This article first appeared in the Armed Citizen’s Legal Network’s September 2013 journal.
Gun enthusiasts often challenge authoritative advice to avoid radically modifying their self-defense gun, reducing trigger pull weight or carrying it with hand-loaded ammunition for self defense. As gun lovers, as well as self-defense practitioners, many who argue these points find it difficult to separate the features of a gun that is fun to shoot from one that is difficult if not impossible to defend in court.
The Big Picture
If you are involved in a self-defense shooting, your gun will be seized as evidence early in the criminal investigation. Responding and investigating officers do not know what occurred, and until they thoroughly investigate the incident they will not know that you fired in self defense. In a perfect world, all the evidence relating to the shooting is collected for later scrutiny, evaluation, testing, argument and use in court. Your gun will be a major piece of evidence at trial. Before trial, it will be checked for fingerprints, photographed, tested for DNA evidence, and possibly fired during gunshot residue and stippling testing. It will be inspected by firearms experts from the state crime lab, to make sure that the gun functions, that all the safeties work, and the trigger pull weight tested to see if it meets factory specifications. Any anomalies, some caused by modifications, will be noted in the crime lab report. If we were writing a movie script, the gun would have its own role, and if the movie was good enough, the gun itself might win a “best supporting actor” award.
The ammunition fired will play a supporting role, too, but since the average person does not understand the field of ballistics as well as they do guns, the ammunition used is often, although not always, glossed over. I do remember testifying in a case in which the ammunition played a huge role in the trial, when my testimony explained the nuances of .38 Special v. .357 Magnum, hollow point v. round nose and wad cutter bullet design. Ammunition also plays a major role if the distance between the muzzle and the wound is an issue, as it often is.
When distances are contested, both the prosecution and the defense will likely conduct gunshot residue and stippling testing, trying to determine how far the muzzle was from the inflicted wound. This was recently illustrated in the George Zimmerman prosecution.
Pre-trial legal procedures play a big role leading up to trial or dismissal of charges. Whether or not you are prosecuted for murder or manslaughter or whether your shooting is deemed justifiable by reason of self defense, can hinge on the prosecution’s opinion of whether or not firearms or ammunition issues could lead a jury to convict or acquit. I would like to think that most prosecuting attorneys do in fact want to see justice served, and if a person is innocent of a crime, they should chose not to prosecute. The sad reality, though, is that many people are prosecuted despite overwhelming evidence of justifiability, as was George Zimmerman.
Many prosecutors have a good understanding of issues relating to self defense. In deciding to pursue a case, they must weigh whether or not they can argue convincingly that you were somehow negligent or reckless based on the type of gun you used or what you had done to your gun prior to the shooting. The prosecutor knows the jury pool and knows if a jury can be swayed by their spurious arguments and accusations of negligence, recklessness or just plain maliciousness.
The Jury Weighs the Evidence
Your guilt or innocence will be determined in court by the evidence presented, which is weighed by the experiences, knowledge and education of the members of the jury. Do not expect jurors to possess the same level of knowledge as you do about self defense. If you live in a gun-friendly community, the jury should include gun owners, as well as non-gun owners. Your jury will usually contain a mix of people who have all been “trained” by TV and the movies, who are likely not NRA members, and who may or may not already have a bias against guns and armed self defense.
Because the prosecution and defense have pre-emptory challenges during jury selection, at least you should not have rabid anti-gunners on your jury, nor will you have people who have used a gun in self defense or are admittedly pro-gun. You are not guaranteed a jury of your peers, just a jury of fellow citizens.
These jurors have to judge both the prosecution’s accusations and the defense’s explanations about modifications, light triggers and reloaded ammunition used during a self-defense shooting in order to reach a verdict of guilty or not guilty. Let us next study those issues in detail.
When a forensic firearms examiner for the state examines a gun used in a shooting, any external modifications made to the gun are listed on the crime lab report given to the prosecutor. If the prosecutor believes that any of these modifications may paint you, the defendant, in a bad light, these findings will be heralded in court. The prosecutor asks the forensic firearms examiner to explain during testimony what they found when they examined the gun, and then asks the examiner to compare your gun to an unaltered, factory stock gun. If you installed different sights, an extended magazine release, an extended slide lock/release, or cut the frame down so you could conceal the gun easier, that will be discussed.
The prosecutor will then ask the purpose of these modifications. If your defense attorney is savvy, he or she will object at this point, because your purpose is outside the knowledge of that witness. Only the defendant can testify why he or she made those modifications. An argument will ensue between attorneys with the judge as referee. If the judge is sympathetic to the prosecution (most are, being former prosecutors themselves), the objection will be overruled and the examiner allowed to opine why those modifications may have been made. The questions might go something like this:
Q: Why do people put different sights on guns?
A: To make it easier to kill people.
Q: Why do people put extended magazine releases on guns?
A: Because on some guns, the factory magazine release is too small to make it easy to quickly reload the gun and continue firing.
Q: Why might a person put an extended slide release on a gun?
A: For the same purpose of an extended magazine release. If the person just got done shooting all the bullets in the magazine and he wanted to quickly get the gun reloaded to continue killing, an extended slide release will save them a whole second as opposed to racking the slide manually. A good shooter can shoot 4 or 5 more bullets in that extra second.
Now, put yourself in the place of a 65-year-old grandmother serving on a jury. She has never shot a gun in her life and sympathizes with the “gun victim” mantra as reported by the anti-gun media and perhaps she even voted for our anti-gun president and vice-president. Do you think this line of questioning might create in her mind a negative opinion about you, the defendant?