Skip to content

People v. Melcher, 2011 WL 4432935 (Ct. App. Cal. 2011)

Case (cite)
People v. Melcher, 2011 WL 4432935 (Ct. App. Cal. 2011)
Type of proceeding
Type of claim
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
Gerald Smith
Summary of reasons for ruling
Defendant argued that he should have been granted a Kelly hearing and his motion to exclude because of increasing criticism of the validity of toolmark identification (emphasizing the NAS2009). The court held that a Kelly hearing was not necessary because the technique used was not new and had been admitted in CA courts for 60 years. Further, the court emphasizes that NAS2009 "does not call for outright abandonment of the field but rather recommends further study and, by inference, more specificity of protocals." The court also states that regardless of denying a Kelly hearing and admitting the evidence, there was no prejudice done because "the evidence was overwhelming."The court also held that testimony did not need to be further limited to a reasonable degree of certainty because there was no prejudice in this case and because the expert did not testify to 100% certainty in trial and the trial court explained to the jury that they could disregard the expert opinion if they found it unbelievable or unreasonable.
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


“Significantly, a recent unpublished decision concluded, after a full evidentiary hearing, that the very theory of firearm identification used by the San Francisco Police Department Crime Lab at issue in our case was ‘reliable under Daubert. While there is some subjectivity involved, it is the subjective judgment of trained professionals with a keen practiced eye for discerning the extent of matching patterns. The methods used are reliable.'”




Note on Kelly hearings: “Our Supreme Court has laid down three requirements governing admission of evidence generated by a new scientific technique. First, the reliability of the new technique must be sufficiently established to have gained general acceptance in the relevant scientific field. Thus, when faced with a new method of proof, courts will require a preliminary showing of general acceptance in the relevant scientific community. (Kelly, supra, 17 Cal.3d at p. 30.) Second, the witness testifying to the reliability of the technique must be properly qualified as an expert on that subject. And third, the evidence must show that correct scientific procedures were followed. (Ibid.)
The Kelly court further explained that once a published appellate decision has affirmed admission of evidence based on a new scientific technique, that precedent will control subsequent trials, “at least until new evidence is presented reflecting a change in the attitude of the scientific community.” (Kelly, supra, 17 Cal.3d at p. 32.) In other words, the precedent controls “in the absence of evidence that the prevailing scientific opinion has materially changed.””


Smith did not express a conclusion to the “absolute exclusion” of all other firearms, and did not express 100 percent certainty. He came very close to the line with the “practical certainty” and “so remote to be considered practically impossible” language. The trial court tempered the testimony somewhat with its admonition. Later instructions on how to evaluate expert testimony, including that the jurors must decide “whether information on which the expert relied was true and accurate,” and can disregard an opinion they find unbelievable, unreasonable or not supported by the evidence, further enforced the court’s admonition. In addition, the expert was tested by cross-examination, and appellant had the right to put on his own expert, but declined.