Court Case Evidence.

[Spats McGee]

As this issue seems to come up quite regularly, should we create a thread (to be stickied) for a "Reloads, Handloads, and GSR Evidence in SD Shootings?" We could just archive links to all of the relevant threads in one spot that way.

 

[maestro pistolero]

Pulins vs stevens probably is a civil case as that's what I was asking for. He mentioned FLA. Thanks

 

[JerryM]

[First, what may or may not have been brought up in prior cases is not a measure of what may influence future cases.

Second, you apparently put little stock in Glenn Meyer's mock jury experiments; one can argue the merits about an M4 carbine lookalike if the opportunity presents itself, but if a sinister looking "black rifle" is entered into evidence as the "murder weapon", and if the prosecutor says nothing about it other than to ask about ballistics evidence, that "good defense attorney" will have no "argument" to "deflect"-- the jury will draw its own conclusions.

Third, no attorney can cause to be admitted scientific forensic trace evidence that does not meet the rules for admissibility.]

I still think it is hokey, but each do as he will. I am not going to worry about it.
I have carried handloads because they got the velocity with the bullets I wanted to use. Never worried about lawyers or courts. I don't let folks like Massad Ayoub cause me any concern. He just needs to wow the folks who read him.

Regards,
Jerry

 

[Frank Ettin]

Pulins vs stevens probably is a civil case as that's what I was asking for. He mentioned FLA.

I just tried searching Fastcase, to which I subscribe, and came up empty. I searched both all courts nationally and just Florida state courts. My search would have picked up either civil or criminal cases.

It's possible that this was a trial court case that never made it to a court of appeal. In general, only matters reaching a court of appeal are reported in these national data bases. Purely trial court matters are difficult, if not sometimes impossible, to track down.

 

[Frank Ettin]

...Never worried about lawyers or courts....

Good for you. Whether or not you want to bother learning about how the legal system works and whether there are things you can do to avoid unpleasant results if you happen to get involved with the legal system is entirely up to you. Of course, folks who carry or have guns for self defense probably are a little more likely than most other folks to come into contact with the legal system. But in any case, it won't be my problem.

I know that a number of my colleagues made a good deal of their money trying to sort out messes for folks who never worried about lawyers or courts -- messes, and legal expenses, that perhaps could have been avoided or minimized with a little care or attention. But at least that lack of care and attention helped enrich my colleagues.

 

[Technosavant]

I know that a number of my colleagues made a good deal of their money trying to sort out messes for folks who never worried about lawyers or courts -- messes, and legal expenses, that perhaps could have been avoided or minimized with a little care or attention. But at least that lack of care and attention helped enrich my colleagues.

I've said this before, but it's this general idea that is the deciding factor to me. While funky ammo is not likely to be an issue in the vast majority of incidents, in those rare times when it is, the cost of a few hundred rounds of premium self defense ammo from a reputable maker is cheaper than the hours of time a lawyer would spend having to explain it.

Everyone must make their own decisions, but from all the discussions it appears that the ammo is not going to turn a "good" shoot (there's no such thing as a good one, but I mean one considered legally justifiable) into a "bad" one. However, if the facts of the event are in serious dispute and can be equivocal, your freedom might well hinge on such things.

 

[Edward429451]

Interesting thread. I suppose a good question at this point would be, does anyone have any knowledge of any SD cases that GSR was looked at?

Why does it matter if GSR was looked at in a suicide/homicide? The Dan Bias case was not a SD situation so the don't use handloads because of Bias doesn't apply I would think. Self defense is a much different event than finding a family member dead at home. Perhaps it was a wise thing for the ME to look at the GSR in his case...but how is that relevant to being muggged or attacked on the street? I surmise that GSR is moot at SD shootings where there will be witnesses and the perps weapon etc..

 

[Spats McGee]

. . . .Why does it matter if GSR was looked at in a suicide/homicide? The Dan Bias case was not a SD situation so the don't use handloads because of Bias doesn't apply I would think. . . . .

The same rules of evidence apply to suicides, homicides, self-defense, criminal charges, etc. That makes Bias applicable.

Self defense is a much different event than finding a family member dead at home. Perhaps it was a wise thing for the ME to look at the GSR in his case...but how is that relevant to being muggged or attacked on the street? I surmise that GSR is moot at SD shootings where there will be witnesses and the perps weapon etc..

Unfortunately, bad guys don't make reservations. You don't know that there will be witnesses, or that the bad guy will use a weapon that can be identified and connected to him.

The GSR "splatter," which is what we're talking about, can be used to help in determining the distance from the muzzle to the target. Hypothetical: I work late one night, and am confronted by a homeless man with a stick between my office and my car. The homeless guy threatens me with his stick, and takes a swing at my head. I shoot him from a distance of 3.5 feet. I'm a terrible shot and the stress of the encounter takes its toll on my shooting, so I wind up putting one bullet through his knee. He goes down. Threat ended, I quit shooting, and back away. Police show up and he tells them that he was at least 15 feet away. No useful prints on the stick, and no witnesses.

This is the kind of situation in which that GSR evidence could be very important, as I could face aggravated assault, or even attempted murder charges.

 

[Bartholomew Roberts]

Interesting thread. I suppose a good question at this point would be, does anyone have any knowledge of any SD cases that GSR was looked at?

I know Marty Hayes has testified on that issue in at least one case (and fiddletown has already linked to that post). In addition, I know that GSR evidence was an issue in the Mark Abshire case as well. Abshire's second shot struck one of his six attackers in the back. Abshire's attackers alleged his second shot was fired at one of the men as he crawled away on the ground. Abshire alleged it happened as the man was on top of him after he jerked away from the first shot.

Why does it matter if GSR was looked at in a suicide/homicide?

The issue is not that GSR evidence was looked at; but that the expert testimony on it was denied in a situation where it likely would have been allowed if it had been factory ammunition. Whether Bias is guilty, not-guilty, whether it was a suicide, whether aliens flew in from planet Mars and shot the wife are all irrelevant to the discussion we are having. The only thing we are concerned about is "If I use handloads in self defense will I be able to have GSR testimony by my expert witness admitted into testimony?"

To date, it looks like the answer to that question is "No."

The Dan Bias case was not a SD situation so the don't use handloads because of Bias doesn't apply I would think. Self defense is a much different event than finding a family member dead at home.

Every time I discuss this issue, people have a hard time understanding this point, because while it seems real clear to a lawyer, it doesn't always make sense to someone not acquainted with the system. So just to emphasize the point again, the issue is the Rules of Evidence. A side issue of the Bias case was about whether GSR tests of handloads could be admitted into evidence. The judge in that case ruled that it could not.

Given what the Rules of Evidence are for the admission of expert testimony, it appears that it would be exceedingly difficult to establish a proper foundation to the degree a court would allow such evidence. The problem is that the key factor in the investigation (your handloads) have been totally under your control, and you are on trial - making your claims suspect at best.

Perhaps it was a wise thing for the ME to look at the GSR in his case...but how is that relevant to being muggged or attacked on the street? I surmise that GSR is moot at SD shootings where there will be witnesses and the perps weapon etc..

Well, look at the Abshire example... that case had at least 9 wtinesses (Abshire, his neighbor, Abshire's wife, and his six attackers). Unfortunately for investigators, none of the stories matched up perfectly. The forensic evidence they collected showed that either one of two general themes developed by witness testimony could be true. So a jury got to decide who was telling the truth...

Here is another good case to read on how the legal system works: Larry Hickey. Note that this took place in gun-friendly Arizona. In this case, Hickey chose to follow a popular Internet recommendation and exercise his right to remain silent. As a result, investigators at the scene missed many key details that would have helped them sort out which of the eyewitness stories was correct. Luckily for Hickey, they documented the evidence so well that most of it was still preserved when he went to trial; but he ended up going through two hung juries.

Note also that Hickey claimed he was attacked in his own driveway while his attackers claimed they were attacked by Hickey while standing in an alley. While it wasn't mentioned as a major issue in this trial (possibly because of the very close range of the shots and the use of factory ammo), you can easily see how the distance between the shooter and the shootee could become an issue.

 

[maestro pistolero]

A little slightly OT side note:
The best way I know to avoid liability exposure is to train hard and safe, have great equipment, avoid situations that are likely to compromise my safety in the first place, and keep a clear mind and a fit body, so that I don't shoot someone accidentally or for the wrong reason in the first place.

Buy conducting my life that way, I have just exponentially reduced my risk of being sued. Not that it's impossible, just extremely unlikely.

 

[JerryM]

Hi fiddletown.
In fact I do know something about the legal system, and know what constitutes deadly force and what justifies it.
As long as I am within the legal guidlines for the use of deadly force, I am not going to spend time attempting to figure out the jots and tittles of what might happen if I have to use it.

I do not have a lot of confidence in lawyers, but have a lot of confidence in friends, at least one who is an internationally recognized expert on the subject.

It is my view that folks that write for the magazines, although maybe experts, just need something to write about, such as the handloads issue. If someone can show a couple of cases where using handloads made the difference in the outcome of the case I might reconsider.

The Fish case was a result of poor defense, and was overturned later. That was not about handloads, however.
The anticipated problems with handloads seem to center around the premise that the handloader must be a killer at heart and wants to load mankilling ammunition. Such stuff could be easily refuted. Of course, in places like NY and NJ nothing might be good enough to be found not guilty regardless of the ammo or guns.
Here in southern NM it is a different story.

I understand that there was once a problem as to powder burns and distance to the target, but I do not worry about such things either.

So let the lawyers "eat cake" when it comes to ammo and modifications that are not unsafe in themselves.

The odds of my ever having to defend myself are one in many millions so to lose sleep over some of these concerns is something I am not going to do.


Regards,
Jerry

 

[Spats McGee]

. . . . I do not have a lot of confidence in lawyers, but have a lot of confidence in friends, at least one who is an internationally recognized expert on the subject.

If I may ask, on which subject? There are several disciplines that come into play on this.

. . . . If someone can show a couple of cases where using handloads made the difference in the outcome of the case I might reconsider.

Daniel Bias. His defense cost him years and boatloads of money that might have otherwise been unnecessary.

. . . .The anticipated problems with handloads seem to center around the premise that the handloader must be a killer at heart and wants to load mankilling ammunition. Such stuff could be easily refuted.

I don't see it that way. The problem has nothing to do with the handloader trying to produce extra-deadly ammunition. It has to do with the fact that the handloader/shooter may lose potentially exculpatory evidence, simply because they are using handloads.

The problem comes when there is a dispute that could be resolved by the use of GSR evidence, but the handloader/shooter's expert is not allowed to testify.

Of course, in places like NY and NJ nothing might be good enough to be found not guilty regardless of the ammo or guns.
Here in southern NM it is a different story.

The only relevance your jurisdiction has here is how your rules of evidence are written. What we're talking about here is a situation where some evidence is excluded from the trial and neither seen nor heard by the jury.

The odds of my ever having to defend myself are one in many millions so to lose sleep over some of these concerns is something I am not going to do.

Your call. As you point out, the odds of it becoming an issue for you are slim. I sincerely hope that you never have to put those odds to the test.

 

[Bartholomew Roberts]

If someone can show a couple of cases where using handloads made the difference in the outcome of the case I might reconsider.

One of the links fiddletown posted is to a thread with 4 such cases, one of them being the Bias case.

And IMO, the evidentiary issues are the main problem. I don't really see the killer at heart claim as being a major issue; but it does highlight one of the disconnects that I think makes this difficult to explain - evidence can only be heard if the judge allows it. I think many people have this impression that they will be able to present all aspects of their side of the story; but that isn't necessarily the case. The Larry Hickey link above demonstrates that well.

 

[Spats McGee]

Here's part of what I posted in another thread on this subject. It is an attempt to lay the groundwork for this discussion, without writing a treatise on it.

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, I'm going to stick with the Federal Rules of Evidence. I know that most of these cases come down on state law grounds, but I'd like to avoid veering off into discussions of one state's rules of evidence against another. Many states use the Federal Rules as a model, and they'll give us some common ground from which to work.

So, first off, relevance:

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 (& this is a big but), GSR is specialized enough that it is considered "expert testimony. That means that Rule 702 governs it:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, 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. Fed. R. Evid. 702(emphasis supplied)

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 it 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's inherently unreliable. I think 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. The prosecutor may not argue with how the defendant's expert got from A to B, but what if A wasn't the right starting point? Then B becomes an unreliable conclusion. Anyway, 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.

 

[JerryM]

Hi Spats.
Lose all the sleep you want to. I am not concerned in the least about using handloads.

If that was the only issue I am 100% sure the case would not go to trial with the attitudes we have here in southern NM.

Lawyers never see black and white, but only shades of gray. But notice that lawyers win some and lose some. If they knew what they were talking about who would lose?

Regards and out,
Jerry

 

[Spats McGee]

Hi, JerryM.

I'm not losing sleep. I'm comfortable with the risk assessment that I've done.

Cheers.

 

[Frank Ettin]

...In fact I do know something about the legal system, and know what constitutes deadly force and what justifies it. As long as I am within the legal guidlines for the use of deadly force,...

...Of course, in places like NY and NJ nothing might be good enough to be found not guilty regardless of the ammo or guns.
Here in southern NM it is a different story....

Really? Then consider the cases of --

Larry Hickey, in gun friendly Arizona thought he was justified. He was arrested, spent 71 days in jail, went through two different trials ending in hung juries, was forced to move from his house, etc., before the DA decided it was a good shoot and dismissed the charges.

Mark Abshire in Oklahoma thought he was justified. Nonetheless, despite this happening on his own lawn in a fairly gun-friendly state with a "Stand Your Ground" law, he was arrested, went to jail, charged, lost his job and his house, and spent two and a half years in the legal grinder before finally being acquitted.

Harold Fish, also in gun friendly Arizona, thought he was justified. But he was still convicted and sent to prison. He won his appeal, his conviction was overturned, and a new trial was ordered. The DA chose to dismiss the charges rather than retry Mr. Fish.

Three men familiar with the rules of the use of lethal force in self defense and in gun friendly States thought they were justified in using lethal force in self defense. And in fact each was ultimately vindicated. Nonetheless, each went through a long, arduous and very expensive ordeal before he was vindicated.

...I do not have a lot of confidence in lawyers,...

Yet you write in post 10

...I am persuaded that a good defense attorney can deflect those arguments...

Looks to me like you're placing a lot of confidence in lawyers.

...The Fish case was a result of poor defense, and was overturned later. That was not about handloads, however....

If you read the court of appeals decision, it's clear that Fish's conviction was tossed because of certain erroneous evidentiary ruling by the trial judge. And Fish's lawyer made the proper objections at trial and preserved Fish's right to appeal on the bases of those errors of law. So I guess that Fish's lawyer did some things right.

And yes, handloads weren't an issue in Fish. But in a post verdict interview a juror did state that the jury was very troubled by Fish's use of JHP ammunition. And that illustrates that in a gun friendly State, ammunition used in a claimed self defense shooting can have an impact on how a jury evaluates the evidence. (And the OP's question concerned ammunition and types of guns in general, not just handloads.)

...Lose all the sleep you want to. I am not concerned in the least about using handloads.

If that was the only issue I am 100% sure the case would not go to trial with the attitudes we have here in southern NM....

Of course a claimed self defense shooting won't go to trial anywhere if it was clear that the use of lethal force was justified and if handloads were the only issue. But maybe you'll be really unlucky and there will be multiple issues. Maybe the physical evidence is equivocal. Maybe the stories of one or more witnesses conflict with yours. Maybe there were not witnesses, and the guy you shot, who you thought was armed, wasn't.

So if you wind up on trial, your lawyer will have a number of issues to deal with. He wouldn't also have to deal with handloads if you didn't use them.

Now I don't lose any sleep about these things because I don't use handloads for self defense, nor do I use a heavily modified gun. I've taken these potential wild cards off the table, so there's no need for me to concern myself about them.

...But notice that lawyers win some and lose some. If they knew what they were talking about who would lose?...

The problem with that perspective is that we are stuck with the circumstances our clients have given us. We can only work with what we have. So if the conduct of our clients has given us bad facts and a losing situation, there's a good chance that no matter how good we are, our clients won't be happy with the outcome. We can only deal with reality; we're not magicians.

 

[Tom Servo]

Fiddletown and Bart, thanks for the insight. I was aware of the Bias case, but not the others.

Taken on its own merits, I considered the Bias case to be an anomaly. In context, however, you've put forth a compelling argument.

Fortunately (?), I don't handload defensive ammunition any more, and as such, I carry factory ammo. Still, it lends credence to an old piece of advice I once got from a lawyer/shooter: "If you're going to carry a gun, carry the same ammunition the local cops carry."

 

[Frank Ettin]

...Taken on its own merits, I considered the Bias case to be an anomaly...

Looking at the case as a whole, and the overall confluence of circumstances, I would agree that Bias is unique. BUT, the evidentiary ruling, i. e., the judge's refusal to admit into evidence an expert opinion based on tests of handloaded ammunition that Bias claimed was identical to the round that was fired and killed his wife, is NOT an anomaly. It is completely consistent with common and accepted principles of evidence that apply to the admissibility of expert opinion based on scientific tests.

Forgive me for emphasizing that point. But I think this point bears emphasizing because, as Bart pointed out in post 29, folks seem to have difficulty separating the somewhat bizarre circumstance of Bias, and the ultimate conviction of Daniel Bias, from the evidentiary principles of general application that the case illustrates.

 

[maestro pistolero]

Fiddletown, thanks for searching for that Pulins case, whatever it is (or isn't).