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United States v. Lee, 2010 WL 11685321 (S.D.N.Y. 2010)

Case (cite)
United States v. Lee, 2010 WL 11685321 (S.D.N.Y. 2010)
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
Luis Fontanez
Summary of reasons for ruling
Defendants argue that firearms identification is not reliable under Daubert and should be excluded. The court notes that despite controversy around firearms identification evidence, it has repeatedly been admitted by courts and has never been found to entirely unreliable, and that the Supreme Court cited ballistics evidence as helpful and a subject of expert testimony. The court holds that they have not been given a reason to depart from these cases and denied the motion to exclude the testimony or hold a Daubert hearing. Defendants also argue that expert testimony should be limited to prohibit testifying to the exclusion of all other firearms, to prevent the court from referring to the witness as an expert, and testifying to a degree of scientific or ballistics certainty. The court holds that the governments agreement to have the expert testify based on training and expertise and not ask about levels of certainty to be sufficient. The expert may be referred to as an expert.
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)
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 Defendants note, the use of ballistics identification testimony has been the subject of some controversy. For example, in United States v. Glynn, Judge Rakoff noted that “it is commonplace that ballistics comparisons involve the exercise of a considerable degree of subjective judgment.” 578 F. Supp. 2d 567, 573 (S.D.N.Y. 2008). After examining the field of ballistics and firearms identification, that court found that the discipline “suffer[ed] from greater uncertainty than many other kinds of forensic evidence.” 578 F. Supp. 2d 567, 574 (S.D.N.Y. 2008). Notwithstanding this controversy, the introduction of expert testimony on ballistics evidence has been repeatedly upheld. The Supreme Court has cited ballistics evidence as a reasonable subject of expert testimony, indicating that such testimony aids the jury in understanding the evidence. . . . Even in Glynn, the court ultimately admitted the expert testimony in question, finding that “[ballistics examination] methodology has garnered sufficient empirical support as to warrant its admissibility.” Glynn, 578 F. Supp. 2d at 574. Judge Marrero noted in 2002, and this Court confirms today, “[t]he Court has not found a single case in this Circuit that would suggest that the entire field of ballistics identification is unreliable.” United States v. Santiago, 199 F. Supp. 2d 101, 111 (S.D.N.Y. 2002).




The Government states that it will ask Detective Fontanez his opinion, based on his training and expertise, as to the relationship between a specific firearm and bullets and casings recovered from one or more crime scenes. (Id. at 17.) The Government will not ask Detective Fontanez to characterize his opinion beyond that statement in terms of levels of certainty or “degrees of scientific or ballistics certainty.” (See id.)
*3 The Court finds the Government’s plan with respect to this expert testimony to be adequate to meet Defendants’ concerns, and finds that any party may indeed refer to Detective Fontanez as an “expert witness” if he is otherwise permitted to testify under Federal Rule of Evidence 702.