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People v. Cowan, 236 P.3d 1074 (Cal. 2010)

Case (cite)
People v. Cowan, 236 P.3d 1074 (Cal. 2010)
Year
2010
State
California
Type of proceeding
Appellate
Type of claim
Evidentiary
Expert evidence ruling reversing or affirming on appeal:
Admitted
What was the ruling?
Correct to Admit
Type of evidence at issue:
Firearms identification
Defense or Prosecution Expert
Prosecution
Name of expert(s) who were the subject of the ruling
Gregory Laskowski
Summary of reasons for ruling
Defendant argued the trial court erred in denying his motion for a Kelly hearing based on the expert's method of using Mikrosil casting to make a firearms identification. The court disagreed and held that the techniques of ballistics comparisons and identifying toolmarks using molds are not new and the expert here just combined those methods. The court further stated that neither technique is too difficult for a layperson to evaluate and that reliability issues could be explored on cross-examination, eliminating the need for a Kelly hearing.Defendant also argued that the expert created a new technique by comparing the marks on the bullet to the mold because dynamic marks made by firing a gun and marks on a mold are different. However, the court states the defendant could have raised that issue on cross or through his own witness and failed to do either.
The jurisdiction’s standard for expert admissibility at the time – list all that apply: (Frye), (Daubert), (Post-2000 Rule 702), (Other)
Kelly
Did lower court hold a hearing
Y (but Kelly hearing denied)
Names of prosecution expert(s) two testified at hearing
Laskowski
Names of defense expert(s) who testified at hearing (or None).
Discussion of 2009 NAS Report (NAS2009) or PCAST report (PCAST)
N
Discussion of error rates / reliability
N
Frye Ruling
N (Kelly standard)
Limiting testimony ruling
N
Language imposed by court to limit testimony
N/A
Ruling based in prior precedent / judicial notice
N
Daubert ruling emphasizing – which factors – (list 1-5)
N/A (Kelly standard)
Ruling on qualifications of expert
N
Ruling on 702(a) – the expert will help / assist the jury
N
Ruling on 702(b) – the testimony is based on sufficient facts or data
N
Ruling on 702(c) – the testimony is the product of reliable principles and methods
Y
Ruling on 702(d) – reliable application of principles and methods to the facts of the case
N

Notes

Method used by expert: Laskowski testified that in 1984 he had excluded the Colt pistol as the source of the bullets recovered from Clifford’s body based on a comparison of those bullets with test-fired bullets. A few weeks before trial, however, Detective Christopherson had informed him that the inside of the barrel had been altered. Laskowski reexamined the gun and determined that the land impressions near the crown of the barrel had been damaged to such an extent that comparison with test-fired bullets was impossible. Laskowski therefore made a cast of the interior of the barrel using Mikrosil, a silicone rubber compound routinely used in the casting of tool marks. He then compared the markings on the cast that had been recorded from the inside of the barrel with the two bullets recovered from Clifford’s body, and determined the bullets had been fired from the Colt pistol.

 

On cross-examination, Laskowski admitted that neither he nor any other ballistics expert he was aware of had ever testified in court regarding ballistics comparisons using Mikrosil casting. However, at least a dozen or more experts he had spoken with told him that the method was “acceptable.” Moreover, he explained, the technique was not new, because “the recording of tool marks with an elastomeric material has been done,” and firearms examination was essentially a subset of tool mark comparison.

 

At the Evidence Code section 402 hearing and at trial, Laskowski explained in detail the process he had used to create the barrel cast and compare it to the bullets recovered from Clifford Merck’s body. Laskowski showed photographs of the gun, the barrel cast, the test-fired bullets and the recovered bullets to the jury and identified the points of similarity he found between the cast and the recovered bullets. Although there was some dispute about whether the method Laskowski used produced a cast of the barrel “without tampering or alteration” due to possible bubbling or shrinkage of the Mikrosil, that possibility was fully explored on cross-examination and the jury had the opportunity to weigh its effect on the validity of Laskowski’s conclusions. Thus, here too there was no need to debate the reliability of the method under the standards of Kelly.

 

Kelly rule: The Kelly rule provides that the “admissibility of expert testimony based on a ‘new scientific technique’ requires proof of its reliability—i.e., that the technique is ‘ “sufficiently established to have gained general acceptance in the particular field to which it belongs.” ’