Reloads for self defense

[kraigwy]

From what I read, the Daniel Bias was a case of bad attorneys not the ammo used. Bias was not convicted because he used reloads.

Since I wasn't there, did no testing, that's the only opinion of the case I can gain from what I read.

However, if you refuse to consider the pariffin test, then your opinon of it is kind of moot, isn't it?

 

[Frank Ettin]

...I just got an e-mail of a news story that proves my point regarding second opinions.

http://www.policeone.com/investigati...-NY-crime-lab/

And what does that have to do with anything we're discussing? Yes, some crime labs have problems.

...Bias was not convicted because he used reloads....

To be clear, Bias was not convicted per se because handloads were loaded in his wife's gun. He was convicted in large part because since handloads were loaded in his wife's gun, expert testimony which would have corroborated Bias' story and thus be helpful to his defense was not permitted by the trial judge to be admitted into evidence.

...From what I read, the Daniel Bias was a case of bad attorneys not the ammo used....

Then you either haven't read much or didn't understand what you read.

[1] Bias went through four trials.

[2] He was initially indicted for murder in the first degree. At his first trial, he was represented by a private attorney. It ended with a hung jury.

[3] At his second trial, he was represented by a public defender; he was out of money. The public defender was able to hang the jury. At that point, the judge threw out the murder one charge.

[4] At his third trial, Bias was acquitted of aggravated manslaughter but convicted of negligent manslaughter.

[5] The public defenders office appealed the case and got the conviction overturned.

[6] At his fourth trial, Bias was convicted of reckless manslaughter.

It looks like Bias' lawyers were doing a pretty decent job with what they had to work with. It certainly didn't help that the testimony potentially most useful to Bias, his expert's GSR testing, was kept out by the judge. Nonetheless, Bias' lawyers --

• Got hung jury in the first trial on the murder 1 indictment;
• Got a hung jury on the second murder 1 trial and got the murder 1 charge tossed;
• Got an acquittal on aggravated manslaughted and got the negligent manslaughter conviction overturned on appeal.

...if you refuse to consider the pariffin test, then your opinon of it is kind of moot, isn't it?...

Nope. How do you figure?

 

[kraigwy]

And what does that have to do with anything we're discussing? Yes, some crime labs have problems.

Thank you, I've been trying to say that. Do your own testing, as Reagan would say "Trust but Verify".

 

[Frank Ettin]

And what does that have to do with anything we're discussing? Yes, some crime labs have problems.

Thank you, I've been trying to say that. Do your own testing, as Reagan would say "Trust but Verify".

But your link to that article is still a complete non sequitur. It is irrelevant. It has nothing to do with the legal/evidentiary question of the admissibility of expert testimony based on GSR testing when handloaded ammunition is involved.

 

[kraigwy]

It is irrelevant. It has nothing to do with the legal/evidential question of the admissibility of expert testimony based on GSR testing when handloaded ammunition is involved.

It means the crime lab lost its accreditation. Their "expert testimony" is no longer valid, either in the drug cases or any other cases including possible firearms investigations. Mistakes are made, that's why one should do his own investigations, his own testing. See for your self instead of relying on others, be it books or the Internet, even crime labs.

 

[Frank Ettin]

It means the crime lab lost its accreditation. Their "expert testimony" is no longer valid, either in the drug cases or any other cases including possible firearms investigations. Mistakes are made, that's why one should do his own investigations, his own testing. See for your self instead of relying on others, be it books or the Internet, even crime labs.

Again, so what? We're not discussing crime lab accreditation nor selection of an expert witness. That lab may no longer qualify as an expert witness, but that has absolutely nothing to do with us.

As for doing my own testing, why? I wouldn't do my own testing in connection with a case. For one thing, I couldn't qualify as an expert witness. And the rules of professional responsibility prohibit a lawyer from also acting as a witness. In any case, any testing for real life purposes needs to be done with "state of the art" methodology. That would rule out paraffin testing.

Should I be conducting tests to investigate your various claims? No. They're your claims. It's your burden to provide the evidence.

In any case, what's to be tested? What does my testing or your testing have to do with the question of the rules of evidence and the admissibility of testimony based on GSR testing of handloaded ammunition?

 

[kraigwy]

Why would someone do a paraffin or any other test???

Curiosity maybe.

I brought up the paraffin test because its something we can do without spending money on expensive instruments.

Some people don't believe everything the read or see on the Internet. Some people want to see for themselves.

I'm one of those, apparently you're not, that's OK, we all have different interest.

 

[Frank Ettin]

...Some people don't believe everything the read or see on the Internet. ...I'm one of those, apparently you're not, that's OK, we all have different interest.

What makes you think I believe everything I read on the Internet?

 

[Bartholomew Roberts]

kraigwy, from your commentary I get the impression you are trying to say that there is no significant difference in GSR between reloaded and factory ammunition and therefore, no reason to worry that your handloads aren't admissible because the GSR results from factory loads will usually be close enough. Is that the point you were getting at or do I misunderstand you?

 

[kraigwy]

kraigwy, from your commentary I get the impression you are trying to say that there is no significant difference in GSR between reloaded and factory ammunition

Kind of, there is no absolutes in firearm investigation (excluding hard evidence such as micro comparisons). You can get close (but not exact) with powder marks (burning or tattooing). At the time of explosion gunpowder forms oxides of nitrogen, which becomes embedded in the pore of the skin (used to check if one fired a gun) or the target with in range. Any firearm using gunpowder is going to leave oxides of nitrogen. (Which also comes in other forms, ammonium nitrates, Potassium nitrates sodium nitrates, urine, etc etc. ---you have to know what the subject was doing prior to the incident, was he exposed to nitrates as in gardening, etc?)

Back to gunpowder, its going to produce oxides of nitrogen whether its a factory round or reloaded ammunition, it has to, and based on my experience its pretty close to the same in faster powders used in pistol whether they loaded with factory loads or reloads.

Having said that I have encourage anyone interested to experiment themselves. You'd be surprised.

no reason to worry that your hand loads aren't admissible

There are no "Rules of Evidence" any where that preclude the evidence obtained from "reloads". What does come into question is the methods of obtaining that evidence. The witness must establish that, an examination of the case involved, controlled test in an attempt to duplicate the results, were conducted, and a proper chain of custody was maintained. If that is put forth to the court propertly, then the evidence will be allowed. Thats up to the court and the ability of the attorneys to present that to the court.

But yes there are no hard fast rules stating that evidence from "reloaded ammo" can never be used in court.

Having said that, no where did I encourage anyone to carry reloads (or any other ammo) in SD pistols/Revolvers. I do say that if you do it can be (depending on the lawyer) questioned, as can be questioned the use of Hollow points, magnums, FMJs, etc. I also believe the experience and use of any ammo can come into question. (meaning do you carry a type of round that you've fired thousands of times in practice and competitions, or a round you fired a clip through to see how it acts).

If you carry reloads in Wyoming you'll have less problems then in Chicago. If you carry HPs in Texas you'll have less problems then in New Jersey. If you use FMJs in an area where the movie FULL METAL JACKET, just played, or the news if full of bullets penitrating cops vest, you might have problems.

Again, there is no absolutes. I have no doubt I can better justify carrying reloaded ammunition then factory. I never use factory ammo, (excluding Military Ammo when I shooting for the guard). If I was to buy a box of Brand X, and have a questionable shooting, using ammo I have no experience with, guess what, I"m going to have problems. (It doesn't take many days observing trails to believe that).

Nothing is set in concrete. Do your own studies, concider your enviorment, your experience, knowledge, and training, base your decisions on that not what you read on the internet.

Each and every case mentioned regarding reloads had a lot of other problems, reloads alone have never caused a conviction.

 

[madmo44mag]

kraigwy said “from what I read, the Daniel Bias was a case of bad attorneys not the ammo used. Bias was not convicted because he used reloads.”

I came away with the same impression.

 

[Frank Ettin]

kraigwy, from your commentary I get the impression you are trying to say that there is no significant difference in GSR between reloaded and factory ammunition

Kind of, there is no absolutes in firearm investigation (excluding hard evidence such as micro comparisons). You can get close (but not exact) with powder marks (burning or tattooing)....

But it didn't work out that way for Daniel Bias.

no reason to worry that your hand loads aren't admissible

There are no "Rules of Evidence" any where that preclude the evidence obtained from "reloads". What does come into question is the methods of obtaining that evidence. The witness must establish that, an examination of the case involved, controlled test in an attempt to duplicate the results, were conducted, and a proper chain of custody was maintained. If that is put forth to the court propertly, then the evidence will be allowed. Thats up to the court and the ability of the attorneys to present that to the court.

But yes there are no hard fast rules stating that evidence from "reloaded ammo" can never be used in court....

No, the rules of evidence do not per se prohibit introduction of expert opinion based on GSR testing of handloads. What the rules require is that the opinion be relevant. And to be relevant, it must be established, as you note, that it is based on a "controlled test in an attempt to duplicate the results" (emphasis added).

So when handloads were fired in the incident that is the subject of the trial, it now becomes difficult, if not impossible, to establish that the controlled test duplicates the incident. It becomes difficult, if not impossible, to establish that the rounds fired in the testing were substantially identical to the rounds fired in the incident. So as Spats McGee outlined in post 61:

...Then we get to the evidentiary issue. If you're using handloads, your reloading records are suspect, no matter how meticulous you have been in keeping them. They will be seen as self-serving, and that's what the prosecuting attorney will tell the court. You'll have to convince the judge that the records kept were accurate, that the ammunition that you used was loaded in conformity with those records, and that the sample provided to your expert was the same as the ammunition used in the shooting. This is a case where the exact ammunition used is destroyed during the shooting. Assuming that your ammunition functions correctly, the powder burns and the bullet is expelled at high speed. The bullet may or may not ever be found. It's not like a knife case, where the knife survives the incident and can be tested later (provided that it can be located).

On the other hand, if you use factory ammunition, you can subpoena the records on the ammunition specs from the company that made your ammo, and suddenly, you've got third-party records. Those records will not be viewed as self-serving. That company doesn't have a dog in the fight, as it were. It should be much easier to get those records in, if you need them....

That, of course, was why the expert opinion offered by Daniel Bias based on the testing of his reloads, which he claimed duplicated the "death round" but which claim could not be independently validated, was excluded by the judge.

 

[Frank Ettin]

kraigwy said “from what I read, the Daniel Bias was a case of bad attorneys not the ammo used. Bias was not convicted because he used reloads.”

I came away with the same impression.

Then re-read post 102.

 

[Bartholomew Roberts]

Any firearm using gunpowder is going to leave oxides of nitrogen. (Which also comes in other forms, ammonium nitrates, Potassium nitrates sodium nitrates, urine, etc etc.

Kind of unrelated, but most of the cases I have been looking at mention the presence of antimony and barium.

There are no "Rules of Evidence" any where that preclude the evidence obtained from "reloads". What does come into question is the methods of obtaining that evidence. The witness must establish that, an examination of the case involved, controlled test in an attempt to duplicate the results, were conducted, and a proper chain of custody was maintained. If that is put forth to the court propertly, then the evidence will be allowed. Thats up to the court and the ability of the attorneys to present that to the court.

No; but the Rules of Evidence do require there be a proper scientific foundation for the admission of expert testimony. In order to have the proper scientific foundation for GSR tests, you need an exemplar load that the court will accept.

In the Bias case, the state used a factory load for the test and got different results (a variance of as much as 2 feet) from the results Bias's expert got using Bias's reloads. The jury never heard this testimony because Bias's GSR expert witness was excluded from evidence.

I can be the best attorney in the world; but I can't go back in time after the fact and create the foundation necessary to get the court to accept evidence that has been wholly within the control of the same guy being accused of a crime.

I'm also concerned because in reading GSR cases, I can't find any examples where any defense attorney has been successful in getting their own GSR evidence of handloads admitted into evidence. Now, this doesn't mean it hasn't happened. I am only looking at appellate cases so if the evidence was admitted, it would be unlikely to come up on appeal; but when I ask people who say they are attorneys if they know of such a case and they ignore me or say "No" then I start wondering how likely it is that any defense attorney can get that evidence admitted given the inherent problems. On the flipside, the Bias case is the only case I've found so far where the defense even attempted to get their own GSR evidence of handloads admitted, so as best as I can tell, I am looking at an issue that is going to come up relatively rarely; but have important consequences when it does.

Each and every case mentioned regarding reloads had a lot of other problems, reloads alone have never caused a conviction.

I don't think anyone in this thread has claimed this, so I'm kind of at a loss on why people keep making this statement. Instead, the point being made over and over again is that using reloads has the potential to complicate the post-shooting investigation of your self-defense shoot.

Most of the other problems that the cases mentioned have were problems that the shooter in that case couldn't really control. You are llimited in how much you can influence where and when an attack occurs, how many friendly witnesses are present, how well the investigation is carried out, etc. No matter how well you plan, you won't be able to reasonably control many of those problems. Whether or not you use reloads is a potential problem you can control.

We're all big boys here. I've done my best to explain this particular problem. If someone reading this feels that the reward of using reloads is worth the risk, then that is fine by me. I don't even use reloads for practice, so it is an easy choice for me to make. My main concern, as highlighted by the comment of yours I quoted above, is that people don't seem to be understanding my basic point.

 

[OldMarksman]

Posted by kraigwy: There are no "Rules of Evidence" any where that preclude the evidence obtained from "reloads". What does come into question is the methods of obtaining that evidence. The witness must establish that, an examination of the case involved, controlled test in an attempt to duplicate the results, were conducted, and a proper chain of custody was maintained. If that is put forth to the court propertly, then the evidence will be allowed.

Close, very close, but there is more. The questions that enter into the determination of admissibility are who conducted the controlled test, and how and by whom the results were documented, and of course, what constitutes a proper chain of custody.

But yes there are no hard fast rules stating that evidence from "reloaded ammo" can never be used in court.

Absolutely true, and that's an important point if the ammunition had been reloaded by an ISO certified third party, but if the ammunition had been "reloaded" by an interested party in a court case, that party would be out of luck.

One does not need to find a ruling specifically about ammunition or GSR; the principles are common. My CLE course on the Daubert Rule was framed around how to make sure that computer-generated records used in public financial reporting would be admissible in court. The reason had to do with the potential need to defend against allegations of violations of the Sarbanes-Oxley Act of 2002, and the subject matter was very heavily imbued with information technology matters, but the legal principles that apply derived from a SCOTUS ruling or two on the admissibility of certain testimony and evidence in civil trials, one of which concerned pharmaceuticals. Some states have adopted the Daubert rule for criminal trials, but to be frank, I cannot detect any material difference from the old rule as it applies to the diiscussion at hand; the trial judge's ruling in NJ vs Bias preceded the Daubert ruling.

There is a coincidental and very interesting set of parallels here. Daubert and subsequent rulings address the judge's role in deciding whether to admit expert witness testimony and scientific evidence. What the judge must consider in deciding whether to do so is, by chance, very much analogous to one of the main thrusts of Sarbanes-Oxley itself: internal controls.

The requirement for public companies to maintain and operate a set of internal accounting controls dates back to the 1930s, but SarbOx made the requirements much more rigid. One of the basic principles, and I am oversimplifying here, is that records created at every significant stage in the reporting process (and certain approval processes) be tested and verified independently by persons who do not benefit from the results.

That's an issue that one party or the other will raise to the judge when he or she makes his or her determination of admissibility.

As posted by Spats McGee,

On the other hand, if you use factory ammunition, you can subpoena the records on the ammunition specs from the company that made your ammo, and suddenly, you've got third-party records. Those records will not be viewed as self-serving. That company doesn't have a dog in the fight, as it were. It should be much easier to get those records in, if you need them....

And attorney fiddletown said,

That, of course, was why the expert opinion offered by Daniel Bias based on the testing of his reloads, which he claimed duplicated the "death round" but which claim could not be independently validated, was excluded by the judge.

Same thought from attorney Bartholomew Roberts:

I can be the best attorney in the world; but I can't go back in time after the fact and create the foundation necessary to get the court to accept evidence that has been wholly within the control of the same guy being accused of a crime.

Emphasis added.

 

[youngunz4life]

Quote:
Originally Posted by madmo44mag
Quote:
kraigwy said “from what I read, the Daniel Bias was a case of bad attorneys not the ammo used. Bias was not convicted because he used reloads.”

I came away with the same impression.

fiddletown's response&quote:

Then re-read post 102.

I agree with fiddletown in respect to the defense doing its job during the trials+defense work of Bias. this thread is a good read.

 

[madmo44mag]

Not having been a party to any of the noted cases and not being in the court room or reading the entire case file and testimony I can't draw an absolute conclusion to the effectiveness of the attorneys involved.

There are less tangible aspects of a jury trial.
The way a question was asked or answered.
The tone of voice, timber of voice, facial expressions, nervous ticks, ect...
These all have a direct impact on the jury, prosecution and defense.

 

[Spats McGee]

It's true that there is no rule specifically prohibiting the use or introduction of expert GSR testimony, when the shooter has used handloads. However, I still contend that the use of handloads makes the use or introduction of such evidence more problematic. We can talk all we want about jury perceptions, and they're clearly relevant to the outcome of the case. However, I see the real problem being the fact that the jury never gets to hear that evidence.

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.

Edited to add: This thread is beginning to have a bit of a "Tastes Great! Less Filling!" feel to it.

 

[Al Norris]

And so the Great Debate goes on....

We have these from time to time and the end result is never settled. I highly doubt it ever will be. On gun boards.

The debate has been informative and carried out in true gentlemanly fashion. Yet at 118 or so posts, everyone's positions are the same as when we started.

Thank you everyone who participated, but I'm closing this, while the discussion is still civil.