OldMarksman
Staff
The following was posted on The High Road in 2011, and it was recently cited, along with a post by Spats McGee, in an on-line article by Massad Ayoob in Backwoods Home Journal.
_________________________
Introduction and Overview
One of the most frequently recurring subjects on THR has to do with the whether it is prudent to carry hand loaded ammunition for self defense. It is quite evident that it is also one of the most misunderstood subjects.
There have been pages and pages of discussion on this subject. Much of the material has been repetitive. We will try to summarize the salient points here.
To start out, we will emphasize that there is nothing unlawful about the use of hand-loaded ammunition in any jurisdiction of which we are aware. The issues have to do primarily with evidence that may be needed for a defense of justification that may, depending upon the circumstances, be required after a self-defense shooting.
We often hear the statement "a good shoot is a good shoot". That's true enough, but it would be more accurate to say "a shooting will either be judged to have been justified, or it will not". One can be convicted of having used deadly force without justification even if he or she, having had no part in causing a violent encounter, and having had no alternative, employed deadly force quite appropriately and only as a last resort to defend his or her life--if the evidence available after the fact to support a defense of justification is, on balance, insufficient.
The question of whether to carry hand loads involves a number of legal issues. We have worked with attorneys Frank Ettin and Spats McGee to address the issue for our members.
Defending the Self Defense Case
If one does employ deadly force against another and claims self defense, he or she will have to provide at least some evidence on each of the elements of self defense for a jury to be given instructions to consider whether the act was justified or not.
If enough of the evidence is unclear or contradictory, the case could ultimately hinge upon any one piece of evidence, or upon the absence of any one piece.
The Potential Importance of Gunshot Residue Evidence
In some instances, testimony about, and other evidence relating to, the distance at which a shooting took place may become crucial to the triers of fact. Gunshot residue patterns are routinely used to estimate the distance (or at least to establish whether the distance was likely to have been less than or greater than a particular threshold). Should that evidence differ from the account given by the defender, his or her credibility and other judgments regarding the case may come into question.
The Rules of Evidence
Under some such circumstances, it may prove crucial to the defense to be able to put into evidence its own test results based on the ammunition used by the defender. Under the rules of evidence, the prosecution has the right to object to the introduction of such evidence, and they can be reasonably expected to do so if the evidence would benefit the defense. The decision rests with the trial court judge. For various reasons, depending in part upon the purpose for which the evidence is to be introduced, those results, if challenged, will be most unlikely to be admitted into evidence if the ammunition used was assembled by the defendant. That is the crux of the issue at hand.
In any trial court, civil or criminal, the judge is the gatekeeper of evidence, and appellate courts typically afford the judge a high degree of deference when it comes to determining which evidence gets in, and which is excluded.
For purposes of this discussion, we will stick with the Federal Rules of Evidence. While most of these cases are governed by state law, many states use the Federal Rules as a model, and they'll give us some common ground from which to work.
Generally speaking, all relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible. Fed. R. Evid. 402.
If it's relevant and not otherwise excluded, it gets in. If it's not relevant, it doesn't.
But (and this is very key to our discussion here) GSR is specialized enough that it is considered "expert testimony". That means that Rule 702 governs it:
So, if scientific or specialized knowledge will help the jury, an expert's opinion is admissible if:
(1) the testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable principles and methods, and
(3) the witness has applied the principles and methods reliably to the facts of the case.
You have to have all three to get the testimony of the shooter's expert in front of the jury. If the prosecutor files a Motion in Limine prior to trial, asking that the evidence be excluded, he or she will simply argue that the opinion of the handloading defendant's expert is based on unreliable data. Specifically, what the prosecutor is saying is that, because the data belongs to the defendant, it is inherently unreliable. It is reasonable to assume that there's a good chance that nobody was around when the cartridges were loaded, so there's no independent witness. If there is a witness, it's probably a good friend of the defendant. As a result, any data on which the opinion is based is suspect.
If the motion in limine succeeds, there can be no mention of the defendant's expert at trial, and the jury will never hear about it.
A defender’s best chance will exist when he or she has used quality commercial ammunition produced in a factory. The independently conducted testing and inspection steps, the quality assurance and test data, the equipment calibration records, and the unquestioned custody of the records, should meet any challenge regarding the reliability of the evidence
Precedence
There have been those who, apparently believing that a case involving a trial that concerned charges about a particular type of crime must be cited for a legal conclusion to be drawn, have insisted on seeing an actual self defense case that was decided on the basis of the use of hand loaded ammunition. That belief simply does not reflect the way the law works, and anyone who insists on believing that it does does so at his own peril and would benefit from a consultation with an attorney.
All trial attorneys know that. They face precedence questions from seemingly unrelated cases all the time. The precedence issues at hand here have to do with the use of gunshot residue (GSR) patterns to establish distance, which can apply in any kind of shooting case, and the rules of admissibility for forensic scientific trace evidence, which do apply in all kinds of cases involving such evidence.
The rules of admissibility cited above are based upon US Supreme Court rulings. The rules pertaining to evidence regarding expert witness testimony in criminal trials in many states are based on a SCOTUS ruling involving a civil trial that concerned pharmaceuticals. The rules in many other states stem from a SCOTUS ruling more than four score years ago that had to do with polygraph test results. Neither had to do with hand loads, ammunition, or self defense claims, but either of them will govern the admissibility of relevant forensic scientific trace evidence of any kind in any kind of trial, civil or criminal.
One important point that is often overlooked is that the rules of evidence for criminal trials in Federal courts and in most state courts are the same rules of evidence that apply in civil matters. That is one of the reasons that attorneys may point to a civil matter in reference to the admissibility of a particular piece of evidence in a criminal matter.
Finding specific precedent involving hand loads is really unnecessary. The fact that precious little exists, for reasons discussed below, does not diminish the predictive value of precedent in other cases involving expert testimony, even if such cases do not specifically involve self-defense shootings or hand loads.
It is important to understand how difficult it is to find a case involving such particularized facts. In order for a case involving hand loads to have any value for our discussion:
(1) The defendant would have to be charged with a crime;
(2) The use of hand loads would have to be an issue of contention at trial, and the evidence excluded (if the evidence is not excluded, then the defendant cannot raise that issue on appeal);
(3) The defendant would have to be convicted (because the prosecutor almost never gets to appeal);
(4) The defendant would have to raise the admissibility of the hand load evidence on appeal;
(5) The court hearing the appeal would have to render a decision in which the question of admissibility is actually discussed; AND
(6) The appellate court would have to publish the decision.
If any one of those factors is absent, then it becomes quite likely that that: (a) attorneys on this board or elsewhere will never hear about the case; or (b) there won't be enough of the right information in the decision to offer any guidance on the issue.
For these reasons, attorneys must base their judgment on other predictive information. That is not unusual in the practice of law.
What to Ask an Attorney
Those who remain dubious, and especially those whose knowledge of legal principles and whose background may be insufficient to enable them to understand these concepts are advised to consult with their own experts.
Note: the question to ask is not "can one be convicted for using handloads?". The answer to that is, of course, no. The use of handloads is, of course, perfectly legal, and whether a shooting is lawfully justified has nothing to do with the kind of ammunition used. The question to ask is, "is it possible that evidence concerning the distance indicated by GSR patterns might influence the outcome of a trial in which a shooter claims self defense?".
One should understand that very few trial lawyers will be able to give a good answer to that question without consulting a specialist. The fact is, defending the self defense case is a specialty. So, for that matter, is understanding the rules of admissibility of forensic evidence and related expert witness testimony.
Summing Up: The Risk Question
The question of whether to carry ammunition that one has assembled, or ammunition that has been assembled by a friend or associate, is a personal one. It should be made with a full understanding of the risks involved.
One cannot point to the frequency of actual occurrences, or the lack of same, to assess the risks, One cannot point to the frequency of actual occurrences or the lack of same to assess the risks, for very good reason. First, most people do not carry hand-loaded ammunition for personal protection. Of those who do, very few have ever faced the necessity to fire their weapons for self defense. Still fewer have been charged or prosecuted.
Of the exceedingly small number of persons who have been prosecuted, we are not aware of any who have had a need to support their cases with gunshot residue test evidence.
That explains the lack of relevant examples. But that lack does not provide a good basis for risk assessment.
The risk question is one involving conditional probability—that is, the likelihood that issues will arise after one has been involved in a defensive encounter.
Some of the above is so important that it bears repeating: should one ever be forced to discharge a firearm in self defense, (1) it will be up to the defender to produce at least some evidence of justification; (2) the evidence and testimony available after the fact may well be incomplete and possibly contradictory; (3) gunshot residue pattern evidence is a routinely accepted method of estimating the distance involved in a shooting; (4) differences in witness testimony and/or other evidence may cast doubt upon the defender’s account of that distance; and (5) under those circumstances, it may become very important for the defender to be able to introduce GSR test evidence of the ammunition used.
It is at that point that the issues of admissibility outlined above become critical.
It is not possible to predict with any certainty how likely it is that one will ever need to be able to introduce such evidence. However, should the need ever materialize, the potential consequences of not being able to use that evidence could be extremely severe.
The question becomes one of whether to mitigate that risk or to accept it without mitigation.
_________________________
Introduction and Overview
One of the most frequently recurring subjects on THR has to do with the whether it is prudent to carry hand loaded ammunition for self defense. It is quite evident that it is also one of the most misunderstood subjects.
There have been pages and pages of discussion on this subject. Much of the material has been repetitive. We will try to summarize the salient points here.
To start out, we will emphasize that there is nothing unlawful about the use of hand-loaded ammunition in any jurisdiction of which we are aware. The issues have to do primarily with evidence that may be needed for a defense of justification that may, depending upon the circumstances, be required after a self-defense shooting.
We often hear the statement "a good shoot is a good shoot". That's true enough, but it would be more accurate to say "a shooting will either be judged to have been justified, or it will not". One can be convicted of having used deadly force without justification even if he or she, having had no part in causing a violent encounter, and having had no alternative, employed deadly force quite appropriately and only as a last resort to defend his or her life--if the evidence available after the fact to support a defense of justification is, on balance, insufficient.
The question of whether to carry hand loads involves a number of legal issues. We have worked with attorneys Frank Ettin and Spats McGee to address the issue for our members.
Defending the Self Defense Case
If one does employ deadly force against another and claims self defense, he or she will have to provide at least some evidence on each of the elements of self defense for a jury to be given instructions to consider whether the act was justified or not.
If enough of the evidence is unclear or contradictory, the case could ultimately hinge upon any one piece of evidence, or upon the absence of any one piece.
The Potential Importance of Gunshot Residue Evidence
In some instances, testimony about, and other evidence relating to, the distance at which a shooting took place may become crucial to the triers of fact. Gunshot residue patterns are routinely used to estimate the distance (or at least to establish whether the distance was likely to have been less than or greater than a particular threshold). Should that evidence differ from the account given by the defender, his or her credibility and other judgments regarding the case may come into question.
The Rules of Evidence
Under some such circumstances, it may prove crucial to the defense to be able to put into evidence its own test results based on the ammunition used by the defender. Under the rules of evidence, the prosecution has the right to object to the introduction of such evidence, and they can be reasonably expected to do so if the evidence would benefit the defense. The decision rests with the trial court judge. For various reasons, depending in part upon the purpose for which the evidence is to be introduced, those results, if challenged, will be most unlikely to be admitted into evidence if the ammunition used was assembled by the defendant. That is the crux of the issue at hand.
In any trial court, civil or criminal, the judge is the gatekeeper of evidence, and appellate courts typically afford the judge a high degree of deference when it comes to determining which evidence gets in, and which is excluded.
For purposes of this discussion, we will stick with the Federal Rules of Evidence. While most of these cases are governed by state law, many states use the Federal Rules as a model, and they'll give us some common ground from which to work.
Generally speaking, all relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible. Fed. R. Evid. 402.
If it's relevant and not otherwise excluded, it gets in. If it's not relevant, it doesn't.
But (and this is very key to our discussion here) GSR is specialized enough that it is considered "expert testimony". That means that Rule 702 governs it:
So, if scientific or specialized knowledge will help the jury, an expert's opinion is admissible if:
(1) the testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable principles and methods, and
(3) the witness has applied the principles and methods reliably to the facts of the case.
You have to have all three to get the testimony of the shooter's expert in front of the jury. If the prosecutor files a Motion in Limine prior to trial, asking that the evidence be excluded, he or she will simply argue that the opinion of the handloading defendant's expert is based on unreliable data. Specifically, what the prosecutor is saying is that, because the data belongs to the defendant, it is inherently unreliable. It is reasonable to assume that there's a good chance that nobody was around when the cartridges were loaded, so there's no independent witness. If there is a witness, it's probably a good friend of the defendant. As a result, any data on which the opinion is based is suspect.
If the motion in limine succeeds, there can be no mention of the defendant's expert at trial, and the jury will never hear about it.
A defender’s best chance will exist when he or she has used quality commercial ammunition produced in a factory. The independently conducted testing and inspection steps, the quality assurance and test data, the equipment calibration records, and the unquestioned custody of the records, should meet any challenge regarding the reliability of the evidence
Precedence
There have been those who, apparently believing that a case involving a trial that concerned charges about a particular type of crime must be cited for a legal conclusion to be drawn, have insisted on seeing an actual self defense case that was decided on the basis of the use of hand loaded ammunition. That belief simply does not reflect the way the law works, and anyone who insists on believing that it does does so at his own peril and would benefit from a consultation with an attorney.
All trial attorneys know that. They face precedence questions from seemingly unrelated cases all the time. The precedence issues at hand here have to do with the use of gunshot residue (GSR) patterns to establish distance, which can apply in any kind of shooting case, and the rules of admissibility for forensic scientific trace evidence, which do apply in all kinds of cases involving such evidence.
The rules of admissibility cited above are based upon US Supreme Court rulings. The rules pertaining to evidence regarding expert witness testimony in criminal trials in many states are based on a SCOTUS ruling involving a civil trial that concerned pharmaceuticals. The rules in many other states stem from a SCOTUS ruling more than four score years ago that had to do with polygraph test results. Neither had to do with hand loads, ammunition, or self defense claims, but either of them will govern the admissibility of relevant forensic scientific trace evidence of any kind in any kind of trial, civil or criminal.
One important point that is often overlooked is that the rules of evidence for criminal trials in Federal courts and in most state courts are the same rules of evidence that apply in civil matters. That is one of the reasons that attorneys may point to a civil matter in reference to the admissibility of a particular piece of evidence in a criminal matter.
Finding specific precedent involving hand loads is really unnecessary. The fact that precious little exists, for reasons discussed below, does not diminish the predictive value of precedent in other cases involving expert testimony, even if such cases do not specifically involve self-defense shootings or hand loads.
It is important to understand how difficult it is to find a case involving such particularized facts. In order for a case involving hand loads to have any value for our discussion:
(1) The defendant would have to be charged with a crime;
(2) The use of hand loads would have to be an issue of contention at trial, and the evidence excluded (if the evidence is not excluded, then the defendant cannot raise that issue on appeal);
(3) The defendant would have to be convicted (because the prosecutor almost never gets to appeal);
(4) The defendant would have to raise the admissibility of the hand load evidence on appeal;
(5) The court hearing the appeal would have to render a decision in which the question of admissibility is actually discussed; AND
(6) The appellate court would have to publish the decision.
If any one of those factors is absent, then it becomes quite likely that that: (a) attorneys on this board or elsewhere will never hear about the case; or (b) there won't be enough of the right information in the decision to offer any guidance on the issue.
For these reasons, attorneys must base their judgment on other predictive information. That is not unusual in the practice of law.
What to Ask an Attorney
Those who remain dubious, and especially those whose knowledge of legal principles and whose background may be insufficient to enable them to understand these concepts are advised to consult with their own experts.
Note: the question to ask is not "can one be convicted for using handloads?". The answer to that is, of course, no. The use of handloads is, of course, perfectly legal, and whether a shooting is lawfully justified has nothing to do with the kind of ammunition used. The question to ask is, "is it possible that evidence concerning the distance indicated by GSR patterns might influence the outcome of a trial in which a shooter claims self defense?".
One should understand that very few trial lawyers will be able to give a good answer to that question without consulting a specialist. The fact is, defending the self defense case is a specialty. So, for that matter, is understanding the rules of admissibility of forensic evidence and related expert witness testimony.
Summing Up: The Risk Question
The question of whether to carry ammunition that one has assembled, or ammunition that has been assembled by a friend or associate, is a personal one. It should be made with a full understanding of the risks involved.
One cannot point to the frequency of actual occurrences, or the lack of same, to assess the risks, One cannot point to the frequency of actual occurrences or the lack of same to assess the risks, for very good reason. First, most people do not carry hand-loaded ammunition for personal protection. Of those who do, very few have ever faced the necessity to fire their weapons for self defense. Still fewer have been charged or prosecuted.
Of the exceedingly small number of persons who have been prosecuted, we are not aware of any who have had a need to support their cases with gunshot residue test evidence.
That explains the lack of relevant examples. But that lack does not provide a good basis for risk assessment.
The risk question is one involving conditional probability—that is, the likelihood that issues will arise after one has been involved in a defensive encounter.
Some of the above is so important that it bears repeating: should one ever be forced to discharge a firearm in self defense, (1) it will be up to the defender to produce at least some evidence of justification; (2) the evidence and testimony available after the fact may well be incomplete and possibly contradictory; (3) gunshot residue pattern evidence is a routinely accepted method of estimating the distance involved in a shooting; (4) differences in witness testimony and/or other evidence may cast doubt upon the defender’s account of that distance; and (5) under those circumstances, it may become very important for the defender to be able to introduce GSR test evidence of the ammunition used.
It is at that point that the issues of admissibility outlined above become critical.
It is not possible to predict with any certainty how likely it is that one will ever need to be able to introduce such evidence. However, should the need ever materialize, the potential consequences of not being able to use that evidence could be extremely severe.
The question becomes one of whether to mitigate that risk or to accept it without mitigation.