Case (cite)
U.S. v. Tibbs, 2019 WL 4359486 (D.C. Super. 2019)
Discussion precedent cases: “In evaluating the persuasive weight of these decisions, however, the undersigned could not help but note that, despite the enhanced gatekeeping role demanded by Daubert, see 509 U.S. at 589, the overwhelming majority of the reported post-Daubert cases regarding this type of expert opinion testimony have not engaged in a particularly extensive or probing analysis of the evidence’s reliability. In 2009, the National Research Council (“NRC”) specifically criticized the judiciary’s treatment of issues relating to the admissibility of firearms and toolmark evidence and the judiciary’s failure to apply Daubert in a meaningful fashion. . . . Without disparaging the work of other courts, the NRC’s critique of our profession rings true, at least to the undersigned: many of the published post-Daubert opinions on firearms and toolmark identification involved no hearing on the admissibility of the evidence or only a cursory analysis of the relevant issues. Our Court of Appeals has noted that “[t]here is no ‘grandfathering’ provision in Rule 702.” Motorola, 147 A.3d at 758. Yet, the case law in this area follows a pattern in which holdings supported by limited analysis are nonetheless subsequently deferred to by one court after another. This pattern creates the appearance of an avalanche of authority; on closer examination, however, these precedents ultimately stand on a fairly flimsy foundation.”
It is difficult to avoid the conclusion that, despite the criticisms of the NRC and other bodies, the judicial branch has demonstrated an aversion to meaningful hearings on this issue.
As a general matter, those courts that have found low error rates for this discipline appear to have done so by simply accepting the conclusions of the studies as presented and without any analysis of the methodological or other issues presented in them
On limiting testimony: “It would be fanciful to conclude that the normal adversarial process would enable a lay jury to adequately understand these issues, and it is similarly unrealistic to conclude that the average attorney in the average trial would be able to raise these issues in front of the jury in this fashion, particularly when this issue would be one among many issues to be presented to the jury in a trial.”