Skip to content

United States v. Green, 405 F.Supp.2d 104 (D. Mass. 2005) [comprehensive review]

Case (cite)
United States v. Green, 405 F.Supp.2d 104 (D. Mass. 2005) [comprehensive review]
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
Sergeant James O'Shea
Summary of reasons for ruling
while the absence of testimony about error rate, certification, or proficiency testing cut against the admission, the precedent points in favor of it and since ballistic evidence is the kind that jury can see and understand on trial, the evidence is admissible but has to be limited.
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).
David Lamagna
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)
(2); (3)
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


“I reluctantly come to the . . . conclusion [that firearm toolmark evidence is admissble] because of my confidence that any other decision will be rejected by appellate courts . . . [but] the more courts admit this type of toolmark evidence without requiring documentation, proficientcy testing, or evidence of reliability, the more sloppy practice will endure; we should require more.”




refer to this case for detailed description on the subjective nature of the analysis


The expert testified that there have been no controlled studies to evaluate the error rate of the field.


on error rate: “even if his approach may be flawed, if examiners in the field manage to overcome these flaws, or if this examiner had a low error rate, the evidence may still be reliable, and the jury can evaluate it. Without information about error rates, the initial factfinder, this Court, and the ultimate one, the jury, have no accurate way of evaluting the testimony.”


“Even without testimony about error rate, proficiency testing, and certification . . . If the jury is able to see and understand what the expert saw, then the testimony may be admissible.”


this court comments that “the reliance on long-standing use of ballistics evidence in the courts is troubling.”


In any case, notwithstanding all of the serious deficiencies, the problem for the defense is that every single court post-Daubert has admitted this testimony, sometimes without any searching review, much less a hearing