U.S. v. Romero-Lobato, 379 F.Supp.3d 1111 (D. Nev. 2019)

“The cases surveyed by the Court indicate that some federal courts have recently become more hesitant to automatically accept expert testimony derived from the AFTE method. While no federal court (at least to the Court’s knowledge) has found the AFTE method to be unreliable under Daubert, several have placed limitations on the manner in which the expert is allowed to testify. The general consensus is that firearm examiners should not testify that their conclusions are infallible or not subject to any rate of error, nor should they arbitrarily give a statistical probability for the accuracy of their conclusions. Several courts have also prohibited a firearm examiner from asserting that a particular bullet or shell casing could only have been discharged from a particular gun to the exclusion of all other guns in the world. These restrictions are in accord with guidelines issued by the Department of Justice for its own federal firearm examiners which went into effect in January 2019. (ECF No. 51-8 at 4). But it is also important to note that the courts that imposed limitations on firearm and toolmark expert testimony were the exception rather than the rule.”

“While the Court is cognizant of the PCAST Report’s repeated criticisms regarding the lack of true black box tests, the Court declines to adopt such a strict requirement for which studies are proper and which are not. Daubert does not mandate such a prerequisite for a technique to satisfy its error rate element.”

” Federal Rule of Evidence 702 inherently allows for an expert with sufficient knowledge, experience, or training to testify about a particular subject matter. It does not impose a requirement that the expert must reach a conclusion via an objective set of criteria or that he be able to quantify his opinion with a statistical probability. Such requirements would, in most circumstances, exclude psychologists, physicians, and lawyers from testifying as expert witnesses. Of course, a litigant would be hard pressed to make a good faith argument that the methods used by mainstream medical and legal experts are unreliable under Daubert.”

While the CMS method has been peer reviewed, published in scientific journals, and tested, it is not routinely used by firearm examiners across the country. The lack of uniform adoption and the fact that Johnson does not use it as his primary method of identification means that the CMS method cannot, in the Court’s view, transform the subjective factor in the AFTE method to an objective one. The CMS method does, however, offer some objective validation to the AFTE Method.

Moreover, it is unclear if the PCAST Report would even constitute criticism from the “relevant community” because the committee behind the report did not include any members of the forensic ballistics community

The Court also notes that the defense has not cited to a single case where a federal court has completely prohibited firearms identification testimony on the basis that it fails the Daubert reliability analysis. The lack of such authority indicates to the Court that defendant’s request to exclude Johnson’s testimony wholesale is unprecedented, and when such a request is made, a defendant must make a remarkable argument supported by remarkable evidence. Defendant has not done so here.

NOTE: Interestingly, this case has a lengthy discussion at the beginning about courts limiting expert testimony, but does not mention limiting testimony in this case.