Most of the public comments have been supportive, 1/ but three days ago, one commissioner submitted a comment arguing that Recommendation #1 would require the Department of Justice to argue for overturning existing law that “seem[s] to require” these phrases in some forensic-science identification fields and that Recommendation #3 asks the Attorney General to take action that exceeds her authority.
[Added 3/1/16: At least, this is what I thought the comment was driving at, but, as explained in a follow-up posting, I was mistaken. Nevertheless, I think the analysis of this point is worth leaving up for general viewing, since it addresses a question that might be raised about the proposal.]
The second point is well taken—the Attorney General has no power to “direct” NIST or the OSAC to act, and NIST supports but does not direct the OSAC structure. However, the notion that any federal district court is legally compelled to condition the admission of expert testimony on an obscure phrase like “reasonable scientific certainty” seems farfetched. Below are excerpts from a comment that I filed with the Commission today explaining my thinking (with minor alterations):
In sum, there are courts that find comfort in phrases like "reasonable scientific certainty," and a few courts have fallen back on variants such as "reasonable ballistic certainty" as a response to arguments that identification methods cannot ensure that an association between an object or person and a trace is 100% certain. But it seems fair to say that "such terminology is not required " -- at least not by any existing rule of law.
- E.g., Erin Murphy & Andrea Roth, Public Comment on NCFS Recommendation Re: Reasonable Degree of Scientific Certainty, Feb. 23, 2016, http://www.regulations.gov/#!documentDetail;D=DOJ-LA-2016-0001-0011
- These have been moved to a separate "views" document available through a link at https://www.justice.gov/ncfs/reporting-and-testimony. The recommended position is supported not only by the opinions of appellate courts across the country, but also the writings of federal judges, the drafters of the Federal Rules of Evidence, and the authors of the three leading legal treatises on scientific evidence.
- If they did, that would be a reason for the Department to advance a position to harmonize a conflict among the U.S. courts of appeals.
- For example, in one case cited in the Comment, United States v. Monteiro, 470 F. Supp. 2d 351 (D. Mass. 2006), the trial judge actually granted the defendant’s motion to exclude firearms testimony (unless the government supplemented the record with information establishing compliance with professional standards). The court then presented “reasonable degree of ballistic certainty” testimony as an acceptable way for the expert may testify,” but the court’s concern was plainly that “the expert may not testify that there is a match to an exact statistical certainty.” Id. at 375.
Similarly, in United States v. Ashburn, 88 F. Supp. 3d 239 (E.D.N.Y. 2015), the court’s concern was testimony “that he is ‘certain’ or ‘100%’ sure of his conclusions that two items match, that a match is to ‘the exclusion of all other firearms in the world,’ or that there is a ‘practical impossibility’ that any other gun could have fired the recovered materials.” Id. at 250. The trial judge settled on “reasonable ballistic certainty” as an acceptable alternative, but not necessarily an exclusive one.
So too, in United States v. Taylor, 663 F.Supp.2d 1170 (D.N.M. 2009), the district judge wrote that:
Mr. Nichols will be permitted to give to the jury his expert opinion that there is a match between the .30–.30 caliber rifle recovered from the abandoned house and the bullet believed to have killed Mr. Chunn. However, because of the limitations on the reliability of firearms identification evidence discussed above, Mr. Nichols will not be permitted to testify that his methodology allows him to reach this conclusion as a matter of scientific certainty. Mr. Nichols also will not be allowed to testify that he can conclude that there is a match to the exclusion, either practical or absolute, of all other guns. He may only testify that, in his opinion, the bullet came from the suspect rifle to within a reasonable degree of certainty in the firearms examination field.Id. at 1180.
- The court of appeals reasoned that “the ‘scientific certainty’ characterization was subject to cross examination which resulted in acknowledgment of subjectivity in the expert's work, [and] the district court properly instructed as to the role of expert testimony and there was substantial evidence otherwise linking the defendants to the . . . murders.” Id. at 990.