Weapons type at trial

[GEM]

Years ago, someone (ahem) wrote some professional article picked up by a jury consultant publication that indicated that weapons used in an ambiguous SD claim might influence a jury. It followed other studies indicating similar processes. There was some push back as:

1. This doesn't count in a good shoot which of course your shoot will be! You won't even get charged!

2. The study is obviously from an antigunner trying to ban modern sporting rifles. Thus from the Rittenhouse trial:

https://www.nationalreview.com/news/...es-prosecutor/

Binger questioned Rittenhouse about his choice of an AR-15 when he was purchasing a firearm, adding that “it resembled the types of weapons that are used in first person shooter video games,” in which gamers “pretty much shoot anyone who comes at you.” Rittenhouse retorted that video games are not “real life” and that many types of guns are represented in them, including pistols, shotguns, etc.

“I don’t really understand the meaning of your question,” he said.
Weapons type - never comes up in court for your good shoot. Snarky me.

The prosecutor is getting Kyle to why he would bring his rifle with 30 rounds! OMG. He is thinks is clever but is badgering him with senseless questions that certainly don't show some predmediated, shoot the looter intent.

_______ Not discussing the trial itself, just indulging myself on whether such issues do surface.

 

[Deanimator]

I conduct my life in such a manner that I'm unlikely to get into "ambiguous" self-defense situations.

If I'm in a self-defense situation, it's going to be glaringly obvious who the aggressor was. I don't engage with most "normal" people, who hold pretty much zero interest for me. I certainly don't associate with the criminal element or voluntarily go where they congregate. If you want to pick a fight with the guy quietly reading a $150 book on machine guns and put him in immediate and reasonable fear of life and limb, well life is full of choices, some of them sub-optimal and irreversible. Here in Ohio, my choice of self-defense tool is unlikely to have much bearing, be it a broomhandle Mauser or an AR in .458 SOCOM.

Ask the late Arthur Buford, who was the first high profile bolo in the victim selection exams immediately after the passage of shall-issue concealed carry in Ohio. The general consensus with miniscule exceptions on the FAR left was, "Don't want to get shot? Don't try to rob people."

Traveling to other states to protect the property of total strangers really isn't on my to-do list. Kick in my door tonight and you're going to meet deadly force in whatever form is most immediately to hand, be it a 12ga. Foster slug center of mass or a cold chisel to the skull. Either way, you're going to find scant sympathy for your self-inflicted plight from the public at large OR the legal system.

 

[readyeddy]

The answer I think is yes, the choice of weapon may be raised by the prosecutor if the weapon has a negative reputation among the unfamiliar. But it would be paint the defendant in a negative light and would not be directly tied to the facts of self defense and fear for one's life or someone else's life.

The prosecutor wants to make the defendant look belligerent and maybe could argue it's proof of intent. The defense could make an objection that the rifle type and video game question is prejudicial, but some defense lawyers prefer not to make excessive objections in front of the jury as a tactical decision.

But even if the weapon type is not made an issue by the prosecutor, the weapon type would be a relevant fact of the case. It would be normal to show the jury the actual gun used in the shooting. So if you were a defendant and your jury will probably be made up of regular folks (i.e. not THR members), would you want the prosecutor to hold up an AR or a lever action rifle? Forget about the lawyers, put yourself in the shoes of the jury members.

 

[danez71]

Mr Fish. AZ, 2006. 10mm.

 

[Barry the Bear]

Related: Paul Harrel once had a video out titled "top 5 guns for home defense" don't know if its still up, in there he talks about HIS choices he uses and not actual recommendations on what YOU should use. He gets to a part about shotguns and he prefers to use a Winchester 97, He said that if he ever did have to use it, to a cop or prosecutor it would look more like an old geezer with a hunting gun than a wannabe commando with a blacked out 870 that has skulls or the word "tactical" on it. Whether there's any merit to that IDK, but if I ever did have to use a shotgun my bird 870 with buckshot doesn't look nearly as intimidating to non gun people as my ARs do.

 

[230RN]

I was thinking about that a couple of months ago. Because of geriatric infirmities, a couple of years ago I quit carrying the heavy artillery around and usually just have a J-frame in my pocket sans holster. (I found any attempt to holster a pocket carry gun was counterproductive, but that's just me.)

Anyhow, I realized that widdle gunny-wunny of a J-Frame took me out of any tacticool kinko category for a prosecutor to chew on. So I would just be that old fart who carried that widdle puny gunny-wunny around, who could object?

Then I realized that the speed loader in my other pocket would look "tactical."

Then I also realized that my posts here on THR and other sites would further remove me from the "regular old fart with a nothingness gun" category.

Oh, dear me.

What's an old fart to do, what to do?

I'm not signing this one so nobody can use it against me.

X (His mark)

 

[reddog81]

To be fair it seems like the prosecutor was grasping at straws and would have attacked any choice. If Kyle had used a shotgun he would be asking why he didn’t have an AR like everyone else.

At one point he was trying to attack his choice of the use of FMJ ammo and why that selected that was versus HP ammo. If Kyle had used HP ammo he would have been questioning why he used hunting rounds on people.

 

[westernrover]

Yes. Yes they obviously come up in trials where the prosecutor is LOSING.

 

[AJC1]

To be fair it seems like the prosecutor was grasping at straws and would have attacked any choice. If Kyle had used a shotgun he would be asking why he didn’t have an AR like everyone else.

At one point he was trying to attack his choice of the use of FMJ ammo and why that selected that was versus HP ammo. If Kyle had used HP ammo he would have been questioning why he used hunting rounds on people.

Cheap and readily available... simple answers onlt.

 

[Madcap_Magician]

Yes. Yes they obviously come up in trials where the prosecutor is LOSING.

It sure looks like the prosecution is flailing, but it ain't over until the fat lady sings, and you know what Churchill said about a five-minute conversation with the average voter being the best argument against democracy applies to the jury pool, too.

 

[Riomouse911]

I work around prosecutors every day. At trial they have a given set of witnesses, testimony, exhibits and facts that they’re allowed to present to a jury that often are limited during pre-trial motions and other hearings. The firearm, ammo, mag capacity, etc. are all fair game at this point since the Judge didn’t limit what could be said about these things in court.

From what I’ve read, in this case the prosecutors first witness wasn’t great for them. He stated several times that one guy who was killed by the defendant was trying to take the gun away from the defendant. The guy who lived had his own gun in his hands when he was shot. The other dead guy beat him with a deadly weapon (skateboard). None of these things are good for the prosecutors, it plays right into the defenses’ hands and leaves them with other avenues they need to use to convince a jury to convict.

The defendant took a HUGE risk by testifying, one slip up responding to a question and it opens doors for the prosecutors that are currently closed. Based on what I’ve read the defendant didn’t open up any doors and may have actually helped himself. This is not common, which is why defense attorneys counsel strongly against taking the stand in your own defense.

The prosecutor, by using the ammo type and magazine capacity of this “scary, awful assault rifle,“ (sarcastic emphasis mine) is trying to paint the defendant as the gun-crazed, bloodthirsty bad guy to the jury. That is their job; some folks do it well others not so much. The defense will try to paint the defendant as the victim who relied on this gun to defend his own life after being threatened and physically assaulted by others. That is their job; some do it well others not so much.

Only after a verdict and post-trial polling of jury members will it be known what was and what wasn’t effective in helping them make up their minds. If you’ve never been a part of this process, it’s fascinating to see what bit of minutiae they keyed in on to deliberate and convict/acquit/or hang one way or the other.

** Just a bit of friendly advice from someone who has been in the game for 30+ years with the last 15 working every day with DDA’s and defense attorneys: Anyone today who doesn’t think that violent slogans like, “kill em all and let God sort em out” etc., skulls/Punisher logos, aggressive stickers or gun decorations, Internet posts, pictures, memes etc. etc. etc. can’t or won’t be someday used against a person to paint a negative picture to a jury in a criminal or civil trial; I say you’re 100% nuts. It absolutely will; as this case shows the ammo type, gun type, number of shots fired, etc. is being used against the defendant.

Seriously; It doesn’t matter one iota what you think or what you meant… when something happens and you’re at the defendants table it only matters what the jury thinks. Giving such ammo to attorneys that will hurt you later criminally or civilly isn’t very smart. **

Off the rant now…

I haven’t been following all of the twists and turns of the case, just hearing after the fact what is reported once in a while. I have no opinion on its merits; so whatever the jury decides once it’s over I hope is it’s a just and correct verdict for the facts they were provided.

Stay safe.

 

[Howland937]

Years ago, someone (ahem) wrote some professional article picked up by a jury consultant publication that indicated that weapons used in an ambiguous SD claim might influence a jury. It followed other studies indicating similar processes. There was some push back as:

1. This doesn't count in a good shoot which of course your shoot will be! You won't even get charged!

2. The study is obviously from an antigunner trying to ban modern sporting rifles. Thus from the Rittenhouse trial:

https://www.nationalreview.com/news/...es-prosecutor/

Binger questioned Rittenhouse about his choice of an AR-15 when he was purchasing a firearm, adding that “it resembled the types of weapons that are used in first person shooter video games,” in which gamers “pretty much shoot anyone who comes at you.” Rittenhouse retorted that video games are not “real life” and that many types of guns are represented in them, including pistols, shotguns, etc.

“I don’t really understand the meaning of your question,” he said.
Weapons type - never comes up in court for your good shoot. Snarky me.

The prosecutor is getting Kyle to why he would bring his rifle with 30 rounds! OMG. He is thinks is clever but is badgering him with senseless questions that certainly don't show some predmediated, shoot the looter intent.

_______ Not discussing the trial itself, just indulging myself on whether such issues do surface.

So, you're essentially saying "See, I was right?"
Or did I miss something else, somewhere?
But, of course you are right. We've all been warned that every decision we make can and will be scrutinized in the event we're forced to defend ourselves. Gun type, ammo type, capacity, accessories, modifications, etc...



The type of firearm in this instance seems only to be relevant in that we've heard for several years how evil AR's are. In that regard, someone carrying an evil rifle must have been intent on commiting evil actions.

It's difficult to reasonably expect the prosecutor to leave the gun politics out when the case itself has been politicized since day one.

 

[twarr1]

Anyone today who doesn’t think that violent slogans like, “kill em all and let God sort em out” etc., skulls/Punisher logos, aggressive stickers or gun decorations, Internet posts, pictures, memes etc. etc. etc. can’t or won’t be someday used against a person to paint a negative picture to a jury in a criminal or civil trial; I say you’re 100% nuts.

Excellent comment

 

[Tirod]

Taking the point at being "do prosecutors try to portray certain weapons as evil" the answer is yes.

My counter to that expression is, So what? That is exactly what the prosecutor will do, while painting the defendant as an ethically challenged morally defective and mentally challenged person highly prone to making bad decisions while they stumble thru life being a constant danger to all those around them.

They are not going to play fair, nor rollover and agree that the ground the defendant walks on is paved with golden intentions passed to them from God. Not going to happen.

So, playing games trying to demonize a firearm is not only to be expected, but you could even wonder why they aren't, when it does affect the jury to some degree. After all, they tried to choose jurors who were largely fearful and uneducated about firearms, which is to their advantage.

I've read and contributed to discussions about this on the internet for over 20 years now, and the point missed is that counsel will use every reasonable issue in their conduct of submitting testimony to paint their picture in the best possible light. While one is characterizing a firearm as an evil full automatic illegally purchased from a gun show with no ID, the other drags out copied pages from the reputable FFL, testimony of the owners character, and an affadavit from St Peter himself on the golden pass already waiting for someone at the Pearly Gates.

I'm trying to make it a bit more ridiculous than it is, but having seen what's going on in the trial at hand, you can't make this stuff up. Even the judge is a bit over the top - his ring tone is "Im Glad To Be An American."

Keep in mind that the discussion attracts all sorts of internet lawyers who flatly insist there are lethal consequences to the testimony against someone, but the reality is, no, most trials involved someone who crossed a line. Thru lack of knowledge, training, or common sense, they got in the crosshairs of a prosecutor who felt he could win at trial. We should look at the real world issues that happen and successfully deal with them, and leave the lawyers to the few days in court they work with real criminals.

 

[Archie]

(snip)"...usually just have a J-frame in my pocket ..."(more snip) '...I realized that the speed loader in my other pocket would look "tactical."'

(snip yet again) Oh, dear me. What's an old fart to do, what to do?
X (His mark)

Dillon Precision sells a linear cartridge loading device, not a speed loader. It is available in .38 Special, FIVE shot configuration. I would not think that would appear 'tactical'. Of course, it is five more rounds.

 

[Archie]

To the larger question: I have severe doubts about the type of sidearm used in self defense having much play in criminal court. If the defense to the criminal charge is 'self defense' the defendant has to show to the court's satisfaction the incident falls - to a certain degree - within the realm of self defense. The arm used does not play into the matter.
I can see some area of dispute, if for instance the arm of the defender was a fifteen shooter and the late lamented attacker was shot repeatedly. But those are actions, not instrumentality.

What is rarely mentioned is the civil case for 'wrongful death'. One can bet the last nickel the attorney for the plaintiff - the saddened survivor of the late lamented - will use ever possible argument in winning a settlement. Including the arm used and the look on the respondent's face. Perhaps the color of his tie.

 

[Insignificant bill]

So, you're essentially saying "See, I was right?"
Or did I miss something else, somewhere?
But, of course you are right. We've all been warned that every decision we make can and will be scrutinized in the event we're forced to defend ourselves. Gun type, ammo type, capacity, accessories, modifications, etc...



The type of firearm in this instance seems only to be relevant in that we've heard for several years how evil AR's are. In that regard, someone carrying an evil rifle must have been intent on commiting evil actions.

It's difficult to reasonably expect the prosecutor to leave the gun politics out when the case itself has been politicized since day one.

My opinion is this is a political prosecution.

 

[Deanimator]

What is rarely mentioned is the civil case for 'wrongful death'. One can bet the last nickel the attorney for the plaintiff - the saddened survivor of the late lamented - will use ever possible argument in winning a settlement. Including the arm used and the look on the respondent's face. Perhaps the color of his tie.

In Ohio, the assailants and their survivors can sue until they're blue in the face. They're statutorily barred from collecting monetary damages in a justified self-defense shoot. Good luck finding an attorney willing to represent you for 1/3 of $0.00.

 

[hq]

He gets to a part about shotguns and he prefers to use a Winchester 97

Exactly my choice too. Regardless of it being in trench configuration, simply the fact that it was designed over 100 years ago and is a traditional hunting shotgun may carry some weight as a (counter-)argument if the type of weapon ever becomes an issue.

And, at ranges where SD typically takes place, a shotgun and #00buck is pretty much the most effective combination for stopping an assailant.

 

[Deanimator]

Exactly my choice too. Regardless of it being in trench configuration, simply the fact that it was designed over 100 years ago and is a traditional hunting shotgun may carry some weight as a (counter-)argument if the type of weapon ever becomes an issue.

And, at ranges where SD typically takes place, a shotgun and #00buck is pretty much the most effective combination for stopping an assailant.

It was used in The Wild Bunch, so you have fantasies about being a bank robber and a gun runner. And you want to kill lots of Mexicans with a Browning M1917.

ANYTHING can be turned against you given sufficient dishonesty and malice.

 

[1942bull]

I watched the trial on TV yesterday. The prosecutor was clearly making an issue of the weapon as proof of intent. The tactic was to raise the thought that bringing g a rifle showed intent because rifles are more deadly than othe guns. He focused on the military style because “assault” rifles have been demonized in the public mind by the anti-gun folks. Kyle was good at rebutting that from the witness stand with crisp answered. In an attempt to make his point the prosecutor asked why Kyle did not bring a handgun instead of a rifle. Kyle replied that he would have preferred a pistol, but being under 18 at the time WI law forbad him from carrying a pistol. That made the prosecutor look ignorant of the firearms laws in his state. What you can gather from the trial is that a prosecutor will use anything he can conjure up to get a conviction, and that includes making what you carry portray your intent.

 

[stonebuster]

a prosecutor will use anything he can conjure up to get a conviction, and that includes making what you carry portray your intent.

Absolutely.

 

[FL-NC]

I don't know much about this subject. I do know that the guns I carry are the same (or at very least VERY similar) to the guns carried by our law enforcement professionals/civil servants, either on their bat belts or in their municipal issued vehicles. My $ says if I am unfortunate enough to find myself in court, even the bailiff will be carrying a pistol similar to mine. Chosen with safety and reliability in mind, I follow the examples of these professionals.

 

[Deanimator]

I don't know much about this subject. I do know that the guns I carry are the same (or at very least VERY similar) to the guns carried by our law enforcement professionals/civil servants, either on their bat belts or in their municipal issued vehicles. My $ says if I am unfortunate enough to find myself in court, even the bailiff will be carrying a pistol similar to mine. Chosen with safety and reliability in mind, I follow the examples of these professionals.

And a "woke" prosecutor will say you're a "cop wannabe".

There's nothing that can't be turned back on you given enough malice and stupidity.

 

[Archie]

In Ohio, the assailants and their survivors can sue until they're blue in the face. They're statutorily barred from collecting monetary damages in a justified self-defense shoot. Good luck finding an attorney willing to represent you for 1/3 of $0.00.

My salutations to Ohio. Some states have no such protection.