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United States v. Gil, 680 Fed.Appx. 11 (2nd Cir. 2017)

Case (cite)
United States v. Gil, 680 Fed.Appx. 11 (2nd Cir. 2017)
Type of proceeding
Type of claim
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
Does not name the expert
Summary of reasons for ruling
Upheld the lower court decision because they referenced surveys showing that the error rate was "de minimus," they were not wrong to rely on rulings from other districts, and said that the NAS studies did not preclude admission when the error rate was in the range of 1%. Court also held that the district court did not err in allowing the expert to testify to a reasonable degree of certainty.
The jurisdiction’s standard for expert admissibility at the time – list all that apply: (Frye), (Daubert), (Post-2000 Rule 702), (Other)
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


As the district court correctly explained, arguments about the subjectivity inherent in otherwise reliable methodologies go “to the weight of the evidence, not to its admissibility,” and were “matters for cross-examination and argument to the jury.”




Finally, there is no manifest error in the district court’s decision to allow the government’s expert to testify that he reached his conclusions “to a reasonable degree of certainty in the field of ballistics.” App’x 92. The district court did so to communicate to the jury that ballistics is a “subjective inquiry,” which could not fairly be referred to as “scientific” or statistically certain. App’x 73–74. We have approved the “reasonable degree of certainty” formulation—which Gil’s initial motion in limine submission cited as appropriate—in the context of expert testimony in other fields involving a degree of subjectivity.