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Whitson v. United States, 2021 WL 5585629 (M. D. Ten. 2021)

Case (cite)
Whitson v. United States, 2021 WL 5585629 (M. D. Ten. 2021)
Type of proceeding
Type of claim
Ineffective assistance of counsel
Type of claim (second claim)
Expert evidence ruling reversing or affirming on appeal:
What was the ruling?
Correct to Admit
Type of evidence at issue:
Firearms identification
Defense or Prosecution Expert
Name of expert(s) who were the subject of the ruling
Summary of reasons for ruling
Petitioner argues that his trial counsel was ineffective in failing to object to the expert testimony provided by a firearm and toolmark examiner under Federal Rule of Evidence 702. Citing to Taylor, Petitioner asserts that firearm and toolmark "analysis has recently come under attack for depending on subjective judgment, rarely using control weapons, and risking an observer effect. However, the trial court found that the expert's opinion on the (lack of) accuracy of firearm identification was inadmissible because the expert's opinion was "not sufficiently reliable to meet the standards set out by Rule 702" finding that the expert misrepresented pertinent data in her study. Id. Thus, Petitioner's citation to Taylor does not support his argument that his counsel was ineffective in failing to object to the firearm identification expert's testimony; if anything, it suggests that the substance of the kinds of attacks on firearm and toolmark identification on which he relies is not necessarily reliable. Nor has Petitioner shown that counsel's failure to object was prejudicial to Petitioner in that such an objection actually would have been sustained had counsel made it. Accordingly, the Court finds that counsel's failure to object to the firearm identification expert's testimony does not reflect deficient performance, and the Court rejects this claim of ineffective assistance of counsel.
The jurisdiction’s standard for expert admissibility at the time – list all that apply: (Frye), (Daubert), (Post-2000 Rule 702), (Other)
Rule 702
Second standard
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


Relies in part on U.S. v. Black: as one district court pointed out, “[n]umerous courts across the country have conducted thorough analyses of the reliability of toolmark identification with firearms [and it] appears that in every instance, the court determined that expert testimony on toolmark analysis was admissible.