Why JHP?

[357 Terms]

Only six were charged, and those wound up in convictions (four on pleas and two at trial). The other six were apparently clearly justified

What were those men charged with? Did the use of handloads have anything to do with those men being convicted? Were reloads even a factor at trial?

 

[Sam1911]

In order to get admitted into evidence expert opinion testimony based on scientific testing, the moving party basically must establish (1) that the witness qualifies as an expert; (2) that the test is accepted as valid in the scientific community; (3) that the test reasonably duplicates the event that is the subject of the trial; and (4) that the thing tested reasonably duplicates the thing at issue in the trial. If this foundation can not be established, the offered testimony is considered irrelevant, the testimony will not be allowed into evidence and the jury will never hear it.

Certainly number 1 isn't really in question. Number 2 shouldn't be either. (We know, and forensics labs know, how to put together a round of ammunition to duplicate anything that really was present/involved in the event. They do it all the time.)

Number 3 seems to be kind of a gimme. The test has to be similar to the event in all critical ways.

4 seems to be where the defense screwed up in Bias' case, as he seems to have tried to introduce something that WASN'T actually similar to anything reasonably believed to be present at the scene.

So I'm not sure which of these points presents the problem for the handloader's defense team.

And as I noted in post 116, another lawyer, with experience as both a prosecutor and criminal defense lawyer, knowledgeable about the rules of evidence, and knowing how to do things in a courtroom, is confident that as a prosecutor he could keep out of evidence a defendant's expert's opinion regarding the distance at which a shot was fired based on GSR testing of handloaded ammunition.

That is his assertion. However, the state forensics here in PA (and others, as evidenced by the guidelines presented by KSP and DOJ) DO run such tests on handloaded ammunition and present their findings to the court, and the prosecution's expert witnesses are allowed to testify on the meanings of those findings all the time. If the prosecution's expert witnesses are allowed to do so, how could the defense's expert witnesses be barred from testifying on that same data?

It seems clear the data WILL be made available. If the State uses it to convict people (whether they used handloads or factory ammo) how then could the defense not be allowed to use it to acquit?

 

[357 Terms]

And as I noted in post 116, another lawyer, with experience as both a prosecutor and criminal defense lawyer, knowledgeable about the rules of evidence, and knowing how to do things in a courtroom, is confident that as a prosecutor he could keep out of evidence a defendant's expert's opinion regarding the distance at which a shot was fired based on GSR testing of handloaded ammunition.

This whole theory of handloads being a risk for SD seems to be fueled by speculation.
His Opinion is just more of that, he never was faced with such a case professionally.

Speculation and opinoin.

 

[Sam1911]

We're only interested in the admissibility into evidence of the defendant's expert's opinion regarding the distance at which a shot was fired based on GSR testing of handloaded ammunition. No one has been able to cite a case in which such testimony was allowed into evidence.

But neither Bias, nor any other case suggested, seems to provide an example of a case where such was NOT allowed into evidence due simply to the fact that it wasn't factory ammo.

(Again, Bias' last-ditch submission was refused, but we don't appear to know for sure why, though we each have our pet assumptions.)

And, as I said, the state clearly does use this testing to convict. Why then should there be some stumbling block to the defense calling the same to support the accused?

 

[Sam1911]

...a professional understanding of how those rules apply to the admissibility of expert opinion testimony.

I'm asking to have that professional understanding shared here, but so far the critical question seems to reach the end of the trail here:

That's really reading a lot into the fairly superficial material we have. The only way we'd really know exactly why the judge ruled as he did on the evidentiary question that concerns us would be if we had a memorandum decision.

Which is simply saying, "You don't know why, and I don't either."

 

[918v]

If the State uses it to convict people (whether they used handloads or factory ammo) how then could the defense not be allowed to use it to acquit?

Several months ago, when this same point was being argued by a certain member, handload evidence was inadmissible to establish the distance from the shooter to the victim. Now it turns out it is admissible and has been admitted at trial. But another member continues to argue that only the prosecutuin can use it.

 

[Frank Ettin]

...the state forensics here in PA (and others, as evidenced by the guidelines presented by KSP and DOJ) DO run such tests on handloaded ammunition and present their findings to the court, and the prosecution's expert witnesses are allowed to testify on the meanings of those findings all the time. If the prosecution's expert witnesses are allowed to do so, how could the defense's expert witnesses be barred from testifying on that same data?..

Still begging the questions: when; under what circumstances; in what contexts and for what purposes.

...as I said, the state clearly does use this testing to convict. Why then should there be some stumbling block to the defense calling the same to support the accused?

Well, if the state's using its testing to try to convict, it would seem that the test results are adverse to the interests of the defendant.

 

[918v]

OK,

How about a scenario?

Turd breaks into a residence. The owner confronts the turd who is unarmed. The owner points his 1911 at the turd and orders him to leave the residence. The turd, instead, rushes the owner in an effort to take away his weapon. The owner fires from two feet away using a handload consisting of a 200gr SWC on top of 3.7grs of Bullseye. Turd stumbles to the rear about 50 feet and dies. The owner is arrested and charged with manslaughter. The prosecutor alleges the owner shot the turd from 50 feet away based on an absence of powder stipling on the turd.

The owner explains the lack of powder stipling is due to the entire 3.7 grains of Bullseye having been consumed in the 5" barrel of his 1911. The issue is the distance to the turd. The prosecution is saying at least 50 feet. The owner is saying 2 feet. The owner wants the remaining handloads in the magazine tested and introduced into evidence to refute the prosecutor's claim.

Mr. Fiddletown says the owner will not be able to introduce that evidence. Is that right?

 

[Sam1911]

Still begging the questions: when; under what circumstances; in what contexts and for what purposes.

Not sure I understand how you're intending this question.

All I can answer is: preliminary to a trial; under the circumstances of a questionable shooting; and to establish within some range at what distance a shot was fired.

Isn't that what we're debating?

...as I said, the state clearly does use this testing to convict. Why then should there be some stumbling block to the defense calling the same to support the accused?

Well, if the state's using its testing to try to convict, it would seem that the test results are adverse to the interests of the defendant.

Yes! Sure could be. There's only one way things REALLY happened. The purpose of a forensic test isn't to argue for either the prosecution or the defense but to establish some facts from which conclusions may be drawn. It thus follows that those facts established by the testing may be more agreeable to the prosecution or more agreeable to the defense, or inconclusive.

In Bias' case, at least the first time 'round, the results were admitted and were pretty clearly unfavorable. Apparently because he was guilty as sin, near as anyone can figure.

(I mean there was NO powder inclusion, or scorching of the hair, or GSR speckling on her body, and he was claiming that she shot herself in the head wrong-handed. I'd bet $100 you'd get powder inclusion, scorching, and speckling if you were shooting a .22 Short "Colibri" primer-only round at your own head, wrong handed. Let alone any full-sized centerfire cartridge with some quantity of powder in it. 'Course, the difficulty of surviving the test makes the $100 pot seem less compelling... )

Sauce for the goose, sauce for the gander. If we want the testing done, and the testing IS done, we have to accept that it could show in our favor or against.

At either event, it would or would not be admissible. We know that sometimes it IS admissible. We don't seem to have enough data to know for sure why it would not be in other cases.

 

[BullfrogKen]

But the question has never been, "...how the state treats reloaded evidenciary ammunition...." The question is far narrower, specifically the admissibility into evidence of opinion testimony of the defendant's expert regarding the distance at which a shot was fired based on GSR testing of handloaded ammunition.

Actually, according to you it was. I've seen you assert the idea that the state must preserve the evidentiary ammunition, and could not do anything to it that might destroy it. Now whether you said it because your own research led you to conclude it, or you repeated it because Massad Ayoob said it and you took him at his word really doesn't matter to me. I'm not looking to embarass anyone here.

But now that we seem to have settled the matter of what the Forensics Lab and the state's Firearms Examiner actually does with the ammunition, hopefully we'll begin to get past it. One bogus speculation struck down. Say it with me everybody - Hooray for science!

Was the jury present? Matters related to admissibility of evidence would be dealt with without the jury there.

As I said earlier tonight, I think I've done enough of other people's homework.

I provided you with a publicly accessible means to go find out where I gathered that specific information. You more than most here have both the education and the means to find out the facts for yourself, from the source. Don't take my word for it. If I could find this out, so can you.

We're only interested in the admissibility into evidence of the defendant's expert's opinion regarding the distance at which a shot was fired based on GSR testing of handloaded ammunition.

C'mon man. For some reason you seem to be completely wrapped around the idea that testimony on GSR can be admitted into evidence only when every facet of what caused the GSR is known. I showed you some three pages ago some pretty damn good work done by the state of Kentucky to help train Firearms Examiners on how to report on evidence containing GSR when the firearm and ammunition are completely unknown.

Do I really have to hold your hand the whole way through this?

No one has been able to cite a case in which such testimony was allowed into evidence

<raises hand> I can.

New Jersey v Bias.




Begin here -

Gun Expert Hurts Defense In Bias Murder Trial
October 30, 1990 by JAY RICHARDS

http://articles.mcall.com/1990-10-30/news/2773663_1_mrs-bias-residue-bullets

Bias Suicide Defense Supported Expert Says Slain Wife's Hair Filtered Gunpowder Residue
November 09, 1990 by JAY RICHARDS

http://articles.mcall.com/1990-11-09/news/2771911_1_mrs-bias-residue-gunpowder


Go get the material. You'll see that evidence of GSR on handloaded ammunition was indeed introduced and admitted into trial. It was performed by the state's ballistics lab. It was first introduced by the prosecution. Defense counsel most certainly had access to the testing, and had their own expert witness testify about and to that evidence.


But yes, Bias did not get to introduce testing done using rounds he claims were used, but never turned up in evidence. But Sgt. Carl Leisinger, who through the course of the several trials eventually became Captain Leisinger, did do that testing. He performed tests over a range of charge weights beyond merely that found in the evidence ammunition and couldn't reproduce what the defense claimed should have been found.


Hasn't Bias' assertion become to look like a specious argument to you yet?


You know fiddletown, I've done a lot of work and gone through considerable effort here to frame and source my argument with information besides links to other internet forums. I'm just sayin' . . .

 

[Frank Ettin]

Still begging the questions: when; under what circumstances; in what contexts and for what purposes.

All I can answer is: preliminary to a trial; under the circumstances of a questionable shooting; and to establish within some range at what distance a shot was fired.

Then how about some citations and details?

...If we want the testing done, and the testing IS done, we have to accept that it could show in our favor or against...

There's testing and there's testing. If I'm defending you, and the state is putting up some forensic evidence to put you away, I'd suspect that you'd want be to challenge it. In the history of criminal jurisprudence, the state's evidence hasn't always been correct nor has it's forensic evidence always been unassailable.

 

[Sam1911]

In fact, fiddletown, I think you just nailed the entire question shut with this point:

Well, if the state's using its testing to try to convict, it would seem that the test results are adverse to the interests of the defendant.

In Bias' first case, the handload evidence WAS admitted! Now, it didn't support his claims. As near as we can tell, it didn't do so for a very good reason. But if his claims had been true -- just saying IF, bear with me -- that data would have helped exonerate him.

How does the debate really continue beyond that point? We're all so concerned about how we might not be able to use GSR data from our handloads to establish the factuality of our claim. And in the model case used to prove why handload GSR data probably won't be admissible -- IT WAS.

Now, that data that WAS admitted showed something he didn't want shown -- apparently because he was lying -- but we're all giving ourselves the benefit of the doubt here and saying that we will be only involved in righteous shootings and will unquestionably want the TRUTH to be shown about what happened.

All I can conclude from this is that Bias is the model case of why handloads ARE admissible for the purposes of GSR evidence!

(Just be sure you're telling the truth...)

 

[LiveLife]

< taking more notes >

How about a scenario? The owner fires from two feet away using a handload consisting of a 200gr SWC on top of 3.7grs of Bullseye. Turd stumbles to the rear about 50 feet and dies ... The prosecutor alleges the owner shot the turd from 50 feet away based on an absence of powder stipling on the turd.

50 feet? That's a big house.

At 2 feet, if 200 gr lead SWC bullet was used, won't the lead/lube residue from the muzzle to the body/floor help determine the distance to target? I would think that at that distance, there should be sufficient residue on the target to determine the distance.

 

[Sam1911]

Then how about some citations and details?

Of what? Sorry, like I said, I'm not seeing what the question was there.

If we're going back to the beginning, I'm referencing the link Ken posted from DOJ and the words of his friend the forensic lab professional who explained how it is done. He says they use it and submit it and it is accepted as evidence. I can't do better than that, so if you're asking me to provide you with which cases he's been involved with, I can't.

Unfortunately, the only case we all seem to agree is clearly at all pertinent, and the one trotted out in every one of these debates over the years, is Bias and it now appears to support the opposite conclusion.

...If we want the testing done, and the testing IS done, we have to accept that it could show in our favor or against...

There's testing and there's testing. If I'm defending you, and the state is putting up some forensic evidence to put you away, I'd suspect that you'd want be to challenge it. In the history of criminal jurisprudence, the state's evidence hasn't always been correct nor has it's forensic evidence always been unassailable.

But as said before, the forensics lab doesn't work for the prosecutor, it works for the court. If the conclusions drawn by the experts brought in by the prosecutor about the findings of the forensics lab are not to your liking, you'd be desiring to hire your own expert to challenge those conclusions, and I cannot see any reason to believe that your expert would not be allowed to testify about data provided by the court's forensic lab. Right? Establish his credentials, observe the data provided, and give a professional opinion to the court. If the court doesn't accept his credentials that's an entirely different problem, unrelated to the handloads, of course.

If you are asking whether another forensic lab could be hired to study the same evidence that the state forensic lab had reviewed to try to produce another set of data for both sides' experts to opine on, well, honestly I don't know why the court wouldn't allow that, but it doesn't seem exactly pertinent. It is the same possibility involved with the rejected expert witness. If the court doesn't accept that your testing agency can produce appropriate and admissible test results in an unbiased way, then that's not a problem or handloaded ammo. And besides, if we're to the point of trying to have the ammo tested by a second agency, the court must have accepted that your handloads CAN be tested and the results submitted as evidence. You may have a problem, but it is with the sufficiency of your testing agency, not with your handloads. The same argument would have to be made if you'd used a brand new box of Federals.

 

[918v]

50 feet? That's a big house.

At 2 feet, if 200 gr lead SWC bullet was used, won't the lead/lube residue from the muzzle to the body/floor help determine the distance to target? I would think that at that distance, there should be sufficient residue on the target to determine the distance.

I have more than that from my front door to my couch.

Should there not have been any lube or bullet debris in the headwound belonging to Bias' wife?

But say we're talking about a 200gr Hornady Jacketed SWC or a plated one? No GSR on the turd.

 

[BullfrogKen]

Agreed with Sam here.

GSR tests using handloaded ammunition got introduced into trial.

It just didn't show what Bias wanted it to.

Weighed with all the other testimony at the trial, he was found guilty.


But that's OK. Just because the testing didn't exonerate Mr Dias doesn't mean we can't use the fruits of that labor. We can still use the basis of what the State of New Jersey's Ballistics Lab did to establish precedent. New Jersey, whoda thunk? We've even got testimony by New Jersey State Trooper Capt Leisinger going on record for the state saying that a reloader's ammunition can be loaded very precisely!

 

[Frank Ettin]

In fact, fiddletown, I think you just nailed the entire question shut with this point:

Well, if the state's using its testing to try to convict, it would seem that the test results are adverse to the interests of the defendant.

Sam, please don't quote me out of context. Let's put it all on the table:

• Post 157

  ...as I said, the state clearly does use this testing to convict. Why then should there be some stumbling block to the defense calling the same to support the accused?

  Well, if the state's using its testing to try to convict, it would seem that the test results are adverse to the interests of the defendant.

  
  
• Post 161

  ..If we want the testing done, and the testing IS done, we have to accept that it could show in our favor or against...

  There's testing and there's testing. If I'm defending you, and the state is putting up some forensic evidence to put you away, I'd suspect that you'd want be to challenge it. In the history of criminal jurisprudence, the state's evidence hasn't always been correct nor has it's forensic evidence always been unassailable.

In Bias' first case, the handload evidence WAS admitted! Now, it didn't support his claims.

The prosecution evidence was apparently admitted in the first trial that ended in a hung jury. the prosecution evidence was apparently substantially blunted in the second trial which also resulted in a hung jury and the judge throwing out the murder charges. (In the third trial, Bias was acquitted of aggravated manslaughter and convicted of reckless manslaughter, but that was overturned on appeal. The fourth trial resulted in Bias being convicted of reckless manslaughter.)

Now back to the rules of evidence. They've been outlined, and another lawyer has opined that he could keep this defense evidence out. You're all welcome not to accept that view. I'll stick with factory ammunition for self defense.

 

[357 Terms]

fiddletown

It seems that handloads very seldom show up in self defense cases. Al Norris over at TFL did some research and found only 12 claimed self defense shooting in which handloads were used during a 37 year period (1970 - 2007). Only six were charged, and those wound up in convictions (four on pleas and two at trial). The other six were apparently clearly justified. I can supply links to the posts at TFL if anyone is interested.

Are you insinuiating that these men had legal issues because the use of handloads?
Would they still have been charged had they been carrying factory ammo?

Are these the six drunks in Idaho? men who were charged with carrying a firearm while under the influence if alcohol?

Just a quick answer if ya would fiddletown.

 

[Sam1911]

Sam, please don't quote me out of context.

I apologize. I didn't intend to -- certainly didn't think I was. Mea culpa.

 

[LiveLife]

50 feet? That's a big house.

I have more than that from my front door to my couch.

OK, let's say the owner used jacketed bullet. Hopefully the "turd" drops some blood on the floor along his 50 feet trek. Since the turd broke into the house, perhaps the evidence of the break in and the rushing posture the turd assumed when shot (entry/exit would channel compared to position of body parts/muscle layers) may help.

GSR on the turd.

So for reloads, bullet/powder combination that produces more GSR may be beneficial? Well, there's something positive for the "dirty/smoky" loads

 

[BullfrogKen]

Why don't we confine the discussion to as few hypotheticals as possible fellas?

 

[918v]

Hope is nice, but change is what really counts.

I'd like (we'd all like) to get an answer on the admissibility of the handload evidence.

 

[918v]

Here are some helpful quotes from the Federal Rules of Evidence:

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.

Relevant evidence is admissible unless any of the following provides otherwise:
■the United States Constitution;
■a federal statute;
■these rules; or
■other rules prescribed by the Supreme Court.

 

[918v]

But some claim that a defendant testifying about the composition of his handloads is

inherently suspect

because he is an

interested witness authenticating an exemplar used as the basis for expert testimony

So where's the prohibition against that? Is not the credibility of a witness something the jury determines?

 

[Frank Ettin]

...Are you insinuiating that these men had legal issues because the use of handloads?...

We don't know why each was convicted in connection with shooting his gun. We know that alcohol or drugs was involved, but we don't know that they were drunk. Do you?

And the point is that over a period 37 years only 12 claimed self defense shootings in Idaho involved handloads.

...But as said before, the forensics lab doesn't work for the prosecutor, it works for the court...

Actually, that's not correct. It doesn't work for the courts. Who it works for will probably vary State by State.

In California, in the larger counties the county Sheriff's Department runs the county crime lab to provide services within that county. Some police departments also run their own forensic laboratories. And there's a state crime lab for cities and counties which don't have their own. The state crime lab is run by the Attorney General's Office.

...If the conclusions drawn by the experts brought in by the prosecutor about the findings of the forensics lab are not to your liking, you'd be desiring to hire your own expert to challenge those conclusions, and I cannot see any reason to believe that your expert would not be allowed to testify about data provided by the court's forensic lab. Right?...

In general, if I have concerns about the government's forensic findings, much of the time my preference would be to have my experts do their own testing and come up with their own findings. Or, depending on circumstances, I'd use experts to impeach the government's findings. Or I could do both: have my experts do their own testing and generate their own findings; and help challenge the government's findings. Such challenges will often include disputes regarding methodology.

And if part of my strategy will be to challenge the government findings, a starting point will be whatever material I'm able to get from the government through the discovery process.

...If you are asking whether another forensic lab could be hired to study the same evidence that the state forensic lab had reviewed to try to produce another set of data for both sides' experts to opine on, well, honestly I don't know why the court wouldn't allow that,...

My experts will not be able to use the same material used by the government. But my experts will be able to use identical or substantially identical material, and if I can lay the proper foundation as I described previously, the court will have to let it into evidence.

...if we're to the point of trying to have the ammo tested by a second agency, the court must have accepted that your handloads CAN be tested and the results submitted as evidence...

An interesting point. If the government has done it's testing with handloads, and that testing supports its case; and if I've done my testing with handloads, and it supports my case, we have a very interesting tactical situation. The government could decide not to use its test results, if the prosecutor has enough other evidence in his opinion to get a conviction.

The problem for the government here is that if it offers its (favorable to it) test results, it's then is going to have a hard time keeping my (favorable to the defendant) test results out. But if it's not offering its test results, it objects to mine because since handloads are involved, a sufficient nexus between the test and the event can't be established. That's likely to hurt me more than the government, because the government has to have a good deal more to talk about than just GSR tests in order to be going to trial.

I'm stymied. I can't object to the government not using its test results as evidence. That's not my business. And the government's position will be that it is not using those tests because the results are of questionable relevance because an adequate nexus between the tested ammunition and the event can't be established since handloads were involved.

True, I have the government's test results that I got on discovery. But I can't really use them for anything because they're adverse to the defendant.

This is why what happens in court is so very different from what happens in a lab.

...You may have a problem, but it is with the sufficiency of your testing agency, not with your handloads. The same argument would have to be made if you'd used a brand new box of Federals.

Not really. See above.

interested witness authenticating an exemplar used as the basis for expert testimony

So where's the prohibition against that? Is not the credibility of a witness something the jury determines?

Not when it comes to establishing a foundation for the introduction of expert opinion testimony based on scientific tests. Determining the adequacy of the foundation is the province of the judge.