example of how choice of decorations can hurt you in court

[Tony50ae]

Here is another where the defendant won, but hand loads still complicated the defense.

TN v. Barnes

The decedent attacked Robert Barnes and his young daughter with a large knife and was shot to death by the defendant with SJHP .38 Special reloads from a Smith & Wesson Model 36. The distance between the two at the time of the shooting became a key element in the trial, and a misunderstanding of that distance was a primary reason he was charged with Murder. The evidence was messed up in a number of ways in this case, and I do not believe the reloaded ammo (which the prosecution did not recognize to be such until during the trial) was the key problem, but it definitely was part of a problem in reconstructing the case. We were able to do that without GSR evidence, and Mr. Barnes won an acquittal. In this case, I believe the use of factory ammo, combined with proper handling and preserving of the evidence by the initial investigators, would have made the defense much easier and might well have prevented the case from ever being lodged against him.

 

[Tony50ae]

The above cases demonstrate to me that you can still prevail but it may complicate your defense. I want all the odds in my favor that I can get if I should find myself in that situation. Like what was said above, It is not the odds of it happening as much of the consequences of losing if it does happen.

 

[Tirod]

The point being that anything you flippantly add to your gun or equipment in the way of Death Dealer Decorations can and will be used against you in a court of law.

Anything.

Your choice to make a demonstration of your right to free speech - but if you had never said it, then nobody can use it.

If you like your life to be one combat situation every minute, join ISIS. Otherwise, it IS the boring people who don't go out of their way to offend who do make this world a better place. They don't create contempt and difficulty.

If anything what we have here is exactly what is going on in our Presidential primary races. I suppose if you like turmoil and dissension then Oh Happy Days for you, go ahead and slap on skulls and snarky inscriptions. Your decision to accept the risk of offending society and being the pariah. No one can take that away, it's every American's right.

Life is hard enough. It might also be pretty exciting, but boring isn't really badl when you get to live peacefully dealing with what gets shoveled at us from all sides anyway. Boring lives mean that your descendants get to live theirs. An exciting life cut short, not so much.

Celebrating the "in your face" attitude with Death Decorations just puts you into that class of folks who are eventually seen as a sad lot of broken down elders with faded blotchy tats and poor health. They don't live to the fullest and spend their shortened years knowing they won't enjoy the last few months.

Take a long look at who made the same decisions back in the 50's and 60's about being all cool with skulls and crossbones, then decide. It's not pretty. It's just another sign of the quality of life decisions they make.

If you want to embrace decorations that detract from the human experience, it's your choice.

This is a clear cut choice of taking the High Road in life.

 

[Kleanbore]

If you're justified in a defensive shooting the ammo you used is irrelevant.

The issue is showing that it was in fact a defensive shooting, and that the use of deafly force had been justified.

????.....how is anyone going to know its handloaded ammo, unless you tell them it is?......

you go to the range, and see brass all over the place, can you honestly tell me you know which one was handloaded, and which one was factory loaded?......because i cant, and i hand load ammo......

now you expect a lawyer, who likely knows nothing about guns to be able to tell the difference?

please.

Forensic analysis can determine what kind of ammunition had been used and whether it had been factory loaded.

It is very unlikely that it will become an issue.

But--in the unlikely event that the defense might need to introduce expert witness testimony related to gunshot residue patterns created by the ammunition, or to the absence of same, the admissibility of the test data as evidence would become important.

Had the ammunition been loaded by the defendant or by his friends, the judge would undoubtedly refuse to admit the data and testimony. Has to do with rules of evidence that resulted from several Supreme Court cases.

None of that has anything to do with the case at hand.

 

[RetiredUSNChief]

Given the absence of clear and indisputable evidence of a justified case of self-defense, every bit of forensic evidence will be required for BOTH the prosecution and defense.

I know many people tend to think in the black-and-white with respect to self-defense shootings, but the simple fact of the matter is that most of these instances are NOT so clear cut. There's always SOMETHING that complicates the scenario...and it's the job of the investigators to find and document all the evidence possible, one way or the other. And it's the job of the legal counsel to present that evidence in whatever light is required by their job roles...whether prosecution or defense.

The matter of handloads is far more important with respect to the body of physical forensic evidence than it is for the emotional appeal. Known loads produce known physical traces. Handloads do not, simply because of the problem with "chain of custody", if you will, with respect to verifying correct and consistent results.

 

[RetiredUSNChief]

@ jim in Anchorage (post #17):

That guy looks familiar:

 

[TimSr]

The image and appearance works both ways. That's why when they want to make police look bad for shooting a thug, they show a picture of him when he was 12, wearing tie, with his pants pulled up. On the other hand, if you use someone's appearance as factor in believing your life was in danger, you will be accused of being a somethingist.

 

[BSA1]

And the WORST thing you can do is have hand-loaded ammo in your gun. The other sides lawyer WILL find out and this argument will be presented to the Jury.: "Ladies and gentlemen of the Jury, the Defendant obviously did not consider factory loaded ammo powerful enough....no...he had to load super powerful ammo, THAT HAD A GREATER ABILITY TO KILL AND MAIM!!!"

Well first of all the ammunition would have to be reloaded to higher velocities then other commercial ammunition available for sell to the general public. Some of the commercial stuff is loaded HOT!. Take a look a Buffalo Bore ammunition.

I have guns that have never had a round of factory ammunition fired through them. In fact I don't even own factory ammo suitable for self-defense for them. However as I reload most of my ammunition it is easy to consult my reloading manuals and make a mid-range load that gives good performance. JHP's generally need about 1,100 fps for reliable expansion which can be done without creating ammunition above factory specs. Hornady prints the muzzle velocity of it's American Gunner ammunition on the label on the outside of the end flap.

As for the Danny Bias case it is so twisted it defies logic. Earlier that same evening his depressed wife pointed a gun at his head and all he did was tell her to quit fooling around. Really?

 

[Kleanbore]

As for the Danny Bias case it is so twisted it defies logic.

Doesn't matter.

It is simply one example of how the rules of evidence work.

When it comes to matters of law, such as whether the testimony of a particular expert witness was admitted into evidence, it doesn't matter at all what the case happened to be about. The principals are the same.

 

[danez71]

I've never believed in the hand loaded ammunition as something to worry about in a trial. I'd take the stand and have my defense team question me about it and I'll explain that I found my handloaded ammunition was the most reliable and accurate and allowed me to feel safer than factory ammunition that I've heard can be overloaded with powder to explosion levels or no powder and squib a bullet leaving me with no gun to defend myself with.

Would you be able to present factual evidence from accredited 3rd parties to support your claim?

Do you think the average jury is going to be competent enough about reloading that they will believe you more than the decades worth of scientific evidence the prosecution will present?

Good luck with that.

If you're justified in a defensive shooting the ammo you used is irrelevant. Writing dumb crap on your gun is giving ammunition to a prosecuting attorney.

Nice thought.... but you're flat wrong about that.

You apparently are not familiar with the Harold Fish case.

He was largely convicted because the prosecution convince the jury that the 10mm he used was too powerful to be considered a self defense caliber.

On appeal.... he ultimately won. But only after thousands of dollars and spending considerable time in jail during the proces. He also lost his job as a teacher where he was well respected.


Bottom line.... the ammo used was a significant portion of the trial and was largely the reason the guy went to jail.

 

[stoky]

Any attorney worth his/her salt would

........have found honest work, or become a politician.

 

[Spats McGee]

If we're going to go down the Handload Road again, I'm (again) going to suggest that some of you visit An Archive Regarding Reloads and Self-Defense, cobbled together by yours truly, and read some of the threads there. This issue has been hashed out on a number of occasions. Here's what I've said on the issue in the past:

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.

For those who will say "a good shoot is a good shoot," that's circular logic. It may be a good shoot, but the shooter doesn't get to make that decision. That decision will be made after the fact by police, prosecutors, a judge or jury. And it can get very expensive, very quickly.

For those who say that they will just get on the stand and say X, Y, or Z, you may well have to take the stand, but we're talking about the possibility of needing expert testimony here. I don't care how long you've been reloading, or what your qualifications are. The lawyer on the other side will object to your testifying as your own expert, and will very likely win that argument.

Now, with all of that said, if the shooter decides to take the matter to a jury trial, and regardless of whether we're talking about a civil or criminal matter, appearances matter. You may think that the Punisher grips look cool, or maybe that engraving on the business end of the slide that says, "Thugs, wait for flash." You can bet dollars to doughnut holes that the other lawyer is going to blow that picture up and show it to the jury over, and over, and over. Like it or not, that WILL influence how the jury sees the shooter.

 

[Spats McGee]

Any attorney worth his/her salt would

........have found honest work, or become a politician.

You do realize that those two are mutually exclusive, right?

 

[cslinger]

I think it's common sense that......
Lawyers will leverage whatever they can to defend / prosecute. It's their job.

We all have preconceived notions and bias' and a jury will too. For example in the picture above / assuming it was not a booking photo, I am sure we would all just about to a person immediately assume he was a bad guy. The reality is he might just have poor personal judgement but might be 100% law abiding hell of a nice guy.

Same thing with somebody dressed urban chic so to speak. Might be an honor student, in the choir and help out at the old folks home but dress like a gang banger and that is likely where most of us will immediately settle on as far as our internal narrative.

Same thing with all of us. Of course most of us are hobbyists and our firearms can be a canvas for our fun but to an outsider if you dress like a commando, have a skull lower on your AR an Punisher grips on your 1911 or look like a reject from militia school then folks are going to have a narrative in there head about you no matter if that narrative is all wrong.

Doesn't make it any better then judging the honor student who dresses like a gang banger but it's human nature.

All of those bias' and pre conceived narratives will absolutely make things at the least more difficult for you.

This is a free country and by God you can dress, speak, express however you like but remember you own that choice / expression and all the good and bad that comes with it.

 

[stonecutter2]

Mas Ayoob has warned about things like that for years. More taboos that can get you in trouble in court:

Offensive bumper stickers like "keep honking, I'm re-loading as fast as I can"
"Kill for peace" Exactly what do you mean by that?
"Kill em' all, let God sort em' out! Sounds like you like to kill people.

Yard signs can really get you in trouble:
"Forget the dog, beware of the owner" A picture of a man with a gun.
"I shoot first and ask questions later" No need to even comment on that one.
"Trespassers will be shot. Survivors will be shot again." You sure are bloodthirsty!

Prosecutors will cite language like that as evidence of serious mental problems.

And the WORST thing you can do is have hand-loaded ammo in your gun. The other sides lawyer WILL find out and this argument will be presented to the Jury.: "Ladies and gentlemen of the Jury, the Defendant obviously did not consider factory loaded ammo powerful enough....no...he had to load super powerful ammo, THAT HAD A GREATER ABILITY TO KILL AND MAIM!!!"

Stupid? of course it is. But to 12 people who know nothing about guns is is a powerful argument. And don't get started with: You have the right to be tried by a jury of your peers, so there will be at least a few gun people on the jury.

No there won't. And you DO NOT have the right to be tried by a jury of your peers. The word "peers" is not in the sixth amendment! You have the right to "A speedy and public trial, by an impartial jury, OF THE STATE AND DISTRICT WHEREIN THE CRIME SHALL HAVE BEEN COMMITED". You have a right to a trial by a jury of your neighbors. Peers means "equals" and you can bet that the prosecutor will pack that jury as best he can with idiots. Don't believe this? Go read the sixth amendment, you won't find the word "Peers" anywhere in it, or anywhere else in the Constitution.

A lot of people don't like Mas Ayoob, and that's their right, but he has seen more shooting self defense cases that most of us ever will, and he has seen all of the above mentioned scenarios harm defendants.

I'd like to see one case cited where this hand loaded ammunition thing was used against someone who defended themselves. I haven't yet, I think it's a myth.

I have handloaded ammo in my SD pistol because it's actually WEAKER than commercial rounds. Any defense and prosecuting attorney worth anything would know to chronograph/test the ammo to assert something like that. It would demonstrate that the round is below commercial ammo velocities. I load them a little light because I want more control in an adrenaline pumped situation, and I want to have less chance of the bullet going through so many walls and causing injuring to others.

Also, if a prosecuting attorney "packs" the jury with idiots, you've already lost the case and you should fire your defense attorney. Ideally you both get the best you can pick ,split roughly equal, to give the facts a chance to be objectively viewed and honestly debated in the jury room.

 

[stonecutter2]

It was extremely poor judgement for this cop to put a dust cover like that on his duty weapon. First, it's unprofessional, and second, it certainly can demonstrate a certain mindset of the individual.

That guy's got a heap of trouble right now.

 

[MechAg94]

I'd like to see one case cited where this hand loaded ammunition thing was used against someone who defended themselves. I haven't yet, I think it's a myth.

I have handloaded ammo in my SD pistol because it's actually WEAKER than commercial rounds. Any defense and prosecuting attorney worth anything would know to chronograph/test the ammo to assert something like that. It would demonstrate that the round is below commercial ammo velocities. I load them a little light because I want more control in an adrenaline pumped situation, and I want to have less chance of the bullet going through so many walls and causing injuring to others.

Also, if a prosecuting attorney "packs" the jury with idiots, you've already lost the case and you should fire your defense attorney. Ideally you both get the best you can pick ,split roughly equal, to give the facts a chance to be objectively viewed and honestly debated in the jury room.

Look around some more. Those cases do exist. Either way, if you want accept the risk, that is your call. Just understand that it might come up. There is also the factor of where you live and what type of jury you are likely to get as well as who the prosecutors are in your area. Most of these cases didn't happen in rural areas that are gun friendly.

I live in a county where it is probably less of a concern, but I do drive over to Houston sometimes. In Houston, I would expect it could be a problem.

 

[stonecutter2]

Look around some more. Those cases do exist. Either way, if you want accept the risk, that is your call. Just understand that it might come up. There is also the factor of where you live and what type of jury you are likely to get as well as who the prosecutors are in your area. Most of these cases didn't happen in rural areas that are gun friendly.

I live in a county where it is probably less of a concern, but I do drive over to Houston sometimes. In Houston, I would expect it could be a problem.

Yeah, thanks, I actually did look a bit and found a few cases. None of which were successful in their use of the argument though. One case was a guy whose wife killed herself..or did she...and that case could've gone either way - that was just an unfortunate situation all around.

I dunno, I just don't see the big deal. It's certainly not common place whatsoever. People cite it as a critical law to be obeyed, but it's only been used unsuccessfully, and it's easily thwarted by an expert.

 

[stoky]

It was extremely poor judgement for this cop to put a dust cover like that on his duty weapon

it looks like it was a note to himself, rather than the (alleged) perp.

 

[danez71]

I'd like to see one case cited where this hand loaded ammunition thing was used against someone who defended themselves. I haven't yet, I think it's a myth.

I have handloaded ammo in my SD pistol because it's actually WEAKER than commercial rounds. Any defense and prosecuting attorney worth anything would know to chronograph/test the ammo to assert something like that. It would demonstrate that the round is below commercial ammo velocities. I load them a little light because I want more control in an adrenaline pumped situation, and I want to have less chance of the bullet going through so many walls and causing injuring to others.

Also, if a prosecuting attorney "packs" the jury with idiots, you've already lost the case and you should fire your defense attorney. Ideally you both get the best you can pick ,split roughly equal, to give the facts a chance to be objectively viewed and honestly debated in the jury room.

I doubt you'll find ANY cases that the shooter defended himself.

I don't see how 'defending yourself' has any relevance though.

There have been cases posted that the prosecution DID use the ammo the shooter used against him and the shooter did have a lawyer.

The shooter was convicted..... largely because of the perception of the ammo used by the shooter.


As pointed out, your testimony about the ammo is questionable if it would be allowed.

Even if it was allowed, at minimum, now you are having to convince a jury that you have at least as good of process controls as professional ammo makers (who actually document, and audit, their process controls) and that your self made reloading potion is a "better" choice for self defense than all of the other ammo available and labeled "self-defense" that has decades worth of data and expertise to support its intended use.


If I were in that jury, you'd loose the argument that your reloads are the better choice.

You'd be lucky that I wouldn't let it influence me in determining whether or not it was a good shoot or not.

But rest assured.... it's been documented that the perception of the ammo used has been negative factor in a conviction.


Someone said above that having "peace and love" isn't going to help them alluding that "death to all" won't hurt them.

Those with that mind set should ponder what a jury would have thought if Jeffrey Dahmer showed up in court with a "people taste good" tattoo. Would that help him or hurt him?

 

[Frank Ettin]

Let's not derail this thread with a discussion of handloads for self defense. That's not what this thread is about, and that topic has been thoroughly discussed here (together with links to other discussions).

 

[Kleanbore]

Criminal trials (and civil trials, for that matter) are decided on the basis of the totality of the evidence that is gathered after the fact.

The jurors will listen to testimony and evaluate its significance and credibility. They will see physical evidence that is shown in court. If the defendant claims that the shooting took place in self defense, and if the jurors are instructed to consider the case from that standpoint, the jurors will try to decide whether the shooitng had been lawfully justified.

They will do so on the basis of the totality of incomplete, fragmentary evidence. That evidence may be contradictory; eyewitness testimony is notoriously unreliable, and if the person against whom force was used, or if anyone who is sympathetic to the person, provides testimony, one can almost guarantee that it will not be favorable to a shooter who claims to be a defender.

In the criminal justice system, there is no "good guy" going in, and a self proclaimed defender does not get to decide that a shoot was "good.". In some cases it may seem obvious that an act was lawfully justified, or that it was not. It may in some cases be rather obvious--or it may not.

Any contradictions in the shooter's account that may surface, anything that could give the jurors the impression that the shooter may have been predisposed toward the use of force, and/or anything that may damage the shooter's credibility, could well damage the defendant's case.

We do not need to look for cases that have already been tried to make judgments about what may influence a case. The old "I'd like to see one case in which...." challenge takes us down a dead end. Unless one has interviewed all of the jurors in all of the trials in the country and determined just what things influenced them in what ways, one cannot know what things have ultimately led to the outcomes of jury trials.

Second, the number of trials that may have actually involved a particular factor is unknown, and it is quite possible that the factor in question has only existed in a very small number of cases, or that it was not necessarily an important factor at all. Trial outcomes, both criminal and civil, are decided by persons assessing the totality of the evidence, and it can rarely be assumed that the use of force would have been ruled justified but for a single factor. Many factors may affect the outcome, and it is the aggregate that will rule the day.

However, controlled scientific jury simulation experiments have been conducted in which all variables but one have been kept the same, and those have given us a good idea of how the issues tested would influence real juries. It is well accepted that one of the things that can weigh in on the question of state of mind is the appearance of the firearm itself.

The dust cover in this case may make a big difference, if the other evidence is not, on balance, sufficiently persuasive.

 

[Derry 1946]

There have been cases of criminal defendants petitioning the court to allow removal or concealment of tattoos such as swastikas or gang symbols or the word "murderer" in visible places such as face or neck. Some courts have agreed (for example hiring a makeup artist at $125/day for each day of trial). The optics can matter.

 

[Bobson]

But to 12 people who know nothing about guns...

If your lawyer is so bad at voir dire that all 14 members of the jury know nothing about guns, you probably don't have much of a chance winning your case regardless of the circumstances surrounding the shooting.

Also, people seem to severely under-exaggerate the length of time a murder trial takes. It wouldn't be unrealistic to expect a defense attorney to bring in any number of witnesses whose sole purpose would be to teach the potentially uninformed jurors about ballistics and separate the facts from the myths as far as handloaded ammo versus factory ammo.

 

[danez71]

If your lawyer is so bad at voir dire that all 14 members of the jury know nothing about guns, you probably don't have much of a chance winning your case regardless of the circumstances surrounding the shooting.

Also, people seem to severely under-exaggerate the length of time a murder trial takes. It wouldn't be unrealistic to expect a defense attorney to bring in any number of witnesses whose sole purpose would be to teach the potentially uninformed jurors about ballistics and separate the facts from the myths as far as handloaded ammo versus factory ammo.

You're right in that these trials take a long time....... but in fairness, I think people seem to severely under-exaggerate the cost of taking the time of educating the jurors.

I don't think for second I'll be able to out spend a Govt funded prosecution. I don't have movie star or sports star type money to hire the best of the best and nitpic everything down to a pimple on a gnats butt in hopes I can get off because I was able to confuse a jury member or 2 enough to not believe the prosecution.


But as a Mod pointed out, this isn't about ammo.

This is about how/if the perception that comes with a vulgar statement on your firearm will impact a case against you.