Carrying Handloads, yes or no?

[Sam1911]

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]

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]

. 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]

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]

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]

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.

1. 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.
   
   
2. 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.
   
   
3. 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]

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]

...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]

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]

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]

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]

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]

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]

...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 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 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]

Typing a response . . .

 

[X-Rap]

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]

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? 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]

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]

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]

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.

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.

1. 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.
   
   
2. 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.
   
   
3. 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]

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]

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]

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.

...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:

1. 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.
   
   
2. 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.
   
   
3. 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.
   
   
4. The judge is there to rule on disputed matters of law and generally see that the rules of evidence and procedure are followed.
   
   
5. 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]

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]

i shoot handloads in all my guns, as soon as they make better stuff than i do thats what i shoot.