BullfrogKen
Moderator Emeritus
I'll respond shortly . . .
For me and perhaps for many others, the question was not whether it was better to use factory ammunition for "defensive ammo" (If this was the question, the answer of course would have been an adamant YES), but whether the use of factory ammunition ensured legal safety.WhistlinDixie said:I've noticed that it seems to be heavily advised to only carry factory ammo to ensures legal safety.
The potential prejudice of a jury is only one part of the argument. The factor being predominantly discussed in this thread is the point of whether or not any potential exhonorating evidence is likely to be disallowed by the judge if handloads are used, namely GSR testing or ballistics.So, given the fact that my SD loads are the same as my practice/target loads that is just cheap lead bullets made from wheelweights, am I more liable to be grilled or somehow held to a higher standard because I used these rather than some exotic, factory loaded hollowpoint "self-defense" load? Seems bass-ackwards to me.
Not trying to start an argument here, just curious and a little bewildered...
WhistlinDixie said:Does anyone load their own defensive ammo? ... So why are so many excellent self-defense JHP bullets available?
[1] There is a general rule known as the attorney work-product doctrine. This says that an attorney's work-product is confidential and not discoverable (i. e., it need not be given to the other party in response to a discovery request).Sam1911 said:So if you're trying to use the data your expert gathers, but it doesn't prove to back you up (not necessarily the same thing as damning you) you do not have to submit that finding in court. Got that. However, if the prosecution conducts those tests because they need (want, or plan to use) GSR evidence to strengthen their case, but their testing does not support their assertions, may they suppress or hold back that finding, or must they submit those findings anyway -- or at least answer affirmatively under cross-examination?...
If the same sort of foundation was needed for the introduction of the information as evidence, then yes, it would cut both ways. If you go back to post 58 and the quotes from the Ayoob article on Bias you can note that in the second trial Bias was able to challenge the prosecution GSR evidence. And he couldn't get his own in.Sam1911 said:Or are you saying that the judge would accept their inclusion of data from your handloads, but would not accept your inclusion of the same kind of data?
...The state’s firearms expert, Lucien Haag was unable to refute Fish’s account of the shooting, including the fact that Kuenzli was 5-8 feet away. [R.T. 5/02/06 , 202-203]. Haag also testified that the number of bullets in the gun, the bullet found at the scene, the placement of the ejected casings, the angle of the entry wounds were all consistent with Fish’s account. [R.T. 5/02/06 , 219; 222-223; 235]. Haag confirmed that Kuenzli, if running, would have been upon Fish is less than one second. [R.T. 5/02/06 , 223-224]...
As has been said many times, the rules of evidence are the same, and apply the same, no matter what type of case.bds said:...for me, the New Jersey v Bias court case in discussion dealt with not whether the shooting was justifiable in self-defense but whether the shooting was a suicide, an accident or murder (simply, husband shot wife or wife shot herself). Even if factory ammunition was used to better determine GSR data, it would not have changed the nature of the case which was not a justifiable self-defense shooting situation....
If after the event everyone agrees that your use of lethal force was justified, what you used doesn't matter. But if there's a disagreement on the point and you will need to establish that your use of lethal force was justified, if could matter. (see the stories of Larry Hickey, et al, in post 78). But you can't know ahead of time whether your bad day will be easy or hard to establish as justified self defense.bds said:...There have been many recent shootings locally and on national level where they were deemed as justifiable shootings and DA decided not to press charges. For these defensive shooting situations, even THR members fiddletown and Mr. Ayoob would have to agree that the use of any available ammunition (whether factory or handloads/reloads) would be appropritate for self-defense....
But establishing that you shot in self defense could be simple or it could be very hard and expensive. Again, see post 78.bds said:...I believe the OP's questions had to do with "defensive" shooting. If you allow yourself and engage yourself in non-justifiable shooting, then you are in trouble for breaking the law. Hence why we should educate/familiarize ourselves to the applicable local/state/federal laws concerning gun ownership/proper use and not violate them...
I think we should clarify that some of the discussion content only applies IF you commit a crime and are charged by the DA and need a better/more effective defense strategy.
That's all bit wordy and perhaps convoluted, but does it help with the first question?
I did say "some of the discussion content" ...bds said:I think we should clarify that some of the discussion content only applies IF you commit a crime and are charged by the DA and need a better/more effective defense strategy.
I read post 58 again. Was the reason that Bias' attorneys couldn't get his GSR testimony allowed because they'd poisoned the well, so to speak, in regards to the prosecution's use of such? I see that it was not allowed, but I've not yet understood why exactly it was not.If you go back to post 58 and the quotes from the Ayoob article on Bias you can note that in the second trial Bias was able to challenge the prosecution GSR evidence. And he couldn't get his own in.
It really boils down to a question of relevance. If my case involves the amount of force necessary to bend a steel bar, testing to find out how much force is needed to bend an aluminum bar is irrelevant. Such tests would have nothing to do with the issue at hand.
Thank you. I was hoping you would respond to that comment.fiddletown said:But establishing that you shot in self defense could be simple or it could be very hard and expensive.bds said:...I believe the OP's questions had to do with "defensive" shooting. If you allow yourself and engage yourself in non-justifiable shooting, then you are in trouble for breaking the law. Hence why we should educate/familiarize ourselves to the applicable local/state/federal laws concerning gun ownership/proper use and not violate them...
The jury is going to be educated by the court on what the law actually says. And then by the prosecution and the defense on how closely your actions followed the law, or how badly they deviated from it.But not all "victims" of crime are fluent in all applicable laws or in the right "frame-of-mind" when they are victimized, especially in a surprise, which many crimes often occur. Would an average jury consider a "reasonable" victim acting to protect themselves/others in a "reasonable" manner? If not, why?
I'm not sure what you're trying to say here. So let me see if it would help to go back to first principles.bds said:But not all "victims" of crime are fluent in all applicable laws or in the right "frame-of-mind" when they are victimized, especially in a surprise, in the manner many crimes often occur. Would an average jury consider a "reasonable" victim acting to protect themselves/others in a "reasonable" manner? If not, why?
And that's it in a nutshell.Sam1911 said:...The laws generally do favor a "reasonable man" standard -- what would a normal person in a normal state of mind have been likely to believe or do given the information he had to work with at the time of the shooting?
But all of those "reasonables" are refutable. If the DA doesn't believe it was reasonable, you're going to court. If the jury doesn't believe it was reasonable, you're going to jail
Well there's a "sauce for the goose, sauce for the gander" element, certainly. But the reason apparently given by the judge for not letting the defense GSR in was the inability to establish the nexus between what was tested and the death round. And that also the reason the prosecution evidence was bad with an overlay of lousy evidence collection procedures.Sam1911 said:...I read post 58 again. Was the reason that Bias' attorneys couldn't get his GSR testimony allowed because they'd poisoned the well, so to speak, in regards to the prosecution's use of such? I see that it was not allowed, but I've not yet understood why exactly it was not.
The prosecution in the first trial did something very similar to your iron bar -vs- aluminum bar analogy...
When I was summoned to serve on a jury for a robbery case, the DA made sure the jury understood the "real life" police investigation and evidence collection/processing was not as "perfect" as CSI shows on TV and asked us to lower our standards of expectations. When the DA heard I was victim of three burglaries and one close call home invasion robbery that her PD investigated, I was released.fiddletown said:Not all crime labs exactly always work like they're supposed to.
And there can be a lot of moving parts to the process of collecting, testing, opining on and getting into evidence scientific analysis of physical evidence. The examiners could do perfect work, and a glitch in the collection procedures or preserving the chain of custody can make the information useless as evidence.
The entire debate here boils down to whether, in the very unfortunate event that you are in a defensive shooting, and in the very very unfortunate event your justification for that shooting is challenged by the DA and you are tried for manslaughter or murder, and in the very, very, very unfortunate event that your own defense turns out to hinge on or be heavily influenced by GSR testing by your experts -- (whew!) -- what likelihood is there that the Court would deem that evidence inadmissible?
Then see this statement of another lawyer in this post on TFL:357 Terms said:...I still am not convinced that if Willems had been carrying handloads that his trial would have turned out any different...
Spats McGee said:...I'm a lawyer and I'm licensed in the Arkansas state courts, federal courts, the 8th Circuit Court of Appeals and the United States Supreme Court. I've done enough research on this issue to feel confident in my position on it. If I had to prosecute a shooting case with a handloader, I have absolutely no doubt but that I could get expert testimony based on a reload excluded....
Professional opinion based on years of training, study and experience. The opinion of my doctor regarding my health needs to be taken seriously. The opinion of my mechanic on my health does not. Not all opinions are equal.357 Terms said:...opinion...
but I've been unable to find any cases in which the handloader's stuff was found to be admissible.
If I had to prosecute a shooting case with a handloader
[1] That statement of course arises in the context of a discussion of the admissibility of defense expert opinion testimony, based on exemplar GSR testing, about the distance at which a shot was fired.357 Terms said:...That is the last quote of that post you just linked.Spats McGee said:but I've been unable to find any cases in which the handloader's stuff was found to be admissible.
Do you agree?...
Is your mechanic licensed to practice law in the Arkansas state courts, federal courts, the 8th Circuit Court of Appeals and the United States Supreme Court? If not, I'd say that your mechanic is unqualified to render an opinion on the subject. And no, Spats McGee is far more experienced as a lawyer and far more qualified to opine on legal matters than your mechanic.357 Terms said:If" so I can assume mr.McGee never knew of a SD shooting involving reloads? or at least was never involved with one professionally?Spats McGee said:If I had to prosecute a shooting case with a handloader
So his experience is about as equal as my mechanic.
And no, Spats McGee is far more experienced as a lawyer and far more qualified to opine on legal matters than your mechanic.
Which for these purposes doesn't matter at all. An able and experienced lawyer, like Spat McGee who has, I know, experience as both a prosecutor and criminal defense lawyer is qualified to deal with a wide range of matters, even those of a type he has not previously dealt with.357 Terms said:I don't doubt that, but by his own admission he has no personal or professional experience involving reloads and a SD shooting.fiddletown said:And no, Spats McGee is far more experienced as a lawyer and far more qualified to opine on legal matters than your mechanic.
I still am not convinced that if Willems had been carrying handloads that his trial would have turned out any different.
If hand loaded ammunition was used, in order to replicate ammunition as similar as possible to the evidence, the lab may load it and use it for testing
So my question is this. Claimant states he was at least 30 feet away and running away when he was shot in the back. There are contact type burn marks on the front of the guy's shirt and in the wound, which is located over his navel. Both agree he was shot with a 9mm handgun, not a flamethrower. The defendent was using handloads....I'm a lawyer and I'm licensed in the Arkansas state courts, federal courts, the 8th Circuit Court of Appeals and the United States Supreme Court. I've done enough research on this issue to feel confident in my position on it. If I had to prosecute a shooting case with a handloader, I have absolutely no doubt but that I could get expert testimony based on a reload excluded....
fiddletown said:An excellent discussion of how a modern and efficient crime lab works, but actually not directly on point.
fiddletown said:The role of the crime lab and the examiners that work there is to conduct a scientific investigation of physical evidence for the prosecutor
fiddletown said:But I'm afraid that it really has nothing to do with the legal question of the admissibility into evidence of the type of expert opinion testimony under the circumstance, in the context and for the purposes we'd be concerned with.