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Old September 10, 2017, 03:13 PM   #1
Double Naught Spy
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Profane Inscription On Rifle Ruled Inadmissible

Interesting development in the case of a former deputy charged in the shooting of another man. The inscription on the dust cover of his AR15, "You're ______" has been ruled inadmissible and will NOT be shown to jurors.

http://www.azcentral.com/story/news/...ial/648709001/

It may not actually help the outcome of the case, but the Defense believes it removes an aspect not relevant to the actual shooting.
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Old September 10, 2017, 03:50 PM   #2
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Another mini-Darwin activity that may have "Seemed like a good idea at the time, Your Honor", that turned out otherwise.
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Old September 11, 2017, 07:40 AM   #3
ATN082268
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Quote:
Originally Posted by Double Naught Spy View Post
It may not actually help the outcome of the case, but the Defense believes it removes an aspect not relevant to the actual shooting.
This is interesting. It sounds like the Harold Fish case but in reverse. I wonder how much judicial scrubbing there will be of the defendant's history...
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Old September 11, 2017, 11:01 AM   #4
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Quite interesting. I've seen discussions that look for nuances.

1. Luck of the judge. What if the judge said it was fine to show bring it up? Is that appeal grounds?

2. It does show that these issues do come up and the DA thought it would work for them. So much for the 'good shoot' is a 'good shoot' mantra.

3. Can it still impact the jury? If the gun is shown to them, they can see the inscription. Maybe the DA can't make a deal of it, but can they see it? It's not clear yet (waiting for the entire ruling) on whether they can't see it at all. This is a subtle nuance. A judge might say you can't make a fuss about it being a bad gun but it could be shown to them. Just having more presence of a gun is a bad thing in some jury simulations.

Let's see how this plays out. San Antonio newspaper had a series of picture of weapons at trial. DAs were making presentations of EBRs and one even used an AK as a pointer when displaying photos of the scene.
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Old September 11, 2017, 10:54 PM   #5
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Once again, it shows the double (triple??) standards in our Court system.

Also the fact that while people called to testify are sworn under oath to tell the truth, the whole truth, and nothing but the truth, the Prosecutor, defense attorney, and even the Judge, are NOT!
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Old September 11, 2017, 11:15 PM   #6
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He didn't just shoot him once, but 5 times. 5 separate pulls of the trigger.
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Old September 11, 2017, 11:40 PM   #7
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He only had a 5 round magazine?
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Old September 12, 2017, 01:19 AM   #8
TheDevilThatYouKnow
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You guys are aware that this is exactly in line with current jurisprudence, right??

See Federal Rule of Evidence 404.
Quote:
(a) Character Evidence.
(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait; and
(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.
(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, the absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:
(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and
(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.
Personally, you can draw any conclusion you want from someone (who if you weren't told was a cop) dressed up like a ninja air-softer in his mama's basement....


...with a decked out AR engraved with dubious sentiments....


... but legally his actions have to be judged in their own light rather than in connection with previous events or actions that were unknown at the time of the incident.
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Old September 12, 2017, 04:12 AM   #9
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While I understand the "gallows humor" of the inscription, and its location (on the inside of the dust cover, which would only be seen after chambering a round, and NOT be seen by superiors when the rifle was in the rack, cover closed), I'd like to be clear, this was done to a department issued rifle??? or his own personal property??

And it was a semi auto, not a select fire, right??

and that's his duty uniform in the picture???

I'll try not to pre-judge, but he's packing more heat than some of the guys who landed on Omaha beach...

and, I realize that I'm a geezer with outmoded ideas, but in my day, nobody sporting that much ink would have been considered for a police officer. Maybe he wore long sleeves to his job interview???

on the surface, at least it seems that a "low drag high speed operator" got a lot of drag these days...

of course, that happens when you shoot people that other people don't think you should have...
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Old September 12, 2017, 07:08 AM   #10
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We have a LOT of guys out there in LE and private sector that are former military who saw combat in recent years. In a combat setting it is very common to write such phrases on weapons, gear, vehicles etc. Look at airplane nose art during WW-2. Helmet art was common in Vietnam. Chris Kyle and his team adopted the Punisher symbol and had it painted on their gear in the middle east. Many soldiers have such art in the form of tats.

I have no problem with that and understand WHY. In order to have the best chance to survive in that setting you truly have to believe you are the biggest BAD *** on the planet and that your enemy is less than human. It is a coping mechanism that helps you sleep at night after killing others. If looking down and seeing a phrase or symbol on your gun or gear helps remind you that you are a BAD *** then so be it.

But that mentality doesn't work in civilian LE. Somewhere that needs to be recognized and addressed as part of training.
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Old September 12, 2017, 07:40 AM   #11
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I bet the whole hearing over whether the dust cover could be admitted as evidence just made that particular accessory a lot pricier than he anticipated when he bought it.
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Old September 12, 2017, 08:41 AM   #12
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Quote:
Originally Posted by 44amp
and, I realize that I'm a geezer with outmoded ideas, but in my day...
You may be a geezer, but I don't think your idea here is outmoded. Part of the idea of a uniform is to allow an individual to be viewed not primarily as an individual but as his office. Tattooing seems to undo that and be calculated to invite judgement of others, though not always in the way the wearer will anticipate.

A criminal defendant may not benefit from that sort of judgement.
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Old September 12, 2017, 08:57 AM   #13
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I will be willing to bet that the officer in question, wears a long sleeve shirt (probably covered with a sports jacket) when at trial.

There's a big debate about showing tatoos in court.

Have old toots on the jury - might not look good.
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Old September 12, 2017, 10:15 AM   #14
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Interesting.
That dust cover wasn't a good idea, although it is funny. I have something like that on one of my ARs: when the dust cover is closed it reads: Plan A. When the dust cover is open it reads: Plan B. However, it is just a range gun and I am not law enforcement. FWIW: I didn't add that dust cover to the gun: I built the gun and needed a dust cover and saw that and thought it was funny.

I am not sure what he is carrying there but I do know it is common to see police officers with a handgun and a tazer and to someone who doesn't know any better, it looks like he is carrying two handguns. The rest of that stuff looks like a radio, an earpiece for the radio and possibly the mount for a body camera. Maybe it is just me, but he looks like a typical police officer to me.
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Old September 12, 2017, 10:34 AM   #15
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I know a local law enforcement officer with a bunch of law enforcement related, but gang style, tattoos on his arms. I also know through 1st hand experience that he is a d-bag. There is no place for that kind of unsavory decoration on civilian law enforcement officers. IMO, it undermines everything they are supposed to stand for.

I think that rifle with it's inscription should be admissable, I think his tattoos should be scrutinized, and I think his superiors should have to answer some hard questions as well.
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Old September 12, 2017, 12:00 PM   #16
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Quote:
Originally Posted by TheDevilThatYouKnow
But let's take a closer look at that Rule, especially some of the exceptions (emphasis added):
Quote:
(a) Character Evidence.
(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant’s same trait; and
(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.
(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, the absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:
(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.
So evidence of a prior act, such as decorating one's gun or body in a particular way, can not be admitted as evidence that the person actually did something in accordance with a character trait reflected by such act. But such prior act may be admissible as evidence of motive, preparation, intent or for certain other purposes.

A trial judge ruling on a question of the admissibility of this sort of evidence must consider (1) the purpose(s) for which the evidence is offered; and (2) whether the probative value of the evidence is greater than its prejudicial effect. Such rulings will be unique to the particular case or circumstances.

So in this case, this judge weighed the facts and the competing interests and ruled one way. That doesn't mean that a different judge (or even this judge) would reach the same conclusion in a different case.
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Old September 12, 2017, 02:40 PM   #17
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The judge won't say that in my shoot because it is universal constant that mine will be a 'good shoot'. Couldn't resist.
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Old September 12, 2017, 02:49 PM   #18
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If one looks at 404 (b) (1) contrasted with (2), it's fairly evident that it's still not allowed to be used to show a guilty character.

Even if it were admitted it would be a stretch to show:
motive,
opportunity,
intent,
preparation,
plan,
knowledge,
identity,
the absence of mistake,
or lack of accident when the Rule is interpreted in the manner most favorable to the non-movant.

Just as gang bangers and outlaw motorcycle riders aren't presented to the jury wearing their 'colors', the photos aren't allowed as evidence to sway the jury.
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Old September 12, 2017, 05:48 PM   #19
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I'm no lawyer, so I won't argue the statutes about what's admissable and what's not.

How do you feel about a civilian officer of the law having that phrase on his service rifle? What's your personal opinion...?
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Old September 12, 2017, 06:07 PM   #20
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So a government employee has this etched on his service weapon? Well I have a few weapons (some firearms) that have anti-government profanity permanently etched onto them. Nothing I read here makes me want to remove or hide the etchings.
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Old September 13, 2017, 07:30 PM   #21
Glenn E. Meyer
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Quote:
If one looks at 404 (b) (1) contrasted with (2), it's fairly evident that it's still not allowed to be used to show a guilty character.

Even if it were admitted it would be a stretch to show:
motive,
opportunity,
intent,
preparation,
plan,
knowledge,
identity,
the absence of mistake,
or lack of accident when the Rule is interpreted in the manner most favorable to the non-movant.

Just as gang bangers and outlaw motorcycle riders aren't presented to the jury wearing their 'colors', the photos aren't allowed as evidence to sway the jury.
I think this is a touch simplistic. You seem to be assuming that the DA will make a big speech about the issue and point out the inscription.

As we've said many times, another judge might allow the jury to see the gun even without the hypothetical DA speech. If they see it and decide the defendant is a bad guy, it certainly might influence things like their judgment of intent for instance.

Next, how are you so sure that gang colors are not shown to a jury? We've had motorcycle club incidents that were recorded during shootouts. You can be pretty sure that the videos of the crime taking place will be shown to the jury. If the defendant is in his silly suit - they will see it.

There is a large debate about showing tatoos and the like.

If the colors are necessary to establish identity of the bad person and such colors are on tape or found in possession of the defendant, I think they would come out (opinion from a lawyer on another forum).

Why do folks still want to defend idiocy like that inscription and hope that some nuance of the law might protect you?
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Old September 13, 2017, 07:34 PM   #22
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The inscription does not seem consistent with a L.E.O.'s duty to protect and serve.
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Old September 13, 2017, 10:48 PM   #23
Gary L. Griffiths
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Quote:
I'd like to be clear, this was done to a department issued rifle??? or his own personal property??
I'm from Florence, AZ so this is local to me. No, this was the officer's privately owned AR-15 (semi-auto only) which he was authorized to carry on duty.

Quote:
The inscription does not seem consistent with a L.E.O.'s duty to protect and serve.
No, it certainly doesn't. I'd be willing to bet that if anyone in the department inspected his rifle prior to authorizing him to carry it, (s)he is regretting it now!

I don't know any of the particulars of the case, except what has been reported on the news. It's hard to see how this officer felt an imminent threat of deadly force from a suspect who was proned out in the hallway of a hotel, with other officers backing him up (none of which fired). One of the more challenging (sadly) tasks I tried to accomplish in my close to 20 years of experience training judgmental use of force to law enforcement agencies was convincing some young idiots that "I was in fear for my life" wasn't a magic get-out-of-jail-free card; that you actually had to BE threatened with deadly force.
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Old September 14, 2017, 02:57 AM   #24
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Hmm, Gary, I work down the street from ya...literally.

There are a lot of people in LE and related fields who have tattoos, but many are from a previous time. I have been with my Dept. for 15 years and got my tattoos in the PI before half of my staff were born - should that be held against me 30+ years later? Fortunately, they don't show below short shirt sleeves. We have had standards for people applying for the job as no gang/racial/offensive/etc., tattoos, and none below the wrist line, IIRC, for any and all applicants, but we have staff with neck tats, head tats, etc., fine officers I am glad to work with who bust their rear ends regularly.
As for the inscription on the dust cover, just dumb, in my book - but nobody reads my book.
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Old September 14, 2017, 07:02 AM   #25
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Just to be clear, tattoos don't offend me, even on officers. I try me best not judge by outwardly appearances and I'm not always successful. I will admit I most definitely do judge people, but usually based on their actions. Unfortunately once a bad judgement is made, I tend to look for other indicators as to what kind of person I'm dealing with.

I don't envy law enforcement officers. I respect them and understand they have to make tough decisions in a tougher world.
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