Sd 38 ammo reloads.

[OldMarksman]

Posted by Aquila Blanca: A so-called "castle doctrine" law provides immunity from civil lawsuit ONLY if the laws of the state say it does, and very few castle doctrine laws say this.

That's true.

But is cannot be emphasized enough that the failure of the state to prosecute, or to succeed in criminal prosecution, does not prove that the act was lawfully justified--it just says that the BARD standard was not reached.

I think I have read one state code that said otherwise, but I would not bet a nickel on it. It hasn't been tested; it goes against some very key, longstanding legal principles; and when state laws that try to limit civil liability have been tested, the results have been very iffy indeed.

Tort law is generally the domain of the judicial branch and the juries.

 

[OldMarksman]

Posted by Winchester_73: Once again, a SD scenario, where the castle doctrine is state law, pretty much nullifies the chance of a perp bringing anything to court, esp an allegation of "ammo which was meant to kill" or anything like that.... I was coming at from a common sense angle, that if the person was attacked in their own home, in a state with castle doctrine, and legally defended them self, the criminal would have very little recourse and esp NOT against the ammo used which is the actual subject of this thread.

Two things, one key.

One more time, the failure of the state to gain a conviction does not prevent civil action from proceeding, nor does a prosecutor's decision to not file criminal charges. The state fails if it cannot meet the BARD standard, but the civil litigant must only have a preponderance of the evidence on his side.

That's in any state. It's a very, very basic concept.

Second, I really think that the "ammo which was meant to kill" argument is a secondary one, and it applies just as much to factory loads with zombies on the box as to hot hand loads.

The more serious issue with hand loads is that should the defender need to introduce GSR test data to counter a piece of unfavorable witness testimony or an unfavorable item of evidence, his or her having used ammunition that was not assembled by a third party under controlled circumstances would mitigate against the admissibility of that data into evidence.

That's probably a rather remote risk in a home defense scenario, but the potential consequences are severe, and the cost of mitigation is miniscule.

 

[Ludwig Von Mises]

At least from the limited number of LEO's I know, as well as a federal judge relative, I've learned that in most states, exempting the commonwealths of new york and california, "ammo meant to kill" (e.g. JHP, same stuff cops use everywhere) is preferred in SD and HD situations versus "ammo meant to not kill" (whatever that means). One could even argue in court that ball ammo is less humane, if one considers the latency between the time of being struck by a round and the time of death to be a measure of humaneness. Also less likely to hit neighbors. Now, with reloads, this is a toss up, depending on wherever you live and what judge you might encounter. Hopefully one who reloads too haha.

I'm not sure as to how much of a margin of penetration/hydrostatic power is available in hot reloaded .38, but I do know that I can never trust .38 again as a defensive round.

It's for a good reason, and thank god it wasn't powerful enough to do more damage. A friend of mine was shot in a car, from the back seat, over the seat and downwards into the gap between his collarbone and shoulder, with what turned out to be a snub nose Smith of some sort, .38, with hollow point rounds, the report didn't specify which. Dumb kid who shot him still had the gun on him when caught 2 days later.

Regardless, my buddy, god bless him, was able to drive back to his house, and only went to the hospital when he realized that there was no exit wound. He tells me that he didn't even know he was shot until about 2 minutes after the confrontation. Also couldn't pull his own trigger, but that's another discussion entirely. Bottom line, he took a .38 JHP point blank horizontal to all of his vital areas, and not only lived, but was able to drive home before he went into shock. Mind you, not a vet or LEO, but a mid-twenties, perfectly normal kid. Now, the wound did end him up with a collapsed lung and major internal bleeding, but in terms of first round hit power, I can never trust it again. I have an uncle who swears by .38, because his wife can shoot it accurately, and I love it at the range, but its just underpowered.

Not to say this wouldn't have happened with a 9 or a 40, I am just giving my personal knowledge of an event. Handloads could solve all of this, I don't know, just my two cents.

EDIT: Also made me fear revolvers a little, as the amount of burn (not burnt powder, but actual burn) on the headliner of this beautiful german automobile, from the gap between the cylinder and the barrel I'd assume, makes me wonder about stray fingers and such.

 

[saleen322]

I am not a lawyer. I have been a LE firearms instructor for over 25 years and I have testified as an expert on training and the use of force. In the cases I have firsthand experience with I was never asked any specifics about the ammo but I am sure it does come up. IMHO, the following is of greater concern:
Was there justification for the use of force? (Consistent with the laws of the jurisdiction)
Was the amount of force used reasonable under the circumstances? (No lesser degree of force would have been sufficient, etc?)
Was force deescalated as soon as the threat was stopped or was no longer a threat?
Was first aid/medical assistance provided as soon as practical?
Was the incident properly reported/documented as soon as practical?

If the answer to all of the above questions is a clear yes, I have never had an issue.

To the issue of the ammunition, most ammunition marketed as self defense ammo is because it is designed to inflict maximum trauma on the person shot with it. As stated, I never got into a discussion about the ammo used but I would think a sharp lawyer could make an equal case that the self defense ammo was used because the shooter was looking for a confrontation and he/she wanted to seriously injure or kill someone—looking for a fight. Compare that to the guy who shot a home invader with the wad cutter target ammo loaded at home because he didn't get the gun with the prime idea of shooting someone, they just like to shoot targets and that ammo is what he had. It would be harder to make it look like he was trying to get into a confrontation and kill someone. FWIW, the last AAR I was involved with was a shooting with a .38 and the person was stopped when shot (only 1 center mass hit) and died in surgery the next day. There are many ways to look at things and YMMV.

 

[SgtLumpy]

I'm speaking for the high majority of the time

Um, no, you're not.

An "affirmative defense", which is the statutory language in most (all?) castle doctrine statutes, doesn't mean that you won't/can't go to criminal and/or civil trial. It simply means it's a defense. My state's language is word for word what several other states language is. The burden of demonstrating that the parameters of the castle doctrine is met falls on the defendant (that's you, the homeowner who shot the bad guy). In other words, you might very well still go to court and be tasked to defend yourself. And if you do, I'm confident that EVERY opposing atty, from expensive dream team to luck of the draw pro bono pool will bring the type of ammo used into evidence. That's their job. To discover everything they can about you, right down to "when was the last time you ate?" "Did you take an aspirin?" "How were you dressed?" "Do you practice shooting at human sillhouettes?".

They don't just decide on scene "Well you were in your castle, you're good - see you later".

Isn't it much simpler to use factory ammo, without ominous brand names, than to have to spend another several thousand dollars defending your hand loads?


Sgt Lumpy

 

[Winchester_73]

Two things, one key.

One more time, the failure of the state to gain a conviction does not prevent civil action from proceeding, nor does a prosecutor's decision to not file criminal charges. The state fails if it cannot meet the BARD standard, but the civil litigant must only have a preponderance of the evidence on his side.

That's in any state. It's a very, very basic concept.

A very basic concept indeed, which is not relevant to the discussion. I stated several times "...if the home defender/defendant followed all laws, acted in SD..." and you apparently dismiss that premise. My question to you is how could there be "preponderance of evidence" in favor of the perp if the home owner acted within the law and everything supported that? Once again, that was the only example I brought up, I was not attempting to discuss absolutes, and I understand the home owner is not infallible due to the castle doctrine. If the home owner does something questionable, of course the perp could have recourse. I am asking about the home owner who did everything right, and every piece of evidence supports their claim. I am suggesting that the castle doctrine would protect the defendant if they acted within the specific laws, correct? I feel like this is splitting hairs. Nothing you said can I disagree with necessarily, but isn't the perp suing the home owner HIGHLY unlikely? AND isn't it HIGHLY unlikely that it would become a civil suit when the perp has no evidence to support their story? I mean, how could that happen?

How about an example:

A guy breaks in, damaged a door with a pry bar. Enters home, with a gun. He gets shot, runs and is found bleeding outside of home. Police and medics arrive, he lies and said he was lost and wanted directions. All evidence points to the lie. His gun is found on his person. The home owner legally owned their gun. The evidence of the break in is found, and the pry bar is found. The state has a castle doctrine. Lets say it was Florida's. The police file criminal charges against the perp, and they write a report that says the home owner acted in self defense, legally. How could the perp then sue?

I hope for all of this discussion of what-ifs, I actually missed something. I would like someone to explain this to me. If the perp has no evidence on their side, how could they sue? I'm just wondering.

Second, I really think that the "ammo which was meant to kill" argument is a secondary one, and it applies just as much to factory loads with zombies on the box as to hot hand loads.

The more serious issue with hand loads is that should the defender need to introduce GSR test data to counter a piece of unfavorable witness testimony or an unfavorable item of evidence, his or her having used ammunition that was not assembled by a third party under controlled circumstances would mitigate against the admissibility of that data into evidence.

That's probably a rather remote risk in a home defense scenario, but the potential consequences are severe, and the cost of mitigation is minuscule.

That makes sense. I referred to it as "ammo meant to kill" because I also don't understand what a lawyer would say about reloads? I mean he is going to say "clearly this man wanted to take lives with these custom made cartridges" when really, there is some very lethal factory stuff. That's another aspect of this that I question, what could be said about reloads that would hold up?

I take it you are a lawyer? How much evidence does a perp need in this specific scenario, to go make a civil suit of the matter? If I am reading you right, you are saying very little evidence is needed?

Um, no, you're not.

An "affirmative defense", which is the statutory language in most (all?) castle doctrine statutes, doesn't mean that you won't/can't go to criminal and/or civil trial. It simply means it's a defense. My state's language is word for word what several other states language is. The burden of demonstrating that the parameters of the castle doctrine is met falls on the defendant (that's you, the homeowner who shot the bad guy). In other words, you might very well still go to court and be tasked to defend yourself. And if you do, I'm confident that EVERY opposing atty, from expensive dream team to luck of the draw pro bono pool will bring the type of ammo used into evidence. That's their job. To discover everything they can about you, right down to "when was the last time you ate?" "Did you take an aspirin?" "How were you dressed?" "Do you practice shooting at human sillhouettes?".

They don't just decide on scene "Well you were in your castle, you're good - see you later".

Isn't it much simpler to use factory ammo, without ominous brand names, than to have to spend another several thousand dollars defending your hand loads?

So you're saying that its "likely" that a common criminal will pursue a civil case when they clearly broke the law and caused them self to be shot OR that a lawyer will take on a case where the plaintiff has no evidence to support the perp's/plaintiff's civil suit? I mean, that is what I was referring to, for the 1000th time. I am only discussing cases where the home owner/defendant was 100% following the laws, and there was no doubt at all about what happened. I'm not discussing home owners who did something dishonest in the context of a "SD" shooting.

I understand your point, in a way. I don't think you understood my point. You can't honestly tell me that civil suits against home owners are common in states with a castle doctrine. Can you cite anything? I am saying if that it was a clear cut case of a SD act protected by the castle doctrine, the perp then will not have enough evidence of a civil suit to take it to trial. In addition, if the home owner followed the laws, what recourse does a criminal have in a state with castle doctrine? If I am wrong about this, I'd like you to explain. You evidently are saying that if the police report, and every piece of evidence supported the SD shooting, but the perp lived, he could find a lawyer who would attempt to get damages in a state with a castle doctrine? Can you cite an example? It just doesn't make any sense. I can appreciate anyone saying the perp may want to do that, but I am trying to ascertain the likelihood or possibility of it actually happening. Has this happened in a state with castle doctrine, where the home owner/defendant followed all laws? Anyone have anything other than a conjecture? If its never happened, perhaps that is a clue that its not worth discussing to this length.

Just to say it again, because I love repeating myself using plain simple English, that apparently needs translated for everyone - I am NOT discussing a home owner/defendant who made a mistake, broke a law, or did something questionable in a SD scenario. I am referring to a case where everything points to SD, as described in the castle doctrine, a cut and dry case (which I suppose could be rare) how could the criminal get enough together to sue? I mean wouldn't the police report, his weapon that he had, and him likely breaking in all counter his own civil suit? Once again, I am talking a black and white case ONLY.

 

[Old Stony]

"Theoretical" self defense situations concerning ammo are just a lot of hot air. You are going to deal with lawyers ( PAID..TRAINED...LIARS), and you figure some little theoretical scenario is going to save you the hundreds of thousands of dollars you are going to pay them? They are paid to distort facts and you will be on the sharp end of that stick.
For a 30 buck box of ammo, I sure wouldn't risk everything I have in life..including my freedom. There is no doubt in my mind there is a lawyer just waiting to do his slimy best to put you in prison and grab every asset you have. I'm surprised they aren't advertising this kind of service on TV, along with the medical lawsuits.
Go ahead and load your own SD ammo, there are some lawyers out there that would love for you to pay for their new BMW and maybe a house too.

 

[Dondor]

regarding the "ammo meant to kill" and "ammo meant not to kill" from an earlier post, as well as pertaining to the OP...

why do we not use hollow points in the "theater of war" ?

 

[OldMarksman]

Posted by Winchester_73: I stated several times "...if the home defender/defendant followed all laws, acted in SD..." and you apparently dismiss that premise.

Absolutely not.

The problem is that the investigators, the charging authority, and the triers of fact have to determine both guilt and civil liability on the basis of just what pieces of evidence can be gathered after the fact. They do not have a complete sound stage cinematic record, shot from all angles and recording every relevant fact, that can be replayed until everything is known and thoroughly understood and agreed upon. Thus, even if the defender did act entirely within the law, that will have to be determined on the basis of incomplete piecemeal evidence.

That's the nature of SD investigations and trials.

My question to you is how could there be "preponderance of evidence" in favor of the perp if the home owner acted within the law and everything supported that?

If "everything supported that", no problem.

How often do you think it turns out that way? "Everything" is very seldom available after the fact, and what is available may be contradictory.

If the home owner does something questionable, of course the perp could have recourse.

Or if enough of what evidence that could be reconstructed seemed to so indicate.

I am asking about the home owner who did everything right, and every piece of evidence supports their claim.

Again, if all of the evidence sorts the claim, no problem. But therein lies the rub.

I am suggesting that the castle doctrine would protect the defendant if they acted within the specific laws, correct?

It does reduce the evidentiary burden on the defender in a criminal case. See the thread in LC&R.

Nothing you said can I disagree with necessarily, but isn't the perp suing the home owner HIGHLY unlikely?

Depends upon the evidence.

AND isn't it HIGHLY unlikely that it would become a civil suit when the perp has no evidence to support their story? I mean, how could that happen?

It won't happen under those circumstances. A plaintiff will have to have some evidence.

How much evidence does a perp need in this specific scenario, to go make a civil suit of the matter? If I am reading you right, you are saying very little evidence is needed?

A "preponderance of the evidence" is one straw over 50% of the evidence that can be pieced together after the fact.

You can't honestly tell me that civil suits against home owners are common in states with a castle doctrine. Can you cite anything? I am saying if that it was a clear cut case of a SD act protected by the castle doctrine, the perp then will not have enough evidence of a civil suit to take it to trial. In addition, if the home owner followed the laws, what recourse does a criminal have in a state with castle doctrine? If I am wrong about this, I'd like you to explain. You evidently are saying that if the police report, and every piece of evidence supported the SD shooting, but the perp lived, he could find a lawyer who would attempt to get damages in a state with a castle doctrine?

It has been said more than once before, but apparently it has to be reiterated.

The castle doctrine provides a defender with certain presumptions that make a defense in criminal court somewhat easier in a case involving the shooting of someone who has unlawfully (and in some jurisdictions, with force) entered a domicile. Read the post on the subject in LC&R, and re-read Frank Ettin's post #24 in this thread. The castle doctrine per se does not have anything whatsoever to to do with civil suits.

Some states, such as Florida and Missouri, to name two just examples, do have laws that reduce the likelihood of someone suing a defender after a lawful use of force incident. Most of them provide the defender with a means for asking the court to prevent further civil action. Another thing they do is establish that the standard for reasonable force in a civil case is the same as that in the criminal code. Some of them go further by making a plaintiff who fails in a suit pay for all of the costs, and in some states, even compensate defendant for expenses and lost wages.

Such laws have materially reduced the number of frivolous lawsuits. That was the intent.

Has this happened in a state with castle doctrine, where the home owner/defendant followed all laws?

Yes. Again, castle doctrine has nothing to do with it.

Let's discuss how things might work. A defender hears someone banging on the door, calls 911, puts on his glasses, grabs his gun and flashlight, and unwisely heads out into the hall to investigate, rather than staying in a safe place.

He is suddenly surprised by a moving shadowy figure who should not be there and, fearing harm himself and to his family, fires. The police arrive.

Did he do everything "right" from a legal perspective, according to the statute and case law, and considering the natural right of self preservation? I should think so.

The wounded man and his accomplice both testify that they were looking for valuables and both testify that they were in the process of trying to leave when the resident shot one of them. No weapons are found. An earwitness who heard shots and screams is certain the she heard what sounded like "don't shoot" before the shots rang out; that does not mean she was right, but it will likely be credible. Perhaps the investigators are unable to say with certainty that the door had in fact been opened forcibly. Perhaps the burglars' account differs from the defender's account in terms of where he was when he fired, and where they were and what direction they were going.

Things would not look really good for the defender, whose justification for using deadly force was provided for in law on the basis of a presumption that is rebuttable, but it is nonetheless quite conceivable that under the castle doctrine (or even without it), either the charging authority will conclude that they would be unlikely to get a conviction, or the triers of fact will decide that there is a reasonable doubt regarding criminal action. They might well decide that the evidence admitted into testimony does not prove beyond a reasonable doubt that the defender did not have reason to believe that deadly force had been immediately necessary.

But, with testimony that the wounded man was trying to flee,with testimony that the shots were fired after someone had asked someone else not to shoot, with no weapons having been found, and with some question about the location of the shooter and the victim casting possible doubt on the credibility of the defender, the defender's case may not be supported by a preponderance of the evidence. That would be decided by others.

Once again, I am talking a black and white case ONLY.

...which is so rare that such discussion would be of academic interest only. If all of the evidence favored the defender, there would be no case, criminal or civil.

 

[Spats McGee]

The problem with holding up a "clear-cut case of SD" as an example by which to test a legal theory, any legal theory, is that SD shootings are almost never as clear-cut as we'd like them. Events unfold very, very quickly, and the SD shooter will have, at best, a couple of seconds to determine if shooting is warranted. As I've said before, "a good shoot is a good shoot if the police, investigators, prosecutors, grand jury, judge and a jury or two believe it is a good shoot." The SD shooter doesn't get to decide if it was a clean shoot or not. Someone else does that after the fact.

As to the likelihood of the bad-guy suing. As for the BG himself, I'll just say that it's far from "outside the realm of possibility." Should the SD shooter actually kill the BG, I would say that the odds of the shooter facing a lawsuit by the estate of the BG climb substantially. No, I don't have any stats to back that up, just a gut feeling formed over the last decade or so practicing law.

 

[zxcvbob]

Once again, rather than just say "that might not be a good idea" but answering the question that was asked, the entire discussion goes off of a tangent with everybody pontificating the same old rehash again (why not just post a link to one of the other threads where we've done this before?)

 

[SgtLumpy]

"...if the home defender/defendant followed all laws, acted in SD..."

Castle doctrine is not a "law to follow" that gives you permission to shoot. It provides for an "affirmative defense". That's different from something like laws against speeding or running a red light. If you don't exceed the speed limit, you are "following the law". If you shoot someone, there may be a castle doctrine that gives you an "affirmative defense" for your lawyers to use. But it doesn't just automatically mean you're released on scene.

AND isn't it HIGHLY unlikely that it would become a civil suit when the perp has no evidence to support their story?

Evidence is not "required" for someone to file a civil suit. The lawyer taking the case may feel it's not winnable but that wouldn't stop anyone for filing civil suit against anyone else for any reason. The "evidence" comes out in the (expensive) trial. Not in some kind of pre-trial hearing where the DA decides to take the case or not. There is no DA in a civil suit. Just two highly paid, well trained, enthusiastic lawyers doing every thing they can to appeal to the emotions of the magistrative body that their client was "more right" than the other lawyer's client.


Sgt Lumpy

 

[buck460XVR]

You can use reloads for self defense. Nobody's stopping you. It's completely legal.

Exactly. Folks give all kinds of reasons for not using it with the "could happen, might happen" spiel, but facts are, reloaded ammo has NEVER turned a good SD/HD shoot into a bad one. You will have a huge lawyer bill after a SD shoot even if you use factory ammo. Ask George Zimmerman. Funny how most "celebrity experts" preaching using factory ammo are sponsored somehow by ammo companies. If reloads make for a bad SD shoot, what about that trigger job or the custom gun as opposed to stock factory? Maybe you shouldn't go to the range and practice so much either, might make you a "Mall Ninja". Sorry, but if I have a situation where I have to pull my gun and use it, I want the best ammo I know of in it. If that's my reloads, then so be it. If there truly is a legitimate reason I need to use it, and I don't say the wrong thing to police and reporters afterwards, ammo using readily available components, loaded to published load recipes that can easily have the rest of the unfired cartridges in the mag/cylinder or my pocket tested, will be the least of my worries. When it comes to protecting one's life and the lives of their loved ones, I always recommend folks use what shoots the best outta the intended firearm(accuracy and reliability) and what they are the most proficient with and most comfortable using. Living thru or saving your loved one's life in a scenario like that is what's important. The rest is just internet chatter.

 

[OldMarksman]

Posted by buck460XVR: If reloads make for a bad SD shoot, what about that trigger job or the custom gun as opposed to stock factory?

Reloads cannot and will not "make for a bad SD shoot."

However, what has been done to your trigger or safety can make a lot of difference in a civil court.

If there truly is a legitimate reason I need to use it, and I don't say the wrong thing to police and reporters afterwards, ammo using readily available components, loaded to published load recipes that can easily have the rest of the unfired cartridges in the mag/cylinder or my pocket tested, will be the least of my worries.

You can have the hand-loads in your pocket tested if you want to , but good luck in trying to get the results admitted into evidence if you need them. Won't happen.

Living thru or saving your loved one's life in a scenario like that is what's important.

True.

But it would be very difficult indeed to convince police officers, US Marshals, Treasury Department, agents, FBI investigators, SOCOM force members, or most knowledgeable firearms experts that the use of handloads would increase that probability over what it would be if premium factory defensive ammunition, with every round inspected, were used.

The rest is just internet chatter.

Neither the Frye nor the Daubert rules are "internet chatter."

 

[Spats McGee]

Folks give all kinds of reasons for not using it with the "could happen, might happen" spiel, but facts are, reloaded ammo has NEVER turned a good SD/HD shoot into a bad one.

Therein lies one of the real problems of The Reload Discussion: The SD shooter does not get to choose the time, place, or circumstances of the shoot. Whether any given shoot is a "good" one is determined after the fact by investigators, police, prosecutors, judges and juries. Even if using reloads doesn't "turn a good shoot into a bad shoot," it can significantly complicate the defense and wind up costing the SD shooter/defendant tens of thousands of dollars, in addition to potentially leaving him incarcerated for extended periods of time. Daniel Bias comes to mind.

You will have a huge lawyer bill after a SD shoot even if you use factory ammo.

Sure you will, but that doesn't mean that I'm all that interested in adding 30 or 50 thousand more to it, especially if I can avoid it by spending $30 on a box of factory ammo.

. . . . Funny how most "celebrity experts" preaching using factory ammo are sponsored somehow by ammo companies.

I am neither a celebrity, nor sponsored by an ammo company. Using reloads is still a bad idea.

If reloads make for a bad SD shoot, what about that trigger job or the custom gun as opposed to stock factory?

Trigger jobs or other custom work could be problematic for an SD shooter, but the reasons that those might be problematic are different from the reasons that might make reloads a problem.

. . . . if I have a situation where I have to pull my gun and use it, I want the best ammo I know of in it. If that's my reloads, then so be it. If there truly is a legitimate reason I need to use it, and I don't say the wrong thing to police and reporters afterwards, ammo using readily available components, loaded to published load recipes that can easily have the rest of the unfired cartridges in the mag/cylinder or my pocket tested, will be the least of my worries. When it comes to protecting one's life and the lives of their loved ones, I always recommend folks use what shoots the best outta the intended firearm(accuracy and reliability) and what they are the most proficient with and most comfortable using. Living thru or saving your loved one's life in a scenario like that is what's important. The rest is just internet chatter.

As OldMarksman pointed out, there are some problems with a handloader getting his data in front of the jury, should it become an issue. Here's what I wrote on the subject in a different post:

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.

 

[OldMarksman]

Posted by Spats McGee: 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.

That's a very good way to explain the most important aspect of the issue.

I think there is also a potential concern that even if the data did not belong to the defendant, of there is uncertainty about how the manufacturing and quality data had been measured, recorded, and kept in a manner that would assure their reliability, the prosecution would have a reasonable basis to challenge the admissibility of the testimony of the defendant's expert.

For a number of cogent reasons, ammunition manufacturers record and retain extensive manufacturing measurement data, lot testing data, and so forth. Those data are kept in a manner that ensures that they have not been altered or tampered with.

That process not only protects the integrity of the records, it also provides an objective way of evaluating variations among and within lots, which could help to counter any challenge to the repeatability and accuracy of the test results.

 

[Winchester_73]

Evidence is not "required" for someone to file a civil suit. The lawyer taking the case may feel it's not winnable but that wouldn't stop anyone for filing civil suit against anyone else for any reason. The "evidence" comes out in the (expensive) trial. Not in some kind of pre-trial hearing where the DA decides to take the case or not. There is no DA in a civil suit. Just two highly paid, well trained, enthusiastic lawyers doing every thing they can to appeal to the emotions of the magistrative body that their client was "more right" than the other lawyer's client.

Actually, old marksman already addressed this, that evidence IS required. See below:

It won't happen under those circumstances. A plaintiff will have to have some evidence.

I appreciate the replies to my questions within this thread. I learned some things for sure. Certainly this thread puts a light on some aspects to a SD shooting that I never considered. I also consider this subject interesting.

Here are a few more quesitons I have:

1) Based on the ambiguity of many SD shooting when they come to court, is it always wiser to retreat, if possible? In other words, retreating when possible even if there are stand your ground laws, or a castle doctrine, which could help? I take it that a retreat is a wiser move, if possible. I would have to think that a retreat, if verifiable, would make the shooter look better? Am I right?

2) If the perp died on the scene, and the only witness left was the shooter, what recourse does the perps family have in a civil suit? For the perp's civil suit, I would think that the perp dying on the scene, without having talked to anyone, would mean that a civil suit against the shooter would be difficult to place? This is once again assuming the shooter did nothing wrong or controversial, IE did not shoot the guy in the back, did not shoot someone from a long distance, etc.

 

[Winchester_73]

Oldmarksman - since its an internet message board, what qualifications or experience do you have? I'm not saying this to be a smart@#$, just wondering. You make a lot of sense, so are you a lawyer, law professor, law student ?

I see, Spats McGee, that you are an attorney, based upon your TFL profile. What kind of cases do you specialize in, and how many years experience do you have? Which law school did you attend? I'm just curious, I'm not doubting you or anything. Have you handled cases similar to the scenarios in this thread?

 

[OldMarksman]

We've Strayed from the Topic of .38s, But the Questions Are Important

Based on the ambiguity of many SD shooting when they come to court, is it always wiser to retreat, if possible? In other words, retreating when possible even if there are stand your ground laws, or a castle doctrine, which could help? I take it that a retreat is a wiser move, if possible. I would have to think that a retreat, if verifiable, would make the shooter look better? Am I right?

Retreat, if safely possible, is indeed a wise move:

• It may obviate the need for the defender to shoot;
• it may prevent the defneder from being stabbed or shot;
• and if the defender does have to shoot, it would likely strenthen his defense of justification.

If the perp died on the scene, and the only witness left was the shooter, what recourse does the perps family have in a civil suit?

Depends upon the evidence:

• Had the parties met before?
• Had the decedent known someone in the shooter's family?
• What had the shooter posted on the Internet?
• Did the shooter have any posters such as those that say "Protected by Smith & Wesson?" or "…be Found here Tommorrow"?
• Did the shooter have in his possession any training material that spoke of "always winning"?
• What does the forensic evidence show?
• Had the decedent been looking for a house that looks just like that of the shooter?
• And so on….

 

[OldMarksman]

Posted by Winchester_73: Oldmarksman - since its an internet message board, what qualifications or experience do you have? ... You make a lot of sense, so are you a lawyer, law professor, law student ?

I spent the greater part of a long corporate career working with the attorneys, and I reported directly to the Chief Counsel of my business unit for a couple of years. Parts of my job involved writing legal and regulatory compliance procedures, along with supporting internal investigations and participating in litigation support. Part of that pertained to the establishment of processes to ensure the admissibility of evidence, which is relevant to this discussion. Another related part of my job had to do with risk management; I co-wrote the company procedures. That applies directly to the subject at hand.

I attended numerous classes that would, for an attorney, be classified as Continuing Legal Education.

My degree was in engineering, and my career specialty was in finance. Parts of my job involved my having to understand manufacturing processes, testing, test documentation, and quality assurance procedures.

Since that time, I have attended one of the premier courses in Use of Force law; spent numerous hours around the campfire with senior LEO personnel; corresponded with attorneys on this board and on The High Road; and I have authored a number of 'sticky' posts on the boards.

I am a student of both legal theory and legal history, and I spend a lot of time researching state codes and appellate decisions.

I have recieved more formal education in use of force law than most law school graduates.

I see my most important role here as trying to help others understand as much as possible to stay out of trouble.

In that pursuit, I rely a lot on attorneys on the board including Frank Ettin, Spats McGee, and Bartholomew Roberts, and on Fred Fuller of THR.

But all I really know is that the only really "good shoot" is the one that never happens.