People v. Gadlin, 2018 WL 5816613 (First Dist. Cal. 2018)

Trial court limitations on testimony: The court ruled percentages of certainty would not be appropriate, but deferred ruling on “how he couches his words as to whether he’s confident or not.”

“We recognize toolmark identification has come under increased scrutiny in recent years. But the 2009 NRC report, while criticizing the subjectivity of the field, does not call for abandonment of the field. We note such testimony has continued to be admitted in both California and federal courts, and our Supreme Court in People v. Cowan (2010) 50 Cal.4th 401 (Cowan ), reaffirmed the admissibility of such testimony even after publication of the 2009 NRC report. Indeed, defendant has not cited a single case prohibiting such testimony. Rather, some courts have only placed limits on the degree of certainty an examiner can express in a match. . . . Other courts, however, have continued to admit toolmark identification testimony without limitation. . . . In light of such recognition, we cannot conclude the scientific community has rejected toolmark identification.”

“Moreover, even if the scientific community did dispute the reliability of toolmark identification, Kelly only applies to “scientific” methods. . . . Defendant argues toolmark analysis is a scientific technique, because jurors cannot “competently evaluate for themselves whether ‘this gun fired this bullet.’ ” While defendant acknowledges the California Supreme Court found otherwise in Cowan, supra, 50 Cal.4th 401, he attempts to distinguish that opinion from the current case because he “made a strong showing that toolmark identification carries the weight of science.” We find this attempt to distinguish Cowan unavailing.” [the court then analyses the reasoning in Cowan]