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Old December 29, 2011, 02:03 AM   #77
Frank Ettin
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Join Date: November 23, 2005
Location: California - San Francisco
Posts: 9,471
Quote:
Originally Posted by JayCee
...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.

Quote:
Originally Posted by JayCee
...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.

Quote:
Originally Posted by JayCee
...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", pp 1-2):
Quote:
...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.....
Quote:
Originally Posted by JayCee
...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.

Quote:
Originally Posted by JayCee
...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.

Quote:
Originally Posted by kraigwy
...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.
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