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Old December 29, 2011, 01:45 AM   #76
kraigwy
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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.
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Old December 29, 2011, 02:03 AM   #77
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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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Old December 29, 2011, 02:03 AM   #78
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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.
Quote:
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.
Quote:
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.
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Old December 29, 2011, 08:54 AM   #79
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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.
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Old December 29, 2011, 09:03 AM   #80
Don P
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Quote:
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.
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Old December 29, 2011, 11:27 AM   #81
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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?

Last edited by MLeake; December 29, 2011 at 11:43 AM.
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Old December 29, 2011, 11:44 AM   #82
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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.
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Old December 29, 2011, 11:45 AM   #83
JayCee
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Quote:
Originally Posted by fiddletown
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 fiddletown
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.

Quote:
Originally Posted by JohnKSa
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.
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Old December 29, 2011, 11:53 AM   #84
Bartholomew Roberts
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Quote:
Originally Posted by JayCee
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.
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Old December 29, 2011, 12:04 PM   #85
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Quote:
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.

Quote:
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?

Quote:
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.

Quote:
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.
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Old December 29, 2011, 12:24 PM   #86
JayCee
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Quote:
Originally Posted by Old Marksman
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.

Quote:
Originally Posted by Old Marksman
...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.
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Old December 29, 2011, 12:25 PM   #87
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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.
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Old December 29, 2011, 12:25 PM   #88
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Quote:
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.
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Old December 29, 2011, 12:28 PM   #89
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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.
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Old December 29, 2011, 12:53 PM   #90
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Old Marksman...

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.”
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Old December 29, 2011, 01:25 PM   #91
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Quote:
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).

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


Quote:
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.

Quote:
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:
  1. Discuss the issue face to face with professionals who work for a crime lab or other forensic testing laboratory; or
  2. 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.
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Old December 29, 2011, 02:15 PM   #92
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Quote:
Originally Posted by Old Marksman
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...
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Old December 29, 2011, 02:27 PM   #93
Frank Ettin
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Quote:
Originally Posted by kraigwy
...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.

Quote:
Originally Posted by JayCee
...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.
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Old December 29, 2011, 02:30 PM   #94
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Quote:
Originally Posted by fiddletown
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.

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