Do you still buy factory ammo?

[Kleanbore]

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

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

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

The crux of the matter, I think.

 

[Spats McGee]

This issue boils down to: experts, exemplar evidence, and opinion testimony. Here's what I wrote about it on TFL ~5 years ago, and it's still accurate:

It's true that there is no rule specifically prohibiting the use or introduction of expert GSR testimony, when the shooter has used handloads. However, I still contend that the use of handloads makes the use or introduction of such evidence more problematic. We can talk all we want about jury perceptions, and they're clearly relevant to the outcome of the case. However, I see the real problem being the fact that the jury never gets to hear that evidence.

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.

 

[Kleanbore]

I remember that very well, Spats, and almost verbatim.

Was it really that long ago?

 

[Spats McGee]

Was it really that long ago?

Yep. The original post was March 18, 2011.

 

[webrx]

I'm gonna buy some factory .357 because I dont have any brass to reload.....

That way I will at least have 50 to start with until I can find some at the range or at a good price. And I get to shoot my 1873 with some MAGNUMs

d

 

[Shaq]

Posted by Shaq: That may come up, but not only regarding handloads. Some nasty-sounding commercial loads or a really powerful handgun could bring in the same argument. It would pertain to state of mind, but I think it could be countered effectively.

The really serious issue has to do with the rules of evidence. Should a defendant happen to need to introduce gunshot residue pattern evidence to counter something like unfavorable eyewitness testimony regarding the distance of the shooting, the use of handloads would create a problem and most probably prevent test data and expert witness testimony pertaining thereto from being admitted.

The reasons are technical and legal and rather arcane, and people make a living teaching and advising others on the subject, but they are real. Their applicability extends far beyond the world of ammunition and gunshots and murder trials, and the subject has gone to the highest court more than once.

What's the risk? One cannot tell in advance. If the only gun I had was an old .38 WCF or .41 Long Colt, and the only ammunition I had had been hand loaded, I would most certainly carry the gun before leaving it at home.

But given the choice, I will carry premium grade factory ammunition.

True, about nasty-sounding factory loads. I wouldn't use ammo marked "RIP" or "Zombie." To simplify matters, I use ammo & calibers that are in use by police.

It is amusing to be called an "Anti-handloading zealot" or other such nonsense, when I've been handloading for 40 years.

 

[Kleanbore]

Posted by Shaq:

It is amusing to be called an "Anti-handloading zealot" or other such nonsense, when I've been handloading for 40 years.

I'll see your 40 and raise you 18 for 58.

 

[buck460XVR]

The crux of the matter, I think.

The crux of most of the conversation lately in this thread tho, is whether or not handloaded ammo increases the risk of a good SD shoot turning into a bad SD shoot in the eyes of a jury, in a criminal trial. Even with all this talk of "experts, exemplar evidence, and opinion testimony", we've yet to be shown any concrete evidence that it does, even to the slightest extent. A lot of could happen, might happen, but no evidence it has or will.

Many of us make choices based on amount of risk every day. There's a risk if we walk outside we might get struck by lightning.....still most of us go outside everyday. There's always a risk every time we drive our car/truck that we could be involved in an accident and not come home to our loved ones......still most of us drive a vehicle daily. Realistically, the risk factors are not enough to refrain us from doing those things. Both of those examples, have a greater risk factor than being convicted of a bad shoot because of the use of handloaded ammo.

Folks need to use for SD/HD what they are most proficient with, what works best in their firearm, what they feel most comfortable/confident with and what is legal for them to use. For the most part, everything else is just window dressing.

 

[Frank Ettin]

The crux of most of the conversation lately in this thread tho, is whether or not handloaded ammo increases the risk of a good SD shoot turning into a bad SD shoot in the eyes of a jury, in a criminal trial. Even with all this talk of "experts, exemplar evidence, and opinion testimony", we've yet to be shown any concrete evidence that it does, even to the slightest extent. A lot of could happen, might happen, but no evidence it has or will....

First, as we've discussed before, you don't get to decide if it was a "good shoot." That decision will be made by others after the fact. If you're unlucky, a jury at your trial will be deciding if your act of violence against another human was justified or not.

And if the decision is up to a jury at your trial for manslaughter or aggravated assault, there are problems with your claim of justification. There necessarily is enough evidence casting doubt on your claim that your intentional act of violence was justified that the prosecutor thinks he can convince a jury that it was not a "good shoot."

As far as whether it would ever be in the interests of a defendant claiming self defense to put on evidence based on GSR exemplar testing, see what member Marty Hates tells us in this post on this board:

I'll jump in here, although I expect my words to fall on deaf ears. I am scheduled to testify at a 1st degree assault trial in April, and pursuant to that testimony, I must conduct testing with a Glock 19 and Silvertip ammunition. It is critical for the defense to show the distance from the shooter to the shootee, and that should be done with a reasonable degree of acuracy BECAUSE I CAN USE THE SAME GUN/AMMO COMBO as the shooter/defendant. If he hadn't been using Silvertips, my testimony would be more open to being discredited, (as the DA tried to do in the first trial). This is a re-trial, due to a hung jury on the first one.

But, while I won't use handloads for self-defense, I certainly don't mind if you do. At $150 per hour of expert witness time, I like the idea that much more testing or work would have to be done to accomplish what might need to be accomplish. And, at private attorney rates of $250 er hour, how much more time will your attorney have to spend trying to explain to the jury why your use of handloads shouldn't be a factor?

For one hour of attorney time, you can use factory loads for the rest of your life....

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

Iowa v. Cpl. Randy Willems

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

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

....Folks need to use for SD/HD what they are most proficient with, what works best in their firearm, ....

If folks can't be proficient with factory ammunition, they have some problems. If their guns won't works properly with factory ammunition, something is wrong with their guns.

 

[buck460XVR]

If folks can be proficient with factory ammunition, they have some problems.

Then why suggest it?

 

[Frank Ettin]

If folks can be proficient with factory ammunition, they have some problems.

Then why suggest it?

Obviously a typo, and I've fixed it. It should have read, and now does, "If folks can't...."

Of course, you're either smart enough to have figured that out and are just being cute; or you aren't smart enough to have figured that out.

 

[Kleanbore]

Posted by buck460XV:

The crux of most of the conversation lately in this thread tho, is whether or not handloaded ammo increases the risk of a good SD shoot turning into a bad SD shoot in the eyes of a jury, in a criminal trial.

Not at all. The crux of the matter is whether there may be evidence which may be crucial to the defense that will never be made be known to a jury.

In fiction, we know that a "good shoot" is a good shoot. In the real world, however, we know only that one person has shot another. That person may claim self defense. Other witnesses, including the person who was shot, may dispute that. The incident was not recorded from multiple vantage points on a sound stage. We do not know that it was in fact a "good SD shoot", regardless of what the shooter may say.

Fragmentary bits of evidence will be gathered after the fact and examined. From the totality of those bits, a jury will try to decide whether it was a "good SD shoot"--or not. And their determination will affect the lives of everyone involved.

Even with all this talk of "experts, exemplar evidence, and opinion testimony", we've yet to be shown any concrete evidence that it does, even to the slightest extent. A lot of could happen, might happen, but no evidence it has or will.

I think we covered that adequately in Post #103.

No prudent person would ever make a risk management decision after having tried and failed to prove a negative.

Both of those examples, have a greater risk factor than being convicted of a bad shoot because of the use of handloaded ammo.

I don't think the question would be one of being convicted "because of the use of handloaded ammo". The question is, whether the totality of the evidence shown to the jury supports conviction or acquittal.

If some of the evidence has been lost, such as the knife that had been in the hands of the person who was shot, or some empty cases, or some projectiles that were fired in the direction of the shooter, that could contribute toward deciding the issue. That can happen.

If an eyewitness fervently believes that what happened is not what the shooter claimed and testifies to that effect convincingly, that could contribute toward deciding the issue. That does happen.

If the jury is prevented from even knowing of the existence of some of the evidence, that could contribute toward deciding the issue. That's the subject that we have been discussing.

While the likelihood may be remote, the stakes may be extremely high, and it is a risk that is extremely easy to mitigate.

When might the issue become dispositive?

Well, if at least some the evidence and testimony available after the fact is contradictory or incomplete in a significant way, and if the shooter is prosecuted, and if the shooter's story regarding the distance is contradicted, and if the introduction of GSR pattern test data could resolve that one issue, that one piece of evidence could establish the shooter's credibility, which is all-imprtant, in the minds of the jury.

But only if the data and the expert witness testimony pertaining thereto are admitted.

Folks need to use for SD/HD what they are most proficient with, what works best in their firearm, what they feel most comfortable/confident with and what is legal for them to use.

Does anyone really believe that hand loaded ammunition will work better in a handgun than the best factory defensive ammunition? I don't. I think the idea is poppycock.

For the most part, everything else is just window dressing.

No. Evidence is not "window dressing".

 

[buck460XVR]

Obviously a typo, and I've fixed it. It should have read, and now does, "If folks can't...."

Of course, you're either smart enough to have figured that out and are just being cute; or you aren't smart enough to have figured that out.

Lowering yourself to snide remarks now? My debate coach in High School always said when the folks you are debating resort to snide remarks in attempt to criticize or question your intelligence, you've won the argument. Quite the High Road you've taken there. Probably about time you closed this thread, as snide comments do not accomplish anything but take up bandwidth.

No where have I ever said factory ammo was not up to the task for SD/HD. My only comments have been directed as to the need to use it, when one's handloaded ammo is also up to the task. Just as no-where has anyone given any real credible evidence, IMHO, as to that need. Others are welcome to a different opinion, without having me question their intelligence, or their choice.

 

[ljnowell]

Lowering yourself to snide remarks now? My debate coach in High School always said when the folks you are debating resort to snide remarks in attempt to criticize or question your intelligence, you've won the argument. Quite the High Road you've taken there. Probably about time you closed this thread, as snide comments do not accomplish anything but take up bandwidth.



No where have I ever said factory ammo was not up to the task for SD/HD. My only comments have been directed as to the need to use it, when one's handloaded ammo is also up to the task. Just as no-where has anyone given any real credible evidence, IMHO, as to that need. Others are welcome to a different opinion, without having me question their intelligence, or their choice.

You are lucky you haven't found your post deleted and then the thread locked.

 

[Walkalong]

I guess that is enough this time around for the age old argument that is reloads for self defense.

Unless someone has a very good reason to continue.