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Old January 15, 2010, 03:04 PM   #26
Frank Ettin
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[1] I am a lawyer. Of course, I'm not your lawyer, so I'm not giving legal advice. I'm providing comment on a general legal topic based on my training and experience.

[2] We really have to get over this "a good shoot is a good shoot" business. If you are on trial after a self defense shooting, someone doesn't think it was a "good shoot." Either the DA decided that he had something to prosecute or the grand jury concluded that there was probable cause to believe that a crime had been committed and that you did it. There is a dispute about whether the shooting was justified, and determining whether it was a "good shoot" is now going to be up to the judge and/or jury.

You don't have the final say as to whether or not it's a "good shoot." Sometimes, probably often, the evidence may be substantial that your use of lethal force was justified self defense; and if that's the case, things like modifications to you gun pretty much won't matter.

But there's no guarantee that if a "bad day" happens to you, when the dust settles everyone will be agreed that it was a "good shoot." Physical evidence may be equivocal. Witnesses may tell conflicting stories.

[3] If you're going to need to tell your story to a jury, in my view, certain types of modification, basically things like disabling a safety device, could make things tougher for you. These issues have been discussed at great length on this board. See the following threads:

http://www.thefiringline.com/forums/...d.php?t=372759

http://www.thefiringline.com/forums/...d.php?t=366434

http://www.thefiringline.com/forums/...d.php?t=388901

http://www.thefiringline.com/forums/....php?p=3586536

[4] I will not use a gun on which a safety device has been disabled, a gun which has been modified to have a very light trigger (something less than around 4 pounds, ETA -- I favor a 1911) or handloads for self defense or carry.

[5] It's really primarily a matter of how certain such things could affect the impression that members of your jury have of you. Things that might bother a jury can influence how the evaluate you, your testimony and the evidence. Remember that a big part of your legal defense will be you telling your story, and so the jury's take on you can matter. We know, from post verdict interviews of some of the jurors in the Harold Fish case (in gun friendly Arizona), that some of them were bothered by his use of a powerful gun (10mm) and JHP ammunition. (Fish was convicted of manslaughter and went to prison. He did win his appeal, and is now free. But the point is that the gun and ammunition affected how his jurors evaluated the evidence.)

[6] But other gun modifications, like full length guide rods, better sights, and the like, are probably benign and shouldn't be a problem. But it wouldn't hurt to have a good and non-technical explanation for why you did something.

[7] And about jury selection: Your lawyer will be busy keeping anti-gun folks, members of the Brady Bunch and the like, off your jury. But the prosecutor will be systematically keeping people who are pro-gun (like NRA members, active recreational shooters, maybe anyone who has a gun) off the jury. So your jury will pretty much be made up of folks who have no special knowledge about, nor interest in, guns. Technical explanations will go in one ear and out the other.

[8] And a good general rule in court is that the less you need to explain, the better off you'll be.
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Old January 15, 2010, 03:21 PM   #27
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In defining the nation as a whole your position is undoubtedly correct.

I live in the 'Peoples' Republik of Madison' where our Chief of Police baked his Glock in an oven and our former mayor tried to get "flying war machines" from Truax Field banned from his airspace.

Here we live in a world where if you miss your shot you're endangering safety and if you hit the perp you're a cold blooded killer. Besides having no CCW provision--despite or state's 2A--you cannot even sell a handgun within the city limits.

When late night murders went up after bar time our current police chief walked a beat "to find out why."

It's no wonder the joke is that Madison is 25 square miles surrounded by reality.

I wouldn't present a pistol modified in anyway for a trial in a Madison courtroom even if I had plugged Osama bin Laden smuggling C4 into an orphanage. In my city you must "call the police" first, last and always unless you want to be branded a "cowboy."

Subscribe to "The Wisconsin State Journal."
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Old January 15, 2010, 07:34 PM   #28
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Oooooo...I'm staying out of Madison Wi.
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Old January 15, 2010, 08:11 PM   #29
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I am not a lawyer.

Quote:
Do you have an ounce of evidence of any precedent? Or are you just spooked by internet scary stories?
Most people don't have a Westlaw account to find the cases where this was a factor, so it's not surprising they don't have specific cites. But I do, so here's as many as I could find in the 10min I spent looking...

Modified "hair trigger" a factor in 2nd degree murder conviction:

People v. Gray
206 A.D.2d 883, 615 N.Y.S.2d 154
N.Y.A.D. 4 Dept.,1994.
July 15, 1994

Modified trigger a factor in civil actions:

State Farm Mut. Auto. Ins. Co. v. Partridge
10 Cal.3d 94, 514 P.2d 123
Cal. 1973.
September 25, 1973

Aetna Casualty & Surety Co. v. Safeco Ins. Co.
103 Cal.App.3d 694, 163 Cal.Rptr. 219
Cal.App., 1980.
March 24, 1980

There are many cases where the fact that a handgun did not have a modified trigger was a plus for the defense:

State v. Brown
115 Ohio St.3d 55, 873 N.E.2d 858
Ohio,2007.
October 03, 2007

State v. Anderson
Not Reported in N.E.2d, 2006 WL 1493263
Ohio App. 12 Dist.,2006.
May 30, 2006

People v. Andrews
Not Reported in Cal.Rptr.3d, 2007 WL 4442784
Cal.App. 5 Dist.,2007.
December 20, 2007

Gardner v. Galetka
Not Reported in F.Supp.2d, 2003 WL 25513130
D.Utah,2003.
August 03, 2003

State v. Underwood
Not Reported in N.E.2d, 1988 WL 37058
Ohio App.,1988.
March 29, 1988

McKinney v. State
143 Idaho 590, 150 P.3d 283
Idaho,2006.
December 19, 2006


There are many more, but that's all the time I have at the moment.
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Last edited by B. Lahey; January 16, 2010 at 10:54 PM. Reason: clarify
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Old January 15, 2010, 11:32 PM   #30
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While I have no problem customizing a handgun with grips, trigger jobs, sights, bells, whistles, etc., I leave that stuff for the range guns and guns I shoot in league competition.

I don't really care if it is just an internet scary story, I don't want to explain to some jury why I have a blood splattered smiley face grips or punisher grips on my home protection gun or carry gun.
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Old January 16, 2010, 12:02 AM   #31
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Quote:
Originally Posted by fiddletown
[1] I am a lawyer. Of course, I'm not your lawyer, so I'm not giving legal advice. I'm providing comment on a general legal topic based on my training and experience.
In what area of practice?

Quote:
Originally Posted by fiddletown

[2] We really have to get over this "a good shoot is a good shoot" business.

A good shoot IS a good shoot. Can't imagine why that fact would bother you.
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Old January 16, 2010, 12:28 AM   #32
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Quote:
A good shoot IS a good shoot. Can't imagine why that fact would bother you.
It's not that it bothers him (or anyone else) what he's saying is that it's an oversimplification.

Yes, a good shoot is a good shoot. However that means virtually nothing in practical terms because you, as the shooter don't get to decide if it's a good shoot.

Other people will decide whether or not it's a good shoot and they may not be inclined to use the same criteria to make the decision that you would use.

So saying "Don't worry about gun modifications, if it's a good shoot, it's a good shoot." is like saying, "Don't worry about supporting evidence, if you're right, you're right". That strategy only works if everyone involved agrees to go along with whatever you say.
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Old January 16, 2010, 12:35 AM   #33
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Quote:
Originally Posted by Sarge
...In what area of practice?...
Quote:
Originally Posted by Sarge
A good shoot IS a good shoot. Can't imagine why that fact would bother you.
Sarge, we've been through all this before and it's all been covered in the threads I've posted links to.

And yes, "a good shoot is a good shoot." But as I and others, including Glenn E. Meyer (see post 23) have said, sometimes someone may use his gun in what he believes is justified self defense, but the DA or grand jury doesn't agree, so he winds up on trial. Now it's not a "good shoot" until the jury decides it is.

Last edited by Frank Ettin; January 16, 2010 at 01:07 AM.
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Old January 16, 2010, 12:38 AM   #34
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No John, that strategy only works if you're right; meaning you acted within the law and that law (Castle Doctrine) makes you immune to civil or criminal prosecution, for those lawful actions.

No jury is necessary to make that determination. My experience is that 'good shoots' are resolved without juries more often than not.

I am aware of no law pertaining to the use of force, in defense of self or others, where the terms 'modified gun' or 'reloaded ammunition' appear as elements to prohibited acts.
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Old January 16, 2010, 12:50 AM   #35
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Quote:
No jury is necessary to make that determination. My experience is that 'good shoots' are resolved without juries more often than not.
Again, this is all predicated on EVERYONE who matters agreeing that it is a 'good shoot'.

It's still the "if you're right, you're right" argument but you're still leaving out the part where everyone else also has to agree you're right before you're REALLY right.

YES, it goes without saying that if the circumstances are clearly in the defender's favor, gun alterations are unlikely to be an issue. But it also goes without saying (or it should) that not all defensive shootings are that clearcut. The portion of the quote above that I emphasized makes it clear that even you realize that this is true.

When not everyone who matters agrees that "you're right"/"it's a good shoot" then gun alterations can make a difference and HAVE made a difference.
Quote:
I am aware of no law pertaining to the use of force, in defense of self or others, where the terms 'modified gun' or 'reloaded ammunition' appear as elements to prohibited acts.
You should also be aware that this statement doesn't counter any claim made on this thread or any other thread that I've seen that discusses this topic.

In other words, no one is claiming that "the terms 'modified gun' or 'reloaded ammunition' appear as elements to prohibited acts", this discussion is about how a modified gun or reloaded ammunition can complicate a person's defense in a criminal or civil trial or otherwise be deleterious to their claim of self-defense.
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Old January 16, 2010, 01:06 AM   #36
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Quote:
Originally Posted by Sarge
...that strategy only works if you're right; meaning you acted within the law and that law (Castle Doctrine) makes you immune to civil or criminal prosecution, for those lawful actions...
[1] But it is sometimes the case that not everyone agrees that you're right.

[2] Not every jurisdiction has a Castle Doctrine.

[3] Even in jurisdictions with a Castle Doctrine of some sort, they vary; and not every defensive gun use is necessarily going to fall within its protections.

Quote:
Originally Posted by Sarge
...My experience is that 'good shoots' are resolved without juries more often than not....
Perhaps more often that not. But that still means that sometime they're not. There's no guarantee that your defensive gun use won't fall into the "not" category.
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Old January 16, 2010, 04:59 PM   #37
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I recommend that if you think your shoot is good, you just tell your tale to the officers and the DA and never consult a lawyer.

All those folks with lawyers, those police who want their rep - not needed.
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Old January 16, 2010, 09:10 PM   #38
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After reading again what has been written, I understand a little more. The simple fact that you altered your gun is not going to make a wit of difference... Provided you acted in the right, the police and the prosecuting attorney believe you acted in the right.

Where the modification could come back to bite you in the butt is when the authorities believe you did not act accordingly and could have taken other measures.

A raving lunatic breaks into my house and has a gun, threatening to shoot myself or my family. I shoot him, probably get cleared for justifiable self defense.

The same lunatic breaks into my house, but not with a weapon, demanding access to my Doritos chips... Probably not a very good self defense situation.

So I guess it all depends on the circumstances in which the shooting happens.

I just hope that I am never put into that situation.
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Old January 16, 2010, 09:34 PM   #39
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Uncle Buck,

In many areas (NOT all, but many), if someone breaks into your house and you end up shooting them in self-defense it's going to be hard for you to turn it into a "bad shoot" due to the Castle Doctrine laws. That's unless you do something pretty stupid (like shooting your mouth off) or obviously illegal (like reloading and shooting him after he's down on the floor and unconscious ala the OK pharmacist).

Where things get a little less clearcut is if you are in an area where there is no Castle Doctrine or in a situation where Castle Doctrine does not apply such as if you're outside your house.

The Harold Fish case is an example where two people met, neither were in their own residence and there were no witnesses. One attacked the other and was shot in self-defense. The police arrived on the scene to find a dead man who turned out to be unarmed and a live man with a gun. THAT is not going to be a clear cut case. Now anything that that the DA can use to make you look bad could make you look bad enough to cause you a LOT of expense & hassle and might even put you in jail.
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Old January 20, 2010, 07:04 PM   #40
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Simple words sum this topic.....

"Totality of the Circumstance"

In other words, "The total,complete and definative circumstances of the event, with all known and documented factors and facts presented before a hearing".
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Old January 24, 2010, 12:20 PM   #41
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I'm sure my lack of legal knowledge shows in the following question, but:

Isn't the issue whether or not there was a justifiable homicide? How does the type of weapon used factor into whether or not you had the right to defend yourself? You could use a rock or a pointy stick for all it matters (would it make a difference if you sharpened it yourself?), the details of the weapon are not important, whether or not you were justified in using it is.
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Old January 24, 2010, 12:44 PM   #42
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Quote:
Originally Posted by C Philip
I'm sure my lack of legal knowledge shows in the following question, but:

Isn't the issue whether or not there was a justifiable homicide? How does the type of weapon used factor into whether or not you had the right to defend yourself?....
See post 26.

Of course if everyone who matters agree it's a justified shooting, things like alterations of the gun won't he an issue. But if there is a disagreement, and if you're going to have to be telling your story to a jury, things like alterations you have made to the gun could affect the impression that members of your jury have of you. Things that might bother a jury can influence how they evaluate you, your testimony and the evidence.

Remember that a big part of your legal defense will be you telling your story, and so the jury's take on you can matter. We know, from post verdict interviews of some of the jurors in the Harold Fish case (in gun friendly Arizona), that some of them were bothered by his use of a powerful gun (10mm) and JHP ammunition. (Fish was convicted of manslaughter and went to prison. He did win his appeal, and is now free. But the point is that the gun and ammunition affected how his jurors evaluated the evidence.)
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Old January 24, 2010, 01:42 PM   #43
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Modifying a trigger can only a factor if you are claiming it was an accident. If you had to shoot someone on purpose, and you hit what you were aiming at, the weight of the trigger is irrelevant In no intentional defensive shooting has trigger weight been an issue. Cite one. If brought up, and your attorney can't dispose of the notion in a hurry, you have way bigger troubles than whether or not you got a trigger job. It can be easily and factually argued that a good, 4-5 lb trigger prevents errant rounds from hitting unintended targets.
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Old January 24, 2010, 02:17 PM   #44
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Quote:
Originally Posted by maestro pistolero
...Modifying a trigger can only a factor if you are claiming it was an accident. If you had to shoot someone on purpose, and you hit what you were aiming at, the weight of the trigger is irrelevant In no intentional defensive shooting has trigger weight been an issue. Cite one. ....
If you want to believe that, be my guest. The general issue has been discussed many times. See the threads I've linked to in post 26.

There's also been discussion about why people don't cite cases. The short answer seems to be that the vast majority of self defense shooting incidents involves box stock guns.

Quote:
Originally Posted by maestro pistolero
....If brought up, and your attorney can't dispose of the notion in a hurry, you have way bigger troubles than whether or not you got a trigger job....
What sort of motion do you have in mind? And yes, if you're on trial you have a lot more troubles than just a trigger job. But at least the trigger job wouldn't have been one of them it you hadn't had it done.

Quote:
Originally Posted by maestro pistolero
...It can be easily and factually argued that a good, 4-5 lb trigger prevents errant rounds from hitting unintended targets....
First, those sorts of arguments tend to be too "inside baseball" and put a jury of people with no knowledge of, or interest in, guns to sleep.

But second, a 4 to 5 pound trigger shouldn't be a problem, at least on a 1911. I can find a number of good police armors who will testify that a 4 to 5 pound trigger on a 1911 is appropriate on a duty gun.

It's the triggers lighter at, say, 3 pounds or lighter that will be the problem. With a very light trigger, the prosecutor will have no trouble finding police armorers who will testify that such a trigger is reckless and unacceptable on a service gun. And now the prosecutor argues that the jury should consider your reckless and trigger happy disposition when they evaluate your story about how you had no choice but to shoot that nice young gangbanger to death.
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Old January 24, 2010, 03:58 PM   #45
maestro pistolero
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Still no cite of a single example? Find ONE intentional, otherwise justified self-defense shooting where a trigger job resulted in a conviction. Just one.
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Old January 24, 2010, 04:20 PM   #46
Frank Ettin
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Quote:
Originally Posted by maestro pistolero
Still no cite of a single example? Find ONE intentional, otherwise justified self-defense shooting where a trigger job resulted in a conviction. Just one.
As I pointed out, this question has been addressed multiple times.

First, if it was an otherwise justifiable shooting, a trigger job alone is not going to result in conviction. There will be other issues. Harold Fish's use of a 10mm wasn't the only reason he was convicted either. But it was a factor. If you are on trial, you will have a lot to worry about. If you want your trigger job to be one of them, that's up to you.

Second, I don't know if there's ever been a claimed self defense shooting go to trial in which the gun had had a trigger job.

Third, the trigger job issue will be something that comes up in the trial court as a matter of trial tactics. But it's only court of appeal opinions on matters of law that are commonly reported.

Anyway, do as you please.
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Old January 24, 2010, 05:50 PM   #47
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I understand that it's a matter of how you look to the jury, but still the thing the jury is deciding on is whether or not you were justified in shooting/stabbing/whatever another person, not whether the weapon used is "acceptable." Dead is dead, regardless of how they got that way.

So what about this:
Prosecutor: Mr.X, did you shoot Mr. Y using your custom semi-automatic .500 super ultra magnum with nuclear handloads?

Mr.X: Yes sir I did, I was in fear for my life and was forced to defended myself.

Prosecutor: Don't you think having such a powerful custom gun is overkill and suspicious? Weren't you curious to try out your nuclear handloads?

Mr.X: I carried and defended myself with that gun because it's the one I am most comfortable handling and safely using. How is that relevant sir?

Prosecutor: It's relevant because only a madman/killer/whatever would carry such a gun. You must have been out to shoot someone!

Mr.X: Would driving a Ferrari mean I must be out to speed? Intent can not be attributed in inanimate objects.

What I'm trying to say is that you can't logically conclude that weapon X makes a justifiable homicide any less justifiable than weapon Y. Yes, the jury needs all the facts, but the weapon type is an irrelevant one. It would be like saying causing an deadly auto accident going 100mph in your Ferrari is worse than causing a deadly accident going 100mph in your Toyota Corolla. Either way you were speeding and killed someone. The car is irrelevant and you can not infer intent to speed just because someone drives a Ferrari. Any car is capable of speeding, and any decent lawyer should be able to point this out to a jury.
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Old January 24, 2010, 06:06 PM   #48
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The only thing I'm not seeing here is that the criminal part of a shooting ain't all there is. Your actions might not attract criminal prosecution but you'd better believe that a civil action is highly likely. Even if you don't go to jail your life will not be the same even if you win after you finish paying for your defense, and anything that a hired gun (sorry, I meant the plaintiff's attorney) can think of using against you is fair game. I went so far as to find out what ammo our local PD was using and that's what my SD weapon is loaded with.
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Old January 24, 2010, 06:26 PM   #49
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Quote:
First, if it was an otherwise justifiable shooting, a trigger job alone is not going to result in conviction.
Thank you. That was my entire point.

Quote:
Second, I don't know if there's ever been a claimed self defense shooting go to trial in which the gun had had a trigger job.
Exactly.

Quote:
Anyway, do as you please.
Yep, and it pleases me to have a trigger that gives me the most control over where the rounds go, and more importantly, where they don't go. Part of avoiding liability, is not doing unnecessary harm in the first place.

In the highly unlkely event that I should have to defend myself with a firearm, and I become the first in the history of jurisprudence to be prosecuted for it because I have a 5 lb trigger on my XD, then that is the argument my attorney will make.
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Old January 24, 2010, 06:57 PM   #50
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Quote:
Intent can not be attributed in inanimate objects.
True, but mens rea (state of mind) can be inferred from a lot of things.

Quote:
What I'm trying to say is that you can't logically conclude that weapon X makes a justifiable homicide any less justifiable than weapon Y. Yes, the jury needs all the facts, but the weapon type is an irrelevant one.
That is, of course, true by definition. The issue comes into play when the jury has to decide from the facts presented and from impressions derived therefrom whether or not the homicide was justifiable.

The evidence may be clear cut. It's one thing if you are in your home and live in a castle doctrine state; someone with whom you have not had prior dealings of any kind breaks "tumultuously" into your house with a weapon; you shoot him; there are no indications from the forensic evidence that you either used excessive force or fired after the intruder decided to leave. It would be pretty clear that the homicide was justifiable.

Start changing those conditions one by one, and that clarity begins to disappear. One way or the other, the jury will have to decide whether a shooting was justifiable or was not. To the extent that defense has difficulty presenting sufficient evidence indicating that a reasonable person would have believed that imminent danger existed, that the shooting was immediately necessary (no other alternative was available), and that the shooter was not in any way a party to having brought about the confrontation in the first place, indications of the shooter's state of mind will likely become increasingly important.

Whether fair or not, such indications could conceivably include internet postings; visible tattoos; any prior dealings between the parties; and so on, perhaps including, yes, the choice of weapon used.

That the gun can influence the jury is not pure conjecture. As Glenn E. Meyer pointed out in Post 23, "There is a large body of research on what influences juries. Weapons issues have been shown to influence mock juries." Law school jury simulations have shown that jurors are more likely to convict persons who have used military style assault weapons, etc. than persons who have not. By extension, one could reasonably expect concerns with jurors over modified weapons, depending of course upon the modifications in question and on the totality of the facts.

Of course, the actual cases cited by B. Lahey in Post 29 represent more than simulation in a mock courtroom. I haven't researched the details, but I think it would be rather foolish to dismiss them out of hand.
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