COMMONWEALTH OF MASSACHUSETTS MEMORANDUM IN SUPPORT OF DEFENDANT S MOTION IN LIMINE TO EXCLUDE BALLISTICS EVIDENCE

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1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT No. SUCR ) COMMONWEALTH ) ) v. ) ) JASON MEEKS ) ) MEMORANDUM IN SUPPORT OF DEFENDANT S MOTION IN LIMINE TO EXCLUDE BALLISTICS EVIDENCE I. INTRODUCTION Especially in light of the major role that firearms identifications play in obtaining convictions, all firearms and toolmark identifications should be excluded until the development of firm statistical foundations for identifications and a rigorous regime of blind efficiency testing. Schwartz, A Systemic Challenge to the Reliability and Admissibility of Firearms and Toolmark Identification, COLUM. J. SCI. & TECH. L. REV. 6:1-42, at 42 (March 28, 2005), attached hereto as Exhibit A. As Professor Schwartz notes throughout the attached article, and as set out below, the forensic discipline of toolmark identification, which includes firearms identifications or ballistics, is deeply flawed and unreliable, and unless its systemic scientific problems are addressed, through statistical empirical foundations and proficiency testing, this expert testimony and evidence should be excluded. See id. at 1. Despite the inherent unreliability, the government has routinely offered entirely subjective firearms identification opinions that a particular firearm, to the exclusion of all others ever produced, was used in a specific incident. The general acceptance of firearms identifications is unwarranted and expert testimony derived from the examinations is highly prejudicial. The testimony fails the admissibility guidelines for expert testimony cited in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579,

2 589 (1993), and in Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994), and must be excluded. In the case at bar, the government will offer testimony from a Boston Police Department ( BPD ) Ballistics Unit examiner that, inter alia, one of two bullets removed from the victim, Alvaro Sanders, who was shot on November 15, 2001, matched a test-fired bullet from a.357 caliber revolver discovered by police on January 8, 2002, on or near the outside steps at 29 Dennis Street, Dorchester, Massachusetts. The BPD examiner reached his conclusion of a match using wholly subjective, and not scientific or reliably validated, means. He examined the spent bullet and the test-fired bullet side-by-side under a comparison microscope, and opined there was enough similar toolmark information on each bullet to determine both were fired from the.357 caliber revolver recovered on January 8, 2002, excluding as the source all others. He concluded as to each fired projectile that the similar toolmark information, the lines, scratches, etc., i.e., the striae on each, were individual to that firearm. He formed that opinion without test-firing any other gun of the same make and model to determine if there were characteristics left by similar.357 revolvers for which he needed to account. There exist no standards regarding how much similar information was sufficient to declare a match, or even how much dissimilar information sufficed to exclude the firearm. The examiner also did not document his work through notes or comments beyond the rudimentary conclusions he noted in his three one-page reports, or provide explanations regarding the photomicrographs eventually taken to show exactly what it is that he saw which led to his opinions. 1 There is no indication as to whether or to what extent he was looking at 1 The reports are attached as Exhibits B, C, and D. The BPD Ballistics Unit does not take photomicrographs, i.e., photographs taken through a comparison microscope, in the regular course of business. The photomicrographs in this case were taken upon request of the defendant, 2

3 marks which would be considered class characteristics, marks which all guns of a given type will leave, as opposed to individual characteristics which could possibly be used to identify the specific weapon which fired the shot. He did not use a scanning electronic microscope or other modern equipment that could have more accurately measured the marks upon which he claims to have based his comparison and provided quantifiable data subject to statistical analysis. In sum, the examiner went with his best guess, and not on any viable, reliable and generally accepted methodology, grounded in objective standards. via the prosecutor, in the last week of January 2005, more than three years after the.357 was recovered. See Exhibit D. 3

4 It is significant that all notarized reports submitted by examiners at the BPD Ballistics Unit state that the examiner has testified and been qualified an expert in Suffolk Superior Court. See, e.g., Exhibit E. 2 As the Commonwealth has no certification for ballistics examiners, the statement implies that the ballistician is an expert simply because he has testified in court. However, unlike examiners in other forensic disciplines, such as DNA testing, the BPD examiners cannot support testimony with explanations of their methods or conclusions in any precise, scientific, and probablistic manner. If they are capable of articulating the subjective, holistic determination inherent in forming an opinion, they inevitably decline to do so. Instead, their testimony is reminiscent of the old obscenity standard: they know it when they see it. BPD examiners routinely testify in court that they observed matching characteristics, or similar points of comparison, and without identifying those marks to the court and either quantifying or qualifying the results declare the evidence a match. Their message to the jury is simply, We are the experts. Trust us. This court would not accept that from any other field of claimed 2 The Ballistician s Office reports attached at Exhibit E were filed by Officer Carl Washington in the case at bar, and refer specifically to the recovered.357 Smith & Wesson, a recovered lead bullet fragment, and three.357 cartridges. Typical of the BPD Ballistics Unit s circular reasoning in vouching for their work and the work of their fellow officers, the notary public who notarized the report is Martin Lydon, who conducted the primary ballistics examinations in this case, and who states that Officer Washington is known to him to be a qualified ballistics expert of the Boston Police Department. Id. 4

5 expertise, and it should not accept it from this one. 3 II. BACKGROUND A. FACTS OF THE CASE 3 For additional background regarding problems involving the BPD Ballistics Unit, see David S. Bernstein, Bad ballistics, BOSTON PHOENIX, Oct. 7, 2005, attached hereto as Exhibit F. 5

6 BPD Ballistics Unit examiner Martin Lydon filed three reports in the above-named case regarding bullet comparisons. The first stated that the two bullets removed from the body were microscopically compared to one another and found to have been fired from the same weapon. BPD Ballistics Unit Report 1, Nov. 15, 2001, hereto attached as Exhibit B. Detective Lydon observed the bullets were both.38/.357 caliber bullets with 5 lands, 5 grooves, and a right twist. 4 Id. That report also states that two spent bullets from the scene, which Lydon recovered, sustained too much damage to be of use in comparing them with the bullets removed from the victim s body. Id. However, the heavy damage did not persuade Lydon to exclude these bullets entirely. One of the bullets, he noted, had one land of discernable width that was consistent with the two removed from the body. See id. In the second report, filed about nine months later, Lydon stated that he compared only one of the bullets removed from the victim s body to one bullet that was test-fired from the.357, and concluded the bullet from the victim positively matched the firearm. See BPD Ballistics Unit Report 2, August 12, 2002, hereto attached as Exhibit C. The report states, that the one good land from the victim bullet matched one land from the test fire bullet. 5 Lydon also 4 Handguns, in contrast to smooth-barreled weapons such as shotguns, have rifled barrels, which means that twisting grooves are cut into the barrel, causing the projectile to spin, thereby imparting far greater accuracy. The lands are the raised parts of the barrel, that is, the surface area which is not the grooves. 5 Lydon s first report indicated nothing about finding only one good land on either of the victim bullets; to the contrary, he reported that both bullets had five lands. See, BPD Ballistics Unit report, Nov. 15, Instead, Lydon noted one of the spent bullets recovered at the scene had one discernable land that he used for comparison. Id. This confusion regarding which bullet was actually examined and what characteristic was identified implies that a misidentification of the ammunition was made in the report, and goes to the heart of the defendant s argument that this testimony is not reliable. 6

7 microscopically compared a spent.38/.357 caliber bullet found at 29 Dennis Street, from which he opined that one of the lands on this bullet matched the one good land on the bullet taken from the victim. See id. In the third report, which was written two and a half years after the second report and more than three years after the shooting, Lydon noted that in reexamining the evidence he was having difficulty locating the markings [he] matched in the initial comparison, he made during the August 2002 examination cited above. Boston Police Firearms Unit Report 3, Feb. 3, 2005, hereto attached as Exhibit D. He test fired another bullet, and after comparing it to the bullet removed from the victim s body Lydon determined that they were fired from the same weapon because the bullets share consistent individual markings on two lands and one groove. Id. At the prosecutor s behest when defendant so requested it, he took a number of photos depicting the markings. See id. Lydon s inconsistencies continued, as he stated that on the bullet from the victim s body only three lands and two grooves are of any use in ballistic comparison due to damage sustained by this bullet. Id. The detective s previous report stated the bullet from the victim s body had only one good land. See Exhibit C. B. GENERAL PRINCIPLES OF FIREARMS ANALYSIS 6 6 The following section is based upon the Affidavit of David J. Lamagna in Support of Defendants Motion in Limine to Exclude Ballistics Evidence, the supporting documentation filed with the affidavit and documents attached thereto. Mr. Lamagna s affidavit provides a more thorough discussion of the general principals of firearms analysis, the failure of the proffered evidence to meet even the standard of the generally accepted methodology, studies invalidating the IBIS computerized database and its results, and the availability of technology that could be readily used to improve firearm examination results. Mr. Lamagna s affidavit also contains information specific to Commonwealth v. Warner, No. SUCR , which is joined with this case for this Lanigan/Daubert challenge. The deficiencies Mr. Lamagna notes in the ballistics evidence proffered against Mr. Warner by the BPD Ballistics Unit, specifically in its methodology and conclusions, demonstrates that those 7

8 The opinion that there is a match, and the anticipated expert testimony regarding that conclusion, is based on the faulty assumption that each gun leaves unique marks on each bullet cycled through it that can be identified. Particularly given modern manufacturing methods and materials, that assumption can not be blindly accepted as fact. Handguns are no longer made from machine-tooled parts which have been individually hand-filed and fitted. Computerized machinery and molded metal that produces fully interchangeable parts have resulted in massproduced, inexpensive guns that leave few if any unique markings on each fired bullet. Latent fingerprint examinations are premised on that notion that fingerprints are permanent and unique. In contrast, while toolmarks are asserted to be unique, many are not; those that may be unique are not necessarily discernable. And there is no reliable way to determine and differentiate marks that are unique from those that are not. Further, toolmarks are not permanent due to changes that occur within the firearm. For a number of reasons noted below, it is indisputable that toolmarks vary from even sequentially fired bullets and that the toolmarks imparted will change over time. The first shell casing ejected from a firearm will not bear the same markings as the twentieth, the seventieth, or the fivehundredth casing. 1. Toolmarks problems are systemic and not specific only to the case-at-bar. See also, Schwartz, supra, at Exhibit A (providing a comprehensive overview of the toolmark identification process). 8

9 The expert evidence, which the Commonwealth seeks to introduce to connect the bullets herein to one particular gun, is technically known as toolmark identification. See Affidavit of David J. Lamagna in Support of Defendants Motion in Limine to Exclude Ballistics Evidence (hereinafter Lamagna Aff. ), 10. Toolmark refers to marks left on the surfaces of gun parts by the processes by which firearms have been manufactured using rough castings, forgings or sheet metal stampings, which traditionally were then finished by hand-filing and fitting of each part into a particular firearm, leaving unique toolmarks. Id. Firearm toolmark analysis is premised on the notion that when a bullet is fired, the unique toolmarks on any specific weapon are transferred to the components of the shell and projectile. 7 Id. 7 While both components are marked in an automatic or semi-automatic weapon, because revolvers do not eject the shells, only marks on projectiles are analyzed for revolvers. 9

10 Depressing the trigger causes the firing pin to strike the primer cup of a loaded cartridge case lodged in the chamber, causing a small explosion of the primer, which in turn causes the gunpowder in the cartridge case to burn rapidly. Id. The burning gunpowder produces gases which expand rapidly, propelling the projectile down the barrel and expanding the cartridge case in all directions against the chamber and breech face (obturation), 8 thereby potentially imparting on the cartridge case any toolmarks (striae) present on either the firing pin, the breech face, or chamber walls. Id. Similarly, as the projectile travels under pressure down the barrel, it is distorted sufficiently to press against the lands and grooves in the barrel, again imparting toolmarks on it from the barrel, as well as the pattern of lands and grooves. Id. It is these transferred toolmarks on the cartridge cases and projectiles that are the subject of firearm toolmark analysis. Id. 2. Class, Subclass, Individual, and Accidental Characteristics Toolmarks are divided into three categories. Id. 11. First and most common are class characteristics, marks that all firearms of a given type will leave. Id. For example, a given manufacturer may use firing pins which are triangular in shape, and this characteristic will be 8 Obturation is defined as the sealing of gases due to the expansion of a cartridge case, projectile base and bearing surface, as a result of chamber pressure.. 10

11 imparted to any shell fired from any weapon produced by that manufacturer. 9 See id. The second category, subclass characteristics, are created by the manufacturing of batch lots of tools with similarities in appearance, size or surface finish. Id. Firearms with common subclass characteristics share some matching microscopic characteristics. Id. Because subclass characteristics are shared by some, but not all, firearms produced from a specific manufacturer, they present grave problems in firearms toolmark analysis they are readily confused with individual characteristics, and therefore can lead to erroneous opinions as to whether similar striae on either a spent shell or projectile are significant to the question of identification. Id.; see also Schwartz, passim. The third category of markings is known as accidental characteristics. Lamagna Aff. 13. These are marks that can be left by an individual firearm on some shells or projectiles, but might not be reproduced on others. Id. These marks are of no help in attempting to identify either the make of firearm from which a cartridge was fired or the particular firearm at issue. Id. Again, it is imperative that accidental characteristics are not confounded with other types. The fourth category is called individual characteristics of the firearm, e.g., distinctive 9 To give another example, semi-automatic pistols may leave extractor or ejector marks, or both, on a cartridge case when it is expelled fro the firearm, which can be used to identify the make of the firearm from which the case was fired i.e., a Ruger as opposed to a Smith & Wesson or a Colt and therefore generally are not used to identify the individual firearm from which the cartridge was fired. 11

12 machine toolmarks leaving marks on the shell or projectile that in theory no other firearm would leave. See id. 12. In theory, individual toolmark characteristics, either derived from the manufacturing process or from happenstance, such as partially broken or chipped firing pin, impart unique marks to either a shell casing or projectile. Id. Individualization of bullets or shells to specific weapons is dependant upon individual characteristics, which therefore must be both distinguishable and distinguished from class, subclass and accidental characteristics. The most important individual characteristics used to form an opinion as to identification were, first, the grooves on the bullet s surface imparted by the rifling marks and, second, ridges, grooves and striations impressed into the metal surface of the shell case head. Id. 14. Historically, the latter ridges, grooves, and striations were relatively irregular because the firing pin and breech face, which come into contact under high pressure with the cartridge case upon discharge, were finished in the manufacturing process by hand-filing and fitting of parts. Id. The resultant hand-done toolwork was, therefore, presumed unique to each part created. Id. Even then, identity of the firearm used was difficult because there is great variation in the degree to which different cartridges will take impression of marks on the firing pin and breech face. Id. 3. Firearms Manufacture. As noted above, firearm parts were traditionally machined, forming rough castings, forgings, and sheet metal stampings, which were then hand-finished. Id. 15. Prior to the latter part of the nineteenth and early part of the twentieth century, most of these parts were sized and fit by hand-filing them in jigs or fixtures that were set up to help the gun factory workers meet some general dimensional tolerance. Id. Proper gauging of the finished parts was not a well- 12

13 refined practice. Id. At the dawn of the twentieth century there were improvements to milling machines, lathes, etc., and improvements in the gauging practices of finished parts. Id. These improvements resulted in less handwork and better dimensional tolerances. Id. The overall improvements made the idea of interchangeable parts more of a reality than in the past. Id. However, gunparts throughout the twentieth century were still manufactured from rough casting, forgings, and sheet metal stampings. Id. 16. These parts still required some degree of hand finish work, such as hand-filing. Id. Toward the end of the twentieth century, newer methods were being applied in the firearms manufacturing field. Such methods included investment casting, die-casting, and metal injection molding, which are computer-controlled methods. 10 Id. These manufacturing improvements resulted in the need for far less hand-fitting of individual gunparts Id.. Furthermore, the engineers of today utilize Geometric Tolerancing and Tolerance Analysis to the various modern manufacturing processes, which contribute greatly to the ideal concept of interchangeable parts. Id. As a result, there are far fewer toolmarks on firearms manufactured by current manufacturing methods. Id. In fact, in the 1957 edition of his seminal textbook on firearms identification, Julian S. Hatcher observed that modern methods of manufacturing, such as double button rifling, resulted in highly polished barrels and rifling that provided the toughest identification job we have ever tackled. Hatcher, et. al., TEXTBOOK OF FIREARMS INVESTIGATION, IDENTIFICATION AND EVIDENCE 382 (1957). Hatcher noted that, [t]he breech faces that give the most trouble are those of cheap shotguns which are 10 Such methods are often referred to as computer numerical control or CNC (i.e., CNC machining of stock metals or CNC sheet metal stampings), and include CNC machining and manufacture of the machine tools themselves used to manufacture the handguns, as well as hammer forging, and electrochemical machining of gun barrels. 13

14 manufactured in enormous quantities from soft steel by standard cutters without any hand finishing at all. Id. at Difficulties in identification of toolmarks imparted from traditional manufacturing methods can be as much of a problem as those associated with gunparts manufactured by newer methods such as investment casting, metal injection molding, etc. Lamagana Aff. 17. These problems are primarily associated with the ability of a firearm examiner to differentiate between class, subclass, accidental, and individual characteristics imparted to spent projectiles and cartridge cases. Id. See also Schwartz, passim. Further, because the use of any machine tool will cause it to wear, a very real question arises as to what degree and what affect wear will have on the toolmarks, and therefore the degree to which such toolmarks are transferred to either spent cartridge casings or projectiles. Lamagna Aff. 18. The higher the toolmark on the firearm, the more likely it is that it will be imparted to either a shell casing or projectile. Id. Modern machine cutting tools are manufactured from specialty alloys that wear at a much slower rate than older tool steels utilized in the manufacture of firearms even thirty years ago. Id. Not all toolmark heights are exactly the same. Id. In fact, there is quite a distribution in toolmark heights even on traditionally machined gunparts. Id. The toolmark height distribution is usually narrower on investment cast, metal injection molded, and die-cast parts. Id. Because the toolmarks on the surfaces of these parts are simply the mirror image of the die or mold in which these parts were formed. Id. Although there are some toolmarks imparted to the surfaces of these cast/molded gunparts due to de-flashing, limited hand filing, and other finishing steps, most dies/molds have highly polished surfaces; as a 14

15 result, any marks which are present are few in number and of low height. Id. Again, toolmark height is a critical consideration, along with the degree of obturation of the projectile and cartridge case when being fired from any firearm, regarding the actual toolmarks that are imparted to spent cartridge cases and projectiles. Id. Just because there may be unique toolmarks on the surfaces of individual gunparts does not mean that these toolmarks will be imparted onto the surfaces of spent projectiles and cartridge cases. Id. 4. Modern Manufacturing Methods And Wear Negate the Assumption of Uniqueness. As noted above, from design to manufacture to assembly, computerized machinery produces completely or nearly finished parts requiring less hand-finishing. Id. 21. While there is still some variation due to manufacturing and individual wear patterns, variation due to manufacturing methods has been and continues to be minimized by modern processes. Id. Implementation of statistical process control and statistical quality control further reduces variation. Id. New materials and surface treatments/finishes also result in parts that wear less quickly, creating fewer individual wear patterns. 11 Id. Where parts are made to be fully interchangeable, inevitably there will be variations in fit when a tight part is put into a loose firearm or vice versa. Id. 22. This, in turn, leads to variation in what markings, if any, are left on a bullet fired through a firearm. Id. For instance, the amount of tolerance in a firing pin can influence whether it strikes the shell head casing to a 11 Modern manufacturing processes have affected forensic identification apart from ballistics or firearms identification. In the area of questioned documents, for example, examiners now find it much more difficult to identify the electric typewriter which produced a document because the daisy wheel, which the hammer strikes to make the image on the page, is made by injection molding and therefore has fewer individually identifiable characteristics which can be used to identify the particular typewriter which created the image. 15

16 greater or lesser depth, leading to greater variability in the marks imparted from a specific firing pin to a shell head Thus, where a firearm is made of fully interchangeable parts, there will be more variation on marks left on cartridges fired from an individual firearm, and thus fewer distinct differences between shots fired from that firearm and shots fired from different firearms of the same make. Id. The variation in fit caused by fully interchangeable parts leads to more marks that would be put into the accidental category, which are of no use in identifying the make of firearm, much less the particular firearm used to fire a cartridge. Id. Again, it is undisputable that, unlike fingerprints which are presumed to be permanent, toolmarks left by the manufacturing process will change over time as the gun wears. See id Transference of Marks is Not Uniform. Different brands of ammunition will also affect the extent to which marks on gun parts, such as the firing pin and breech face, are transferred to the cartridge case head. Id. p 28. Ammunition manufacturers use metals of different degrees of hardness, grain structure, alloy content, etc. Id. The harder the ammunition, the fewer marks from particular gun parts, such as the firing pin and breech face, that will be transferred onto the cartridge case head. Id. For example, Winchester ammunition is made of a particularly hard brass, which typically takes fewer firing pin or breech face impressions. Id. Other brands of ammunition are made of softer metal and will take more impressions. Id. Moreover, the materials from which the gun is manufactured and the pressure created by the expanding gases from the burning propellant will also determine the extent to which manufacturing marks, if any, can be transferred to ammunition that interacts with them. Id. In short, the degree of obturation has a direct effect upon the quality and quantity of toolmarks that are imparted to any spent cartridge case and/or 16

17 projectile. Id. 6. No Standard for Declaring a Match Whether to declare a match is a purely subjective judgment on the part of the examiner. Id. 37. Even where there are a number of consecutive marks, known as matching striae, an examiner may determine that they are not significant because they lack the quality observed in known match comparisons, or that differences outweigh similarities. Id. There are no objective criteria established in the field, unlike fingerprint analysis, in which even one non-matching point will negate a conclusion of a match. See, infra, 34 n. 27 (discussing the onedissimilarity doctrine ). Without research to validate the assumption that the particular striae chosen are in fact unique to the particular firearm, there is no way of knowing whether the conclusion of a match, even if supported by a particular number of consecutive matching striae, is a valid or supportable one. Lamagna Aff. 39. It must be noted in this context that a national database containing scanned images of spent shells and projectiles exists: the Integrated Ballistics Identification System, or IBIS, is used to present possible matches of a given specimen taken from a crime scene. Id. 48. The IBIS images are analyzed by computer-driven algorithms to find potential similarities. 12 See id. In other words, so-called ballistics evidence is 12 Even the use of the IBIS system has exposed problems inherent in toolmark identification. When the State of Maryland began requiring all new guns that were to be sold in Maryland to be subject to the IBIS imaging system, they found that several pistols manufactured by Kahr Arms were leaving the same firing pin impressions on cartridge cases fired through them. See Lamagna, Aff. 25. When the engineering staff investigated this, they believed that the machine that was manufacturing the firing pins was leaving the same burr on all the firing pins being produced. Id. Consequently, the same firing pin impression image was being picked up by the IBIS system at the Maryland State Police headquarters even when shots were fired through different guns. Id.; see also Schwartz, (citing studies revealing numerous technical problems with the IBIS system). 17

18 capable of statistical analysis and comparison, analogous to the way DNA is analyzed. 7. No Error Analysis. Testimony of firearm examiners declaring a match is not supported by any error analysis or statistical probability that the observed marks were left by one gun as opposed to another. Id. 40. By way of comparison, DNA evidence of a match is only admitted along with statistical evidence of the likelihood of a DNA profile matching by coincidence in a given population. Id. 41. Without such statistical evidence of the probability of a coincidental match, the testimony is meaningless. Id. Consequently, DNA experts do not speak in terms of a positive match but of the probability of a match and there are some who, based on the relatively limited population database at the present time, question the validity of the statistical comparison. Id. Little testing has been done to attempt to validate the ability of any firearm examiner to declare a match, with even less blind or randomized double blind testing. Id. 43. One author reports that the only apparently blind study she located yielded an error rate of 9.1 percent, an unacceptably high rate of error. See Lisa J. Steele, All we want you to do is confirm what we already know, A Daubert Challenge to Firearms Identification, CRIM. LAW BULLETIN, 9, (2001), attached hereto as Exhibit G. No studies known to the defendant have taken into account confirmation bias, that is, the extent to which the examiner sees what he expects to see. Lamagna Aff. 43. In the vast majority of cases, firearms examiners are told whether the investigators expect or hope that the evidence was fired through a particular recovered firearm. Id. In those circumstances, confirmation bias can cause firearms examiners to overestimate the quality or quantity of striae 18

19 and other toolmarks when they have external reasons to expect a match and to underestimate the quality and quantity of striae and other toolmarks when they have external reasons to expect a non-match. So long as the criteria is wholly subjective, confirmation bias may be impossible to avoid. Steele, at 11. In the majority of tests described in the Association of Firearm and Tool Mark Examiners ( AFTE ) Journal concerning the error rate of the examiners conclusion of a match, the examiner apparently knew the sources of the bullets he or she was comparing. See id. 9 n.44 (citing Lutz, Consecutive Revolver Barrels, 21:2 AFTE J. 120 (1989), [first published in 1970], and also noting the sample size was extremely small making the results questionable). III. ARGUMENT A. The Commonwealth Must Establish That Its Expert Ballistics Testimony Is Demonstrably Reliable Under The Lanigan and Daubert Factors. It is the Commonwealth s burden as the proponent of the evidence to establish the reliability or validity of the underlying scientific theory or process. Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994). Trial courts have a gatekeeping obligation to ensure that only demonstrably reliable expert testimony be presented to jurors. Id. See also Kumho Tire v. Carmichael, 526 U.S. 137, 147 (1999) ( In Daubert, this Court held that Federal Rule of Evidence 702 imposes a special obligation upon a trial judge to ensure that any and all [expert] testimony... is not only relevant, but reliable. ) (quoting Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 589 (1993). [A] party seeking to introduce scientific evidence may lay a foundation either by showing that the underlying scientific theory is generally accepted within the relevant scientific community, or by showing that the theory is reliable or valid through other means. Commonwealth v. Vao Sok, 425 Mass. 787, 796 (1997) (quoting Commonwealth v. Sands, 424 Mass. 184, (1997)). 19

20 Whether the proffered ballistics evidence is scientific evidence or not, it is opinion evidence subject to the admissibility rules governing expert testimony: There is no logical reason why conclusions based on personal observations or clinical experience should not be subject to the Lanigan analysis. That a person qualifies as an expert does not endow his testimony with magic qualities. Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 579 (1956). Observation informed by experience is but one scientific technique that is no less susceptible to Lanigan analysis than other types of scientific methodology. The gatekeeping function pursuant to Lanigan is the same regardless of the nature of the methodology used: to determine whether the process or theory underlying a scientific expert s opinion lacks reliability [such] that [the] opinion should not reach the trier of fact. Canavan s Case, 432 Mass. 304, 313 (2000) (citing Lanigan, 419 Mass. at 26). In Daubert, the Court identified five non-exclusive factors to determine whether proffered expert testimony is demonstrably reliable. 13 The factors, which the Massachusetts Supreme Judicial Court adopted and endorsed in Lanigan, 419 Mass. 15: (1) whether the theory or technique can be and has been tested, (2) whether the theory or technique has been subject to peer review and publication, (3) whether a particular scientific technique has a known or potential rate of error, (4) whether standards controlling the technique's operation exists and are maintained, and (5) whether the technique is generally accepted in the relevant scientific community. Daubert, 509 U.S. at Since the inquiry is a flexible one, the Court emphasized that additional factors may be considered. Daubert, 509 U.S. at 594. The Court subsequently made clear in Kumho Tire, 526 U.S. at , that these same five factors may also be applied in assessing the reliability of an expert testifying on the basis of specialized or technical knowledge. Canavan s Case, 432 Mass. at

21 These factors apply both to novel scientific techniques and to well established propositions. Id. at 592 n In determining the reliability of proffered expert testimony, the focus is on principles and methodology, not on the conclusions they generate. Daubert, 509 U.S. at 595. Proposed testimony must be supported by appropriate validation, i.e., good grounds based on what is known. Id. at 590. The reliability inquiry is a flexible one, with substantial discretion left to the trial judge to determine how to evaluate the reliability of a particular expert's testimony. Kumho Tire, 526 U.S. at 141, 152. As noted above, Daubert's five factor list is neither definitive nor exclusively applied to all experts or in every case. Kumho Tire, 526 U.S. at 141. On the one hand, factors listed in Daubert will not always be applicable or instructive. For example, presence of the general acceptance factor will not help show that an expert's testimony is reliable where the discipline itself lacks reliability. Kumho Tire, 526 U.S. at 151. On the other hand, additional factors not specified in Daubert may be appropriately considered, such as whether the expert's proposed testimony concerns research conducted independent of litigation (as opposed to opinions developed expressly for the purposes of testifying), Daubert, 43 F.3d at 1317, and whether the 14 As to traditional forensic sciences, in each area little rigorous systematic research has been done to validate the discipline s basic premises and technique and in each area there is no evident reason why such research would be infeasible. In many of these areas, some courts may demand more by way of validation than the disciplines can presently offer. Giannelli and Imwinkelried, Scientific Evidence: The Fallout from Supreme Court s Decision in Kumho Tire, 14 CRIM. JUSTICE MAGAZINE, (American Bar Ass n), Winter 2000, No. 4, at 40. Trial court judges have begun to reassess these sciences. See, e.g., United States v. Santillan, No. CR DLJ, 1999 WL , *3 (N.D. Cal. Dec. 3, 1999) (stating the government is correct in their assertion that pre-daubert/kumho Tire Ninth Circuit precedent supports the admissibility of this [handwriting expert] testimony, however, the world has changed. ); Williamson v. Reynolds, 904 F. Supp. 1524, (E.D. Okla. 1995) (holding that under the criteria of Daubert, hair identification evidence should not have been admitted despite the existence of pre-daubert case law accepting it). 21

22 expert has considered alternative explanations for the opinion, Claar v. Burlington N.R.R., 29 F. 3d 499, 502 (9th Cir. 1994). The courts must ensure that in each step, from initial premise to ultimate conclusion, the expert faithfully followed valid scientific methodology. In other words, this court need not accept, as scientifically reliable, any conclusion that good science does not permit to be drawn from the underlying data but which instead constitutes unsupported speculation. Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1401 (D.Or. 1996). In this regard [a] court may conclude that there is simply too great an analytical gap between the data and the opinion proffered. General Electric Co. v. Joyner, 522 U.S. 136, 146 (1997). The S.J.C. adopted the basic reasoning of Daubert and Kumho Tire because it is consistent with our test of demonstrated reliability. Lanigan, 419 Mass. at 26; see also Canavan s Case, 432 Mass. at 313. In this case, the Commonwealth has provided little more than an officer s bald assertions that the bullets recovered by the police match a bullet resulting from a test firing of the recovered firearm. The reports provided to the defendant explain little in the way of methodology, and do not point to any external source to validate that methodology. Daubert v. Merrill Dow Pharmaceuticals, 43 F.3d 1311, 1319 n.10 (9th Cir. 1995). 15 The Court is presented with only the expert qualifications, his conclusions and his assertions of reliability.... Under Daubert, that is not enough. Id. As the defendant will demonstrate below, the Commonwealth s proffered expert testimony is not demonstrably reliable under the factors set out in Daubert and Lanigan, nor under any other relevant factors. 15 The citation is from Daubert II, on remand from the Supreme Court s decision in Daubert, 509 U.S. 579 (1993) 22

23 B. The United States District Court of Massachusetts Has Excluded or Restricted Ballistics Evidence. Many core problems with the reliability of firearms toolmark analysis were recognized in a recent federal district court decision granting, in part, an evidentiary challenge based on Daubert, 509 U.S. 579, to such opinion testimony. In United States v. Green, et. al., Crim. No NG (D.Mass. 2005), the court limited the BPD Ballistics Unit examiners testimony to perceived similarities and differences, and restricted them from testifying that any of the recovered shells and casings matched a specific firearm to the exclusion of every other firearm in the world. 16 Memorandum and Order Re: Motion to Exclude Ballistics Testimony, at 6, a copy of which is attached hereto as Exhibit H. The court determined that testimony would be well beyond [the BPD examiners ] data and methodology. Id. 16 The decision as written was specific to the testimony of Sergeant Detective James O Shea, who testified in the Daubert hearing which preceded the trial. However, the court s decision applied to all firearms examiners who the government had identified on its witness list. 23

24 In acknowledging that the central examiner in the case, Sergeant Detective James O Shea, 17 had seven years experience as a ballistics examiner, the court stated that neither he nor the laboratory in which he worked has been certified by any professional organization. He has worked on hundreds of cases, but has never been formally tested by a neutral proficiency examiner. Nor could he cite any reliable report describing his error rates, that of his laboratory, or indeed, that of the field. Id. at 2. There was nothing beyond O Shea s subjective judgment on which he could base an opinion: There were no reference materials of any specificity, no national or even local database on which he relied. Id. at 3. Although, as the court observed, his past experience with firearms may have provided a basis for his opinions, he had no notes or pictures memorializing his past observations. Id. at 4. The photographs he had were not taken in the normal course of business but were taken, instead, specifically for the Daubert hearing. 18 Id. The court noted that O Shea examined only one weapon, the suspect weapon, to determine if it matched shell casings collected from one or more crime scenes. See id. Rather than a scientific blind test, in which the examiner would compare the spent shells to testfirings from a number of similar firearms, and also in which the examiner does not know which 17 O Shea was the only examiner at the pre-trial Daubert hearing for the Green case. Transcripts of the October 10 and November 2, 2005, hearings are attached hereto as Exhibit I. 18 As noted in note 1, infra, Lydon did not take photomicrographs in the case at bar until the prosecutor requested them at the defendant s behest. 24

25 firearm is the suspect weapon, O Shea test-fired only the suspect weapon. See id. The court deemed this testing as an evidentiary show up, in which only one suspect is presented for identification, as opposed to a lineup in which a number of potential suspects are presented. Id. After concluding that the shells matched the firearm, to the exclusion of all other firearms in the world, O Shea s work was then reviewed by another officer who did the same thing checked his conclusions under the same conditions... Id. The subjective nature of O Shea s conclusions and the flimsy, almost non-existent methodology on which he relied convinced the court to severely limit the ballistics testimony at trial. While allowing O Shea to appear as an expert witness, along with Detectives Tyrone Camper and Martin Lydon the same Detective Lydon who also conducted the ballistics examinations at issue in the case at bar the court ruled the officers could only testify as to similarities or differences they observed between their test-fires and the collected evidence, but could not declare a match. Id. at 5-6. After the government presented its case, the court struck Camper and Lydon s testimony as to any observations of similarity or difference which they had offered, noting that their testimony didn't even meet the standards that Judge Saris had outlined [in United States v. Monteiro, Crim. No PBS (D.Mass. Nov. 28, 2005)], 19 because they had taken no photographs and had no notes. Trial transcript, Dec. 29, 2005, at 40, attached hereto as Exhibit J. The court instructed the jury that it could only consider Camper and Lydon s 19 The Monteiro case and the court s decision regarding ballistics testimony by the government s proffered expert is discussed more thoroughly in Section III C (3), infra, regarding the existence or maintenance of standards required by Lanigan/Daubert. 25

26 testimony as to what physical evidence they had collected. See Trial transcript, Jan. 4, 2006, at , attached hereto as Exhibit K. Although the Green court limited the detective s testimony to perceived similarities and differences, such testimony is of little probative value and highly prejudicial. Because lay jurors have no experience in their daily lives in comparing toolmark impressions, they have no context within which to place the expert s testimony pointing out particular degrees of similarity. This is also true for comparison testimony regarding DNA profiles. With no basis, either from their own experience in daily life or from admissible expert testimony, for determining how many points of comparison might justify the conclusion of a match, or even whether similarities have any significance at all, the expert s testimony as to points of comparison is not only meaningless but also unduly prejudicial. The jury will simply assume that, if the court is taking up its valuable time to allow an expert to point out matching marks, they must be significant and, conversely, that the similarities denote a match and that a coincidental match is unlikely. Toolmark identification, unlike other forensic identification disciplines, is not an area where jurors can perform the crucial visual comparisons for themselves, thereby diminishing the danger of undue prejudice from the mystique attached to an expert. United States v. Hines, 55 F. Supp.2d 62, 70 n.21 (D.Mass. 1999) (allowing a handwriting expert to testify as to similarities or differences because those could be fully understood and evaluated by a jury) (internal citations omitted). 20 For example, In United States v. Horn, 185 F. Supp.2d 530 (D.Md. 20 The Green and Hines decisions were rendered by the same court and allowed the same limitation as to expert testimony. However, the defendant maintains that, unlike handwriting, the lay person s ability to evaluate toolmarks is limited to a fault. This does not concede that a toolmark examiner has expert ability; it means that the mystique factor may dominate a juror s view. The juror may take for granted an expert s claim of a match, even if the 26

27 2002), the court allowed a police officer to state an opinion regarding the defendant s sobriety, because the opinion was based on the officer s observation of the same visual clues that lay persons of ordinary experience use to determine whether someone has been drinking to excess. Id. at The court did not allow the officer to interject technical or specialized comments, despite his technical training or experience regarding field sobriety tests, because those comments were not based on reliable principals and methods. Id. The Court in Kumho Tire recognized that, whether the testimony to be offered was scientific or technical, the expert s testimony would rest upon an experience confessedly foreign in kind to the jury s own. Under those circumstances, the trial judge is required to assure that the specialized testimony is reliable and relevant and can help the jury evaluate that foreign experience. Kumho Tire, 526 U.S. at 149. The toolmark identification field is unreliable as a whole and the evidence should be excluded completely to assure that the jury will not be unduly prejudiced by it.. C. The Commonwealth Cannot Show That Its Proffered Expert Testimony Or Evidence Meets Any Of The Lanigan/Daubert Factors. 1. Whether the theory or technique... can be (and has been) tested. Daubert, 509 U.S. at 593; see also, Lanigan, 419 Mass. at Empirical testing is the essential criterion of science: Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry. The statements constituting a scientific explanation must be capable of empirical test. The criterion of the scientific status of a theory is its falsifiability, or testability. matching marks are not apparent to the juror. 27

28 Daubert, 508 U.S. at 593. (internal quotations and citations omitted); see also Lanigan, 419 Mass. at The requisite scientific testing to determine what constitutes a sufficient number of matching toolmarks or striae to justify an identification has never been performed. Unlike the field of fingerprint identification, which has from time to time entertained the idea of subjecting its methods to empirical, scientific studies without actually doing so the toolmark analysis field has never gone that far. 21 There has been no testing of the field s fundamental underlying premises, specifically the reliability of identifications made on the basis of individual characteristics, as opposed to class, sub-class, or accidental characteristics, particularly in cases where the similar striae are limited in number or area. Nor has there been testing to assess the reliability of an identification made from a distorted shell casing or bullet fragment, which is the scenario presented in the case at bar. The lack of empirical testing deprives toolmark comparisons of demonstrated reliability. See Lanigan, at 25-26; Daubert, 509 U.S. at 593. Without such testing, no statement of the likelihood of a match can be made. The BPD s examiners typically give one of three possible results in any comparison identification, exclusion, or no result. If a match is opined, it is 100 percent guaranteed no other statistical probability is ever offered. Examiners make this claim absent any meaningful tests in support, yet this absolutist position is inherently incredible. It is unclear where the bright line exists between no match and a 100 percent match, but without a 21 Demonstrated reliability requires these premises to have been actually tested. Simply being able to phrase the premises of an opinion in a testable way does not suffice. Cf. U.S. v. Mitchell, 365 F.3d 215, 238 (3rd Cir. 2004). If framing a hypothesis in a testable way were the criterion, astrology, among other unacceptable expertise, would satisfy the testability criterion. 28