This month, we start a new topic of discussion with our affiliated attorneys. We asked–

Suppose that a member keeps an extensive collection of legal rifles, shotguns and handguns locked in a safe, and uses his or her carry gun in justifiable self defense.

Can the gun collection be discussed in a trial to suggest to a jury that the armed citizen is a blood thirsty monster, not a good member of the community?

How would a prosecutor or plaintiff’s attorney introduce that line of reasoning? If defending the member, how would you counter the accusation if it arose?

James B. Fleming
Fleming Law Offices, P.A.
PO Box 1569, Monticello, MN 55362

There are a great number of things that get tossed around as fodder for introduction at trial primarily by people without a basic understanding, or familiarity, with the Rules of Evidence. To be admissible, evidence under the Rule (generally identified as 401) must first be relevant. This means that a fact is only relevant if it helps to prove a fact issue at trial. It is evidence that bears directly upon the fact in issue and tends to prove the fact alleged.

If the issue is whether the actor used deadly force justifiably under the laws of a specific jurisdiction, whether he/she has one gun, or enough to equip the 2nd Marine Division is not in issue. Typically, law enforcement agents will obtain an order to confiscate the firearms of the charged citizen “for public safety.” So, an experienced trial attorney will, prior to trial, file a motion known as a Motion in Limine to prevent a prosecutor or plaintiff’s attorney from attempting something that bush league. When granted, an order issues from the court, preventing the prosecutor, or plaintiff’s attorney from mentioning the defendant’s other firearms, or attempting in any way to suggest that ownership of other firearms has any bearing upon the issue in question.

The common law of all states that I know of have decisions also preventing the prosecutor/plaintiff’s attorney from “disparaging” the defendant, and his/her attorney. Making such an accusation or insinuation would be that type of disparagement. Judges know that allowing such conduct is grounds for reversal on appeal. Judges are willing to accept reversal for genuine errors of judgment. They really hate being reversed over stupid mistakes or ignoring settled law.

Most experienced trial attorneys have also had some hotshot try to slip something by such as that type of suggestion or veiled accusation. That leaves defense counsel absolutely free to embarrass the offender in front of the jury by explaining what they did and why. A skilled trial attorney can fillet an offender like a fresh caught bass. And a trial judge with much experience will often sit back and enjoy the show.

Trials are much like theater. Everyone knows their roles, their lines, their actions well in advance of trial day. Most trial attorneys have waged war in the courtroom with their adversaries many times before. You know who and what you are going to be dealing with. There are, if the case is prepared properly very, very few surprises.

Joel A. Brodsky
Law Office of Joel A. Brodsky
8 S. Michigan Ave., Ste. 3200, Chicago, IL 60603

The answer is that such “evidence” would be absolutely inadmissible. Since I mostly practice in Illinois I will refer to the Illinois Rules of Evidence. These rules are practically identical to the Federal Rules of Evidence, so they are practically the same in every jurisdiction. Rules of Evidence 401, 402 and 403 are applicable here. These rules state:

Ill. R. Evid 401 - 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.

Ill. R. Evid. 402- All relevant evidence is admissible, except as otherwise provided by law. Evidence which is not relevant is not admissible.

Ill. R. Evid. 403 - Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

The issue in a self-defense case is legal justification, meaning was the person using deadly force required to use that force because he, or someone else who is not an aggressor, was in imminent danger of being killed or suffering serious bodily harm at the hands of the person against who deadly force is used. It is obvious that ownership of a large number of guns will not make any fact regarding imminent danger of being killed or suffering serious bodily harm more or less probable. Therefore, it is inadmissible.

A question before the judge or jury may be who was the aggressor. In other words, the state is claiming that the person who shot the other person was actually an aggressor rather than being a person who was in fear of being killed or seriously harmed. In such a case there is a possibility (a small possibility, but still a possibility) that a judge could find that evidence that a person who owns a large number of guns could make it more probable that they were an aggressor. In such a case then Rule of Evidence 403 comes into play to keep the evidence out. Rule 403 states that even evidence that is relevant is excluded from admission if its probative value is weak, and it will cause great prejudice to the defendant. In the case of a person who owns a large number of guns, which is a constitutionally-protected right, the ownership of those guns is very weak evidence of owner being an aggressor, but the possibility that such evidence would prejudice a jury is high. Therefore, under Rule of Evidence 403 the evidence of ownership of a large number of guns would be inadmissible.

Randy L. Robinson
Attorney at Law
PO Box 682, Augusta, ME 04330
This email address is being protected from spambots. You need JavaScript enabled to view it.

Whether or not it would be introduced would depend on the specific state’s rules of evidence and the judge at trial. The argument before trial would be that the collection is irrelevant and may tend to confuse the jury. It makes the shooter look bad without actually proving the specific circumstances of the shooting.

I think that to introduce it, the prosecution or plaintiff would have to show considerable evidence of the shooter’s prior behavior with regard to guns. It would, I think, be a tough argument.

If it did come up at trial, I would argue that my client understood weapons and their proper use. This may be helpful if the guns were locked up properly. It indicates an awareness of safety and may make the jury consider the shooter as a good person who acted justifiably.

Michael C. Lukehart
Law offices of Michael C Lukehart
PO Box 22771, Bakersfield, CA 93390-2771

In some circumstances the gun collection may be introduced into evidence. The key consideration is what facts, what circumstances, make the collection relevant? More precisely, what is it relevant to prove?

The answer, of course, depends on the issues raised in the trial. A citizen who uses his gun at 2:00 A.M. against an intruder with a baseball bat who is invading his bedroom is in a lot different evidentiary posture than a citizen who goes over to the neighbor’s house to complain about a loud party and ends up shooting the threatening, but unarmed, drunk who has been dating the citizen’s recent ex-girlfriend.

As with all evidence, the circumstance of the collection can be a two-edged sword. I like to turn all circumstances to my client’s advantage. For example, if the prosecution is suggesting a careless or hasty use of the firearm, I, myself, might bring up the number of, and my client’s experience with, the guns in the safe. The fact that they are locked in the safe suggests responsible ownership. The number of them suggests long familiarity. The number also suggests significant personal investment in their use and safe handling. 

Coupled with my client’s training, practice, instruction, and law-abiding interest, all of these factors tend to show a person who neither uses a firearm in an unfamiliar panic, nor is likely to carelessly have an accidental discharge. If they are in the safe because he is a family man and is concerned about the children, all the better. It gives me a hook to talk about how he is teaching the kids safe gun handling. Get some family bonding before the jury. Responsible ownership is always a good thing to show.

The fact of the collection is also an opportunity for my client to discuss his lawful sporting and training activities. Nothing demystifies firearms to the novice juror more than a discussion of what actually happens at a range, or the ancillary wilderness pleasures of the hunt, or the family pleasure and memories when birding while using Grandpa’s favorite old shotgun. If he has the CCW because of threats or a prior incident, I can bring in that incident to distinguish how the carry weapon means something different to him than the guns in the safe. 

There are very few jurisdictions where the simple fact of lawful gun ownership is prejudicial. It would take an unusual jury, probably only to be found in rather insular urban areas, to find this prejudicial. This problem is most likely to arise in a situation where someone from a city such as mine, Bakersfield, travels to some radically different urban area, such as Oakland or downtown LA, and gets into a self-defense situation. I do not see it coming into play during the prosecution’s case in chief; it would probably be excluded as prejudicial character evidence, and thus ruled inadmissible. Should the client testify, or put his character, knowledge, or firearms proficiency in issue, then you have a different situation. If that were the case and the judge ruled that the evidence was coming in, I would bring it out myself while examining the client and then call supporting witnesses in order to defuse the issue.

Schoen Parnell
Parnell Defense, PLLC
3405 188th St SW, Suite 301, Lynnwood WA 98037

This type of argument, if used by a prosecutor, would be inflammatory and not likely be permitted by the judge. But, I suppose a prosecutor could tone down the verbiage and potentially try to use the argument to negate the defendant’s affirmative defense (self defense, justifiable homicide).

Ultimately, the judge is the gatekeeper of what evidence gets admitted and what evidence gets suppressed (in this case, photos of my client’s gun collection). The judge is also the gatekeeper of what arguments are permitted (in this case, that my client’s gun collection is evidence of a propensity for violence).

If physical evidence is sought to be admitted at trial against my client, the prosecutor will provide me with it (e.g., photographs of the gun collection). I would seek to get a pretrial ruling by the judge preventing the prosecutor from using the photos. This could be done either in a formal Motion to Suppress Evidence or through a Motion in Limine which is often done the morning of trial where I ask the judge to order the prosecutor not to bring up a particular issue (i.e., my client’s gun collection).

The main argument would be one of relevance – “Evidence which is not relevant is not admissible.” Evidence Rule 401. What kind of evidence is relevant? Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Evidence Rule 402.

A jury will know through testimony that my client is a gun owner. Unless there is evidence from the scene that points to some violent tendency (which would go to negate our self-defense defense), then there is no “fact of consequence” that needs bolstering by a photo of a gun collection. But let’s say there is, like the fact that my client continued to empty the contents of his 15 round magazine into the “victim” after the victim fell to the ground and did not move after the second fired round struck him in the head.

The prosecutor would have to show how guns owned by the defendant and kept elsewhere (locked in a safe), tends to indicate a violent tendency. Just because I have the freedom of speech and I choose to exercise that right doesn’t mean that I cuss. And if I cussed today, that doesn’t mean that I cussed yesterday, or the day before, or will cuss tomorrow or the next day. And just because I have the right to own firearms and I choose to exercise my right of gun ownership doesn’t mean that I am a violent person by nature, and doesn’t say anything as to why I own guns. My client’s other guns are not relevant.

But even if the judge were to rule that the gun collection was relevant (which I find hard to believe), the follow up arguments is that “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury…” Evidence Rule 403. Put another way, admitting a picture of my client’s other guns and allowing the prosecutor to argue that it would indicate a violent tendency on the part of my client “is more prejudicial to my client than probative to any fact of consequence.” Because a juror may jump to that illogical conclusion the prosecutor is hoping they’ll jump to.

Timothy A. Forshey
Timothy A. Forshey, P.C.
1650 North First Ave., Phoenix, AZ 85003

The answer, unfortunately, is “yes,” an aggressive (unscrupulous?) plaintiff’s attorney or prosecutor could, indeed, attempt to have the fact that the defendant has an extensive gun collection admitted to show some sort of aggressive bias. They would need to come up with some “straight-faced” argument to support that evidence’s admission, and a savvy defense attorney would combat the admission by using the evidentiary argument, pre-trial, that the prejudicial effect of that evidence upon the jury (the real reason the bad guys want it admitted) would outweigh any probative value gained. I would strongly expect that such an argument against admission would win the day.

If not, I would very carefully have my client explain his/her motives for obtaining the collection, including target shooting, competition, hunting, etc., all of which are legal, socially acceptable (at least to the righteous and/or open minded) and not related to committing crimes. If my client is not going to testify, I would likely have my firearms/self-defense expert, who is also likely a firearms collector, address the same concerns as my client’s thinly disguised proxy.

I think a good analogy would be to remind the jury that automobiles kill approximately 15 times more people each year than firearms and most wealthy people with large automobile collections are no more likely to commit vehicular manslaughter that those with only one car. I would predict that such an attempt to besmirch my client would result in the prosecutor/plaintiff’s attorney looking like the desperate jerk they really are in front of a disapproving jury.

John R. Monroe
Attorney at Law
9640 Coleman Rd., Roswell, GA 30075
This email address is being protected from spambots. You need JavaScript enabled to view it.

As a practical matter, I’m not sure how the state would learn of the gun collection. The question says that a carry gun is used in self defense. Because it was a carry gun, I assume that means the gun use was not at home. I’m not sure what the basis would be to obtain a warrant to search the gun user’s house. But the question seems to assume that the state did learn of the collection, so let’s proceed from there.

The question implies there is some kind of criminal prosecution or civil case resulting from the use of the gun. I don’t see how the prosecution/plaintiff would get the gun collection into evidence.

The factual issues at trial would be the events leading up to the incident and the incident itself, with a legal issue of whether the use of the gun was justified. The possession of other guns, not used in the incident, is not probative of any of those issues. That possession would therefore be irrelevant. Moreover, it doesn’t really matter whether the gun user is a “good member of the community.” The use of the gun was either justified under the circumstances or it was not, and accusations about the character of the gun user also are irrelevant.

Compare this to a person arrested for DUI when there is evidence he drank at home before driving. The extent of the person’s liquor collection (i.e., the liquor not consumed) would not be relevant.
We greatly appreciate our affiliated attorneys’ generous participation in this interesting and educational column! Please return next month when we share the rest of our attorneys’ responses to this question.

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