This brings me to the September D.C. opinion of United
States v. Marquette Tibbs, written by Associate Judge Todd E. Edelman. In this
case, the prosecution wanted to put on a witness who would testify that the
markings on a shell casing matched those of a gun discarded by a man who had
been charged with murder. The witness planned to testify that after examining
the marks on a casing under a microscope and comparing it with marks on casings
fired by the gun in a lab, the shell casing was a match to the gun.
This sort of testimony has been allowed in thousands of
cases in courtrooms all over the country. But this type of analysis is not
science. It’s highly subjective. There is no way to calculate a margin for
error. It involves little more than looking at the markings on one casing,
comparing them with the markings on another and determining whether they’re a
“match.” Like other fields of “pattern matching” analysis, such as bite-mark,
tire-tread or carpet-fiber analysis, there are no statistics that analysts can
produce to back up their testimony. We simply don’t know how many other guns
could have created similar markings. Instead, the jury is simply asked to rely
on the witness’s expertise about a match.
Because this sort of testimony has been accepted by courts thousands
of times over, it would have been easy and relatively unremarkable for Edelman
to have cited those decisions and allowed the evidence. He could have argued
that any doubts about the evidence could have been addressed by the defense
during cross examination or by putting on its own expert. Instead, Edelman held
a thorough evidentiary hearing, known as a Daubert hearing (named for
a Supreme Court case on the admissibility of scientific evidence), personally
reviewed the testimony and scientific literature, and reached a conclusion.
Here’s the heart of the opinion:
After conducting an extensive evidentiary hearing in this
case—one that involved detailed testimony from a number of distinguished expert
witnesses, review of all of the leading studies in the discipline, pre- and
post-hearing briefing, and lengthy arguments by skilled and experienced
counsel—this Court ruled on August 8, 2019 that application of the Daubert
factors requires substantial restrictions on specialized opinion testimony in
this area. Based largely on the inability of the published studies in the field
to establish an error rate, the absence of an objective standard for
identification, and the lack of acceptance of the discipline’s foundational
validity outside of the community of firearms and toolmark examiners, the Court
precluded the government from eliciting testimony identifying the recovered
firearm as the source of the recovered cartridge casing. Instead, the Court
ruled that the government’s expert witness must limit his testimony to a conclusion
that, based on his examination of the evidence and the consistency of the class
characteristics and microscopic toolmarks, the firearm cannot be excluded as
the source of the casing. The Court issues this Memorandum Opinion to further
elucidate the ruling it made in open court.
Note that Edelman did not rule that the witness couldn’t
testify at all. He ruled that the witness could testify only to conclusions
backed by scientific research. The witness could tell the jury that he could
not exclude the gun as the weapon that produced the casing. But he
could not say it’s a match because such a conclusion could not be proved.
This is an important distinction. Even the most strident
critics of these fields of forensics don’t claim that they’re useless. Even
bite-mark analysis can have some (minimal) investigative value. If there are
clear bite marks all over a victim, for example, and the main suspect has no
teeth, it seems safe to say that the suspect isn’t the source of the bites.
But it’s useful to compare fields like this with
single-source DNA evidence, which is backed by science. DNA analysts
don’t tell jurors that a suspect is a match. Instead, they use
percentages. Because we know the frequency with which specific DNA markers are
distributed across the population, analysts can calculate the odds that anyone
other than the suspect was the source of the DNA in question. We can’t do that
with marks on shell casings, or bite marks, or pry marks on a door because
there is no way of knowing how many different guns or teeth or crowbars might,
under the right conditions, produce identical marks.
What is remarkable about Edelman’s opinion is he
acknowledges that his ruling will be unusual and that it will cut against
nearly every court to rule before him, including appellate courts. But he
issues it anyway, because it happens to be correct.
Judges across the United States have considered similar
challenges to firearms and toolmark identification evidence. Of course, “for
many decades ballistics testimony was accepted almost without question in most
federal courts in the United States.” Based on the pleadings in this case, as
well as the Court’s own research, there do not appear to be any reported cases
in which this type of evidence has been excluded in its entirety. Earlier this
year, the United States District Court for the District of Nevada also surveyed
the relevant case law and concluded that no federal court had found the method
of firearms and toolmark examination promoted by AFTE—the method generally used
by American firearms examiners and employed by Mr. Coleman in this case—to be
unreliable.
Nevertheless, he determines that the guiding principle here
should not be precedent. It should be science.
In evaluating the persuasive weight of these decisions,
however, the undersigned could not help but note that, despite the enhanced
gatekeeping role demanded by Daubert, see 509 U.S. at 589, the overwhelming
majority of the reported post-Daubert cases regarding this type of expert
opinion testimony have not engaged in a particularly extensive or probing
analysis of the evidence’s reliability. In 2009, the National Research Council
(“NRC”) specifically criticized the judiciary’s treatment of issues relating to
the admissibility of firearms and toolmark evidence and the judiciary’s failure
to apply Daubert in a meaningful fashion. In the NRC’s view, “[t]here is little
to indicate that courts review firearms evidence pursuant to Daubert’s standard
of reliability.” …
Without disparaging the work of other courts, the NRC’s
critique of our profession rings true, at least to the undersigned: many of the
published post-Daubert opinions on firearms and toolmark identification
involved no hearing on the admissibility of the evidence or only a cursory
analysis of the relevant issues.
Yet, the case law in this area follows a pattern in which
holdings supported by limited analysis are nonetheless subsequently deferred to
by one court after another. This pattern creates the appearance of an avalanche
of authority; on closer examination, however, these precedents ultimately stand
on a fairly flimsy foundation. The NRC credited Professor David Faigman—one of
the defense experts who testified at the Daubert hearing in this matter—with
the observation that trial courts defer to expert witnesses; appellate courts
then defer to the trial courts; and subsequent courts then defer to the earlier
decisions.
As someone who has been beating this drum for years, I can’t
tell you how satisfying it is to see this in a court opinion. It’s just
remarkable.
Under Daubert v. Merrell Dow Pharmaceuticals
Inc., the Supreme Court laid out markers that judges should look for when
assessing scientific evidence, such as whether the methods in question are
subject to peer review and whether the expert’s methods are generally accepted
in the scientific community. Consequently, Daubert spawned cottage industries of forensic boards,
certifying organizations and quasi-academic journals, all aimed at conferring
legitimacy on dubious fields. When assessing a challenge to the scientific
reliability of an entire discipline of forensics such as ballistics analysis or
bite-mark analysis, then, too many judges have simply looked to these bogus
boards and journals and concluded that the state’s expert and his or her
methods are “generally accepted.”
But they’re accepted only by other experts within those same
suspect fields. These judges neglect to assess how the entire field has been
assessed by actual scientists. It’s like assessing the scientific validity of
an astrologer by citing astrology journals or by consulting other astrologists.
In this case, the prosecution cited a publication called the
Association of Firearm and Tool Mark Examiners (AFTE) Journal, which it claimed
had published “peer-reviewed” studies concluding that ballistics analysts had a
low rate of error. In his opinion, Edelman deftly slices through this noise:
Overall, the AFTE Journal’s use of reviewers exclusively
from within the field to review articles created for and by other practitioners
in the field greatly reduces its value as a scientific publication, especially
when considered in conjunction with the general lack of access to the journal
for the broader academic and scientific community as well as its use of an open
review process. …
Other courts considering challenges to this discipline under
Daubert have concluded that publication in the AFTE Journal satisfies this
prong of the admissibility analysis. …
It is striking, however, that these courts devote little
attention to the sufficiency of this journal’s peer review process or to the
issues stemming from a review process dominated by financially and
professionally interested practitioners, and instead, mostly accept at face
value the assertions regarding the adequacy of the journal’s peer review
process. …
In the undersigned’s view, if Daubert, Motorola, and Rule
702 are to have any meaning at all, courts must not confine the relevant
scientific community to the specific group of practitioners dedicated to the
validity of the theory—in other words, to those whose professional standing and
financial livelihoods depend on the challenged discipline. As Judge Jon M.
Alander of the Superior Court of Connecticut aptly stated, “[i]t is self
evident that practitioners accept the validity of the method as they are the
ones using it. Were the relevant scientific community limited to practitioners,
every scientific methodology would be deemed to have gained general
acceptance.”
Edelman’s opinion is the Platonic ideal of a Daubert analysis.
It ought to be the norm. But we should also be careful not to conclude that
because Edelman did it correctly, other judges will too. Again, it’s just not
realistic to expect people trained in law to accurately assess the validity of
scientific evidence that sometimes gets quite complicated.
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