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Don P
December 27, 2011, 08:42 AM
Last night on the Sportsman's Channel they did a segment on ammunition for personal defense. Massad Ayoob did the segment and he stated this with regards to ballistic analysis.
When factory ammo is used in a SD shooting they can check as he "stated inch by inch to duplicate gun shot residue because they have factory back specifications to work with. As far as reloads for SD goes they would have no data to back up the shooters claim as far as ballistics go".
I did not post this to start the old reloads verse factory for SD. Just passing along some info which to me sounds like experience talking and sharing advise.

JimPage
December 27, 2011, 08:57 AM
Seems to me that given a couple rounds of the reloaded ammo and the recipe the reloader used, a good ballistics lab could develop that data rather easily. Just an uneducated guess, but ballistics are ballisitics. Once you know the velocity from the end of the barrel, any given bullet has the same ballistic path no matter what powder and primer are used.

Sheikyourbootie
December 27, 2011, 08:57 AM
The case that Mas has brought up in the past was one where a husband alleged that his wife committed suicide, and used his hand loads to do it. IF this guy is truly innocent, I'd argue that even having hand loaded ammo in the house at all really hurt his case, since his wife "chose to use the hand loads"

I got the impression that the guy was convicted on the totality of the circumstances. Even if this guy DID use factory ammo, it still would not, hypothetically, have precluded his wife from using his hand-loaded ammo.

I have not seen any cases of a person getting convicted of adw/murder from using hand-loads in defense of their lives. I'll keep my gun stoked with factory fodder since I live in a state ruled by liberals (just look at the majority of the voters here in Cali), therefore I refuse to give any additional doubt to a jury pool with the collective IQ of a gnat.

Don P
December 27, 2011, 09:05 AM
Seems to me that given a couple rounds of the reloaded ammo and the recipe the reloader used, a good ballistics lab could develop that data rather easily. Just an uneducated guess, but ballistics are ballisitics. Once you know the velocity from the end of the barrel, any given bullet has the same ballistic path no matter what powder and primer are used

Who is going to pay for the testing you mention?
Can you match factory ammo with regards to uniformity ballistic wise and have the same data to back up your claim? Personally I think not.
With Mas being the expert and one of the folks called to testify at trials that involve deadly force I'll take "his" advise and use factory ammo. One less hurtle to overcome if ever involved in a SD shooting. Again to each there own on there ammo choice for SD.

He did NOT mention any particular case in the segment.

Spats McGee
December 27, 2011, 09:17 AM
Seems to me that given a couple rounds of the reloaded ammo and the recipe the reloader used, a good ballistics lab could develop that data rather easily. Just an uneducated guess, but ballistics are ballisitics. Once you know the velocity from the end of the barrel, any given bullet has the same ballistic path no matter what powder and primer are used.
The problem is not a ballistics problem. It's an evidentiary one. Regardless of what a good ballistics lab might come up with, a court might not allow any evidence of the shooter/defendant's handloads in. Some time ago, I started a thread to put all of the "handload vs. factory loads for SD" threads in one place: An Archive Regarding Reloads and Self-Defense (http://thefiringline.com/forums/showthread.php?t=452627).

I'll just go ahead and add this thread to the archive.

Bartholomew Roberts
December 27, 2011, 09:54 AM
Just for the record, you can read practically every possible angle to this debate that is possible in Spats McGee's archive link and the archive has great input from laywers, law enforcement investigators, etc.

The big thing to keep in mind is that not every single thing you might wish to say or show in a trial is admissible under the rules of evidence. For reasons that are covered in great detail in Spats McGee's link, reloads complicate several important details you might wish to show in a self-defense case.

kraigwy
December 27, 2011, 11:22 AM
From Spats link, I found this posted by Glenn Meyers: Though it doesn't talk about the factory/re-load debate, I find it interesting, and may help us understand how jury's look at SD shootings.

Very interesting and educational. I think you can use Glenn's article to understand the reload vs factory dispute.

http://www.thejuryexpert.com/wp-content/uploads/MeyerTJESep2009Volume21No5.pdf

In reading the article, I can see different scenarios. For example, I think you would see a difference in court if, for example, you were using re-loads in heavy "N" frame revolver vs. a reload in a little 642, and also, it looks as if who is using the reloads would make a difference.

Spats McGee
December 27, 2011, 11:42 AM
. . . . For example, I think you would see a difference in court if, for example, you were using re-loads in heavy "N" frame revolver vs. a reload in a little 642, and also, it looks as if who is using the reloads would make a difference.
Only if you're allowed to talk about your reloads at trial. The basic problem is that a handloader (& his or her expert witnesses) may never get to talk about the handloads at all.

Edward429451
December 27, 2011, 11:50 AM
I can see the potential for a bad court case if using handloads, but this whole economy thing makes fancy store bought ammo further and further out of reach of my budget. Knowing that my handloads are much better than factory rounds in my guns, I must conclude that they are the most prudent choice that I have in ammo. Sometimes ya gotta go with what you have and hope for the best...

I think I'll go rub my Wifes feet some to take away that suicide urge (sic) :D

pax
December 27, 2011, 11:52 AM
My .02: http://thefiringline.com/forums/showthread.php?p=4245153#post4245153

Now with the moderator hat on: threads on this topic have a long history of turning vicious pretty fast. I'm watching, and will NOT warn for misbehavior here. I will simply ban outright anyone who insults any member of TFL for any reason in this thread.

Think twice, post once.

pax

kraigwy
December 27, 2011, 12:00 PM
We've all heard about the case mentioned above, Suicide Vs Homicide; but that is one case.

Reading further, on the average there are approx. 400,000 cases per year of Defensive Gun Use (DGU)

The numbers very, but even on the low end, the case of "reloads" seems only to pop-up in one case out of a low estimate of 60-70,000 to a higher estimate 600-700,000 per year. Makes you think.

Interesting article on DGU numbers.

As a side note, in reading the article, look at the numbers for preventing "injury" or "property loss" due to DGU. So much for the argument that having a firearm is more dangerous.

http://www.pulpless.com/gunclock/kleck1.html

Spats McGee
December 27, 2011, 12:07 PM
I can see the potential for a bad court case if using handloads, but this whole economy thing makes fancy store bought ammo further and further out of reach of my budget. Knowing that my handloads are much better than factory rounds in my guns, I must conclude that they are the most prudent choice that I have in ammo. Sometimes ya gotta go with what you have and hope for the best...
I wholeheartedly feel your pain about the whole economy. Believe you me, I wish I had a place to reload. That said, I'd reload for practice, and keep one box of fancy, store-bought ammo for carry.

We've all heard about the case mentioned above, Suicide Vs Homicide; but that is one case.

Reading further, on the average there are approx. 400,000 cases per year of Defensive Gun Use (DGU)

The numbers very, but even on the low end, the case of "reloads" seems only to pop-up in one case out of a low estimate of 60-70,000 to a higher estimate 600-700,000 per year. Makes you think. . . . .
If you look at the number of DGUs vs. the number in which reloads actually become an issue, the odds of handloads coming up in one particular case is fairly low, no question. If it does become an issue, however, the risk and the cost associated therewith is very, very high, particularly in light of the very low cost of eliminating the risk (that handloads will become an issue at trial) altogether.

Glenn E. Meyer
December 27, 2011, 12:09 PM
Thanks for the mention of my article. It was solicited after a professional one in a psych. journal. Pax is so correct about the venom that can be involved.

At our local gun club, I was invited to summarize it. One member had a giant hissy that I was arguing not to have assault weapons (definition battle - boring) even though that genius had seen me shoot mine many times.

On a couple of other forums of lesser standing (:D) than ours, one guy said he could disprove the findings in an hour and that Mas Ayoob and I were grand conspirators and obfuscators in some plot to ...

Not that I don't get crap at work for being a RKBA advocate. Let me tell you - :mad: You can't win. Interestingly, though - you'd be surprised at those in the professorial class who come to me for gun advice.

Written from my secret headquarters.

Brian Pfleuger
December 27, 2011, 12:19 PM
Personally, I can see no benefit to carrying reloads rather than factory ammo.

Since there is no discernible upside and unquestionable potential problems, why would I do it?

It's one thing to argue odds when there is a quantifiable benefit, I've made that argument many times on other topics, but to argue the odds of a negative outcome with no positive off-set..... I see no reason.

nate45
December 27, 2011, 12:46 PM
I've participated in this debate before, with Mas Ayoob involved even.

Here is the bottom line.

1) If you want to be 100% safe use factory ammo for defense, its not bad advice. To me it falls into the realm of using the same ammo as your local police. It makes good sense, depending on where you live.

2) There aren't a lot of legal cases on file where handloads played a role. In fact it doesn't take a genius to see that out of the four cases commonly sited, only two really apply. Even if all four cases did directly hinge on handloads, four cases out of all the defensive shooting cases there are, is tiny to say the least.

3) If one decides to use hand loads for defense, make sure that you know the attitudes of your local law enforcement and states attorneys. Thats really the key. If you live in a pro gun, pro CHL, Castle Doctrine State and you justifiably use a firearm for defense, the odds of handloads leading to your downfall are infinitesimally small. If on the on the other hand you live in New Jersey for example, where only solid bullets are allowed for CCW, well you get the idea.


Thats basically the conclusions to whole debate. Anything else, is pure speculation, based on what ifs and maybes on both sides.

Bartholomew Roberts
December 27, 2011, 01:25 PM
I think one of the issues that is difficult re: reloads is the challenge in being able to do a good cost/benefits anaylsis when it is so difficult to quantify the cost aspect of the problem.

Looking at just the rough numbers from the archive links, reloads are used in self-defense shootings very rarely to begin with. And once that rare event happens, you must also have a case where that shooter is prosecuted and where the distance the shooting took place is in dispute and forensic evidence is the best answer available.

How often does that happen? We know that all three lining up happens rarely; but it does occasionally happen. One thing that makes it difficult to measure is the way records at trial court and motions on evidence are kept. Unless a case is appealed based on a denial of an evidentiary motion, there is practically no way to search for these cases short of going down to the courthouse and digging through the paper records of every claimed self-defense shooting page by page.

So you've got a risk that by any measure is relatively rare (though difficult to say how rare) but when it does occur, the potential problems it presents are very serious and worrisome.

I think where this debate diverges a lot of times is that one side focuses on the big consequences of "What happens if all three do line up?" and weighs that against the benefits of reloaded ammo, while the other side focuses on the "What are the chances all three will line up?" (Although in my mind that second part brings up a whole new discussion about conditional risk).

OldMarksman
December 27, 2011, 02:43 PM
Posted by Bartholomew Roberts: Looking at just the rough numbers from the archive links, reloads are used in self-defense shootings very rarely to begin with. And once that rare event happens, you must also have a case where that shooter is prosecuted and where the distance the shooting took place is in dispute and forensic evidence is the best answer available.That explains very well why one does not hear about evidentiary problems in actual self defense cases involving reloads. It also explains very well why the absence of such cases does not really tell us anything at all pertinent to the attendant risks.

I think where this debate diverges a lot of times is that one side focuses on the big consequences of "What happens if all three do line up?" and weighs that against the benefits of reloaded ammo, while the other side focuses on the "What are the chances all three will line up?" (Although in my mind that second part brings up a whole new discussion about conditional risk).Exactly. Now, let's look at the issue of conditional probability for a moment:


A small percentage of people handload their handgun ammuntion.
The number of defensive gun uses in which a firearm is actually fired each year is very small indeed.
The number of shootings claimed to constitute self defense that occur outside the home, where justication is generlally rather straight forward, is still smaller.
The number of shootings that occur outside the home, that involve self defense claims, that involve contractory testimony and/or a paucity of evidence supporting a defense of justification, and for which the charging decision is unfavorable to the actor is even smaller.
Of those, the number in which evidence that indicates he distance at which the shooting occurred is critical to the actor's defense is smaller yet.


Because the number of claimed defensive shooting incidents involving handloads, an unclear set of testilmony and other evidence, and the need for the defense to rely upon evidence regarding the distance involved all at the same time is very small, there are very, very few cases to substantiate what must therefore be substantiated in some other way. I know of one, offhand. In that case, the admittance of GSR test data from factory loads resulted in an acquittal. It is crystal clear that, had the shooter used handloads for which the test data would not have met the standards for admissibility of scientific forensic trace evidence, the outcome could well have been different.

Regarding the risks: when one steps outside with a loaded firearm on any given day, the likelihood that he or she will have to fire it is extremely low indeed. However, that fact really should not influence how one should address the management of the risks that might occur should that gun have to be used. That brings into play the subject of conditional risk.

Look at it this way: should one ever have to fire a gun defensively in the out of doors in the absence of evidence of an unlawful forced entry, should the testimony and evidence be contradictory, and should evidence supporting the actor's account of the distance of the shooting become critical, the admissibility of GSR test data could become crucial, and the probability that the entire case could easily hinge upon whether or not factory ammunition had been used would be extremely high.

Spats McGee put it this way:

If you look at the number of DGUs vs. the number in which reloads actually become an issue, the odds of handloads coming up in one particular case is fairly low, no question. If it does become an issue, however, the risk and the cost associated therewith is very, very high, particularly in light of the very low cost of eliminating the risk (that handloads will become an issue at trial) altogether.

The two things to remember are these:


GSR evidence is routinely gathered, analyzed, and used in the analysis and prosecution of shooting incidents; and
Unless factory ammuntion had been used, GSR test data involving the kind of ammuniion used will not meet the standards for admissibility under the rules in effect at this time.


Those simple facts nail it for me.

Just to make one other thing clear, it really doesn't matter whether a shooting case involves a claim of self defense or not, or whether it involves an accident or negligence or not, or whether it involves a criminal question or civil liability, the same principles and the same facts are relevant. The fact that the Bias case did not involve a case of self defense is completely beside the point.

Steviewonder1
December 27, 2011, 06:01 PM
Yes, I have some that I have built up over the last 3 years with well known performing bullets in them with new brass, good primers, and sealed in zip lock bags. They are +P45ACP, 40S&W and +P9MM. These are last resort ammo if I run out of the "Social Ammo" that i have quite a lot of. Cause if I get into this ammo, I won't be worrying about the District Attorney or anyone else.

JayCee
December 27, 2011, 07:29 PM
Where I've seen this issue discussed in the past, the usual argument against using reloads is that a wily prosecutor will claim that factory ammunition wasn't deadly enough for the defendant, so he made his own "super powerful, kills on contact ammunition." I've always thought that a reasonably competent defense lawyer could blow holes in this argument pretty easily. Where the use of reloads might be an issue is where the defendant's guilt or innocence is somehow predicated on the distance at which the shot was fired. Testing another round out of the box used by the defendant might be determinative of the distance at which the shot was fired, by studying powder dispersion patterns. Even this won't necessarily be dispositive, since an element of randomness is going to be present and the dispersion pattern won't be exactly alike even from the same box of cartridges.

In short, it's probably a good idea to carry factory ammo just so a prosecutor can't go down that particular rabbit trail, but I wouldn't hesitate to load up with reloads if that's all I had.

MLeake
December 27, 2011, 07:55 PM
JayCee, you neglect another branch of the argument (Edit: To which Don P alluded in his OP) - if there is conflicting testimony about what distance the shooting occurred at, GSR from handloads probably won't be admissible.

"So you say you shot him as he was pulling you from your car... why was there no trace of gunpowder on his clothing?"

IE, it's not just limited to suicides.

The fact that your light loads might not leave the expected levels of residue probably wouldn't be admissible, because it couldn't reliably be replicated by evidence specialists. They'd have to take your word, or the word of your logs, as to what and how you had loaded. What little precedent exists does not favor that.

FM12
December 27, 2011, 08:16 PM
In one of my ccw (sig 220/45ACP) icarry my reloads and practice with them, I reload a 185 JHP for about .20 each and can afford to practice with them. Not so with factory loads, too expensive.

Spats McGee
December 27, 2011, 08:25 PM
Perhaps I'm showing my ignorance of reloading here, but can you find a factory load that is close to your reloads in performance? If so, I'd suggest buying a box of factory loads for carry, and practicing to your heart's content with the reloads.

pax
December 27, 2011, 08:28 PM
Spats, other way around, but that's what I do. The money argument is a non-starter -- you can practice with reloads tuned to match your factory carry rounds, and you don't have to cycle your carry loads all that often.

pax

jrothWA
December 27, 2011, 08:28 PM
I will reload practice ammo that attempts to mimic my carry ammo.

When changing out old carry ammo, I will use that for a bowling pin match.

Interesting read and much too consider.

Don P
December 27, 2011, 09:34 PM
For my fellow members and mod's I posted this after seeing the new episode last night. Mas explained what they would do to duplicate gun shot residue in a SD shooting doing so inch by inch until the pattern was duplicated. He stated it was much easier to do with factory ammo because the courts will accept there data without question. My intention was NOT to start a war or debate on the subject but to just pass on some information that to me had a very valid and understandable explanation behind it.

Willie Lowman
December 27, 2011, 09:39 PM
So, you are telling me that a person who down loads .44 magnum ammo to something like a +p .44 special would be in grave legal danger for using these rounds for home defense?

Or is this more about loading a carry gun with your hand loads and getting into a shoot out down town?

Spats McGee
December 27, 2011, 11:13 PM
It's not a matter of the location of the shoot. The rules of evidence remain the same, whether it's at your home, or downtown. As other posters have pointed out, there's a particular constellation of events under which this issue rears its head:
1) A shooting;
2) in which handloads were used; and
3) the now-defendant needs GSR evidence to establish distance.

JohnKSa
December 27, 2011, 11:17 PM
So, you are telling me that a person who down loads .44 magnum ammo to something like a +p .44 special would be in grave legal danger for using these rounds for home defense?I don't know who you're responding to because no one has used the words "grave legal danger" (or even any combination of words that could reasonably be construed to have similar meaning) anywhere on this thread.

I think it will help tremendously to keep things civil if we can all try to focus on what's actually been posted on the thread instead of trying to stir things up by overstating or exaggerating either position.

Willie Lowman
December 27, 2011, 11:27 PM
I used the term "grave legal danger."

When discussing the possibility of being incarcerated for several years, possibly the rest of your life, grave legal danger is a good descriptor.

It seems my simultaneous use of the bold, italics, and underline function have upset you, John.

I was asking if this conversation was in regard to shootings in the home or out in the street.

Spats answered my question quite clearly. Thank you.

Good night.

JohnKSa
December 27, 2011, 11:39 PM
It seems my simultaneous use of the bold, italics, and underline function have upset you, John.I don't know why you think I'm upset. I did assume that you triple-emphasized those particular words because you felt they were important or meaningful in some way, as opposed to triple-emphasizing some randomly selected part of your post.

As a result I felt it was worthwhile to point out that characterizing what anyone has posted on this thread as a claim that anyone who uses handloads for carry/home defense is in "grave legal danger" is hyperbole and that this thread, which is on a topic that often generates heated discussion, can do without that sort of thing.

It's been made quite clear that the main point of this entire issue is that using factory ammunition for carry/home defense is a small price to pay to eliminate a risk that, while improbable, could be quite bothersome if it came to fruition. I dont' think that's what most people think when they say or hear "grave legal danger".

Frank Ettin
December 28, 2011, 12:48 AM
...It's been made quite clear that the main point of this entire issue is that using factory ammunition for carry/home defense is a small price to pay to eliminate a risk that, while improbable, could be quite bothersome if it came to fruition. I dont' think that's what most people think when they say or hear "grave legal danger". Whether or not the legal danger is "grave" is a value judgment folks will need to make. But there is a real legal danger if GSR test results are important to your defense and if because you used handloads you can't get expert opinion testimony based on GSR testing into evidence.

Spats, Bart, OldMarksman and I have discussed the legal and evidentiary issues in great detail in the threads that Spats and Pax have linked to. Spats, Bart and I are lawyers. OldMarksman has a legal background and experience in legal matters. I suggest that it's a waste of all our times to again trod this already well trod path.

In this post (http://thefiringline.com/forums/showpost.php?p=4600076&postcount=71) I discussed in great detail the Bias case, why the evidentiary principles illustrated by that case are important to us even though it's not a self defense case, and the general principles applicable to the admissibility into evidence of expert opinion testimony based on scientific testing.

And in this post (http://thefiringline.com/forums/showpost.php?p=4600667&postcount=109) I pointed out a case in which a person was able to successfully defend himself in court because he didn't use handloads and was therefore able to introduce GSR test result corroborating his story.

Whatever legal risks may flow from using handloads for self defense, and however you choose to characterize them, they are completely avoidable simply by using quality factory ammunition.

nate45
December 28, 2011, 01:14 AM
I'm not arguing here and don't want a debate. You say you are a lawyer and I just want to ask you a few questions.

If someone shoots someone, with handloaded ammunition and there is a GSR issue involved. Why couldn't the remaining ammunition with the firearm, or the partial box, bag or whatever the person had at home be used as evidence?

If a person loaded a hundred rounds in virgin brass and carefully weighed each load. Why would that ammo be inconsistent or not provide good testing material?

Also, one lot of factory ammo could differ from another lot. If the forensic lab only uses ammo, that is like yours and not those, that actually were yours. What's to say that the different lot of ammo, even if it is factory and the same bullet and load, would provide reliable GSR results?

I'm not advocating handloads for defense, I just find it perplexing that with all the small boutique/designer defense ammo companies there are and all the commercial reloaders, how ones own carefully constructed handloads could be so different.

The whole way the term reloads is used in the debate, conjures up images of haphazardly constructed, oddly assorted once, or thrice fired brass and miss weighed powder charges.

Frank Ettin
December 28, 2011, 01:21 AM
'm not arguing here and don't want a debate. You say you are a lawyer and I just want to ask you a few questions....Nate, I don't want to appear troublesome, but the questions you're asking have been answered multiple times in the various threads to which Spats and pax have linked.

It's late, and I'm tired. So why not spend some time reading those other threads. If some points are still unclear, I'll address them tomorrow or the next day.

nate45
December 28, 2011, 02:01 AM
I must have missed that thread that Pax linked to. I saw her link, but I thought I had already read all the handloads for defense threads.

The point about giving up your fifth amendment right if you had to testify about your handloads was a good one. Besides the possible biasing of the jury with the possible prosecutorial claim that you needed extra deadly ammunition. The giving up the fifth possibility, is one of the most compelling reasons not to use handloads for defense I've seen.

Spats McGee
December 28, 2011, 07:48 AM
While fiddletown is correct in saying that this path is well trod, I'll go down it just a little this morning.

. . . .If someone shoots someone, with handloaded ammunition and there is a GSR issue involved. Why couldn't the remaining ammunition with the firearm, or the partial box, bag or whatever the person had at home be used as evidence? . . . .
Remaining in the firearm: That's part of the crime scene, and testing it would result in destruction of evidence. A big no-no.

Remaining in the box at home: If you're referring to handloads, for starters, because it would be evidence created by the defendant. As such, it's already suspect. Nobody has more reason to lie at trial than the defendant.

Evidence created by an impartial third party (Remington, Speer, etc) would not be suspect, as those third parties have no (obvious) motive to lie about what's in the cartridge. The defendant, possibly facing a long stay as a guest of the State, or perhaps hundreds of thousands of dollars in damages, has very large motives.

. . . .If a person loaded a hundred rounds in virgin brass and carefully weighed each load. Why would that ammo be inconsistent or not provide good testing material?
For the same reason as above: evidence created by the defendant. It's not a question of how good or consistent the reloader is, nor how good his records are.

. . . .Also, one lot of factory ammo could differ from another lot. If the forensic lab only uses ammo, that is like yours and not those, that actually were yours. What's to say that the different lot of ammo, even if it is factory and the same bullet and load, would provide reliable GSR results?
That's an attack that can be made by defense counsel. If the defendant suspects that the factory load is inconsistent from other lots, he should, by all means, talk to his attorney about that! It wouldn't be hard to get a box or two from a different lot and have them tested.

. . . .I'm not advocating handloads for defense, I just find it perplexing that with all the small boutique/designer defense ammo companies there are and all the commercial reloaders, how ones own carefully constructed handloads could be so different.

The whole way the term reloads is used in the debate, conjures up images of haphazardly constructed, oddly assorted once, or thrice fired brass and miss weighed powder charges.
It's not a matter of how meticulous a reloader is, nor how well he or she keeps records of the loads created. The Rules of Evidence just won't let you get that stuff in. It's evidence created by the defendant.

. . . .The point about giving up your fifth amendment right if you had to testify about your handloads was a good one. Besides the possible biasing of the jury with the possible prosecutorial claim that you needed extra deadly ammunition. The giving up the fifth possibility, is one of the most compelling reasons not to use handloads for defense I've seen.
If you're claiming self-defense, you're probably going to have to testify anyway. SD is an affirmative defense, which means that the shooter's story is, in essence, "Yeah, I shot him, but I had a really good reason."

OldMarksman
December 28, 2011, 08:51 AM
Posted by Willie Lowman: I was asking if this conversation was in regard to shootings in the home or out in the street.

Spats answered my question quite clearly. Thank you.Spats is, of course, correct in saying that the location of the shooting will not impinge upon the legal issues:

It's not a matter of the location of the shoot. The rules of evidence remain the same, whether it's at your home, or downtown. As other posters have pointed out, there's a particular constellation of events under which this issue rears its head:
1) A shooting;
2) in which handloads were used; and
3) the now-defendant needs GSR evidence to establish distance.

I may have created some confusion here in referring to the likelihood of higher risk in the case of a defensive shooting that occurred "in the out of doors in the absence of evidence of an unlawful forced entry". Let me explain.

My thought is, if one is forced to use a firearm inside his own residence after an unlawful and forcible entry, the likelihood that a defense of justification will be thrown into question by contradictory testimony or other evidence, and in particular the likelihood that GSR patterns will prove pivotal, would probably be lower than if the shooting had occurred somewhere else.

That does not mean that the issue could not arise.

It does mean to me that one would assume greater risk in carrying ammunition that had not been loaded by a factory in an outdoor situation where the reconstruction of the incident would likely be less straightforward.

Spats McGee
December 28, 2011, 09:41 AM
. . . .I may have created some confusion here in referring to the likelihood of higher risk in the case of a defensive shooting that occurred "in the out of doors in the absence of evidence of an unlawful forced entry". Let me explain.

My thought is, if one is forced to use a firearm inside his own residence after an unlawful and forcible entry, the likelihood that a defense of justification will be thrown into question by contradictory testimony or other evidence, and in particular the likelihood that GSR patterns will prove pivotal, would probably be lower than if the shooting had occurred somewhere else.
As a practical matter, I think that you are correct. When the shooting happens in the shooter's home, and the person shot was previously unkown to the shooter, I think that a jury is more likely to believe that the shooting was SD. I think that's particularly true if there's evidence of a forcible entry. For that matter, I think that the police and prosecutor are also more likely to believe SD under those circumstances, as well.

Don P
December 28, 2011, 10:01 AM
It's not a matter of the location of the shoot. The rules of evidence remain the same, whether it's at your home, or downtown. As other posters have pointed out, there's a particular constellation of events under which this issue rears its head:
1) A shooting;
2) in which handloads were used; and
3) the now-defendant needs GSR evidence to establish distance.


Spats McGee, THAT WAS THE HOLE POINT OF MAS'S SEGMENT!!!!!!!!!!
Thanks for articulating it for me in # 3

Frank Ettin
December 28, 2011, 10:35 AM
While fiddletown is correct in saying that this path is well trod, I'll go down it just a little this morning....Thanks, Spats. I was just out of gas last night, I'm afraid. Let me add a few comments yours.

. . . .If someone shoots someone, with handloaded ammunition and there is a GSR issue involved. Why couldn't the remaining ammunition with the firearm, or the partial box, bag or whatever the person had at home be used as evidence? . . . .In addition to the issues Spats mentioned regarding spoilage of evidence and the fact that the evidence was manufactured by the defendant, there will always be the question whether the ammunition tested was actually identical to the ammunition fired.

At least with factory ammunition from a major manufacturer, one would be able to introduce evidence regarding that manufacturer's quality control procedures. Manufacturers will have written quality control standards and testing protocols, and they will maintain logs of quality control testing. Because the manufacturer is an uninvolved third party, and because such records are routinely kept for its own business purposes, such records will be admissible as business records and have credibility.

. . . .Also, one lot of factory ammo could differ from another lot. If the forensic lab only uses ammo, that is like yours and not those, that actually were yours. What's to say that the different lot of ammo, even if it is factory and the same bullet and load, would provide reliable GSR results?...Often it will be possible to establish what lot of factory ammunition was used. I keep partial boxes of the ammunition I load into magazines for defensive purposes. And ammunition makers keep back quantities of each lot. So as long as I can identify the lot the ammunition I used in self defense came from, I will probably be able to have my expert test exemplars from that same batch.

Even if you can't establish from what particular lot our Federal Hydra-Shoks came, for example, your expert could test multiple lots and compare results. If the results are wildly inconsistent, you might have some difficulties. But considering the the ammunition makers take some pains to maintain consistent velocity and pressure characteristics from lot to lot, to conform to published specifications, I doubt you'd see much inconstancy.

And you still have the opportunity to leave a trail indicating what lot you actually used.

OldMarksman
December 28, 2011, 10:57 AM
Posted by fiddletown: ...with factory ammunition from a major manufacturer, one would be able to introduce evidence regarding that manufacturer's quality control procedures. Manufacturers will have written quality control standards and testing protocols, and they will maintain logs of quality control testing. Because the manufacturer is an uninvolved third party, and because such records are routinely kept for its own business purposes, such records will be admissible as business records and have credibility.

That's a very key point. The existence of indpendently-generated third-party records that have been formally maintained in a secure environment under validated procedures is a major element consideration regarding admissibility.

The principles here are not at all limited to ammunition and firearms testing. The same issues may be encountered in determining the admissibility of a very wide variety of kinds of evidence, ranging from pharmaceutical test results to, believe it or not, computer-generated financial records.

Hook686
December 28, 2011, 01:37 PM
I'll keep my gun stoked with factory fodder since I live in a state ruled by liberals (just look at the majority of the voters here in Cali), therefore I refuse to give any additional doubt to a jury pool with the collective IQ of a gnat.

:rolleyes:

Did you graduate from UC Berkely in law ? Have you actually done a study, or do you just enjoy bashing other people ?

I carry factory ammunition in my J-Frame simply because the 5th round occasionly has jumped crimp and causes a problem. Factory rounds have never caused that problem.

If it isn't ammunition used, it would be some other 'Fear' subjective a lawyer will use to try and influence the jury to gain a favorable conviction. That is their job.

Glenn E. Meyer
December 28, 2011, 01:42 PM
Cease and desist commentary on snarky comments on liberals, IQ - etc.

As Pax stated we want to keep this on more sophisticated level.

If you see something, you think is not doing this - report this rather than respond.

nate45
December 28, 2011, 01:53 PM
Okay, let us proceed on the presumption that whatever supply of handloads the defendant had at home were disallowed, due to evidentiary rules, chain of custody, etc.

Then why is testing a small sample of the ammunition with the firearm, or on the defendants person at the time of the shooting 'destruction of evidence'?

Testing a small sample of crime scene blood, or other fluids for DNA isn't deemed destruction of evidence. In fact I can absolutely, point to at least a few cases, I personally know of, where the original blood samples were completely used while testing for DNA matches.

I fail to see how testing two, or three rounds of spare ammo, out of even only 5-10 that remained would be ruled destruction of evidence. While at the same time, destroying biological crime scene evidence is allowed.

kraigwy
December 28, 2011, 02:08 PM
I've made my opinions made on this subject, have not changed my mind and there is no reason to re-state them.

However I can address the "destruction of evidence by testing" comments.

I've been involved in CSI for a long time, more in the lines of explosives and firearms. For the sake of argument, or keeping arguments form occuring, I'll only address the explosive part, but the procedure is the same.

When we discover a explosive device, (called IEDs now). You have a problem in court. If the device hadn't exploded, you still have to use the device as evidence. Skipping the danger aspect of a live device, you have to prove its a destructive device or prove that in fact it is a bomb. Can't do that without destroying it.

If you destroy it, (blow it up) then you have the problem of destroying evidence.

That's in theory. In reality, no one expects you to keep a bomb as evidence. You are however expected to prove its a bomb.

So whats to do:

Simple, its called filming. You take all sorts of pictures of the device, then you film the destruction of the device. Then you do a post blast investigation, gattering all the little pieces you can find. By now you have enough information to build the same bomb, only without the explosives.

Its not really that hard. And I have never ever heard of any such procedure being not allowed in court.

OldMarksman
December 28, 2011, 02:35 PM
Posted by Nate45: I fail to see how testing two, or three rounds of spare ammo, out of even only 5-10 that remained would be ruled destruction of evidence.That's really not the most significant issue.

The real problem is that, unless the "spare ammo" had in fact been manufactured by a reputable third party with appropriate procedures for independently maintaining manufacturing, inspection, and lot acceptance test records, the results of testing those rounds would almost certainly not be admissible under the rules in effect today (see posts 31, 35, 39, and 40).

Secondarily, it is quite possible that the results of testing only two or three rounds would not be conclusive, either because the number of data points would be insufficient or because they would not demonstrate convincingly that the results were reliably repeatable, or both.

HKFan9
December 28, 2011, 02:40 PM
In my close personal shooting circle there are a few lawyers, 2 former Green Berets of the 5th, and a Marine who was Force Recon, another gentleman who is a LEO and shooting instructor.

All of them told me to carry factory ammo, for already stated reasons, so I do.

I keep the reloads for practice,hunting, and competition.

As Pax helpfully suggested, you can reload to match the specs of your desired commercial carry load pretty easily to practice more affordable with.

I will say I have had unfortunate experiences in my life where I have been shot at, fortunately no one was mortally injured, I didn't even fire any shots in the 3 difference instances my life was at stake. I was grazed on the leg, I have also been stabbed, and had a beer bottled smashed across my jaw. I did not fire in any of them because it was quicker and easier for me to escape., except in the event of the beer bottle where I was forced to stand my ground against 6 people. Luckily this was in a very populated area, and police responded in literally seconds. I was working at the time, and was not able to carry a firearm. I have been extremely lucky.

These instances do not make me an expert at all... do I think if I used handloads that I would end up in prison in a SD shooting... probably not. However... I want to do everything in my power to have a solid defense against being locked up for an otherwise justifiable shooting, so I use factory ammo. A lawyer will come at you any angle they can, I want to give them the least possible angles.

Ayoob IS a professional, often times called in to testify..... I would hold his word above all others.

Not everyone are firearms experts... look at the media hype in the Winchester Black Talon ammo.... that has a bad enough rap.... wait to the lawyers find out you used "Hand crafted special evil diabolic home made extra lethal incendiary hot hand loads" in your "evil black Glock".:eek:

Spats McGee
December 28, 2011, 02:57 PM
Okay, let us proceed on the presumption that whatever supply of handloads the defendant had at home were disallowed, due to evidentiary rules, chain of custody, etc.

Then why is testing a small sample of the ammunition with the firearm, or on the defendants person at the time of the shooting 'destruction of evidence'?

Testing a small sample of crime scene blood, or other fluids for DNA isn't deemed destruction of evidence. In fact I can absolutely, point to at least a few cases, I personally know of, where the original blood samples were completely used while testing for DNA matches.

I fail to see how testing two, or three rounds of spare ammo, out of even only 5-10 that remained would be ruled destruction of evidence. While at the same time, destroying biological crime scene evidence is allowed.
Those are very good questions, and kraigwy makes excellent points. I'm not entirely sure that I have a good answer to these particular questions, but I'll give it a shot. I haven't gone off and looked at the rules of evidence for this one, but here's my "shooting-from-the-hip" answer: destructive testing will only be allowed when there's no other alternative.

As regards blood and bullets, though, we're talking about two different types of evidence here. Actual evidence, and exemplar evidence. Blood found at a crime scene is actual evidence, and there's no way to get a sample of "DNA from the blood left at the scene," except to test the blood left at the scene. So my position on that is that testing of blood or other fluids, when they are actual evidence, is destructive testing, but it is permissible destructive testing.

On the other hand, the bullet testing we're talking about is exemplar evidence. In the case of handloads that were used in a shooting, the actual cartridges used were (obviously) used up in the shooting. So those can't be tested. Any rounds that are tested, whether they're from my reloading bench, or from a manufacturer, will have to be exemplars -- used only to test whether they behave in a manner consistent with my story.

The next best thing would be, as you've surmised, cartridges either left in the gun, or on the defendant's person. Even these would be exemplars, however, because they were not actually used in the shooting. It only makes sense to test those if we (or the court or the jury) can conclude that those leftover cartridges were similar enough in design and powder load to the spent cartridges that an expert can verify, to a reasonable scientific certainty, that the spent cartridges would have behaved in a way similar to the spent cartridges. Who can attest to that? The defendant. I would not expect a prosecutor to take my word for how I loaded cartridges. Now, you may be wondering: Why would anyone load the top 3 cartridges in a magazine with a different load than the bottom 7? (Or howevermany fit in your magazine). The truth is that it wouldn't, but that doesn't matter. The prosecutor would still have to believe that the shooter loaded identical rounds all the way to the bottom of the magazine. I would not expect the prosecutor to take the shooter's word for much of anything. (Part of that is a learned response. I'm just a traffic court prosecutor, but my "defendants-lie-to-me" ratio is pretty close to 100%. I can only imagine the lies that the prosecutors hear in the courts where murders are tried.)

In the case of factory cartridges, a neutral third party can attest to that, and to all of their records regarding their processes and procedures in loading. Two, three or 20 rounds of handloads that may be in a magazine or the shooter's pocket may not be enough to establish, with reasonable scientific certainty, that the cartridges did what I claim that they did.

Don P
December 28, 2011, 03:35 PM
Ayoob IS a professional, often times called in to testify..... I would hold his word above all others.


Quote:
It's not a matter of the location of the shoot. The rules of evidence remain the same, whether it's at your home, or downtown. As other posters have pointed out, there's a particular constellation of events under which this issue rears its head:
1) A shooting;
2) in which handloads were used; and
3) the now-defendant needs GSR evidence to establish distance.


Spats McGee, THAT WAS THE HOLE POINT OF MAS'S SEGMENT!!!!!!!!!!
Thanks for articulating it for me in # 3

The 2 above quotes were my reasoning for starting this thread. Just to pass along information.

kraigwy
December 28, 2011, 04:25 PM
Ammo selection aside, if one is interested, I'd recommend going to the library and finding a book (or books, the more the merrier) on Firearms Investigation & Evidence. Read the section on "range determination from powder marks".

You'll find it interesting and a bit conflicting to the stuff you read in these "factory vs. re-loaded" ammo topics.

Aside from that:

All marksmanship, be it plinking, competition, or self defense, is 95% + Mental.

If you worry or think about Y more then you do X, then choose X, the less you have to worry about, the better you are going to preform. Thats not just shooting, but pretty much all aspects of life............................Life after all is a mental game.

Panfisher
December 28, 2011, 04:51 PM
I have never really thought about the factory vs. reload scenario. My Kimber lives on a diet of reloads. 230 gr. HP's (generic ones) loaded to a pretty mild velocity. I keep the Kimber loaded with them all the time. I would be hard pressed to even find more than a partial box of factory loads in my house or workshop. I know exactly where the loads will hit and what they will do. I don't see any problem with them. I am not nor have I every been a lawyer but if the prosecution opened up the issue of reloads vs. factory loads would not the defense have the right to pursue that line also. Isn't it the prosecutions job to prove the reloads are more deadly and not the defense attorney, does not the burden of proof lie with the prosecution. Any decent lab could easily disassemble one round, determine the weight and type of propellant and reproduce easily the reloads and test them to their hearts content. I would think the most oft given reason for factory loads is reliability, however I have complete confidence in my loads. I don't believe that most reloaders routinely produces reloads that are more devastating than many of the so called PD loads such as Golden Sabres or Hydra Shoks, Glasers etc. so that part doesn't concern me, however as they say your mileage may vary.

nate45
December 28, 2011, 05:49 PM
I think the final answer is pretty clear. If you want to be worry free, at least in this aspect, use factory ammo in your defensive weapons. There was a time in the past, when there was a limited selection of consistent, reliable factory defense loads. Those days are long over, now there is a plethora of reliable, effective factory defense ammo available, at reasonable prices. Even if they cost a dollar a piece, its nothing compared to the cost of hiring even one defense expert witness.

It is an interesting topic to discuss though and brings rise to other questions. Such as the use of extra power factory defense ammunition, Buffalo Bore, Cor-Bon, Double-Tap, etc. come to mind. The reason being, that if a prosecutor could claim a defendants handloads were extra deadly and paint one in a negative light. He/she could just as easily claim that standard ammunition wasn't good enough and you needed extra deadly factory ammo.

So the advice Massad Ayoob and others have given to use the same ammunition as your local law enforcement uses and even the very handguns they use for duty, or BUGs, for civilian CCW, makes a lot of sense. If a prosecutor tried to make the claim that you were a wanna be cop, or that something was wrong with your weapon/ammo selection, it could easily be refuted, by a police witness if necessary.

OldMarksman
December 28, 2011, 06:29 PM
Posted by Panfisher: I am not nor have I every been a lawyer but if the prosecution opened up the issue of reloads vs. factory loads would not the defense have the right to pursue that line also.Not to appear curt, but you would benefit from reading the thread, or at least posts 31, 35, 39, and 40.

The issue is one of whether the defense would need to introduce certain scientific forensic trace evidence; the rules of evidence would prevent them from doing so unless factory ammunition had been used.

Should that evidence not be important to the defense, there would not be a problem.

When might GSR test data be important to the defense?


When the evidence and testimony about what happened in a shooting incident are sparse and/or contradictory;
when the approximate distance of the shooting is in question, and proof of same is important to either imprtant facts of the case or to the credibility of the defendant;
when the actual distance was such that evidence regarding gunshot residue would have been pertinent; and
when GSR test results of the exemplar rounds would either counter a prosecution argument or support the credibility of the defendant.


One can make his or her own assessment of the likelihood that all of those things would occur, but it should be crystal clear to everyone that should they occur, the potential consequences of not being able to prevent the evidence to a jury would be very severe indeed.

JayCee
December 28, 2011, 06:45 PM
It’s interesting to note that the major bullet manufacturers definitely envision that their bullets will be used for self-defense purposes. (I’m using “bullet” here to mean the projectile that flies out of the end of the barrel, not the now common usage of “bullet” to mean “cartridge”.) For example, Speer’s Reloading Manual #14 provides reloading data for its “Gold Dot” bullets, stating that they’re “the most asked-for bullets among law enforcement professionals”. Among the many millions of bullets sold to reloaders, it’s safe to assume that more than a few have ended up in self-defense situations. So far, I’ve only seen one case referenced in which the use of handloads was an issue. This is the Bias case, and the question of the defendant’s introduction of evidence concerning the performance of his handloads was never appealed. Are there other cases out there? Based on what I’ve seen so far, I think the risk of losing an otherwise defensible case because handloads were used approaches zero. I agree with the premise that it’s best to carry factory ammunition, but I think the adverse legal implications of using handloads are a bit overblown.

MarkDozier
December 28, 2011, 06:52 PM
After all the posts I am going to introduce a twist that maybe of a challenge to you because no one has mentioned black powder guns.
Lets say I am out with my black powder rifle and pistol practicing or hunting and a guy for some reason, lets say mental disorder, attacks me with an ax.
I kill him with my black powder rifle before he can get me. How does that differ from using hand-loads in a modern firearm?
In BP each load even if you use the same powder, cap, and bullet could be unique as I may load a bit different then you.
So what do you think when you look at this case under the current train of thoughts on this thread.
:D:D:D

Nnobby45
December 28, 2011, 06:55 PM
I used the term "grave legal danger."

When discussing the possibility of being incarcerated for several years, possibly the rest of your life, grave legal danger is a good descriptor.

It seems my simultaneous use of the bold, italics, and underline function have upset you, John.


That's bunk, Willie. You changed the man's words around and said he was telling you something he wasn't.

Here's what you said.

So, you are telling me that a person who down loads .44 magnum ammo to something like a +p .44 special would be in grave legal danger for using these rounds for home defense?


YOU said GRAVE LEGAL DANGER. I'd suggest that if you want to make such statements, then why not attribute YOUR statement to YOU.

Pardon me for being so direct, but there's a little too much rearranging of peoples words as of late, and most statements don't need to be reinterpreted, rearranged, or re phrased. Sometimes we may need to readjust our filtering systems so we hear what others are actually saying.

No I'm not perfect, and yes, that includes me from time to time. :o Willie's post just struck a cord, you might say.

Just my thoughts on the matter.:cool:

kraigwy
December 28, 2011, 07:24 PM
challenge to you because no one has mentioned black powder guns

The range of "tattooing" can be as much as 10 feet with heavy BP loads from a Muzzle loader. Further then that of smokeless powder where as the most sensitive devices it would be difficult to pick up the residue past 4 feet.

Any time you have residue you're talking about "short distances" well within the range where as one would consider necessary for a self defense defense.

Sure different loads, different powders, different age of powders, different guns, different temperatures etc etc etc, would very the distance a bit, regardless of whether its from reloads or factory.

The ideal that bullet X would leave residue and Y distance, and bullet Z wouldn't, tells me there are other problems besides whether factory or reloaded ammo was used.

Again, I'd recommend finding a few books on Firearms investigation and evidence and do some research on "range determination from powder marks".

Determining such, like much of firearms investigation is not an exact science. You can not say "every time" or "if you do X, "Y" will happen". It just don't work that way except on TV CSI shows.

That's like saying bullet "A" will drop a deer in its tracks "every time".

Another example is a case where the prosecutor's expert witness said no Post 1900 Remington Rifle was produced without out serial numbers, therefore the defendant had to possess a rifle with a "defaced or removed serial number".

I talked the DA in dropping that charge. (We were dealing with a Remington Model 721).

Panfisher
December 28, 2011, 08:19 PM
OldMarksman your reply didn't seem "curt" but rather like someone tired of the argument directing a newbie (me) to oft recited information, so no offense taken on my part. I did actually read those posts and even went back to re-read them. Truthfully some of it is above my "I watched CSI on TV" mentality but I did try. As for the argument of a handload being heralded to be worse than a factory load simply doesn't make sense to me. However in todays world of bizarre court findings/rulings I don't discount a prosecutor/judge/jury being able to come up with a strange decision. If the only deciding factor was the apparent deadliness of the bullet used then everyone should use Ball ammo not what LE does. I do understand that the ballistics, powder tatooing, GSR etc., could be considered to be skewed as it was created by the defendant in the case of reloads, but if there are bullets left unfired, and another mag or two full I would think that the evidentiary rules would allowing testing of a few of them, leaving plenty for prosecution use. Just as testing a small container of drugs which would destroy some of it, with plenty left over to prosecute with. To me its more hype than concern. I guess if I ever end up in a courtroom (heaven forbid) explaining to a judge why I shot someone who was attacking me with a .45 ACP filled with reloaded ammo, I will look back and say, OOPS you guys were spot on. Would carrying a "tuned" .45 ACP be worse than carrying a GI syle, would a magazine holding more than 10 round make a defendent seem more "dangerous", how about night sights? All the things we do to our chosen firearms to make them more user friendly could be taken to be making them more of a "intent to cause death" platform. Maybe i am simply hoplessly naive as I am not a Peace Officer, and haven't been involved in even a speeding ticket, went to court twice, both times as a witness both dismissed, the closest I got to the courtroom drama was talking with the bailiff.

I would rather let the circumstances of the shooting and my testimony be the deciding factor than whether or not I chose to reload or not. Would it make a difference if shot someone who was breaking into my home with a .30-30 stoked with reloads, or a .12 ga. firing reloads I make to dove hunt? Honestly I can't see how it would. I guess there are extenuating circumstances that could apply in any situation but for the trememdous majority of cases I just don't see that it would make a difference. I could see a prosecutor working harder on making a case of me being a wannabe rambo or cop by simply having a firearm on me to start with that whether or not it was a reload or one of the best SD factory loads made. All in all I will continue to carry reloads and not worry too much about it, but that is my choice, as my reloads are much easier to shoot that the few Federal Hydrashoks I have in a box due to the lower recoil and somewhat lower noise level. OK I'll stop being the argumentive newbie for now, irrespective of whether or not I agree with you guys I do very much value the information and your experience so I say Thank You! (incidentally I did look in my stocks of ammo and found a full box of WWB ball ammo I had transferred to a plastic box and forgotten,?)

Spats McGee
December 28, 2011, 09:40 PM
Here's a brief explanation that I posted in another thread on this same topic:

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.

The odds of this issue coming up are small. The risk to the defendant if they do is large.

One of the squirrelly things about this debate is that there isn't much appellate law on it. The quick primer on this aspect of the problem is as follows: Trial-level cases are not reported as binding decisions. That means that in order for us lawyer-types to find out about it without actually going down to the courthouse and digging through paper records, someone (almost always the defendant) has to appeal. And they have to be appealing on the issue of handloads, or it's not going to be discussed in the appellate opinion. Then the appellate court has to actually mull it over and write an opinion, rather than simply affirming or reversing, and then it has to publish the opinion. All in all, you have to have:
1) A shooting;
2) involving handloads;
3) where the shooter is charged;
4) handloads become an issue at trial;
5) the prosecution successfully keeps that evidence out at trial;
6) the defendant is convicted;
7) the defendant appeals on that specific issue;
8) the appellate court writes an opinion on that issue; and
9) the appellate court designates the opinion for publication.

I've spent some time on Westlaw, a very large legal research site, and generally on the internet, trying to find out more about this issue over several months. I searched far and wide, in many jurisdictions. I found as follows, when the issue is expert testimony based on handloads:

Admissible: 0
Inadmissible: 1

It's not about what a decent ballistics lab can do in reproducing handloads. It's about whether those lab techs will ever see the inside of the courtroom, using the handloader's records or recipe.

Panfisher
December 28, 2011, 09:52 PM
Interesting information, and oddly enough fairly easy to understand (for me). But with you knowledge, background and interest in the subject do I correctly understand that you found one case where the reload vs. issue was inadmissable and none where it was? Or was that the expert testimony about reloads or is it basically the same thing.

Again I say thank you, the amount of information and knowledge some of you gentlemen (and maybe ladies too?) have is amazing.

kraigwy
December 28, 2011, 09:54 PM
Admissible: 0
Inadmissible: 1

How many times have reload vs.factory come up in shooting cases? That info is needed to come up with any sort of statistical data.

I'm not arguing for the use of reloads,

But:

Based on the studies by Gary Kleck and Marc Gertz, "Armed Resistance to Crime:The Prevalence and Nature of Self-Defense with a Gun",

http://www.pulpless.com/gunclock/kleck1.html

there were between 80K to 700K cases of SD with a firearm depending on which survey you want to choose, but even taking the low number, 80,000, or 1 out of 80,000 cases results in problems with reloads, assuming of course the case in contention is actually a self defense case.

Spats McGee
December 28, 2011, 09:55 PM
After all the posts I am going to introduce a twist that maybe of a challenge to you because no one has mentioned black powder guns.
Lets say I am out with my black powder rifle and pistol practicing or hunting and a guy for some reason, lets say mental disorder, attacks me with an ax.
I kill him with my black powder rifle before he can get me. How does that differ from using hand-loads in a modern firearm?
In BP each load even if you use the same powder, cap, and bullet could be unique as I may load a bit different then you.
So what do you think when you look at this case under the current train of thoughts on this thread.
When I have a caveat, I start with it: I have never fired a black powder gun.

With that said, and based on my non-existent BP experience, I come to this conclusion: The risk posed by using handloads in self-defense becomes unavoidable if one uses BP to defend oneself. There are no exemplars to be had for comparison. Beyond that, I really need to let the BP problem percolate in my head for a while.

However, I will freely grant you that if you've got an axe-wielding maniac coming at you, you've got bigger fish to fry than worrying about the rules of evidence, and you need to use what you've got!

Spats McGee
December 28, 2011, 10:02 PM
kraigwy: Because of the whole "it's gotta become an appellate opinion before I can find it" issue, I don't know. But my read on the rules of evidence (both state and federal) tells me that the handloader has the uphill battle on getting any testing, or any expert testimony based on his own recipe, admitted into court. I'm not disputing whether the odds of it coming up in one particular case are high or low. They're low, or I would have found more cases dealing with this issue.

Panfisher: What I'm talking about is expert testimony, in which an expert could have testified as to the GSR residue which could be expected at a given distance. The one case on point here is the Daniel Bias case, and you can read up on it here: http://findarticles.com/p/articles/mi_m0BTT/is_181_30/ai_n26806104/

Frank Ettin
December 28, 2011, 10:04 PM
It’s interesting to note that the major bullet manufacturers definitely envision that their bullets will be used for self-defense purposes. (I’m using “bullet” here to mean the projectile that flies out of the end of the barrel, not the now common usage of “bullet” to mean “cartridge”.)...You have no way of knowing what bullet manufacturers envision, except that they envision selling what they offer in the marketplace. The bullets are on the market because there's a demand for them and people buy them.

...This is the Bias case, and the question of the defendant’s introduction of evidence concerning the performance of his handloads was never appealed....That's not really the way it was. See this post (http://thefiringline.com/forums/showpost.php?p=4498929&postcount=102):...
[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....

...Are there other cases out there? Based on what I’ve seen so far, I think the risk of losing an otherwise defensible case because handloads were used approaches zero....On the other hand, we know of at least one case in which a police officer was exonerated because he used factory ammunition, and expert opinion testimony was therefore admissible into evidence to corroborate his story and rebut the complaining witness' version. See post 31.

After all the posts I am going to introduce a twist that maybe of a challenge to you because no one has mentioned black powder guns.... How does that differ from using hand-loads in a modern firearm?... It really doesn't. What that means is that if you used a black powder gun (a muzzle loader or handloaded black powder cartridges), and expert opinion testimony based on GSR test results would be helpful to you, you'll be out of luck.

pax
December 28, 2011, 10:05 PM
However, I will freely grant you that if you've got an axe-wielding maniac coming at you, you've got bigger fish to fry than worrying about the rules of evidence, and you need to use what you've got!

Okay, that might be my favorite quote of the day. Thanks for the chuckle.

pax

Frank Ettin
December 28, 2011, 10:15 PM
How many times have reload vs.factory come up in shooting cases? That info is needed to come up with any sort of satasical data. Beats me. Spats covered the question well from one perspective. I'll address it from another.

The threshold question is how often has handloaded ammunition been used in an incident in which self defense was claimed and which went to trial?

Historical research is helpful only if there's sufficient historical data. If the question is something like, "Is a private citizen who shoots someone and claims self defense more likely to be charged if he used handloads compared with factory ammunition?", or "Is a private citizen who shoots someone and claims self defense more likely to be convicted at trial if he used handloads compared with factory ammunition?", the availability of useful data depends on (1) a large enough sample of private citizens having shot someone in claimed self defense; and (2) a large enough subset of those private citizens having used handloads.

I suggest that the vast majority of people who keep guns for self defense aren't enthusiasts and use commercial ammunition. Indeed, even many of the members here, who are enthusiasts, use commercial ammunition for self defense.

Just because there is insufficient historical data doesn't mean that professionals can't draw reasoned conclusions about how likely a particular result might be under certain circumstance. Indeed, it often happens in the practice of law that a particular issue of interest has not previously been addressed by an appellate court, and one must make a reasoned judgment without the guidance of on point precedent.

As Nassim Nicholas Taleb points out repeatedly in his books Fooled by Randomness, the Hidden Role of Chance (Random House, 2004) and The Black Swan, the Impact of the Highly Improbable (Random House, 2007), "Absence of evidence is not evidence of absence." Taleb, a securities trader and professor at the University of Massachusetts, provides some interesting and useful insights into strategies for dealing with rare events.

kraigwy
December 28, 2011, 10:31 PM
Spats, what I was trying to allude to, without saying, (by having people study Firearms Investigation Studies and Text), is that though analyzing powder residue in determining distance (short range) is possible, it would be found of no great use since most smokeless powders give almost identical residue.

Plus there are too many other variables that come into play.

Again I stress that if someone is truly interested, since there are virtually no court cases, to study the subject. There are several text on the subject that could be found in any good library.

Spats McGee
December 28, 2011, 10:42 PM
kraigwy, I am going to see if I can get hold of some of those texts, to learn more about the science side of it. You say that "most smokeless powders give almost identical residue." But do they leave identical powders at different distances? Will the residue on a human from a distance of 2 feet be the same as the residue from the same shot at 15 feet? 20 feet? If not, then distance can become an issue. If the BG survives, he will undoubtedly tell the police that he was just wandering home from choir practice, minding his own business, when he was shot for no apparent reason . . .

Frank Ettin
December 28, 2011, 10:56 PM
... distance can become an issue. If the BG survives, he will undoubtedly tell the police that he was just wandering home from choir practice, minding his own business, when he was shot for no apparent reason . . . And that was pretty much Randy Willems (http://thefiringline.com/forums/showpost.php?p=4600667&postcount=109) problem.

kraigwy
December 28, 2011, 11:03 PM
Will the residue on a human from a distance of 2 feet be the same as the residue from the same shot at 15 feet? 20 feet

Different text will give different distances, take your pick, read several. How ever I've never seen anyone say it can be detected at 15-20 feet.

But as mentioned above, all smokeless powder (within reason) would be pretty much the same. From what I understand, is if you don't have residue from a factory round then you wont have residue from a reload (everything else being the same). So without reading the judges' mind, that could be the reason the testing of the reloads weren't necessary or allowed.

One has to study the subject to understand what powders do and how far the do them. It is an interesting subject.

JayCee
December 28, 2011, 11:35 PM
I suggest that the vast majority of people who keep guns for self defense aren't enthusiasts and use commercial ammunition.


You have no way of knowing how many people use handloads for self defense, because it's never been tracked.

On the other hand, we know of at least one case in which a police officer was exonerated because he used factory ammunition, and expert opinion testimony was therefore admissible into evidence to corroborate his story and rebut the complaining witness' version.

But, he might also have been exonerated if he had used handloads. The judge in the officer's case might have held differently than the judge in the Bias case. There's no basis to state he was exonerated because he used factory ammunition.

Just because there is insufficient historical data doesn't mean that professionals can't draw reasoned conclusions about how likely a particular result might be under certain circumstance.

That's what lawyers do. But on this issue, other than a rather muddled lower court trial record, there doesn't seem to be any legal support for the overreaching conclusion that gun shot residue from a handload will never be admissible as evidence.

OldMarksman
December 29, 2011, 12:07 AM
Posted by JayCee: The judge in the officer's case might have held differently than the judge in the Bias case.He or she did, in that the results of GSR testing of the exemplar ammunition was admitted, and the reason has to do with the subject of this thread--the fact that factory loads had been used.

There's no basis to state he was exonerated because he used factory ammunition.There is a basis to state that the exonerating evidence was ruled admissible because he used factory ammunition.

...there doesn't seem to be any legal support for the overreaching conclusion that gun shot residue from a handload will never be admissible as evidence.Never is a long time, but under current rulings, any judge who might admit such evidence would do so in error.

The judges' rulings are governed by the rules of evidence for the admissibility for scientific forensic trace evidence in the jurisdictions at hand. In some states, those rules are based on the SCOTUS ruling in Frye vs. United States; others, the rules stem from the SCOTUS rulings in Daubert v. Merrell Dow Pharmaceuticals; some states use their own rules. Notwithstanding the rather minor differences among the rulesets, it is most unlikely that any judge would admit evidence based on testing of ammunition other than factory loads; it is almost certain that no judge would ever admit evidence based on testing of ammunition loaded by the defendant; and under the rules in effect at this time, there no reason to assume that a judge would have any basis for not admitting evidence based on testing factory ammunition.

While the subject does require specific knowledge of both the pertinent areas of the law and of scientific methodology, the reasons are spelled out rather well in layman's terms in some of the above posts, Post 39 in particular.

This is really not the kind of thing on which a conclusion can drawn from how many trial court judges may have ruled one way or the other. It is a matter of established legal precedent based on things that extend far beyond the realm of ammunition.

Frank Ettin
December 29, 2011, 12:13 AM
I suggest that the vast majority of people who keep guns for self defense aren't enthusiasts and use commercial ammunition. You have no way of knowing how many people use handloads for self defense, because it's never been tracked.Actually we do have some highly suggestive data, thanks to Al Norris of this board.

According to his research, during a 37 year period (1970 to 2007) in Idaho, only 12 self defense shootings involved handloads. Six weren't prosecuted; apparently they were clearly justified. Six were prosecuted, resulting in six convictions -- four on pleas and two on jury verdicts. See this post (http://thefiringline.com/forums/showpost.php?p=3865434&postcount=109) and this post (http://thefiringline.com/forums/showpost.php?p=3865793&postcount=114).

...But, he [Randy Willems] might also have been exonerated if he had used handloads. The judge in the officer's case might have held differently than the judge in the Bias case. There's no basis to state he was exonerated because he used factory ammunition...There is every reason to believe that the judge in Randy Willems' case would not have allowed into evidence the expert opinion based on GSR testing had handloads been used. That is basic evidence law as outlined by me here (http://thefiringline.com/forums/showpost.php?p=4600076&postcount=71), and by Spats McGee here (http://thefiringline.com/forums/showpost.php?p=4880837&postcount=58).

...That's what lawyers do....Yes, it is. And Spats McGee and I are lawyers.

...there doesn't seem to be any legal support for the overreaching conclusion that gun shot residue from a handload will never be admissible as evidence....But there is legal support for that conclusion, as Spats McGee and I have discussed.

...From what I understand, is if you don't have residue from a factory round then you wont have residue from a reload (everything else being the same). So without reading the judges' mind, that could be the reason the testing of the reloads weren't necessary or allowed...No. The reasons the judge would not allow GSR test results of handloads was discussed by me here (http://thefiringline.com/forums/showpost.php?p=4600076&postcount=71) and by Spats McGee here (http://thefiringline.com/forums/showpost.php?p=4879796&postcount=35) and here (http://thefiringline.com/forums/showpost.php?p=4880837&postcount=58).

kraigwy
December 29, 2011, 12:38 AM
Fiddletown go back and read my post. What I was saying was it wouldn't matter, if you have residue with one, you'll have it with the other in cases of suicide or close enough to wrestle with a firearm

Again, I recommend one study your library's text on the subject.

As I said, I'm not suggesting anyone carry reloads, I'm just recommending studying the subject to see what each will and will not do. I personally think its an interesting subject but it does not determine what ammo I carry.

I have other beliefs on the subject which aren't part of this topic but are referenced in Glenn's article mentioned in post #7.

Frank Ettin
December 29, 2011, 12:51 AM
...What I was saying was it wouldn't matter, if you have residue with one, you'll have it with the other in cases of suicide or close enough to wrestle with a firearm... That's fine, but that's not the point. The point is not the behavior of GSR in a vacuum. The issue is the admissibility of certain information as evidence in court.

You understand the underlying science. But the job that Spats, Bart or I would have is getting that science in front of a jury so that the information can be used to establish or refute certain claims. You know about the science, but Spats, Bart and I know about getting it into evidence. Unless the information can be put before the jury, it doesn't necessarily do anyone any good.

JayCee
December 29, 2011, 01:19 AM
Admissibility of evidence is one of the main reasons trial court decisions are appealed. You cannot say definitively that every court in which evidence of this type is tendered will find it inadmissible. Reloading isn't a particularly arcane pursuit; load recipes are published in many reloading manuals, and virtually all reloaders stick to those recipes. Reloaders don't dream up their own loads like some sort of black magic; that's a recipe for disaster. Cartridges can be easily disassembled, and the weight of the powder charge, the brand and type of powder used, the bullet weight and manufacturer, and even the primer brand can be determined, just the same as with a factory load. Since the defendant didn't manufacture any of the components of the cartridge, but merely assembled them, it's quite easy to check for consistency. In the Bias case, evidently the defendant used three different powder charges in his handloads, so there was no means of determining exactly what powder charge fired the fatal bullet. That had to be a major reason that the GSR evidence was inadmissible. I see no reason why the rules of evidence would preclude the introduction of the foregoing types of evidence, since none of it is speculative in nature.

kraigwy
December 29, 2011, 01:45 AM
Anytime a firearm is used to shoot someone, be it a good shooting, bad shooting, accident or suicide, the gun is taken (in every place I've ever heard about) and examined. Its tested with the ammo used, be it reloads or factory. Whether the lawyers see the results is a different matter. If the Coroner, prosecutor, or who ever in your area determines the "cause" is questionable, or they have questions they call in a firearms guy to ask if this or that can happen.

Based on the information he may or may not take the case to trial. If the questioned firearm used reloads then they have to be considered or there is no case. I've even seen cases where a bullet mold was brought in to be studies to see if the ammo in question came from that mold.

One can not say NEVER when you talk about reloads or anything else not being used as evidence. Most of the time the "evidence never goes to court because it didn't show what the lawyer (which ever side) was looking for.

Another example of a case I worked on. Some guy was found with a Mauser rifle. The serial number was listed in NCIC as stolen. The prosecutor was trying to charge the guy with possession of stolen property. Problem was if one knows Mauser's, they know that several can have the same serial number. Unlike our military rifles, different factories weren't issued a set of numbers but often created their own. We never knew if the rifle in question was stolen or not, but he couldn't prove it was so the case was dropped.

(One reason an importer of surplus rifles have to add their own serial numbers)

I've spent a great deal of time talking to lawyers on both sides, (not just in firearms, but regarding bombs, traffic accidents and so forth). Normally they are fishing. I state my opinion and why, and seldom go to court. The reason I didn't go to court was because I couldn't give them the answers they were looking for.

Any time one talks about "NEVER" in court or anywhere else, some one is going to come up with the exception.

Any lawyer worth his salt never ask a question he doesn't know the answer too. He gets his answers well before the trail, if it doesn't help his case, he certainly isn't going to ask it. That's why one should never lie to his lawyer, pastor, or doctor. All have to have the answers to help you.

Frank Ettin
December 29, 2011, 02:03 AM
...I see no reason why the rules of evidence would preclude the introduction of the foregoing types of evidence, since none of it is speculative in nature. Of course you don't. That doesn't mean you properly understand the rules of evidence. Those rules have been explained multiples times in multiple ways.

...Cartridges can be easily disassembled, and the weight of the powder charge, the brand and type of powder used, the bullet weight and manufacturer, and even the primer brand can be determined, just the same as with a factory load.... But the cartridge that was fired in what is claimed to be self defense can't be thus analyzed. It's been destroyed because someone was shot with it.

Therefore, there is no independent way to verify what the weight of the powder charge was, among other things, unless it was a factory cartridge. If it was a factory cartridge the maker and type of which can be known, it can be authenticated as substantially the same as other such cartridges produced by that manufacturer.

In other word, if you shot the guy with one round of .45 ACP Federal HST 230 grain, other rounds of .45 ACP Federal HST 230 grain would be substantially the same and thus serve as suitable exemplars for testing.

...In the Bias case, evidently the defendant used three different powder charges in his handloads, so there was no means of determining exactly what powder charge fired the fatal bullet. That had to be a major reason that the GSR evidence was inadmissible....No, that was not the reason.

As described in his article on the Bias case, Massad Ayoob noted that all three loads were tested for the defense and they produced sufficiently similar results to be worthwhile as defense evidence, had the testing been admitted into evidence ("Handloads for self-defense: the Daniel Bias case" (http://findarticles.com/p/articles/mi_m0BTT/is_181_30/ai_n26806104/), pp 1-2):...Exemplar evidence is evidence that is not the actual thing at the crime scene, but is identical to it. With the duplicate loads in an exemplar six-inch Smith, Santy and I determined the 2.3 grain Bullseye load with the little 115-grain bullet would deposit GSR to perhaps three feet. At that distance, it left only about a dozen loose particles. At 24" there was still only loose particles, and even at 20" the powder would still be in very loose particles, with virtually nothing embedded. The 2.6-grain and 2.9-grain loads deposited slightly more GSR particles, but still very loose with virtually nothing embedding. Particulate matter from these light loads was so sparse and had hit the white cotton cloth (the same background that had been used by the crack NJSP crime lab in Trenton for the prosecution's testing) so feebly it fell away from the cloth from the force of gravity

Thus, the indications were that with the loads we believed to have been actually in the gun, the GSR would be so sparse and lightly deposited it was entirely possible none remained by the time the body was forensically examined the day after the shooting. There was considerable bleeding from the entry wound. Blood is liquid, and liquid washes things away. Blood is viscous, and sticky substances can obscure tiny particles. Given the light loads in the gun, in short, it was entirely possible Danny Bias was telling the truth and the gun had been in Lise's hand when it discharged, and there were well-established reasons why no GSR might have been found on the body when the totality of the circumstances were considered.....

...You cannot say definitively that every court in which evidence of this type is tendered will find it inadmissible... Based on the rules of evidence and established legal principles, we can indeed say that there is an extremely high probability that such tendered evidence would not be admissible.

...Reloading isn't a particularly arcane pursuit; load recipes are published in many reloading manuals, and virtually all reloaders stick to those recipes. Reloaders don't dream up their own loads like some sort of black magic;..But none of that establishes the necessary foundation for the admission into evidence of GSR exemplar test results, because those facts do not, and can not, establish that the round fired in claimed self defense was substantially identical to the exemplars tested.

...If the questioned firearm used reloads then they have to be considered or there is no case. I've even seen cases where a bullet mold was brought in to be studies to see if the ammo in question came from that mold.

One can not say NEVER when you talk about reloads or anything else not being used as evidence....Used as evidence in what way or for what purpose. It's one thing to establish evidentiary support for the proposition that someone was shot with X ammunition or Y gun. It's another to use exemplar testing to support an expert opinion about what took place, such as the distance from which the shot was fired.

JohnKSa
December 29, 2011, 02:03 AM
It's either a risk to use handloads or it's not. We've got a couple of lawyers and at least one well-known expert witness who says it's a risk and explained why.You cannot say definitively that every court in which evidence of this type is tendered will find it inadmissible.Saying a thing is a risk is not the same thing as saying definitively that it will be a problem in every court, it's saying it could be a problem in some courts--maybe even in most courts. In the same vein, arguing that it could be admissible in some courts doesn't disprove the claim that it could be a problem in other courts.One can not say NEVER when you talk about reloads or anything else not being used as evidence.Saying a thing is a risk is not the same thing as saying that reloads will NEVER be used as evidence, it's saying that there can be problems with getting reloads used as evidence and in this case it's also saying that in some documented cases that fact has played heavily against a favorable outcome for the defendant. In the same vein, arguing that reloads may sometimes be used as evidence doesn't disprove the claim that there can be (and have been) problems with getting reloads used as evidence.

It's pretty well accepted that in some cases it won't be an issue. That's the nature of risk. Sometimes a risk doesn't materialize to a genuine problem because risks are probabilistic in nature.

Moreover, I think we can all see that under certain circumstances, even if it becomes an issue it might be favorably resolved even if the risk does "bite".

Neither of those things precludes the fact that the risk exists, nor does it address the more pertinent point--not onlydoes the risk exist, it's an UNNECESSARY risk that can be eliminated easily and at very little cost.

Panfisher
December 29, 2011, 08:54 AM
OK, its finally sinking in a little bit. Its not that a jury or a judge would actually hold using reloads against you so much as that you would not be able to use any scientific evidence about your reloads in court. Simply put that is not because of the ability of a lab to reproduce the loads etc. but because of the rules of evidence. Let me ponder on that for a while.

Don P
December 29, 2011, 09:03 AM
How many times have reload vs.factory come up in shooting cases? That info is needed to come up with any sort of statistical data.

I'm not arguing for the use of reloads,

But:

No pun intended, shoot an email off to Mas and he'll point you in the right direction and as stated before factory ammo and possibly what local LE carries is just one obstacle that does NOT NEED to be overcome at trial.

MLeake
December 29, 2011, 11:27 AM
Panfisher, from a layman's perspective... If I were to need to introduce ballistic evidence, it would imply that a prosecutor and a grand jury suspected there were something suspicious about a shooting in the first place. The prosecutor thinks I murdered somebody.

The prosecutor might think I had deliberately created some specialty load that would have different characteristics from my usual loads, in order to dupe the CSI guys. Remember, he would believe I were shady, or he would not have charged me.

That being the case, what are the odds he would think me capable of premeditated murder or attempted murder, but not maintaining false logs or altering a small portion of my reloads?

Merad
December 29, 2011, 11:44 AM
I don't claim to be an expert on reloading or legalese... But in reading threads like these whenever they crop up, I don't think I've seen a really compelling reason in favor of using reloads. On the other hand, there are quite a few compelling reasons against.

JayCee
December 29, 2011, 11:45 AM
Based on the rules of evidence and established legal principles, we can indeed say that there is an extremely high probability that such tendered evidence would not be admissible.


But none of that establishes the necessary foundation for the admission into evidence of GSR exemplar test results, because those facts do not, and can not, establish that the round fired in claimed self defense was substantially identical to the exemplars tested.

But, if you set aside a hundred rounds or so of your carry ammunition, along with meticulous records of the bullet weight, powder charge weight and lot number, bullet type and weight, etc., you will have established a foundation for the introduction of your handloads as exemplar evidence. Since there’s no appellate guidance on the subject, admissibility is up to the court, but a judge is more likely to admit handload exemplar evidence that is supported by detailed records.

Neither of those things precludes the fact that the risk exists, nor does it address the more pertinent point--not onlydoes the risk exist, it's an UNNECESSARY risk that can be eliminated easily and at very little cost.

John, you are exactly right. There is a legal risk, albeit small, in using handloads, and it can very easily and cheaply alleviated by simply using factory ammunition. However, there are always going to be folks who will carry handloads. I'm just trying to point out that you're not necessarily doomed by the legal system if you use handloads for self defense.

Bartholomew Roberts
December 29, 2011, 11:53 AM
But, if you set aside a hundred rounds or so of your carry ammunition, along with meticulous records of the bullet weight, powder charge weight and lot number, bullet type and weight, etc., you will have established a foundation for the introduction of your handloads as exemplar evidence. Since there’s no appellate guidance on the subject, admissibility is up to the court, but a judge is more likely to admit handload exemplar evidence that is supported by detailed records.

The only way a prosecutor is going to allow detailed records kept by the accused to be entered into evidence is if it supports the prosecutor's case. Otherwise he will try to exclude that evidence on the basis that the defendant is the person who created it. One of the critical points about factory ammo is not just detailed record keeping; but that it is by an uninterested third party.

And you still have the problem of proving that the round that was fired was the same as your self-created exemplar ammo.

OldMarksman
December 29, 2011, 12:04 PM
Posted by JayCee: Admissibility of evidence is one of the main reasons trial court decisions are appealed.It is one reason, certainly.

However, it is extremely doubtful that any competent attorney would recommend appealing an admissibility ruling that had been made in accordance with decisions regarding court cases that had already been appealed to the United States Supreme Court.

I would bet on a different horse.

I see no reason why the rules of evidence would preclude the introduction of the foregoing types of evidence, since none of it is speculative in nature.Well, many of us do see a very cogent reason.

So the question is, are you unable to comprehend the several explanations provided in above posts. or are you unwilling to accept that those explanations accurately reflect the rules for admissibility of scientific forensic trace evidence?

Since there’s no appellate guidance on the subject, admissibility is up to the court, but a judge is more likely to admit handload exemplar evidence that is supported by detailed records.

You have apparently missed something. The judge must and will base his or her determination on the basis of the appellate guidance that exists for this subject. See Post #71. (http://thefiringline.com/forums/showpost.php?p=4881048&postcount=71)


The judges' rulings are governed by the rules of evidence for the admissibility for scientific forensic trace evidence in the jurisdictions at hand. In some states, those rules are based on the SCOTUS ruling in Frye vs. United States; others, the rules stem from the SCOTUS rulings in Daubert v. Merrell Dow Pharmaceuticals; some states use their own rules. Notwithstanding the rather minor differences among the rulesets, it is most unlikely that any judge would admit evidence based on testing of ammunition other than factory loads; it is almost certain that no judge would ever admit evidence based on testing of ammunition loaded by the defendant; and under the rules in effect at this time, there no reason to assume that a judge would have any basis for not admitting evidence based on testing factory ammunition.

It is a matter of established legal precedent based on things that extend far beyond the realm of ammunition.

JayCee
December 29, 2011, 12:24 PM
So the question is, are you unable to comprehend the several explanations provided in above posts. or are you unwilling to accept that those explanations accurately reflect the rules for admissibility of scientific forensic trace evidence?


Well, to answer your question, I'm unwilling to accept the explanations posted because I don't think they accurately reflect the rules for admissibility of evidence. The "explainers" have taken the position that they're right and everyone else is wrong.

...it is most unlikely that any judge would admit evidence based on testing of ammunition other than factory loads; it is almost certain that no judge would ever admit evidence based on testing of ammunition loaded by the defendant; and under the rules in effect at this time, there no reason to assume that a judge would have any basis for not admitting evidence based on testing factory ammunition.

That's your opinion on the matter. It differs from mine.

Dragonheart2
December 29, 2011, 12:25 PM
I live in Texas and can honestly say I have never heard of a self defense shooting decided on by the choice of bullet involved. When it comes to reloading some hand-loaders do cast their own bullets out of a lead mixture to save on the cost of ammunition. However, these lead bullets are usually very hard and would preform more like a full metal jacket bullet with little expansion. The same companies that manufacture factory ammo supply some of their bullets to hand-loaders, but these bullets are not usually the newest and most expansive bullets like the Guard Dog, Hydro Shock, CorBon, etc. If you chronograph and test some of these factory loads for penetration and expansion you will find that the majority of factory ammunition intended for self defense is quite adequate. Creating a hand-loaded self defense round that is superior to a factory round is possible, but requires a good deal of time and testing. Basically, the only thing a handloader can do is increase the velocity of a given weight projectile and balance that with accuracy. I have found there is little reason to try to improve on the factory ballistics of the more powerful calibers like the 45 acp, 357 magnum, etc. However, the ballistics of the popular .380 acp can most definitely be improved by hand-loading, bringing it close in power to a 9 mm. So, when I occasionally carry a .380 it is loaded with my handloads, which start out with new factory primed brass. My take of carry is the odds are that you will never have to draw your firearm for self defense, but if I do, I want to be the one that walks away. At that point I will at least be around to deal with the consequences of my actions.

kraigwy
December 29, 2011, 12:25 PM
it is almost certain that no judge would ever admit evidence based on testing of ammunition loaded by the defendant;

Not buying that one.

Since just about every firearm and its ammo is tested when any one is shot, I find it hard to believe "all" reloaded ammo test are discarded.

MLeake
December 29, 2011, 12:28 PM
I suspect that most shootings are either pretty clearly justified, or pretty clearly criminal in nature.

Choice of weapon and ammo really won't matter, there, although they can add to additional charges depending on the criminal status of the shooter (prohibited person, illegally modified weapon, etc), assuming the gun and ammo are not illegal for some other reason in that jurisdiction.

The problem will be in the grey area cases, or in cases that might look bad to somebody who was not there when the events took place. I suspect those are the minority of cases, and that reloads make up a very small portion of those.

JayCee
December 29, 2011, 12:53 PM
The Daubert case which you mentioned puts the judge in the position of gatekeeper to determine whether scientific or technical evidence is reliable enough to be admitted, based on an inquiry into the methodology used. There is a lot of flexibility in the Daubert standards that have resulted in inconsistent and unpredictable results. It’s not, as you seem to think, a “black and white” test for admissibility, and it’s certainly not the basis for a blanket statement that “it is almost certain that no judge would ever admit evidence based on testing of ammunition loaded by the defendant.”

OldMarksman
December 29, 2011, 01:25 PM
Posted by JayCee: Well, to answer your question, I'm unwilling to accept the explanations posted because I don't think they accurately reflect the rules for admissibility of evidence.Those who have tried to explain the subject do have considerable background in the subject area.

Several are attorneys. In my case, I once had the responsibility of ensuring that certain records produced by the systems of a major corporation would meet the standards for admissibility established in Daubert v. Merrell Dow. By the way, the records in question at the time were financial.

That brings up a point, for those who may not understand the way legal precedence works. The case of Frye v. United States was about polygraph test results, but the ruling in that case established principles that applied to all scientific forensic evidence. The case(s) of Daubert v. Merrell Dow revolved around pharmaceutical testing, but the ruling(s) apply to all scientific forensic trace evidence and to the certification of expert witnesses. They most certainly apply to ammunition testing as well as to fibers, drugs, DNA, and even computer reports (one could go on and on).

That's your opinion on the matter. It differs from mine.I believe that my opinion is very well founded.


The Daubert case which you mentioned puts the judge in the position of gatekeeper to determine whether scientific or technical evidence is reliable enough to be admitted, based on an inquiry into the methodology used.The judge does serve as gatekeeper, and has served in that capacity in all trials, criminal and civil, for years. Daubert establishes a set of specific requirements for the methodology that must have been followed in the development and storage of the information, for the evidence to be ruled admissible. There are entire courses built around the subject and many texts written about it.

It’s not, as you seem to think, a “black and white” test for admissibility, and it’s certainly not the basis for a blanket statement that “it is almost certain that no judge would ever admit evidence based on testing of ammunition loaded by the defendant.Regarding the first point ("black and white"), you are correct; that's why there are people who make their living in this subject area.

Regarding the second ("ammunition loaded by the defendant"), there is really very little question about it. Without going into all of the details, "loaded by the defendant" makes the evidence a non-starter by itself.

If you are unwilling to accept what has been stated here, I think you have two choices:


Discuss the issue face to face with professionals who work for a crime lab or other forensic testing laboratory; or
attend a law course on the subject of applying the Daubert ruling as it applies to the admissibility of forensic scientific trace evidence. The course I attended took the better part of a day. I do remember that those who took it were best served if they already had some knowledge of evidentiary principles, ISO certification, the design of scientific experiments, the requirements for an adequate system of internal controls, or some combination of the foregoing.

JayCee
December 29, 2011, 02:15 PM
Those who have tried to explain the subject do have considerable background in the subject area. Several are attorneys...

We wouldn't even need attorneys if all aspects of the law were settled. In the adversarial system that we work under, there will always be disagreement among lawyers concerning legal issues such as admissibility of evidence. If I'm a defense lawyer, my job is to zealously represent my client, and that includes seeking admission for all the evidence I can muster in favor of my client. If I'm a prosecutor, my job is to advocate for the state, and that includes keeping out defense evidence if I can show it has no probative value. The judge makes the determination as to admissibility, and his/her decision on those matters is subject to review on appeal.

You may well be correct that most judges, when addressing this issue, would not allow exemplar handloads as evidence, but that premise so far just has not been borne out by case law. So it's really just opinion, albeit professionally grounded opinion, that testing of handload exemplars would never be allowed. I personally think you stand a reasonable chance of having the evidence admitted if you can provide detailed records showing how, when, where, etc.

Would I personally carry handloads for self defense purposes? No, because I agree with the general consensus that by carrying factory loads, you remove one line of inquiry that a prosecutor could go down. But I also think it's disingenuous to make blanket statements about how courts will rule on evidentiary matters, since admissibility of evidence can be one of the most hotly contested issues in a trial. That's all I'm saying...

Well, it's time to go shooting...let's see...factory loads or handloads? Hmmmm...

Frank Ettin
December 29, 2011, 02:27 PM
...just about every firearm and its ammo is tested when any one is shot, I find it hard to believe "all" reloaded ammo test are discarded. But tested for what purpose.

The issue here is the use of expert opinion about how something happened based on the testing or exemplars. The only way such opinion could be relevant and therefore admissible evidence in a trial would be if it could be established to the satisfaction of the judge that the exemplars were substantially identical to whatever was used in the event that is the subject of the trial.

So when the question is the distance from which a shot was fired, and the expert will be offering an opinion on that question based on GSR produced by firing exemplar rounds, that opinion can only be relevant if it can be established that the exemplar rounds were substantially identical to the round or rounds fired in the event that is the subject of the trial. Otherwise, how could the expert form a meaningful opinion about what actually happened?

If handloads were fired in the event, the only evidence of the characteristics of those rounds must come from the defendant, an extremely interested party. And therefore the only way the rounds fired could be connected with any exemplars used for testing would be through the defendant, an extremely interested party. The claim that the exemplars tested matched the round fired in the event is therefore suspect and inadequate to establish an acceptable foundation for the admission into evidence of expert opinion testimony based on the testing of those exemplars. There would be no independent verification that what was tested was anything like what was used in the event.

If identified commercial ammunition was fired in the event, there would be independent verification, through the manufacturer, that the exemplars tested substantially matched what was used in the event.

...it's really just opinion, albeit professionally grounded opinion, that testing of handload exemplars would never be allowed. I personally think you stand a reasonable chance of having the evidence admitted if you can provide detailed records showing how, when, where, etc. ...And why should we pay any attention to your opinion?

There are differences between professionally grounded opinions and opinions of unqualified persons pulled out of the air. The opinion of my doctor about my health is far more meaningful than that of my mechanic. If that weren't the case, I'd want another doctor. All opinions are not equal.

pax
December 29, 2011, 02:30 PM
There are differences between professionally grounded opinions and opinions of unqualified persons pulled out of the air. The opinion of my doctor about my health is far more meaningful than that of my mechanic. If that weren't the case, I'd want another doctor. All opinions are not equal.

And that is a wonderful note on which to end this excellent and informative thread on a contentious subject. Thanks for the good work, everyone.

pax