Bond v. State, 925 N.E.2d 773 (Ind. Ct. App. 2010)

Defendant’s contention is “not that Klosinski was not qualified or that the ACE-V method did not meet the Daubertstandards. The challenge is that the method was not followed AND that Bond was denied the opportunity to confront an essential witness to the ACE-V process.”

 

 

 

 

 

Williams v. State, 2017 WL 4946865 (Tex. Crim. App. 2017)

on error rate: “[the expert] acknowledged that a precise casework error rate could not be measured. But he pointed out that consecutive-manufacture and proficiency studies provided error rates in the context of controlled studies. Those known error rates could then be used to estimate casework error rate.”

 

on the subjectivity of firearms examination: “[the] implementation of professional standards and protocols, periodic lab audits and proficiency testing, and the independent review of the comparisons in each case by a second examiner, helped counteract the subsjective elements of an examiner’s conclusions.”

 

 

 

 

United States v. McCluskey, 2013 WL 12335325 (D. N.M. 2013)

On Adina Schwartz: “Federal Rule of Evidence 702 does permit one to be qualified as an expert through various means, including study of the literature relating to a field. Based on the record currently before the Court, it appears that Professor Schwartz is well versed in the relevant literature. However, it also appears that she has analyzed the literature not as an objective analyst, but rather as an advocate for the non-admission of ballistics evidence. This bias tends to undermine her credibility. Other courts have found similarly. See United States v. Otero, 849 F. Supp. 2d 425, 435-36 (D.N.J. 2012) (citing cases). Furthermore, the accuracy and honesty of Schwartz’s scholarly analysis has been questioned by this Court. In United States v. Taylor, Judge Johnson granted the Government’s motion to exclude Professor Schwartz’s expert testimony, finding, among other things, that she lacked qualifications to critique the findings of the government’s firearms examiner and that her testimony was not reliable under Rule 702. ”

 

“As Judge Johnson pointed out in Taylor, 663 F. Supp. 2d at 1178-79, there is an issue with firearms examination, not necessarily neatly encapsulated by any one of the Daubert factors. Generally, as was done in this case, the examiner is handed only one or a handful of suspect weapons and the recovered projectiles or cartridges. As one district court has pointed out, this method of testing is, “in effect, an evidentiary ‘show-up,’ not what scientists would regard as a ‘blind test.’ ” United States v. Green, 405 F. Supp. 2d at 104, 107-08 (D. Mass. 2005). Indeed, McCluskey’s unrefuted argument is that “neither the firearm community, specifically, nor the forensic science community, generally, have ever conducted double-blind independent proficiency tests aimed at determining the accuracy (or inaccuracy) of firearm examiners.” . . . . This practice, like show-up identifications of suspects, creates a potentially significant “observer effect” whereby the examiner knows that he is testing a suspect weapon and may be predisposed to find a match. See Doc. 418 at 40.”

 

On limiting language to “a reasonable degree of certainty”: In this case, Murdock testified that the phrase “reasonable degree of ballistic certainty” is undefined and that even he had no idea what it meant. Tr. 8/22/2012, Doc. 679, at 33. The Court therefore concludes that Babcock may testify that she has reached her conclusions to “a practical certainty,” or to a “practical impossibility” of dissimilar origin, and nothing more.

 

“In light of all the foregoing, the Court concludes that insufficient data exists to calculate a definitive error rate. The information that does exist—derived from the proficiency testing—indicates an error rate of 5% or less, which is not excessively high. However, that number is subject to valid criticism. Thus, the evidence presented on error rates leads the Court to conclude that this Daubert factor weighs slightly in favor of admitting the challenged expert testimony.”

 

 

Williams v. United States, 210 A.3d 734 (D.C. 2019)

1. When asked was there “any doubt in [his] mind” that the gun found in defendant’s bedroom was the murder weapon, the testifying expert replied “[n]o, sir.” Then he restated his unequivocal opinion several times. (“Those markings are unique to that gun and that gun only.”) (“Item Number 58 fired these three bullets.”). 2. Gardner is still the controlling precedent on admissibility of unqualified firearms identification testimony even though it was decided under Frye rule. 3. The court admitted here that the Gardner footnote 19 poses some level of ambiguity saying that its holding still allows “toolmark experts to offer an opinion that a bullet or shell casing was fired by a particular firearm” provided that they do not do so with “absolute or 100% certainty.” But this ambiguity does not affect the current case because here the expert’s affirmative language is even stronger than in Gardner.

 

Following Gardner, we repeat that it is error to allow an examiner to provide this kind of unqualified opinion testimony, but we do not foreclose the possibility that the necessary data will exist at some point in the future to provide a foundation for opinion testimony that unqualifiedly connects a specific bullet to a specific gun. Rather, we conclude only that we do not have such a foundation in this case.

 

“Our endorsement in Motorola of a test for the admission of expert testimony that focuses on reliability dovetails perfectly with the analysis in Gardner. Although decided when Frye/Dyas was still the law, Gardner scrutinized the firearms and toolmark examiner’s opinion testimony through a reliability lens and cited sources that explain that the empirical foundation does not currently exist to permit these examiners to opine with certainty that a specific bullet can be matched to a specific gun. In line with Motorola, Gardner determined that these conclusions are simply unreliable.
Although, in the government’s view, Motorola should have no effect on this appeal, it expresses concern that this court, applying our en banc decision, might hold that all firearms and toolmark evidence is inadmissible. We do not so hold, and we do not question the admissibility of the firearms and toolmark examiner’s testimony generally.”

 

 

 

United States v. Black, 2015 WL 13660442 (D. Minn. 2015)

Court just held generally that this satisfies 702, but does not make a ruling on any specific part of 702.

 

“After a review of Defendants’ arguments, the NAS Report, and the relevant case law, the Court concludes that firearm and toolmark identification is sufficiently reliable for admission under Rule 702. Numerous courts across the country have conducted thorough analyses of the reliability of toolmark identification with firearms in light of the NAS Report. It appears that in every instance, the court determined that expert testimony on toolmark analysis was admissible. . . . Indeed, Woods has not cited a single case excluding this type of expert testimony.”