Spats McGee
Administrator
Thanks for the info, MarkCO.
Why not reloads for self defense?
- Thread starter 2wheelwander
- Start date
That would have to be done with energy analysis. I can tell an energy difference of about 50 fps or more. But that is dependant on knowing the bullet path and materials encountered. I did exactly this on a bullet from Columbine. The issue was if the round was from an LEO pistol or one of the attackers guns.
Nope. If I am admitted as an expert, my analysis is admitted provided it was in my report or deposition. While the opposing attorney can attack it, I have never seen a court ever meander into the validity of exemplars used by an expert. Not saying it can't happen, but use of exemplars by me still has to pass the scientific method or I would not use them in the first place. While I know folks who have had their tests, testimony stricken or restricted, I would consider it a huge mistake on my part as an expert if an exemplar was not valid.
Experts cherry pick cases as well. I have been asked to work on many cases and after an initial review I think my client, or my clients client, is barking up the wrong tree, I will turn down the case. I have worked with some pretty good attorneys and they have the right to restrict what they ask mr to evaluate. I don't want a savvy attorney to use my work in a manner I do not believe serves justice. That said, I have been called by opposing counsel to testify in court on cases where I told my client they had problems and they should settle, but they went to court anyway.
If the goal is to determine bullet path, doesn't this mean that it's impossible to verify that the exemplar rounds are representative?
In other words, if the question is: From how far away was this bullet fired, and it doesn't go through anything else then doesn't it mean that you'd have to:
1. Know from how far away the bullet was fired to determine if the exemplar rounds were representative.
AND
2. Know that the round used was more or less identical to an exemplar round to determine from how far away the bullet was fired.
Let me see if I get this straight... "exemplar" ammunition is ammunition that is claimed to be the same as the ammo used in the shooting. That would be the same in all aspects. Bullet, powder charge, etc.
If the defendant says "the rest of the ammo in the box that I loaded is the same as what was used" then the court could have doubts, and refuse to accept that ammo as "exemplar".
But if the court accepts the expertise of a technical expert's testimony/report, and that expert states the ammo in question is a valid exemplar of what was used, then the court will accept that.
Is that about right?
If the defendant says "the rest of the ammo in the box that I loaded is the same as what was used" then the court could have doubts, and refuse to accept that ammo as "exemplar".
But if the court accepts the expertise of a technical expert's testimony/report, and that expert states the ammo in question is a valid exemplar of what was used, then the court will accept that.
Is that about right?
Spats McGee
Administrator
Yes. Exemplars, generally, are known, standard samples. In this case, to have an exemplar tested, it needs to match in all of those relevant aspects you named.
The court could have doubts about it. Remember, the judge is a lawyer, and (sadly) not generally a gun guy. If the lawyers in the case stipulate that someone is an expert, the judge is unlikely to challenge that, and will accept his testimony as an expert. If memory serves, that was part of the problem in Bias. (It's early and I'm pre-coffee, so someone correct me if I'm wrong.) In Daniel Bias' criminal trial, at least the first one, the state crime lab had tested some factory ammo. IOW, the wrong ammo. I don't know about other states, but our state crime lab does a ton of training and education for its folks, such that most defense attorneys simply stipulate that the crime lab people are experts. Why? Because they don't want a jury hearing about all of the degrees, training and certifications that the crime lab witnesses have. Defense will likely lose, the state crime lab witness gets certified as an expert, and now you've spent an hour telling the jury how smart the State's expert is . . . .
MarkCO is correct about the procedure. If he (or someone else) is admitted as an expert, the court's not going to get into the validity of an exemplar . . . . at least not on its own. If the lawyers disagree on whether someone is an expert, we've got a different situation, though. But, while trying not to get too "inside baseball," there are a couple of points:MarkCO said:
1. In a criminal case, at least in this State, we don't do depositions. I think there might be some mechanism for them, but I've never even heard of anyone taking one. With that said, the rules of discovery force each side to turn over CVs and reports created by experts. The State can almost always get an expert through the State Crime lab. The Defendant may or may not be able to afford one. A defendant could challenge the State's expert strictly via cross examination, but I don't see that going very well, generally speaking.
2. In a civil case, an SD shooter is looking at a possible "battle of experts." I'm not saying it will necessarily happen, but it's a possibility. Now, I'll make a point that can make the practice of law look a little sketchy: When I was in civil litigation, fairly common practice was that if an attorney hired an expert, that attorney would ask them for an oral report first. Why? Because he or she didn't have to turn that over in discovery. If the oral report was unfavorable, the attorney would go find another expert. If it was favorable, the attorney would ask for it in writing. Once both sides have disclosed and turned over the experts, their CVs and reports, then the depositions can begin. If the lawyer is worth his weight, then he should be asking about the exemplars used in testing.
As MarkCO notes, the lawyers will decide what they want tested or evaluated. We always say "don't ask a question unless you know the answer." Right, wrong or indifferent, though, that doesn't stop the other lawyer from asking. So in an expert witness situation, if I ask an expert to evaluate A, and B, and the other lawyer asks about C, I want the expert to be able to honestly say, "I didn't test for C."
MarkCO, if I may, I have a couple of questions for you: If a potential client came to you with a shooting case involving handloads, how would you determine what kind of exemplar to use? Or, if the attorney presents you with the exemplar, whether it is sufficiently similar to the round used to provide a valid comparison?
unclejack37
Moderator
The only way someone can go after you for using a reloaded bullet is if you tell someone you were using reloads as a defensive bullet. Based on everything I've seen or read about the standard answer should be "I don't know", "I don't recall", "I don't think so", "I'm not sure". If you are using reloaded bullets as defensive ammo and have to defend yourself in a use of deadly force case, why would you admit to using reloaded ammo??? duh
I don't know of anything that would require you to volunteer the information, but if you were asked, you couldn't deny it, that would be lying. And, then there is the "risk" that they might claim you deliberately withheld the information for "some nefarious purpose known only to the killer..." etc.
I would think that if you were asked why you didn't "tell investigators you used handloads" would be the simple "they never asked" response, but jurors form opinions based on the strangest things..or so I've heard...
Bartholomew Roberts
Moderator
Well, if investigators are going to test the ammo to confirm that your story is true because the distance at which it happened is critical to your story, then lying to them and saying you used a completely different factory ammo might have some really unpleasant consequences when they test the factory ammo and it doesn’t match the stippling pattern from the incident.
And that’s assuming you could get away with the first lie since they’d have whatever ammo was not expended.
OldMarksman
Staff
No one is going to successfully "go after" anyone for "using" a "reloaded bullet".
The question is about whether the judge, as the gatekeeper of the evidence, will admit expert testimony about the ammunition.
He or she is bound by the rules of evidence. These vary by state, and in some states, even between civil and criminal courts. But, to summarize them very much without going into the details of the reasons, ammunition that has not been prepared by a third party using very strict and objectively verifiable methods regarding process, testing, and record keeping, will not meet the rules of evidence.
There is a rather arcane area of law that governs that kind of thing. It falls under a subject that was originally called "admissibility of forensic scientific trace evidence". The subject has been extensively tested in high court decisions and is well documented. None of that has had anything to do with ammunition, but that fact is completely irrelevant.
And no, that is by no means the only way that the fact that reloads were used can be established.
Whether the defense will have a need to introduce expert testimony and evidence about the ammunition used will depend upon the details of the case and upon the other evidence that is introduced by the prosecution of the plaintiff, and upon what other evidence can be introduced by the defense.
The reason that the defense may wish to introduce such evidence and testimony would have to do primarily with the subjects of the distance of the shots, of what other evidence may pertain to that, and of how it may impinge upon the credibility of the defendant or his or her witnesses,
It occurs to me that in a case like Martin/Zimmerman,if I'm the SD shooter,GSR evidence may well support my claim that I was on the ground being pounded and could not risk going unconscious.
With respect for what MarkCo has offered,
My understanding is that a factory load may give different results than my handload.Its not just that error that may be the problem.My handload GSR results may be inadmissible.
If there are no other witnesses,I might really need that GSR evidence to support my SD claim.
That may not be a reason for me to tell you what to carry.Thats up to you.Its the reason I choose to use factory ammo for carry ammo.
IMO,its got nothing to do with "More or less lethal"
If I would carry handloads,they may well be 45 ACP cast 200 gr SWC target loads at 850 fps. They would work. "I just carry my target shooting loads.Probably "less lethal" than "hollow points" to the jury.
Another way of saying it,the issue is not about what you defended yourself with,its about admissible evidence you were justified to use deadly force.
Consider its likely inside 7 yds and there may be no witnesses.Or,there may be a "Hands up,don't shoot " witness with an agenda.
(OOPS! Old Marksman and I were writing at the same time. "What he said!")
With respect for what MarkCo has offered,
My understanding is that a factory load may give different results than my handload.Its not just that error that may be the problem.My handload GSR results may be inadmissible.
If there are no other witnesses,I might really need that GSR evidence to support my SD claim.
That may not be a reason for me to tell you what to carry.Thats up to you.Its the reason I choose to use factory ammo for carry ammo.
IMO,its got nothing to do with "More or less lethal"
If I would carry handloads,they may well be 45 ACP cast 200 gr SWC target loads at 850 fps. They would work. "I just carry my target shooting loads.Probably "less lethal" than "hollow points" to the jury.
Another way of saying it,the issue is not about what you defended yourself with,its about admissible evidence you were justified to use deadly force.
Consider its likely inside 7 yds and there may be no witnesses.Or,there may be a "Hands up,don't shoot " witness with an agenda.
(OOPS! Old Marksman and I were writing at the same time. "What he said!")
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The two cases I am working on right now, I have the remainder of the ammunition in the magazine as well as a partial plastic ammo box that was collected. One is an accidental shooting and the other was a catastrophic gun failure, so neither is an intentional shooting in self defense. In most cases, that is what I want, ammo from the gun or container from which the ammo used was taken. If that is not available, then I am left with the notes or testimony of the reloader from which I could load ammo to use as an exemplar. I have only done that once for a civil case. I would have to consider all of the variables and if I had a question, then I would decline to use or create the samples.
Reload all you want
Shoot all of the reloads you want
Use factory ammo for SD/HD
If you can afford to reload and shoot, you can afford a cpl boxes of factory defensive ammo. If you want to reload ammo that duplicates your chosen factory SD ammo...good, but use factory in the gun on the street
Shoot all of the reloads you want
Use factory ammo for SD/HD
If you can afford to reload and shoot, you can afford a cpl boxes of factory defensive ammo. If you want to reload ammo that duplicates your chosen factory SD ammo...good, but use factory in the gun on the street
Spats McGee
Administrator
Very useful information. Thanks, MarkCO.
unclejack37
Moderator
In my post I mentioned " why would you admit to using reloaded ammo??? duh". I was saying that 'IF' I used reloads in a self defense situation and 'IF' asked about my ammo I would respond by saying I don't remember what I loaded in the weapon. You're not lying or perjuring yourself if you can't remember something you did several weeks ago.
Frank Ettin
Administrator
unclejack37 said:
Some really lousy ideas.
- If you fired a gun in what you will claim was self defense it's still likely the the gun and ammunition will be taken as evidence for the purposes of investigating the incident. The gun and ammunition will most likely be examined by a Firearm and Toolmark Examiner. There's pretty much no chance that he won't know that you used handloads.
- So you say that you don't remember what ammunition you loaded your gun with. Do you really think that anyone will believe you? Such an answer will strike most people as evasive and suggest that you have something you're trying to hide. It can significantly damage your credibility.
- In a self defense case especially you need to maintain your credibility.
Several years ago a lawyer by the name of Lisa Steele wrote an excellent article for lawyers on defending a self defense case. The article was entitled "Defending a Self Defense Case" and published in the March, 2007, edition of the journal of the National Association of Criminal Defense Lawyers, The Champion. It was republished in four parts, with permission, on the website, Truth About Guns. The article as republished can be read here: Part 1; Part 2; Part 3; and Part 4.
As Ms. Steele explains the unique character of a self defense case in Part 1:
Spats McGee
Administrator
As a corollary to Frank's advice on credibility, I'll point out the following: A significant loss of credibility could move the needle from "do not file" to "let a jury sort it out."
unclejack37
Moderator
For me, maybe not for you but there are 2 things you should never do.
1) Never volunteer for anything.
2) Never admit to doing anything.
It doesn't matter if anyone believes you or not. It doesn't matter what it may or may not suggest. It's about looking out for yourself first because nobody else is. There's nothing wrong with playing stupid. It seems to work pretty well for our law makers in Washington. Almost all of them never got to "Let a Jury sort it out" stage either.
NUFF SAID
1) Never volunteer for anything.
2) Never admit to doing anything.
It doesn't matter if anyone believes you or not. It doesn't matter what it may or may not suggest. It's about looking out for yourself first because nobody else is. There's nothing wrong with playing stupid. It seems to work pretty well for our law makers in Washington. Almost all of them never got to "Let a Jury sort it out" stage either.
NUFF SAID
I do believe in looking out for myself.
That's why I use factory loads for carry.
I was thinking on another topic,a thought came to me that could be applied here.
If being armed makes a person more likely to walk toward a high risk situation,its not about courage. Courage cannot be bought or strapped on.
A coward can strap on a gun and feel big.
If being armed makes you more conscious,more polite,more likely to consider the best alternative...
Being armed CAN be a discipline in exercising WISDOM.
I do believe in Freedom. Even the Freedom to be Unwise.
That Freedom does not preclude making wise choices.
Those who argue in favor of making unwise choices...…..Put themselves on display.
That's why I use factory loads for carry.
I was thinking on another topic,a thought came to me that could be applied here.
If being armed makes a person more likely to walk toward a high risk situation,its not about courage. Courage cannot be bought or strapped on.
A coward can strap on a gun and feel big.
If being armed makes you more conscious,more polite,more likely to consider the best alternative...
Being armed CAN be a discipline in exercising WISDOM.
I do believe in Freedom. Even the Freedom to be Unwise.
That Freedom does not preclude making wise choices.
Those who argue in favor of making unwise choices...…..Put themselves on display.