On Tuesday (21 December 2021), the Texas Forensic Science Commission issued a Statement Regarding 'Alternate Firearms Opinion Terminology'. It is a forceful correction to misinformation from the FBI Laboratory's Assistant General Counsel, Jim Agar II. \1/ The email that attracted the Commission's critical attention tells forensic analysts what they are supposed to say in opposition to motions to limit their testimony about firearms-toolmark comparisons. As previous postings show, there has been no shortage of defense motions seeking to forbid eliciting opinions that ammunition components associated with a crime came from a particular gun.
The FBI advice to firearms examiners is entitled "Dealing with Alternate Firearms Opinion Terminology" (hereinafter Dealing). It begins by dismissing the best efforts of federal and state judges to respond to weaknesses in traditional "This is the gun!" testimony as "wholesale attempts to rewrite the firearm expert's testimony by a layman with no experience in forensic science." \2/ The fact that eminent scientists and respected jurists have questioned source-attribution testimony in general and in this field in particular does not seem to matter. According to Dealing, the limitations are "not supported by either science or the law." Despite the government's annoyance with lay judges' rulings, however, courts have a duty to review the scientific and scholarly literature to decide whether strong claims of source attributions are sufficiently warranted. \3/
Dealing continues, more reasonably, with the strategic recommendation that "firearms examiners and prosecutors should address the terminology issue head-on during their direct examination at the admissibility hearing. Preempt this issue early. Don't wait for the judge or the defense counsel to bring it up." But the tactics for bringing it up are over the top. Dealing imagines the following colloquy:
Prosecutor: Can you testify truthfully that your opinion is that the cartridge cases and/or bullets in this case
• "Could or may have been fired by this gun?"
• ''Are consistent with having been fired by this gun?"
• "Are more likely than not having been fired by this gun?"
• "Cannot be excluded as having been fired by this gun?"
Examiner: No, I cannot testify truthfully to any of those statements or just the class characteristics alone.
Prosecutor: Why not?
Examiner: For three reasons: First, there are no empirical studies or science to backup any of those statements or terminology. Second, those statements are not endorsed nor approved by my laboratory, any nationally recognized forensic science organization, law enforcement, or the Department of Justice. Third, those statements are false as they do not reflect my true opinion of identification. Such statements would mislead the jury about my opinion in this case. It would also constitute a substantive and material change to my opinion from one of Identification to Inconclusive. This would constitute perjury on my part for I would not be telling the jury the whole truth.
The "three reasons" border on the absurd (if they do not cross the border). First, the empirical studies that prosecutors cite to support the ability of firearms experts to match ammunition components to specific guns also support the bulleted statements. This is because the alternatives are lesser included statements, so to speak. If a categorical source attribution is correct, then a weaker included statement such as "cannot be excluded" also is true. If "empirical studies or science" do not adequately support these weaker statements, then, a fortiori, they do not support the much stronger claims that Dealing advocates.
Second, that law enforcement organizations and crime laboratories do not approve of the policy of replacing traditional "This is the gun!" testimony with a less telling alternative proves nothing about whether the bulleted statements are true or false. It merely means that a laboratory is unwilling to change its standard operating procedure and that "law enforcement" opposes losing the opinions that prosecutor's love their experts to provide. No self-respecting expert can say that the desire of "law enforcement" and crime laboratories for the strongest possible testimony makes less compelling testimony "untruthful."
Finally, that any lawyer -- let alone one representing the FBI -- would ask a forensic examiner to tell a judge that it would be perjurious to testify in the bulleted ways is shocking. A federal perjury prosecution would be laughed out of court. Under federal law, statements that are known to be incomplete, or, worse, fully intended to distract or mislead, do not constitute perjury if they are literally true. The leading case is Bronson v. United States. \4/ There, defendant testified as follows:
Q. Do you have any bank accounts in Swiss banks, Mr. Bronston?
A. No, sir.
Q. Have you ever?
A. The company had an account there for about six months, in Zurich.
Q. Have you any nominees who have bank accounts in Swiss banks?
A. No, sir.
Q. Have you ever?
A. No, sir.
In reality, the witness had previously maintained and had made deposits to and withdrawals from a personal bank account in Geneva, Switzerland. Clearly, his answers were calculated to avoid revealing this fact. However, the Supreme Court unanimously reversed a conviction for perjury, concluding that the federal statute did not criminalize lying by omission and misdirection.
To be sure, some state statutes define the crime to encompass wilful omissions, but the core idea remains that perjury occurs when the witness intends to give the questioner false information or a false impression so as to obstruct the ascertainment of the truth. \5/ An expert witness who testifies sincerely to true statements such as "the defendant's gun cannot be excluded as the one that fired the recovered bullet" or "measurements of the bullet and the pistol showed them both to be 9 mm, so the bullet could have been fired from the gun," is not intending to lead anyone to a false conclusion. That the FBI would like firearms examiners to give more incriminating opinions does not make the lesser included testimony false or misleading. A prosecutor who truly is worried that "[t]estimony about class characteristics alone may falsely imply an examiner was unable to reach a conclusion of identification" can ask the court to instruct the jurors that the rules of evidence no longer allow an expert witness to testify that a bullet came from a particular gun and that they may not draw any inference from the absence of such inadmissible testimony. Instead, they are to use only the testimony that the expert gave in coming to a conclusion about which gun fired the recovered bullet.
After maintaining that "laymen" (courts) are asking toolmark examiners to commit perjury, Dealing gives another specious argument to persuade toolmark experts to stick to their guns (sorry about that) and refuse to "agree to testify to the terms of 'Could or may have fired,' or 'Consistent with,' 'More likely than not,' or 'Cannot be excluded.'" FBI counsel believes that examiners who testify this way when they feel that a traditional source attribution is justified "are ratifying these bogus statements and adopting this as their testimony, giving the judge a pass on the difficult decision to admit or exclude their testimony. They are also acquiescing to the judge's faulty terminology."
This is nonsense. The law has a spectrum of options ranging from excluding every bit of information a firearms expert might provide (which is unjustified given what is known about the performance of these experts) to unfettered admission of "This is the gun!" testimony (which is traditional). The only "fault" in the intermediate testimony is that it is not as strong as a prosecutor might want it to be. It is conservative in the sense of understating probative value (as FBI counsel understands the science), but testifying conservatively at trial when that is what a court requires does not "ratify" anything about the court's ruling. It simply presents a permissible opinion. DNA experts who testified to "ceiling" probabilities of random matches because that was the best the prosecution could get some courts to accept circa 1995 were not perceived as "ratifying these bogus statements." \6/
Dealing disagrees. FBI counsel insists that "acquiescing" in court rulings is "fatal" to an examiner's career as a witness:
This is fatal. Why? Once you testify to these bogus terms, you are wedded to them for life. At subsequent trials, defense counsel will pull out the verbatim transcript of the examiner's previous testimony where they used these court-induced terms. On cross examination, they will confront the examiner with their previous testimony and contrast their opinion of "Identification" with those in previous cases, then claim the expert is merely making this stuff up. The examiner no longer has any credibility in the jury's eyes.
This fear of cross-examination is fanciful. If the expert testifies at the admissibility stage (as Dealing contemplates) that "This is the gun!" testimony is scientifically justified, then that is what the expert is on record as stating. Later, more circumscribed testimony pursuant to court order is not an inconsistent statement useful for impeachment. Any competent expert witness will have no trouble explaining that in the earlier case, I reached the conclusion of "identification" (just read my case notes), and I used other terminology only because the prosecutor asking the question (or the judge) said I had to use the lesser included language because of a legal rule rather than a scientific principle.
In contrast, the witness who follows FBI counsel's advice will lose all credibility. The truth is that the lesser included testimony, while less powerful, is no less truthful than "This is the gun!" testimony. It is somewhat like choosing a wider confidence interval to increase the coverage probability; the statement becomes less precise, but it is more likely to be true. Talk of perjury and being asked to lie suggests either that (1) the witness does not understand a statement such as "the recovered bullet could have come from/is consistent with coming from/is not excluded as coming from/is more likely to have come from the firearm in question or that (2) the witness has chosen to lobby for the prosecution rather than to educate the judge impartially.
NOTES
- Mr. Agar is a decorated, retired Colonel with "31 years of successful experience leading complex legal organizations as a general counsel, attorney, leader, mentor and trainer of FBI legal offices and senior-level Army staffs" and "hands-on experience in advising senior FBI and Army leaders in all legal matters." His work as Assistant General Counsel for the "FBI Forensic Laboratory" began in October 2016. On Linkedin, from which these quotations are taken, he summarizes his current position as
Legal advisor to the largest and best forensic laboratory in the world with a staff of over 700 scientists and a budget of $110 million. Responsible for training and qualifying the FBI’s forensic examiners to testify in any and all courts nationwide and internationally, consisting of over 120 examiners in 37 different disciplines. Coordinate all discovery for the Laboratory. Provide ethics advice to Laboratory personnel.
- Discussion of this line of cases can be found in David H. Kaye et al., Wigmore on Evidence: Expert Evidence (3d ed. 2021).
- The track record of the courts in translating this literature and the growing research on firearms-toolmark comparisons into appropriate constraints on proposed expert testimony is not perfect. Indeed, most of the judicial palliatives for perceived expert overclaiming (such as the supposed limitation of "a reasonable degree of ballistic certainty" and the alternatives listed in Dealing) are far from optimal. Id. (and other postings in this blog). But these failures hardly mean that, as "laymen," judges are disqualified from trying to improve the presentation of expert knowledge by excluding certain forms of testimony.
- Bronston v. United States, 409 U.S. 352 (1973).
- See Ira P. Robbins, Perjury by Omission, 97 Wash. U. L. Rev. 265 (2019).
- See, e.g., David H. Kaye, The Double Helix and the Law of Evidence (2010).
