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Foster v. State, 132 So.3d 40 (Fla. 2013)

Case (cite)
Foster v. State, 132 So.3d 40 (Fla. 2013)
Type of proceeding
Type of claim
Ineffective assistance of counsel
Type of claim (second claim)
Expert evidence ruling reversing or affirming on appeal:
What was the ruling?
Correct to Admit
Type of evidence at issue:
Firearms identification
Defense or Prosecution Expert
Name of expert(s) who were the subject of the ruling
Bill Hornsby
Summary of reasons for ruling
Defendant claims ineffective assistance of counsel for failing to present an expert to challenge the State's expert and failing to challege the expert on why he did not perform the standard techniques usually used for firearms identification. The court held that even had a defense expert been presented, defendant failed to demonstrate how or why that expert would have reached a different conclusion and that even if trial counsel was deficient for failing to present an expert, defendant had failed to show prejudice resulting from that failure. Defendant also claims his counsel was ineffective for failing to request a Frye hearing challening the validity of the expert testimony. The court held that this was not ineffective assistance of counsel. First, the court notes that firearms identification testimony has been accepted in Florida courts since at least 1937, and that a Pennsylvania court had recently held a Frye hearing specifically about identifying spent shotgun shells and found that it was accepted, and neither new nor original. Finally, Defendant argues that ineffective assistance of counsel based on the 2009NAS report as newly discovered evidence. The court holds that precedent shows that the NAS2009 report has been held not to constitute newly discovered evidence (Johnston), and that new research studies are not recognized as newly discovered evidence. The court notes that in Johnston they held that the NAS2009 report does not render the firearms identification techniques unreliable and that defendant here failed to show how these techniques were unreliable in his case. Further, many of the cases cited in NAS2009 were published before this case and during postconviction.
The jurisdiction’s standard for expert admissibility at the time – list all that apply: (Frye), (Daubert), (Post-2000 Rule 702), (Other)
Second standard
Did lower court hold a hearing
Names of prosecution expert(s) two testified at hearing
Names of defense expert(s) who testified at hearing (or None).
Discussion of 2009 NAS Report (NAS2009)
Discussion of 2016 PCAST report (PCAST)
Discussion of error rates / reliability
Frye Ruling
Limiting testimony ruling
Language imposed by court to limit testimony
Ruling based in prior precedent / judicial notice
Daubert ruling emphasizing – which factors – (list 1-5)
Ruling on qualifications of expert
Ruling on 702(a) – the expert will help / assist the jury
Ruling on 702(b) – the testimony is based on sufficient facts or data
Ruling on 702(c) – the testimony is the product of reliable principles and methods
Ruling on 702(d) – reliable application of principles and methods to the facts of the case


“There is no question that “tool-mark identification in the context of ballistics has been used in the criminal context since at least 1929, and in Florida since at least 1937.” King v. State, 89 So.3d 209, 228 (Fla.2012). In King, we held that tool mark examination in ballistics has been a well-documented methodology over the last century and is not new or novel. Id. We also note that in Commonwealth v. Whitacre, 878 A.2d 96 (Pa.Super.Ct.2005), the Superior Court of Pennsylvania was presented with the issue of tool mark testimony concerning spent shotgun shells found at the scene of a crime, which were then compared with test-fired shotgun shells. In that case, a Frye hearing was held on the evidence presented by the firearm and tool mark examiner, who had determined by use of a comparison microscope that the spent shells had been discharged from a particular shotgun. Id. at 100–01. The appellate court concluded that the comparison methodology used on the shotgun shells had been in use since the 1930s, is a methodology that is accepted by the Association of Firearm and Tool Mark Examiners, and was neither new nor original. ”




On the NAS report: “Similarly in this case, the report cites to existing publications, some of which were published before Schwebes’ murder and many of which were published during the years when Foster was pursuing postconviction relief. Most importantly, new research studies are not recognized as newly discovered evidence. See Schwab v. State, 969 So.2d 318, 325 (Fla.2007) (holding that “new opinions” or “new research studies” contained in journal articles are not newly discovered evidence); see also Rutherford v. State, 940 So.2d 1112, 1117 (Fla.2006) (holding American Bar Association report published in 2006 was not newly discovered evidence because it was “a compilation of previously available information related to Florida’s death penalty system”). Finally, just as we noted in Johnston, “[n]othing in the report renders the forensic techniques used in this case unreliable” and Foster “has not identified how the article would demonstrate, in any specific way, that the testing methods or opinions in his case were deficient.””