Update: What is the current general consensus on carrying a modified handgun?

[Loosedhorse]

I'm not sure of that--such a defense would likely have put more focus on the caliber.

True. And then he might have been convicted.


We all get to make our own decisions. If (G-d forbid) I'm ever tried for a self-defense shooting, and if the prosecutor tries to make an issue of my use of hollow-points, you can be assured that my defense will discuss that issue at length to expose the lies about hollow-points the prosecutor and his witness just entered into evidence.

Even if it puts more focus on the fact I used a 10mm. Or used a 9mm--the very same pistol caliber the Nazis used!!!!


Of course, at least they were kind and gentle enough to use FMJs.

YMMV.

asking the bailiff whether the bailiff carried a 10MM side-arm.

So what? Again, we have nowhere established that the caliber was a factor in the jury's convicting Fish. There is no evidence that "10mm = conviction."

It is apparently the HPs-are-death-bullets testimony that swayed the juror, and so that evidence should have been dealt with. That wouldn't have been hard to do, starting with establishing that the bailiff uses the same bullets.

Now, sure, since the prosecutor did indeed make a huff about the 10mm caliber, that also should have been dealt with by the defense. Even if it's true that the 10mm caliber did not sway the jury, there was no way they could have known it wouldn't in advance. So leaving any negative claims about 10mm go unchallenged was (again) one of many errors made by Fish and his defense.

(I again admit I may be wrong here: if someone does have a reference to a juror interview in which he or she says that the 10mm was a big factor in Fish's conviction, I'd be grateful to be pointed in the right direction. I have read some good attorneys' speculations to that effect, but nothing beyond opinion.)

In the end, we have to decide what lessons we'll learn from Fish. Don't use HPs? Don't use 10mm when hiking?

Or be prepared to articulate to the jury why you made those choices, understanding that all of your choices will be open to question.

 

[OldMarksman]

It is apparently the HPs-are-death-bullets testimony that swayed the juror..., and so that evidence should have been dealt with.

That's what we know about one juror, and that became known after the fact.

That wouldn't have been hard to do, starting with establishing that the bailiff uses the same bullets.

No, not "the same". Not 10MM.

Now, sure, since the prosecutor did indeed make a huff about the 10mm caliber, that also should have been dealt with by the defense.

At the risk of putting more focus on the prosecution's comments about the 10MM..

I do not think I would have advised that.

 

[Loosedhorse]

Why not "the same"?

There's a good chance the bailiff was carrying a .40. Both 10mm Auto and .40 S&W most commonly use the same 180 gr .40/10mm JHP bullets.

That would be the same bullet.

I do not think I would have advised that.

Then you won't be my attorney.

Problem solved. Bygones.

 

[Lohman446]

Referencing the gun the bailiff is carrying (your not likely to be able to directly as him as he is neither an expert witness or material to the case) only to have it pointed out that you are carrying something even more powerful then that seems like a horrible strategy.

To me the best defense that can be had for whatever you are carrying is a clear articulation of the reason you are carrying. When I carry a 10MM in the woods it is not because of my concern about two legged threats but my concern of four legged threats.

Expert testimony, so I am told, tends to bore jurors and, because it is often beyond their understanding or interest, they tend to miss out on some important information. While I would always defer to the lawyer defending me I want as little time spent on muddying the waters with technical information and as much time concentrating on the situation at hand such as the actions that required me to use deadly force despite my strong desire not to.

If I am forced to defend the technical information I am forced to either bore the jurors, muddy the waters, or spend less time on my primary defense: I did not want to use deadly force and only did so as a last resort.

 

[OldMarksman]

That would be the same bullet.

Yes, and you know that and I know that, but the jurors will not.

A little too "inside baseball", as Frenk Ettin likes to say.

And it would be meaningless. The concern is about a 10MM with hollow points.

Would you really want to shine a spotlight on it by putting someone to testify about it and subjecting the testimony to cross examination?

 

[OldMarksman]

To me the best defense that can be had for whatever you are carrying is a clear articulation of the reason you are carrying. When I carry a 10MM in the woods it is not because of my concern about two legged threats but my concern of four legged threats.

That makes sense, and if the area in which Fish was hiking was such that carrying something like a 10MM was prudent, that might have been useful.

It would, however, have underscored the weapon issue in the minds of he jurors, and the defense may not have wanted to do that.

 

[Loosedhorse]

only to have it pointed out

You have the sequence wrong.

The prosecution already pointed out the 10mm caliber and the JHPs, and placed into evidence lies about them that were potentially very damaging to Fish's claim of self-defense.

Fish chose to follow the route suggested by your advice; he left those lies unchallenged. We know where that got him.

Some will choose to repeat that mistake if (G-d forbid) they are ever in a similar situation. I'll choose to learn from his mistake. I can't tell you you're wrong to do what you prefer; everyone should choose what they feel is best.

You also may have the facts wrong. The typical commercial 10mm JHP round is loaded to FBI specs, significantly downloaded from "max" 10mm. So, the FBI 10mm is pretty much the same as the .40. In fact, that near-equivalence is the very reason the .40 came into existence: Smith & Wesson realized they could get "10mm" performance out of a 9mm-length cartridge and 9mm-sized pistols

For example, Federal's current PD 10mm offering is a 180gr JHP listed at 1030 fps; their .40 180 gr offering is listed at 1000fps.

PS: What is the effect, if the bailiff had a .40, of the 10mm being "even more powerful"? It generally means that, at higher velocity, the very same bullet would expand more quickly, shed more weight...and so penetrate less.

 

[Loosedhorse]

Yes, and you know that and I know that, but the jurors will not.

Yes, they would. After the defense team tells them.

The concern is about a 10MM with hollow points.

No. The concern is juror ignorance about what "a 10MM with hollow points" means, and allowing prosecution-presented lies about that stand as their ONLY information on that subject, without any countering information offered by the defense at trial.

That was a mistake.

...subjecting the testimony to cross examination?

The funny thing about truth offered by true experts: it stands up to cross-examination. Even if it is "inside baseball".

By the way, the courts call "inside baseball" by the term "special knowledge". It is exactly what jurors are NOT expected to possess (they have general knowledge), and exactly what expert witnesses are employed to tell jurors about.

If the defendant can also, by discoverable documents, show the jury that he possessed that same special knowledge prior to the incident, so much the better.

 

[OldMarksman]

Yes, they would [know]. After the defense team tells them [that the projectiles in .40 in and 10M loads are the same].

I suggest that not only would that bit of technical trivia not have been helpful to the defense, discussing it further might well have made things worse.

The prosecution had made big issue of the lethality of the 10MM and the hollow point bullets. By dwelling on it to try to make a point about "truth", the defense would likely have made the firearm issue an even bigger one in the minds of the jurors than it already was.

Look at it this way: if a questionable homicide case is being tried and the prosecution introduces a black pistol grip shotgun with an ammunition holder and a flashlight on it as the "murder" weapon, would the defense be well advised to have someone to to explain why the gun isn't really "all that bad" because a 1 1/2 ounce buck load is a 1 1/2 bounce buck load? We know from Dr. Glenn Meyers' jury simulation experiments that the appearance of the gun may well be damaging, even if the prosecutor says nothing about it. Should the defense try to take the issue farther into the minds of the jurors than it already is? Attorneys with whom I have discussed the question say no.

I agree with Lohman446. If the defense believed it prudent to try to influence the jury by arguing points about the gun issue, rather than trying to concentrate on other aspects of the case, that would best have been done by having an expert articulate why it would have been prudent for a hiker in the area to carry a 10MM in the first place--if the facts of the locale would support that.

I do not know whether that would have been effective. In many areas, a 10MM would not reasonably be really needed for any probable threat. In others, carrying one might be a good idea.

 

[Loosedhorse]

In many areas, a 10MM would not reasonably be really needed for any probable threat. In others, carrying one might be a good idea.

Hmmm. So we should limit our choice of carry to some determination (not our own) of what would be "really needed for any probable threat." Perhaps, once that maximal level of arm has been determined, we should pass a law, you know, to keep anyone from getting into trouble with a jury later for having a "too powerful" gun.


OM, you remind me of a couple people I know. Only superficially, of course, since that's the only way that I "know" you.

In any case, I learn much more from those I disagree with than from those I agree with, so once again I thank you, sincerely. Still, there can come a point in any conversation where I (perhaps both of us) feel that we've learned as much from each other as we're going to.

So, again, I retire.

 

[OldMarksman]

Hmmm. So we should limit our choice of carry to some determination (not our own) of what would be "really needed for any probable threat.

Of course not! and that;s not what are talking about, is it?

But that just might be the basis for a juror's conclusion, should the subject come up in court. Shouldn't. but it might. And that was the subject at hand.

I do not hike any more. If I did, I would likely strap on my five inch seven shot 686--even though the most dangerous predators around here are people, and my 9MM would suffice.

Would it hurt me in court? I doubt it. Revolvers are likely to raise eyebrows than black guns with all knows of accessories on them.

 

[OldMarksman]

No one said anything about "far below standards". The question was only about being "modified".

Almost certainly, a crime lab finding that a weapon had been modified would be more damaging than one that simply stated a measurement.

An extremely light trigger pull weight that is materially outside the range of customary factory specifications could still present problems, however, in a suit alleging an unintentional discharge.

And it should be relatively easy to support a contention that there are, in fact, "accepted" factory standards.

As Massad Ayoob put it in the aforementioned article,

What Exactly Constitutes a ‘Hair Trigger’?

That will generally be determined by manufacturer spec for “duty trigger” pull weight, and “common custom and practice” WITH THAT PARTICULAR FIREARM.

With the popular Glock, the manufacturer’s position is that the nominal 5.5-lb. pull weight of the standard model is minimum for duty. Pistols like their Tactical/Practical G34 and G35 come standard with 4.5 pound triggers, but are also listed in the Glock website and catalog under “sport” (i.e., “target”) pistols rather than law enforcement or self-defense guns. When ordered by police departments, it is Glock policy to install the 5.5-lb. trigger in those models. (The 3.5/4.5-lb. connector is factory approved for serious use only in conjunction with the NY-1 trigger module, which brings pull weight up into the 6-lb. range.)

On the other hand, with the 1911, a pistol equipped with thumb safety and grip safety, the 4.5-lb. trigger is much more defensible. NRA’s minimum pull weight on a 1911 in the Distinguished match is 4.0-lb. This seems to be the minimum pull weight for a duty 1911 recommended by most of its many manufacturers, including Colt.

A cocked double action revolver is generally seen as having a “hair trigger,” and was presented as such in trial or at grand jury in Florida v. Alvarez S&W Model 64, NY v. Magliato (Colt Detective Special), Michigan v. Chase (S&W Model 15), Georgia v. Crumbley (S&W Model 686), and Crown v. Gossett (S&W Model 10) among others.

That trigger pull modifications can be harmful in terms of legal outcomes is not mere speculation.

 

[Frank Ettin]

That trigger pull modifications can be harmful in terms of legal outcomes is not mere speculation....

Speculation is:

the activity of guessing possible answers to a question without having enough information to be certain

A professional forming an opinion based on his education, training, and experience is not mere guessing.

 

[Frank Ettin]

Gone on long enough.