcomes?

When you look at just how far down the "rabbit hole" the case has to go -- how many factors have to turn against you, from the very basic question of being arrested and prosecuted in the first place, to you needing GSR testing to prove your self-defense claim, all the way to the ruling by a judge that he's not going to allow handload testing for GSR purposes when several judges in Bias DID, then the extreme amount of warning and alarm and anxiety over the matter appears to be a tempest in a teacup raindrop.

Kleanbore
August 9, 2013, 11:53 AM
Posted by buck460XVR: ...add to that, the fact that none of the anti-handload crowd has EVER been able to give an example of where the use of handloads, in a legitimate SD scenario, has been the reason for a bad shoot conviction, tells me that zero cases outta thousands means the probability of it happening is improbable. Very true. It is indeed.

There are reasons for that--good ones. But they do not mean that it should not be a concern. Here's why. Pardon the length of the explanation.

First, there have not been very many claims of justification in shooting incidents that have been the subject of much in the way of disputed evidence.

Of those that have, even fewer have depended in large part on forensic evidence.

And of those, still fewer have depended entirely on resolving contradictory evidence by making discrete shooting distance estimates that had to be based on GSR pattern evidence. It is one thing to say that the pattern on the shirt differed from that on the decedent's body, and quite another to make discrete distance estimates.

So far so good, and what it tells us is that when one steps out in the morning, one's chances of needing to end up having to present test evidence is far less than remote.

Also, of any disputed self defense claims that may have come up in which distance estimates based on GSR may have been needed, we are unaware of any in which the defender used hand loads. That should not be a surprise to anyone.

It will explain to any reasonable person why we have not heard of any actual cases. Of course, there are other reasons: trials are determined by the totality of the evidence; and no one has interviewed all of the jurors in all of the self defense trials in the country to determine the reasons for their findings.

But should one's acquittal happen to hinge upon distance estimates requiring GSR test evidence, one's fate might well be sealed by the question of the admissibility of said evidence. At that point we have entered the realm of conditional probability. And when it comes to risk management, that's an entirely different animal.

I do not carry hand-loads for self defense. I would not worry very much about using them indoors, however. And if I happened to arrive at the campsite equipped only with hand loads, I would not go very far out of my way to replace them. And if all I had next to the bed was a .41 Colt loaded with hand loads, I would take my chances. But it it is easy to mitigate the risk, I will do so.

There is quite a science surrounding the making of assessments--risk assessments, forecasts, performance assumptions, estimates of cost, schedule, weight, and so on--when there is a paucity of directly relevant actual data. The task is not at all like actuarial predictions, or auto safety data.

Back during the early days of my long corporate career, when we were first putting man into space, we dealt with those issues all the time.

Later, I was heavily involved in legal issues. The statement "no one has ever been convicted because..." was on a list on the wall. The title of the list was "famous last words."

Kleanbore
August 9, 2013, 12:05 PM
Posted by Sam1911: The legal principles indicate that it COULD work out that way. But when HAS it? How many people has this ever affected? See post 153.

It it a real concern that any of us need to take careful consideration of, or a theoretical concern way out at the extremes of the ragged edge of the worst of possible outcomes?Well, if you shoot someone, and if witness testimony casts doubt upon your account, and if your case might hinge upon GSR tests of your ammunition, would you consider that "theoretical", or a risk to be considered? It's a matter of two things: conditional probably, and potential consequences.

Sam1911
August 9, 2013, 12:11 PM
Right now, based on a closer, more informed look at Bais, I'd say I'd favor my chances, actually.

But I only carry handloads sometimes, so my chances of this mattering are even slimmer! If I'm ever in a violent altercation and have to shoot someone, and if the situation is ambiguous to investigators, and if I end up arrested and tried, and if my defense is spotty enough that it hinges on my ability to prove how far away I was from the attacker when I shot, and IF I need to submit GSR test evidence... well, by then I'll probably be wishing I HAD used handloads that day just so I can find out the final answer to this question! :D

Kleanbore
August 9, 2013, 12:36 PM
Posted by Sam1911: Right now, based on a closer, more informed look at Bais, I'd say I'd favor my chances, actually.How so? The evidence that was introduced simply supported the state's case.

If I'm ever in a violent altercation and have to shoot someone, and if the situation is ambiguous to investigators, and if I end up arrested and tried, and if my defense is spotty enough that it hinges on my ability to prove how far away I was from the attacker when I shot,That may sound far fetched, but if...

one witness from the neighborhood disputes your claim;
another one looked up after your shots;
the "victim" disputes your claim;
the weapon you thought he had did not exist;
the wind blew your empties away from the point from where you fired...

...those distance estimates may prove crucial. Want to take the chance?

Of course, this all leads us back to not going anywhere stupid, ADEE, and situational awareness, much more than what is in the firearm.

and IF I need to submit GSR test evidence... well, by then I'll probably be wishing I HAD used handloads that day just so I can find out the final answer to this question! I think you can find a sufficient number of experts to answer that question now.

357 Terms
August 9, 2013, 12:52 PM
Quote:
Posted by Sam1911: Right now, based on a closer, more informed look at Bais, I'd say I'd favor my chances, actually.

How so? The evidence that was introduced simply supported the state's case.



And yet the evidence WAS introduced!

BullfrogKen
August 9, 2013, 12:53 PM
Sam, it really wouldn't matter even if you never your carried handloads.

We handload. At least I'm making an assumption all of the guys participating here handload.

If we shot someone, and that shoot looked like there was enough evidence that it might not have been justified, everything tangentially related to that gun will be taken as evidence. At least a good investigator will take it.

That'll include your factory loads you said you used. Again, how some are willing to conclude that piece of "defense-proffered evidence" will be accepted and not your handloads is another stretch I can't connect the dots on.

But all your handloading equipment, components, and handloaded ammunition will get taken into evidence. It'll be tested, and conclusions made by the ballistics lab where the ammo you said was used, was actually used.

You could very well be put in a position where the prosecutor asserts you used your handloaded ammunition, and not the factory rounds you claimed. They could also assert that since you had the means to do it, you could have pulled apart your factory loads with your equipment, altered them, and loaded them back up. The only way to determine that didn't occur is to have both your handloads, the unexpended factory ammunition, and the fired rounds and cases thoroughly examined.

So if you really want to mitigate away that risk and associated cost, sell off your equipment and stop handloading.


The science of GSR and how it behaves is quite advanced and accepted in the courts as valid. We've already seen how some pretty discrete conclusions can be made without the firearm in evidence. We can probably be assured the investigators will have our firearm for testing.

We've also seen how even better conclusions can be made about the GSR from the gun used, and just the behavior of GSR in general terms. Again, we're tallking about being able to opine, "yes, this shot was between 2 and 4 inches; this one between 4 and 12 inches; and this one somewhere under 30 inches, but greater than 12."

The handloaded ammunition you have - in the gun and at home - will be collected, analyzed, and the investigators can make certain conclusions about it whether you say a word about it or not. There are upper levels of charges we can use before the gun blows up, and lower ones where the bullet won't leave the barrel. In between them are the normal pressures which will cause the bullet, primers and cases to behave in very specific, demonstrably repeatable ways.


All that can be opined upon without our cooperation at all. And an expert can testify at trial if need be about it. Before it ever gets to trial, the ballistics lab will supply all that data to the investigators and prosecutor, and it will either corrorborate your story or undermine it.


So what we're really talking about here is a matter of how much it'll cost you to defend an assertion of an unjustified or accidental killing. If the well-developed body of work about the general nature of GSR won't come to your aid, and you're talking about a need to show that your shots weren't 6 to 12 inches away, they were really 8 - 10 inches away . . . again I'm at a loss as to imagine a scenario where that kind of precision would be required to exonerate you.


And since you possess the tools and knowledge that allow you to alter even your factory rounds, you have the risk it'll cost more to refute a claim that you altered them.

Kleanbore
August 9, 2013, 01:05 PM
Posted by BullfrogKen: You could very well be put in a position where the prosecutor asserts you used your handloaded ammunition, and not the factory rounds you claimed.If the cases were available for examination, that should be readily disproved.

They could also assert that since you had the means to do it, you could have pulled apart your factory loads with your equipment, altered them, and loaded them back up.Again, that would leave evidence.

Sam1911
August 9, 2013, 02:00 PM
I think you can find a sufficient number of experts to answer that question now.So far, I haven't.

There is a fair bit of print media devoted to "experts" who didn't represent the case they relied on to prove their point correctly.

And a great deal of well-worn and self-referential theorizing from (certainly very respected and loved) lawyers who seem extremely comfortable with the pat answer but not willing to take a deeper look beyond what "everyone knows" and ask themselves what highly detailed new information about real investigations and trials might say to them. :) There's a "school solution" to this, and even when it falls apart in a the real world example, it is still right...apparently.

I think the biggest frustration I have here is not that we promulgate the idea that this could happen in some 0.001% of self-defense cases, though it does not seem to have yet, ever -- but rather that we proclaim that this is an important issue meriting the same crucial level of concern as, say, what cartridge is best or what gun to carry (Pssst, that's a bit of humor right there! :)) or how to maintain situational awareness and pass/fail the victim selection process. Or any of 1,000 things that might be of import to the matter of armed self defense.

More people know "DON'T CARRY RELOADS!" than know how an affirmative defense works, or what the Castle Doctrine and Stand Your Ground laws really mean, or even how to fight effectively with a handgun. And that's appalling.

IM(non-lawyerly)O. :D

Frank Ettin
August 9, 2013, 02:01 PM
...has been the reason for a bad shoot conviction, tells me that zero cases outta thousands means the probability of it happening is improbable....Have there really been "thousands" of cases? Remember Al Norris' research I referred to in post 105 (http://www.thehighroad.org/showpost.php?p=9055317&postcount=105):...He found only 12 times over a 37 year period in Idaho in which handloads were used in a defensive shooting, and of those only six were prosecuted. So how many times would we expect the particular evidentiary issue to both arise in court and result in a published judicial decision. Most trial court decisions don't result in a published opinion. ...

...All that can be opined upon without our cooperation at all. And an expert can testify at trial if need be about it. Before it ever gets to trial, the ballistics lab will supply all that data to the investigators and prosecutor, and it will either corrorborate your story or undermine it...But it could happen that a defendant will want, or need, to challenge the prosecution's evidence. It might not be in a defendant's best interests to rely on the [not necessarily] tender mercies of the prosecution. It might be in a defendant's best interests to be able to make his own case, with his own witnesses, and with his own experts.

As we've seen at FirearmsID.com (http://www.firearmsid.com/A_distanceResults.htm) --

Without testing, based on examination of GSR, one can expect a report like


This: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.


Or this: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.


Or this: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.


With testing, one can expect a report like


this: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.


But, as pointed out at FirearmsID.com (http://www.firearmsid.com/A_distanceResults.htm) (emphasis added):...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.

If you're the defendant, under the circumstances of your shooting someone in what you claim was self defense, which sort of expert report, one based on examination or on testing, would best serve to exonerate you? Of course, you can't know ahead of time because you're not clairvoyant (I'm sure not).

If a report based on testing could be best for you, it would serve your interests to try to head off possible dispute about what the exact ammunition used was. And for the reasons I've discussed, I've concluded for myself that using factory ammunition best serves that interest.

Frank Ettin
August 9, 2013, 02:08 PM
...More people know "DON'T CARRY RELOADS!" than know how an affirmative defense works, or what the Castle Doctrine and Stand Your Ground laws really mean, or even how to fight effectively with a handgun. And that's appalling.I agree. Foundational understanding of basic legal concepts of use of force law, and avoiding the misunderstandings of, and exaggerated expectations for, Castle Doctrine and Stand Your Ground laws is so important.

Kleanbore
August 9, 2013, 02:40 PM
Posted by Sam1911: So far, I haven't [found a sufficient number of experts to answer that question now]. I was referring to your question following "IF I need to submit GSR test evidence".

The evidentiary and related expert witness testimony principles are well established.

Spats McGee explained it well in the post to which I provided a link. Frank Ettin has explained the subject several times.

Some years back, I took a several hour legal education course on the subject of the Federal Rules of Evidence as impacted by Daubert v. Merrell Dow, delivered by subject matter experts from all over the country. More importantly, I was charged with helping to develop and implement corporate procedures to comply with them. Every step of the way, our work was reviewed by professionals who charged us several hundred dollars per billable hour.

By the way, the principles are not really very dissimilar from those relating to accepted auditing practices, the adequacy of a system of internal controls, critical quality control methods, or scientific evaluation, all of which very fortunately were within the range of my professional experience.

It's really pretty basic stuff. The relevant part in a nutshell, as Spats pointed out so well, is that if you have created or tested something--anything--, or if you have at any time had the ability to affect the results (goes to custody), and if you wanted same to be admitted as evidence to support your case, that evidence would be suspect and subject to a challenge that would almost certainly succeed.

It actually can go farther than that. Under some circumstances, depending upon what is to be demonstrated, if the methods for manufacturing and measuring and testing and packaging something, and if the practices for ensuring the constant and continued secure custody of the pertinent records, are not sufficiently documented and followed, and if they do not include sufficient checks and balances, the results may subject to challenge, even if the defendant was not involved in any of the processes.

There is a lot more to it than that, but that is what is most relevant to the question at hand.

I hope that helps.

ngnrd
August 9, 2013, 03:15 PM
Why is it that whenever I open this thread, I hear circus music playing in my head...?

BullfrogKen
August 9, 2013, 03:27 PM
Right now, based on a closer, more informed look at Bais, I'd say I'd favor my chances <of getting testing of handloaded ammunition introduced>, actually.

How so? The evidence that was introduced simply supported the state's case.

Yeah, and look at what the NJ Ballistics Lab - a body indepedent of the prosecution and not acting under their control and direction - did.


They reconstructed and tested the rounds in the gun, even though they didn't match the round that killed Lise.
They reconstructed and tested rounds substantially similar to the one that killed Lise, which where were found nowhere else but in her head and several more in a desk up in the attic.
They constructed and tested a wide range of substantially dissimilar rounds found nowhere in the home in an effort to ascertain if the anemic round Bias claim he'd made and she used in her suicide could produce a mortal head wound yet leave no GSR at all.

And over the defense's objections the different judges allowed it all. And the different juries heard all those test results.

According to your understanding of how rules of evidence work, that shouldn't have been permitted. But it was.


Bias has this weird juxtaposition of a handloader not wanting his handloaded rounds tested and admitted into the trial, and the Ballistics Lab - who works for the state just like the judge - doing the testing, doing really extensive testing that took much time at great expense.


You could very well be put in a position where the prosecutor asserts you used your handloaded ammunition, and not the factory rounds you claimed.

If the cases were available for examination, that should be readily disproved.


They could also assert that since you had the means to do it, you could have pulled apart your factory loads with your equipment, altered them, and loaded them back up.

Again, that would leave evidence.

Yup, it sure could and almost certainly would be.


But it would take a great deal of time from a competent expert and expense by the defense to do it. And since you're all about mimizing risk and all, have you thought about that one and it's cost?

I mean, if you're anything like the rest of us avid handloaders, I have many thousands of assembled rounds here at the O'Donnell castle, and many more tens of thousands worth of rounds as represented in components. It could have been any one of them that was used, right? Especially if the shooting occurred in or around my home.

Kleanbore
August 9, 2013, 03:39 PM
Just in case it has not been made sufficiently clear, one need not look for rulings or opinions specifically relating to reloaded ammunition to find what needs to know about the admissibility of test data and related expert testimony. Don't look for precedent there.

The relevant evidentiary principles apply equally to the testing and quality of commercially sold items, and to a broad range of questions concerning the purity of chemicals; the safety and effectiveness of pharmaceuticals or of insecticides, fungicides, and the like; the calibration of mass spectrometers, radar guns, laser surgery and X-ray equipment, and so forth; the accuracy and reliability of computer generated records on just about anything, including even financial transactions; DNA evidence; the list goes on and on. The same principles, and the same basic rules of evidence, apply to all.

The responsibilities and the role of the judge do vary somewhat among jurisdictions.

Now, the question of what experts can or cannot reasonably determine from GSR patterns per se, once the data are admitted, is a distinctly different and very important question, to which Ken has alluded.

Kleanbore
August 9, 2013, 03:40 PM
According to your understanding of how rules of evidence work, that shouldn't have been permitted. Not true. The evidence that Bias sought to introduce, which had been in his custody, was not introduced. The evidence introduced by the state, and admitted by the judge, was not something that would have exonerated Bias, and its reliability was really not in serious question.

I have not read enough about the case to know whether the independence of the crime lab influenced the judge's decision regarding admissibility. It seems reasonable that it might have.

I do doubt whether it was really probative, though it would have supported my preconceptions had I been a juror.

BullfrogKen
August 9, 2013, 03:46 PM
...All that can be opined upon without our cooperation at all. And an expert can testify at trial if need be about it. Before it ever gets to trial, the ballistics lab will supply all that data to the investigators and prosecutor, and it will either corrorborate your story or undermine it...

But it could happen that a defendant will want, or need, to challenge the prosecution's evidence. It might not be in a defendant's best interests to rely on the [not necessarily] tender mercies of the prosecution. It might be in a defendant's best interests to be able to make his own case, with his own witnesses, and with his own experts.


State's evidence. You mean the state's evidence, right? The prosecution isn't collecting the evidence. Functions like a ballistics lab and the medical examiner don't work for the prosecution. I thought we'd covered that before.


Now you can certainly find cause to undermine the competency of that independent body, or find a need to conduct an exam they failed or chose not to perform. But the work done on the evidence, the bench notes, and the reports they produce go out to both parties if the prosecution decides to build a case.


The defense is not at the mercy of the prosecution. They may be at the mercy of the state's medical examiner and ballistic experts, but those offices really strive to perform a really damn good job. They strive for impartiality, excellence, and thoroughness. They all know the risks that come with violating that independence and performing substandard work. It means all the cases they've ever built using their work can come under review and risk being re-tried.


Unlike the crap you see on t.v., the prosecutor is not all in their space directing them where to look, what to do, and what not to do. Also unlike what you see on t.v., sometimes these labs are staffed by state policemen. The last thing they want to see is someone their work helped convict in a murder 20 years ago get re-tried and set free because someone didn't do a proper job in an unrelated case 4 years ago and the work products of their offices become discredited when it was discovered.

BullfrogKen
August 9, 2013, 03:53 PM
If you're the defendant, under the circumstances of your shooting someone in what you claim was self defense, which sort of expert report, one based on examination or on testing, would best serve to exonerate you? Of course, you can't know ahead of time because you're not clairvoyant (I'm sure not).

If a report based on testing could be best for you, it would serve your interests to try to head off possible dispute about what the exact ammunition used was. And for the reasons I've discussed, I've concluded for myself that using factory ammunition best serves that interest.


Again, we're talking about the difference between a report that even without the gun might say, "the shot - or series of shots - took place at a distance of greater than 12 inches, but less than 30", or one that says it took place between 18 and 24 inches.

We're talking within arm's length here man.


Again, this is what you've concluded for yourself. You want that warm and fuzzy feeling. But simply because that's your choice, you're doing the argument and everyone else a disservice when you use your choice to argue your position and ignore or dismiss what the science can do as "not good enough for you". You want more. I get that. Fine.

But that's not the issue.

The issue really is the science, and it's a lot more evolved than you'll admit. And because it is, the risk of handloads in a courtroom are a whole lot less than the boogeyman you make them out to be.

Kleanbore
August 9, 2013, 04:23 PM
One other key point: we keep referring to this subject as one pertaining to "hand loads". That may not be serving us well.

The assembly, or "loading", of ammunition components can be done on highly automated production lines, semi-automatic equipment, turret presses, or single die presses. I started out with a Lyman 310 tool that looked something like a nutcracker.

None of that is really very relevant when it comes to the rules of evidence. What is relevant includes the following: (1) who loaded it, where, and how; (2) what in-process measurements were taken and how they were recorded and by whom; (3) how and by whom those records were stored; and (4) how the product was packaged.

If the "who" in any of those facets happens to be one of the parties in a criminal or a civil trial, admissibility is most probably a non starter.

Whether or not a state crime lab would be considered a party in a trial would have to be determined on a case by case basis.

I have shot remanufactured .45ACP target ammo assembled by someone else at the range. I don't know enough about it to be able to assess the legal risk of using it for defense. I would really prefer ammo from an ISO certified concern, loaded on well-calibrated equipment by persons with adequate separation of duties, and made from virgin brass without marks from de-capping, re-sizing, re-seating, or previous feeding, extraction, and ejection. That's a personal preference.

Of course, my first preference, by far, is to not ever have to shoot anyone in the first place.

Frank Ettin
August 9, 2013, 04:45 PM
State's evidence. You mean the state's evidence, right? The prosecution isn't collecting the evidence. Functions like a ballistics lab and the medical examiner don't work for the prosecution. I thought we'd covered that before.Yes we have, and I had pointed out (http://www.thehighroad.org/showpost.php?p=7860236&postcount=175) that in they can be run by law enforcement:...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....

In Kentucky (http://www.firearmsid.com/A_labsys.htm), the State Forensic Laboratory is run by the Kentucky State Police.

In New Jersey (http://www.njsp.org/divorg/invest/forensics.html), forensic services are provided by a section of the New Jersey State Police Investigation Branch.

In Washington State (http://www.wsp.wa.gov/forensics/flsbhome.htm):The State Patrol's Forensic Laboratory Services provide a wide range of forensic science expertise to city, county, and state law enforcement officers, medical examiners and coroners, assisting agencies at crime scenes, preparing evidence for trial, and providing expert testimony....

In New Hampshire (http://www.nh.gov/safety/divisions/nhsp/forensiclab/):The State Police Forensic Laboratory is the sole provider of traditional forensic laboratory services in New Hampshire. The Forensic Laboratory routinely receives and analyzes evidence from over 220 city and town police departments, nine state law enforcement agencies including the State Police, ten county sheriffs departments, numerous city and town fire departments, and, on occasion, federal law enforcement agencies conducting criminal investigations in the state....

In Vermont (http://vfl.vermont.gov/):The VFL is the only forensic laboratory in the State of Vermont and provides services to the entire criminal justice system....

In Pennsylvania (http://www.portal.state.pa.us/portal/server.pt/community/psp/4451/hide_-_psp_lab_listing/480804):The Pennsylvania State Police Bureau of Forensic Services is an ASCLD-LAB - International accredited laboratory system. The primary mission of our Bureau is to serve the criminal justice community and the citizens of the Commonwealth of Pennsylvania by providing the highest quality scientific, technical and investigative support to law enforcement agencies for the processing of crime-related evidence....

These are not independent third parties. These are parts of police agencies serving the criminal justice system. The opinions of police forensic laboratories have been subject to dispute in criminal litigation.

...sometimes these labs are staffed by state policemen. They last thing they want to see is someone their work helped convict in a murder 20 years ago get re-tried and set free because someone didn't do a proper job in an unrelated case 4 years ago...Putting aside whether that can be said categorically, state forensic laboratories have not been free of criticism -- see here (http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=12589) and here (http://www.npr.org/blogs/thetwo-way/2012/04/17/150823191/prosecutors-knew-of-forensics-flaws-for-years-the-post-reports).

...Again, we're talking about the difference between a report that even without the gun might say, "the shot - or series of shots - took place at a distance of greater than 12 inches, but less than 30", or one that says it took place between 18 and 24 inches.

We're talking within arm's length here man...There's no need to paraphrase the difference. Above I quoted the website exactly. And there's no way to know ahead of time whether that difference will matter. Maybe it will, and maybe it won't.

...The issue really is the science, and it's a lot more evolved than you'll admit....The issue is also the admissibility of evidence, which is more involved than you'll admit.

...But simply because that's your choice, you're doing the argument and everyone else a disservice when you use your choice to argue your position and ignore or dismiss what the science can do as "not good enough for you"....Okay, so what I've been doing is explaining fully why I have made the choice I have made, and why the counterarguments you and others have brought up haven't been sufficient to change my mind about my choice.

...the risk of handloads in a courtroom are a whole lot less than the boogeyman you make them out to be. I guess it comes down to a disagreement about whether it's enough of a "boogeyman" to affect one's choice. It is enough to affect my choice. If it's not enough to affect your choice, that's fine with.

BullfrogKen
August 9, 2013, 05:46 PM
If it's not enough to affect your choice, that's fine with.

Hey like I told you before, it doesn't matter to me. I don't think I've ever once said whether I stuff handloads in my ready-guns or factory loads.


All I'm interested in is an honest, open, conversation about the topic that doesn't contain condescention, references to falsehoods, and fearmongering over vagaries.


I've got a lawn to go mow. I'll come back after it's done with some fresh data and viewpoints.

blarby
August 9, 2013, 05:52 PM
Why is it that whenever I open this thread, I hear circus music playing in my head...?

Change the channel.

Its more like "ride of the valkyries" depending on your viewpoint...

Frank Ettin
August 9, 2013, 06:03 PM
...fearmongering over vagaries.It still seems to be coming down to value judgments. What may be "fear-mongering" to some could well be "reasonable avoidance of unpredictable risks" to me. What might be "vagaries" to some could well be established and well understood legal principles to me.

Potatohead
August 9, 2013, 06:06 PM
I thought this got closed...?

James2
August 9, 2013, 06:10 PM
In my case, yes. I am not going to put up an argument either way, just let you know what my decision was.

Cosmoline
August 9, 2013, 06:11 PM
I doubt that the defense will be able to meet its burden of showing substantial similarity when the claim that the exemplars match the incident ammunition rests solely on the interested defendant's word.

But why would it rest solely on the defendant's word? Presumably the rest of the handloads, marked and boxed, will be available to inspect. If 48 loads are identical, there's every reason to conclude loads 49 and 50 were the same. Under Daubert and Kumho Tire these would be reliable conclusions. Whether or not they are generally accepted under Frye is another matter, and I get the sense that the main opponents of handload evidence are gun experts not judges.

Are you aware of a case in which it was offered and admitted?

No, as I said it doesn't seem to have ever even registered on judicial radar. But it's a huge issue here. Which makes me conclude it's not really a major legal issue, but one for gun nuts to argue about.

There are hundreds--HUNDREDS--of other issues to worry about in a self defense shooting. First and foremost whether or not you are behaving within the law of self defense. Handloads, if they're on the list at all, are so remote as to never even register in the case law. So I'd suggest we've blown this issue way out of proportion.

41 Mag
August 9, 2013, 06:26 PM
All the case facts and links in the world will not matter one iota if your rear is sprawled out on the ground with a smoking hole in your chest.

Like I mentioned back somewhere on another page, before this went into more or less a discussion only topped by religion, I'm going to use whatever is loaded at the time as will anyone else here. No one can predetermine when, or where, or any other circumstance, when a BG decides to do a dirty deed.

Case in point,

I was sitting at a stop sign on a busy city street when a fellow walking across the cross walk eased right up to my driver side window and stuck a revolver in my face. Not much to do in that situation but give him what he wants and hope for the best. No concealed handgun would have changed anything about it. Even if I would have had one, I would not have been able to use it until he backed away, at which time he high tailed it away through the traffic. No way to shoot him other than in the back and that would not be self defense but murder, or in the very least manslaughter.

In that time frame, again, they aren't going to wait for you, me, or anyone else to remove handloads and replace them with factory ammo. Right, wrong, or indifferent, if my or my family's life is at stake, or anyone else who has posted to this thread for that matter, unless you simply give up hope and leave your fate in the hands of who knows what, your going to shoot first and then hope and pray for the best, factory ammo or not.

I do not have but a few boxes of factory ammo period, never have and never will. What I DO have is mostly for my deer rifles. Like I mentioned I handload, mostly for everything, always have and probably always will. It will be pretty easy to determine how any of my loads shoot as I pick one load and stick with it. Just pick the box for the caliber I used and there ya have it. I hope and pray I am never forced into the circumstance where I have to use deadly force, but if so, I'll use whatever I have to defend myself, as will just about anyone else.

Oh yea, I forgot, that is a YES from me.

Kleanbore
August 9, 2013, 07:06 PM
Posted by Cosmoline: If 48 loads are identical, there's every reason to conclude loads 49 and 50 were the same. Under Daubert and Kumho Tire these would be reliable conclusions.Not according to what I was taught or what I did for a living.

Which makes me conclude it's not really a major legal issue, but one for gun nuts to argue about.And chemical companies, and makers of surgical instruments, and makers of genetically modified seeds, and CFOs, and many, many other people--mostly lawyers

There are hundreds--HUNDREDS--of other issues to worry about in a self defense shooting. First and foremost whether or not you are behaving within the law of self defense.Very true, and that applies to the use of any kind of deadly force.

Handloads, if they're on the list at all, are so remote as to never even register in the case law. So I'd suggest we've blown this issue way out of proportion.But the case law issue is not about hand loads. It is about any kind of evidence or related expert testimony.

And as mentioned, it is not even about how some kind of evidence was created. It is about by whom, and under what circumstances, and about custody of records.

Frank Ettin
August 9, 2013, 07:51 PM
There are hundreds--HUNDREDS--of other issues to worry about in a self defense shooting. First and foremost whether or not you are behaving within the law of self defense...I agree completely. I think that by not using handloads I've taken one possible concern off the table.

...Handloads, if they're on the list at all, are so remote as to never even register in the case law...Or they don't register in case law because they're used so seldom. Remember Al Norris found only 12 cases over a 37 year period in Idaho (only 6 of which were prosecuted).

buck460XVR
August 9, 2013, 08:58 PM
Or they don't register in case law because they're used so seldom. Remember Al Norris found only 12 cases over a 37 year period in Idaho (only 6 of which were prosecuted).


Did Al ever say how many of those 12 were deemed a bad shoot because of the use of handloads?

Frank Ettin
August 9, 2013, 09:29 PM
...Presumably the rest of the handloads, marked and boxed, will be available to inspect. If 48 loads are identical, there's every reason to conclude loads 49 and 50 were the same. Under Daubert and Kumho Tire these would be reliable conclusions. Whether or not they are generally accepted under Frye is another matter,...I don't think it's that clear.

It's a question of under what circumstances would an expert, for the purposes of conducting scientific tests and forming an opinion, rely on the assumption that if a group of widgets he can examine have certain specifications, some widgets not subject to examination would have the same specifications. It might be one thing to make that assumption when the widgets were all made by a commercial manufacturer selling widgets to the general public and using set quality control protocols. It might be another thing to make that assumption when the widgets were all made by an individual who is personally interested in the outcome of the tests for his own use, and the connection between the widget tested and the widget in the case is thus made by the claims of that individual.

I'm not sure that Daubert (Daubert v. Merrell Dow Pharmaceuticals, Inc, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)) or Kumho Tire (Kumho Tire v Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)) necessarily make it easier to support that sort of assumption under the second set of circumstances:

Both address the role and scope of the trial judge's discretion to allow or exclude expert opinion testimony based primarily on Rule 702 of the Federal Rules of Evidence (held in Daubert to supercede Frye in federal court).


Neither involved exemplar testing as the bases of the experts' opinions at issue.


In Daubert the Supreme Court in effect ruled that the trial court applied too strict a standard by excluding opinions of some eminent experts. The opinions of those experts were based on certain data developed through experiment, and it contradicted another expert's opinion based on epidemiological data.


But the Court in Daubert still noted (at 597):...but the Rules of Evidence—especially Rule 702—do assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand...


The Court in Daubert also noted (at 591):See also United States v. Downing, 753 F.2d 1224, 1242 (CA3 1985) ("An additional consideration under Rule 702—and another aspect of relevancy —is whether expert testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute").


This seems to suggest that even under Daubert, if an opinion is based on exemplar testing to be relevant and admissible it must be shown that the exemplar is the same as the thing in the case and the conditions of testing sufficiently mimic the events of the case.


In Kumho Tire, the Court upheld the trial court's exclusion of expert testimony. The issue concerned the manner of the plaintiffs' expert's examination of an allegedly defective tire. The defendants objected on the grounds that the plaintiffs' expert's methods were unreliable. The trial court agreed, and the Supreme Court upheld the trial court's exercise of its discretion to exclude the expert's testimony.


While this does not involve exemplar testing, it does suggest that it would he proper for the trial court to consider the reliability of an expert's conclusion that an exemplar tested was sufficiently like the thing in the case to support his opinion.


And the Court in both cases notes that if expert opinion is admitted it is still subject to vigorous cross examination and challenge. Thus any the less solidly an exemplar tested is validated as matching the thing in the case, the less useful the expert opinion is likely to be.

Did Al ever say how many of those 12 were deemed a bad shoot because of the use of handloads? First, only six were prosecuted; the others were apparently clearly enough self defense. We don't know anything else about the six that were prosecuted except (1) there were convictions in all (four on pleas and two on jury verdict); and (2) drugs and/or alcohol might have been involved.

But the real point is that 12 claimed defensive shootings with handloads over a 37 year period suggest that it's a very rare event.

beatledog7
August 9, 2013, 10:11 PM
In case I wasn't clear (someone might be keeping track of responses), I don't carry handloads as of today, but will when I run out of the factory stuff I like (unless another affordable source presents itself).

JB357MAG
August 9, 2013, 10:12 PM
NO!!

357 Terms
August 9, 2013, 10:17 PM
First, only six were prosecuted; the others were apparently clearly enough self defense. We don't know anything else about the six that were prosecuted except (1) there were convictions in all (four on pleas and two on jury verdict); and (2) drugs and/or alcohol might have been involved

Yes alcohol was involved, the chareges against those men had absolutly nothing to to with carrying handloads.

I doubt it was even brought up by the DA.

45_auto
August 9, 2013, 10:30 PM
News comments on George Zimmerman's ammo below (factory hollow points - 115 grain S&B). Just think how much more fun it would have been for him if he had been using some kind of "custom hand-loaded deadly killer ammo".

It may not have made any difference in the trial, who knows what a jury will do, but it sure wouldn't have helped.

Not worth it to me.

According to other reports, Zimmerman's gun was loaded with hollow-point bullets--bullets that expand upon impact, maximizing internal damage and the chances of death. You don't need hollow-point bullets to stop a pit bull. And you don't need hollow-point bullets to stop a robber.

Sure, some gun enthusiasts may warn that if you face an armed bad guy, hollow points minimize the chances of his returning fire after being shot. But how likely is it--in real life, not the movies--that this would actually come into play? And, anyway, there was no evidence that the robbers who had afflicted the neighborhood were armed; they were burglars, not muggers, and when in danger of being caught they'd fled. (And as for the reason police sometimes use hollow points--to cut the chances that the bullet will harm bystanders after passing through the victim's body or after ricocheting: that makes a lot of sense in a crowded urban environment, but not much in Zimmerman's neighborhood.)


http://www.theatlantic.com/national/archive/2012/04/george-zimmermans-ammunition/256509/

Frank Ettin
August 9, 2013, 10:34 PM
First, only six were prosecuted; the others were apparently clearly enough self defense. We don't know anything else about the six that were prosecuted except (1) there were convictions in all (four on pleas and two on jury verdict); and (2) drugs and/or alcohol might have been involved...Yes alcohol was involved,...Yes, and you know that because Al Norris reported it, and then I reported it. Or do you claim some independent reason to know that alcohol was involved, and if so what is it?

...the chareges against those men had absolutly nothing to to with carrying handloads....How do you know? Do you have any evidence? If so what is your evidence? Or are you just guessing?

I don't think you actually know, because Al Norris didn't know, and he did the research.

...I doubt it was even brought up by the DA.You might doubt it, but you don't really know it. Do you?

BullfrogKen
August 9, 2013, 10:59 PM
After I got done mowing my lawn, I called my colleague who headed the Pennsylvania State Ballistics Lab to confirm a thing or two about "exemplar" ammunition; the testing of evidence ammunition; and what their lab could get from a factory when they submitted a request.



Frankly I'm just too tired right now to craft a complete and adequate response.


But rest assured that by the morning all of your presumptions about factory ammunition - all the lies you've been told about it; what you think you can request and receive from the factories - even the big ones; all you think you know from what you've been told by speculative masters that happens in a state Ballistics Lab regarding testing; and your imaginations surroundings about the tests that they actually perform and how they conduct them are about to be torn apart and laid waste before you.


Sleep well.

I know I will.


See you in the morning.

357 Terms
August 9, 2013, 11:07 PM
You might doubt it, but you don't really know it. Do you?


You obviously don't.

Yet you reference these cases as a warning against carrying handloads.

Odd.

Frank Ettin
August 9, 2013, 11:09 PM
After I got done mowing my lawn, I called my colleague who headed the Pennsylvania State Ballistics Lab to confirm a thing or two about "exemplar" ammunition; the testing of evidence ammunition; and what their lab could get from a factory when they submitted a request...I'll be looking forward to it. It would be helpful if you'd also address not only the procedures followed in that laboratory but also how those procedures relate to the rules of evidence applicable to the introduction of expert opinion testimony.

Yet you reference these cases as a warning against carrying handloads.No, I reference those cases to help illustrate that self defense shooting using handloads are rare (12 in Idaho in a 37 year period) and that prosecutions are even rarer.

Kleanbore
August 9, 2013, 11:20 PM
Posted by buck460XVR: Did Al ever say how many of those 12 were deemed a bad shoot because of the use of handloads?Why would any defensive use of force action ever be deemed a "bad shoot" because of the use of hand loads?

Frank Ettin
August 9, 2013, 11:29 PM
Posted by buck460XVR: Did Al ever say how many of those 12 were deemed a bad shoot because of the use of handloads?Why would any defensive use of force action ever be deemed a "bad shoot" because of the use of hand loads?The real question is much more subtle. If there is a dispute about whether your use of force was or was not justified, are there reasons your use of handloads could make it more difficult for you to establish that it was justified?

In other words, if everyone doesn't agree that it was a good shoot and you need to show it was a good shoot, could your use of handloads make that harder for you to do?

357 Terms
August 9, 2013, 11:38 PM
No, I reference those cases to help illustrate that self defense shooting using handloads are rare (12 in Idaho in a 37 year period) and that prosecutions are even rarer.

Yet you reference these cases in a discusion regarding the dangers of carrying handloads and point out that six were prosecuted, yet these prosecutions had nothing to do with their choice of ammunition, you failed to mention that.

Again...odd.

Frank Ettin
August 9, 2013, 11:44 PM
Yet you reference these cases in a discusion regarding handloads and point out that six were prosecuted, yet these prosecutions had nothing to do with their choice of ammunition, you failed to mention that.I never claimed that those prosecutions had anything to do with choice of ammunition. I referred to those cases to show some evidence suggesting that defensive shootings using handloads were rare.

357 Terms
August 10, 2013, 12:15 AM
I never claimed that those prosecutions had anything to do with choice of ammunition. I referred to those cases to show some evidence suggesting that defensive shootings using handloads were rare.

Yet you mentioned the fact that six were prosecuted, for what? ...were handloads even an issue? please elaborate!!!

Why bring up the fact that charges were brought up if you have no idea if they pertain to this discussion.

Once again ...odd

Frank Ettin
August 10, 2013, 12:31 AM
I never claimed that those prosecutions had anything to do with choice of ammunition. I referred to those cases to show some evidence suggesting that defensive shootings using handloads were rare.

Yet you mentioned the fact that six were prosecuted, for what? ...were handloads even an issue? please elaborate!!!

Why bring up the fact that charges were brought up if you have no idea if they pertain to this discussion...Here's exactly what I wrote the first time I brought the subject up in this thread (post 64 (http://www.thehighroad.org/showpost.php?p=9053913&postcount=64)):...relying on historical research is helpful only if there's sufficient historical data. If the question is something like, "Is a private citizen who shoots someone and claims self defense more likely to be charged if he used handloads compared with factory ammunition?", or "Is a private citizen who shoots someone and claims self defense more likely to be convicted at trial if he used handloads compared with factory ammunition?", the availability of useful data depends on (1) a large enough population of private citizens having shot someone in claimed self defense; and (2) a large enough subset of those private citizens having used handloads. I suggest that the vast majority of people who keep guns for self defense aren't enthusiasts and use stock guns and commercial ammunition. Indeed, even many of the members here, who are enthusiasts, use commercial ammunition for self defense.

In fact we have some evidence that reloads are very seldom used in self defense. Al Norris, a member here and a moderator on TFL, did some research on the subject. In a period of some 37 years in Idaho handloads were used in only 12 self defense shooting incidents. Six weren't prosecuted; apparently they were clearly justified. Six were prosecuted, resulting in six convictions -- ...

357 Terms
August 10, 2013, 12:52 AM
Six were prosecuted, resulting in six convictions -- ...

Yes, I know what you said.

You mentionted that they were prosecuted.

In the context of this discution, does it apply?

Why mention that they were carrying handloads, and were prosecuted, IF THE FACT THAT HANDLOADS DID NOT IN ANY WAY PERTAIN TO SAID PROSECUTION??

just asking

Frank Ettin
August 10, 2013, 12:54 AM
just asking And I answered. Everyone can read my answers and decide.

357 Terms
August 10, 2013, 01:05 AM
You also said;

Six weren't prosecuted; apparently they were clearly justified.

Does that mean the other six were not justified?

Or does it mean all 12 were justified, yet six were drunk?

Again, please elaborate.

Frank Ettin
August 10, 2013, 01:18 AM
You also said;

Six weren't prosecuted; apparently they were clearly justified.

Does that mean the other six were not justified?

Or does it mean all 12 were justified, yet six were drunk?

Again, please elaborate.Apparently in six of the cases the district attorney decided not to file charges and prosecute. The most likely reason for that is that in those six case the actor would have been able to demonstrate that their use of force was legally justified.

And in six cases the district attorney apparently decided that the actors were not legally justified in shooting someone and would not be able to sustain their claims of self defense. Therefore they committed crimes by shooting someone. The district attorney therefore decided to charge them with crimes and take them to trial. All six of these people were convicted of crimes -- four on pleas and two by juries.

And the term "actor" is a term of art in legal discussions referring to a person who does, or has done, some act.

To understand how use-of-force law works see here (http://www.thehighroad.org/showthread.php?t=721597).

gonoles_1980
August 10, 2013, 01:20 AM
the advice was to use factory ammo, because handloads could be used against you in court.

357 Terms
August 10, 2013, 01:33 AM
The district attorney therefore decided to charge them with crimes and take them to trial. All six of these people were convicted of crimes -- four on pleas and two by juries.

Yes, quite obvious.


And they were convicted of what?

RealGun
August 10, 2013, 08:08 AM
When I took my concealed carry class...

--------------------------------------------------------------------------------

the advice was to use factory ammo, because handloads could be used against you in court.

That's how urban legends are sustained.

Kleanbore
August 10, 2013, 09:47 AM
When I took my concealed carry class...
the advice was to use factory ammo, because handloads could be used against you in court.That's not very helpful unless they explained why.

"Used against you"? Yes, that is theoretically possible. We have addressed that subject here (http://www.thehighroad.org/showpost.php?p=7626855&postcount=2) The risk is very low, and it would most likely only materialize (1) in the presence of other evidence that might seem to pertain to state of mind, and (2) if there was evidence that the loads had been assembled for maximum destructive power by someone who did not seem to have some need for such power--say, for hunting, for camping in bear country.

And, of course, it would only be important in combination with all of the other evidence, perhaps in cases in which the evidence presented by the actor was insufficient to convince others that the act had been justified.

Understand that the very same potential risk exists if a person uses some kind of very high powered commercial loading that is advertised in a way that emphasizes its destructive power. Or perhaps an exceptionally high powered weapon not usually selected for self defense.

But again, the risk is very low, but it can be mitigated.

They are probably simply repeating something they have heard, most probably without any understanding of the subject. It is possible that the instructor was thinking about the evidentiary issue we have been discussing here, but that has nothing at all to your ammunition being "used against you in court."

Did they happen to mention the potential risk that jurors may be unfavorably influenced by the appearance of certain types of weapons? Research indicates that one should probably worry more about that one.

There are many, many other things to worry about first.

buck460XVR
August 10, 2013, 09:48 AM
Why would any defensive use of force action ever be deemed a "bad shoot" because of the use of hand loads?


This is the question many of us have been asking all thru this thread. When asked for any examples we don't get a definitive answer, only a "could happen....maybe".


The real question is much more subtle. If there is a dispute about whether your use of force was or was not justified, are there reasons your use of handloads could make it more difficult for you to establish that it was justified?

In other words, if everyone doesn't agree that it was a good shoot and you need to show it was a good shoot, could your use of handloads make that harder for you to do?


Okay, again...... can you give us any examples? Not cases of suicide/murder, not cases where factory rounds were tested and exonerated folks, not smoke and mirrors to avoid the obvious answer, but a real life SD case where the use of handloads made the difference, any difference, in the eyes of the jury, whether the shoot was truly justified or not?

Kleanbore
August 10, 2013, 10:02 AM
Posted by buck460XVR: Okay, again...... can you give us any examples? Not cases of suicide/murder, not cases where factory rounds were tested and exonerated folks, not smoke and mirrors to avoid the obvious answer, but a real life SD case where the use of handloads made the difference, any difference, in the eyes of the jury, whether the shoot was truly justified or not?You apparently did not read my answer to your question in Post 153, which should explain to you why this question is meanlngless. Try again.


First, there have not been very many claims of justification in shooting incidents that have been the subject of much in the way of disputed evidence.

Of those that have, even fewer have depended in large part on forensic evidence.

And of those, still fewer have depended entirely on resolving contradictory evidence by making discrete shooting distance estimates that had to be based on GSR pattern evidence. It is one thing to say that the pattern on the shirt differed from that on the decedent's body, and quite another to make discrete distance estimates.

So far so good, and what it tells us is that when one steps out in the morning, one's chances of needing to end up having to present test evidence is far less than remote.

Also, of any disputed self defense claims that may have come up in which distance estimates based on GSR may have been needed, we are unaware of any in which the defender used hand loads. That should not be a surprise to anyone.

It will explain to any reasonable person why we have not heard of any actual cases. Of course, there are other reasons: trials are determined by the totality of the evidence; and no one has interviewed all of the jurors in all of the self defense trials in the country to determine the reasons for their findings.

But should one's acquittal happen to hinge upon distance estimates requiring GSR test evidence, one's fate might well be sealed by the question of the admissibility of said evidence. At that point we have entered the realm of conditional probability. And when it comes to risk management, that's an entirely different animal.

I do not carry hand-loads for self defense. I would not worry very much about using them indoors, however. And if I happened to arrive at the campsite equipped only with hand loads, I would not go very far out of my way to replace them. And if all I had next to the bed was a .41 Colt loaded with hand loads, I would take my chances. But it it is easy to mitigate the risk, I will do so.

There is quite a science surrounding the making of assessments--risk assessments, forecasts, performance assumptions, estimates of cost, schedule, weight, and so on--when there is a paucity of directly relevant actual data. The task is not at all like actuarial predictions, or auto safety data.

Back during the early days of my long corporate career, when we were first putting man into space, we dealt with those issues all the time.

Later, I was heavily involved in legal issues. The statement "no one has ever been convicted because..." was on a list on the wall. The title of the list was "famous last words."

buck460XVR
August 10, 2013, 10:05 AM
"Used against you"? Yes, that is theoretically possible.



Similar to the unproven theory at one time the world was flat? Many at that time warned profusely that anyone sailing too far to the west would fall off the end. They too claimed they were "experts" and those that didnt wish to heed their advice were foolish.




Understand that the very same potential risk exists if a person uses some kind of very high powered commercial loading that is advertised in a way that emphasizes its destructive power. Or perhaps an exceptionally high powered weapon not usually selected for self defense.



So, in other words, factory ammo, other than that intended solely for target practice, especially that designed specifically for SD, would have the same potential for problems as reloads? Why, then the insistence on factory ammo? In your opinion then, using a similar example, "intensive training" in killing BGs as Frank mentions he participates in, could also endanger ones freedom? How about a trigger job or a custom gun?

buck460XVR
August 10, 2013, 10:11 AM
You apparently did not read my answer to your question in Post 153, which should explain to you why this question is meanlngless. Try again.


No, I read it and understood it completely. More "could happen, maybe". I understand why some choose not to use handloads and I respect that choice. I just ask those to give me the same respect. Especially since all available concrete proof shows it is a safe and reasonable choice.

Frank Ettin
August 10, 2013, 10:27 AM
Understand that the very same potential risk exists if a person uses some kind of very high powered commercial loading that is advertised in a way that emphasizes its destructive power. Or perhaps an exceptionally high powered weapon not usually selected for self defense.



So, in other words, factory ammo, other than that intended solely for target practice, especially that designed specifically for SD, would have the same potential for problems as reloads? Why, then the insistence on factory ammo? In your opinion then, using a similar example, "intensive training" in killing BGs as Frank mentions he participates in, could also endanger ones freedom? How about a trigger job or a custom gun? Lawyers will use whatever is available to use to further the interests of their clients, consistent with the rules of law, evidence and procedure, and consistent with what they actually have to work with. The prosecutor's client is the State, and if he is prosecuting you for an act of violence against another human which you claim was in self defense, he will use whatever he can use, within the law, further the State's interesting in getting you convicted.


If I am preparing for the possible eventuality of being the defendant in a criminal or civil case arising from my use of force in self defense, I can make some decisions ahead of time. I can make those decisions based on an assessment of the risks compared with the utility of certain conduct. That's call risk management. The point is to lay as strong a foundation for my defense as possible, while preserving my ability to accomplish my purpose. I want to stack the deck in my favor as much as I can.


So --


I use quality, JHP ammunition of the sort commonly used by law enforcement agencies. This could be used against me in court, but I have decided that the risk is warranted because of the generally superior terminal performance of such ammunition. Therefore, I am prepared to meet attacks on my use of such ammunition.



I have sought out training, and I practice. I recognize that these things can be used against me in court, but I have concluded that by being trained I have a better chance to prevail in an emergency. So I have prepared to deal with attacks on my training.



Using a heavily modified gun could be used against me. Furthermore, I have trained and practiced sufficiently to be effective with a stock gun. So I have no good reason to use a heavily modified gun and take any risks on that account.



I gain no material advantage on the street using handloaded ammunition instead of good commercial ammunition. Therefore, I see no reason to take any risks, even if remote, by using handloaded ammunition.


That's how I've made my choices.

...Especially since all available concrete proof shows it is a safe and reasonable choice. ...We keep coming back to this question of concrete proof. What I and some of the other lawyers who have posted here and on TFL on this subject (e. g., Spats McGee and Bartholomew Roberts) about how the law of evidence works seems to be enough for us. It is, perhaps, not enough for you and others.

Kleanbore
August 10, 2013, 10:41 AM
Posted by buck460XVR: Similar to the unproven theory at one time the world was flat? Many at that time warned profusely that anyone sailing too far to the west would fall off the end. They too claimed they were "experts" and those that didnt wish to heed their advice were foolish.Come now. Let's be mindful of the signal to noise ratio.

So, in other words, factory ammo, other than that intended solely for target practice, especially that designed specifically for SD, would have the same potential for problems as reloads?I'm sorry. I failed to include the link. Should explain it better.

Why, then the insistence on factory ammo?Different reason, discussed at lentgh above and covered in our sticky on the subject.

In your opinion then, using a similar example, "intensive training" in killing BGs as Frank mentions he participates in, could also endanger ones freedom? That's a very interesting question.

Yes, I suppose it could be used to indicate state of mind.

On the other hand, not having the training creates real risks.

It's a judgment call. The answer is obvious to me.

What we do know for a fact is that some training material used by some well known trainers has been used to great effect by prosecutors. See the Larry Hickey case in Arizona.

How about a trigger job or a custom gun?Yes, some kinds of trigger work, and some kinds of safety modifications, can and have proved problematical in both civil and criminal court.

No, I read it and understood it completely. I'm sorry, but I really do not think you understand it very well at all.

Especially since all available concrete proof shows it is a safe and reasonable choice.I've seen no such proof at all, but let me use that one to try to explain the gist of Post 153 one more time.

Suppose you have a rocket booster. It has never failed to work. That was considered "concrete proof" that is was safe.

But it had never been launched at low ambient temperature.

Then one day, they happened to launch it when the temperature was low. That's when certain aspects of the design that had not come to light before become important. Remember 1986?

Back to today: it is not until you happen to need to introduce GSR pattern test evidence to support your defense that the issue would become important.

Is that likely to happen? Not by a long shot. But when and if it ever does, the likelihood of having a problem approaches unity.

And the consequences could mean the loss of virtually everything--personal freedom, family, everything you own, employment, lifetime gun rights.....

And mitigation is possible--why not do it?

buck460XVR
August 10, 2013, 10:46 AM
We keep coming back to this question of concrete proof. What I and some of the other lawyers who have posted here and on TFL on this subject (e. g., Spats McGee and Bartholomew Roberts) about how the law of evidence works seems to be enough for us. It is, perhaps, not enough for you and others.

As of now is is not enough for me. 0% of probability is a risk I'm willing to take right now. As I said before tho, should any evidence come up that would prove to me that the chances of being convicted based on the use of reloaded ammo, using readily available components and published recipes are greatly increased, I ask you to let me and others like me know. Information is what these types of forums are all about, along with the exchange of ideas and opinions. I believe this has been a very beneficial exchange and may have helped others on the fence decide one way or the other. Whether or not they use the facts or conjecture is entirely up to them....it's their choice to make and they are the ones that have to live with it.

Tommy Van Alen
August 10, 2013, 10:55 AM
this is my personal opinion, but the chances or the odds of actually having to shoot somebody are so rare, especially if it was a home invasion.

there was some NBC Dateline special a few years ago about some old engineering guy who had next door neighbors who were both defense lawyers.

they got into it over property lines. and the old engineering guy shot the lawyer husband.

the prosecution searched the old guy's house and found some DVD on hand to hand combat that the old guy had purchased like a year earlier. During the trial, the prosecutor used that as proof of premeditation, that the old guy was looking for a fight.

so my point is anything you have done up to that point CAN and WILL be used against you.

buck460XVR
August 10, 2013, 11:03 AM
Suppose you have a rocket booster. It has never failed to work. That was considered "concrete proof" that is was safe.

But it had never been launched at low ambient temperature.

Then one day, they happened to launch it when the temperature was low. That's when certain aspects of the design that had not come to light before become important. Remember 1986?



Yes......I remember 1986. If you want to use that as an example(let's be mindful of the signal to noise ratio) you need to include the fact that it was well known that there could be catastrophic seal failure from sub-zero temperatures long before the launch count began. The example has little bearing when you include the fact that the director of the Space Shuttle Solid Rocket Motor Project for the engineering contractor Morton Thiokol had refused to sign the the launch recommendation over safety concerns. He had concrete proof(not "could happen, maybe"s) there was a substantial risk in launching the shuttle and others in higher authority ignored those facts, even tho the lives they risked(unlike in a SD scenario) was not their own. Those certain aspects of the design HAD come to light before becoming important. The risks were evaluated and those in charge accepted that risk. I wonder if their choice would have been different if it was their wife and kids in the shuttle?

Again, this has been a informative thread.

david bachelder
August 10, 2013, 11:31 AM
I cary nothing but handloads and the bulk of them use my own cast bullets. If needed, I will shoot the bad guy with one or more of them.

Truthfully, other than 22 LR, 25 Auto and a few shotgun shells, there are no factory loads in my possession, and I'm not looking to buy any either.

I'd hate to shoot anyone, but if my life or the life/well being of my family is threatened, I will defend me/them with deadly force if needed. If there are consequences for my act, I will deal with them.

I have the training, ammo and permit, I am prepared to make the decision and I would not hesitate to use deadly force if needed.

My wife and I have already planned how to react in the case of an intruder.

Kleanbore
August 10, 2013, 12:25 PM
Posted by buck460XVR: 0% of probability is a risk I'm willing to take right now. How much risk one is willing to accept without mitigation is a personal decision.

However, to assess the likelihood at 0% is not a competent assessment. That's an assessment of cumulative probability, and it is based on a very limited data sample. In actuality, the cumulative probability is something greater than zero, but it is very low indeed. However, prudent risk management must always be based upon conditional probability--the probability of having a problem once the occasion presents itself.

Otherwise, we might well choose to not have fire extinguishers, carbon monoxide detectors, passive restraint systems in cars, first aid kits, or defensive firearms.

The probability that one would be unable to introduce into evidence GSR test data from one's own ammunition, should one ever need it, is awfully close to 100%.

So, how likely is it that need will ever arise? No way to tell. BUT: personally, I think there is a very real risk that eyewitness testimony may not prove helpful to my case, should I ever need it.

There are two reasons for that: (1) eyewitnesses are most unlikely to see the event unfold in its entirety as you did; and (2) there is a very real risk of bias, depending upon where a use of force incident may occur.

I'd like some additional protection. Costs me nothing.

Risk management is a multifaceted subject. I carry a gun--one with reasonable capacity; I know how to use it; I carry a cell phone; we stay in at night most of the time; I avoid going places where I would feel uncomfortable if I were not armed; I look around before stopping at an ATM or entering a store or refueling the car; I am mindful of where I park, and how long I take to get in and out of the car; I leave if something just does not feel right; and I carry high quality commercial defensive ammunition that I have inspected.

Of those things, some of my friends and neighbors only carry a cell phone, and a few do not even do that.

As I said, how much risk one is willing to accept without mitigation is a personal decision.

As I said before tho, should any evidence come up that would prove to me that the chances of being convicted based on the use of reloaded ammo, using readily available components and published recipes are greatly increased, I ask you to let me and others like me know. Unlikely--but that's not the issue at all. Never has been.

My personal opinion is that in an ambiguous circumstance, one is much more likely to be convicted because of what one has said or posted, or because of a failure to get out while the getting was good, or because of having done something to one's trigger or safety, or because the appearance of one's firearm worried a jury, or because of the signs one has put up, than because it was introduced into evidence that one had used hand loads.

Yes......I remember 1986. If you want to use that as an example(let's be mindful of the signal to noise ratio) you need to include the fact that it was well known that there could be catastrophic seal failure from sub-zero temperatures long before the launch count began. The example has little bearing when you include the fact that the director of the Space Shuttle Solid Rocket Motor Project for the engineering contractor Morton Thiokol had refused to sign the the launch recommendation over safety concerns. He had concrete proof(not "could happen, maybe"s) there was a substantial risk in launching the shuttle and others in higher authority ignored those facts, even tho the lives they risked(unlike in a SD scenario) was not their own. Those certain aspects of the design HAD come to light before becoming important. The risks were evaluated and those in charge accepted that risk. I wonder if their choice would have been different if it was their wife and kids in the shuttle?You are absolutely right--thanks.

And the rules of evidence are also very well known, by those who have studied them. So are forensic investigation techniques. As Frank Ettin has said, the possiblity of needing certain evidence is a risk that cannot readily be quantified in terms of likelihood. But it is in fact an identifiable risk. You can choose to accept the risk, or not.



Considering the severity of the potential consequences and the very minimal cost of mitigation, my informed decision is to not do so.

Do as you please.

leprechaun50
August 10, 2013, 11:38 PM
This has been a very educational discussion with the majority of worth while information on both sides coming from members whose opinions I respect. I for one am glad that this discussion has been allowed to continue.

From my personal point of view when at home or in close proximity, I will be useing my handloads. Reason being I live in the country and use of my pistol would most likely be for an animal that needed to be dispatched.

If I will be traveling any distance from my home I will be useing a high quality commercial ammunition.

BullfrogKen
August 11, 2013, 03:00 AM
My apologies for not responding sooner. Life got in the way.

And as mentioned, it is not even about how some kind of evidence was created. It is about by whom, and under what circumstances, and about custody of records.

Yes, and you contend that since you use factory-loaded ammunition, you could get a factory to provide some for testing to aid in your defense. So if that were possible, do you think that's all it takes, a phone call and something they sent you in the mail? Any decent lawyer would require you not only to prove that the ammo you're testing was substantially similar, if you want to build your case on the factory sending you the same stuff your client used, you're going to have to bring someone in from the factory to testify to that. You have to call someone in from that factory to testify it was what your client used, how that ammo is stored and the record-keeping.

If you can find one.

The reality is there are no warehouses full of stockpiles of your exemplar ammunition just waiting for a prosecutor, or a defense attorney, or a ballistics lab to call so they can send them some. Ammunition manufacturers are in the business of making and selling ammo, not acting as a custodian to store it for when someone calls needing some for a case. How many shootings occur every day in the United States? 50? 60? The last estimate I saw on the total domestic private sector manufacturing capacity was somewhere around 12 billion rounds. Imagine the expense it would take to keep that sort of stockpile warehoused, staff to respond to all those requests, and make someone available to testify at trials when called to speak to what they supplied.

But there is none. The best you could hope for is to find a factory who had some still in their QC department for recall testing purposes. You might be able to find a technician to respond to what a round was loaded with. But if the testing lab relied on that, that technician makes himself subject to being called to testify, and the reality is you won't find someone who can speak to that.

The reality is the labs examine what was used, along with anything that a search warrant obtains, and figure it out for themselves. The State lab here in PA has a full compliment of handloading equipment and supplies, and most times they'll assemble what they need to test in house from the analysis of the seized ammunition and spent rounds. Or it might use some of the stockpile they keep for convenience of the commonly-used calibers they see at homicides to conduct the testing.

But there are no warehouses full of factory rounds of each and every lot, of each and every caliber they make sitting there, just waiting for the day a lab calls and asks for some. Nor are there detailed records waiting for a lab to call to get. The ammo manufacturers don't want to be in the business of testifying at trials.

This myth is a bedtime story told to make you feel better.


I've been fortunate in my life to know people who have worked homicide cases. Many, many hundreds of homicide cases. I'll trust their actual experiences rather than the academic speculation from those who haven't.

I challenge you to discover the truth for yourself.

BullfrogKen
August 11, 2013, 03:02 AM
It would be helpful if you'd also address not only the procedures followed in that laboratory but also how those procedures relate to the rules of evidence applicable to the introduction of expert opinion testimony.

You mean like in the Bias case? You referenced that case for years when the discussion of handloads for self-defense comes up. Now you want to run from it.

Look, who has the harder burden in a criminal case? The prosecution. It has to prove it's case, because until they do the defendant remains not guilty.

The Bias' defense team had several opportunities to get the testing done on his handloads tossed out and keep it from getting before a jury. Those hung juries gave them those opportunities. They couldn't do it.

It was vital evidence for the state to prove Lise's death was not a suicide. Just as it was vital to Daniel to prove it was. Actually, not prove. That wasn't his burden. In a justifiable homicide it's the burden of the defense to prove the death was justified. All Bias had to do was introduce sufficient doubt to the prosecution's assertion that her death was not by his hand and the result of a suicide.

So New Jersey's Ballistics lab did the work, and they experimented with loadings that weren't even at the scene to determine if it was possible a fatal wound could be produced at that arm's length distance yet not leave GSR on Lise. They couldn't produce such a result with anything they tried. The defense team attempted to suppress those results, but the judges allowed them. Each time.

Again, according to you and all you know, that shouldn't have happened. So did his defense suck that much? So much so that when they got chances at "do-overs" because of the hung juries they still couldn't get it suppressed? I think New Jersey showed that such evidence can be submitted. Several times. Under different judges. Over the objections of the defense.

But it's like my friend said, you can do all this work but once it goes to trial, the jury gets to decide who to believe. Now you can choose to believe in bed time stories if you want, but that's the reality.

BullfrogKen
August 11, 2013, 03:29 AM
These <state police forensic laboratories> are not independent third parties. These are parts of police agencies serving the criminal justice system. The opinions of police forensic laboratories have been subject to dispute in criminal litigation.

They are independent in that they do not serve either the prosecution or the defense. There are only a few private forensic science labs possessing the qualifications to conduct work on the subject of firearms identification and appear before a court as an expert on the matter.


So, you're suggesting because they work for the state, and are often under the direction of the state police, that they work to help prove their cases?

From that site I provided a year ago that you've become fond of referencing . . .

http://www.firearmsid.com/A_expert.htm

You work for who?

Firearms Identification is a branch of Forensic Science and as such those who qualify are scientists. It is often assumed that since I work for a law enforcement agency that I have a vested interest to help the law enforcement community prove the facts of a case and help gain a conviction through my testimony. Actually, the job that the firearm examiner performs is not to prove innocence or guilt. As a scientist our job is to merely convey to the jury what we did, how we did it, and what our results were. It is up to the jury to decide innocence or guilt through the process of hearing all of the facts of the case. The jury will hear my testimony and decide if it is or is not relevant to the case.

As scientists and expert witnesses (and to remain as such) it is of the utmost importance that we maintain complete impartiality in our job. I would take great offense to someone implying I am testifying for or against anyone. I am simply conveying facts based on a degree of scientific certainty, nothing more.

When testifying in court it is the responsibility of any expert to treat the prosecutor and defense attorney with an equal degree of candor. The jury will see how a witness reacts to questions and will use those reactions to judge, for themselves, whether you are telling the truth or are stretching the truth to one side's benefit.

All of the examinations one may conduct will be for nothing if the expert cannot convey the examinations conducted in a way that the jury can understand and believe.

Frank Ettin
August 11, 2013, 04:44 AM
...Yes, and you contend that since you use factory-loaded ammunition, you could get a factory to provide some for testing to aid in your defense. So if that were possible, do you think that's all it takes, a phone call and something they sent you in the mail? Any decent lawyer would require you not only to prove that the ammo you're testing was substantially similar, if you want to build your case on the factory sending you the same stuff your client used, you're going to have to bring someone in from the factory to testify to that. You have to call someone in from that factory to testify it was what your client used, how that ammo is stored and the record-keeping...I've never had occasion to obtain evidence from an ammunition manufacturer, but I have had occasion to obtain evidence from a variety of third parties. It's a common thing in litigation. It's done by issuing a piece of paper called a subpoena.

The process customarily begins with a telephone call. That's an important courtesy. I, or someone else, would telephone a company's lawyer to discuss our situation, what sort of material might be available, how to frame the subpoena, who might be able to appear as a witness and terms of reimbursement for the cost incurred by the company responding to the subpoena. I or someone at my direction have made many such calls, and I've received more than a few such calls myself.

While in pretty much every type of manufacturing business it is a customary quality assurance practice to maintain a small stock of each lot of something produced, even if such is not available quality assurance protocols, quality assurance test result and a quality assurance engineer or technician to testify about such matters would normally be available.

So if any of that sort of material would be available, I know how to get it; and I will be able to get it. Nothing of the sort is available from an uninvolved third party if I used handoads.

...I've been fortunate in my life to know people who have worked homicide cases. Many, many hundreds of homicide cases. I'll trust their actual experiences rather than the academic speculation from those who haven't...And I've been fortunate to have worked with many highly skilled trial lawyers with extensive, major trial experience.

It would be helpful if you'd also address not only the procedures followed in that laboratory but also how those procedures relate to the rules of evidence applicable to the introduction of expert opinion testimony.

You mean like in the Bias case? No, because in Bias we have no published decisions by the trial judge explaining the bases for his evidentiary ruling, nor do we have any published decisions by a court of appeals discussing those evidentiary rulings. So at this stage let's stick with actually published by courts judicial decisions relating to the rules and standards for the introduction into evidence of expert opinion. I've pointed to several important ones in post 182 and in post 111 to an article (with case citations) on the central concept of substantial similarity.

...So, you're suggesting because they work for the state, and are often under the direction of the state police, that they work to help prove their cases?...

I have no doubt that there are great many (perhaps a great majority) criminalists, crime lab technicians, forensic scientists, etc., who are diligent, objective, impartial and highly competent. But that doesn't necessarily mean that every single criminalist, crime lab technician, forensic scientist, etc. working for a state laboratory at all times fully fits that description in all particulars.


Even highly competent professionals can make mistakes. Fully accredited and competent clinical laboratories on rare occasions make mistakes causing injury to patients. Highly competent physicians have committed malpractice. In post 213 buck460XVR describes a grievous failure of judgment in the space program. And as noted in post 171, government forensic laboratories have not been free of criticism.


A trial is about conflicts of evidence or the conclusion that may be draw from evidence. Trials are the way to resolve disputes of fact, and defendants frequently will, sometimes successfully, dispute the evidence claimed by the prosecution to support the state's case.


So I can not reasonably assume that if I am on trial based on a use of force I claim is justified, it would not be desirable, or perhaps necessary, to challenge the forensic evidence offered by the prosecution. And one way it might be desirable for me to be able to challenge that prosecution evidence might be an opinion of my own expert based on his tests of exemplars; and to do that I would need to have that opinion entered into evidence.

Frank Ettin
August 11, 2013, 04:59 AM
...Look, who has the harder burden in a criminal case? The prosecution. It has to prove it's case, because until they do the defendant remains not guilty....Except in a case in which the defendant is claiming self defense, he will have admitted committing the elements of the crime. His defense is justification, and he will have the burden of putting forward evidence establishing prima facie that the legal standards for justification were met.

Only then does the burden shift back to the prosecution to prove beyond a reasonable doubt that the defendant's acts did not constitute justifiable self-defensive use of force. And as a practical matter, the less convincing the defendant's evidence is the easier it will be for the prosecution to meet its burden.

These issues are discussed on this board here (http://www.thehighroad.org/showthread.php?t=589272). And see this post (http://www.thehighroad.org/showpost.php?p=7602699&postcount=1) for links to an excellent article by attorney Lisa Steele on defending the self-defense case.

Kleanbore
August 11, 2013, 09:14 AM
Posted by BullfrogKen: Yes,[(as mentioned, it is not even about how some kind of evidence was created. It is about by whom, and under what circumstances, and about custody of records)] and you contend that since you use factory-loaded ammunition, you could get a factory to provide some for testing to aid in your defense. So if that were possible, do you think that's all it takes, a phone call and something they sent you in the mail?That's not really crux of the argument.

Whether or not the factory has exemplar rounds to be tested (they may or may not have, but in most cases they probably do), they most certainly do have records--independently created records, independently maintained--from which an independent concern could reproduce similar samples, unless the propellants and/or priming compounds were obsolete. You can bet on it.

There was a case discussed here a couple or three years ago in which some ammunition had to be assembled for testing using old Frankford Arsenal records because ammunition from the lot at hand could not be found. The specimens met the requirement. I do not remember the case, or whether it was civil or criminal.

Any decent lawyer would require you not only to prove that the ammo you're testing was substantially similar,....That's a true fact. And that's precisely what we have been discussing here.

....if you want to build your case on the factory sending you the same stuff your client used, you're going to have to bring someone in from the factory to testify to that. You have to call someone in from that factory to testify it was what your client used, how that ammo is stored and the record-keeping.Yes indeed.

You might be able to find a technician to respond to what a round was loaded with. But if the testing lab relied on that, that technician makes himself subject to being called to testify, and the reality is you won't find someone who can speak to that.They will have the records, and if they are duly called for for use in a trial, they will be produced, along with whomever would be required to speak to them.

The reality is the labs examine what was used, along with anything that a search warrant obtains, and figure it out for themselves. The State lab here in PA has a full compliment of handloading equipment and supplies, and most times they'll assemble what they need to test in house from the analysis of the seized ammunition and spent rounds. Or it might use some of the stockpile they keep for convenience of the commonly-used calibers they see at homicides to conduct the testing.That's all very fine, but what the state labs do, however important it may be, isn't the issue here. The issue has to do with the admissibility of evidence, and more specifically, the inadmissibility of certain kinds of evidence that have or may have been in the custody of a party to a trial, civil or criminal.

Now, you may ask the question, what if the ammunition company is a party to a trial, as a defendant in a civil liability case? That is a very good question.

Well, that is one reason why they have independent organizations responsible for lot testing and for maintaning the records from such testing.

But there are no warehouses full of factory rounds of each and every lot, of each and every caliber they make sitting there, just waiting for the day a lab calls and asks for some. Nor are there detailed records waiting for a lab to call to get. The ammo manufacturers don't want to be in the business of testifying at trials.There may or may not be samples from lot acceptance testing, but even if there are none, they most certainly have records that would meet the requirements.

No one likes to testify at trials. But people do not have that option when their testimony, records, computers, and so on are called for.

And along that line, it is a practical necessity to properly maintain data--manufacturing data, test data, quality assurance records, accounting data, purchase orders, memoranda, and so on--that have a reasonable potential of becoming relevant in later litigation. It's a fact of life these days. For the shareholders and for management, is a matter of financial self preservation, and sometimes more.

It applies to just about any major corporate entity, whether the firm produces rocket motors, industrial gases, rocket motors, turbine blades, food additives, musical instruments made from various kinds of wood, insect repellents, cosmetics, arresting gear for carrier based aircraft, firearms, pharmaceuticals, ammunition, or even public audit reports.

It is one big reason why data from a major ISO-certified firm would be most likely to be admitted, and to be believed.

The remanufactured .45 target ammo I have used at the range? I just don't know, but I am far less confident about it.

I hope this helps to clear some of the fog.

bluetopper
August 11, 2013, 01:06 PM
Some attorneys will argue with a fence post. They thrive on confrontation and trying to make a point, valid or not. And will do so no matter the frustration caused to whom they argue with; in fact, the more caused the better they like it. To most, it's like an adrenaline rush to them.........seriously.

Kleanbore
August 11, 2013, 01:36 PM
Posted by parisite: Some attorneys will argue with a fence post. They thrive on confrontation and trying to make a point, valid or not. And will do so no matter the frustration caused to whom they argue with; in fact, the more caused the better they like it. To most, it's like an adrenaline rush to them.........seriously.Attorneys try to support their clients.

Generally speaking, they do this in four ways:

by advising their clients on matters of legal compliance;
should it become necessary, how to conduct themselves under questioning by investigators or in court;
by presenting briefs, arguments, and so forth in suupprt of their cleints' positions; and
by attempting to counter the aguments of other attorneys who are working against the interests of their clients.


Regarding the first of the above, they confine their advice to legal matters. When asked, for example, whether it would be wise to make a settlement offer or to sign a contract, they will generally respond with something like "that's a business decision."

In this thread, we have had some attorneys whom we have not paid generously explain to us some aspects of the legal matters pertinent to the use of ammunition in use of force incidents. They do not represent us in an attorney-client relationship, but their explanations are legally valid. It is usually prudent to heed valid legal advice.

If that has been frustrating to anyone, the fault lies not with the attorneys.

You will note that they have not advised anyone on what to do or what not to do. Those are personal decisions.

Spats McGee
August 11, 2013, 01:58 PM
I'm afraid that I haven't had the time to visit THR as much as I'd have liked lately. Nor have I had time to read this whole thread. However, I say "no" on the issue of using handloads or reloads for carry. Here (http://thefiringline.com/forums/showpost.php?p=4499803&postcount=118) is a brief post that I wrote on the issue over at TFL.

ETA: I also created An Archive Regarding Reloads and Self-Defense on TFL. It needs to be reorganized, but it contains a whole host of threads in which these issues have been hashed out. Here: http://thefiringline.com/forums/showthread.php?t=452627

Kleanbore
August 11, 2013, 02:16 PM
Thanks, Spats.

I did provide a link to that in Post 145.

Spats McGee
August 11, 2013, 02:26 PM
Yeah, I just now spotted it in going back through the thread.

Kleanbore
August 13, 2013, 08:54 PM
The discussion here has been valuable, informative, and thought-provoking. Some of the questions and some of the comments have brought to light the need to improve and expand the Sticky on the subject in ST&T. We hope that the revised text provides a more complete, more balanced, and more informative explanation of the issues. This thread is included in that thread.

We appreciate the participation of everyone who has been involved here.

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