District Court for the Eastern District of New York maintains that toolmark and firearm identification is an appropriate subject for expert testimony

Ballistics is the study of the dynamics of projectiles or the study of the internal action of firearms. In most cases, an expert ballistics examiner can identify what type of firearm was used, where it was fired from and how many shots were fired. Ballistics experts attempt to identify a weapon by the markings left behind on a bullet or bullet casing after firing. They can determine where the gun was fired from by analyzing the angle of entry, the caliber of bullet, and the depth of the wound. The discipline is based on the theory that tools used in the manufacture of a firearm leave distinct marks on various firearm components, such as the barrel, breech face or firing pin.

The District Court for the Eastern District of New York, in United States of America v. Yasser Ashburn, Jamal Laurent and Trevelle Meritt (2015 U.S. Dist. LEXIS 20625), recently had the opportunity to consider whether the field of firearms identification and microscopic analysis meets the standard for admission as expert testimony. The primary background of the case are as follows:

Defendants Yasser Ashburn, Jamal Laurent, and Trevelle Merritt are charged by a fourteen count indictment with numerous racketeering crimes committed in connection with their membership in the Six Tre Outlaw Gangsta Disciples Folk Nation (“Six Tre Folk Nation” or “Six Tre”), which was allegedly responsible for numerous acts of gang-related violence, including homicides, non-fatal shootings, and commercial robberies in Brooklyn and elsewhere beginning in 2007 through 2011. The indictment alleges that during those years, members and associates of Six Tre engaged in several acts of violence, including murder, attempted murder, robbery, and assault.

The Government notified the defendants that it expects to call Detective Salvatore LaCova to testify as an expert in the field of firearms identification and microscopic analysis. Counsel for Jamal Laurent moved in limine to preclude LaCova from testifying on the ground that the field does not constitute an appropriate subject for expert testimony, alleging it to be deficient of sufficiently objective methodology. In the alternative, Laurent prayed for certain limitations to be placed on LaCova’s testimony and sought a Daubert hearing. Thus the core issue as identified by the Court was whether the field of firearm identification and microscopic analysis, also known as toolmark and firearms identification or ballistics, is a proper topic of expert testimony in the case.

The Court observed that ballistic analysis follows the principles adopted by the Association of Firearms and Toolmark Examiners or AFTE, and the governing standard is that of “sufficient agreement”, i.e., the agreement, qualitative as well as quantitative, between the items in comparison, that the likelihood another tool could have made the mark is so remote as to be considered a practical impossibility. Deliberating on the question whether a Daubert hearing is necessary to ascertain the reliability of the AFTE methodology, due note was taken of the findings made in numerous federal cases in this regard and the motion was denied as a well-documented record about the methodology was available before the Court already.

Next, the Court proceeded to consider the motion to exclude LaCova’s testimony completely. Testing the subject matter of his testimony against Rule 702 standards, the Court found that the opinion of a ballistics expert is not necessarily antithetic to Rule 702. Analyzing the characteristics of the field of toolmark and firearm identification with respect to each of the Daubert factors, firstly, it was found that the AFTE methodology has been repeatedly tested in the recent history of criminal jurisprudence in the country. Secondly, the Court acknowledged that there has been considerable academic discussion subjected to peer review and publication in this discipline. Thirdly, the Court found that despite the lack of a sound statistical foundation for estimation of error rates of the AFTE methodology due to its subjective nature, the error rate appears to be low. Fourthy, the Court conceded that despite the AFTE standard of “sufficient agreement”, the methodology remains in nature essentially a “subjective inquiry”, but did not render it fatal to the cause for admission of LaCova’s testimony, persuaded by the 2006 opinion of the District Court of Massachusetts in United States v. Monteiro (407 F. Supp. 2d 351) that “a court may admit well-founded testimony based on specialized training and experience”. Lastly, it was also recognized that the AFTE methodology is generally accepted within the field of toolmark and firearms identification, weighing in favor of admission of the expert testimony.

On the other hand, Laurent tendered an alternative prayer that LaCova not be allowed to testify that his opinion is based on any degree of “certainty,” and that he limit his opinion to conclusions that are “more likely than not.” The Court granted this motion, citing the subjectivity of the AFTE methodology, irrespective of the fact that LaCova had a perfect record in identifying matches so far. Keeping in mind that “the scientific knowledge base for toolmark and firearms analysis is fairly limited”, the Court observed that determining whether a match demonstrates “sufficient agreement” is dependent primarily on the training and experience of the examiner, instead of a specific protocol or methodology.