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

Case (cite)
United States v. McCluskey, 2013 WL 12335325 (D. N.M. 2013)
New Mexico
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
Katharina Babcock
Summary of reasons for ruling
The court found that each of the Daubert factors had been satisfied. Further the court found Schwartz's affidavit for the defense unpersuasive and did not believe her to be an expert in the field. Finally, the court limited the expert's testimony, but declined to limit it to a "reasonable degree of ballistic certainty" as this court in Taylor had done.
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
John Murdock; Babcock
Names of defense expert(s) who testified at hearing (or None).
(affidavit by Adina Schwartz)
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


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.”