Why JHP?

[918v]

So you are saying that handload evidence is inadmissible because the judge doies not feel the defendant is credible, unless the prosecution decides to use it?

Why will the prosecution be able to lay the foundation for this evidence, but not the defense?

Why can the prosecution allege that a shot was fired from a certain distance without any proof? If defendant's handload cannot be replicated (because such information is self-serving) and did not leave any GSR on the victim, the distance to the victim must remain unknown unless there is other evidence establishing distance, right?

So then the fact one used a handload is really a neutral bit of info that neither helps or hurts a defendant.

 

[Frank Ettin]

So you are saying that handload evidence is inadmissible because the judge doies not feel the defendant is credible, unless the prosecution decides to use it?

Why will the prosecution be able to lay the foundation for this evidence, but not the defense?...

No, you're missing the point.

If the prosecution offers the test results it is admitting that there is an adequate nexus between the ammunition tested and the event, and thus that the test results are relevant. The defense is not therefore going to object to the prosecutions offer of its results, because the prosecution by offering the test results has now opened the door for the defense to introduce its test results. We would have situation in which parties have in effect stipulated to the admissibility of certain evidence.

But it may be more likely that the prosecution will decide that it doesn't need it's test results, so it won't offer them into evidence. That preserves its objections to the defense's offer of its test results.

...Why can the prosecution allege that a shot was fired from a certain distance without any proof?...

[1] Why does the prosecution have to allege the distance at which the shot was fired? That may not be material to the prosecution's case.

[2] Maybe the prosecution has other evidence on the question that it's willing to rely on, e. g., witnesses.

...So then the fact one used a handload is really a neutral bit of info that neither helps or hurts a defendant.

No. It can hurt the defendant if he needs to have admitted into evidence over the objection of the prosecution the opinion testimony of his expert regarding the distance at which a shot was fired based on GSR testing of handloaded ammunition.

 

[918v]

So how can the prosecution establish this adequate nexus? By having a forensic lab examine the remaining ammo? Why can't the defense do the same? Say Bias's gun was a six-shooter and the wife popped one in her head, that would have left five unfired handloads in the gun for examination. Surely the forensic lab would have tested them to corroborte Bias' claim, hair filtering included. In my scenario the remaining rounds would have served the same purpose.

How do you lay the foundation? Why cant you have the defendant testify what he loaded? This would e corroborated by the forensic lab that took his ammo apart. Then have an expoert witness testify how those specific components behave when fired form defendent's gun.

 

[Frank Ettin]

So how can the prosecution establish this adequate nexus? By having a forensic lab examine the remaining ammo? Why can't the defense do the same? Say Bias's gun was a six-shooter and the wife popped one in her head, that would have left five unfired handloads in the gun for examination....

If you're talking about Bias, what happened there happened.

...Why cant you have the defendant testify what he loaded? This would e corroborated by the forensic lab that took his ammo apart. Then have an expoert witness testify how those specific components behave when fired form defendent's gun.

If you're talking about what might happen in some other case, you can't know what will or will not be available or possible. You can't assume that your proposed strategy would even be possible, let alone successful.

 

[357 Terms]

Originally Posted by 918v
So how can the prosecution establish this adequate nexus? By having a forensic lab examine the remaining ammo? Why can't the defense do the same? Say Bias's gun was a six-shooter and the wife popped one in her head, that would have left five unfired handloads in the gun for examination....

fiddletown-

If you're talking about Bias, what happened there happened.

LOL, yes it did!

As has been said before it was his "phantom" loads that were not allowed.

And for good reason.

 

[Kleanbore]

First, everything does not "hinge on Bias".

Everything hinges upon the rules of admissibility of expert witness testimony and the largely integral rules of admissibility of forensic scientific trace evidence.

There are two important aspects to the question. One has been settled. The other has not.

The first has to do with the admissibility of test results from the exemplar specimens for the purpose that has been discussed in this thread. Results from factory ammunition would be admissible, at this time. Results from ammunition that was not produced under factory conditions and for which the manufacturing and test data, and the custody of same, cannot be independently validated would be subject to challenge and, based current court rulings, would almost certainly not be admitted if challenged. The jury would not even know about them. That would almost certainly be the case had a defendant been the record keeper, for obvious reasons.

We do not have to look for rulings involving ammunition; the same rules apply whether the subject at hand has to with the admissibility of evidence regarding pharmaceuticals, drugs, DNA, other organic or inorganic chemicals, digital or other images, printed documents, signals, you name it. Some subsets of those rules even apply to the admissibility of records generated by computer programs.

I'm afraid that continued speculation about what might happen in a case involving the rare use of handloaded ammunition in an incident that becomes the subject of a criminal or civil case will prove a lot less useful than an evaluation of how the applicable rules of evidence apply in the general case.

The second aspect has been brushed upon in passing. It has to do with whether GSR distance testing results will continue to be admissible ,and for what purposes. They always have been, but GSR distance test results have not yet been tested in court against the rules of admissibility established in the Daubert cases. There is always the possibility that at some point in time, the use of GSR distance testing to determine the distance will go the way of polygraph tests. In states in which the Daubert rules apply, it is currently possible to challenge the validity of GSR distance tests, and the procedures for doing so are in place. I should think that could happen in other states, too.

At this time, GSR distance test results are admissible in criminal and civil trials. The problem comes up when the test specimens do not meet the rules of evidence for admissibility for forensic scientific trace evidence.

 

[blarby]

All I can conclude from this is that Bias is the model case of why handloads ARE admissible for the purposes of GSR evidence!

Thanks !

 

[357 Terms]

Kleanbore

Results from ammunition that was not produced under factory conditions and for which the manufacturing and test data, and the custody of same, cannot be independently validated would be subject to challenge and, based current court rulings, would almost certainly not be admitted.

Speculation.

If the reloads that I use for SD were consistent with the loads that were recovered, at the scene or on my reloading bench, why wouldn't they be addmitted?

 

[Sam1911]

Who it works for will probably vary State by State

Ok. But it doesn't expressly work for the prosecutor. That would be a problem with impartiality.

My experts will not be able to use the same material used by the government.

Why would this be? Is evidence collected at the scene not provided to all testing agencies considered allowed by the court?

If a blood sample collected at the scene is tested and those results are submitted as evidence, but the test is challenged by the defense, isn't a sample of the actual collected evidence then provided to the independent testing agency the defense wants to use? How could it not be?

 

[918v]

I think Fiddletown is saying that neither the prosecution nor the defense is likely to get "phantom handload" evidence admitted if the shooter expells all his rounds. This means they will not be able to argue the following:

That you made extra powerful vicious killer rounds.
That you were here and not there based on a lack of GSR.

The only disadvantage, therefore, is a shooter who has expelled all his rounds will not be able to prove his position (via GSR evidence) relative to the victim if he uses a pipsqueek load using a light charge of fast burning powder.

 

[Sam1911]

The problem for the government here is that if it offers its (favorable to it) test results, it's then is going to have a hard time keeping my (favorable to the defendant) test results out. But if it's not offering its test results, it objects to mine because since handloads are involved, a sufficient nexus between the test and the event can't be established. That's likely to hurt me more than the government, because the government has to have a good deal more to talk about than just GSR tests in order to be going to trial.

So now we're at the point where:
1) You've been in a defensive shooting.
2) Your justification has been challenged so you're being tried for a crime.
3) Your defense hinges on GSR evidence to establish how far away you really were.
4) The forensics lab has tested your handloads and the results DON'T support you.
5) You want to have another lab run the same test AND the court won't allow another testing agency to test your ammo, or reproduce ammo similar to what was found on site and/or in the gun to perform that test.

The odds of these things stacking up get slimmer and slimmer at every step. And the last one involves a decision by a judge that we can't find a single case to support one judge ever making.

I know it's an overused truism -- and the only thing that will matter is what happens in your trial -- but the old "angels dancing on pinheads" meme comes to mind.

The one trial we can point to involved a guy trying to provide test data for a red herring cartridge that we're all reasonably certain wasn't present at the scene, to support a claim that wasn't true, through an assertion that was (to any shooter and reloader) ludicrous.

It isn't a good example. (And, as I pointed out before, Bias' first trial seems to argue against handloads being any stumbling block at all.) And we don't have any others to go on.

Yes, it is important to understand the rules of evidence, but there are how many defensive uses of firearms every year? And how many trials? Over how many decades? And we're unable to find one time when this applied to a self-defense trial? And let's face it, firearms cartridges aren't pharmaceuticals. They are not terribly complicated -- and the thing that GSR evidence can support or refute do not depend on 17th-decimal-point levels of precision in duplication of the test. (You're getting a range of possible distances for example, which are supported near enough by a large variety of possible loads. There is little reason to accept that a load produced by one testing agency would be inadmissible, compared to a similar, admissible load produced by the state or county forensics lab to duplicate the load found at the scene.)

As Lee Lapin says, it isn't the odds, it's the stakes. Got that. But the odds appear to be statistically insignificant. So many things to make sure you've got squared away before you fire a gun in a hostile situation. So many questions of need and justification and training and, and, and... This issue seems to fade into ultimate insubstantiality. So many utterly random and completely unforeseeable things could trip you up (or help you) with much greater likelihood than that this collection of dice-rolls will turn up against you.

 

[thorn-]

Since we've gone so far out of the topic of reloading, and into the land of "what does a court do"... I'll just throw out a personal opinion:

The biggest contributing factor to Harold Fish getting convicted was that it was a bad shot. He over-reacted. The bullets he used might of "disturbed a juror", but his bullets shouldn't have wound up in someone else to begin with.

thorn

 

[918v]

4) The forensics lab has tested your handloads and the results DON'T support you.

Once that happens, you might as well hang yourself in your cell... or argue hair filtering or that the Santa Ana winds blew the GSR off course and deposited it in Mexico.

Similarly, a forensic lab could find your story don't jive by testing the factory ammo you used.

 

[Sam1911]

But it may be more likely that the prosecution will decide that it doesn't need it's test results, so it won't offer them into evidence. That preserves its objections to the defense's offer of its test results.

This, however, does not mean their objections will be sustained by the court.

Another improbability multiplier.

 

[Sam1911]

...Why can the prosecution allege that a shot was fired from a certain distance without any proof?...

[1] Why does the prosecution have to allege the distance at which the shot was fired? That may not be material to the prosecution's case.

[2] Maybe the prosecution has other evidence on the question that it's willing to rely on, e. g., witnesses.

What the heck? Why does the prosecution have to allege the distance at which the shots were fired? Really? Because that's whole point of the GSR testing as used in the Bias case! That was the assertion he was trying to disprove by introducing his own testing. And it seems to be the one that we're all so worried we'd be trying to establish in our own hypothetical cases.

...

If you're talking about Bias, what happened there happened.

...Why cant you have the defendant testify what he loaded? This would e corroborated by the forensic lab that took his ammo apart. Then have an expoert witness testify how those specific components behave when fired form defendent's gun.

If you're talking about what might happen in some other case, you can't know what will or will not be available or possible. You can't assume that your proposed strategy would even be possible, let alone successful

Oh come on. This entire debate is centered around trying to assume that a proposed strategy would be possible or impossible based on what happened in other cases. Using precedents set by similar cases. That's the whole point of discussing law, correct? How will this thing that happened relate to that thing that might happen?

If you can say that the entire discussion is moot because we can't assume anything based on what did (NOT) happen in the only case we know of that appears to be similar at all to the Grand Concern under discussion, then why would Mas, and you, and others have ever made these statements about what the Bias case was thought to teach us? Why claim there's some lesson to be learned here if we really can't assume anything based on what happened?

 

[Sam1911]

Results from ammunition that was not produced under factory conditions and for which the manufacturing and test data, and the custody of same, cannot be independently validated would be subject to challenge and, based current court rulings, would almost certainly not be admitted if challenged. The jury would not even know about them. That would almost certainly be the case had a defendant been the record keeper, for obvious reasons.

Except that they WERE admitted in Bias, and according to Ken's forensic lab friend, are tested and admitted regularly in his experience. Why do you claim that it almost certainly would not be admitted if challenged? If that was the case, the Prosecutor's claims based on the exact same test data would be instantly inadmissible as well, and that doesn't seem to be happening.

We do not have to look for rulings involving ammunition; the same rules apply whether the subject at hand has to with the admissibility of evidence regarding pharmaceuticals, drugs, DNA, other organic or inorganic chemicals, digital or other images, printed documents, signals, you name it. Some subsets of those rules even apply to the admissibility of records generated by computer programs.

Understood, but yet we're discussing evidence gathered at the scene of a supposed crime, that the defendant cannot tamper with (any further, at least) and has no custody of once the investigation has begun. The state DOES take his gun, his remaining ammo, loading equipment, loading components, loading data, and in the case of Bias, every round of ammo they found in the entire house. In Bias, they tested everything they found, tested even stuff they didn't find, but found notes about. Their findings were admitted (in the first trial, at least).

It can be challenged, as you say, but "sauce for the goose..." as fiddletown says. If it can be challenged by the prosecution it can be challenged by the defense as well.

According to Ken's friend who spent a career in a forensics lab this testing is done -- even absent the gun, or remaining ammo, handloaded or factory -- and it is admitted in cases. If it was not useful in a significant portion of cases, because whichever side could have it thrown out easily on challenge, then they wouldn't do it.

 

[Frank Ettin]

..Why can the prosecution allege that a shot was fired from a certain distance without any proof?...

[1] Why does the prosecution have to allege the distance at which the shot was fired? That may not be material to the prosecution's case.

[2] Maybe the prosecution has other evidence on the question that it's willing to rely on, e. g., witnesses.

What the heck? Why does the prosecution have to allege the distance at which the shots were fired? Really? Because that's whole point of the GSR testing as used in the Bias case!...

Different cases are different.

In Bias, a major part of the prosecution's case was built on the distance from which the shot was fired, and so that had to be a focus of the defense. And pretty much the only evidence on the question was based on GSR. And as the collection of evidence and testing by both sides became an increasing contentious issue through the four trials, Bias went from being charged with murder in the first degree to being convicted of reckless manslaughter.

But in other cases, the distance from which a shot was fired could be less important or even relevant to the prosecution's theory of the case. And even if it is relevant, the prosecution might not need or want GSR evidence on the point. It may, for example, have witnesses.

In some cases, the matter of distance might not even be in contention. And in others, because of the circumstances, distance might be more important to the defense than the prosecution.

...Why would this be? Is evidence collected at the scene not provided to all testing agencies considered allowed by the court?...

The court doesn't "allow" testing agencies. If I'm going to have any testing done by my experts, I'll have to get them qualified in court as experts.

The physical evidence collected at the scene belongs to the state. It's vital for evidentiary purposes that the chain of custody be preserved, i. e., everyone who touched the thing needs to be identifiable and held accountable for what he did with it while in his possession. So the state isn't necessarily going to give stuff out to anyone not within its dominion and control.

Just because someone has qualified to testify as an expert in court doesn't bring him under the control of the state or the state crime lab. In fact, he's my contractor. I pay him, and he works for me.

There may be times when the defense will have some access to physical evidence collected by the state, but those would be special occasions. So in general, if I'm going to be having testing done, it will be of exemplars, and I will need to be able to establish the connection between the exemplars used and whatever is involved in the case.

...As Lee Lapin says, it isn't the odds, it's the stakes. Got that. But the odds appear to be statistically insignificant...

The irony of all this hoopla is that no one ever said that the risk was great or even statistically significant.

But any statistically insignificant legal risk associated with your use of handloads becomes a zero risk if you don't use handloads. If using handloads is important enough to you that you won't mind the risk, whatever it might be, go ahead.

For some, using handloads isn't important at all, so they would prefer to choose zero risk.

...So many utterly random and completely unforeseeable things could trip you up (or help you) with much greater likelihood than this collection of dice-rolls will turn up against you.

Sure, but those things are outside your control. Something, like using handloads, are within your control.

Where you have choices, you make your choices. Where you don't have choices, there are no choices to make.

 

[918v]

then why would Mas, and you, and others have ever made these statements about what the Bias case was thought to suggest?

Because a certain person made his bones saying a certain something for the last twenty years and is now "dug in" for all intents and purposes.

 

[Frank Ettin]

...It can be challenged, as you say, but "sauce for the goose..." as fiddletown says. If it can be challenged by the prosecution it can be challenged by the defense as well....

And it apparently was challenged by the defense beginning in the second trial which resulted in a hung jury and the murder charge being tossed by the judge.

 

[Kleanbore]

Posted by 357Terms: [The statement that results from ammunition that was not produced under factory conditions and for which the manufacturing and test data, and the custody of same, cannot be independently validated would be subject to challenge and, based current court rulings, would almost certainly not be admitted is] Speculation.

No, it is not.

Anything is subject to challenge, provided that the timing of the challenges is within the rules. Once an item of scientific forensic trace evidence and the related expert testimony has been challenged, the judge has specific rules under which he or she must determine admissibility. These rules vary among states. They are not speculation.

In many states, the Daubert standard applies. The case(s) of Daubert v Merrell Dow, though having nothing to do with ammunition, established the legal precedent that applies in those states and in Federal courts.

Most people who have a working knowledge of the subject (some, but by no means all, attorneys have such knowledge, and I was at one time responsible for helping to ensure that certain items would be admissible in court under the Daubert rule) understand why evidence involving exemplar samples that were not produced under strict processes with strict independent verification would fail to meet the standard. The reasons have been explained on THR in summary form numerous times, but for those who choose to not accept the explanation, and for those for whom in depth legal study of the subject would not be practical, the only viable remedy would be to spend a half of day with a very patient and understanding expert in current evidentiary principles and the scientific process.

If the reloads that I use for SD were consistent with the loads that were recovered, at the scene or on my reloading bench, why wouldn't they be admitted?

The one thing one can be pretty sure of is that if one is going to trial, the prosecutor, or in the case of a civil trial, the plaintiff, will be motivated to file a motion to exclude the evidence if said evidence would be favorable to the defendant. In the case of ammunition test results and expert testimony about same, the basis for such a motion readily exists.

What happens then is up to the judge, who must make his or her determination under the rules of evidence.

The reasons for exclusion could be manyfold, ranging from questions about verifiability to the size of the data sample and including anything in between.

By the way, what one trial court judge decides or has decided does not establish legal precedent. Precedence would only be established by the outcome of appellate rulings, and such precedence will set forth the universal evidentiary and other legal principles involved, rather than something specific about the kind of evidence in question.

In making a determination under a Daubert challenge, however, a trial judge may well base his or her decision upon the scientific analysis and peer review results used by another judge in determining admissibility or inadmissibility of the same particular kindof evidence.

One thing that has come up in these discussion is the possibility that, once a trial judge has made a determinative admissibility ruling in a case involving a particular kind of evidence, an appeal would be the next step. Not very likely. Unless a new evidentiary principle is in question or an error by the court is alleged, the appeals have already been made and decided upon, in United States v. Frye and in Daubert v. Merrell Dow.

Based on my knowledge, I think it is very, very unlikely that any judge in whose court a challenge is filed would rule to admit GSR test data involving the use of specimens that were not manufactured by an independent factory. There are too many obvious divergences from the Daubert principles to support such a decision

What does remain to be seen is whether the heretofore commonly accepted use of GSR distance testing results is ever challenged, and how the results will play out. That wouldn't have anything directly to do with handloads, but, should it ever be determined that GSR distance testing is not admissible anyway, that would make the handloads vs. factory loads question moot.

 

[Sam1911]

In Bias, a major part of the prosecution's case was built on the distance from which the shot was fired, and so that had to be a focus of the defense. And pretty much the only evidence on the question was based on GSR. And as the collection of evidence and testing by both sides became an increasing contentious issue through the four trials, Bias went from being charged with murder in the first degree to being convicted of reckless manslaughter.

But in other cases, the distance from which a shot was fired could be less important or even relevant to the prosecution's theory of the case. And even if it is relevant, the prosecution might not need or want GSR evidence on the point. It may, for example, have witnesses.

So, are we then agreed that we should abandon Bias as supporting this argument in any way? That using Bias to forward these assertions is disingenuous, or at least mistaken?

 

[Sam1911]

Based on my knowledge, I think it is very, very unlikely that any judge on whose court a challenge is filed would rule to admit GSR test data involving the use of specimens that were not manufactured by an independent factory. There are too many obvious divergences from the Daubert principles to support such a decision

I see your point, and why this would be so.

However, Ken's friend reports that over the course of his career they did do exactly these things and had them admitted as evidence, including this:

The conversation I had last night discussed a case where a man used a round of .45 ACP ammunition dating back to the 1940’s. The lab simply could not find ammunition from that time period to use in testing. So the technician identified the components and loaded some that were as similar as possible to the ammunition and used it for testing.

Now if you're saying that such shouldn't be admissible, or wouldn't now be admissible under these appellate rulings, I suppose that changes things.

 

[Frank Ettin]

...Now if you're saying that such shouldn't be admissible, or wouldn't now be admissible under these appellate rulings, I suppose that changes things.

And as I mentioned before, it can all depend on under what circumstances, in what context and for what purposes something is offered into evidence. And, sometimes the introduction of something into evidence, for tactical reasons, or because opposition counsel has made a mistake, isn't objected to.

 

[Kleanbore]

Results from ammunition that was not produced under factory conditions and for which the manufacturing and test data, and the custody of same, cannot be independently validated would be subject to challenge and, based current court rulings, would almost certainly not be admitted if challenged. The jury would not even know about them. That would almost certainly be the case had a defendant been the record keeper, for obvious reasons.

Posted by Sam1911: Except that they WERE admitted in Bias, and according to Ken's forensic lab friend, are tested and admitted regularly in his experience.

What one trial court judge decides or has decided does not establish legal precedent. Precedence would only be established by the outcome of appellate rulings, and such precedence will set forth the universal evidentiary and other legal principles involved, rather than something specific about the kind of evidence in question.

The one thing one can be pretty sure of is that if one is going to trial, the prosecutor, or in the case of a civil trial, the plaintiff, will be motivated to file a motion to exclude the evidence if said evidence would be favorable to the defendant. In the case of ammunition test results and expert testimony about same, the basis for such a motion readily exists.

Why do you claim that it almost certainly would not be admitted if challenged?

Most people who have a working knowledge of the subject understand why evidence involving exemplar samples that were not produced under strict processes with strict independent verification would fail to meet the standard.

Consider this: as a judge, you have to decide whether certain materials and data are sufficiently reliable, verifiable, and free from suspicion to to enable their proper use as evidence in a trial. If you can be assured that (1) the materials were manufactured, packaged, and shipped by an ISO certified concern(2) that the in-process and lot acceptance test data and calibration test data were independently prepared and maintained and (3) that the data included a large enough sample to establish error rates, you would have no reason to exclude the evidence.

However, if one eliminates strict manufacturing and quality standards, takes away procedures for determining how the materials have been handled and and by whom, reduces the sample size to a very small number, and introduce the possibility, however slight, that someone with a motive may have had the opportunity to have altered, lost, or substituted anything in the process, the assurance of reliability and verifiability is severely compromised.

It is for those reasons that I think it is very, very unlikely that any judge in whose court a challenge is filed would rule to admit GSR test data involving the use of specimens that were not manufactured by an independent factory.

By the way, not to complicate matters too much, but all of the foregoing is based on the assumed admissibility of GSR distance testing per se as evidence. Someday someone may file a challenge regarding the repeatability, error rate, etc. on that subject.

If that was the case, the Prosecutor's claims based on the exact same test data would be instantly inadmissible as well, and that doesn't seem to be happening.

It depends entirely upon who challenges what (or who does not), and when in the process, along with what the evidence at hand is to be used to demonstrate.

So, are we then agreed that we should abandon Bias as supporting this argument in any way? That using Bias to forward these assertions is disingenuous, or at least mistaken?

The mistake, if there is one, is try to base an answer on single non-precedential decision by a trial court judge involving an incident that happens very rarely indeed, rather than by looking at the principles involved. The Bias case illustrates an example of what can happen in one trial.

One has to look at how admissibility determinations are properly made. As it happens, the rules for same have always come out of cases that had nothing at all to do with handloads fired at human beings--but they do govern admissibility of said evidence, along with admissibility in various cases involving a very broad spectrum of other things.

 

[357 Terms]

fiddletown

The irony of all this hoopla is that no one ever said that the risk was great or even statistically significant.

But any statistically insignificant legal risk associated with your use of handloads becomes a zero risk if you don't use handloads. If using handloads is important enough to you that you won't mind the risk, whatever it might be, go ahead.

I still don't think there is ANY risk!

You still really haven't shown anyone that has had legal issues using handloads for SD, if there is no example how can you say there is any risk? Through speculation and legal interpretation?
I will keep my handloads, thank you.