Ballistics experts can’t testify that recovered bullets match firearms, Md. high court rules

[Butcher]

Ballistics experts can’t testify that recovered bullets match firearms, Md. high court rules

The field of firearms identification is not reliable enough to allow expert testimony linking crime scene bullets to specific guns, Maryland’s top court ruled this week.

Using a new, stricter admissibility standard for scientific testimony, a split Maryland Supreme Court concluded that ballistics experts can only say whether the markings on a bullet are “consistent” or “inconsistent” with bullets fired from a particular gun.

“We do not question that firearms identification is generally reliable, and can be helpful to a jury, in identifying whether patterns and markings on ‘unknown’ bullets or cartridges are consistent or inconsistent with those on bullets or cartridges known to have been fired from a particular firearm,” Chief Justice Matthew Fader wrote in a 59-page majority opinion.


“However, based on the record here, and particularly the lack of evidence that study results are reflective of actual casework, firearms identification has not been shown to reach reliable results linking a particular unknown bullet to a particular known firearm.”

The 4-3 decision is expected to have far-reaching consequences in trial courts across the state. Firearms identification, which is based on the idea that individual firearms can leave a unique pattern of marks and grooves on the bullets they fire, is a relatively common form of forensic evidence.

What’s less clear, however, is what impact the ruling will have on existing convictions that relied on this type of evidence.

The decision could make a difference in cases where a defense lawyer objected to the evidence and an appeal is still possible, said appellate lawyer Steven M. Klepper, who was not involved in the case.

Prior convictions that were based on firearms identification evidence won’t automatically be reopened because of this ruling, but defendants could file a petition for a writ of actual innocence, Klepper said.

The man at the center of the case, Kobina E. Abruquah, will receive a new trial in a murder case out of Prince George’s County.

Abruquah sought to exclude expert testimony from Scott McVeigh, a firearms examiner with the Prince George’s County Police Department, at Abruquah’s trial in the 2012 slaying of Ivan Aguirre-Herrera, his Riverdale housemate. McVeigh testified that bullets from the crime scene came from Abruquah’s gun, and jurors found Abruquah guilty in 2018 of first-degree murder.

The case showcases a new admissibility standard that the Maryland Supreme Court adopted in its August 2020 Rochkind v. Stevenson decision.

In that case, the high court abandoned its long-held “general acceptance” standard for admitting scientific testimony, known as Frye-Reed, in favor of a “reliability” standard announced by the U.S. Supreme Court in a 1993 decision and adopted by about 40 states in the past 29 years.

The widely accepted reliability standard is called Daubert, after the Supreme Court’s ruling in Daubert v. Merrell Dow Pharmaceuticals Inc.

The version of the standard adopted in Maryland requires judges to apply 10 factors in assessing expert testimony, ranging from the potential error rate in a forensic field to whether the technique has been subjected to peer review.

Fader, writing for the majority, found that the error rates in studies of forensic identification can vary widely depending on the type of study and whether the examiners know they are being tested. Fader also noted that there are no industry standards or controls to guide examiners when they analyze bullets; one study found that examiners who looked at the same bullet set twice classified them differently between 20% and 35% of the time.

David Jaros, the faculty director of the University of Baltimore School of Law’s Center for Criminal Justice Reform, said the shift to the Daubert standard means courts are more responsible for evaluating the quality of scientific testimony.

“We have to recognize that this is hard, but just because it’s hard doesn’t mean we should ignore the fact that this is incredibly powerful testimony that has the appearance of neutrality but is in fact often very subjective and not nearly as trustworthy as juries often treat it,” he said.

The Maryland Attorney General’s Office, which represented the state in the appeal, did not immediately provide a comment on the decision.

Brian Zavin, who heads the Appellate Division of the Maryland Office of the Public Defender, said the criminal legal system “has allowed unvalidated and unreliable methods to be admitted at trial for too long.”

“Countless individuals have been convicted on the basis of quasi-scientific evidence that does not withstand scrutiny,” Zavin said in an emailed statement. “The Supreme Court’s opinion is a step in the right direction, and we look forward to this type of in depth analysis for other forensic disciplines, even those that have long been considered settled.”

In a pair of dissents, three justices argued that the majority should have deferred to the circuit judge, who allowed McVeigh’s testimony under the Daubertfactors.

Justice Steven B. Gould authored a lengthy dissent that defended the reliability of firearms identification and suggested that the jury, not the judge, should have been asked to decide if McVeigh’s conclusions supported convicting Abruquah.

The decision could make a difference in cases where a defense lawyer objected to the evidence and an appeal is still possible, said appellate lawyer Steven M. Klepper, who was not involved in the case.

Prior convictions that were based on firearms identification evidence won’t automatically be reopened because of this ruling, but defendants could file a petition for a writ of actual innocence, Klepper said.

 

[Dogmeat]

This will inevitably lead to another push for micro-stamping. They have been pushing for it for a long time, this will be the latest reason for their insistence it must be passed.

 

[Tungsten]

This will inevitably lead to another push for micro-stamping. They have been pushing for it for a long time, this will be the latest reason for their insistence it must be passed.

I don't know how microstamping could link a bullet to a gun either.

 

[spoon059]

I've always wondered about that. We were discussing today about how primer strikes are considered sufficient for identifying a particular gun. How many hundreds of millions of guns in the US that we know of, and a firing pin is how miniscule, and each individual firing pin is unique? Doubtful in my mind...

I don't know how microstamping could link a bullet to a gun either.

One has nothing to do with the other, but facts don't matter in an emotional argument. Microstamping will obviously make guns less killy...

 

[6-Pack]

I don't know how microstamping could link a bullet to a gun either.

Yeah, swap out a firing pin and a little light filing on your bolt face will keep things interesting.

There’s also the hundreds of thousands of guns out there without microstamping, and Bruen that would render this not feasible.

Or just run a bunch of steel cased ammo through the gun and that’ll do the work for you.

 

[systemmaster]

I've always wondered about that. We were discussing today about how primer strikes are considered sufficient for identifying a particular gun. How many hundreds of millions of guns in the US that we know of, and a firing pin is how miniscule, and each individual firing pin is unique? Doubtful in my mind...

One has nothing to do with the other, but facts don't matter in an emotional argument. Microstamping will obviously make guns less killy...

The marks a specific firing pin, barrel or extractor make are quite unique when viewed under a microscope and do change over time. This is based upon volume of use, care and ammunition.

The issue at hand it not the science behind the ballistics, its the scientific method supporting it and the science community backing it. This happens frequently when something "forensic" comes from somewhere other than science academia (think trace evidence: fibers, hair, soil etc). All ballistics forensics needs to do is adapt a methodology from the approved forensic science community and it will satisfy the court's standards. This would make micro stamping unnecessary and save governments money on investing in new tech to do the same thing they already had been doing.

This issue has been known in the forensic ballistics community for a while and several steps have been taken to make it more accepted in the science community.

 

[Lafayette]

The marks a specific firing pin, barrel or extractor make are quite unique when viewed under a microscope and do change over time. This is based upon volume of use, care and ammunition.

The issue at hand it not the science behind the ballistics, its the scientific method supporting it and the science community backing it. This happens frequently when something "forensic" comes from somewhere other than science academia (think trace evidence: fibers, hair, soil etc). All ballistics forensics needs to do is adapt a methodology from the approved forensic science community and it will satisfy the court's standards. This would make micro stamping unnecessary and save governments money on investing in new tech to do the same thing they already had been doing.

This issue has been known in the forensic ballistics community for a while and several steps have been taken to make it more accepted in the science community.

Gutowski did a good interview on why it’s not just methodology. It goes beyond that, and raises concerns that this is junk science.

Podcast: Author Radley Balko Explains Why Courts Are Starting to Reject Firearms Ballistic Analysis

Plus, Contributing Writer Jake Fogleman and I talk about how far the injunctions against President Biden’s pistol-brace ban extend.

thereload.com

 

[delaware_export]

Old news. Here is a link from over a year ago. i think it was in a thread here back then but can’t find

Why a High-Ranking FBI Attorney Is Pushing ‘Unbelievable’ Junk Science on Guns

Photo Illustration by Elizabeth Brockway/The Daily Beast/GettyLate last year, a forensic firearms analyst in Wisconsin emailed a remarkable document to more than 200 of her colleagues across the country. It was a handout from an online lecture given by Jim Agar, the assistant general counsel for...

www.yahoo.com

 

[Bountied]

I've always wondered about that. We were discussing today about how primer strikes are considered sufficient for identifying a particular gun. How many hundreds of millions of guns in the US that we know of, and a firing pin is how miniscule, and each individual firing pin is unique? Doubtful in my mind...

One has nothing to do with the other, but facts don't matter in an emotional argument. Microstamping will obviously make guns less killy...

So after you shoot someone change the pin and throw the gun in a body of water? The more you know...

 

[Inigoes]

So after you shoot someone change the pin and throw the gun in a body of water? The more you know...

Use a revolver or cartridge catcher, so you don't have to worry about leaving evidence laying around.

 

[Mark75H]

I had already heard about this from LEOs and prosecutors. Basically, this just makes it official for those who were behind the times.

 

[lazarus]

A slight clarification, yes they can't testify that the ballistics match to a gun. But they can testify the ballistics indicate it could be the gun. Ballistics could rule out a gun, but it can't really match it. Unless there is something very uncommon going on, blood type can't match a person, but it can rule people out. Same deal.

 

[Bob A]

Old news. Here is a link from over a year ago. i think it was in a thread here back then but can’t find

Why a High-Ranking FBI Attorney Is Pushing ‘Unbelievable’ Junk Science on Guns

Photo Illustration by Elizabeth Brockway/The Daily Beast/GettyLate last year, a forensic firearms analyst in Wisconsin emailed a remarkable document to more than 200 of her colleagues across the country. It was a handout from an online lecture given by Jim Agar, the assistant general counsel for...

www.yahoo.com

FBLie.

Not surprised at all; it's the institutional culture.

 

[ras_oscar]

The marks a specific firing pin, barrel or extractor make are quite unique when viewed under a microscope and do change over time. This is based upon volume of use, care and ammunition.

The issue at hand it not the science behind the ballistics, its the scientific method supporting it and the science community backing it. This happens frequently when something "forensic" comes from somewhere other than science academia (think trace evidence: fibers, hair, soil etc). All ballistics forensics needs to do is adapt a methodology from the approved forensic science community and it will satisfy the court's standards. This would make micro stamping unnecessary and save governments money on investing in new tech to do the same thing they already had been doing.

This issue has been known in the forensic ballistics community for a while and several steps have been taken to make it more accepted in the science community.

Just because I'm a curious person:

How many rounds need to be fired from a particular firearm between an evidence exemplar and a firearm test fire to make the comparison impossible? I'm assuming the microscopic marks left by the barrel on the projectile change far faster than the larger rifling scribe marks.

 

[Doctor_M]

Neutron activation is a very reliable way to see if the composition of a projectile is related to unspent ones recovered in the weapon or in the possession of the perp.

Although, in Baltimore, the thugs have defeated that by having every stinking round in a 30 round magazine scavenged from a different box (sometimes even different caliber) of ammunition. I guess modern problems require modern solutions.

 

[DanGuy48]

This, ballistic comparison microscopy, seems to me to be something easily resolvable by properly controlled experiments. I’m more than a bit surprised that there is not a body of (forensic) scientific publications on just this topic. Surprising.

 

[adit]

This, ballistic comparison microscopy, seems to me to be something easily resolvable by properly controlled experiments. I’m more than a bit surprised that there is not a body of (forensic) scientific publications on just this topic. Surprising.

There probably is. I'd think they'd keep it quiet so the thugs don't get any more bright ideas.

 

[Allium]

damn now what do we do with all those drums of fired shells there were required for all handguns sold in MD?

 

[Mark75H]

damn now what do we do with all those drums of fired shells there were required for all handguns sold in MD?

Already disposed of. They were in the way.

 

[Mark75H]

This isn’t rocket science. If you bring me 3 pairs of cases fired from 3 different guns, I will sort them for you. The combination of firing pin, extractor and chamber scratches is very easy to match.