U.S. v. Harris, 2020 WL 6488714 (D.D.C. 2020)

“The Court is generally convinced by the Government’s arguments and ample citations to case law that the 2008 Ballistic Imaging Report and the 2009 National Academy of Science Report are both “outdated by over a decade” due to intervening scientific studies and as a result have been repeatedly rejected by courts as a proper basis to exclude firearm and toolmark identification testimony.” This Court believes, as other courts have also concluded, see Hunt, 464 F.Supp.3d at 1261-62, that the testimony limitations as codified in the DOJ ULTR are reasonable and should govern the testimony at issue here. Accordingly, the Court instructs Mr. Monturo to abide by the expert testimony limitations detailed in the DOJ ULTR.

his conclusion has only been further strengthened in recent years due to advances in three-dimensional imaging technology, which has allowed the field to interrogate the process and sources of “subjectivity” behind firearm and toolmark examiners’ conclusions.

“Setting aside for the moment the utility of this “black-box” requirement—which goes beyond what is required by Rule 702—the Government has provided to the Court three recent scientific studies that meet the PCAST’s black-box model requirements and demonstrate the reliability of the firearm and toolmark identification method. These include one of the tests administered during the Heat Map Study detailed above, see Weller II at 16 n. 84, along with another recent black box study testing the identification of fired casings, which resulted in a .433% false positive error rate from three errors among 693 total comparisons. See Lilien et al., Results of the 3D Virtual Comparison Microscopy Error Rate (VCMER) Study for Firearm Forensics, J. of Forensic Sci. Oct. 1, 2020 (“Lilien Study”) at 1, ECF No. 41. A third post-PCAST Report study also followed the PCAST recommended black-box model and found that of 1512 possible identifications tested, firearms examiners correctly identified 1508 casings to the firearm from which the casing was fired. Keisler et al., Isolated Pairs Research Study, Ass’n of Firearm and Tool Mark Examiners J. 56, 58 (2018) (“Keisler Study”), ECF No. 33-9; see also Evid. Hr’g Tr. 65:3-11. This evidence indicates that even under the PCAST’s stringent black-box only criteria, firearm and toolmark identification can be tested and reasonably assessed for reliability”

“The entire process of reaching a conclusion regarding the “sufficient agreement in individual characteristics” is one that relies wholly on the examiner’s judgment, without any underlying numerical standards or guideposts to direct an examiner’s conclusion. . . .And as Mr. Weller testified, even in contrast to other subjective disciplines such as fingerprint analysis, firearm toolmark identification does not provide objective standards even as a quality control measure, such as a baseline to trigger further verification. . . . While Mr. Monturo’s additional use of “basic scientific standards” through taking contemporaneous notes, documenting his comparison with photographs, and the use of a second reviewer for verification surely assist in maintaining reliable results, without more the Court cannot conclude this Daubert factor is met.”