Firearms identification: the need for a critical approach to, and possible guidelines for, the admissibility of 'ballistics' evidence.

• Author: Bonnie, Lanigan

1. INTRODUCTION

   On September 20, 2001, detectives found a loaded Hi Point, .380 caliber pistol, in the front yard of a home on Esmond Street in Boston. (2) In the trial of United States v. Green, (3) the government sought to introduce testimony from a Boston Police detective who claimed that fourteen shell casings, found more than a year earlier at different locations in Boston, all came from that same gun. (4) The police detective concluded that this match could be made "to the exclusion of every other firearm in the world." (5)

   Firearms identification is a type of forensic science that has long been used in courts as evidence. (6) Testimony to a "match," like that offered by the government's expert in Green, has been used in courts for decades, and the reliability of this type of forensic science was once taken for granted. (7) Recently, many forms of forensic science, including firearms identification, have been subject to scholarly scrutiny, and the reliability of firearms identification evidence has been significantly criticized. (8) Regardless of the criticism, admissibility of various types of forensic evidence is still the norm. (9)

   In many cases in which firearms identification is used as evidence, the liberties at stake are significant. (10) Indeed, the defendants in Green faced the death penalty. (11) While these cases may not turn on the firearms identification alone, this evidence should not be submitted to a jury without establishing reliability. (12) The problems with the admissibility and reliability of forensic evidence may be widespread, and the justice system could significantly suffer as a result. (13)

   The court in Green acknowledged scholarly criticism, but reluctantly followed significant precedent to admit ballistics testimony. (14) The court admitted the expert's testimony comparing the gun and the shell casings, but the court did not admit the statement that the shell casings came from the specific pistol, "to the exclusion of every other firearm in the world. " (15) While the court noted that ballistic testimony has longstanding recognition, it issued a warning: "[The] reliance on long-standing use of ballistics evidence in the courts is troubling. It runs the risk of 'grandfathering in irrationality,' without reexamining it in the light of[present evidentiary standards]." (16)

   This Note explores the problems with the reliability of firearms identification evidence and the resulting implications for the future of its admissibility in trials, by first describing the history of the use of firearms identification as evidence. (17) This Note then focuses on the standards of admissibility and how courts apply those standards, by discussing various cases with significant rulings on admissibility. (18) Additionally, this Note also explains scholarly criticism of firearms identification evidence. (19) Finally, this Note discusses problems with the current state of admissibility of firearms identification evidence, and it explores cases offering potential new guidelines for this type of evidence. (20)

2. HISTORY AND BACKGROUND

   Firearms identification is "the analysis of bullet and cartridge case evidence and the use of that evidence to link specimens to each other and to particular weapons." (21) The Federal Bureau of Investigation ("FBI") once defined this discipline more specifically as the "forensic science discipline that identifies a bullet, cartridge case or other ammunition component as having been fired by a particular firearm to the exclusion of all other firearms." (22) This type of forensic science is often referred to as "ballistics" (e.g., "ballistics testimony" or "ballistics evidence"); however, this term is considered incorrect by scholars, as "ballistics" is the "study of the dynamics of projectiles in flight," not specifically the study of bullets or cartridges projected from a firearm. (23) Firearms identification involves the comparison of "toolmarks," which are markings or impressions left on the bullet or cartridge case when the firearm is discharged. (24) Various characteristics of toolmark impressions are produced that allow for comparison of bullets and cartridge cases. (25) According to firearms examiners, individual toolmark characteristics are unique and can be associated with a specific firearm. (26)

   1. Use in Courts as Evidence

   Firearms identification was first used as evidence in trials in the early 1900s. (27) Although there was some criticism of the technique in early cases, firearms identification became widely accepted in courts across the country. (28) However, the standards for admissibility of scientific evidence and expert testimony changed considerably over time. (29) For example, in 1923, in Frye v. United States (30) the District of Columbia Circuit established the original standard for admissibility of expert testimony on scientific evidence. (31) The court in Frye rejected the admissibility of testimony based on an early form of the polygraph test. (32) The court held that the technique or theory must have gained "general acceptance" in the specific scientific field. [down arrow] The Frye standard was adopted nationwide and remained the basis for expert testimony for seventy years. (34)

   In 1993, the Supreme Court relaxed the standard of admissibility of scientific evidence and expert testimony in Daubert v. Merrell Dow Pharmaceuticals, Inc. (35) In place of the "general acceptance" test of Frye, the Court established several factors that judges can use to determine whether scientific evidence is reliable and admissible as evidence. (36) The standard under Daubert is one of reliability and relevancy. (37) The Court in Kumho Tire Co. v. Carmichael (38) followed this approach to admissibility and held that the reliability standard of Daubert applies to all expert testimony, not only to scientific evidence. (39) The Court in Kumho, following Daubert, emphasized that it is up to the trial judge to determine reliability. (40) Moreover, the holding in Daubert is codified as Rule 702 of the Federal Rules of Evidence. (41) To date, thirty-two states have adopted the Daubert standard, twelve states have rejected it, and seven states have neither accepted nor rejected Daubert. (42)

   The flexible standard of Daubert and Kuhmo permits tremendous leeway for admissibility of scientific evidence. (43) Often, the expert will attempt to testify to the "ultimate conclusion"; in cases of firearms identification, this means that the bullet or cartridge is a match "to the exclusion of every other firearm in the world." (44) However, scientific evidence, including firearms identification and expert testimony derived from that evidence, has not always been reliable: one firearms identification audit concluded that "the negative impact on the judicial system [of firearms identification] would be substantial, with a strong likelihood of wrongful convictions and a valid concern about numerous appeals." (45)

   After Daubert, there were more challenges to the use of forensic science in the courtroom, including challenges to the use of firearms identification; however, despite these challenges, courts continued to admit firearms identification expert testimony. (46) Five years after Daubert, the Supreme Court in United States v. Scheffer (47) compared polygraph evidence with "more acceptable forms of expert testimony," including testimony regarding "ballistics." (48) Although the Court in Scheffer was not considering the admissibility of firearms identification evidence, because of the "casual reference to ballistics, likely without any argument on the issue, many lower courts have cited this opinion as validating the use of ballistics experts." (49)

3. FACTS

   1. Criticism of Admissibility of Firearms Identification Evidence

      Many techniques in various areas of forensic science, including firearms identification, have long been subject to criticism. (50) Recently, there has been more skepticism of methodologies used in the field of forensic science, and scholars have called for validation of these "scientific" techniques. (51) In 2005, the FBI discontinued bullet lead examinations, a specific type of ballistics analysis in which crime scene bullets are compared to bullets associated with a particular suspect. (52) One of the significant reasons for this discontinuation was that "neither scientists nor bullet manufacturers are able to definitively attest to the significance of an association made between bullets in the course of a bullet lead examination." (53)

      In 2009, the National Research Council ("NRC") of the National Academy of Sciences published a report to Congress identifying the needs of the forensic science community, which has brought to light the serious problems with various types of forensic evidence on a national scale. (54) One of the main problems with the firearms identification methodology is that the final conclusion is subjective:

      [The] determination of a match is always done through direct physical comparison of the evidence by a firearms examiner, not the computer analysis of images.... [E]ven with more training and experience using newer techniques, the decision of the toolmark examiner remains a subjective decision based on unarticulated standards and no statistical foundation for estimation of error rates. (55) The Supreme Court cited the 2009 NRC report in Melendez-Diaz v. Massachusetts, (56) noting that "[s]erious deficiencies have been found in the forensic evidence used in criminal trials." (57)

      A similar report published by the National Research Council in 2008, specifically on "Ballistic Imaging," concluded that "[t]he validity of the fundamental assumptions of uniqueness and reproducibility of firearms-related toolmarks has not yet been fully demonstrated." (58) Additionally, regarding the type of exact-match conclusion that the prosecution tried to admit in Green, the 2008 NRC report concluded,

      [E]xaminers tend to cast their assessments...