Has there ever been clear caselaw or evidence that they have to prove it as post-ban apart from the fact that it's > 10 rounds?
It's not case law it's standard SOP for a criminal trial. Innocent until proven guilty, etc. The prosecution must make a statement that convinces the jury to find you
guilty on that count. It's that simple. It's not that hard in most of these cases for an attorney to shoot peoples testimony up.
One scenario:
Mr Gunexpertguy: "When I examined the magazines I found this this and that feature, and according to a few different textbooks about glock firearms, this magazine seems to align with what we generally would described as a post ban, illegal magazine. It holds more than 10 rounds of ammunition and it looks like it was made recently. "
(all hell breaks loose from here)
Then later on your attorney brings out your own expert witness, who shares his creds and then starts basically blowing fist sized holes in the prosecution's case by introducing the things we've been talking about constantly on this board for like the better part of a decade, things that introduce reasonable doubt. The things that make the law
****y, inconsistent, and difficult to enforce.
As opposed to the defense simply just asserting it is preban. I know under the federal AWB the ruling was that if it were unmarked it was fair game, but MA hasn't adopted this.
The fed law was
way better to the extent that if that ANY preban assertion was made it was to be taken at face value and the only way you could prove someone guilty under fed law was if it had LE markings, there were no other exceptions.
I've read in NY that for prebans the defense must prove it's preban; I have no idea if this is true or not.
I bet it's worse than that now, SAFE act probably outlawed most of that shit, or at least carrying it at capacity.
I guess if both sides are claiming it's post ban/pre ban "because they say so" then you would get edge due to presumption of innocence. I'd rather not have it be that close though.
If you've managed to make it to a full blown trial it's always going to be "that close", unless you're going in with a loaded deck in your favor and the DA/ADA is too stupid to realize that your attorney is a lot smarter than they are.
I'm just more concerned with:
- This mag is more than 10 rounds. No one disputes this
- The defense says it was lawfully possessed on/before 9/13/1994 but offers nothing further
To me, it's a little tenuous. In Mokdad, if memory serves, if it had gotten that far, the defense might have been expected to offer some sort of evidence that "someone" lawfully possessed them. If that's the case, other than saying "it was made before then, so therefore it was lawfully possessed," what can they offer? I'm sure the prosecution could offer a bunch of scenarios that could provide ways/possibilities for it to be illegal, even if made before 9/13/1994. Whether or not the jury buys them is another matter.
What is Mokdad? Do you have a link to this case?
I'm just playing a cynical devil's advocate. EOPS or whoever sent out that letter about prebans needing to be in the state on the ban date or something in order to be legal, which is pretty garbage, but gives you insight into how they view the ban.
I think you're confusing that with the
****y memo about preban GUNS that they sent out (that guida refused to sign his name on, that's how embarassing it was) . I don't remember anything about a magazine memo from EOPS. Len or someone else might have heard of this.
I think you can expect them to push the "if you did not own them in MA on this date personally, they are illegal" angle. For those of us under age 43 or so, that's demonstrably impossible since we weren't 21 on the ban date.
If that was true (and viable) then a lot more people would be getting prosecuted as it would be trivially easy from a standard of evidence perspective. The number of AWB prosecutions is tiny, I would bet anything that there are probably less than a dozen AWB cases brought in MA courts every year, and out of that dozen, most of the charges are probably dropped before trial or dumped even when the guy goes to plea out. It gets very hard to get a bead on how the law gets interpreted at the judcial level because of the low frequency of cases.
If that is what your experience and/or knowledge has taught you to be the case, then I have a little better impression of our peers. I just know enough people who, when presented with: "it's definitely over 10, and no one has offered further evidence either way" just might deem that as meeting reasonable doubt and go with the prosecution. I always tell people not to consent to searches but you might be surprised as how many people bite on old "if you've done nothing wrong, you have nothing to hide" angle.
I've served on a Jury twice, granted, civil trials, but I can tell you that it doesn't take much to make jurors skeptical. Particularly in cases that involve something where someone
didn't get hurt.
That's why I qualified having to have a decent lawyer, if you don't. you're
****ed anyways, because you will be virtually forced to plead out (on whatever, probably not the AWB
issue) to avoid jail.
In the end, my original point is that for firearms where it's relatively easy to get magazines that are 99% indisputable as having been manufactured prior to 9/13/94, I would just go that route. Everyone's acceptable risk level is different.
The problem is they're not "99% indisputable." Did you NOT see the pic of the U notch mag with the LE markings in this thread?
Yet most people think things like "all U notches are preban" those obviously weren't. There's tons of this shit. The infinite stash of Para "preban" mags during the AWB (that never ran out) that was a running joke, too. Good luck divining the truth. My advice to the pant shitters is to just carry a revolver, if it makes you guys sleep better at night.
-Mike