Firearm microstamp technology: failing Daubert and Federal Rules of Evidence 702.

• Author: Kenney, Dorothy

1. INTRODUCTION

   Imagine someone picking up another person's shell casings at the firing range and placing them at the scene of a crime. Following a trace of the shell casing by law enforcement, with the use of serial numbers imprinted on it, an innocent shooter faces trial for the crime due to a new law hailing Firearm Microstamp Technology as the best thing since DNA testing. This has danger written all over it and sounds like something from a murder mystery novel. However, this is precisely the danger that people potentially face if this new technology finds roots in state legislation before rigorous testing is performed. Hence, while Microstamp technology may be good in principle, it is lacking by far in theoretical practice and should result in an across the board exclusion in potential courtroom expert identification of firearms.

   This Note attempts to highlight the dangers associated with Microstamp technology if further incorporated into state and federal legislation and more importantly if it finds its way into criminal courtrooms via expert testimony. Part II of this discussion will first explain the traditional methods and procedures of forensic ballistic testing and identification methods. Part III introduces the new Intentional Microstamping technology ("Microstamping") and what it claims to bring to the science of ballistic forensic study. Part IV compares the assertions made by the inventors with inconclusive studies conducted on the new technology. Parts V and VI discuss some of the major legal and practical problems with the technology as it applies to states like California, which have already, incorporated the technology into legislation. Moreover, Parts V and VI argue that these legal and technical problems are too great and the societal implications far outweigh accepting the technology until further research or peer studies are conducted. Part VII and VIII of this Note explore how the implementation of Microstamping creates evidentiary issues with expert witness testimony. It is argued that because the technology does not satisfy any of the United States Supreme Court "Daubert" factors for admissibility of scientific expert testimony pursuant to Federal Rule of Evidence 702. Even though the factors are only guidelines, courts should not admit Microstamping evidence as "scientific knowledge".

   Scientific knowledge must be more than a mere belief; it must be fact or theory grounded in methods or procedures of science. Because this new technology has not been thoroughly peer reviewed, the rate of error is so high, and there is no general acceptance among the scientific community, a judicial inquiry should bar admission of it as evidence. This runs in direct conflict with California's new law requiring that all new models of semiautomatic pistols sold in the state be engraved with the Intentional Microstamp laser codes.

2. TRADITIONAL METHODS OF FIREARM BALLISTIC TESTING AND IDENTIFICATION

   "The underlying principle of firearm identification is that each firearm will transfer a unique set of marks, known as 'toolmarks,' to ammunition fired from that gun." (1) There are two prominent methods that law enforcement officials use to identify the source of a bullet used in a crime; ballistic testing and firearm tracing. Ballistic testing is the science of mechanics that deals with the flight, behavior, and effects of projectiles. (2) The purpose of firearm tracing is to use the ballistic testing to assist state and local law-enforcement in investigating and solving crimes. (3) When bullets and shell casings are discharged from firearms, they can leave unique marks that when examined by forensic scientists can link a particular firearm to a specific crime. (4) This data helps "track the transfer of a firearm from the importer or manufacturer to the gun's first purchaser, and can assist law enforcement in ultimately pinpointing the individual who used the gun to commit a particular crime." (5)

   There is a rich history of firearm forensic identification methods in the United States, (6) but it was not until the early 1990's that forensic ballistics saw major advancements. (7) The most notable advancements were the Bureau of Alcohol Tobacco and Firearm's (ATF) Integrated Ballistics Identification System (IBIS) and the Federal Bureau of Investigation's (FBI) Drugfire. (8) While both systems collected data and stored the pertinent information, they were not interoperable. (9) However, in 1997 the two systems merged the best of both to form one cooperating database. "The resulting single, unified system ... form[s] the backbone of a network ... capable of identifying the individual fingerprint left by virtually every gun used in a violent crime." (10)

   Much of this system involves the development of a method called "ballistic fingerprinting," which allows an investigative laboratory to compare unique marks made on shell cartridge casings fired from a particular gun. (11) "Currently deployed ballistics technology focuses on the tool marks on the interior surface of a firearm that are transferred from the firearm to an expended cartridge during the firing process." (12) The first step in firearms and tool mark identification is determining the class characteristics of each. (13) These "class characteristics include the caliber (diameter) of the barrel (and bullet), the number of lands and grooves (alternating raised and lowered areas within the inner surface of the barrel that spiral along the course of the barrel) of the barrel and imprinted on the sides of the bullet, and the direction of the spiraling (the twist) within the barrel and imprinted on the sides of the bullet." (14) The next step is to fire a bullet from the suspected weapon and examine the microscopic marks (striations) on the bullet made from traveling through the barrel of the gun. (15) If the class characteristics are a match to the collected evidence and test tool marks, microscopic examination will determine whether the individual characteristics are so similar that the same tool must have produced both the test and the evidence tool mark. (16) This is premised on the fact that no two weapons are identical and that the marks created by a firearm are unique to each particular weapon. (17)

   However, this traditional method of identifying bullets relies on "unintentional microstamping". (18) "[U]nintentional microstamping experienced by the bullet cartridge occurs under a violent multivariate dynamic state of gas pressure expansion during combustion, added to the motion induced during gun fire cycling." (19) These variables cannot be correlated using causation analysis under traditional methods of ballistic forensic techniques. (20) "This poses a major problem for forensic tool mark examiners since the tool marks.... [A]re neither purposeful nor optimally placed for transferability to the brass cartridge." (21) In order for officials to identify the marks made on cartridge casings spent, they must locate the actual firearm. (22) One of the major difficulties in crime enforcement is that guns used to commit crimes are not always recovered. (23)

3. THE TECHNOLOGY OF MICROSTAMPING

   Firearm "Microstamping" is a new technology invented by Todd Lizotte, (24) that can imprint serial numbers on spent ammunition casings by utilizing a solid-state ultraviolet laser to machine an array of microscopic characters onto the tip of a firearm's firing pin. (25) Similar to "ballistic fingerprinting," it allegedly helps police identify what firearm might have been used in a crime. Microstamping uses precision equipment to remove microscopic amounts of metal from the tip of the firing pin. When a firearm trigger is pulled, there is no guarantee of one single identifiable mark on the bullet. (26) What the microstamp technology does is place "intentional codes" linked to the serial number of a firearm by using an "optimized laser micromachining" process. (27) The basic theory behind the technology is that a firearm's firing pin or other internal parts could bear microscopic codes unique to the firearm that could imprint the codes on fired cartridge cases. (28) The codes then contain information like the gun's make, model and serial number. (29) This acts much like a fingerprint on the bullet. If the gun is then used in any crime, this allows law enforcement officials to enter the found shell casing codes into a database to determine not only the manufacturer of the gun, but even the licensed dealer who sold it, and ultimately the owner. "The goal is to provide an improved piece of trace evidence for forensic investigators, so that they can track a firearm without having to recover it." (30)

   This so-called confirmed link between a firearm and its bullet purports to provide invaluable leads for investigators in tracing the gun to its registered owner who may either become a suspect or provide useful information regarding a crime. (31) This technology is thought to expand ballistic identification because without having to provide additional testing it can directly tell law officials the serial number of a firearm just by looking at the spent shell casing found. (32) Considering that approximately forty percent of homicide cases go unsolved (33) and firearm injuries are the eighth leading cause of death in the United States, (34) there are many advantages to this new form of firearm identification. (35)

4. INTENTIONAL MICROSTAMP TECHNOLOGY TESTING AND RELEVANT STUDIES SHOW CONTRADICTORY AND INCONCLUSIVE RESULTS

   Support for the Microstamp technology is based on the notion that it will "increase the speed of firearm identification and tracing to provide opportunities to target ... criminal networks." (36) NanoMark Technologies, the manufacturer of the Microstamp technology, conducted the initial study. (37) Here, the technology utilized numerous tests with firearms including the Colt Arms Model 1911, S&W 4006, Ruger Mark III, SIG P229, AR-15, and AK-47. (38) The...