Since we live in such a politically correct society can weapon choice end up being deciding factor in some legal action? In other words, in an apparently legitimate case of one defending themselves, would law enforcement or a jury look at grandpas old 12 gauge shotgun differently than a Mossberg tactical weapon with all of the bells and whistles in determining a legal decision? My opinion is YES they would, so I"m gonna use my Dad's old Ithaca 37. Off subject, go see Last ounce of Courage, time well spent.
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mljdeckard
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We discuss this frequently.
It SHOULDN'T matter. You will see phrases like; "A clean shoot is a clean shoot, regardless of caliber, weapon, etc.". In a perfect world, this would be true. Which particular arm you happen to be holding shouldn't make a difference in whether or not you were in legitimate fear for your life.
But in REALITY, it MAY matter. I think a lot of it comes down to where you live, as some places are much more gun friendly than others. But even in gun-friendly Arizona, the Fish case happened, where a man was convicted at least in part because he used a 10mm handgun. The prosecution characterized it as overkill, and the jury bought it. His conviction was eventually overturned, but it was a long and painful process. So, yes, it COULD be a factor, but a lot of things COULD be a factor. You need to survive first and fight off the legal challenges later. This is also something to consider in remembering how serious a defensive encounter is. A defensive shooting is the second-worst thing that can ever happen to you, and you need to regard it as such.
It SHOULDN'T matter. You will see phrases like; "A clean shoot is a clean shoot, regardless of caliber, weapon, etc.". In a perfect world, this would be true. Which particular arm you happen to be holding shouldn't make a difference in whether or not you were in legitimate fear for your life.
But in REALITY, it MAY matter. I think a lot of it comes down to where you live, as some places are much more gun friendly than others. But even in gun-friendly Arizona, the Fish case happened, where a man was convicted at least in part because he used a 10mm handgun. The prosecution characterized it as overkill, and the jury bought it. His conviction was eventually overturned, but it was a long and painful process. So, yes, it COULD be a factor, but a lot of things COULD be a factor. You need to survive first and fight off the legal challenges later. This is also something to consider in remembering how serious a defensive encounter is. A defensive shooting is the second-worst thing that can ever happen to you, and you need to regard it as such.
bushmaster1313
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Anything and everything you say, do or use can and will be held against you.
xsquidgator
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Exactly as stated here, it shouldn't matter, but it can.
Another way to look at it, as it was explained to me in MAG-40 (Massad Ayoob's level I class), is as follows. If you do defend yourself with a weapon, and perhaps it's not totally clear that it was self-defense, you may face manslaughter charges. (It's unlikely you would face 2nd degree murder charges, but it does happen) Manslaughter means you were somehow negligent or reckless, and someone died as a result.
So the question to ask yourself ahead of time, when considering choice of what kind of gun, or whether to customize the gun, or so forth, is 'will choosing this option make it easier, or harder, for someone to argue that I was negligent or reckless'?
A scarier-looking gun, a gun with punisher skulls or other vigilante symbols, a gun with disabled safety features, lightened trigger pull etc, these all make it easier to argue that you were negligent or reckless.
The point isn't that putting a punisher skull on your Glock makes you reckless or changes the facts of the case. The point is that it would be easier for a prosecutor to argue that you were reckless or negligent, if he can show the jury evidence of this sort.
This argument can also extend to using a gun with scary names. Apparently the Mossberg "Persuader" name even has been used by prosecutors as evidence of recklessness after the fact.
You use what you have at the time, but, knowing this ahead of time, to many people it makes sense to use equipment for which this legal opening doesn't exist. If you have a choice of what kind of gun to carry or have in your home for HD, why not avoid a potential legal pitfall from the git go unless you get some clear advantage from using whatever else it was you were thinking of?
Another way to look at it, as it was explained to me in MAG-40 (Massad Ayoob's level I class), is as follows. If you do defend yourself with a weapon, and perhaps it's not totally clear that it was self-defense, you may face manslaughter charges. (It's unlikely you would face 2nd degree murder charges, but it does happen) Manslaughter means you were somehow negligent or reckless, and someone died as a result.
So the question to ask yourself ahead of time, when considering choice of what kind of gun, or whether to customize the gun, or so forth, is 'will choosing this option make it easier, or harder, for someone to argue that I was negligent or reckless'?
A scarier-looking gun, a gun with punisher skulls or other vigilante symbols, a gun with disabled safety features, lightened trigger pull etc, these all make it easier to argue that you were negligent or reckless.
The point isn't that putting a punisher skull on your Glock makes you reckless or changes the facts of the case. The point is that it would be easier for a prosecutor to argue that you were reckless or negligent, if he can show the jury evidence of this sort.
This argument can also extend to using a gun with scary names. Apparently the Mossberg "Persuader" name even has been used by prosecutors as evidence of recklessness after the fact.
You use what you have at the time, but, knowing this ahead of time, to many people it makes sense to use equipment for which this legal opening doesn't exist. If you have a choice of what kind of gun to carry or have in your home for HD, why not avoid a potential legal pitfall from the git go unless you get some clear advantage from using whatever else it was you were thinking of?
Sure it does.
More people are going to be more likely to have a nuetral perception of that old blued shotgun that looks like grandpa's than they are of the tactical military look alike.
Poor citizen that just happened to have a hunting arm when needed most gets more credit than psychotic wannabe rambo that was just itching to blow someone away.
You may not fit into either category, but people develop impressions and are influenced by stereotypes.
Where this matters is when unlike in many of the hand picked defensive scenarios you may hear about, things are not presented as clear as they happened.
You can do everything legally correct, and the case still be all up to discretion of the jury, because something you know didn't happen is up for debate and nobody is taking your word for it.
And that is even if you did everything clearly correct.
Toss in a little mutual verbal argument beforehand as can happen quite often before someone decides to attack, and some other less than ideal stuff and now its really up to 12 people whether when that guy attacked you it was self defense or mutual combat. Whether it is manslaughter/murder or self defense.
Even sometimes when someone is found not guilty of murder/manslaughter in relatively clear cut cases of self defense, they still find them guilty of felony assault with a deadly weapon or something similar just because they think the shooter deserves some punishment.
Something possibly could have been done better, so even though they were legal they need to be punished for something.
They just feel that someone is dead, hear from the grieving mother, the mother of their children, and think there should be some punishment for that, so that punishment is a felony that will be punished by a few years in prison, or maybe just probation/parole.
It may not be right, it may go against what should have been the conclusion, but you are dealing with a jury.
That is the kinda of crap you can get with a jury, a conviction just out of what they think is fair even if you didn't break the law. Because it is they who determine if you did break the law, and what laws.
In light of that things that allow you to be percieved as more blood thirsty can be the difference in how they use their discretion.
Some firearms look more intimidating and that often matters more than how powerful it actually is. A monster big game rifle that is blued and has wooden furniture can seem more innocent and similar to grandpa's gun than a black pistol gripped firearm with a prominent magazine coming out at a 90 degree angle.
A shot fired with an elephant gun may seem less severe to a jury than a shot fired by a black tactical rifle, based simply on how intimidating the gun looks sitting in court and what stereotypes it may remind them of.
More people are going to be more likely to have a nuetral perception of that old blued shotgun that looks like grandpa's than they are of the tactical military look alike.
Poor citizen that just happened to have a hunting arm when needed most gets more credit than psychotic wannabe rambo that was just itching to blow someone away.
You may not fit into either category, but people develop impressions and are influenced by stereotypes.
Where this matters is when unlike in many of the hand picked defensive scenarios you may hear about, things are not presented as clear as they happened.
You can do everything legally correct, and the case still be all up to discretion of the jury, because something you know didn't happen is up for debate and nobody is taking your word for it.
And that is even if you did everything clearly correct.
Toss in a little mutual verbal argument beforehand as can happen quite often before someone decides to attack, and some other less than ideal stuff and now its really up to 12 people whether when that guy attacked you it was self defense or mutual combat. Whether it is manslaughter/murder or self defense.
Even sometimes when someone is found not guilty of murder/manslaughter in relatively clear cut cases of self defense, they still find them guilty of felony assault with a deadly weapon or something similar just because they think the shooter deserves some punishment.
Something possibly could have been done better, so even though they were legal they need to be punished for something.
They just feel that someone is dead, hear from the grieving mother, the mother of their children, and think there should be some punishment for that, so that punishment is a felony that will be punished by a few years in prison, or maybe just probation/parole.
It may not be right, it may go against what should have been the conclusion, but you are dealing with a jury.
That is the kinda of crap you can get with a jury, a conviction just out of what they think is fair even if you didn't break the law. Because it is they who determine if you did break the law, and what laws.
In light of that things that allow you to be percieved as more blood thirsty can be the difference in how they use their discretion.
Some firearms look more intimidating and that often matters more than how powerful it actually is. A monster big game rifle that is blued and has wooden furniture can seem more innocent and similar to grandpa's gun than a black pistol gripped firearm with a prominent magazine coming out at a 90 degree angle.
A shot fired with an elephant gun may seem less severe to a jury than a shot fired by a black tactical rifle, based simply on how intimidating the gun looks sitting in court and what stereotypes it may remind them of.
Cesiumsponge
Member
A prosecutor would argue a pink gun shows you take the issue of guns and taking life lightly and funny. A prosecutor will never argue that your gun was reasonale. Revolver...you think you're a cowboy or Dirty Harry. Walnut stocked shotgun...police riot gun!? 1911...military issued firearm!
I think that whole statement is reading a little too much into it, I'm sure there are prosecutors out there like that but in general I don't think they'll push it that hard.
As far as the pink gun, I'd say a friend/gf/wife convinced me to buy it because it looked cute. (It's all about how you present to the jury, they don't need to know you hang out at the gun shop 3 days a week scratching yourself and debating the best lethal loads)
No, actually that's not at all how things would be done. In general the prosecutor won't have to comment on, or argue about, the gun to get the effect he desires.Cesiumsponge said:
The prosecutor will introduce the gun into evidence as the weapon used, and a witness (perhaps an investigating officer who arrived at the scene or the Firearms and Tool Mark Examiner) will authenticate it as the weapon used based on how the gun was recovered and, perhaps, ballistic testing.
During the process of introducing the gun into evidence and eliciting related testimony, the prosecutor will have a number of opportunities to display the gun to the witness and the jury. The prosecutor need not comment on the gun, because the jurors will get several good looks at it.
If it was, for example, an AK47, the jury will see that it's what they've been conditioned to perceive as an "assault weapon" or an "evil black rifle", and some members of the jury will draw inferences about the defendant from that. Or maybe the handgun sported Punisher grips, and some members of the jury won't be able to help wondering why the defendant wanted to embellish his gun with the logo of a comic-book vigilante.
In any case, if the gun "looks bad" the prosecutor has no need to comment. Jurors will see the gun plenty of times and form their own, most likely negative, impressions. And if the prosecutor isn't saying anything about the gun, except putting it into evidence as the gun used, the defense won't want to talk about the gun. That would just increase the jury's exposure to the gun.
The gun thus becomes part of the image jury has of the defendant. And the defendant's image can have an effect on how the jury evaluates his story. That's why a defense lawyer wants his client, the defendant, to show up for court neat, nicely dressed, clean and well groomed.
bushmaster1313
Member
Unfortunately, by the time a case gets to trial "winning" can become more important to a prosecutor than "doing the right thing."
A prosecutor in court is NOT thinking: "I will present the evidence fairly and let the jury decide."
Rather, the prosecutor is thinking: "What can I do to win without getting myself into trouble."
A prosecutor in court is NOT thinking: "I will present the evidence fairly and let the jury decide."
Rather, the prosecutor is thinking: "What can I do to win without getting myself into trouble."
On the other hand, every lawyer, including a prosecutor, has an ethical duty of loyalty to his client. He also has an ethical duty to zealously represent the interests of his client and to do whatever he can, within the rules, to further those interests.
In a clear cut case of self-defense, the weapon should not matter. But in a self-defense case in which a machinegun was involved, the prosecutor kept hammering away at the terms "machinegun", "murder weapon", "hail of bullets", "cut down", "slaughtered", and so on. Prosecutors don't get paid (or re-elected) for losing cases. They are out for blood by any means they can get it, and ethics can go take a hike.
The weapon can also go to intent. You might grab Grandpa's old double barrel in a moment of need. But if you use an AR-15 clone with every tactical bell and whistle, a prosecutor (or plaintiff's attorney) may claim that the gun is not a "sporting firearm" and that your use of such a weapon indicates a mindset focused on killing people. In other words, the gun is clearly intended for killing people (in his view); you bought it or added gadgetry to make it more efficient at doing that. Therefore, you intended to kill.
Note that intent to kill is just that - intent. The opposition doesn't have to show that you intended to kill a particular person - just that you intended to kill someone and the victim happened to be in the wrong place at the wrong time.
Jim
The weapon can also go to intent. You might grab Grandpa's old double barrel in a moment of need. But if you use an AR-15 clone with every tactical bell and whistle, a prosecutor (or plaintiff's attorney) may claim that the gun is not a "sporting firearm" and that your use of such a weapon indicates a mindset focused on killing people. In other words, the gun is clearly intended for killing people (in his view); you bought it or added gadgetry to make it more efficient at doing that. Therefore, you intended to kill.
Note that intent to kill is just that - intent. The opposition doesn't have to show that you intended to kill a particular person - just that you intended to kill someone and the victim happened to be in the wrong place at the wrong time.
Jim
Yes and no. Zealous advocacy is actually an ethical obligation. But prosecutors and defense lawyers still follow the rules. And the judge is there to make sure they do.Jim K said:
And as far as intent goes, if you are claiming self defense you will have admitted that you intentionally shot the person you shot. Your legal defense is that shooting him under the circumstances was legally justified.Jim K said:
Of course for a jury to accept that claim, it's helpful if they see you, the defendant, as a solid, credible citizen. That's where perception enters the picture.
True, but not ever self defense case is clear cut.Jim K said:
beatledog7
Member
In court, impressions matter more than facts, and emotion guides decisions more than reason.
Imagine you're on a jury deliberating over whether a 19-yr-old driver was negligent in hitting a pedestrian. Scenario one: he was driving a hopped up Camaro. Scenario 2: He was driving his mother's Prius. Everything else in the two scenarios is identical. Does the car itself matter?
Of course it doesn't, to the rational man. But can we count on juries to be rational?
Imagine you're on a jury deliberating over whether a 19-yr-old driver was negligent in hitting a pedestrian. Scenario one: he was driving a hopped up Camaro. Scenario 2: He was driving his mother's Prius. Everything else in the two scenarios is identical. Does the car itself matter?
Of course it doesn't, to the rational man. But can we count on juries to be rational?
Kyle M.
Member
Being that ohio has the castle doctrine, if I shoot someone in self defense in my home I am very unlikely to see the inside of a court room, as you are automatically presumed to be innocent. Also if you shoot someone in your home in self defense in ohio you cannot be sued civilly either by the intruder or their family, therefore I personally wouldn't worry about weapon choice. Of you live in one of the many states where things aren't so clear you could have a problem. Honestly I feel the various castle laws should be federal law and not state by state.
It looks like you are being guided by your impressions and controlled by your emotions. Do you have any evidence to support your conjecture?beatledog7 said:
Yes, impressions matter, but not necessarily more than facts. Emotions can be a factor as well, but they don't necessarily override reason. It is simply not possible to categorically assign a hierarchy among those factors, all of which can be important in some degree.
I'm sorry, but that's not exactly right. I'm afraid that you don't understand Castle Doctrine law. It's not that easy. While a Castle Doctrine law is very nice, it is not a "get out of jail free" card, nor is it a license to shoot.Kyle M. said:
Every Castle Doctrine law sets out various requirements and conditions that must be satisfied before one can be protected under that law. If there's any disagreement about whether or not those requirements or conditions have been satisfied, you will be in court trying to establish that your use of force was justified.
[1] The Ohio Castle Doctrine law provides (RS2901.05(B)(1), emphasis added):
[2] A presumption is a rule that affects evidence and burden of proof in court. Ordinarily, one who asserts something in court will have the burden of proving, by presenting good evidence, that certain facts supporting that assertion are true. But sometimes the law might allow one of those facts to be accepted as true without specific evidence of that fact if the party with the burden of proof shows that certain other facts are true. So the party might be entitled under a rule of law to have fact A presumed to be true if facts B, C, and D are shown to be true, even if the party produces no direct evidence that fact A is true.
[3] So in order to take advantage of the presumption of self defense provided for in Ohio law, one must still show that the person he used force against either (1) was in the process of unlawfully entering; or (2) had unlawfully entered the home or vehicle of the person claiming self defense.
[4] In addition, there are times when that presumption won't be available (RS2901.05(B)(2)):
[5] In addition, in the law any presumption is rebuttable. So notwithstanding a presumption of self defense under Ohio law, a prosecutor, if he thinks he has a case, could try to overcome that presumption. In fact, Ohio law expressly provides that the presumption under its Castle Doctrine is rebuttable (RS2901.05(B)(3)):
[6] Furthermore, understand that under Ohio law if you are claiming self defense, it will be your burden to establish that (RS2901.05(A)):
beatledog7
Member
Frank Ettin said:
Frank, all of this will simply support what you've been writing throughout this thread. Perhaps I should have said, "in my opinion," but readers on THR know this is my opinion without having to be told so.
What I have is logic:
If what I said is correct, and jurors writ large really do rely more on their feelings amd impressions than on facts, a jury would be more inclined to view a black shotgun with a short barrel, pistol grip, extended magazine tube, and a half-dozen attached aiming and lighting aids as an intentionally aggressive choice that the shooter may have been itching to use. A prosecutor will latch onto that idea and ride it hard. That jury, if I'm right, would be more inclined to view granddad's walnut stocked double barrel hunting shotgun as just a hunting gun that the user had to use because he was in fear of his life. The Defense would ride that argument hard; the prosecutor would lack the aforementioned "clearly aggressive" shooter argument. That jury will more likely convict the tricked out black gun owner than the granddad's hunting gun owner.
If what I said is wrong, the jury would decide based on reason and facts, and would discount the nature of the shotgun. Using the black gun described above would not tilt such a jury toward convicting the shooter. But neither would using granddad's SxS.
So, you lose nothing in court if you use granddad's SxS, regardless of what kind of jury you get. You could lose everything if you use the black gun and get an impressionable jury. Who's willing to gamble on what kind of jury will be seated when he has to make a defensive shoot?
As poster on THR, I'm allowed to be influenced by my impressions and opinions. Jurors are not.
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Sorry, but we've had this discussion before. Logic doesn't work without evidence. Logic is a process for examining data and forming conclusions based on that examination of data. For those conclusions to be meaningful, both the data must be correct and complete and the process must be sound.beatledog7 said:
From Merriam-Webster Online:
Without evidence supporting your conjecture that:
beatledog7 said:
Note that the issue isn't whether impressions are a factor or whether emotions are a factor. It's whether impressions and emotions are categorically more important than facts and reason, respectively.
And what evidence do you have that you are correct or that juries will uniformly do what you contend that they will do?beatledog7 said:
Again, impressions and emotions are factors; and since since negative impressions and emotions will be negative factors and increase one's risk, it's worthwhile to avoid them.
Vern Humphrey
Member
No, you get there by imperical evidence. Logic is what computers use, and as they say, "garbage in, garbage out." You can prove anything with logic, if you are free to pick and choose your evidence.
Actually, it's whether impressions and emotions are more important than facts in your trial.
There are many trials -- the OJ Simpson murder case, for example -- where it all hinged on imprssions and emotion.
beatledog7
Member
On this we agree--we just get there via different paths. Perhaps I should have put it this way:
It simply doesn't matter whether a jury will actually be more influenced by their impressions and emotions than by facts and evidence. Either way, a self defense shooter is better off not taking the risk that said jury might be influenced negatively by the shooter having used an evil black gun.
If I assume my SD jury will be biased against evil black guns, but I'm wrong, I lose nothing by not having used an evil black gun. The chances that my jury will decide against me are not increased by my gun choice, but they would have been if I had used a black gun.
If I assume my SD jury will simply look at facts and evidence and will not be biased against evil black guns, but I'm wrong, then the facts are what they are, and justice will be served no matter what sort of gun I used.
Again, it doesn't matter whether I'm demonstrably right about juries. The acknowledgment that I might be right validates my point.
Vern Humphrey
Member
As an attorney, would you advise your client to use a hunting shotgun or a tricked-out "assault weapon?"
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