United States v. McCluskey, 2013 WL 12335325 (D. N.M. 2013)

On Adina Schwartz: “Federal Rule of Evidence 702 does permit one to be qualified as an expert through various means, including study of the literature relating to a field. Based on the record currently before the Court, it appears that Professor Schwartz is well versed in the relevant literature. However, it also appears that she has analyzed the literature not as an objective analyst, but rather as an advocate for the non-admission of ballistics evidence. This bias tends to undermine her credibility. Other courts have found similarly. See United States v. Otero, 849 F. Supp. 2d 425, 435-36 (D.N.J. 2012) (citing cases). Furthermore, the accuracy and honesty of Schwartz’s scholarly analysis has been questioned by this Court. In United States v. Taylor, Judge Johnson granted the Government’s motion to exclude Professor Schwartz’s expert testimony, finding, among other things, that she lacked qualifications to critique the findings of the government’s firearms examiner and that her testimony was not reliable under Rule 702. ”

“As Judge Johnson pointed out in Taylor, 663 F. Supp. 2d at 1178-79, there is an issue with firearms examination, not necessarily neatly encapsulated by any one of the Daubert factors. Generally, as was done in this case, the examiner is handed only one or a handful of suspect weapons and the recovered projectiles or cartridges. As one district court has pointed out, this method of testing is, “in effect, an evidentiary ‘show-up,’ not what scientists would regard as a ‘blind test.’ ” United States v. Green, 405 F. Supp. 2d at 104, 107-08 (D. Mass. 2005). Indeed, McCluskey’s unrefuted argument is that “neither the firearm community, specifically, nor the forensic science community, generally, have ever conducted double-blind independent proficiency tests aimed at determining the accuracy (or inaccuracy) of firearm examiners.” . . . . This practice, like show-up identifications of suspects, creates a potentially significant “observer effect” whereby the examiner knows that he is testing a suspect weapon and may be predisposed to find a match. See Doc. 418 at 40.”

On limiting language to “a reasonable degree of certainty”: In this case, Murdock testified that the phrase “reasonable degree of ballistic certainty” is undefined and that even he had no idea what it meant. Tr. 8/22/2012, Doc. 679, at 33. The Court therefore concludes that Babcock may testify that she has reached her conclusions to “a practical certainty,” or to a “practical impossibility” of dissimilar origin, and nothing more.

“In light of all the foregoing, the Court concludes that insufficient data exists to calculate a definitive error rate. The information that does exist—derived from the proficiency testing—indicates an error rate of 5% or less, which is not excessively high. However, that number is subject to valid criticism. Thus, the evidence presented on error rates leads the Court to conclude that this Daubert factor weighs slightly in favor of admitting the challenged expert testimony.”