Court Citations

State of CONNECTICUT vs. Donald RAYNOR
Case# SC 20183

Superior Court in the judicial district of Hartford
December 4, 2020 (Argued February 21)

Synopsis:

Defense motion (filing) to Superior Court that the Appellate Court improperly upheld the trial court’s denial regarding the reliability of ballistic evidence. Superior Court ruled that due to certain previous procedural omissions, it must remand present case for a new trial.

State vs. Raynor- Concurrence

U.S. vs. Demontra HARRIS
Case# 19-358 (RC)

Court: United States District Court, District of Columbia
Date: November 10, 2020

Synopsis:

The defense put forth a motion to exclude the firearm and toolmark evidence in this case on that basis that the field of firearm and toolmark identification lack a reliable scientific basis, is not premised on sufficient facts or data, is not the product of reliable principles and methods, and was not applied correctly in this case. The court denied the defendants motion, finding in favor of the discipline of firearm and toolmark analysis on all counts. The testifying examiner had already agreed to the following:

The examiner would not use the term “match”

The examiner would not state his expert option with any level of statistical certainty and would not use the phrase “to the exclusion of all other firearms” or :to a reasonable degree of scientific certainty”

Denial of Defendant’s Motion

U.S. vs. Dominic Eugene HUNT
Case# CR-19-073-R

United States District for Western District of Oklahoma
June 1, 2020

Synopsis:

The defense challenged the admission of ballistic evidence based on the reliability of the expert’s testimony and request to exclude the firearm evidence or have a Daubert hearing.  To be noted the relevancy of the expert’s testimony or the experts’ qualification was not in question in this case, only the reliability of the testimony.  The court opined that the Government has provided sufficient information in relation to the expert testimony and that the expert is sufficiently qualified and the testimony is reliable.  The Court denied the defendant motion to exclude Ballistic Evidence, or alternatively, for a Daubert hearing.  However, the expert’s testimony must refrain from expressing their findings in terms of absolute certainty, and they will not state or imply that a particular bullet or cartridge case could have only come from a particular firearm to the exclusion of all other firearms in the world.  The defendant may question or clarify the experts’ finding during cross examination or through direct examination of his own firearm toolmark expert.

U.S. v. Odell Tony ADAMS
Case# 3:19-cr-00009-MO-1

United States District Court for the District of Oregon
March 16, 2020

Synopsis:

The defense challenged the admissibility of the firearms expert testimony based on its methodology under the Daubert standard.  The defense also states that the AFTE theory “sufficient agreement” standard does not consider or address questions regarding variability, reliability, repeatability, or the number of correlations needed to achieve a given degree of confidence.  The expert witness could not explain his methodology in a way that would allow an uninitiated person to perform the same test in the same way.  However, the expert witness was able to show that tool mark testing is held to high standards and subject to quality control.  The court opined that the expert’s testimony did not explain how or why the conclusion was reached in any quantifiable or replicable way.  The court also opined that it is possible that the AFTE method could be expressed in scientific terms, but was not done in this case.  The court granted in part and denied in part the defendant motion to exclude firearms expert testimony.  The expert testimony was limited to observational evidence.  No evidence relating to the expert’s methodology or conclusions relating an identification of the firearm evidence will be admitted at trial.

State of NEW YORK vs. Amina MANSELL & Michael ROSS
IND. NO. 267/2018

Supreme Court of the State of New York County of Bronx
January 23, 2020
Judge April A. Newbauer

Synopsis:

The defense challenged the admissibility of the firearms evidence under the Frye standard. The judge examined evidence from both sides and found that ‘Reconciling the various viewpoints does not prove simple” and that “a lengthier written opinion which lays of the expert testimony, its consequences and the basis for the conclusions reached will follow”. The judge ruled the following:
The examiner may testify to the following:

Whether he/she found any class characteristics that could include or exclude the firearm at issue.

Explain the reasons for any opinion that class characteristics are present or not present.

Explain what is done with instruments, describe verbally and/or show photos of the relevant evidence.

The examiner may not testify to the following:

Qualitative opinions on matters not adequately supported by the relevant scientific community. Specifically the significance of marks seen other than class characteristics.

Kobina Ebo ABRUQUAH v. State of MARYLAND
Case# CT-12-1375X

Circuit Court for Prince George’s County
January 17, 2020
Judge J. Beachley

Synopsis:

In the original trial the defense challenged the admissibility of the firearms evidence under the Frye-
Reed standard. Multiple experts were called to testify on the behalf of the state as well as an expert for the defense. The court found that “firearm and toolmark analysis is still generally accepted and
sufficiently reliable under the Frye-Reed standard”. The court did limit the expert from testifying to
“absolute or scientific certainty”.
On appeal the appellant contended that the hearing court erred in the acceptance of the testimony in
regards to firearm and toolmark analysis. The appellate court was in agreement with the decisions made by the hearing courts in regards the general acceptance of firearm evidence and the limitation placed on the experts testimony.

U.S. vs. Marquette TIBBS
Case# 2016 CF1 19431

Superior Court of the District of Columbia, Criminal Division
September 5, 2019
Judge Todd E. Edelman

Synopsis:

The defense motioned to exclude firearms evidence pursuant to the standard set by the District of
Columbia Court of Appeals in Motorola Inc. v. Murray, 147 A.3d 751(D.C. 2016), by the Daubert
standard, and under the Federal Rule of Evidence 702. The motion to exclude was based on the
defense’s argument to the support of reliable principles and methods for firearms identification. After
the evidentiary hearing the judge decided to restrict the testimony of the firearms examiner to the
conclusion that “based on the consistency of the class characteristics and microscopic toolmarks, the
firearm cannot be excluded as the source” of the fired cartridge case. The judged opined that the field of firearms examination does not have a sufficiently established error rate, is absent of an objective
standard for identification, and is not sufficiently accepted outside of the community of firearms and
toolmark examiners.

U.S. vs. Marcus Jay DAVIS
Case# 4:18-cr-00011

United States District Court for the Western District of Virginia, Danville Division
September 11, 2019
Judge Michael F. Urbanski

Synopsis:

The defense challenged the admissibility of the firearms evidence under the Daubert standard and
Federal Rule of Evidence 702. The court [in part] granted and denied the motion from defense. The
court found that the expert’s in this case may do the following:

• provide testimony explaining their examination procedures
• describe any comparison photographs provided in the report.
• describe any similar characteristics in the toolmarks observed on examined cartridge cases and render an opinion as to whether the marks exhibited on the fired cartridge cases are consistent with each other.

The examiners may not do the following:

• opine that the cartridge cases were fired by the same firearm, or that they “match” to other cartridge cases or firearms.
• render an opinion that toolmarks reflect a “signature” pattern that can be used for identification
• make any statements of opinion regarding any level of certainty and/or the exclusion of other firearms to the “level of practical impossibility”.

U.S. vs. Alonzo SHIPP

Case# 19-CR-029

United States District Court for the Eastern District of New York
November 26, 2019
Judge Nickolas G. Garaufis

Synopsis:

The defense challenged the admissibility of the firearms evidence under the Daubert standard and
Federal Rule of Evidence 702. The court relied heavily on the PCAST report specifically focusing on challenges to peer review and the AFTE theory of Identification. The court denied the defendant motion to exclude the firearm and toolmark evidence, but did place limitations on the testimony.
The scientist can:

• Describe the process for which comparisons are performed and the similarities between them.
• Describe the process for examining the recovered firearm and its operability.
• That the toolmarks on the recovered bullet fragment and cartridge cases are consistent with having been fired from the recovered firearm, and that the recovered firearm cannot be excluded as the source of the recovered items.

The scientist cannot:

• Testify to any degree of certainty that the recovered firearm is the source of the recovered fired ammunition components.

State of NORTH CAROLINA v Harold Clyde GRIFFIN JR.
Case# COA18-1164 N.C. App., 2019 N.C App. LEXIS 845

Circuit Court of the city of ST Louis 22 nd Judicial Circuit
October 15, 2019
Judge Allegra Collins, Hunter Murphy, and Richard Dietz

Synopsis:

The defense challenged the admissibility of the firearms evidence under the Daubert standard. The
court of appeal rejected Griffins motion and determined that the expert’s opinion in this case satisfied to three prongs of Federal Rule 702.

State of MISSOURI vs. Charles V. CARTER
Case# 1716-CR05477-01

Circuit Court of Jackson County, Division 15
October 15, 2019
Judge Jalilah Otto

Synopsis:

The defense filed a motion to exclude the states’ firearms examiner as an expert witness. The
prosecution also filed a motion to exclude the defenses expert witness. The judge denied the
defense motion, opining that the states expert will provide testimony that helps the tier of fact in
this case. The judge also opined that in her research, nowhere in the PCAST & NAS Reports
does it say firearms analysis should be excluded from any court of law. Furthermore, it was
determined that the state’s expert met all prongs of Daubert and any objections and/or criticisms
of the science could be asked during cross-examination. The judge granted the prosecution’s
request to deny the defense expert’s testimony based on the expert not using any facts specific to
this particular case, and his admission that he was not a firearm’s examiner.

State of DELAWARE vs. Neki GIBBS
Case# 1809003017

Superior Court of Delaware, New Castle
September 4, 2019

Synopsis:

The defense challenged the admissibility of firearms evidence under the Daubert standard and Delaware Rule of Evidence 702. The motion to exclude was denied. The court further opined that it would not preclude the expert from using the words “identification” or “match”. However, the expert was precluded from testifying to the following:

The expert cannot state 100% certainty of findings.

If the word “match” or “identification” is used, the expert cannot testify to the exclusion of all other firearms in the world or that is practically impossible that any other firearm could have fired the recovered items.

The expert cannot testify with a reasonable degree of scientific certainty regarding the words “match” or “identification”.

State of MARYLAND v. Jaylin Jerome BROWN
Case# C-12-CR-18-442

Circuit Court for Harford County Maryland
August 26, 2019

Synopsis:

The defense challenged the admissibility of the firearms evidence based on its validity, methodology,
and general acceptance under the Frye standard. The defense also requested testimony to be excluded based on error rate and peer review. The court opined that in the absence of an alternative scientific methodology, the court would not stray from the long established history of allowing firearm and toolmark testimony. Furthermore, any concerns from the defense could be mentioned during cross- examination. The court denied the defendants motion to exclude the firearms evidence and testimony.
The defense also requested limitations for the firearm conclusions statement. The court opined that
rendering an opinion to a reasonable degree of “scientific” certainty was broad and imprecise. The
scientist could testify to “a reasonable certainty in the field of ballistics” thus removing the qualification of “100% certainty which does not exist” and allows “the jury to draw its own conclusions as to the validity and weight of the testimony”. The defense expert was allowed to testify in the Frye hearing, but the judge denied any testimony from the defense expert during the trial on the basis that the defense expert is not a firearms examiner.

State of MISSOURI vs. Eric LAWSON
Case# 1222-CR02611-01

Circuit Court of the city of ST Louis 22 nd Judicial Circuit
April 23, 2019
Judge Michael Noble

Synopsis:

The defense challenged the admissibility of the firearms evidence under the Daubert standard. The
court found that the expert’s testimony satisfied the Daubert factors of testability, peer
review/publication, controlling standards, error rate, and acceptance. Furthermore, the court opined
that the science of firearm and toolmark identification has been the subject of many publications,
despite claims made in PCAST and the NAS report. The court denied the defendant’s request to exclude, limit, or restrict testimony as related to the firearm and toolmark identification.

U.S. v Eric ROMERO-LOBATO
Case #3:18-CR-00049-LRH-CBC

District Court of Nevada
April 23, 2019
(Judge Larry R. Hicks)

Synopsis:

Defense motion for Daubert hearing to exclude firearms evidence based on the unreliability of the methodology, as stated in the NAS and PCAST Reports, as well as the qualifications of the firearms examiner. Judge denied motion to exclude and opined that the AFTE method was “relevant and reliable” and that the examiner was qualified to testify in this matter.

State of WASHINGTON v. Geraldo Castro DEJESUS
Case No. 15-1-00972-7

The Court of Appeals of the State of Washington – Division 1
March 11, 2019
(Chief Judge Marlin Appelwick, Judges John H. Chun and Ann Schindler)

Synopsis:

Appellate Court review of defense claim that trial court erred by not conducting a Frye hearing, thereby allowing inadmissible firearm evidence (per NAS, NRC, and PCAST reports) to be used against appellant.  Appellate Court found that admissibility of firearm evidence was considered by trial court, and that courts at federal/state levels “uniformly conclude” that firearm evidence is generally accepted and admissible.  Appellate Court ruled that trial court did not err and affirmed prior judgment.

People of the State of COLORADO v. Makhail PURPERA
Case No. 2016CR7798

District Court (City & County of Denver, CO)
August 12, 2018
(Judge John W. Madden, IV)

Synopsis:

Defense motion to limit firearm evidence due to lack of scientific foundation as set forth in the 2016 PCAST Report or conduct a Schrek admissibility hearing.  Judge gave limited weight to defense’s inclusion of “unbalanced” studies and articles, considering them hearsay, and opined that other court decisions are not binding.  Defense challenge to subjective methods was countered with Judge’s view that many professions interpret data or test results, necessitating subjective interpretation based on training, education, and/or experience.  Per CRE 702, Judge found firearm evidence methodology reliable, the expert well qualified, and the firearm evidence critical to the case.  Defense motion to limit firearm evidence was denied.

State of CONNECTICUT v. Donald RAYNOR
Case #AC 41018

Connecticut Appellate Court
May 8, 2018
(Judges Christine E. Keller, Nina F. Elgo, and Dennis Eveleigh)

Synopsis:

Appellate Court review of defense claim that trial court erred in denying Porter hearing to determine reliability of firearm evidence, and that more recently published NAS and NRC reports (State v. Porter dates back to 1997) found firearm and toolmark methodology unreliable.  Appellate Court opined that new studies do not nullify existing case law, that firearm expert explained methodology as well as criticisms/limitations during testimony, and that the jury had a chance to weigh evidence.  Appellate Court stated that firearm evidence admissibility is well established, and affirmed judgment.

Note: See previous ARK entry under the same name, March 2015.

U.S. v. Jovon MEDLEY
Case No. PWG-17-242

District Court for the District of Maryland
April 24, 2018
(Judge Paul W. Grimm)

Synopsis:

Defense motion to exclude or limit firearm testimony due to lack of reliability as indicated by the NAS, NRC, and PCAST reports.  Judge reflected on his previous rulings, summarized criticisms of the firearm/toolmark field per said reports, and voiced concern that many courts have not performed a rigorous evaluation of firearm evidence in light of critical publications and recommendations.  Judge opined that firearm testimony may be admitted per rules of evidence, but will be limited to statements of “consistency” rather than the use of “identification” or being “fired in the same gun.”  Judge also ruled that confidence levels as to the weight of the firearm evidence will not be admitted.

Defense Motion
Government’s Response
Supplemental

State of MARYLAND v. Kobina Ebu ABRUQUAH
Case No. CT12-1375X

Circuit Court of Prince George’s County, Maryland
March 15, 2018
(Judge Michael R. Pearson)

Synopsis:

Defense brief, filed with support from the Innocence Project, advising Court to exclude or limit firearm testimony based on a lack of scientific foundation as outlined in the NRC, NAS, and PCAST reports.  Specifically, defense challenged admission of any testimony involving claims of certainty, statistical significance, or identity (as a form of absolute judgment).  Judge opined that firearm evidence satisfies the Frye-Reed standard, and is still generally accepted in the relevant scientific community, despite a few reports challenging its foundation.  Judge ruled that firearm evidence is admissible, that testimony will not include any form of “certainty” statements, and that defense will be allowed to enter limited evidence challenging the State’s firearm evidence methods.

Note: See previous ARK entry under same name, December 2013.

Innocence Project Brief

Defense Motion

U.S. v. Benito VALDEZ
Case No. 2016 CF1 002267

Superior Court of the District of Columbia
January 30, 2018
(Judge Judith Bartnoff)

Synopsis:

Defense motion to exclude firearm evidence or limit testimony due to lack of reliability as indicated by the NAS, NRC, and PCAST reports.  Judge stated that firearm testimony has long been allowed in state and federal courts under the Frye standard, has been admitted through Daubert hearings, and that studies recommending additional research do not undermine admissibility of firearm evidence.  Judge agreed that testimony cannot include statements of absolute or scientific certainty, and that expert opinions must be qualified with the bases for such opinions.  Court found further defense requests to limit testimony were not warranted.  Defense motion to exclude testimony was denied.

Government Reply
Government Response

U.S. v. Antonio SIMMONS
Case #2:16-CR-120

Eastern District of Virginia
January 12, 2018
(Judge Lawrence R. Leonard)

Synopsis:

Defense motion for Daubert hearing to exclude firearms evidence as being unreliable and not scientific. Judge denied motion to exclude and allowed testimony based on ballistic certainty over practical impossibility.

Defense Motion

Commonwealth of KENTUCKY v. Jerard GARRETT
Case No. 2016-SC-000263-MR

Supreme Court of Kentucky
December 14, 2017
(Chief Justice John D. Minton, Jr., Deputy Chief Justice Lisabeth T. Hughes, and Justices Bill Cunningham, Daniel J. Venters, Michelle M. Keller, Samuel T. Wright (III), and Laurance B. VanMeter)

Synopsis:

Supreme Court review of trial court decision to admit firearm evidence following a Daubert hearing.  Defense challenged that firearm methods lack acceptance in the scientific community based on the NRC report and that conclusions identifying bullets to a firearm amount to absolute certainty rather than a reasonable degree of certainty.  Supreme court agreed with lower court’s admission of firearm

U.S. v. Valentino JOHNSON
Nos. 16-10184/16-10225

United States Court of Appeals for the Ninth Circuit
November 27, 2017
(Judges Eugene E. Siler, Richard C. Tallman, and Carlos T. Bea)

Synopsis:

Appellate court review of multiple defense challenges to district court conviction.  One challenge claimed district court abused its discretion in denying a Daubert motion to exclude firearms evidence (referring to NAS report), and that the AFTE methodology is unreliable.  Appellate court opined that expert was permitted to testify to a “reasonable degree of ballistics certainty”, clarified that written conclusions were not absolute, and was cross-examined RE methods.  Further, the district court cited cases and scientific sources establishing reliability of AFTE methodology in its decision.  Appellate court found district court did not abuse discretion and affirmed prior judgment.

State of TEXAS v. Eric Lyle WILLIAMS
Case No. AP-77,053

Court of Criminal Appeals of Texas
November 1, 2017
(Presiding Judge Sharon Keller, opinion issued by Judge Michael Keasler)

Synopsis:

Appellate Court review of defense motion to reverse District Court admission of firearm evidence due to lack of expert qualifications, lack of statistical/objective foundation, and absence of error rates.  Appellate Court found that the expert demonstrated qualifications, the underlying firearm evidence theory is published and generally accepted in the relevant community, and that subjective conclusions were balanced by the lab’s quality practices.  Court overruled defense challenge and affirmed District Court’s previous conviction and sentence.

Appeal

State of LOUISIANA v. Hardy ALLEN
Case No. 2017 KA 0306

Court of Appeal of Louisiana, First Circuit
November 1, 2017
(Judges Page McLendon, Jewel E. Welch, and Mitchell R. Theriot)

Synopsis:

Appellate Court review of defense motion to reverse conviction in Trial Court, based on denial of Daubert challenge to firearm evidence following release of the 2016 PCAST Report.   Appellate Court found that Trial Court allowed use of PCAST report in cross-exam, and cited numerous state and federal case precedents that allowed firearm testimony.  Appellate Court found no error in the Trial Court’s denial of Daubert hearing, and affirmed the conviction and sentence.

State of MISSOURI v. Ceantonyo Deqwon KENNEDY
Case No. 1516-CR00258-01

Circuit Court of Jackson County, Division 10
March 17, 2017
(Judge Patrick W. Campbell)

Synopsis:

Defense motion to exclude firearm evidence due to inadmissibility under Frye standard.  Judge opined that firearm and toolmark identification methods are generally accepted in the scientific community and that methods used in this case are generally accepted within the relevant forensic field.  Defense motion was denied.

U.S. v. Kelvin GIL
No. 16-524-cr

United States Court of Appeals for the 2nd Circuit of New York
February 21, 2017
(Senior Judge Barrington D. Parker, Judge Reena Raggi, and Judge Christopher F. Droney)

Synopsis:

Appellate court review of four part defense motion to reverse conviction due to district court’s erroneous admission of  firearms evidence.  Appellate court considered the following arguments: that the lower court did not act as “gatekeeper”, the NAS and NRC reports were not properly considered, a proper Daubert hearing was not conducted, and that expert conclusions were allowed to a “reasonable degree of certainty.”  Appellate court found all four challenges meritless, and affirmed the district court’s judgement.

State of CONNECTICUT v. Jaquwan BURTON
Case No. CR23-150831

Superior Court, Part A (New Haven Judicial District)
February 1, 2017
(Judge Jon M. Alander)

Synopsis:

Defense motion for a Porter hearing to exclude firearm evidence due to lack of scientific acceptance in the relevant scientific community as set forth in the NAS Report.  Judge opined that, without probability data, definitive conclusions were not possible.  Judge denied motion to exclude, but limited testimony to statements of “consistency” between items combined with the display of areas of agreement through photographs.

State and Defense Motions
Porter Hearing Transcript Part 1
Porter Hearing Transcirpt Part 2

Commonwealth of MASSACHUSETTS v. Aaron HERNANDEZ
Case No. SUCR2014-10417 / SUCR2015-10384

Superior Court in Suffolk County
December 21, 2016
(Judge Jeffrey A. Locke)

Synopsis:

Defense motion to exclude any firearm testimony and statements related to “reasonable degree of certainty,” and to report these questions to the Appeals Court due to findings of the 2016 PCAST report, was denied.  Judge cited similar court decisions, and stated that the PCAST report does not affect the admissibility of firearm evidence.  Judge required the Commonwealth to elicit testimony regarding known error rates based on the studies identified in the PCAST report.

Government Response
Defense Response to Government

State of MISSOURI v. Scott GOODWIN-BEY
Case No. 1531-CR00555-01

Circuit Court of Greene County, Division V
December 16, 2016
(Judge Calvin R. Holden)

Synopsis:

Defense motion to exclude firearm evidence due to lack of scientific foundation as set forth in the NAS and PCAST reports.  Judge opined that toolmark identification is an investigative tool, much like polygraph testing.  Judge allowed firearm evidence with reluctance, limiting testimony to statements that the firearm could not be eliminated as the source of ammunition evidence.

Commonwealth of MASSACHUSETTS v. Jamare LEGORE
Case No. SUCR 2015-10363

Superior Court (Suffolk County)
November 17, 2016
(Judge Jeffrey A. Locke)

Synopsis:

Defense motion to exclude firearm evidence due to lack of scientific foundation as set forth in the 2016 PCAST Report.  Judge reviewed the PCAST report and denied motion to exclude, stating “there is no basis to disturb settled law permitting a properly qualified firearms expert from offering opinion evidence.”  Judge adopted one PCAST recommendation, requiring the Commonwealth to “elicit testimony regarding error rates based on studies identified in the PCAST report.”

U.S. v. Gregory CHESTER, et al.
No. 13 CR 00774

District Court for the Northern District of Illinois, Eastern Division
October 7, 2016
(Judge John J. Tharp, Jr.)

Synopsis:

Defense motion outlined earlier attempts to exclude firearms evidence based on an unsupportable level of certainty and unreliable methodology.  Court rulings denied earlier motions, finding the AFTE methodology to be reliable and noted gov’t agreement to limit “certainty” statements in testimony.  Defense filed a renewed motion to exclude based on recommendations of the 2016 PCAST report.  Judge denied latest motion, opining that the error rates cited in the PCAST report were sufficiently low, and that the report does not undermine reliability of the methodology.

Defense 2nd Motion
Government Response to 2nd Motion

State of WEST VIRGINIA v. Dallas Michael ACOFF
Case # 16-F-43

Circuit Court of Ohio County, West Virginia
September 26, 2016
(Judge David J. Sims)

Synopsis:

Defense filed first motion to exclude firearms evidence due to concerns regarding the reliability of the underlying theory/methodology and a lack of scientific foundation based on a combination of the 2009 NRC Report and case citations from various state and U.S. courts.  Defense filed a second motion due to similar concerns as addressed in the 2016 PCAST report.  Judge denied both motions, stating that the methodology is recognized in the scientific community and was properly applied.

Defense Motion
2nd Defense Motion

State of WASHINGTON v. Geraldo Castro DEJESUS
Case No. 15-1-00972-7

Superior Court in Kitsap County
March 30, 2016 & September 21, 2016
(Judge Kevin D. Hull)

Synopsis:

Defense motion for a Frye hearing to exclude firearm evidence due to a lack of general acceptance in the scientific community and the inability to produce reliable results, citing the NRC and NAS reports combined with affidavits of opposing experts, was summarily denied by the Judge.  In later proceedings, the release of the 2016 PCAST report prompted a defense request to reconsider a Frye hearing and a call for the Court to take judicial notice of the PCAST report.  In a bench ruling, Judge declined both the Frye and judicial notice requests, but permitted defense expert testimony regarding some of the PCAST conclusions.

Defense Motion to Supress – Frye
Government Response to Defense Motion
Government Supporting Memo
Defense Response to Government’s Response
Government 2nd Response
Defense Motion to Suppress NSM-008
Government Memo of Law Reference NSM-008
Government Motion to Exclude Defense Experts
Government Supporting Documentation Reference NSM-008
Government Response to Suppression Motion Reference NSM-008
Defense Response to Motion to Suppress Defense Experts
Defense Motion to Reconsider Suppression Motion
Government Motion to Exclude Defense Expert Testimony to an Unpublished Report

Mark LANGLOIS, Petitioner v. John COLEMAN, Warden (Respondent)
Case #3:15 CV 579

U.S. District Court, Northern District of Ohio, Eastern Division
September 20, 2016
(Judge Patricia A. Gaughan)

Synopsis:

Petition for Writ of Habeus Corpus, filed under Anti-Terrorism and Effective Death Penalty Act (AEDPA), to exclude firearms evidence as being scientifically unsound and unreliable, thereby failing to meet the Daubert reliability threshold.  Judge denied petition and opined that FA/TM ID satisfies the threshold reliability standards set forth in Daubert.

Summary Recommendation

U.S. v. Eric GARDNER
Nos. 11-CF-557, 14-CO-832

District of Columbia Court of Appeals
June 23, 2016
(Chief Judge Eric T. Washington, Associate Judge Stephen H. Glickman, and Senior Judge Inez Smith Reid)

Synopsis:

Appellate Court review of defense motion to reverse conviction, in part, due to trial court’s error in allowing an “unqualified and certain opinion” regarding a bullet being identified to a specific firearm.  Appellate Court considered recent cases that limited firearms testimony, and concluded trial court did err, but that the error was harmless in light of other facts of the case.  Appellate court affirmed murder conviction and held that, in their jurisdiction, expert testimony can include opinions that ammunition components were fired by a particular firearm, but those opinions cannot be unqualified or with absolute certainty.

U.S. v. Lezlye TAYLOR, et al.
No. 15-20152

Eastern District Court of Michigan – Southern Division
March 24, 2016
(Judge Terrence G. Berg)

Synopsis:

Defense motion to either exclude firearms evidence due to lack of scientific foundation or limit testimony to statements of “more likely than not.”  Judge denied motion to exclude and elected not to limit testimony, instead offering support for conclusions based on “practical certainty.”

Defense Motion
Government Response

People of the State of CALIFORNIA v. Lonnie David FRANKLIN
Case No. BA382700

Superior Court for the State of California, County of Los Angeles
February 5, 2016
(Judge Kathleen Kennedy)

Synopsis:

Defense motion to exclude or limit firearm evidence due to lack of scientific foundation as set forth in the 2009 NAS Report.  Judge denied motion to exclude from the bench, stating that the defense was not entitled to a hearing since the decision as to reliability had already been decided in previous state and federal rulings.  The Judge also elected to not limit firearm testimony.

Governement Response

U.S. v. Marlon WILLIAMS
No. 13-CF-1312

District of Columbia Court of Appeals
January 21, 2016
(Senior Judge Frank Q. Nebeker, Associate Judges Phyllis D. Thompson and Catharine Easterly)

Synopsis:

Appellate Court review of defense motion to reverse previous conviction judgment; in part, due to improper firearms testimony.  Court affirmed the original conviction judgment, upholding the original firearms testimony.  However, Court opined that District of Columbia should bar the admission of certainty statements in firearm/toolmark testimony.

State of MONTANA v. Patrick O. NEISS
Case #DC 14-0627

Montana Thirteenth Judicial District Court
September 9, 2015
(Judge Gregory R. Todd)

Synopsis:

Defense motion for a Rule 702 hearing to exclude firearms evidence as being subjective and lacking scientific foundation based on the 2009 NAS Report and case citations from various state and U.S. courts.  Judge denied motion and admitted firearm evidence conclusions based on practical certainty.

Defense Motion
State’s Response to Motion

State of CONNECTICUT v. Donald RAYNOR
Case #HHD-CR13-0667367-T

Superior Court of Hartford
March 19, 2015
(Judge Hunchu Kwuk)

Synopsis:

Defense motion for a Porter hearing to exclude firearms evidence as being unreliable based on the 2008 and 2009 NAS Reports. Judge immediately denied motion based on previous court precedence in Connecticut (CT v. Porter and CT v. Legnani) that determined the forensic discipline of Firearms Identification is reliable.

Defense Motion
State’s Objection to Motion
Defense Reply
State’s Opposition to Motion

Gordon Ray LEWIS v. State of TEXAS
No. 02-13-00367-CR

Court of Appeals Second District of Fort Worth
December 18. 2014
(Justice Lee Gabriel)

Synopsis:

Appellate court ruling that upheld previous 2013 firearms evidence consisting of fired cartridge cases identified to unfired ammunition through comparison of magazine marks.  (See original ruling below)

State of FLORIDA v. Bobby MELLAD
Case No. 09-16048-CF10A

Circuit Court of Broward County
October 17, 2014
(Judge Ilona M. Holmes)

Synopsis:

Defense motion for Daubert hearing to exclude firearms evidence based on the lack of reliability of the discipline set forth in the 2009 NAS report. The judge, in a bench ruling, stated that the defense was not entitled to a hearing since the decision as to reliability has already been decided in previous state and Federal rulings. Additionally, the judge opined that there was nothing new in this motion for her to decide differently.

State of COLORADO v. James Eagan HOLMES
Case No. 12CR1522

District Court of Arapahoe County
September 2, 2014
(Judge Carlos A. Samour, Jr.)

Synopsis:

Defense motion for 702 & 403 hearing to exclude firearms evidence based on the 2009 NAS Report regarding the unreliability of testing methods, conclusions based on subjectivity, absolute statements, and examiner qualifications. Judge denied motion to exclude and ruled that 1) the examiner is qualified, 2) that the discipline of Firearms Identification has a long history of being accepted, 3) that the evidence is reliable and relevant, and 4) that expert testimony will not unfairly prejudice the jury.

Motion
Ruling

U.S. and PEOPLE OF THE VIRGIN ISLANDS  v. Elvin WRENSFORD and Craig MULLER
Criminal Action No. 2013-0003

District Court of the Virgin Islands, Division of Saint Croix
July 28, 2014
(Judge Wilma A. Lewis)

Synopsis:

Defense motion for Daubert hearing to exclude firearms evidence, of fired bullets and cartridge cases identified to a recovered pistol, based on the unreliability of the testing methods, the conclusion subjectivity, and examiner qualifications. Judge denied motion to exclude and ruled that the examiner is qualified to give evidence, that the discipline of Firearms Identification has a testable hypothesis and that the methodology is reliable. Judge also opined that the concerns regarding subjectivity of conclusions “do not tip the scales against admissibility”.

State of TEXAS v. Cornelius Milan HARPER
Cause #11DCR056513

District Court of Bend County
May 15, 2014
(Judge James H. Shomake)

Synopsis:

Defense motion for Daubert hearing to exclude firearms evidence, of fired bullets and cartridge cases identified to a recovered pistol, based on the lack of reliability and subjective basis of conclusions as per the 2009 NAS report.  Judge denied motion to exclude but limited conclusion basis from “practical certainty” to that of “…a high degree of confidence…”.

Motion
Defense Expert Testimony

State of ARIZONA v. Bryan Peter FOSHAY
Criminal No. CR-20124578-001

Superior Court of Pima County
January 13, 2014
(Judge Jane L. Eikleberry)

Synopsis:

Defense motion for Daubert hearing to exclude firearms evidence of a fired bullet identified to a pistol with the use of an unreliable supplemental, enhancement technique using 3D confocal microscopy.

Judge denied motion to exclude and opined that 1) the examiner in this matter is qualified, 2) that his testimony is the product of reliable principles and methods, and 3) that the use of 3D confocal microscopy has been adequately validated.

Defense Motion
Government’s Response

State of MARYLAND v. Kobina Ebu ABRUQUAH
Case #CT121375X

Circuit Court of Prince George’s County, Maryland
December 12, 2013
(Judge Michael R. Pearson)

Synopsis:

Government’s motion to exclude defense firearm experts to testify at trial on basis that they are not qualified experts in the discipline of Firearms-Toolmark Identification. This motion stated that two defense witnesses should be excluded due to the fact that neither witness works, nor has worked, in the firearms field; nor have they conducted any independent testing in this particular case, which involved five bullets identified as having been fired from a revolver. Judge upheld Government’s motion, in a bench ruling, and excluded both defense witnesses.

Ruling

State of FLORIDA v. Shawn Emmanuel RICHARDSON
Case #11-1858CFA

18^th Judicial Circuit for Seminole County
September 10, 2013
(Judge John D. Galluzzo)

Synopsis:

Defense motion for Daubert Hearing to exclude firearms evidence. Judge ruled that the methodology employed in Firearms Identification is reliable. Judge also ruled that the examiner may testify that the cartridge cases were fired from a particular firearm to a “reasonable degree of ballistic certainty”, but cannot testify that there is a match to an exact statistical certainty.

Tobin Testimony Transcript    
Tobin Video Transcript    
Tobin Video Transcript Part 2

State of TEXAS v. Gordon Ray LEWIS
Cause No. CR12234

355th District Court, Hood County
June 10, 2013
(Judge Ralph H. Walton, Jr.)

Synopsis:

Defense motion for Kelly/Daubert Hearing to suppress firearms results of cartridge cases identified as having been marked by the same ammunition magazine (lip marks). The judge denied defense motion, in a bench ruling, to suppress and ruled that the discipline, the methodology used and the examiner’s competency are reliable. Note: This ruling reversed a 2002 state appellate court ruling (Texas v. Sexton) on the same type of firearms evidence.  

Defense Pretrial Memo   
Defense Pretrial Memo II         
Texas DPS FA/TM PP Presentation

U.S. v. Lashaun J. CASEY
Crim. No. 05-277 (ADC)

U.S. District Court of Puerto Rico
March 12, 2013
(Judge Aida M. Delgado-Colón)

Synopsis:

Defense motion for Daubert hearing to limit firearms evidence of a fired bullet identified to a recovered firearm based on expert’s statement of “100% certainty,” citing other district court decisions that limited similar testimony following the 2008 and 2009 NAS reports.  Judge denied motion and declined to follow sister courts, instead opting to allow “the unfettered testimony of qualified ballistics experts.”

U.S. v. Jermaine DORE and Dwayne BARRETT
Criminal No. 12 Cr. 45 (RJS)

Southern District of New York
March 11, 2013
(Judge Richard J. Sullivan)

Synopsis:

Daubert ruling limiting the scope firearms evidence testimony as the judge ruled that the government: 1) did not adequately establish ballistics (sic) ID as a science, 2) failed to show that the underlying theory was empirically proven, 3) did not establish a reliable basis for an identification, and 4) that the government’s witness was precluded from stating any level of certainty to the examination conclusions. Judge also ruled that the Government’s expert could testify to his results, but only state his opinion as to fired cartridge cases being fired from the same firearm.

State of MARYLAND v. Brandon JACKSON-GREEN
Criminal Number 120820

Circuit Court of Montgomery County
March 7, 2013
(Judge  David Boynton)

Synopsis:

Defense motion for Frye-Reed hearing to limit the scope of firearms testimony evidence.  Based on 2009 NAS Report, defense contended that firearms testimony could not be referred to as a science but only as a method, and that the expert witness could not testify to the general basis of his conclusions as to “. a reasonable degree of scientific certainty.”. Judge denied motion, in an oral ruling, and opined that Firearms ID can be called a science and that the basis for firearms conclusions can be stated as to a reasonable degree of scientific certainty. 

Government Reply to Motion

U.S. v. John Charles MCCLUSKEY
Case No. 10-2734 JCH

District of New Mexico
February 7, 2013 (Filed date)
(Judge Judith C. Herrera)

Synopsis:

Defense motion to exclude firearms evidence based on the assertion that FA/TM ID has not been adequately validated and the methods used were not reliably applied. Judge denied motion to exclude and concluded that FA ID is admissible under Rule 702 and Daubert.

Murdock Transcript Pt. 1
Murdock Transcript Pt. 2     
Defense Motion to Exclude Firearms Evidence
US Response to Defense Motion

State of FLORIDA v. Todd BUCHANAN
Case No. 48-2009-CF-13383-O

Ninth Judicial Circuit Court of Orange County
November 27, 2012
(Judge Marc L. Lubet)

Synopsis

Defense motion for Frye Hearing to exclude firearms evidence as being unreliable was denied  by judge who cited a very recent similar State ruling (Florida v. King), as well as the long history of court acceptance on the reliability of Firearm Identification. However, judge allowed defense expert to testify during trial with his transcript attached.

U.S. v. Clifford D. JACKSON and Clifford DURHAM
Case No. 1:11-CR-411-WSD

Northern District of Georgia
July 25, 2012
(Judge William S. Duffy)

Synopsis:

Defense motion for Daubert Hearing to exclude firearms evidence based on the assertion that FA/TM ID has not been adequately validated. Judge denied motion to exclude, but limited the scope of the conclusion to say “the comparison results in similarities that are consistent with having been fired from the same weapon [sic]”

Tobin Transcript
Tobin PowerPoint Presentation

U.S. v. Joseph D. THOMAS
Case No. 09-CF-1572, 09-CF-1584 and 09-CF-1585

District of Columbia Court of Appeals
June 22, 2012
(Judge Herbert B. Dixon, Jr.)

Synopsis:

Appellate Court review of defense motion to reverse earlier conviction judgment based on the 2009 NRC/NAS Report, which implies that the ballistic (sic) pattern matching method used in Firearms ID is no longer accorded general acceptance under Frye. The Court affirmed the admissibility of Firearms Identification and opined that the NRC/NAS Report is broad based, covering a variety of forensic disciplines that reaches no definite conclusions and which includes no independent examination of the challenged methodology.  

Note: Original ruling caption dated 9/4/09.

State of ARIZONA v. Joseph Javier ROMERO
Case No. CR-20103531-001

Superior Court of Pima County
June 1, 2012
(Judge Deborah Bernini)

Synopsis:

Defense motion for Rule 702 Hearing to exclude firearms evidence based partly on the 2009 NAS Report that FA ID lacks clearly defined protocols, that proficiency testing not stringent and that human bias is possible. Judge denied motion to exclude and ruled that FA ID is reliable and admissible even under Arizona’s newly adopted Daubert standard.

State of ARIZONA v. Anthony Matthew PENA
Case No. CR2009-117226-001 DT

Superior Court of Maricopa County
June 1, 2012
(Judge Robert E. Miles)

Synopsis:

Defense motion for a Rule 702 evidentiary hearing to exclude Firearms Identification Conclusion Testimony based on the State’s inability to satisfy the requisite foundation for admissibility under Daubert. Judge denied motion to exclude and ruled that:

1. the expert witness’ qualifications satisfy the criteria of Rule 702,
2. that the methods used are reliable as they have been tested and are generally accepted, and
3. that these methods have been reliably applied in this matter.

State of CALIFORNIA v. Brad Robert MILLER
Case No. 62-98243

Superior Court of California, Placer County
May 7, 2012
(Judge Mark S. Curry)

Synopsis:

Government’s motion, in 402 evidentiary hearing, to exclude defense expert witness testimony. Court upheld this motion to exclude defense expert witness. Judge opined that:

1. defense witness is a statistician and because the Government’s firearm’s expert will not be giving a numerical or statistical probability, her expertise is not relevant; and
2. the defense expert’s personal opinion that the firearm method of identification is not good science is not relevant.    

See hearing information on bullets below.

State of CALIFORNIA v. Roger KNIGHT      
Case No. LA067366

Superior Court of California, Los Angeles County
April 17, 2012
(Judge Michael Jesic)

Synopsis:

Defense motion for Kelly-Frye hearing to exclude or limit conclusion of firearms evidence that consisted of fired cartridge case identified to a particular firearm.

Judge denied motion to exclude and underscored cited reference by defense expert that there is nothing wrong with firearms evidence as long as certain precautions were taken to make sure they were done properly.

Defense Motion to Exclude
Testimony/Judge’s Ruling

State of ARIZONA v. William Wayne MACUMBER

Board of Executive Clemency
Phoenix, Arizona
March 19, 2012

Synopsis:

State clemency hearing to determine defendant’s request for commutation of a life sentence was convened in March, 2012. The basis for this clemency hearing was that the original firearms examination results were flawed. The defendant presented three affidavits in support of these claims. The Board of Executive Clemency denied defendant’s request for commutation with no formal opinion issued. 

Macumber Summary
Tobin Affidavit   
Nixon Affidavit   
Saks Affidavit
Haag Basic Firearms ID PPS   
Haag Cartridge Case Marks PPS   
Haag Ejector Marks PPS

U.S. v. Nelson OTERO and Maxcime CAGAN
Criminal No. 11-23 (SRC)

U.S. District Court of New Jersey
March 15, 2012
(Judge Stanley R. Chesler)

Synopsis:

Defense motion for Daubert Hearing to exclude firearms evidence as being unreliable.
Judge denied motion to exclude, ruling that firearm examination opinion is based on reliable methodology, and that the underlying theory of Firearms Identification is generally accepted as a reliable method among professional examiners. Judge also provided an opinion regarding the Court’s use of experienced-based expert testimony.

State of CALIFORNIA v. Brad Robert MILLER
Case No. 62-98243

Superior Court of California, Placer County
February 17, 2012
(Judge Mark S. Curry)

Synopsis:

Defense motion for Kelly-Frye hearing to exclude or limit conclusion of firearms evidence that consisted of fired bullets identified to a particular firearm. Judge denied motion to exclude or limit and opined the following:

1. It is debatable whether a Kelly is required given that the science of identifying bullets by tool marks is not new to science.
2. The Government already proposed that their expert will testify as to the practical certainty of the firearms examination results and not to absolute certainty.
3. That the methods used for determining a match (identification) are reliable and generally accepted under the Kelly standard.
4. That the expert will be able to express his opinion as one of practical impossibility.   

See hearing information on cartridge cases above.

State of FLORIDA v. Michael L. KING
Case No. SC09-2421*

State Supreme Court of Florida, Sarasota County
February 9, 2012
(Judge Dino G. Economou)

Synopsis:

State Supreme Court reviewed defense motion for Frye Hearing to exclude firearms results of identified cartridge cases being fired from same firearm (no gun comparison). Court denied motion to exclude and opined that “in light of this well documented history of tool-mark (sic) identification over the last century, we conclude that this procedure is not new or novel and, therefore, the trial court properly declined to conduct a Frye Hearing”.     

*Parallel citations: 2012-WL-39963 and 37 Fla. L. Weekly S103

U.S. v. Louis MCINTOSH, et al
No. S2-11-CR-500 (KMK)

Southern District of New York
February 8, 2012
(Judge Kenneth M. Karas)

Synopsis:

Defense motion for Daubert Hearing to exclude firearms evidence based on the 2009 NAS Report conclusion that “FA TM ID is not scientific.” Judge denied defense motion, in bench ruling, to exclude firearms evidence after reviewing Government’s reply without any expert witness testimony.

Defense Motion Pt. 1, Pt. 2, Pt. 3
Government Response

State of CALIFORNIA v. Joseph BLACKNELL
Case No. 5-110816-6

Superior Court for County of Contra Costa
January 13, 2012
(Judge Thomas M. Maddock)

Synopsis:

Defense motion for Kelly-Frye hearing to exclude firearms evidence of identified fired cartridge cases based on the 2009 NAS Report. Judge denied motion to exclude evidence ruling that this type of examination has shown longstanding reliability in his review of at least ten California Supreme Court cases in the last six months. Judge also denied defense motion to limit the scope of the examiner’s opinion ” with regard to how absolute the identification is”.

Testimony of Defense Expert Spiegelman
Spiegelman Affidavit
Carriquiry Affidavit

State of KANSAS v. Antwon PIERCE
Case No. 10-CR-383

District Court of Saline County, Kansas
December 1, 2011
(Judge Rene S. Young)

Synopsis:

Defense motion for Frye Hearing to exclude firearms testimony, of identified fired cartridge cases found at a scene, as this evidence is not generally accepted as reliable in the particular scientific field.  Judge denied motion to exclude evidence stating that FA/TM ID was generally accepted in the field of forensic science. Judge also ruled that scientific opinions in this field are generally accepted as reliable and based upon a scientifically valid methodology.

Court Ruling Pt. 1
Court Ruling Pt. 2

State of INDIANA v. Desmond TURNER
Case #49S00-0912-CR-565

Indiana Supreme Court
September 28, 2011
(Justice Robert D. Rucker)

Synopsis:

State Supreme Court review upholding original Daubert admissibility ruling in same captioned matter (Case #49G02-0606-MR-101336) as to the reliability of Firearms and Toolmark Identification.  Note: This review has mandatory and exclusive jurisdiction over this appeal.

State of CALIFORNIA v. Joseph James MELCHER
Case No. A125507

Court of Appeals of California, First Appellate District, Division Four
September 23, 2011
(Judge Timothy A. Reardon)

Synopsis:

Appellate Court review of defense motion to reverse earlier conviction judgment as the State’s firearms expert witness’ form of testimony was improper. The Court reaffirmed the original conviction judgment and opined that the use of phrases, such as “practical certainty”, “considered practically impossible” to support or describe the meaning of an identification conclusion were not prejudicial and did not render the appellant’s trial arbitrary or fundamentally unfair.

U.S. v. Ricardo JONES
Case No. 08-CF-716

District of Columbia Court of Appeals
September 1, 2011
(Judge Herbert B. Dixon, Jr.)

Synopsis:

Appellate court ruling that determined no Frye hearing was necessary to admit firearms and toolmark evidence. This ruling also stated (Footnote #7) that there was nothing in the 2008 and 2009 NAS Reports that would have changed the Court’s mind in this decision.

State of FLORIDA v. Alwin C. TUMBLIN
Case No. 2004-CF-3127

Circuit Court of Saint Lucie County
August 5, 2011
(Judge Dan Vaughn)

Synopsis:

Defense motion for Frye Hearing to exclude or, in the alternative, limit, testimony and results for firearms evidence of cartridge case and bullet identified to a revolver. This motion based on defense affidavit that stated the lack of reliability of FA TM ID based on the NRC/NAS Reports.  Judge denied motion to exclude after testimony and literature supporting the science was provided. 

Court ruling Pt. 1, Pt. 2

U.S. v. Adrian MENDIOLA, David SANTOS and Albert TAITANO – Transcript
Case No. 10-00037

District Court of Northern Mariana Islands, Garapan, Saipan
May 9, 2011
(Judge John A. Huston)

Synopsis:

Daubert Hearing that involved defense motions to exclude firearm results and testimony of fired shotshells as this evidence is no longer accepted in the relevant scientific and legal communities as concluded in the 2009 NAS Report. Hearing also included Government’s motion to preclude defense expert witness testimony.

Judge denied defense motions to exclude in a bench ruling stating that FA/TM ID was generally accepted in the relevant scientific community. Judge also ruled that Firearms Identification could be stated, but not be stated as “to the exclusion of all others”.  The judge also granted Government’s motion and ruled that the defense expert could not testify as to the reliability of FA TM ID as 1) she is not a Firearms/Toolmark Examiner and 2) that her “bias has the ability to adversely affect” and “has a strong likelihood of misleading and confusing the jury”.

State of NEW YORK v. Jose GUADELUPE
Indictment No. 09-513

State of New York, Orange County Court
April 5, 2011
(Judge Nicholas DeRosa)

Synopsis:

Motion for Frye Hearing to exclude firearms testimony as this evidence is no longer accepted in the relevant scientific and legal communities as concluded in the 2009 NAS Report.

Judge denied motion to exclude, in a bench ruling, stating that FA/TM ID was generally accepted in the relevant scientific community.

State of CALIFORNIA v. Gumaro BAEZ
Case # 560543A

Superior Court of Alameda County
February 17, 2011
(Judge Michael Gaffney)

Synopsis:

Motion for Frye Hearing to exclude firearms testimony as this evidence is no longer accepted in the relevant scientific and legal communities as concluded in the 2009 NAS Report. Judge denied motion to exclude in a bench ruling stating that FA/TM ID was generally accepted in the relevant scientific community.

Ruling Part 1
Ruling Part 2

Commonwealth of MASSACHUSETTS v. Pytou HEANG
Case No. SJC-10376

Appellate Court of Massachusetts
February 15, 2011
(Judge Richard E. Welch, III)

Synopsis:

Defense motion to appeal previous jury verdict judgments on first degree and felony murder charges involving firearms evidence. This motion included excluding or limiting firearms evidence used in this matter. Judge upheld previous verdict by denying motion to exclude firearms evidence but required that:

1. examiner testimony should include some type of documentation to assist the jury in determining fact,
2. the expert must explain the theory underlying his/her opinion, and
3. the examiner’s conclusion should be based on a certainty level that conveys “to a reasonable degree of ballistic certainty”

U.S. v. John LOVE
Case No. 2:09-CR-20317-JPM

Western District Court of Tennessee
February 8, 2011
(Judge Jon P. McCalla)

Synopsis:

Defense motion for a Daubert hearing to exclude firearms evidence on the basis that insufficient examiner documentation and reporting results prevented effective cross examination in violation of the Confrontation Clause. Judge denied motion to exclude stating that there was adequate documentation to satisfy the prongs of Daubert. However, the judge ruled that the examiner could not testify to the absolute or practical certainty of his results. 

State of North Carolina v. Demetrius Dallas HAIRSTON
Case No. 08-CRS-60908

Superior Court of Forsyth County
January 27, 2011
(Judge Anderson D. Cromer)

Synopsis:

Defense motion for 702 hearing to exclude examination testimony of cartridge cases being identified as having been fired in a particular firearm. Basis for this motion to exclude is that the field of FA TM ID has “systemic scientific problems” as cited in the 2009 NAS Report. Judge denied motion to exclude noting that the examiners qualifications and methods of examination were sufficiently reliable as an area of expert testimony.

State of TEXAS v. THAI-AN Huu Nguyen
Court Cause No. F08-45280

283rd Judicial Court of Dallas County
January 24, 2011
(Judge Rick Magnis)

Synopsis:

Defense motion to exclude firearms evidence based on the assertion that FA TM ID is not a science. Judge denied motion to exclude and ruled FA TM ID is reliable and admissible under Daubert, as well as Rule 702 and 705. 

S. Bunch Transcript/Court Ruling Part 1
S. Bunch Transcript/Court Ruling Part 2
S. Bunch Transcript/Court Ruling Part 3
S. Bunch Transcript/Court Ruling Part 4
Defense Motion to Exclude
David LaMagna’s Affidavit

State of MONTANA v. Patrick O. NEISS
Case #DC 14-0627

Montana Thirteenth Judicial District Court
September 9, 2015
(Judge Gregory R. Todd)

Synopsis:

Defense motion for a Rule 702 hearing to exclude firearms evidence as being subjective and lacking scientific foundation based on the 2009 NAS Report and case citations from various state and U.S. courts.  Judge denied motion and admitted firearm evidence conclusions based on practical certainty.

Defense Motion
State’s Response to Motion

State of CONNECTICUT v. Donald RAYNOR
Case #HHD-CR13-0667367-T

Superior Court of Hartford
March 19, 2015
(Judge Hunchu Kwuk)

Synopsis:

Defense motion for a Porter hearing to exclude firearms evidence as being unreliable based on the 2008 and 2009 NAS Reports. Judge immediately denied motion based on previous court precedence in Connecticut (CT v. Porter and CT v. Legnani) that determined the forensic discipline of Firearms Identification is reliable.

Defense Motion
State’s Objection to Motion
Defense Reply
State’s Opposition to Motion

Gordon Ray LEWIS v. State of TEXAS
No. 02-13-00367-CR

Court of Appeals Second District of Fort Worth
December 18. 2014
(Justice Lee Gabriel)

Synopsis:

Appellate court ruling that upheld previous 2013 firearms evidence consisting of fired cartridge cases identified to unfired ammunition through comparison of magazine marks.  (See original ruling below)

State of FLORIDA v. Bobby MELLAD
Case No. 09-16048-CF10A

Circuit Court of Broward County
October 17, 2014
(Judge Ilona M. Holmes)

Synopsis:

Defense motion for Daubert hearing to exclude firearms evidence based on the lack of reliability of the discipline set forth in the 2009 NAS report. The judge, in a bench ruling, stated that the defense was not entitled to a hearing since the decision as to reliability has already been decided in previous state and Federal rulings. Additionally, the judge opined that there was nothing new in this motion for her to decide differently.

State of COLORADO v. James Eagan HOLMES
Case No. 12CR1522

District Court of Arapahoe County
September 2, 2014
(Judge Carlos A. Samour, Jr.)

Synopsis:

Defense motion for 702 & 403 hearing to exclude firearms evidence based on the 2009 NAS Report regarding the unreliability of testing methods, conclusions based on subjectivity, absolute statements, and examiner qualifications. Judge denied motion to exclude and ruled that 1) the examiner is qualified, 2) that the discipline of Firearms Identification has a long history of being accepted, 3) that the evidence is reliable and relevant, and 4) that expert testimony will not unfairly prejudice the jury.

Motion
Ruling

U.S. and PEOPLE OF THE VIRGIN ISLANDS  v. Elvin WRENSFORD and Craig MULLER
Criminal Action No. 2013-0003

District Court of the Virgin Islands, Division of Saint Croix
July 28, 2014
(Judge Wilma A. Lewis)

Synopsis:

Defense motion for Daubert hearing to exclude firearms evidence, of fired bullets and cartridge cases identified to a recovered pistol, based on the unreliability of the testing methods, the conclusion subjectivity, and examiner qualifications. Judge denied motion to exclude and ruled that the examiner is qualified to give evidence, that the discipline of Firearms Identification has a testable hypothesis and that the methodology is reliable. Judge also opined that the concerns regarding subjectivity of conclusions “do not tip the scales against admissibility”.

State of TEXAS v. Cornelius Milan HARPER
Cause #11DCR056513

District Court of Bend County
May 15, 2014
(Judge James H. Shomake)

Synopsis:

Defense motion for Daubert hearing to exclude firearms evidence, of fired bullets and cartridge cases identified to a recovered pistol, based on the lack of reliability and subjective basis of conclusions as per the 2009 NAS report.  Judge denied motion to exclude but limited conclusion basis from “practical certainty” to that of “…a high degree of confidence…”.

Motion
Defense Expert Testimony

State of ARIZONA v. Bryan Peter FOSHAY
Criminal No. CR-20124578-001

Superior Court of Pima County
January 13, 2014
(Judge Jane L. Eikleberry)

Synopsis:

Defense motion for Daubert hearing to exclude firearms evidence of a fired bullet identified to a pistol with the use of an unreliable supplemental, enhancement technique using 3D confocal microscopy.

Judge denied motion to exclude and opined that 1) the examiner in this matter is qualified, 2) that his testimony is the product of reliable principles and methods, and 3) that the use of 3D confocal microscopy has been adequately validated.

Defense Motion
Government’s Response

State of MARYLAND v. Kobina Ebu ABRUQUAH
Case #CT121375X

Circuit Court of Prince George’s County, Maryland
December 12, 2013
(Judge Michael R. Pearson)

Synopsis:

Government’s motion to exclude defense firearm experts to testify at trial on basis that they are not qualified experts in the discipline of Firearms-Toolmark Identification. This motion stated that two defense witnesses should be excluded due to the fact that neither witness works, nor has worked, in the firearms field; nor have they conducted any independent testing in this particular case, which involved five bullets identified as having been fired from a revolver. Judge upheld Government’s motion, in a bench ruling, and excluded both defense witnesses.

Ruling

State of FLORIDA v. Shawn Emmanuel RICHARDSON
Case #11-1858CFA

18^th Judicial Circuit for Seminole County
September 10, 2013
(Judge John D. Galluzzo)

Synopsis:

Defense motion for Daubert Hearing to exclude firearms evidence. Judge ruled that the methodology employed in Firearms Identification is reliable. Judge also ruled that the examiner may testify that the cartridge cases were fired from a particular firearm to a “reasonable degree of ballistic certainty”, but cannot testify that there is a match to an exact statistical certainty.

Tobin Testimony Transcript    
Tobin Video Transcript    
Tobin Video Transcript Part 2

State of TEXAS v. Gordon Ray LEWIS
Cause No. CR12234

355th District Court, Hood County
June 10, 2013
(Judge Ralph H. Walton, Jr.)

Synopsis:

Defense motion for Kelly/Daubert Hearing to suppress firearms results of cartridge cases identified as having been marked by the same ammunition magazine (lip marks). The judge denied defense motion, in a bench ruling, to suppress and ruled that the discipline, the methodology used and the examiner’s competency are reliable. Note: This ruling reversed a 2002 state appellate court ruling (Texas v. Sexton) on the same type of firearms evidence.  

Defense Pretrial Memo   
Defense Pretrial Memo II         
Texas DPS FA/TM PP Presentation

U.S. v. Lashaun J. CASEY
Crim. No. 05-277 (ADC)

U.S. District Court of Puerto Rico
March 12, 2013
(Judge Aida M. Delgado-Colón)

Synopsis:

Defense motion for Daubert hearing to limit firearms evidence of a fired bullet identified to a recovered firearm based on expert’s statement of “100% certainty,” citing other district court decisions that limited similar testimony following the 2008 and 2009 NAS reports.  Judge denied motion and declined to follow sister courts, instead opting to allow “the unfettered testimony of qualified ballistics experts.”

U.S. v. Jermaine DORE and Dwayne BARRETT
Criminal No. 12 Cr. 45 (RJS)

Southern District of New York
March 11, 2013
(Judge Richard J. Sullivan)

Synopsis:

Daubert ruling limiting the scope firearms evidence testimony as the judge ruled that the government: 1) did not adequately establish ballistics (sic) ID as a science, 2) failed to show that the underlying theory was empirically proven, 3) did not establish a reliable basis for an identification, and 4) that the government’s witness was precluded from stating any level of certainty to the examination conclusions. Judge also ruled that the Government’s expert could testify to his results, but only state his opinion as to fired cartridge cases being fired from the same firearm.

State of MARYLAND v. Brandon JACKSON-GREEN
Criminal Number 120820

Circuit Court of Montgomery County
March 7, 2013
(Judge  David Boynton)

Synopsis:

Defense motion for Frye-Reed hearing to limit the scope of firearms testimony evidence.  Based on 2009 NAS Report, defense contended that firearms testimony could not be referred to as a science but only as a method, and that the expert witness could not testify to the general basis of his conclusions as to “. a reasonable degree of scientific certainty.”. Judge denied motion, in an oral ruling, and opined that Firearms ID can be called a science and that the basis for firearms conclusions can be stated as to a reasonable degree of scientific certainty. 

Government Reply to Motion

U.S. v. John Charles MCCLUSKEY
Case No. 10-2734 JCH

District of New Mexico
February 7, 2013 (Filed date)
(Judge Judith C. Herrera)

Synopsis:

Defense motion to exclude firearms evidence based on the assertion that FA/TM ID has not been adequately validated and the methods used were not reliably applied. Judge denied motion to exclude and concluded that FA ID is admissible under Rule 702 and Daubert.

Murdock Transcript Pt. 1
Murdock Transcript Pt. 2     
Defense Motion to Exclude Firearms Evidence
US Response to Defense Motion

State of FLORIDA v. Todd BUCHANAN
Case No. 48-2009-CF-13383-O

Ninth Judicial Circuit Court of Orange County
November 27, 2012
(Judge Marc L. Lubet)

Synopsis

Defense motion for Frye Hearing to exclude firearms evidence as being unreliable was denied  by judge who cited a very recent similar State ruling (Florida v. King), as well as the long history of court acceptance on the reliability of Firearm Identification. However, judge allowed defense expert to testify during trial with his transcript attached.

U.S. v. Clifford D. JACKSON and Clifford DURHAM
Case No. 1:11-CR-411-WSD

Northern District of Georgia
July 25, 2012
(Judge William S. Duffy)

Synopsis:

Defense motion for Daubert Hearing to exclude firearms evidence based on the assertion that FA/TM ID has not been adequately validated. Judge denied motion to exclude, but limited the scope of the conclusion to say “the comparison results in similarities that are consistent with having been fired from the same weapon [sic]”

Tobin Transcript
Tobin PowerPoint Presentation

U.S. v. Joseph D. THOMAS
Case No. 09-CF-1572, 09-CF-1584 and 09-CF-1585

District of Columbia Court of Appeals
June 22, 2012
(Judge Herbert B. Dixon, Jr.)

Synopsis:

Appellate Court review of defense motion to reverse earlier conviction judgment based on the 2009 NRC/NAS Report, which implies that the ballistic (sic) pattern matching method used in Firearms ID is no longer accorded general acceptance under Frye. The Court affirmed the admissibility of Firearms Identification and opined that the NRC/NAS Report is broad based, covering a variety of forensic disciplines that reaches no definite conclusions and which includes no independent examination of the challenged methodology.  

Note: Original ruling caption dated 9/4/09.

State of ARIZONA v. Joseph Javier ROMERO
Case No. CR-20103531-001

Superior Court of Pima County
June 1, 2012
(Judge Deborah Bernini)

Synopsis:

Defense motion for Rule 702 Hearing to exclude firearms evidence based partly on the 2009 NAS Report that FA ID lacks clearly defined protocols, that proficiency testing not stringent and that human bias is possible. Judge denied motion to exclude and ruled that FA ID is reliable and admissible even under Arizona’s newly adopted Daubert standard.

State of ARIZONA v. Anthony Matthew PENA
Case No. CR2009-117226-001 DT

Superior Court of Maricopa County
June 1, 2012
(Judge Robert E. Miles)

Synopsis:

Defense motion for a Rule 702 evidentiary hearing to exclude Firearms Identification Conclusion Testimony based on the State’s inability to satisfy the requisite foundation for admissibility under Daubert. Judge denied motion to exclude and ruled that:

1. the expert witness’ qualifications satisfy the criteria of Rule 702,
2. that the methods used are reliable as they have been tested and are generally accepted, and
3. that these methods have been reliably applied in this matter.

State of CALIFORNIA v. Brad Robert MILLER
Case No. 62-98243

Superior Court of California, Placer County
May 7, 2012
(Judge Mark S. Curry)

Synopsis:

Government’s motion, in 402 evidentiary hearing, to exclude defense expert witness testimony. Court upheld this motion to exclude defense expert witness. Judge opined that:

1. defense witness is a statistician and because the Government’s firearm’s expert will not be giving a numerical or statistical probability, her expertise is not relevant; and
2. the defense expert’s personal opinion that the firearm method of identification is not good science is not relevant.    

See hearing information on bullets below.

State of CALIFORNIA v. Roger KNIGHT      
Case No. LA067366

Superior Court of California, Los Angeles County
April 17, 2012
(Judge Michael Jesic)

Synopsis:

Defense motion for Kelly-Frye hearing to exclude or limit conclusion of firearms evidence that consisted of fired cartridge case identified to a particular firearm.

Judge denied motion to exclude and underscored cited reference by defense expert that there is nothing wrong with firearms evidence as long as certain precautions were taken to make sure they were done properly.

Defense Motion to Exclude
Testimony/Judge’s Ruling

State of ARIZONA v. William Wayne MACUMBER

Board of Executive Clemency
Phoenix, Arizona
March 19, 2012

Synopsis:

State clemency hearing to determine defendant’s request for commutation of a life sentence was convened in March, 2012. The basis for this clemency hearing was that the original firearms examination results were flawed. The defendant presented three affidavits in support of these claims. The Board of Executive Clemency denied defendant’s request for commutation with no formal opinion issued. 

Macumber Summary
Tobin Affidavit   
Nixon Affidavit   
Saks Affidavit
Haag Basic Firearms ID PPS   
Haag Cartridge Case Marks PPS   
Haag Ejector Marks PPS

U.S. v. Nelson OTERO and Maxcime CAGAN
Criminal No. 11-23 (SRC)

U.S. District Court of New Jersey
March 15, 2012
(Judge Stanley R. Chesler)

Synopsis:

Defense motion for Daubert Hearing to exclude firearms evidence as being unreliable.
Judge denied motion to exclude, ruling that firearm examination opinion is based on reliable methodology, and that the underlying theory of Firearms Identification is generally accepted as a reliable method among professional examiners. Judge also provided an opinion regarding the Court’s use of experienced-based expert testimony.

State of CALIFORNIA v. Brad Robert MILLER
Case No. 62-98243

Superior Court of California, Placer County
February 17, 2012
(Judge Mark S. Curry)

Synopsis:

Defense motion for Kelly-Frye hearing to exclude or limit conclusion of firearms evidence that consisted of fired bullets identified to a particular firearm. Judge denied motion to exclude or limit and opined the following:

1. It is debatable whether a Kelly is required given that the science of identifying bullets by tool marks is not new to science.
2. The Government already proposed that their expert will testify as to the practical certainty of the firearms examination results and not to absolute certainty.
3. That the methods used for determining a match (identification) are reliable and generally accepted under the Kelly standard.
4. That the expert will be able to express his opinion as one of practical impossibility.   

See hearing information on cartridge cases above.

State of FLORIDA v. Michael L. KING
Case No. SC09-2421*

State Supreme Court of Florida, Sarasota County
February 9, 2012
(Judge Dino G. Economou)

Synopsis:

State Supreme Court reviewed defense motion for Frye Hearing to exclude firearms results of identified cartridge cases being fired from same firearm (no gun comparison). Court denied motion to exclude and opined that “in light of this well documented history of tool-mark (sic) identification over the last century, we conclude that this procedure is not new or novel and, therefore, the trial court properly declined to conduct a Frye Hearing”.     

*Parallel citations: 2012-WL-39963 and 37 Fla. L. Weekly S103

U.S. v. Louis MCINTOSH, et al
No. S2-11-CR-500 (KMK)

Southern District of New York
February 8, 2012
(Judge Kenneth M. Karas)

Synopsis:

Defense motion for Daubert Hearing to exclude firearms evidence based on the 2009 NAS Report conclusion that “FA TM ID is not scientific.” Judge denied defense motion, in bench ruling, to exclude firearms evidence after reviewing Government’s reply without any expert witness testimony.

Defense Motion Pt. 1, Pt. 2, Pt. 3
Government Response

State of CALIFORNIA v. Joseph BLACKNELL
Case No. 5-110816-6

Superior Court for County of Contra Costa
January 13, 2012
(Judge Thomas M. Maddock)

Synopsis:

Defense motion for Kelly-Frye hearing to exclude firearms evidence of identified fired cartridge cases based on the 2009 NAS Report. Judge denied motion to exclude evidence ruling that this type of examination has shown longstanding reliability in his review of at least ten California Supreme Court cases in the last six months. Judge also denied defense motion to limit the scope of the examiner’s opinion ” with regard to how absolute the identification is”.

Testimony of Defense Expert Spiegelman
Spiegelman Affidavit
Carriquiry Affidavit

State of KANSAS v. Antwon PIERCE
Case No. 10-CR-383

District Court of Saline County, Kansas
December 1, 2011
(Judge Rene S. Young)

Synopsis:

Defense motion for Frye Hearing to exclude firearms testimony, of identified fired cartridge cases found at a scene, as this evidence is not generally accepted as reliable in the particular scientific field.  Judge denied motion to exclude evidence stating that FA/TM ID was generally accepted in the field of forensic science. Judge also ruled that scientific opinions in this field are generally accepted as reliable and based upon a scientifically valid methodology.

Court Ruling Pt. 1
Court Ruling Pt. 2

State of INDIANA v. Desmond TURNER
Case #49S00-0912-CR-565

Indiana Supreme Court
September 28, 2011
(Justice Robert D. Rucker)

Synopsis:

State Supreme Court review upholding original Daubert admissibility ruling in same captioned matter (Case #49G02-0606-MR-101336) as to the reliability of Firearms and Toolmark Identification.  Note: This review has mandatory and exclusive jurisdiction over this appeal.

State of CALIFORNIA v. Joseph James MELCHER
Case No. A125507

Court of Appeals of California, First Appellate District, Division Four
September 23, 2011
(Judge Timothy A. Reardon)

Synopsis:

Appellate Court review of defense motion to reverse earlier conviction judgment as the State’s firearms expert witness’ form of testimony was improper. The Court reaffirmed the original conviction judgment and opined that the use of phrases, such as “practical certainty”, “considered practically impossible” to support or describe the meaning of an identification conclusion were not prejudicial and did not render the appellant’s trial arbitrary or fundamentally unfair.

U.S. v. Ricardo JONES
Case No. 08-CF-716

District of Columbia Court of Appeals
September 1, 2011
(Judge Herbert B. Dixon, Jr.)

Synopsis:

Appellate court ruling that determined no Frye hearing was necessary to admit firearms and toolmark evidence. This ruling also stated (Footnote #7) that there was nothing in the 2008 and 2009 NAS Reports that would have changed the Court’s mind in this decision.

State of FLORIDA v. Alwin C. TUMBLIN
Case No. 2004-CF-3127

Circuit Court of Saint Lucie County
August 5, 2011
(Judge Dan Vaughn)

Synopsis:

Defense motion for Frye Hearing to exclude or, in the alternative, limit, testimony and results for firearms evidence of cartridge case and bullet identified to a revolver. This motion based on defense affidavit that stated the lack of reliability of FA TM ID based on the NRC/NAS Reports.  Judge denied motion to exclude after testimony and literature supporting the science was provided. 

Court ruling Pt. 1, Pt. 2

U.S. v. Adrian MENDIOLA, David SANTOS and Albert TAITANO – Transcript
Case No. 10-00037

District Court of Northern Mariana Islands, Garapan, Saipan
May 9, 2011
(Judge John A. Huston)

Synopsis:

Daubert Hearing that involved defense motions to exclude firearm results and testimony of fired shotshells as this evidence is no longer accepted in the relevant scientific and legal communities as concluded in the 2009 NAS Report. Hearing also included Government’s motion to preclude defense expert witness testimony.

Judge denied defense motions to exclude in a bench ruling stating that FA/TM ID was generally accepted in the relevant scientific community. Judge also ruled that Firearms Identification could be stated, but not be stated as “to the exclusion of all others”.  The judge also granted Government’s motion and ruled that the defense expert could not testify as to the reliability of FA TM ID as 1) she is not a Firearms/Toolmark Examiner and 2) that her “bias has the ability to adversely affect” and “has a strong likelihood of misleading and confusing the jury”.

State of NEW YORK v. Jose GUADELUPE
Indictment No. 09-513

State of New York, Orange County Court
April 5, 2011
(Judge Nicholas DeRosa)

Synopsis:

Motion for Frye Hearing to exclude firearms testimony as this evidence is no longer accepted in the relevant scientific and legal communities as concluded in the 2009 NAS Report.

Judge denied motion to exclude, in a bench ruling, stating that FA/TM ID was generally accepted in the relevant scientific community.

State of CALIFORNIA v. Gumaro BAEZ
Case # 560543A

Superior Court of Alameda County
February 17, 2011
(Judge Michael Gaffney)

Synopsis:

Motion for Frye Hearing to exclude firearms testimony as this evidence is no longer accepted in the relevant scientific and legal communities as concluded in the 2009 NAS Report. Judge denied motion to exclude in a bench ruling stating that FA/TM ID was generally accepted in the relevant scientific community.

Ruling Part 1
Ruling Part 2

Commonwealth of MASSACHUSETTS v. Pytou HEANG
Case No. SJC-10376

Appellate Court of Massachusetts
February 15, 2011
(Judge Richard E. Welch, III)

Synopsis:

Defense motion to appeal previous jury verdict judgments on first degree and felony murder charges involving firearms evidence. This motion included excluding or limiting firearms evidence used in this matter. Judge upheld previous verdict by denying motion to exclude firearms evidence but required that:

1. examiner testimony should include some type of documentation to assist the jury in determining fact,
2. the expert must explain the theory underlying his/her opinion, and
3. the examiner’s conclusion should be based on a certainty level that conveys “to a reasonable degree of ballistic certainty”

U.S. v. John LOVE
Case No. 2:09-CR-20317-JPM

Western District Court of Tennessee
February 8, 2011
(Judge Jon P. McCalla)

Synopsis:

Defense motion for a Daubert hearing to exclude firearms evidence on the basis that insufficient examiner documentation and reporting results prevented effective cross examination in violation of the Confrontation Clause. Judge denied motion to exclude stating that there was adequate documentation to satisfy the prongs of Daubert. However, the judge ruled that the examiner could not testify to the absolute or practical certainty of his results. 

State of North Carolina v. Demetrius Dallas HAIRSTON
Case No. 08-CRS-60908

Superior Court of Forsyth County
January 27, 2011
(Judge Anderson D. Cromer)

Synopsis:

Defense motion for 702 hearing to exclude examination testimony of cartridge cases being identified as having been fired in a particular firearm. Basis for this motion to exclude is that the field of FA TM ID has “systemic scientific problems” as cited in the 2009 NAS Report. Judge denied motion to exclude noting that the examiners qualifications and methods of examination were sufficiently reliable as an area of expert testimony.

State of TEXAS v. THAI-AN Huu Nguyen
Court Cause No. F08-45280

283rd Judicial Court of Dallas County
January 24, 2011
(Judge Rick Magnis)

Synopsis:

Defense motion to exclude firearms evidence based on the assertion that FA TM ID is not a science. Judge denied motion to exclude and ruled FA TM ID is reliable and admissible under Daubert, as well as Rule 702 and 705. 

S. Bunch Transcript/Court Ruling Part 1
S. Bunch Transcript/Court Ruling Part 2
S. Bunch Transcript/Court Ruling Part 3
S. Bunch Transcript/Court Ruling Part 4
Defense Motion to Exclude
David LaMagna’s Affidavit

U.S. v. Darryl GREEN, et al
Criminal #02-10301-NG

U.S. District Court of Massachusetts
December 20, 2005
(Judge Nancy Gertner)

Synopsis:

Daubert hearing regarding the general scientific reliability of ballistics (sic), and specifically as to the uniqueness of imparted firearm breechface markings on fired cartridge cases. Court ruled that the firearms examiner could testify to examination findings. However, the court limited the examiner’s full opinion because of suspect methodology and protocols used in this particular case.

U.S. v. Amando MONTEIRO, et al
Criminal #03-10329-PBS

U.S. District Court of Massachusetts
November 28, 2005
(Judge Patti B. Saris)

Synopsis:

Daubert hearing regarding the scientific reliability of imparted firearm breechface markings on fired cartridge cases. Court ruled that the scientific principles underlying Firearms and Toolmark Identification, specifically that a firearm can leave unique markings on fired cartridge cases, is reliable. However, the court reserved rendering a full opinion as to the reliability of the methodology and protocols used in this particular case.

U.S. v. Richard HICKS
Case No. 03-40655

U.S. Court of Appeals, Fifth Circuit
December 7, 2004
(Judge Carolyn D. King)

Synopsis:

Appellate Court review of defense motion to exclude firearms results of identified cartridge cases being fired particular firearm. Motion for this appeal partly based on the questionable qualifications of the expert examiner and that the firearms comparison technique (sic) did not meet the criterion for reliability under Daubert. The appeals court upheld the conviction and sentence of the lower court’s earlier decision.

State of FLORIDA v. William FLORES
Case #98-01500
 
13th Judicial Court of Florida
November 17, 2004
(Judge Daniel L. Perry)
 
Synopsis:
 
Motion for Frye hearing which contended that the methods used to identify markings on a fired shotshell wad to a barrel were new or novel. Judge denied motion for Frye hearing ruling that the testing, analytical and quality assurance procedures used were not new, but consistent with acceptable scientific testing.

U.S. v. Aaron FOSTER, Michael TAYLOR and Keon MOSES
Criminal #CCB-02-0410

U.S. District Court for the Northern District of Maryland, Baltimore, Maryland
February 23, 2004
(Judge Catherine C. Blake)

Synopsis:

Daubert hearing in which the defense challenged the science of firearms identification, calling it “pseudo-science,” and questioned the ability of a firearms examiner to associate cartridge cases recovered from two separate murder scenes when no firearm was recovered. The defense claimed that an examiner is far more likely to confuse sub-class characteristics with individual characteristics when there isn’t a “known” gun available, and is therefore more likely to make a misidentification. After hearing the Daubert testimony of three firearms examiners, the court ruled against the defense motion, stating that firearms identification satisfied the requirements of Daubert, even in no-gun cases such as this.

U.S. v. Aaron DeMarco FOSTER
Criminal No. CCB-02-0410

February 2004

Synopsis:

Court ruled favorably on the admissibility of the Firearms Evidence.

Her Majesty THE QUEEN v. Vytautas BALTRUSAITIS
Court #327/95CR

Ontario, Canada, Superior Court (Pre-Trial Ruling #9)
June 2003
(Judge J. Thompson)

Synopsis:

Mohan (Canadian Daubert) hearing on the scientific reliability of a firearms examination that identified two fired ammunition components as having been cycled through the action of the same firearm, i.e. no gun examination. Judge ruled that this evidence is admissible and that this type of (no-gun) examination is reliable even in the absence of a firearm if the origination or individuality of the toolmarks can be substantiated.

Note: During this hearing, the defense did not dispute, but acknowledged that the science of the Firearms/Toolmark Identification discipline is valid.

U.S. v. Michael J. O’DRISCOLL
Criminal No. 4:CR-01-277

February 2003

Synopsis:

Court ruled favorably on the admissibility of the Firearms Evidence.

U.S. v. Corey A. MOORE
Case #F-10928-94

Superior Court of the District of Columbia
February 14, 1997
(Judge Susan Winfield)

Synopsis:

Frye hearing where the defense motion contended that bunter tool identifications, on cartridge headstamps, are not generally accepted in the scientific community. The Frye ruling supported a previous ruling that bunter tool identifications on cartridge case headstamps are generally accepted in the scientific community.

Note: Copy of transcript located in AFTE Journal, Vol. 30, #1, Winter, 1998, pp. 187-251.

Kolie Lanar McADOO, Petitioner v. Dewayne BURTON, Respondent
Case No. 15-12579

U.S. District Court, E.D. Michigan, Southern Division
July 16, 2018
(Judge Mark A. Goldsmith)

Synopsis:

Petition for Writ of Habeus Corpus based (in part) on claim of unfair trial due to the admission of toolmark evidence that fails to meet Michigan rules of evidence requirements and defense counsel’s failure to move for a Daubert hearing.  Judge reviewed appellate court opinion that there was no proof of plain error nor ineffective defense counsel in lower court.  Judge stated that the toolmark testimony “appeared to be the product of reliable principles and methods,” and opined that its admission did not render Petitioner’s trial fundamentally unfair nor violate the Petitioner’s right to due process.  Petition was denied.

U.S. v. Kevin William HARPHAM
Case No. CR-11-0042-JLQ

Eastern District of Washington State
August 26, 2011
(Judge Justin L. Quackenbush)

Synopsis:

Motion for Daubert Hearing to exclude toolmark evidence of a crimping plier identified in the fabrication of an improvised explosive device. Judge determined that toolmarks are reliable and also opined that:

1. Tool Mark Identification, like other “match” evidence such as shoe prints and handwriting, is not a novel scientific technique and has long been used an [an] investigative tool.
2. The lack of universal standards or data banks of plier marks does not disqualify this evidence.
3. The lack of consensus amongst scientists and the undisputed notion that there is room for improvement in the area of tool mark identification does not mean that such evidence cannot minimally satisfy Daubert.

State of FLORIDA v. Gary Michael HILTON
Case No. 2008-CF-697

Circuit Court for Leon County Florida
January 12, 2011
(Judge James C. Hankinson)

Synopsis:

Defense motion for Frye hearing to exclude toolmark evidence, which consisted of the identification of a knife cutting a tire. The basis of this motion was that the comparative methodology used is not generally accepted and that the examiner had insufficient training, experience and expertise in the field of Toolmark Identification. Judge denied defense motion to exclude and opined that:

1. the examiner has sufficient experience and expertise to render a qualified opinion,
2. that the underlying scientific principle and testing procedures in Toolmark ID are generally accepted in the scientific community, and
3. that the defense expert was a biased witness attempting to advocate a cause rather than being an objective witness; as her opinion is not generally accepted in the scientific community.

Defense Motion To Exclude

U.S. v. Billi Jo SMALLWOOD
Case No. 5:08-CR-38-TBR

District Court, Western District of Kentucky
October 12, 2010
(Judge Thomas B. Russell)

Synopsis:

Defense motion for Daubert hearing to exclude toolmark evidence was granted as the judge opined the following basis for this ruling.

1. The examiner did not have the skill and experience with the particular tool in question to reliably make the required subjective determination.
2. There are important distinctions between firearms and toolmark identification and these distinctions tend to make toolmark identification particularly unreliable.
3. Firearms ID has made greater strides than Toolmark ID toward reliability as firearms use an automated database (IBIS) to make its finding more objective.

Gerber Testimony Transcript

U.S. v. Alton DAVIS, et al
Case #06-Cr-911 (WHP)

U.S. District Court, Southern District of New York
April 26, 2010
(Judge William H. Pauley III)

Synopsis:

Defense motion for Daubert hearing to exclude toolmark evidence as being unreliable.  Judge denied motion to exclude toolmark evidence, in bench ruling, and opined that:

The methodology used in the examination of manufacturing toolmarks was established by expert testimony, that Toolmark ID met the factors set forth under the prongs of Daubert and defense arguments went to weight, not admissibility of the evidence.

Greg Klees Daubert Testimony

State of DELAWARE v. James COOKE
Case ID# 0506005981

State Supreme Court of Delaware
November 6, 2007
(Judge Jerome O. Herlihy)

Synopsis:

Motion for a Daubert hearing in which an absence of toolmarks conclusion, by a Toolmark Examiner, was contested as being unreliable as this type of examination should be made by a metallurgist. The judge denied defense request for a Daubert Hearing after a review of the examiner’s credentials.

State of FLORIDA v. Jerry Lane ROGERS

May 10, 2002

Motion before the court to limit the testimony of the state’s firearms expert.

Judge’s response to Motion in Limine order of May 10, 2002

State of WEST VIRGINIA v. Robin LADD
Case No. 02-F-131

Circuit Court of Wood County
June 2002
(Judge Thomas C. Evans III)

Synopsis:

Daubert hearing on examination results of impressed toolmarks from a vise used to hold an improvised silencer body. Judge ruled that Toolmark Identification is reliable and allowed testimony of the Firearms/Toolmark Examiner.

Order denying motion in Limine to exclude Toolmark testimony

State of FLORIDA v. RAMIREZ
Case #SC92975

Florida Supreme Court
Dec. 20, 2001

Exclusion of “novel” tool mark evidence

U.S. v. Joseph MINERD
Criminal Action No. 99-215

U.S. District Court, Western District of Pennsylvania
April, 2002
(Judge Maurice B. Cohill)

Synopsis:

Daubert hearing on examination results of striated toolmarks from thread cutting dies used to cut threads on a pipe nipple. This pipe nipple was used in the fabrication an improvised explosive device.

Judge ruled that the forensic science discipline of Toolmark Identification is reliable and allowed testimony of the Firearm & Toolmark Examiner to be heard by the jury.

Governments response to the defendant’s motion