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FIREARMS AS EVIDENCE IN COURT: POLICIES AND PROCEDURES - MN Bench Book - Trial Procedures & Practices for Judges
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FIREARMS AS EVIDENCE IN COURT: POLICIES AND PROCEDURES

From MN Bench Book - Trial Procedures & Practices for Judges

Click on “TRIAL PROCEDURES & PRACTICES FOR JUDGES” above to return to main page


Contents

Procedure for Handling Firearms & Dangerous Objects as Evidence in Courtroom

Jurors should be instructed at the beginning of the trial about the possibility of a firearm coming into the courtroom as evidence and the procedures that will be followed if it is.

(Each number contains a link to an explanation of that procedure/policy.)

1. All firearms shall be unloaded in the court house and courtroom
2. All firearms and other dangerous objects shall be physically incapacitated and in a condition where they cannot be used to inflict harm
3. All firearms shall be open at all times
4. No firearm shall be displayed prior to showing to witness to establish foundation for admissibility
5. Firearms shall be in custody of court clerk
6. Firearm shall not be pointed at any person in courtroom; they should always be handled by the barrel
7. If an attorney intends to use a firearm in a demonstration by a witness in regard to how the firearm was used or held during the commission of the alleged crime, prior approval from the judge, of such procedure, shall be obtained by the attorney
8. Publication of firearm or dangerous object to jury during trial —jurors shall not be allowed to handle firearms during the trial if the firearm is published to the jury
9. Notification and approval shall be required before firearm is used in final argument
10. Firearm and ammunition shall never be given to witness or jury at the same time during deliberation.

Using Firearms as Evidence

Two Main Goals of Firearms Handling Procedure

A. PREVENT THE ACCIDENTAL OR PURPOSEFUL DISCHARGE IN THE COURTROOM OF A LOADED FIREARM which is being offered or has been received into evidence;
B. ELIMINATE THE FEAR AND APPREHENSION ON THE PART OF JURIES, court personnel and the public that a firearm, in a courtroom as evidence, is loaded and may be accidentally or purposefully discharged.

Importance of Stated and Promulgated Firearms Handling Policies and Procedures

The adoption and promulgation of firearms handling policies and procedures will allow judges, police and other witnesses, prosecutors, defense attorneys and court personnel to initiate and implement the procedures necessary to safely handle firearms in court. Knowledge of the policies and procedures will allow individuals handling firearms in the court to act appropriately even without being specifically instructed to do so.

An example would be: All evidentiary firearms brought into court will be open and secured so that an immediate visible inspection will indicate that they are not loaded. Personnel handling the firearm will have to take this action even before they come into the courtroom.

Discuss and Review the Court's Firearm Handling Procedures with Trial Attorneys and Other Court and Law Enforcement Personnel on a Regular Basis of Prior to Start of a Trial Involving a Firearm

The trial judge should review the court's firearm handling policies and procedures with the prosecutor and defense attorney at the beginning of a case involving a firearm. The trial judge should require the attorney intending to offer a firearm into evidence to notify the court of his or her intent to do so prior to the commencement of the trial. This should be a standing court rule. Distribute copies of the court's firearm handling procedures to prosecutors' and public defenders' offices, court bailiffs, other court personnel and police departments. As early in the pre-trial process as possible the trial judge should give a copy of the court's firearm handling procedures to private defense attorneys who represent a defendant charged with a crime that involves a firearm A court system considering adopting a firearms handling policies and procedures should request review and comment from prosecutors, public defenders offices, the private criminal defense bar, court bailiffs and police departments prior to formally adopting them.

Inform Jurors at the Beginning of the Trial and Immediately Prior to The Offeror Beginning to Lay Foundation for the Admission of the Firearm That Any Firearms That Will Be Offered in Evidence in the Trial Will Be Unloaded and Secured With a Device That Will Be Easily Identifiable As Such

In addition to the adoption of procedures to insure the safe handling of firearms in court, it is important that juries be informed at the beginning of the trial and immediately prior to the offeror beginning to lay foundation for the admission of the firearm (See or click on CURATIVE AND CAUTIONARY INSTRUCTIONS) that if the trial involves a firearm it will be unloaded at all times, always handled by the barrel and will never be pointed at them. See the attached draft instruction in regard to this. The court should direct an appropriate witness or a court bailiff to examine a firearm to be offered into evidence, immediately prior to the offeror establishing foundation for its admissibility, and state to the jury that the firearm is in fact unloaded and secured with a locking device.

There are two perspectives in regard to firearms:

A. The first is held by persons who are trained in the use of firearms. Their training tells them that when they see a firearm, unless it specifically proven otherwise, they should assume it is loaded and they should focus their attention on the firearm at all times because it could be loaded and thus dangerous. This type of person will not pay attention to the testimony when the firearm is in the court room;
B. The second perspective is held by persons who are not trained in the use of firearms. They see a firearm and think "Oh my god there's a gun it may be loaded, someone could grab it and shoot me." This person will not listen to the testimony as long the firearm is in the court room. Their fear will keep them focused on the firearm.

Information regarding the unloaded and safe condition of any firearm to be offered into evidence and how the firearm will be handled while in court should be given to the jury as part of their preliminary instructions and, prior to so instructing the jury, the defense attorney should be asked on the record if they object to such instruction. Giving the instruction early in the trial, as part of other preliminary instructions, is less prejudicial to the defendant than giving it during the prosecutor's case-in-chief. If the defense attorney does object, the instruction should be given immediately prior to the establishing of foundation for the admission of the firearm. Giving the instruction at this point is based on the court's responsibility to supervise the handling and admission of evidence.

Explanation of Procedure for Handling Firearms & Dangerous Objects as Evidence in Courtroom

These procedures apply to all firearms brought into a court building or a courtroom that will be offered into evidence . These procedures do not apply to firearms carried or worn by police officers and court bailiffs.

1. All Firearms Shall Be Unloaded in the Court House and Courtroom

All firearms will be unloaded (empty) at all times when they are in the court building and court room. This means that in addition to the chamber being empty, no clip should be in the firearm.

2. All Firearms and Other Dangerous Objects Shall Be Physically Incapacitated and in a Condition Where They Cannot Be Used to Inflict Harm

Incapacitating devices will be attached to all firearms. A low cost incapacitating device available at all hardware stores and other similar stores in all communities is a long hasp lock. The hasp of such a lock is inserted in the open breech of the firearm. Such device is large and clunky. As such, it easy to see and hear that the firearm is secure. In addition, it is physically impossible to chamber and fire a round in a firearm secured with such a device. If a firearm cannot be secured with a long hasp lock, an inexpensive bicycle lock and cable can be used to secure the firearm. Trigger locks should never be used to secure a firearm. If a firearm is secured with a trigger lock, it may be impossible to determine if the trigger lock is actually on the firearm if the person handling the firearm has their hand around the trigger guard. In addition, if a firearm has a round in the chamber and is secured with a trigger lock, the firearm could discharge if dropped and it landed on the hammer.

3. All Firearms Shall Be Open At All Times

In many court systems such devices (trigger locks) will not be available, consequently keeping the firearm open and keeping it separate from its ammunition are crucial and central to the safe handling of firearms in the court room.

All firearms, when they are in the court building and court room, will be open, this means:

  1. The clip or magazine removed, bullets removed from cylinder; bullet removed from chamber;
  2. If a semi-automatic pistol, the barrel slid back, if a revolver the cylinder swung out, if a single or double barrel shotgun the barrel "broken" open;
  3. If a semi-automatic rifle or shotgun, the chamber slide or cocking lever in open position.

The condition of the firearm will be such that an immediate visual inspection will indicate that the firearm is unloaded.

4. No Firearm Shall Be Displayed or Visible in the Courtroom Prior to Showing it to a Witness to Establish Foundation for Admissibility

No firearm will be displayed to jury until it is necessary to show it to a witness to establish foundation for it's admission into evidence. Photographs of firearms to be offered into evidence, rather than the firearm itself, should be used by a prosecutor or a defense attorney who would like to refer to the firearm in an opening statement.

5. Firearms Shall Be in Custody of Court Clerk

Firearm and ammunition brought into a court room to be offered into evidence will be immediately given to and left in the custody of court clerk at all times other then when they are being handled by prosecutors, defense attorneys or witnesses. Firearms will not be left on counsel table.

During recesses of the court firearms will either:

  1. Be in the possession of and under the direct visual supervision of the court clerk or bailiff; or
  2. Be locked in a secure drawer, cabinet or closet.

6. Firearm Shall Not Be Pointed At Any Person in Courtroom; They Should Always Be Handled By the Barrel

No firearm will be pointed at jury, judge, court personnel or spectators. Firearms will be pointed either at ceiling or floor. The firearm will always be handled by the barrel when it is being moved around the courtroom. Ergonomically, by handling the firearm by the barrel, the firearm is automatically pointed at the floor or ceiling of the courtroom.

7. If an Attorney Intends to Use a Firearm in a Demonstration by a Witness in Regard to How the Firearm Was Used or Held During the Commission of the Alleged Crime, Prior Approval From the Judge, of Such Procedure, Shall Be Obtained By the Attorney

8. Publication of Firearm or Dangerous Object to Jury During Trial — Jurors Shall Not Be Allowed to Handle Firearms During the Trial if the Firearm is Published to the Jury

An attorney intending to publish a firearm to the jury, immediately after the firearm has been admitted into evidence shall first obtain permission to do so from the judge. An attorney requesting publication of the firearm should have and articulate a very good reason for publishing the firearm at the point requested in the trial. If publication is permitted, a photograph of the firearm can be and in most situations be used in place of the actual weapon. If it is necessary to publish the actual firearm, the clerk of bailiff should approach the jury with the firearm and display the firearm to the jury. Electronic evidence presentation equipment can be used to display and publish a firearm to the jury.

9. Notification and Approval Shall Be Required Before Firearm is Used in Final Argument

Prosecutors and defense attorneys intending to use firearms admitted into evidence for demonstrative purposes in final argument must inform the trial judge, state how the firearm will be used and obtain the permission of the judge for such use. The firearm should used in final argument consistent with these rules and procedures.

10. Firearm and Ammunition Shall Never Be Given to Witness or Jury At the Same Time During Deliberation

Firearms and ammunition will never be given to a witness or the jury at the same time. Firearms and ammunition will never be placed or left together on the counsel table. If a firearm and related ammunition are to be sent into the jury room, the jury will be allowed to examine them but the firearm and ammunition will never sent into the jury room at the same time. The firearm can be sent in and after the jury is done examining it they can inform the jury bailiff, pass out the firearm and be given the ammunition for examination.

Firearms Instruction From Minnesota Jury Instruction Guide

STATE OF MINNESOTA
COUNTY OF
JUDICIAL DISTRICT

State of Minnesota,
Plaintiff,
vs.
Defendant.

FIREARM AS EVIDENCE
CRIM JIG 2.06

FIREARM AS EVIDENCE IN THE COURTROOM

At some point in this trial a firearm may be brought into the courtroom and offered as evidence.

The following rules will be followed by all individuals handling the firearm.

  1. The firearm will come into the courtroom unloaded and secured with a device that will be visible to you and the court.
  2. The firearm securing device will be such that it will physically impossible to operate the firing mechanism of the firearm or put a bullet into the firearm.
  3. The firearm securing device will be locked and the key will be maintained by court staff.
  4. The firearm will be under the control and possession of a court staff person.
  5. The firearm will always be handled by the barrel and, when handled, will always be pointed at the floor or the ceiling.
  6. The firearm will be handed to a person, other than court staff, in the courtroom only with the previous express permission of the court.

Authority:
State v. Salitros
499 N.W.2d 815, Minn.,1993

The trial judge "has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice." ABA Standards for Criminal Justice, Special Functions of the Trial Judge 6-1.1 (2 ed. 1979). "The adversary nature of the proceedings does not relieve the trial judge of the obligation of raising on his or her initiative, at all appropriate times and in an appropriate manner, matters which may significantly promote a just determination of the trial." M.R.Cr. P. 26.03, subd. 4, Preliminary Instructions

(This instruction should be read to the jury as part of the court’s preliminary instructions given prior to opening statements. This instruction can be modified and used with other dangerous or disturbing evidence)

THE FOLLOWING PHOTOGRAPHS ILLUSTRATE DIFFERENT WAYS OF SECURING FIREARMS

The photograph of a firearm secured by a trigger lock illustrates why a trigger lock should not be used to secure a firearm. First, Depending on how the firearm is held it may not be possible to observe the trigger lock in place on the firearm (See photos # 2 & 3). Second, even if a trigger lock is on a firearm, it it was dropped and landed on the hammer and a round was in the chamber, the firearm could still discharge. The recommended securing device is a long hasp pad lock (See photo # 4 & 5) This type of securing device can always be seen as attached to the firearm and it is physically impossible to chamber and fire a round with a firearm secured with a long hasp pad lock.

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