Carrying Handloads, yes or no?

[gonoles_1980]

When I took my concealed carry class...

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

 

[357 Terms]

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]

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]

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 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]

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]

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]

"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]

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]

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?

1. 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.
   
   
2. 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.
   
   
3. 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.
   
   
4. 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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

...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?...

1. 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.
   
   
2. 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.
   
   
3. 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.
   
   
4. 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]

...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. And see this post for links to an excellent article by attorney Lisa Steele on defending the self-defense case.

 

[Kleanbore]

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]

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]

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:

1. by advising their clients on matters of legal compliance;
2. should it become necessary, how to conduct themselves under questioning by investigators or in court;
3. by presenting briefs, arguments, and so forth in suupprt of their cleints' positions; and
4. 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]

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 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