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The entirety of the analysis on firearms testimony: “Matching spent shell casings to the weapon that fired them is a recognized method of ballistics testing. See United States v. Washington, 550 F.2d 320, 324 (5th Cir.1977). Other than the argument raised by magazine articles cited by the defense and an out-of-state federal district court ruling, the Court has not found a case from the Fifth Circuit which shows that Giroux’s findings are unreliable. On the contrary, firearm comparison testing has widespread acceptance in this Circuit. United States v. Hicks, 389 F.3d 514, 527–8 (5th Cir.2004), cert. denied 546 U.S. 1089, 126 S.Ct. 1022, 163 L.Ed.2d 853 (2006). The Court finds no reason to grant the motion for new trial based on Giroux’s testimony.”

Defendant cited to the “more likely than not” case (Glynn) to support his contention that the expert’s testimony should be limited.

In Conn, irearms identification testimony does not need a Daubert-kind hearing (Porter hearing) to be admissble because “the scientific principles of ballistics and firearms analysis are very well established and can be admitted on a mere showing of relevance.” Legnani. Although Legnani was decided before NAS2009, the report, along with other similar reports, “did not overrule or otherwise abrogate the existing case law in this state; nor do the district court cases or the cases from other states that the defendant has cited in support of this claim.”

the importance of having defense experts: “more importantly, the defendant did not proffer his own expert witness to testify that the science of firearm and toolmark identification is not reliable.”

“The evidence admitted during the cross-examination of [the expert] included the flaws and criticisms of firearm and toolmark identification. The jury was free to give this evidence as much or as little weight as it saw fit.”

The court also denied defendant’s request to limit the expert’s testimony. The expert testified that out of 15 cartridge casings, 12 of them were “positively matched” and three of them failed to produce conclusive results.

Defendant also challenged the testimony’s overall reliability. But since the ruling on reliability in this case was later overruled by statute (NC adopted Daubert), that part of the ruling was no longer current positive law.

“It is not necessary that an expert be experienced with the identifcal subject matter at issue ro to be a specialist, licensed, or even engaged in a specific profession.” State v. Evangelista, 353 S.E.2d 375, 383 (1987).

Note: Defendant also had two experts (John Dillon and William Conrad). The trial court originally held in the pretrial hearing that the state’s witnesses would be limited, but in the defense’s opening statement they said their experts would testify that a match could not be made so the trail court reversed their pretrial hearing holding and allowed testimony without limitation

This was not a ruling on expert testimony; it was a ruling on the per se conflict of interest that Defendant did not intentionally waive. Defense counsel represented a prosectuion witness in unrelated criminal matters. No meaningful discussion of forensic evidence, other than to note that experts testified.

“While toolmark and firearm comparison does not require a minimum number of points of comparison, there must be some explanation of the bases for the expert’s opinion. [I]t may be a better practice for experts to show a side-by-side photo comparison to aid the trier of fact while explaining the bases for such expert opinions.” Experts cannot give a “take my word for it” kind of testimony.

However, as one district court recently put it, “storm clouds … are gathering.” Id. Because of the seriousness of the criticisms launched against the methodology underlying firearms identification, both by various commentators and by Defendant in this case, the Court will carefully assess the reliability of this methodology, using Daubert as a guide

One additional problem with firearms examination, not necessarily neatly encapsulated by any one of the Daubert factors, bears mentioning. Generally, as was done in this case, the examiner is handed only one suspect weapon and the recovered projectile or projectiles. 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.’ ”