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State v. Wright, 2021 WL 221930 (Ct. App. Utah 2021)

Case (cite)
State v. Wright, 2021 WL 221930 (Ct. App. Utah 2021)
Type of proceeding
Type of claim
Ineffective assistance of counsel
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
Summary of reasons for ruling
Defendant argues ineffective assistance of counsel for failing to object to the reliability of toolmark idetnfication evidence. Defendant argues that his counsel did not investigate ballistics evidence bcause he did not use "readily available" information while cross-examining the expert when "'[a] cursory Google/Westlaw search would have revealed that a debate was raging about the reliability and admissibility of this evidence' due to its purported reliance on the subjective assessments of the examiner."The court found that Counsel's treatment of the evidence was not unreasonable because Counsel reasonably could have thought that cross-examining the expert about the subjective nature of his testimony would help the expert's credibility given his experience and accomplishments; that the evidence was addressed, even if it was brief; and that Counsel's treatment of the evidence supported Counsel's theory that Defendant's friend was the shooter, even if he did not question the reliability of the toolmark analysis.
The jurisdiction’s standard for expert admissibility at the time – list all that apply: (Frye), (Daubert), (Post-2000 Rule 702), (Other)
Rule 702
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


“To the extent that Wright’s argument can be construed as a broader assertion that Counsel’s treatment of the evidence was nevertheless unreasonable, we are not persuaded. For one thing, Counsel could have reasonably believed that cross-examining the ballistics expert about how toolmark identification “relies on the individual examiner’s training and experience,” . . . would have bolstered the ballistics expert’s credibility with jurors, given that the expert had decades’ worth of experience conducting thousands of toolmark identifications, was extremely accomplished in his field, and had even published numerous articles on how to respond to legal challenges to toolmark identification’s methodology.”




FN10: Nor do we think Counsel’s decision not to challenge the admissibility of the expert’s testimony under rule 702 of the Utah Rules of Evidence was objectively unreasonable. Indeed, the very cases that Wright suggests should have been utilized in making these motions would have led Counsel to reasonably conclude that the motions would have been futile. State v. Torres, 2018 UT App 113, ¶ 16, 427 P.3d 550 (“Counsel’s failure to make a motion that would be futile if raised does not constitute deficient performance.” (cleaned up)). These cases recognize that if there was any “sweeping national trend,” it was toward admitting toolmark identification testimony. See, e.g., United States v. Willock, 696 F. Supp. 2d 536, 546 (D. Md. 2010) (denying a motion to suppress toolmark identification testimony because such a ruling was “consistent with every reported federal decision to have addressed the admissibility of toolmark identification evidence”); United States v. Green, 405 F. Supp. 2d 104, 123 (D. Mass. 2005) (“State courts have similarly rejected Daubert-type challenges to ballistics testimony. … [P]recedent plainly points in favor of admissibility.”). And Counsel’s belief in this regard would have been all the more reasonable with specific reference to the State’s ballistics expert, given his particular credentials.