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Old September 16, 2012, 09:02 AM   #130
Spats McGee
Join Date: July 28, 2010
Location: Arkansas
Posts: 6,868
Marquezj16, I finally got around to reading (Ok, skimming ) the links you posted.
Originally Posted by Marquezj16
In this case (Shave), there's mention of relaods, but it doesn't fall into that constellation of events that forms the basis for my reluctance to use reloads. There does not appear to be any dispute as to the distance from which the round was fired, nor any need to use an expert on GSR to establish distance.

Originally Posted by Marquezj16
Was there one in this thread about which you had questions? I've read that thread before, and it's got some good cases in it. The problem (in terms of verification) is that most of them are state-court, trial level cases. If we want the actual documents, someone will likely have to call the court and order (& pay for) copies.

There's one issue that Frank mentioned that may or may not be entirely clear, and I'd like to make sure that it is. We've posted at some length about expert testimony and the testimony of the defendant. It's important to understand that only experts get to offer opinions at trial. Lay (non-expert) witnesses only get to offer facts. In order to testify to opinions, the shooter/defendant would have to be qualified as an expert. That means presenting sufficient training, education, or experience to the court that the court believes that he or she is an expert, and qualified to offer an opinion that the court and jury would find both competent and helpful.

From the perspective of the defense bar, that means that the shooter/defendant could testify to things like:
  • I heard a noise at ~3 a.m.
  • I walked downstairs.
  • I saw Bobby Badguy run at me with something shiny in hand.
  • I shot Bobby Badguy from a distance of appx 1 foot.

Those are facts to which any lay witness can testify. Now, assume that Bobby Badguy doesn't agree with my story. He claims that he was slightly intoxicated (having finished off the communion wine at church, of course), and simply wandered into the wrong house. He claims that he never ran at me, never held a shiny object, and was no less than 4 feet from me when I shot him.

Unless I (as the shooter/defendant in this case) have training, education and experience sufficient to allow me to analyze the differences in GSR, I will not be allowed to offer any opinion as to what the GSR on Bobby's shirt demonstrated. What I want (as shooter/defendant) is for someone to be able to get on the stand and say, "I have PhDs in all of the relevant disciplines, 25+ years in law enforcement, and I have analyzed GSR on 100s of occasions. I have analyzed the GSR on Bobby's shirt, and compared it to tests that I performed using XYZ Home Defense Ammo, and exemplars sent to me by the factory. My opinion, based on my training, education and experience, is that the GSR on Bobby Badguy's shirt, is consistent with a shot having been fired from a distance of approximately 1 foot." A lay witness cannot offer an opinion like that.

If reloads have been used, then the question becomes whether the expert has a sufficiently reliable sample on which to base his or her opinion. If there is no sufficiently reliable sample, then the expert's opinion can be excluded. If the expert had an unreliable sample (created by a murder suspect) to begin with, there's a danger that the court will not find the expert opinion to be reliable, and may simply exclude it.

Does that clarify anything?

Originally Posted by Marquezj16
. . . .What I've taken away from this thread is most people are not overly concerned about having to explain to a jury their ammo choice. Their concerns is more about having ammo that is effective and functions with the gun of their choice.
Clearly, effectiveness and function are the #1 priority at the moment when the machete-wielding maniac kicks in the door. Modern factory ammo is pretty reliable, though. I have a hard time believing that reloads are sufficiently more effective, or sufficiently more accurate, as to warrant the legal risks posed by using them.
I'm a lawyer, but I'm not your lawyer. If you need some honest-to-goodness legal advice, go buy some.
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