Mississippi Court of Appeals Sees No Problem with the Usual Bullet-mark Testimony

In an opinion devoid of serious analysis, the Mississippi Court of Appeals ruled that the trial court properly admitted a firearms examiner's testimony that a shell casing found at the scene of a murder was fired from a stolen pistol 9-millimeter pistol found in the defendant's girlfriend's car. Despite the effort by the President's Council of Advisors on Science and Technology (PCAST) to read into the (federal) rules of evidence a requirement that the examiner supply an estimate of the false-positive probability for this type of toolmark matching, the court was satisfied with the witness's adoption of the prosecutor's characterization of the identification of the murder weapon to "a reasonable degree of scientific certainty." The opinion in Willie v. State, No. 2016-KA-01416-COA, 2018 WL 5810067 (Miss. Ct. App. Nov. 6, 2018), is as yet unpublished. Excerpts follow.

On appeal, Willie argues that the trial court erred in qualifying [Bryan] McIntire as an expert witness and in allowing him to testify that the casing found at the murder scene matched the gun recovered in Willie's possession. He claims McIntire's testimony was conclusory, and the scientific methods used by the expert were “questionable,” particularly noting McIntire's failure to provide a margin-of-error rate regarding the science of firearm identification and to take any photographs. ...

Willie ... claims the validity of McIntire's testimony has been called into question by “recent developments in the scientific community,” citing a 2008 NAS report ... , a 2009 NAS report of forensic science, as well as a 2016 report from the President's Council of Advisors on Science and Technology. The 2008 report cautioned:

Conclusions drawn in firearms identification should not be made to imply the presence of a firm statistical basis when none has been demonstrated. Specifically, ... examiners tend to cast their assessments in bold absolutes, commonly asserting that a match can be made to the exclusion of all other firearms in the world.” Such comments cloak an inherently subjective assessment of a match with extreme probability statement that has no firm grounding and unrealistically implies an error rate of zero.

The 2016 report stated:

Whether firearms analysis should be deemed admissible based on current evidence is a decision that belongs to the courts. If firearms analysis is allowed in courts, the scientific criteria for validity as applied should be understood to require clearly reporting the error rates seen in one appropriately designed black-box study. Claims of higher accuracy are not scientifically justified. ...

During direct examination of McIntire, the State asked:

Q. Okay. And what determination did you reach, to a reasonable degree of scientific certainty, as to the class characteristics of the particular gun as it relates to the casing?
...
A. The class characteristics that Mr. Williams described, they are the same. The firearm in State's Exhibit 7A is a 9-millimeter Ruger caliber, and the cartridge case that's in State's Exhibit 8 is a 9-millimeter Ruger caliber cartridge casing.
Q. And to a reasonable degree of scientific certainty, did you reach a conclusion as to the individual characteristics as it relates to the casing in State's Exhibit 8, as well as the gun in State's Exhibit 7A?
A. Yes, I did.
Q. And what was that conclusion, to a reasonable degree of scientific certainty, that you reached?
...
A. That the cartridge case that's in State's Exhibit 8 was fired in the gun that's in State's Exhibit 7A. ....

... When asked by defense counsel about the margin of error, McIntire replied: “I understand what you're talking about with ‘margin of error,’ but we do not have a reporting procedure for a margin of error.” But McIntire also clarified that he was not saying “there was not a margin of error in the field.”

We do not find McIntire's failure to cite any margin of error warrants reversible error as asserted by Willie. The United States Supreme Court noted in Daubert [that] "The inquiry envisioned by Rule 702 is, we emphasize, a flexible one." ... [C]ourts have ... upheld an examiner's determination that a bullet or casing came from the defendant's gun to within a “reasonable degree of scientific certainty.” ... United States v. Otero, 849 F.Supp.2d 425, 435 (D.N.J. 2012), ... United States v. Ashburn, 88 F.Supp.3d 239, 247 (E.D.N.Y. 2015) ... People v. Rodriguez, 413 Ill.Dec. 996, 79 N.E.3d 345, 356-57 (Ill. Ct. App. 2017)
...
The Louisiana Court of Appeals recently considered this issue in State v. Lee, 217 So.3d 1266 (La. Ct. App. 2017). Like McIntire, the expert witness had years of experience, was certified by the AFTE, and had routinely passed proficiency tests. Id. at 1273. The expert witness also testified that he “was not aware of any error rate with respect to the type of testing he performed.” Id. at 1274. Addressing Daubert and Rule 702, the appellate court found the testimony offered by the expert to be “relevant” and “reliable,” stating:

Based on the foregoing, it cannot be said that the jurisprudence supports Defendant's assertion that the scientific community has rejected the methodology and theory of firearms identification. To the contrary, even after publication of the [2009] NAS Report, courts have addressed, in detail, the reliability of such testimony and ruled it admissible, although to varying degrees of specificity.

Id. at 1275-78. We conclude that the trial court did not err in qualifying McIntire as an expert and allowing his testimony.

Despite the outcomes in Willie and Lee and arguments about PCAST's construction of Rule 702 notwithstanding, firearms examiners would be well advised to have better responses to questions about error rates in their field than "not aware of any" and "we do not have a reporting procedure."

Index to comments and cases on the PCAST report