Thursday, April 12, 2012

Zimmerman, Probable Cause, and F.S. 776.032(2)

Yesterday George Zimmerman was charged and arrested by Florida law enforcement on suspicion of second degree murder of Trayvon Martin.  The facts of the case, publicly known as of this date, are widely published on the Internet and the reader can seek these elsewhere.  For purposes here, it is enough to say that Zimmerman shot and killed Martin, and upon questioning by law enforcement, asserted that he acted in lawful self defense.  Here we address the legality of his arrest under section 776.032(2), Florida Statutes.  That statute states:
776.032 Immunity from criminal prosecution and civil action for justifiable use of force.—
(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

Originally, several days after the shooting, local authorities announced that there was no probable cause to arrest Zimmerman.  Roughly 45 days later, an arrest was made, suggesting that either new evidence was discovered, or a re-examination of evidence suggested probable cause existed that Zimmerman's use of force was unlawful.

So what exactly is "probable cause?"  It seems that much of the public feels that probable cause for an unlawful use of force is present any time deadly force is used against an unarmed person.  In the Zimmerman/Martin case, advocates of this position are quick to quip that Martin was "armed" only with candy and soda.  These folks seem to think that although it is not impossible that an unarmed person can reasonably cause another person to fear for great bodily harm, such an event is facially improbable.  Are they right?

There is other publicly known evidence in the case, such as:

1. the statements made by Zimmerman, who is, as far as I have read, the only eye-witness to the shooting.
2. photographs and witness testimony as to Zimmerman's appearance and demeanor immediately following the incident.
3. witnesses who heard events unfold, including neighbors and Martin's girlfriend by telephone.

So putting it all together, how does one determine whether there is "probable cause" under 776.032(2)?

It seems most courts today rely on a standard similar to that in a Supreme Court ruling, Maryland v. Pringle, 540 U.S. 366, 370-71 (2003), which stated:
The long-prevailing standard of probable cause protects “citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime,” while giving “fair leeway for enforcing the law in the community's protection.” On many occasions, we have reiterated that the probable-cause standard is a “ ‘practical, nontechnical conception’ ” that deals with “ ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ”  “[P]robable cause is a fluid  concept-turning on the assessment of probabilities in particular factual contexts-not readily, or even usefully, reduced to a neat set of legal rules.”  The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances.  We have stated, however, that “[t]he substance of all the definitions of probable cause is a reasonable ground for belief of guilt,” (internal quotation marks and citations omitted), and that the belief of guilt must be particularized with respect to the person to be searched or seized, . In Illinois v. Gates, we noted:“As early as Locke v. United States, 7 Cranch 339, 348, 3 L.Ed. 364 (1813), Chief Justice Marshall observed, in a closely related context: ‘[T]he term “probable cause,” according to its usual acceptation, means less than evidence which would justify condemnation .... It imports a seizure made under circumstances which warrant suspicion.’ More recently, we said that ‘the quanta ... of proof’ appropriate in ordinary judicial proceedings are inapplicable to the decision to issue a warrant.  Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the [probable-cause] decision.”  To determine whether an officer had probable cause to arrest an individual, we examine the events leading up to the arrest, and then decide “whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to” probable cause.
In short, "probable cause" is a "fluid" concept, but boils down to a "reasonable ground for belief of guilt," and "guilt" means something far less than guilt beyond a reasonable doubt.

From the known facts at this time, there are certainly, in my opinion, reasonable doubts regarding Zimmerman's guilt.  He claims he acted in self-defense after, without provocation, Martin punched him in the face, knocked him to the ground and began slamming Zimmerman's head into pavement.  The police report regarding Zimmerman's wounds and witness reports of his cries for help seem to collaborate the story.  It may not be the truth, but there is enough evidence, in my mind, to create doubt that Zimmerman's defense was not lawful and was instead a murder.

But, would it be unreasonable to think Zimmerman might not have been acting in lawful self defense?  His victim was unarmed, and although Martin was an athletic football player, there was not a great size disparity between him and Zimmerman.  There also seems to be some dispute among witnesses as to whose voice was crying for help during the altercation, Zimmerman or Martin.  There is also some circumstantial evidence that Zimmerman may have provoked a confrontation.  All these facts may not be enough to convict Zimmerman (i.e. guilt beyond reasonable doubt), but do they create a "reasonable ground for belief of guilt"?  Put another way, is it unreasonable to believe Zimmerman might have acted unlawfully?

Unfortunately, it could be a long time before we know all of the facts and circumstances that were presented to whoever made the probable cause determination.  I suspect, like many, that proof beyond a reasonable doubt has yet to be established, but Zimmerman's arrest will likely be held valid (if challenged) on grounds that probable cause was present.

Tuesday, April 3, 2012

Admissibility of "hollow points" in a criminal case and the decison by civilians to carry them.

Fact or Urban Myth?
I've heard and read gun owners suggest that in the aftermath of a self-defense shooting scenario, one should expect the state to try to convince a jury that the defendant's use of hollow point ammunition will be used against him.  The thinking goes that a prosecutor will say something like this, "You see ladies and gentlemen of the jury, Mr. Defendant was so eager to kill someone, that he made sure his gun was loaded with special bullets designed to rip and tear flesh...he wanted bullets with more killing power than the bullets Uncle Sam issues to soldiers!" etc. etc.  I decided to informally investigate whether this was true, or simply an urban myth.

Most gun owners find this idea offensive, for at least two reasons.  The first argument is that simply choosing the most effective ammunition is not indicative of a violent character, any more than putting premium gasoline in a car suggests the driver is prone to speeding.  The second argument is that most gun owners believe that hollow point bullets are safer and more socially responsible than target bullets ("ball" ammunition) because the very same attributes that create larger wound channels in flesh also significantly reduce the bullet's ability to create dangerous ricochets, or to penetrate walls or bad guys and hit someone behind them.

I leave it to the reader to educate herself elsewhere on the definition and varying types of "hollow point" ammunition, including "safety slugs", frangible bullets, and other designs, and the arguments for and against such bullets in civilian use versus "ball" or "full metal jacket" ammunition.  Clicking on the  links provided will bring up the definition and some of the arguments for those unfamiliar.  An interested reader can also visit a local gun store, and receive an earful on the issue, and also observe that most new gun owners are instructed by sales staff to practice with ball, but load hollow points for self-defense scenarios (ball is roughly has the cost of hollow point ammunition and makes no difference when target shooting).

Balancing of Relevance Against Prejudice
First, I should address some practicalities of a criminal case.  Generally speaking, criminal defense lawyers would prefer their client, even an innocent client, not testify.  The thinking is that too much can go wrong, and that it is better to poke holes in the state's case such that the jury is convinced that the state cannot prove guilt beyond a reasonable doubt.  Thus, as a practical matter, the defensive gun user is likely to choose not to testify as to the reasoning behind a particular ammunition choice.

That said, a defense lawyer will seek to exclude the type of ammunition involved in a self-defense shooting from evidence.  Generally speaking, if evidence proffered by a party in a case is relevant, it is admissible unless there is a rule prohibiting the use of such evidence.  The standard for relevance is broad and liberal.  The Federal Rules of Evidence, which serve as the basis for many state rules of evidence, provides:
Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Thus, in the face of a prosecutor attempting to introduce facts surrounding the type of ammunition used in a shooting, defense counsel will typically attempt to argue that the such information is of no or minimal relevance, and is outweighed by the potential prejudice to the defendant.  The argument might be that the jurors have potential prejudices and biases towards "hollow points", or that if they hear the effect hollow points have on flesh they will be biased towards the defendant or improperly impute a violent character to him, so on and so forth.  The judge will then decide whether the prejudice outweighs the probative value, and either allow or exclude the evidence.

So my task was to find cases mentioning the term "hollow point," using a computer search, and read them and determine how judges are handling these objections.  Let me point out a major problem with this approach.  Generally speaking, only appellate cases become published.  That means that if nobody appeals the case, there is no practical way (given the current state of trial court transcript availability) to know a ruling on the issue ever occurred.  And there are many, many, many reasons why criminal cases do not get appealed.  Another problem is that my search produced a very small sample size, putting into question the reliability of any conclusions that might be drawn.

Generally speaking, courts tend to find that the relevance of hollow point ammunition used in a shooting outweighs potential prejudice.

Drug Cases
Sometimes accused drug trafficking are charged with using a firearm in connection or in furtherance of their alleged trafficking, i.e. to protect the merchandise. Defense attorneys have tried to exclude the firearm's being loaded with hollow points as irrelevant and prejudicial, presumably the reasoning being that a jury will be offended by the use of hollow points, assume the defendant is a bad person or a criminal, and therefore he must also be a drug dealer as alleged by the state.  Several federal courts seem to side with the state that hollow points are relevant as tending to prove the alleged drug dealer loaded hollow points to defend his "stash" as opposed to "innocent use" such as target practice, and further, that the relevance outweighed potential prejudice.  This seems odd, as one would think that possession of a handgun speaks for itself in terms of purpose, i.e. self defense.  Naturally, if the jury is told the defendant was caught possessing a 9mm Glock and a kilo of cocaine in the same suitcase, they are more than capable of putting two and two together.  But consider as mall bag of marijuana found in a nightstand, and a firearm located in a closet.  There may be some question as to whether the person is a trafficker.  Thus, to the extent the type of ammunition might prejudice the jury (to think "oh, well if he loaded his gun with these nasty evil bullets, he must also be a drug dealer"), it would seem prudent to exclude that evidence, unless a defendant affirmatively asserts the gun was for target competition only, or makes some other excuse for its posession.  Not so:
United States v. Pugh, 175 Fed. Appx. 390, 393 (2d Cir. 2006)
Appellant's final claim with respect to his convictions is that the district court abused its discretion in permitting the government to elicit expert testimony from an ATF Special Agent about hollow-point bullets. The Special Agent testified that hollow point bullets are “designed to flatten on impact,” that they are “designed for defensive purposes,” and that they therefore “provide more protection” than an ordinary bullet. Appellant asserts that this testimony was both irrelevant and highly prejudicial. We disagree. We have already stated that where, as here, a gun was loaded with hollow point bullets, that fact “militate[s] against an inference of innocent use, such as target practice or hunting.” Lewter, 402 F.3d at 322 (discussing evidence supporting a jury's conclusion that the gun had been possessed in furtherance of a drug crime). Moreover, we see no danger that Appellant was unfairly prejudiced by the dry and technical language of the testimony elicited by the government.

United States v. Lewter, 402 F.3d 319, 322 (2d Cir. 2005)
Possession of a firearm to defend a drug stash clearly furthers the crime of possession with intent to distribute the contents of that stash. See United States v. Garner, 338 F.3d 78, 81 (1st Cir.2003) (“When guns and drugs are found together and a defendant has been convicted of possession with intent to distribute, the gun, whether kept for protection from robbery of drug-sale proceeds, or to enforce payment for drugs, may reasonably be considered to be possessed ‘in furtherance of’ an ongoing drug-trafficking crime.”); United States v. Suarez, 313 F.3d 1287, 1293 (11th Cir.2002) (where firearms were hidden throughout a stash house, “the jury could reasonably have inferred that the guns were to be used to protect the conspirators' investment in their shipment”).The evidence was sufficient to support the jury's verdict that Lewter possessed the gun to defend his drug stash. The firearm had an obliterated serial number and was loaded with hollow-point bullets-facts that militate against an inference of innocent use, such as target practice or hunting. Moreover, the gun was stored within feet of Lewter's drug stash and within Lewter's reach. See Finley, 245 F.3d at 202-03 (affirming conviction under § 924(c)(1) where unloaded shotgun was stored under pile of clothes in the room from which drugs were sold); see also Wahl, 290 F.3d at 376-77 (affirming conviction under § 924(c)(1) where loaded gun was within defendant's reach and in close proximity to defendant's drug stash).
United States v. Fort, 25 F.3d 1041 (4th Cir. 1994)
The prosecution had to prove beyond a reasonable doubt that the defendants possessed firearms and used them in connection with their drug trafficking and not for some innocent purpose, such as, target practice, bird hunting, clay pigeons, etc. Hollow-point ammunition is not used for target shooting or hunting. It is designed, manufactured and used to produce the greatest damage to the human victim. See United States v. Bayko, 774 F.2d 516, 521 (1st Cir.1985) (“the possession of a firearm partially loaded with bullets[hollow-nosed] designed to maim or kill by one with the defendant's background is by itself ‘clear and convincing’ evidence of dangerousness.”).
*4 Firearms are a tool of the illegal drug trade. These weapons are possessed not for sport, but are used to protect the drug dealers, their illegal drugs, and their ill-gained currency from other criminals and law enforcement officers. The record is filled with testimony about defendants' desire to acquire firearms and instructing their salesmen to trade drugs for firearms when possible. When a person loads a revolver with hollow-point ammunition, he may expect this fact to be used against him, if he possesses or uses the weapon for some illegal purpose. If the stolen shotgun had been loaded with buckshot rather than birdshot, this would have been admissible because buckshot is more effective against humans than birdshot.

United States v. Newton, 31 F.3d 611, 613 (8th Cir. 1994)
The evidence in the present case showed that a loaded AR–15 semiautomatic rifle was found behind the door leading to appellant's bedroom, and a loaded .38–special revolver and a loaded .22 caliber revolver were found inside a dresser drawer in the same bedroom. These weapons were found in the same room in which the methamphetamine was discovered. Two of these weapons were loaded with hollow point ammunition that is designed for self defense and antipersonal use, rather than target practice. This was sufficient evidence for the jury to conclude that the appellant used the firearms during and in relation to a drug trafficking offense.

United States v. Garza, 566 F.3d 1194, 1201 (10th Cir. 2009)
Mr. Garza's firearm was readily accessible, very near the drugs, and equipped in a manner suited for protection (that is, with loaded and chambered hollow-point bullets and a red-dot scope nearby).
Other Cases
One could argue that the drug cases are perhaps not informative, given the so-called "war on drugs" and the otherwise overwhelming evidence in the cases cited above.  However, this does not seem to be the case:

State v. Aguilar, 1 CA-CR 06-0035, 2009 WL 690598 (Ariz. Ct. App. 2009)
This asserted error is based on an apparent misreading of the record. The trial court did not order that evidence of hollow point bullets was inadmissible. It merely sustained Aguilar's objection to this evidence at one point because the subject exceeded the scope of cross-examination. Later the prosecutor asked another witness on direct examination about hollow point bullets. The evidence was relevant because the State had to prove premeditation, and Aguilar's defense was the absence of premeditation. Victim J.B. was killed with a hollow point bullet. Hollow point bullets like those used by Aguilar are designed to be more lethal than other bullets. Thus the evidence had some relevance to Aguilar's state of mind.

United States v. Leake, 396 Fed. Appx. 898, 901 (3d Cir. 2010) cert. denied, 131 S. Ct. 1541 (U.S. 2011)
Troy Leake appeals from a judgment of conviction and sentence entered by the United States District Court for the District of New Jersey following his conviction *899 for unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)
On June 2, 2009, Leake proceeded to trial. During the government's case-in-chief, Sergeant Ruane testified that one of the guns recovered from Leake on the night of his arrest was loaded with two hollow-point bullets. Leake's counsel objected to the line of questioning, arguing that “[i]t's not a relevant element of the case.” (JA at 173.) The District Court overruled the objection, stating “[r]elevance is as to the weapon. I'll allow it.” (Id.) Golpe also testified about the hollow-point bullets and explained the difference between hollow-point and bald-point bullets as follows: “Hollow point is designed to expand, or more commonly referred to in the media as the cop-killer bullets.” (JA at 219–20.) Leake's counsel objected and also moved for a mistrial based on Officer Golpe's testimony about “cop-killer bullets.” The District Court overruled the objection and declined to grant a mistrial. The Court offered to give the jury a curative instruction, but Leake's counsel declined the offer. On June 3, 2009, the jury returned a verdict of guilty.
Leake argues that the District Court erred in failing to grant a mistrial because “[t]he testimony about ‘cop killer’ bullets was so prejudicial a mistrial was required.” (Appellant's Op. Br. at 38.) We disagree. Officer Golpe's single statement that hollow-point bullets are “more commonly referred to in the media as the cop-killer bullets,” obviously does not amount to pronounced and persistent remarks, Lore, 430 F.3d at 207 (“a single statement by a witness ... hardly can be deemed pronounced and persistent”), and, as already noted, the record contains overwhelming evidence of Leake's guilt, including the eyewitness testimony of two police officers that Leake was carrying two firearms, which were both recovered during the arrest. In addition, the District Court offered to issue a curative instruction, which Leake declined. See United States v. Smith, 487 F.3d 618, 622 (8th Cir.2007) (holding that the district court did not abuse its discretion in denying the motion for a mistrial where the defendant had declined the district court's offer to give a curative instruction to the jury). Thus, in light of the strength of the other evidence presented at trial against Leake and the *905 District Court's offer to give a curative instruction, we cannot say that the District Court abused its discretion in declining to grant a mistrial based on Golpe's single statement that hollow-point bullets are more commonly known in the media as “cop-killer” bullets.

State v. L'Minggio, 71 Conn. App. 656, 658, 803 A.2d 408, 410 (Conn. App. Ct. 2002)
The defendant, Jason L'Minggio, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes § 53a–55a1 and carrying a pistol or revolver without a permit in violation of General Statutes § 29–35(a)
Finally, the defendant claims that the prosecutor, during her closing argument, committed prosecutorial misconduct that deprived him of a fair trial. We disagree.
13 The defendant's claim focuses on the prosecutor's references to the type of bullets that the defendant used in the shooting. During her closing argument, the prosecutor referred to the bullets as both “killer bullets”9 and “[f]lesh ripping, killer bullets.”10 The defendant *675 argues **420 that this description of the ammunition “was not supported by the testimony, has no scientific basis and was improperly intended to appeal to the jury's sympathies.” The defendant also argues the prosecutor's “language was excessive, inflammatory and unsupported.”11
It was undisputed at trial that the perpetrator of the shooting used a unique type of ammunition, namely, nine millimeter Federal Hydra Shok jacketed hollow point bullets. At trial, Harold Wayne Carver, a forensic pathologist and the chief medical examiner for the state of Connecticut, testified about the hollow point bullet that he recovered from Mayes' leg. Carver testified that this type of bullet is “a bullet in which the nose of the bullet is ... scooped out. It sort of has like a little dish in it. They are designed to change their shape to get bigger when they hit something. And the whole purpose of the bullets is to put energy into tissue and thereby destroy tissue.... [I]f the bullet is bigger, it touches more tissue and is more efficient at depositing its energy in the tissue. Therefore, it's supposed to do a better job.” Carver further explained that this variety of bullet is designed to do more damage by hurting more body tissue. **422 Edward Jachimowicz, an expert firearms and tool mark examiner who works in the forensic science laboratory for the state, also testified about the bullets used in the shooting. Jachimowicz testified that the bullets were “copper jacketed, hollow point. Inside the bullet, or, inside the cavity of the hollow point, there's a post. The design of the bullet is that when fluid, whether it's water or body fluids or whatever, but when a fluid gets into the nose of that bullet, the water pressure or the hydraulic pressure causes the nose of that bullet to mushroom. And the post then sticks out and basically steers the bullet on a truer, straighter path.”John Brunetti, a detective with the West Haven police department who investigated the shooting, also testified about the bullets used in the shooting. Brunetti testified  *679 that he observed a spent bullet in the ground and that it had “mushroomed.” He therefore suspected that it was a hollow point type bullet.1718 Having reviewed the testimony concerning the bullets used in the attack, we are unable to conclude that the prosecutor's remarks were unsupported by the evidence adduced at trial. The state's experts testified that the bullets were designed to expand when they entered the body so as to maximize their ability to destroy body tissue. The evidence further demonstrated that the bullets used in the shooting fulfilled that purpose. In light of that evidence, the prosecutor's remark that the bullets were “flesh ripping” was not inaccurate and, therefore, not inappropriate. Furthermore, the prosecutor's reference to the bullets as “killer bullets” was likewise not inaccurate. The evidence reflects that the use of hollow point bullets in the shooting caused Mayes' death. The prosecutor may comment on the evidence and on the reasonable inferences that the jurors might draw from such evidence. State v. Payne, 260 Conn. 446, 454, 797 A.2d 1088 (2002).13When viewed in isolation, the prosecutor's remarks might appear inflammatory or intended solely to arouse  *680 the passions of the jury. When viewed in context of the evidence adduced during trial, however, the remarks constituted fair and zealous comment on the evidence. Having concluded that the prosecutor's remarks did not rise to the level of prosecutorial misconduct, we have no need to consider whether they deprived the defendant of his right to a fair trial.

United States v. Bayko, 774 F.2d 516, 521 (1st Cir. 1985)
We turn first to the requirement that a defendant may not be released on bail if he or she poses a danger to the community or is likely to flee the jurisdiction.
We cannot agree with the district court's finding that Bayko was not a danger to the community. Upon appeal, the defendant has the burden of showing “by clear and convincing evidence” that he or she will not be a danger to the community, Fed.R.App.P. 9(c); 18 U.S.C.A. § 3143(b), even where it is the government which has taken the appeal. “The motion shall be determined upon such papers, affidavits, and portions of the record as the parties shall present....” Perhaps the most positive information about the defendant, the presentence report, was not included in the record upon appeal.7 Although it is by no means clear that having this report before us would have led us to a different conclusion, without the report we certainly cannot see “clear and convincing evidence” that the defendant will not pose a danger to the community, either by violent acts or criminal activity. The presentence report cannot explain away the fact that defendant armed himself with a .38 revolver, a deadly weapon that he made even more deadly by partially loading it with hollow-nosed bullets. The possession of a firearm partially loaded with bullets designed to maim or kill by one with defendant's background is by itself “clear and convincing” evidence of dangerousness.

Favorable Cases
I found only one, and arguably, it excluded evidence of the nature of the bullets used in the crime not because of potential prejudice, but rather because it was improperly proffered as opinion testimony from a lay (non-expert) witness:
Kolp v. State, 932 So. 2d 1283, 1283-84 (Fla. 4th DCA 2006)
In a trial on three counts of attempted second-degree murder with a firearm, the State produced evidence that defendant had fired his weapon three times at two men. Both men were called to testify about the event. In the testimony of one, the following ensued:Q. Yeah, tell the jury what you guys recovered.A. Recovered three empty casings, which were shot, and then I think it  *1284 was two more that were not shot, and they were hollow-points.Q. What does that mean?A. That means that the centers of them were carved out. Like, usually, hollow-points are for killing, you know? If you don't-[e.s.]At that point defense counsel objected to this unqualified witness being allowed to offer opinion evidence as to the use of hollow-point bullets, which the trial court overruled. Later in cross-examination, defense counsel asked the same witness the following:Q. You obviously have knowledge about firearms when you were describing the hollow-point bullets, right?A. I mean, who doesn't know about them. You watch movies, right?Even later in the trial, the State questioned defendant on cross-examination about hollow-point bullets as follows:Q. Okay. And you loaded this gun with hollow-point bullets.A. Yeah, hollow-points. They're hollow-points for a reason.Q. So, for what reason?A. The hollow-points are for a reason, and if I'm in my house and someone breaks in and I shoot somebody or I'm going to have to shoot somebody, I don't want a bullet to go through that person, through the wall, and kill my son in the other room.Q. Okay.A. That's what a hollow-point is for.Defendant was convicted of the three counts of attempted second-degree murder with a firearm as charged. On appeal the only issue is the admissibility of the testimony of the witness that hollow-point bullets are for killing.
Initially, we conclude that the testimony was not admissible under section 90.701, Florida Statutes (2005). In Fino v. Nodine, 646 So.2d 746 (Fla. 4th DCA 1994), we held that the kind of opinion testimony by lay witnesses admissible under section 90.701 is usually limited to things related to perception: e.g., “distance, time, size, weight, form and identity.” 646 So.2d at 748-49. The testimony about the purpose of hollow-point bullets is none of these things. The testimony is properly characterized as speculative. Allowing this testimony from the witness that the purpose of hollow-point bullets is only for killing was therefore error, but the issue is whether it prejudiced the outcome.
Thus, notwithstanding the outcome in Kolp, I am not sure the state could not have put on an expert witness to testify to the same thing thing as the lay witness did there.

Prosecutors' use of hollow points against defendants is not an urban myth.  I want to make it clear that I am not offering any advice on whether or not a civilian should carry hollow points.  In fact, I could imagine that even if one lawfully used a firearm in self defense and accidentally hit a bystander with a ricochet from ball ammunition, a clever plaintiff's lawyer could conceivably sue on the theory that it was negligent not to carry hollow points!  It is ultimately an individual choice based on the risks and rewards.  However, I will say that it is prudent to assume that if you do load hollow points, the state will attempt to use this fact against you, and very likely the jury will hear it.  Also, keep in mind that in some misguided states, hollow points and other kinds of ammunition are ILLEGAL, so you must know your local laws!  If you are ever put on trial for a defensive gun use with hollow points, your attorney should have a plan for the state's attempt to use the hollow points against you, and if he advises you hire your own expert to testify as to the fact and reasons why millions of law abiding gun owners carry hollow points, you should probably take that advice!

To the extent the reader disagrees with the outcomes cited above, and wants to do something about it, what are the options?  One possibility is to seek legislation that the fact that hollow points were carried is inadmissible, but this is not realistic.  The other option is to increase public awareness of the widespread use of hollow points by law abiding gun owners who merely want to defend themselves most effectively, and are also very mindful of the safety benefits of hollow points with respect to walls and ricochets.  Sooner or later this public knowledge makes its way to judges and juries, and hallow points will loose their stigma.  Much the same way the AR-15 is being re-branded as a "modern sporting rifle" instead of an "assault rifle," so too are hollow points in need of re-branding from their current status as "cop killers."