Archives: Cases

Colorful reprimand of plaintiff’s counsel: Her counsel asserts in his brief that the bullet submitted by the prosecutor’s office to Sergeant Koch of the State Highway Patrol for ballistic tests was not the one found in the Stacey house and exhibited at the preliminary but another which would pass such tests. The statement in the brief is: “Only the rankest unsophistication would suppose he (Koch) was furnished an object over which any doubt could arise.” Grave charges such as this should not be made lightly. Counsel may sometimes be excused for statements uttered in the hurry and heat of oral argument, when the same statements made cooly and deliberately in a formal brief to this court should be scrutinized with less indulgence. Either the prosecutor’s office committed a grevious wrong, or appellant’s counsel has transgressed the bounds of legitimate argument in charging that office framed the case by substituting a bullet which would pass ballistic tests. The jury found against that argument. We think the evidence made a case for the jury.

No real reasoning given for why the evidence was admissible.

Discussion precedent cases: “In evaluating the persuasive weight of these decisions, however, the undersigned could not help but note that, despite the enhanced gatekeeping role demanded by Daubert, see 509 U.S. at 589, the overwhelming majority of the reported post-Daubert cases regarding this type of expert opinion testimony have not engaged in a particularly extensive or probing analysis of the evidence’s reliability. In 2009, the National Research Council (“NRC”) specifically criticized the judiciary’s treatment of issues relating to the admissibility of firearms and toolmark evidence and the judiciary’s failure to apply Daubert in a meaningful fashion. . . . Without disparaging the work of other courts, the NRC’s critique of our profession rings true, at least to the undersigned: many of the published post-Daubert opinions on firearms and toolmark identification involved no hearing on the admissibility of the evidence or only a cursory analysis of the relevant issues. Our Court of Appeals has noted that “[t]here is no ‘grandfathering’ provision in Rule 702.” Motorola, 147 A.3d at 758. Yet, the case law in this area follows a pattern in which holdings supported by limited analysis are nonetheless subsequently deferred to by one court after another. This pattern creates the appearance of an avalanche of authority; on closer examination, however, these precedents ultimately stand on a fairly flimsy foundation.”

It is difficult to avoid the conclusion that, despite the criticisms of the NRC and other bodies, the judicial branch has demonstrated an aversion to meaningful hearings on this issue.

As a general matter, those courts that have found low error rates for this discipline appear to have done so by simply accepting the conclusions of the studies as presented and without any analysis of the methodological or other issues presented in them

On limiting testimony: “It would be fanciful to conclude that the normal adversarial process would enable a lay jury to adequately understand these issues, and it is similarly unrealistic to conclude that the average attorney in the average trial would be able to raise these issues in front of the jury in this fashion, particularly when this issue would be one among many issues to be presented to the jury in a trial.”

No anlaysis. Just a one sentence conclusion that the expert does not need more than oral testimony.

matter of first impression case in Ariz. – rule as a matter of law that methodology governing firearms identification is sufficiently reliable under Daubert. Here, unlike the examiners in Monteiro, who testified essentially that they could be 100 percent sure of a match, Powell testified that there was a match to “a reasonable degree of scientific certainty.”

Note: The trial court excluded testimony by a psychologist (Haber) criticizing firearms identification. The court found that the psychologist was not qualified as an expert (he had only reviewed literature on firearms identification and did not have any experience in the field). They also rejected the defendant’s offer to only have the expert testify about general critiques of the field. The appellate court found that it was correct to exclude this expert.

Note: This case does object to the testimony on reliability grounds and the court does not analyze firearms identification as a field. The expert in this case testified to the similarities between the bullets recovered from the victim’s body and bullets at the defendants home, but said they could not testify as to whether the bullets were shot from the same gun and testified that this type of bullet was common. “Though the bullets could have been fired from the same gun, Bishop could not conclude that they actually were fired from the same gun. Bishop also testified that CCI bullets commonly are sold and that many different kinds of .25 caliber guns could produce the rifling characteristics exhibited by these bullets.”

“A finding of sufficient agreement is essentially a subjective determination, based on the training and experience of the examiner. This conclusion is not based on any quantitative standard for how many striations or marks need to match or lineup.”

interesting quote from NAS2009: “[other than nuclear DNA analysis,] no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”

The court emphasized the importance of having defense experts. In a previous ruling, the court (the same judge) prohibited the expert from making a common orgin (actual shot & test shot from the same gun) testimony. But in this case, the court held that “[i]n the absence of contrary testimony, the evidence that was presented through the State’s expert witness carries the day and establishes in this case that [the expert’s] common orgin testimony is based on a valid methodology.” The court noted that “[providing defense’s own expert witness] would have been helpful, and potentially determinative, as the expert could have expounded on the flaws in the methodology identified in the three national reports and by numerous commentators and applied them to the facts of this case.”

He was then asked to examine the Colt automatic 32 aforesaid, and gave it as his opinion that the bullet introduced in evidence was fired from the Colt automatic revolver in evidence. He even stated positively that he knew that that bullet came out of the barrel of that revolver, because the rifling marks on the bullet fitted into the rifling of the revolver in question, and that the markings on that particular bullet were peculiar, because they came clear up on the steel of the bullet. There is no evidence in the case, by which this officer claims to be an expert, that shows that he knew anything about how Colt automatic revolvers are made and how they are rifled. There is no testimony in the record showing that the revolver in question was rifled in a manner different from all others of its model, and we feel very sure that no such evidence could be produced. The evidence of this officer is clearly absurd, besides not being based upon any known rule that would make it admissible. If the real facts were brought out, it would undoubtedly show that all Colt revolvers of the same model and of the same caliber are rifled precisely in the same manner, and the statement that one can know that a certain bullet was fired out of a 32-caliber revolver, when there are hundreds *501 and perhaps thousands of others rified in precisely the same manner and of precisely the same character, is preposterous

If it were possible in this case to determine whether or not the bullet in question was fired from the gun in question, it must have been by the peculiar rifling or condition of the gun that made what are called the peculiar markings on the bullet aforesaid. If any facts pertaining to the gun and its rifling existed by which such fact could be known, it would have been proper for the witness to have stated such facts and let the jury draw their own conclusions. Under the testimony of this witness, if allowable, the court would have had no alternative, except to admit the gun in evidence, if the proof had been positive that the bullet in question was the bullet cut out of Rahn’s back by the physician. It is stated by Jones on Evidence, in the sections above cited, that the general rule that facts, and *502 not conclusions, should be stated, tends to prevent fraud and perjury, and is one of the strongest safeguards of personal liberty and private rights, and that whenever it is doubtful whether a case falls under the rule, or under one of its exceptions, the wise course is to place it under the rule.