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United States v. Shipp, 422 F.Supp.3d 762 (E.D.N.Y. 2019)

Case (cite)
United States v. Shipp, 422 F.Supp.3d 762 (E.D.N.Y. 2019)
Year
2019
State
New York
Type of proceeding
Trial
Type of claim
Evidentiary
Expert evidence ruling reversing or affirming on appeal:
Admitted
What was the ruling?
N/A; Trial court
Type of evidence at issue:
Firearms identification
Defense or Prosecution Expert
Prosecution
Name of expert(s) who were the subject of the ruling
Detective Sean Ring
Summary of reasons for ruling
On finding AFTE unreliable: "On balance—because of the concerns raised by the lack of a known error rate with a potential error rate of one false positive per 46 examinations, the circular “sufficient agreement” standard, and, to a lesser extent, the lack of general acceptance in the scientific community—the Government has not demonstrated that the AFTE Theory of Identification is reliable enough to allow Detective Ring to testify that the recovered firearm is the source of the recovered bullet fragment and shell casing. However, these concerns apply specifically and solely to use of the AFTE Theory to conclude that there is an identification, or match, between the test fires from the recovered firearm and the recovered shell casing and bullet fragment. They do not apply to several other aspects of Detective Ring's testimony."
The jurisdiction’s standard for expert admissibility at the time – list all that apply: (Frye), (Daubert), (Post-2000 Rule 702), (Other)
Daubert; 702
Did lower court hold a hearing
N (Daubert hearing request denied)
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) or PCAST report (PCAST)
PCAST; NRC 2009
Discussion of error rates / reliability
Y
Frye Ruling
N
Limiting testimony ruling
Y
Language imposed by court to limit testimony
"may not testify, to any degree of certainty, that the recovered firearm is the source of the recovered bullet fragment or the recovered shell casing."
Ruling based in prior precedent / judicial notice
N
Daubert ruling emphasizing – which factors – (list 1-5)
(1), (2), (3), (4), (5)
Ruling on qualifications of expert
Y
Ruling on 702(a) – the expert will help / assist the jury
N
Ruling on 702(b) – the testimony is based on sufficient facts or data
N
Ruling on 702(c) – the testimony is the product of reliable principles and methods
Y
Ruling on 702(d) – reliable application of principles and methods to the facts of the case
N

Notes

In reviewing this case law, the court notices a tension between Daubert and courts’ tendency to separate the AFTE Theory’s scientific validity and the evidentiary reliability of toolmark analysis.

 

On limiting testimony: This more restrictive limitation is appropriate given the concerns raised by the PCAST Report about the lesser probative value of certain study designs and the reproducibility and accuracy of an individual examiner’s application of the “sufficient agreement” standard. Placing this limitation on Detective Ring’s testimony will prevent the jury from placing unwarranted faith in an identification conclusion based on the AFTE Theory, which the current research has yet to show can reliably determine, to a reasonable probability, whether separate pieces of ballistics evidence have the same source firearm. However, it will still allow the jury to benefit from Detective Ring’s extensive knowledge and experience examining ballistics evidence.

 

Therefore, while the purported invalidity of the AFTE Theory does not preclude Detective Ring from testifying, the court seriously considers the PCAST Report’s critiques when assessing the reliability of Detective Ring’s proposed testimony.

 

The Government is also correct that, without exception, these courts have admitted the expert testimony. Id.; (see also Mem. at 12; Gov’t Opp’n at 14). However, many of these courts have expressed increasing concerns about the scientific validity of toolmark analysis, and have imposed restrictions on the proffered expert testimony

 

Even though prior decisions have found toolmark analysis to be reliable, it is incumbent upon this court to thoroughly review the critiques of the AFTE Theory found in the NRC and PCAST Reports and to consider whether they merit exclusion of Detective Ring’s testimony or, alternatively, appropriate limitations on his testimony.

 

NOTE: This case has a very thorough discussion of reliabilitiy