Defensive Ammo: Roll your own, or factory?

[Sam1911]

Some thoughts on Bias from that thread: http://www.thehighroad.org/showpost.php?p=9058154&postcount=165

Here's a really insightful post from another thread which gets into this question heavily:
http://www.thehighroad.org/showpost.php?p=7855911&postcount=85

 

[judgedelta]

Whatever you use, put it in the magazine, hold your pistol over the bed and cycle it through the action. Just sayin'...

 

[OneSevenDeuce]

That's an interesting post on the forensics involved. I will say this, though. I have grave doubts about forensic "science", and I believe everyone else should as well. It is not, in fact, science at all. There are some scientific aspects to it, but forensics discovers no natural laws, and is still, at best, an educated guess. I know a lot of people might disagree with this, but I don't find the counter arguments convincing. The fact remains, however, that my opinion doesn't matter much. Forensics are still used and trusted by many of the people who decide matters like this.

 

[Sam1911]

It is not, in fact, science at all. There are some scientific aspects to it, but forensics discovers no natural laws, and is still, at best, an educated guess.

Right you are! But that's ok. What forensic scientists/investigators are trying to show are elements of evidence to persuade the triers of fact. That is to say, the jury. Not microscopic points of data, or scientific treatises, but broad ideas and yes or no big questions.

They don't say, "a Federal 124 gr. 9mm Hydrashock JHP produced 3.4782 grams of powder residue in the following fingerprint pattern..."

They say, "Mr. Bias says his wife shot herself. The gun couldn't have been more than a foot or two away from her head then. But there wasn't more than a tiny bit of GSR peppering on her. We tried 16 different kinds of ammo, including his own reloads, our duplicate reloads, and factory ammo of these different kinds. Every one of them produced gun shot residue of about this amount (see picture "A") out to a range of at least four feet. Therefore, we suggest that the shot must have come from farther away than the defendant claims."

And the jury chews on that and makes a decision of fact.

No, these are not hard and fast rules they're discovering (usually). And if a point they're making is really borderline, the defense can jump all over it and point out how inconclusive their research really is, and the jury may accept that objection.

In something like the Bias case the question was MUCH more black-and-white.

And that, again, goes to why some feel this is much ado about nothing (or very little). How often is ANYONE in just the kind of case where this evidence even needs to be considered? And if it does, what are the odds that the specific details would be so borderline as to make the precise factors of your reload charges compelling to the degree that a judge would have cause to not allow your defense to admit that data into evidence?



Another point to consider: If Daniel Bias' wife HAD really shot herself with his reloads, the GSR evidence -- that was admitted -- would have helped support his claim.

 

[OneSevenDeuce]

The problem with the use of forensic evidence, even in the way you describe, is that it is wrong to say "X could not have happened". Since it is not a science this is an inappropriately termed statement which often misleads a jury into thinking that something is not possible. You may have read about a case in which a prosecution attempted to make the case that a man executed an attacker rather than simply defending himself. The reasoning was that spent cases were found at the location of the initial incident as well as a distance away after the attacker fell and died. The assumption was that he followed the man and shot him while he was down, essentially. No one considered the fact that the cases could have been mislocated by EMS personnel who rushed to the wounded man. Forensic science is so routinely misused IMO that you never know what you are going to get. But please realize that I do understand your point, and whether I like it or not, it is still a tool that most people trust.

 

[Sam1911]

Certainly true. And another facet of this to consider is that I've slightly misrepresented the forensic teams here.

THEY do not say, "Ms. Bias obviously did not shoot herself and Mr. Bias did!" They say, "we found the following..." The prosecution then summarizes and interprets the facts they determined for the benefit of convincing the jury of the defendant's guilt.

However, the defense also gets a chance at the collected/reported data and a chance to cross-examine. The defense gets to say, "now, isn't it equally likely in your opinion, Mr. Forensics Guy, that those cases could have been kicked across the room by the paramedics rushing onto the scene?"

To a very real degree, the forensic scientists are not there to prove the State's case. They are not on the prosecution's team. They work for the court/the people, not the DA. They are there to present factually the things they've discovered by testing, recreating, measuring, etc. They can be just as much a tool by which the defense wins an acquittal.

(Law and Order or Rizzoli & Isles present the DA and forensic scientists as best pals, working together to make convictions happen. That's really a bit disingenuous. But what else is new? Used to be there was this great show about a police vice squad down in Miami that seemed to spend most of their time solving murders, thwarting kidnappers and terrorists, wearing sports coats with the sleeves rolled up, and who knows what all else. )

 

[OneSevenDeuce]

That's a very good point. I certainly don't have first hand experiences in a court room. I hope I never do. But I wonder, even though forensic investigators are supposed to present evidence in a neutral way, do you think that it is likely that they will act favorably to a department attempting to gain a conviction? Human bias being what it is I can only assume that no investigator is a neutral source. I'm sorry this subject has gotten so far afield, but it is an interesting aside.

 

[Sam1911]

But I wonder, even though forensic investigators are supposed to present evidence in a neutral way, do you think that it is likely that they will act favorably to a department attempting to gain a conviction? Human bias being what it is I can only assume that no investigator is a neutral source.

Certainly that's an issue in any case. And even accidentally, investigators can miss things that are important and overlook facts which may prove (or would have proved) important.

The saving grace there is that defense attorneys have their sharpest eagle eyes out looking for any sort of evidence of bias with which to discredit the opposition's positions in the eyes of the jury. If bias is not DEEPLY buried, the defense is going to jump on it like a hawk on a mouse.

The "adversarial" nature of criminal trials does actually work pretty well to ensure that each side is getting the best representation possible.

 

[OneSevenDeuce]

That's an interesting statement about the adversarial nature of criminal trials. I had always suspected that was a good thing in terms shaking out the truth, or at least as much of it as possible, but I had never known it to be a fact.

 

[gamestalker]

I presented the liability issue to an expert, an attorney who deals specifically in case law regarding all issue related to firearms. His response was that he couldn't find a single case to support such concerns about reloads as your SD choice.

I trust my reloads 100%, I've never had a single malfunction in over 30 yrs.. I trust factory ammunition 99%, I have had many malfunctions over the years, just had one a couple weeks ago.

GS

 

[Sam1911]

Yeah. You really don't want to live in a place where all we have to do is get together and come to a general consensus or agreement that someone's guilty. Considering what's on the line it is in everyone's best interest for the prosecution to really have to FIGHT and prove their case.

 

[OneSevenDeuce]

Gamestalker,

Yeah, it's probably very unlikely that a person's reloads would be used against him if it came down to a trial. On the other hand it's also very unlikely that any of us will need to use our weapons defensively. And yet who would want to be stuck without his gun if the situation goes south? I may apply the same reasoning to the lack of precedent here.

 

[OneSevenDeuce]

Sam,

Much like democracy, eh? It's messy, but it's the best thing we have.

 

[Spats McGee]

The problems with handloads are discussed at length in a variety of threads found in An Archive Regarding Reloads and Self-Defense, where I compiled a bunch of threads on the issue over at The Firing Line.

The main problem is not necessarily one of an "overzealous prosecutor going after someone for using handloads," though that is how it's often portrayed. Using handloads in SD is not illegal in any State, at least not that I'm aware of. Why would a prosecutor go after someone for doing something that isn't at least arguably illegal? The main problem is an evidentiary one. It deals with the possibility of needing GSR to prove the distance from which one or more gunshots were fired.

As I've posted before, here's the nutshell version of the problem:

The judge is the gatekeeper of evidence, and appellate courts typically afford the judge a high degree of deference when it comes to determining which evidence gets in, and which is excluded.

For purposes of this discussion, I'm going to stick with the Federal Rules of Evidence. I know that most of these cases come down on state law grounds, but I'd like to avoid veering off into discussions of one state's rules of evidence against another. Many states use the Federal Rules as a model, and they'll give us some common ground from which to work.

So, first off, relevance:

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible. Fed. R. Evid. 402

If it's relevant and not otherwise excluded, it gets in. If it's not relevant, it doesn't.

But (& this is a big but), GSR is specialized enough that it is considered "expert testimony. That means that Rule 702 governs it:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Fed. R. Evid. 702(emphasis supplied)

So, if scientific or specialized knowledge will help the jury, an expert's opinion is admissible if:
(1) the testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable principles and methods, and
(3) the witness has applied the principles and methods reliably to the facts of the case.

You have to have all three to get the testimony of the shooter's expert in front of the jury. If the prosecutor files a Motion in Limine prior to trial, asking that it be excluded, he or she will simply argue that the opinion of the handloading defendant's expert is based on unreliable data. Specifically, what the prosecutor is saying is that because the data belongs to the defendant, it's inherently unreliable. I think there's a good chance that nobody was around when the cartridges were loaded, so there's no independent witness. If there is a witness, it's probably a good friend of the defendant. As a result, any data on which the opinion is based is suspect. The prosecutor may not argue with how the defendant's expert got from A to B, but what if A wasn't the right starting point? Then B becomes an unreliable conclusion. Anyway, if the motion in limine succeeds, there can be no mention of the defendant's expert at trial, and the jury will never hear about it.

To condense the problem even further: In order to properly examine any GSR from the scene and make findings, the crime lab will need to know some things about the cartridges used. If the only source of that information is the defendant himself, the judge may well rule that the conclusions of the defendant's GSR experts is based on suspect information, and therefore excludable.

As a practical matter, the odds of this ever happening are very slim, when one considers the chain of events that has to happen for the issue to even arise. However, the stakes are incredibly high. I decline to spot the opposition any points.

 

[OneSevenDeuce]

Great info Spats.

 

[gamestalker]

"OTOH, it's also very unlikely that any of us will need to use our weapons defensively"

OneSevenDeuce, having lived as a less than 1% -er for more than 45 yrs., in that I've been kidnapped, robbed, multiple times, and had to use my firearm, I won't elaborate on that aspect here again. Didn't go well last time.

GS

 

[OneSevenDeuce]

Good copy.

 

[1SOW]

The two S.D. bullets I reload are long tried and true. The effective bullet speeds are posted in numerous places including the manufacturers' sites, NRA tests and several others.

I reload them with premium components to those published speeds over a chrono. They shoot very accurately, and have I full confidence that they will perform at least as well as the factory ammo and likely more reliably. I make the same load with less expensive bullets to practice with, but also do some practice using my premium loads.

Results: I can afford to shoot/practice with them regularly costing way less than a dollar+ per shot. I don't run out and have to switch to another brand because of a "not in stock" condition. They fit and run smoothly in any chamber of that caliber I own.

 

[RussellC]

FWIW; I have never read of an actual case where a prosecuter had "gone after" a self defense shooter for using his handloaded "killer" ammo. Lots of speculation, but not any recorded cases of someone being tried for using handloads. I've read a lot of Mr. Ayoob's writings and he has testified as an expert witness in many trials dealing with shootings, but I can't remember handloads being the deciding factor...

I use handloads in all my guns for every application (target, hunting and SD).

Its not the criminal trial that gets you necessarily. Its when they sue you in civil court and claim some kind of excessive force. You dont go to jail, but you might get hurt seriously financially.

On the criminal side, rules of evidence are one thing, but if you are convicted, at sentencing it is much more wide open as to what can be brought up...for the purpose of sentencing...that's not the guilt phase...

Russellc

 

[1SOW]

Russell, have you got an example case?

 

[ljnowell]

Its not the criminal trial that gets you necessarily. Its when they sue you in civil court and claim some kind of excessive force. You dont go to jail, but you might get hurt seriously financially.

On the criminal side, rules of evidence are one thing, but if you are convicted, at sentencing it is much more wide open as to what can be brought up...for the purpose of sentencing...that's not the guilt phase...

Russellc

Would love to see a single instance of that happening.

Thoughts such as this make me happy I live in IL. Here are a few excerpts from IL law:
(a) A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.

(b) In no case shall any act involving the use of force justified under this Section give rise to any claim or liability brought by or on behalf of any person acting within the definition of “aggressor” set forth in Section 7-4 of this Article, or the estate, spouse, or other family member of such a person, against the person or estate of the person using such justified force, unless the use of force involves willful or wanton misconduct.

 

[345 DeSoto]

This is the way I see the question. Does using Factory ammo mean that we would be using a kinder more gentler way to shoot someone to death, rather than "Man Killer" reloads? SD/HD is SD/HD...

 

[steve4102]

Nowadays, almost daily you read/hear of a SD/HD shoot, but never do you read/hear anything about the type of ammo used.

I can think of one. Harold Fish. He was convicted of Murder for defending himself with a 10mm and "Factory" Hollow Points. The prosecutor hammered home the fact his 10MM was bigger and way more powerful then what LEO use. He also hammered home the use of "Hollow Points".

It worked, as interviews with the jurors after the trial, confirmed that Fish's choice of ammo, factory Hollow points was a contributing factor to finding him Guilty.

So, if you are worried about handloads, ya better worry about choice of Factory Ammo (hollow points) as well and of course your choice of carry gun.

 

[Sam1911]

So, if you are worried about handloads, ya better worry about choice of Factory Ammo (hollow points) as well and of course your choice of carry gun.

Dr. Meyer (member GEM) has done some research on the effect that various weapon choices can have on the sympathy of juries toward a defendant. The effects can sometimes be significant.

There are indeed forms of factory ammo I'd probably NOT choose, based at least partially on how that choice may be presented in a court room. (I don't think I'd pick an ammo called "R.I.P." for example, nor something like "EXTREME SHOCK" or others which have used absurd and over-hyped advertising imagery.

Remember, this is a matter of selling an idea to a bunch of people who don't know anything about the subject matter. A prosecutor holding up your AR-15 with the Punisher skull painted on it can get under the skin of a jury and paint you in a negative light without saying a word. A prosecutor trying to explain that you loaded your own Hornady JHPs instead of buying factory Hornady JHPs might be too fine a detail to resonate on a gut-level with jurors. Or, indeed, they might have to consciously consider the details deeply enough that they start to realize it's a non-issue.

 

[GBExpat]

Any opinions on reloading defensive ammo one way or another?

I currently use a mixture in my carry guns but I do not buy any new factory-rolled HD ammo (haven't purchased any in 20+ years) ... when it is all gone, only my reloads will remain.