The holding in Daubert has nothing to do with our predicament. Daubert was about the admissibility of expert testimony based on substandard testing. Our situation concerns admissibility of expert testimony based not the kind of testing, but the origin of the sample. Our problem is not that the expert is not an expert, or that the test is questionable. Our problem is whether the sample tested is the same as the sample used to kill the victim.
Why JHP?
- Thread starter WhistlinDixie
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The holding in Daubert has nothing to do with our predicament. Daubert was about the admissibility of expert testimony based on substandard testing. Our situation concerns admissibility of expert testimony based not the kind of testing, but the origin of the sample. Our problem is not that the expert is not an expert, or that the test is questionable. Our problem is whether the sample tested is the same as the sample used to kill the victim.
Not necessary to do so, nor is it meaningful.
First, the evidentiary issues extend beyond self defense and encompass, accidental shootings, negligence, manslaughter, suicide and murder--one of which every shooting will be determined to have been, if a self defense claim fails.
Second, the only way to find an example would be to read the trancripts of every trial in all of the three thousand plus courts in the US, and to determine through whatever means whether handloads may have been used without the knowledge of the jurors.
Third, the number of successful self defense case each year is very small (though many criminals do claim self defense); the number for which the evidence is unclear on balance is still smaller; and the number of those in which handloads were used is, as pointed out in other posts, much, much smaller.
One would not reasonably assess the risk from those records if one had access to them--and no one does.
Through analysis and through interpretation of the governing appellate rulings. Works for most people.
There is risk to the extant that a defendant or supect may need to rely upon GSR evidence to make his or her case. Small, I think. But considering the stakes, I won't roll the dice.
Do what you please.
Do you somehow really believe that a test would not be questionable if the test sample used were questionable?
One of the things one has to do to ensure admissibility of evidence under Daubert is to demonstrate and ensure the origin of said evidence and how it has been stored, labelled, tested, measured, etc. since it's origin, and by whom.
Where Daubert applies, it has a great deal to do with our "predicament". Where it does not, questions concerning the origin of the sample will have a lot to do with our "predicament."
One more time: 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.
Kleanbore
I think there is a better way to describe the odds, Something more along the lines of:
Needle in a haystack.
A drop in the ocean.
One grain of sand on a beach.
A blade of grass in a field.
You have a better chance of winning the lottery!...a much better chance
Then again I don't see how I can put odds on something that has never happened. Hmmmm....
I think saying "roll the dice" isn't a good way to describe the risks (?) of carrying reloads.
I think there is a better way to describe the odds, Something more along the lines of:
Needle in a haystack.
A drop in the ocean.
One grain of sand on a beach.
A blade of grass in a field.
You have a better chance of winning the lottery!...a much better chance
Then again I don't see how I can put odds on something that has never happened. Hmmmm....
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We're not talking about fragile biological samples that are affected by temperature, storage conditions, etc.
We're talking about components that are relatively robust.
If all the rounds are spent, and only the defendant's claim remains, he should be allowed to testify what he loaded and his expert should be allowed to testify about what particular set of components does in his testing, the prosecution can then challenge the defendant's credibility, and the jury can then weigh his credibility.
If we were arguing the facts of the Daubert case, you'd be saying the paintiff would not be able to introduce his expert testimony because there is no proof he actually consumed the defendant's medicine.
We're talking about components that are relatively robust.
If all the rounds are spent, and only the defendant's claim remains, he should be allowed to testify what he loaded and his expert should be allowed to testify about what particular set of components does in his testing, the prosecution can then challenge the defendant's credibility, and the jury can then weigh his credibility.
If we were arguing the facts of the Daubert case, you'd be saying the paintiff would not be able to introduce his expert testimony because there is no proof he actually consumed the defendant's medicine.
Sam1911
Moderator Emeritus
fiddletown said:
Perhaps this speaks to why this debate rages on: It HAS been suggested over and over again that the risk is real and significant. We even have a Sticky thread here in the S,T,&T forum that states that these are issues anyone engaging in preparations for self-defense needs to concern themselves over.
I am not familiar with all of Mas' writings, and I have to admit I've never taken his classes, but I've read and been told that this is a factor he considers important enough to mention as significant in the limited space of a book or class lecture.
(In fact, I've even heard that he will refuse to assist in a defense if reloads were used -- though I honestly don't know that he ever said such a thing.) I can certainly acknowledge that the matter is believed to be so important to him that his name is cited as authoritative in just about every one of these discussions -- along with the Bias case which now seems to be not at all what anyone, including Mas, thought it was.
To discover that this entire question is about as unlikely to be an issue as, say, being struck on the head by a meteorite at the moment you pull the trigger is distressing, and it makes me feel like we're doing our members and the public a disservice.
There are enough things for folks to actually worry about regarding justifiable shootings. Enough points of law, questions of skillset, mindset, tactics, (heck, even which caliber to use
) guidelines for dealing with first responders, permutations of justification and rights...this appears to be a distraction which has absorbed the attention of all of us to a disproportionate degree. It seems that if our sticky needs to address this issue at all it should be as a sidebar with the caveat that this is a completely hypothetical matter that lawyers enjoy debating the infinitesimal possibilities of, rather than a real-world issue that has caused harm to anyone, anywhere, so far as anyone can tell.
BullfrogKen
Moderator Emeritus
Kleanbore said:
I have seen this explained numerous times. Each time the evidence to support the inadmissibility of handloaded ammunition has been the Bias case. And I think we've seen here not only has the story about the Bias case been called into question, it has been shown to support the polar opposite opinion of the admissibility of handloads in trial.
I have spent more than a day with the professionals you suggest, and I don't share your opinion.
Kleanbore said:
I think we've shown here that reliability upon the test sample can be achieved. But if there's still some apprehension that the test sample you have your private lab develop will be impeached, subpoena the bench notes from the state's Forensics lab. Determine what they recorded when they disassembled the evidenciary ammunition, and use it.
Sam1911
Moderator Emeritus
I certainly do see how that would be the most optimal path for producing admissible testing material.
However, as I said before,
By your example, such should not be admissible -- or should be very VERY easily challenged and disallowed. And yet, that seems to not have happened, at least not in enough cases for Ken's expert pal to mention it.
Instead, what seems to be pertinent to the court is whether the testing is reasonably illustrative, and not clearly bogus. As we all know, gun shot residue patterns are not identical from one shot to the next, even between two rounds from the same box of factory ammo. We also know that what is proved by GSR testing is not that the shooter stood at four feet, three inches, and 37/128ths of an inch away from the entry point on the victim, but rather that the muzzle was between this and that distance away, or that the pattern produced was approximately consistent with what is observed from a shot taken as the defendant says, or that it clearly is not. Or that it the results are too close to call = inconclusive.
IF the results of a GSR test produced data that had to be precise to several decimal places in order to be illustrative, the ISO certified, large lot size, etc. would certainly come into play. It would simply be too easy to fudge things to a degree that would show an erroneous result.
But as Ken has pointed out (and some of the arguing in Bias' trials supports) the things GSR testing often proves are not so precise. They can't be and they don't have to be. In fact, such testing has been performed and submitted in cases where neither a gun nor any ammo were taken into evidence from the crime scene. The lab used approximately representative ammo and an approximately representative weapon to produce data which made a blanket statement that a claim was or was not realistic.
You may be right, that a judge may sustain an objection and disallow an independent test because there is no ISO certification possible with the handloaded ammo, but it seems such an objection would be quite arguable.
BullfrogKen
Moderator Emeritus
Sam1911 said:
And that's OK if Mas won't. There are expert witnesses who will. I personally know a few of them.
There aren't many individuals who understand the workings of a state ballistics lab. Fortunately for us, many of those who work for the state retire early on nice pensions and go on to offer their services to the defense in private work.
I understand Carl Leisinger, who worked throughout the entirety of the Bias trials, is now retired from the New Jersey State Police. I have no idea if he now does work on retainer. But he would certainly be among my list of someone I'd approach if I needed such assistance.
Anyway, our rival Steerlers are about to play the Broncos, and I'm going to be occupied.
Lord, be with the Tebow and break Ben's leg. Amen.
First, handloaded ammunition per se is not inadmissible. The issue is that GSR tests from ammunition other than factory loads do not meet the rules of admissibility 9as I understand them) when the purpose of submitting the estimate is to prove or disprove something about the approximate distance of shots fired. Either side in a civil or criminal case can challenge the evidence before the trial, should it choose to do so, and it is likely that the challenge would be upheld under the rules.
I would not rely on the Bias case to support anything. It may imperfectly lllustrate a few things, but it doesn't really prove anything at all.
My understanding is based on having taken law courses on this and related subjects and on working for an extended period with attorneys and other nationally known experts in the field of the rules of evidence and in related fields, such as the design of systems of internal controls and ISO certification.
The two very key questions are, was the evidence challenged, and for what specific purpose was the evidence submitted?
One of the things that a prosecutor can do is test factory loads with the intention of introducing the test results into evidence for any purpose; he or she will succeed, at this point in time, though that may change. Another is to test handloads for the purpose of demonstrating something about distance of the shots, and that may work, because the defense may not have a tactical reason to challenge; or it may not. Another is to test reloads or similar lads for some purpose in which the potential differences from the loads used in the case would have no material dispositive influence on the conclusions to be argued. Still another is to perform the tests with no intention of introducing them as evidence, for the propose of developing a better ideas of what did happen to help them build their case.
Another thing the prosecutor can do is challenge the admissibility of test data submitted by the defense. Unless the sample for those data were produced by a factory, such a challenge is very likely to succeed, under the rules of evidence..
Actually the threshold is not to show that the exemplar rounds and manufacturing data are "not clearly bogus". Rather, the problem lies in showing that there is no reasonable basis for questioning whether the evidence is verifiable--that it is in fact what it is supposed to represent.
True, and should someone ever decide to challenge the admissibility of GSR data per se, we may have an entirely different ball game.
Not if the basis for the ruling was clearly consistent with current SCOTUS or applicable state supreme court rulings on the subject.
I do not have access to the eight hour presentation I once received on the specific subject of ensuring the admissibility of evidence, or to the notes I took during the class that was conducted by several attorneys and data integrity experts, or to the test handouts, but I cannot think of a single sustainable reason for appealing a ruling against the admittance of test data base on samples other than factory product (whether ammunition or anything else assuming the ruling cited relevant parts of the current rules of evidence.
Of course, it just might happen....
We posted a Sticky because the same subject, and many of the same misunderstandings ("a good shoot is a good shoot"; "no one has ever been convicted for using handloads" "there is no reason why my evidence would not be admitted"; "that was not a self defense case") keep coming up. They have come up again here.
We did not discuss the Bias case in that Sticky, except as it has come up in related posts that are linked in the Sticky.
The significance of risk is a matter of likelihood and of potential consequences. Most of us do not like the idea of being convicted of a serious crime if we can avoid it.
We have explained over and over that the handloads issue will become dspositive only if all of the following occur at the same time:
- Evidence supporting a defense of justification is sparse or unclear.
- There is testimony or other evidence that contradicts the defendant's accoiunt of the incident.
- The distance at which the shooting occurred, and/or a discrepancy in accounts of same, is crucial to the case.
- The distance is something that could be roughly approximated by GSR pattern data, or key testimony about the distance dould be suppprted or contradicted by such data.
- It is important to the defense to introduce GSR pattern data based on the ammunition used.
Having to shoot someone is unlikely also. Should you have to do so, it may occur inside your house,and with a broken door. There may be witnesses whose recollections do support your account (in his classes, Mas explains why honest witnesses often do not recall what actually happened). The perp may not have friends who say they saw it all. There may have been a security camera. The distance may not matter.
But: absent those conditions, the likelihood that you may want to introduce GSR test results will likely be much, much higher; it's a simple matter of conditional probability; and if perchance you did not use factory loads, you would likely be out of luck.
Based on the above, I would have no concerns at all about keeping handloads in a bedside firearm. The problem for me is that I carry the same firearm with me when I go outside.
And frankly, I do worry that if I am accosted somewhere in a parking lot at night and have to use deadly force in self defense, there may well be a sparsity of supportive evidence. I do not consider the possibility to be at all like that of being struck by a meteorite.
It is a risk that I can mitigate somewhat at no cost.
This thread is incorporated into the Sticky.
Sam1911
Moderator Emeritus
Well, thank you heartily for discussing this. I feel like I understand the odds & stakes better now than I did a couple of days ago.
BullfrogKen
Moderator Emeritus
Kleanbore said:
Well it appears the several Judges presiding over the Bias case allowed them. And the issue was key to the prosecution which disputed the death was a suicide. Just because the prosecution got it in doesn't mean the defense can't. There are a whole host of occasions when the state establishes a basis that years later becomes an opportunity for the defense to exploit.
Kleanbore said:
Really?
The science has only been around for about 70 years.
http://www.nij.gov/training/firearms-training/module02/fir_m02_t15.htm
Various Firearms Examiners and labs had been using the technology long before the FBI designed a nationwide training program. If somebody is going to successfully challenge the science, they better get around to doing it soon.
We'll look at another case. This is the case of Commonwealth v Briggs.
http://caselaw.findlaw.com/pa-supreme-court/1553074.html
On March 31, 2004 Daniel Briggs shot and killed two Bradford County, PA deputies who came to his home to serve some warrants on him and members of his family. Deputies Christopher Burgert and Michael VanKuren found Briggs when he was in his junkyard pulling radiators from cars. He used a Smith and Wesson .357 magnum revolver to shoot them at close range as they approached Briggs to take him into custody.
He fired all the rounds in the revolver, hitting both Deputies. Deputy VanKuren was shot twice, and Deputy Burgert three times. VanKuren fell to the ground, paralyzed as one round hit his spinal cord, and quickly bled to death. Burgert fell to the ground from the force of a round hitting his vest and penetrating his abdomen. The other entered the right side of his chest, pierced both lungs and exited the left. Briggs then put the empty gun to Deputy Burgert's face and demanded he put his service pistol (a .40 caliber Glock) on the ground. Briggs picked it up and pointed it at him. Burgert reached for it and the gun discharged, hitting Burgert in the thigh.
Briggs ran with both guns into his house, changed his clothes, and fled. According to the medical examiner, Deputy Burgert died within minutes from asphyxiation.
Just as a sidenote, I often make the statement that people are often hit in the hands and arms in gunfights. Both deputies sustained gunshot wounds to their hands and forearms in this case.
This case does not involve handloads in the sense you and I think of them. But it does involve testing of a handgun used at the scene, taken when Briggs fled. Police conducting the manhunt thought the murder weapon might be a long gun because the nature of the injuries were so severe, especially considering the Deputies both wore ballistic vests.
Briggs was captured the next day a mile from his home, without the gun. He would not tell the State Police Troopers where it was because he was a convicted felon who could not possess firearms. The actual gun used was not determined until three months later when it was found by two boys chasing a skunk through the woods. They found it under a pile of rocks along with Deputy Burgert's Glock. Found "secreted in a cavity underneath the rock were four unfired bullets, three of which were .357 Magnum cartridges and one which was a .38 caliber cartridge"
Subsequent ballistics tests performed on both recovered weapons indicated that the bullet lodged in Deputy Burgert's bulletproof vest and the one imbedded in the vertebrae of Deputy VanKuren's lower back came from the Smith and Wesson .357 Magnum revolver. N.T. Trial, 1/30/06 MS, at 112. The tests further established that the bullet taken from Deputy Burgert's thigh was fired from the Glock pistol. Id. In addition, ballistics tests showed that seven Winchester .357 Magnum shell casings recovered from various places on the ground in the Briggs' junkyard were discharged from the Smith and Wesson .357 Magnum revolver. N.T. Trial, 1/30/06 MS, at 101-102, 113
The actual nature of the rounds used in the killing were unknown. The revolver was emptied of all it's rounds in the fight. The Winchester casings found around the junkyard might have been those Briggs used in the fight, but he wasn't talking about it.
It was important to the state, though. Extensive examinations determined that the rounds used were factory-produced .357 magnum rounds of a nature that Winchester factory no longer makes. The plant was contacted, but they had none. So much for the case that factories "put away" samples from each lot and keep them forever.
The State Police's Ballistic Lab developed rounds substantially similar to what the factory once produced. The testing showed that the shots Briggs fired with the .357 magnum were made at very close range. This issue was so important that it was considered upon appeal. Because you see, this was a 1st degree murder case, and the Commonwealth sought the death penalty. It had to convince the jury Briggs actually intended to murder Deputies VanKuren and Burgert, and their deaths weren't merely the result of gunplay without specific intent and malice to kill.
Thus, in order for a first-degree murder conviction to be sustained, the Commonwealth is required to introduce evidence at trial which establishes beyond a reasonable doubt the following factors: (1) a human being was unlawfully killed; (2) the accused bears responsibility for the killing; and (3) the accused acted with malice and a specific intent to kill. Commonwealth v. Reed, --- Pa. ----, at ----,990 A.2d 1158, 1161 (2010); 18 Pa.C.S.A. §§ 2501, 2502(a).
Although Appellant denied in his declaration at the jail infirmary that he meant to kill the deputies, the specific manner in which he shot each of them belies this claim. Using a Smith and Wesson .357 Magnum revolver, Appellant shot, at close range, Deputy VanKuren twice in the chest and Deputy Burgert once in the chest and once in the abdomen. The chest and abdomen house the human body's chief circulatory and digestive organs, as well as a network of vital arteries and veins which supply them and, thus, are vital areas of the body. Appellant's deliberate and repeated use of a firearm to shoot the deputies in those areas clearly establishes his specific intent to kill both men with malice. The evidence was therefore sufficient to support the jury's conviction of Appellant for two counts of first-degree murder.
Although Appellant denied in his declaration at the jail infirmary that he meant to kill the deputies, the specific manner in which he shot each of them belies this claim. Using a Smith and Wesson .357 Magnum revolver, Appellant shot, at close range, Deputy VanKuren twice in the chest and Deputy Burgert once in the chest and once in the abdomen. The chest and abdomen house the human body's chief circulatory and digestive organs, as well as a network of vital arteries and veins which supply them and, thus, are vital areas of the body. Appellant's deliberate and repeated use of a firearm to shoot the deputies in those areas clearly establishes his specific intent to kill both men with malice. The evidence was therefore sufficient to support the jury's conviction of Appellant for two counts of first-degree murder.
So we see here a death penalty conviction, upheld upon appeal, where the Commonwealth made a case with ammunition,
- unknown by the state because Brigg's wouldn't disclose it;
- determined to be factory ammunition that was no longer produced;
- with ballistics testing presented in front of a jury using ammunition the forensics lab developed that was substantially similar
Furthermore, what I found especially interesting here is on appeal Briggs filed a “Denial of Appellant's motion for physical testing of pieces of evidence”.
This gets a bit convoluted, but Briggs filed an oral motion, through counsel, in pre-trial hearings to have some items in evidence forwarded to a private forensics laboratory - R.J. Lee Group, Monroeville – so they could conduct testing on it. Among these was one of the rounds found with the gun hidden under the rock.
The Commonwealth responded by requesting the defense make an offer as to why the requested testing was material to his defense.
What happened next was stupid on Briggs’ part.
Appellant refused, stating:
Your Honor, we believe that under Rule 572(b) [sic] subsection (1)(f), that we're permitted to examine any tangible evidence. It's a mandatory discovery. And that's our position. We-we have discussed whether it is our burden to come forth and to tell you in open court before the Commonwealth as to the reason behind that. I will tell you that it is Mr. Lepley (Brigg’s attorney) and my opinion that to do that would divulge our theory of the case, and that we do not believe that that's in the interest of our defendant to do that. And at this point in time, our request is-as you know, the one in-regarding Mr. Wently looking at the cartridges and taking ‘em apart. The other one is to have these items forwarded to the R.J. Lee group for examination. That's our offer. We believe that we're entitled to do that under the applicable discovery rules.
Your Honor, we believe that under Rule 572(b) [sic] subsection (1)(f), that we're permitted to examine any tangible evidence. It's a mandatory discovery. And that's our position. We-we have discussed whether it is our burden to come forth and to tell you in open court before the Commonwealth as to the reason behind that. I will tell you that it is Mr. Lepley (Brigg’s attorney) and my opinion that to do that would divulge our theory of the case, and that we do not believe that that's in the interest of our defendant to do that. And at this point in time, our request is-as you know, the one in-regarding Mr. Wently looking at the cartridges and taking ‘em apart. The other one is to have these items forwarded to the R.J. Lee group for examination. That's our offer. We believe that we're entitled to do that under the applicable discovery rules.
The trial court denied the motion. I’ll let you read it for yourself.
As noted above, Appellant refused at the hearing to offer a reason why the specific testing he requested was necessary to his defense. Further, even after the trial court indicated at the hearing that it would be denying the motion, Appellant's counsel reiterated his refusal to make an offer of proof regarding the reason for the request, stating he would not be calling his firearm expert to testify what he would be doing with the items. Additionally, he admitted to not having anyone from the R.J. Lee Group present to testify and explain what testing that organization would be conducting. N.T. Hearing, 10/7/05, at 6-7. Under these circumstances, the trial court denied the motion for testing, citing this failure to lay a proper foundation for the discovery request, and its concern for the potential destruction of evidence, i.e., “the ‘breaking down’ of cartridges.” Trial Court Opinion, 10/12/05, at 5. According to the trial court, it had, in fact, previously granted permission for Appellant to conduct tests on the evidence which could possibly consume the evidence, provided that a representative of the Commonwealth was present for oversight. Trial Court Opinion, 7/6/07, at 5. Appellant presented no rationale at the hearing as to why this requirement could not be met during the conduct of the testing he requested.
So, Briggs could have even had his own private lab conduct tests on the ammunition found and other articles, provided someone from the Commonwealth was present. He decided not to do it, and later changed his mind. What I find interesting though is the judge actually granted Brigg’s defense team permission to take evidentiary ammunition to a private lab for examination. They were even prepared to let him conduct tests that might destroy it.
How interesting.
Anyway Pennsylvania got its conviction, and the death sentence. The death sentence was awarded because the state could prove Briggs murdered the Deputies, shooting them in their vital organs at close range, an act that by statute in Pennsylvania is on it’s face is indicative of specific intent and malice. They showed it in part through circumstantial evidence – Gun Shot Residue testing that the Commonwealth’s Forensics Lab developed from ammunition that was substantially similar to Winchester’s obsolete ammunition.
Why is this significant? Because the court permitted a method used by the Forensics Lab to develop ammunition that was substantially similar, but not exactly similar, to the rounds used in the Deputies deaths. Had it not, Brigg’s might not be facing the death penalty.
I've got to run, but need to comment here.BullfrogKen said:
What is significant here is that --
[1] The forensics lab was able to identify the particular factory ammunition fired.
[2] At time the manufacturer no longer had samples. But don't you think that the folks at Winchester were able to provide detailed information regarding the components for and specification of that ammunition?
[3] And therefore the examiners would have been able to construct exemplar ammunition based on detailed information from the manufacturer, an uninvolved third party.
fiddletown
BullfrogKen
As has been pointed out before, even factory ammunition makers sometimes changes powders on some ammo from lot to lot. There would be little chance to get "detailed" info from just spent casings.
Apparenly not.
BullfrogKen
As has been pointed out before, even factory ammunition makers sometimes changes powders on some ammo from lot to lot. There would be little chance to get "detailed" info from just spent casings.
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Ken, there is no question that GSR distance testing has been around for a long time, is widely accepted by experts in the field, and is routinely used in forensic investigations and in criminal and civil court cases.
GSR testing was used in one case cited by fiddletown that ended in acquittal.
My comment that that might change at some point in time in some jurisdictions is based on the fact that GSR pattern tests happen to show up on a list of outlining a number of things that have not yet been validated as acceptable under the Daubert rules.
Nothing has happened yet that I know of, and the possibility of a change at a later was only mentioned for completeness.
Commonwealth v. Briggs is interesting, but rulings in trial courts do not constitute legal precedent. Further, I'm not able to judge whether showing that rounds are "substantially similar" would suffice for all purposes, while it might well serve the purpose for showing beyond a reasonable doubt that similar rounds from that the rounds could do the damage and that the rounds were fired "at close range". The point is that the jury was presented with evidence. Depending upon the source of the exemplar material, that will not necessarily be allowed.
It occurs to me that I may have introduced some confusion here by referring to factory manufacture in an ISO certified facility. Such product will meet the requirements for admissibility; it might be the only thing that a defendant might be able to get introduced if the evidence is challenged; and it is what I would want to use; but that's not the underlying requirement.
Fiddletown has put it better in a number of posts o this subject.
The real requirement has to do with the independent verifiability of the composition, consistency, and origin of each item introduced and of their relationship to the items said to have been used. Again, this isn't something that is peculiar to ammunition; it could apply as well to insulating foam that no longer exists.
As a matter of fact, it may benefit us to use something else for discussion, partly because, as handloaders, we will not believe that anything we do would not be very close to perfect, and partly because many gun people simply cannot understand that their word in a self defense case will not be accepted at face value.
I'll go back to lengthy discussions I had on the subject of ensuring admissibility. Here are some of the points came up repeatedly:
These are real. The discussions included attorneys, auditors, data integrity experts, IT folks, process analysts, and others who had a job to do.
I think you can probably see from that why I jumped a step by going to ISO certification. By the time we had finished, we were essentially talking about that sort of thing.
Will the data developed by the State Police Ballistic Lab meet the requirements? You bet (depending upon the intended purpose of the evidence), if they followed their carefully developed procedures and made no errors. It is their business to know how to manage and control evidence.
And the fact that they were not trying to demonstrate something about the contents of home-made sauerkraut fermented by a defendant is a key point, also.
GSR testing was used in one case cited by fiddletown that ended in acquittal.
My comment that that might change at some point in time in some jurisdictions is based on the fact that GSR pattern tests happen to show up on a list of outlining a number of things that have not yet been validated as acceptable under the Daubert rules.
Nothing has happened yet that I know of, and the possibility of a change at a later was only mentioned for completeness.
Commonwealth v. Briggs is interesting, but rulings in trial courts do not constitute legal precedent. Further, I'm not able to judge whether showing that rounds are "substantially similar" would suffice for all purposes, while it might well serve the purpose for showing beyond a reasonable doubt that similar rounds from that the rounds could do the damage and that the rounds were fired "at close range". The point is that the jury was presented with evidence. Depending upon the source of the exemplar material, that will not necessarily be allowed.
It occurs to me that I may have introduced some confusion here by referring to factory manufacture in an ISO certified facility. Such product will meet the requirements for admissibility; it might be the only thing that a defendant might be able to get introduced if the evidence is challenged; and it is what I would want to use; but that's not the underlying requirement.
Fiddletown has put it better in a number of posts o this subject.
The real requirement has to do with the independent verifiability of the composition, consistency, and origin of each item introduced and of their relationship to the items said to have been used. Again, this isn't something that is peculiar to ammunition; it could apply as well to insulating foam that no longer exists.
As a matter of fact, it may benefit us to use something else for discussion, partly because, as handloaders, we will not believe that anything we do would not be very close to perfect, and partly because many gun people simply cannot understand that their word in a self defense case will not be accepted at face value.
I'll go back to lengthy discussions I had on the subject of ensuring admissibility. Here are some of the points came up repeatedly:
- "That wouldn't meet the requirements, because he or she (being the person whose case requires the acceptance of the evidence) created the material.
- "...because he or she controlled the process by which the material was created.
- "...because the process has not been independently tested.
- "...because quality checks were not independently performed.
- "...because complete records have not been maintained.
- "...because the records have not been independently maintained in a manner that ensures that there nothing has been lost, taken, added, or changed.
- "...because there is no log of changes to the process that may have occurred.
- "...because the consistency of the output has not been independently re-tested after each process change.
- (and so on)...
These are real. The discussions included attorneys, auditors, data integrity experts, IT folks, process analysts, and others who had a job to do.
I think you can probably see from that why I jumped a step by going to ISO certification. By the time we had finished, we were essentially talking about that sort of thing.
Will the data developed by the State Police Ballistic Lab meet the requirements? You bet (depending upon the intended purpose of the evidence), if they followed their carefully developed procedures and made no errors. It is their business to know how to manage and control evidence.
And the fact that they were not trying to demonstrate something about the contents of home-made sauerkraut fermented by a defendant is a key point, also.
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I thought the National Institute of Justice, Firearm Examiner Training website might be resourceful to this thread's discussion, particularly Module 12 that's titled, "Gunshot Residue and Distance Determination" - http://www.nij.gov/training/firearms-training/module12/fir_m12.htm
Distance Determination - http://www.nij.gov/training/firearms-training/module12/fir_m12_t06.htm
Distance Determination - http://www.nij.gov/training/firearms-training/module12/fir_m12_t06.htm
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The above referenced link provides very interesting technical information about how GSR testing is performed today to estimate distance, and about the limitations of the process. It does not provide any information relevant to the subject at hand in this discussion (as attorney fiddletown has explained, what happens in a courtroom often differs from what is done in a laboratory, and that difference is largely dependent upon the intended use of the test results), or to the original question posed by the OP.
For those interested, the link also provides information on a number of other subjects that have come up from time to time: tool-mark identification (that has various applications; often, it comes up in the answer to the question, how would anyone know that a round had been reloaded, or loaded from new components, by someone outside of the factory) and the analysis of bullet markings to identify the forearm from which bullets have been fired.
The same information is contained in widely used textbooks, which are costly indeed. Thanks for the links.
For those interested, the link also provides information on a number of other subjects that have come up from time to time: tool-mark identification (that has various applications; often, it comes up in the answer to the question, how would anyone know that a round had been reloaded, or loaded from new components, by someone outside of the factory) and the analysis of bullet markings to identify the forearm from which bullets have been fired.
The same information is contained in widely used textbooks, which are costly indeed. Thanks for the links.
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