Carry guns and modification.

[Frank Ettin]

Please tell me if I am wrong to help me understand better:
1. So, "intentionally pulled the trigger in defense" --- Is the pistol modification of no issue if every party agree that the shooting was intentional and was in self defense.
2. If the opposite side argues that it was not intentional; instead it was an accidental shooting (not in self defense) --- Is this when the pistol modification could lead to more trouble?...

That is one potential way it can matter.

In addition, consider that you are on trial for aggravated assault -- you shot someone causing him serious injury. Your defense is that you reasonably believed that the person you shot was an imminent lethal threat, and, therefore, your act of violence was justified as self defense.

To support your claim that you reasonably believed your life to be in imminent danger you testify about what happened. You explain on the witness stand what happened -- what you saw and why you believed you were at risk of immediate, lethal injury. One way in which the prosecutor will try to overcome your claim of justified self defense will be to attempt to discredit your testimony and challenge the reasonableness of you perception that you were in imminent jeopardy. Is there any evidence which might help the prosecutor to do that -- any evidence which might cause a juror to perhaps doubt the reasonableness of your claimed perceptions?

One possibility is a very light trigger. Look at post 52. Might it not affect how the jury evaluates your evidence and tries to decide if you really did reasonably believe that you were in imminent jeopardy if a prosecution expert has testified that it would be reckless to carry a gun with such a light trigger for self defense? Or you put fancy grips with the Punisher skull on your gun and jurors wonder why you identify with a comic book vigilante.

Juror impressions can be a wild card and are important. That's why any lawyer wants his client to appear in court neatly dressed and well groomed. We know from post verdict juror interviews that in the Harold Fish case (discussed in some of the threads I linked to in post 16) that at least one juror who voted to convict him was bothered by his use of JHP ammunition.

It is important to understand the nature of a claim of self defense. Because you will have admitted the elements of the crime you're on trial for, it's extremely important that you favorably impress the jury as honest, forthright, reasonable and responsible.

Several years ago a lawyer by the name of Lisa Steele wrote an excellent article for lawyers on defending a self defense case. The article was entitled "Defending a Self Defense Case" and published in the March, 2007, edition of the journal of the National Association of Criminal Defense Lawyers, The Champion. It was republished in four parts, with permission, on the website, Truth About Guns. The article as republished can be read here: Part 1; Part 2; Part 3; and Part 4.

As Ms. Steele explains the unique character of a self defense case in Part 1:

...Self-defense is all-or-nothing. In order to establish it, the client has to admit being at the crime scene, with a weapon, which he or she used to intentionally harm the aggressor. The client has to admit that he injured the aggressor. The client has to convince the jury that if a reasonable person had been standing in his shoes, the reasonable person would have done the same thing. In effect, the aggressor invited his fate by threatening or inflicting serious bodily harm, or by threatening to kill the client.

In one fell swoop, the client has given up alibi and mistaken identity defenses. He or she has given up any claim that the wound was made by accident. Generally, the client must give up provocation (heat of passion or extreme emotional disturbance). Logically, provocation implies an unreasonable response to a situation, and mitigates murder to manslaughter. Self-defense implies a rational response to a very dangerous situation and, if successful, results in an acquittal. Similarly, the client must give up claims of mental illness or insanity and defenses based on intoxication or drug use....

 

[Spats McGee]

. . . . He told me if I wanted to test it I must first violate the law in question.

Then I must allow myself to be convicted under that law and be prepared to go to federal prison.

He would then appeal the conviction on the merits of the argument.

If I won it he guessed it would cost me about $250K in legal fees. If I lost it would cost me about $250K in legal fees and I would likely spend ten years in federal custody.

My point: even if you are right anything that becomes an issue in court is going to cost you. It may simply be financial. It may be enough to sway a jury and result in a conviction.

Yep. If you get into a gunfight, you could very well be put into a situation of "even if you win, you lose." You might not be convicted. You might beat the civil lawsuit. And you might wind up owing a lawyer a whole bunch of money.

That's one of the reasons that I've mentioned experts several times in this thread. To be honest, I don't know what a firearms expert might charge to: (1) review the police reports; (2) visit with you; (3) examine the State's evidence; (4) run independent tests; (5) produce a report for your lawyer; and (6) fly in, stay in a hotel, and testify at your trial, . . . . but I do not think it would be hard to hit $10-15K, based on what I know about accident reconstruction experts (which I admit isn't that much).

 

[Bartholomew Roberts]

We know from post verdict juror interviews that in the Harold Fish case (discussed in some of the threads I linked to in post 16) that at least one juror who voted to convict him was bothered by his use of JHP ammunition.

Just to drive home that "jurors are wildcards" point, in the same breath where the juror explains she voted guilty in part because of Fish's decision to use JHPs, she also states she found Fish's testimony honest and reliable.

When you see bizarre results like those as a result of commonly used self defense ammunition used by virtually all agencies and most homeowners, it is little wonder people are reluctant about more detailed modifications that are more difficult to explain to jurors.

 

[Lohman446]

When you see bizarre results like those as a result of commonly used self defense ammunition used by virtually all agencies and most homeowners, it is little wonder people are reluctant about more detailed modifications that are more difficult to explain to jurors.

I'm reluctant to carry a 10MM unless I can point to the fact that I am carrying it where I am likely to encounter a threat from a wild animal and am carrying ammunition suited to that threat.

I don't need to hear some prosecuting attorney talk about a relatively uncommon round "so powerful the FBI abandoned it"

 

[Frank Ettin]

...When you see bizarre results like those as a result of commonly used self defense ammunition used by virtually all agencies and most homeowners, it is little wonder people are reluctant about more detailed modifications that are more difficult to explain to jurors.

Very true. And with regard to gun modifications, we can discuss all day whether this modification or that modification could hurt you in court and under what circumstances, but the possibility that any sort of modification might help you in court is vanishingly small.

BTW, I need to amend a comment in post 74. Bartholomew Roberts is also a lawyer.

 

[Boncrayon]

Carry guns and modification

Carry guns and modification: No weapon modification has ever been used against a defendant in court for a deliberate shooting. If you did it intentionally it doesn't matter what you used the case be aimed whether or not you were justified in using deadly force, not what you used to exact that force. But don't let that get in the way of you hearsay and Internet lawyer rumors.

 

[Frank Ettin]

....No weapon modification has ever been used against a defendant in court for a deliberate shooting....

How do you know?

...If you did it intentionally it doesn't matter what you used the case be aimed whether or not you were justified in using deadly force, not what you used to exact that force....

Garbage as has been explained a number of times in this thread.

...Internet lawyer rumors

Spats McGee, Bartholomew Roberts, and I are not Internet lawyers. We're real lawyers.

On the other hand, in post 58 you claimed:

There are new laws that protect concealed carry modifications for self defense....

But when asked to cite those laws you haven't done so. Apparently no such laws exist, so you told us all a falsehood. What does that make you?

 

[Spats McGee]

Carry guns and modification: No weapon modification has ever been used against a defendant in court for a deliberate shooting. If you did it intentionally it doesn't matter what you used the case be aimed whether or not you were justified in using deadly force, not what you used to exact that force. But don't let that get in the way of you hearsay and Internet lawyer rumors.

What, pray tell, is your basis for these claims? Have you done the relevant research into statutes and the caselaw?

Or are you, as I suspect, simply pulling your claims from thin air?

 

[849ACSO]

What the folks who keep spouting that nonsense keep forgetting is that they aren't the ones who decide it their act of violence against another was justified. That decision will be made by others -- the DA, the grand jury, or, if you're unlucky, the jury at your trial. Your act of violence is not justified unless/until they decide not to prosecute or convict you.

Mr. Ettin,

With regard to your credentials as a lawyer (an estate/probate specialist, IIRC), I appreciate your "legal expertise", but to say that's nonsense, is, well, nonsense. Anyone who understands the legal system knows the decision of justification will be made by the state's attorney, grand jury, or possibly a petit jury at trial. Regardless, if that system(s) determines your actions of deadly force are justified, then they are just that, justified. Sure, it's still possible to find yourself in a wrongful death civil suit, but highly unlikely, especially if the criminal justice system has determined you were justified. Even if that happens, the finding of justification will be presented as evidence, probably the strongest evidence one could have.

But that has nothing to do with the original question......

That has EVERYTHING to do with the OP's question. It's not the parts/gun/caliber/weapon of choice/opportunity that determine if you're "ok", it's the justification, or lack thereof.

I can appreciate you lawyers arguing the "fine points of the law", and it's understood that your fate will ultimately be determined by others. That said, after 22 years of being a law enforcement officer, and seeing numerous murders and assaults (some justified, some not), only on the internet have I ever even heard of whether or not the weapon, or anything about it had ANY BEARING on justification.

Just my EXPERIENCE. I'm not an advocate of making modifications to anything you plan on carrying for SD that would compromise SAFETY, but "reasonable" modifications to make it better for use by the end user isn't unreasonable.

 

[849ACSO]

Just to drive home that "jurors are wildcards" point, in the same breath where the juror explains she voted guilty in part because of Fish's decision to use JHPs, she also states she found Fish's testimony honest and reliable.

When you see bizarre results like those as a result of commonly used self defense ammunition used by virtually all agencies and most homeowners, it is little wonder people are reluctant about more detailed modifications that are more difficult to explain to jurors.

That's a statement that I can get behind. I have seen it firsthand, and juries/jurors are fickle. I have watched cases that I wasn't intimately involved in go through trial, and watched the jury hand down a verdict that was 180 degrees off of what I saw and heard in the courtroom.

 

[Bartholomew Roberts]

Just my EXPERIENCE. I'm not an advocate of making modifications to anything you plan on carrying for SD that would compromise SAFETY, but "reasonable" modifications to make it better for use by the end user isn't unreasonable.

The thing is, the same juror that found Mr. Fish honest and reliable as a witness found his decision to use 10mm JHP unreasonable to an extent she voted to convict him despite believing his testimony (according to her own words). That is who will decide whether your modification was "reasonable."

And if you end up in a criminal trial, they'll have the full weight of the state shining the worst light possible on any decision you've made. While jurors, who may not be well informed, decide whether that modification was reasonable or not.

 

[Lohman446]

Because it's never been argued at trial by the prosecutor that it wasn't justified only to have the jury decide it was right? The system is always based on limited evidence and the word of the shooter. It's never been politically steered or had the justice department look into it after the local system already determined it was justified. Why have a court system? I mean the prosecutor obviously knows and there should be no purpose for an adversarial method of determine guilt or innocence in front of a jury if ones peers or such.

 

[Frank Ettin]

With regard to your credentials as a lawyer (an estate/probate specialist, IIRC),....

No, you don't recall correctly.

...Anyone who understands the legal system knows the decision of justification will be made by the state's attorney, grand jury, or possibly a petit jury at trial. Regardless, if that system(s) determines your actions of deadly force are justified,...

Yes, that's the point: The "system" decides, not you. So how does the "system" decide? But reviewing all factors anyone in the the decision making might consider material. And your act of violence isn't justified unless/until the "system" says it is (or that it's sufficiently likely that it is that the "system" will not pursue prosecution).

And that is what makes the statement:

If you use deadly force upon someone, and it is justified under the law, it doesn't matter if that force comes in the form of a ball bat, brick, or custom pistol. Justified is justified....

ridiculous. Third parties will be deciding the question of justification, and among the factors which have a potential for influencing that decision might well be the weapon used, including possible modifications to the weapon.

As to whether the weapon used could have an influence on a jury's decision see Are you familiar with the research on jury behavior, such as this article, "Will it Hurt me in Court", by our own Dr. Glenn E. Meyer (a moderator here and retired professor of psychology) and published in the professional journal, The Jury Expert?

 

[849ACSO]

As to whether the weapon used could have an influence on a jury's decision see Are you familiar with the research on jury behavior, such as this article, "Will it Hurt me in Court", by our own Dr. Glenn E. Meyer (a moderator here and retired professor of psychology) and published in the professional journal, The Jury Expert?

I am not familiar, but always eager to soak up some info, so I will be reading it.

Originally Posted by 849ACSO
With regard to your credentials as a lawyer (an estate/probate specialist, IIRC),....

No, you don't recall correctly.

Healthcare law. I knew it had NOTHING to do with criminal law, but had to do some research.



Thanks!

 

[849ACSO]

The thing is, the same juror that found Mr. Fish honest and reliable as a witness found his decision to use 10mm JHP unreasonable to an extent she voted to convict him despite believing his testimony (according to her own words). That is who will decide whether your modification was "reasonable."

And if you end up in a criminal trial, they'll have the full weight of the state shining the worst light possible on any decision you've made. While jurors, who may not be well informed, decide whether that modification was reasonable or not.

Agreed. See my post regarding jury/juror fickleness.

 

[849ACSO]

Yes, that's the point: The "system" decides, not you. So how does the "system" decide? But reviewing all factors anyone in the the decision making might consider material. And your act of violence isn't justified unless/until the "system" says it is (or that it's sufficiently likely that it is that the "system" will not pursue prosecution).

And that is what makes the statement:
Quote:
Originally Posted by 849ACSO
If you use deadly force upon someone, and it is justified under the law, it doesn't matter if that force comes in the form of a ball bat, brick, or custom pistol. Justified is justified....

ridiculous. Third parties will be deciding the question of justification, and among the factors which have a potential for influencing that decision might well be the weapon used, including possible modifications to the weapon.

Both of those statements say the same thing with different words, so how is one ridiculous and one not? Maybe because a lawyer belched out one and a law enforcement officer the other?

 

[Frank Ettin]

Healthcare law. I knew it had NOTHING to do with criminal law, but had to do some research.

However, I do have some grounding in a variety of legal topics, including a good deal of education in criminal law. In addition, I've worked as an assistant instructor with Massad Ayoob for a MAG-40 class in Sierra Vista, Arizona. When Mas quoted me his column in the August, 2010, issue of Combat Handguns on the inadvisability of falsely requesting medical attention, he wrote (pg 9):

...This whole 'strategy' was effectively shot down in flames by Frank Ettin, a retired attorney with more than 30 years or experience in legal liability reduction issues. Bear in mind that this is a man who knows his guns: Frank has extensive experience in firearms training, handgun competition in several formats, and concealed carry. He has deeply studied the law and the caselaw as it relates to defensive use of firearms and deadly force....

 

[Frank Ettin]

Yes, that's the point: The "system" decides, not you. So how does the "system" decide? But reviewing all factors anyone in the the decision making might consider material. And your act of violence isn't justified unless/until the "system" says it is (or that it's sufficiently likely that it is that the "system" will not pursue prosecution).

And that is what makes the statement:
Quote:
Originally Posted by 849ACSO
If you use deadly force upon someone, and it is justified under the law, it doesn't matter if that force comes in the form of a ball bat, brick, or custom pistol. Justified is justified....

ridiculous. Third parties will be deciding the question of justification, and among the factors which have a potential for influencing that decision might well be the weapon used, including possible modifications to the weapon.

Both of those statements say the same thing with different words, so how is one ridiculous and one not? Maybe because a lawyer belched out one and a law enforcement officer the other?

Your statement is nonsense because you leave out the key fact that the weapon used or modifications to the weapon can influence whether or not the use of force is decided to be justified by those responsible for the decision.

I know law enforcement officers who can understand that concept. I guess you can't.

 

[849ACSO]

The weapon doesn't make or break justification. Perhaps you, with all of your legal wisdom, fail to see, understand, or admit that fact.

 

[Lohman446]

In a perfect world where everything is cut and dry the weapon should not matter. In a world where a prosecutor is trying to figure out state of mind, where a juror is trying to pick between expert testimony and weigh the limited conflicting testimony the weapon may matter. Justified or not is not always obvious