State v. Miller, 2020 WL 7906643 (N.C. App. 2020)

Expert during voir dire: “When asked about the error rate for this type of ballistics identification, Clardy testified that “my error rate is zero percent,” but that there is no established error rate for the field as a whole. Miller questioned Clardy about the President’s Council of Advisors on Science and Technology report that criticized the scientific validity of firearms examination. Clardy responded that she disagreed with elements of the report and asserted that the report should be viewed with caution because it was created by academics rather than firearms examiners.”

Addressing the dissent: “Much of this purported dissent also reads more like a legal essay than an opinion. Our dissenting colleague thinks the science behind ballistic toolmark comparisons is of “questionably reliability” and thus would have excluded some of this expert’s testimony. Fair enough—the dissent contains an accurate recitation of some scientific literature and reasonable jurists can reach different results in discretionary rulings. That is the nature of judicial discretion.
13But importantly, appellate judges are not trial judges. We are no more qualified to evaluate a scientific issue than our colleagues in the trial division. And under the abuse of discretion standard, appellate judges cannot substitute their judgment for that of the trial court; we examine only whether the trial court’s ruling was “so arbitrary that it could not have been the result of a reasoned decision.” McGrady, 368 N.C. at 899, 787 S.E.2d at 15. The trial court’s decision here certainly was a reasoned one.”

NOTE: Dissent argues against the admissibility of firearms identification testimony.

Dissent on why this testimony may be misleading for jurors: “The State’s expert essentially opined, then, that her individual examinations are more reliable than those of her field as a whole, given that “the error rate … in firearms investigation … [is] currently being investigated by science.” This testimony “likely … shrouded [her opinion] with an aura of near infallibility.” . . . By permitting the State’s expert to opine that her personal error rate was “zero percent” without any testimony regarding the general error rate in the field, the trial court failed to exercise its gatekeeping authority and, in doing so, admitted testimony of questionable reliability. ”

“This testimony may have been misleading to the jury. First, while individual characteristic toolmarks do not appear in an entirely random manner, neither have they been scientifically established as “unique” to a particular firearm. See Ballistic Imaging at 3 (“A significant amount of research would be needed to scientifically determine the degree to which firearms-related toolmarks are unique or even to quantitatively characterize the probability of uniqueness.”). “The notion of uniqueness in forensic science is probabilistic and impossible to prove in a scientific sense, and this form of logic follows inductive reasoning.””