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United States v. Ashburn, 88 F.Supp.3d 239 (E.D.N.Y. 2015)

Case (cite)
United States v. Ashburn, 88 F.Supp.3d 239 (E.D.N.Y. 2015)
New York
Type of proceeding
Type of claim
Type of claim (second claim)
Expert evidence ruling reversing or affirming on appeal:
What was the ruling?
Type of evidence at issue:
Firearms identification
Defense or Prosecution Expert
Name of expert(s) who were the subject of the ruling
Salvatore LaCova
Summary of reasons for ruling
Because toolmark identification is "at bottom a subjective inquiry," the Court held that the expert's testimony should be limited but that the method of firearms identification used satisfied the Daubert factors and could still be admitted. The court also held that a Doubert hearing was not necessary.
The jurisdiction’s standard for expert admissibility at the time – list all that apply: (Frye), (Daubert), (Post-2000 Rule 702), (Other)
Second standard
Rule 702
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)
All factors
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


Even the NAS Report, which criticized the lack of scientifically defined standards in the field, concluded that “[i]ndividual patterns from manufacture or from wear might, in some cases, be distinctive enough to suggest one particular source, but additional studies should be performed to make the process of individualization more precise and repeatable.” NAS Report at 154. Thus, the difficult question is not whether ballistics qualifies for expert testimony under Rule 702, but whether LaCova’s testimony should be limited in certain respects




As an initial matter, although Laurent moves for the complete exclusion of LaCova’s testimony, he cites no case that finds that toolmark and firearms identification is an inappropriate topic of expert testimony


Although some commentators have questioned the assumptions and subjectivity inherent in toolmark and firearms identification, see, e.g., NAS Report at 153–55, the AFTE methodology remains a primary approach in the field, and even after the publication of the NAS Report, courts have viewed the methodology as accepted by the field.


The lack of clearly defined, objective standards in the field does not render LaCova’s testimony inadmissible, but it is relevant with respect to the limitations of LaCova’s testimony