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Monday, April 20, 2009

 
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Last week

Lori Haines and Eric Sahota brought us a report on the ASU conference in regards to the NAS report on Forensic Science.
 

This week

we see the first known mention of the NAS Committee Report in a publically-available motion to exclude document on impression evidence.

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Motion to Exclude Firearms Identification Testimony

in

UNITED STATES OF AMERICA

v.

WILLIE GAYDEN

Criminal No. 2006 CFI 27899
Judge: Hon. Michael L. Rankin
Status Date: May 1st, 2009

NOTICE OF SUPPLEMENTARY AUTHORITY RELATED TO DEFENDANT’S MOTION TO EXCLUDE FIREARMS IDENTIFICATION TESTIMONY

[INTRODUCTION:]

Mr. Gayden hereby provides supplemental authority in support of his Motion to Exclude Firearms Identification Testimony (“Motion to Exclude”).

Mr. Gayden’s Motion, filed on October 6, 2008, citing the authority of the Due Process Clause of the Fifth Amendment and the rule set forth in Dyas v. United States, 376 A. 2d 827 (D.C. 1977) and Frye v. United States, 293 F.1013 (D.C. Cir. 1923), raised several objections to the anticipated testimony of firearms examiner Rosolyn Brown that tool marks on the ballistics evidence in this case “match” the recovered firearms “to a practical certainty” or “to a reasonable degree of scientific certainty,” among them:

* the fundamental assumptions of “uniqueness” and “reproducibility” of tool marks on ballistics evidence are not generally accepted in the relevant scientific community;

* the subjective methodology for identifying so-called “individual” characteristics is not generally accepted; and

* claims of identity should not be admitted because there is no generally accepted statistical expression for the probability of a coincidental match.

In support of his Motion, Mr. Gayden attached the affidavits of five eminent scientists from the relevant scientific community – a former FBI metallurgist, a mechanical engineer, two statisticians and a cognitive neuroscientist – as well as an affidavit from a scholar who has published extensively on the forensic identification sciences, and more specifically, on firearms and tool mark identification.1

In February of this year, the National Research Council (“NRC”) of the esteemed National Academy of Sciences (“NAS”) released a long-anticipated report entitled, Strengthening Forensic Science in the United States: A Path Forward (“NRC Forensic Science Report”)[…]. This report – the product of years of investigation by a committee composed of both “expert[s] in various forensic disciplines . . . [and] different fields of science [and] engineering” with the input of “countless experts” including “forensic science practitioners, heads of public and private laboratories, directors of medical examiner and coroner offices, scientists, scholars” – lends wholesale support to each of Mr. Gayden’s arguments to exclude firearm identification testimony. In sum, while “[t]he committee agree[d] that class characteristics are helpful in narrowing the pool of tools that may have left a distinctive mark,” they were adamant that the field of firearms comparison has yet to establish “the capacity to consistently and with a high degree of certainty support conclusions about ‘individualization.’”

Because the […] report constitutes a general and resounding rejection of firearms identification testimony by the relevant scientific community, and for the reasons set forth below and in Mr. Gayden’s Motion to Exclude, any testimony that markings on bullets and cartridge casings in this case were produced by particular firearms should be excluded from Mr. Gayden’s trial and, thus, Mr. Gayden’s Motion should be granted because it fails to meet the necessary standards for admissibility.

[BODY:]
* * *

I. NRC Reports Are Given Significant Weight By Courts In This Jurisdiction As Well As By Forensic Practitioners

A. Porter and NRC I

B. Downfall of Comparative Bullet Lead Analysis

II. The NRC Forensic Science Report is the Work Product of the Relevant Scientific Community

A. Committee Members

B. Reviewers

C. Presenters

III. Firearms Identification Testimony Is Not Generally Accepted By The Relevant Scientific Community

A. The fundamental assumptions of “uniqueness” and “reproducibility” of tool marks on ballistics evidence are not generally accepted

B. The subjective methodology for identifying so-called “individual” characteristics is not generally accepted

1. It lacks a “precisely defined process”
2. No standard for minimum points of comparison
3. No consensus on the meaning of “match”
4. Unknown error rate
5. Subjective methodology heightens exposure to contextual bias

C. There is no generally accepted statistical expression for the probability of a coincidental match

* * *

[CONCLUSION]

Little more than a month has passed since the Committee publicized its finding that a “match” in the field of firearms and tool mark comparison has no scientific meaning or basis, and garners no general support in the relevant scientific community, and already the forensic community is responding. On April 3rd and 4th, 2009, forensic scientists and scholars from across the country convened in Tempe, Arizona to discuss the NAS Forensic Science Report at a conference entitled, Forensic Science for the 21st Century: The National Academy of Sciences Report and Beyond. Among the many panel members was Chris Hassell, the current director of the FBI Crime Laboratory. Mr. Hassell, representing an influential voice in the forensic sciences, noted that in light of the NRC Report the FBI’s firearms analysts will no longer testify to conclusions of individualization. Clearly the MPD’s firearms comparison practice is out of step with the current understanding of the limitations on the field if they are not following suit.

While the scientific community has rejected the notion that reliable individualization conclusions can presently be drawn from firearms tool mark evidence, its members are agle to agree “that class characteristics are helpful in narrowing the pool of tools that may have left a distinctive mark.” [2] Therefore, until claims of individuality by forensic firearm examiners are generally accepted in the scientific community, Ms. Brown should be limited by this Honorable Court to testifying, if at all, to only class similarities and should be precluded from offering opinions on individualization under the rule of Frye, Dyas and the Due Process Clause of the Fifth Amendment.

NOTES:

1. Throughout this motion, “firearms” comparisons and “tool marks” comparisons are used interchangeably. Firearms comparisons are a subset of tool mark analysis.

2. Classification opinions, too, must be backed by empirical evidence. While many of the problems discussed with respect to individualization conclusions – e.g. untested assumptions and unvalidated methodology – are also inherent in classification testimony, there is more of an empirical underpinning for the opinion that marks on a bullet are similar to those made by a model of gun.

Respectfully Submitted,
[signed]
J. Christopher McKee, D.C. Bar 470107
Jospeh Caleb, D.C. Bar
Counsel for Willie Gayden
Public Defender Service

Delivered to Assistant US Attorney Steven Wasserman
April 8, 2009

 

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