The U.S Fifth Circuit Court of Appeals (hears federal appeals in TX, LA & MS) recently discussed the use of a ballistics expert's testimony that was used to convict a fellow for possessing guns and ammo while he was subject to a domestic restraining order. (Yep, that's a federal felony.)
He was first charged in state court with murdering a cop, but he was aquitted. The feds then charged him with a count of possessing a weapon and ammo while subject to a domestic restraining order. They used the expert to link fired casings found at the murder scene to a 30/30 rifle found in the suspect's house.
I mention the decision here because the fired casings that are now included with many new guns (as required by a couple of states) often stir Internet discussions on whether a gun can reliably be matched to a spent casing. This shows how the courts look at that issue.
I do not write to defend or promote any view, just to share information. Enjoy.
You can read the entire decision, US v. Hicks, here:
http://www.ca5.uscourts.gov/opinions/pub/03/03-40655-CR0.wpd.pdf
Or I have pasted below some of the pertinent parts:
III. THE TESTIMONY OF BALLISTICS EXPERT JOHN BEENE
Hicks next contends that the district court abused its discretion by admitting, over his pre-trial and trial objections, the testimony of the government's ballistics expert, John Beene. Hicks asserts that Beene's testimony--concluding that the bullet casings in the field were fired from the .30-30 rifle found in Hicks's son's bedroom--should have been excluded under Fed.R.Evid. 702 because Beene was not qualified to render an expert opinion on shell casing comparisons. Further, Hicks claims that the government failed to demonstrate that the method Beene employed when comparing the casings met the criteria for reliability set forth in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
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Hicks argues that John Beene's shell casing comparison technique did not meet the criteria for reliability set forth in Daubert for several reasons. First, he contends that Beene could not say: (1) if the technique had ever been empirically tested; (2) if the technique had been published in a peer-reviewed article; (3) if any studies have been performed to calculate the rate of error for the technique; and (4) if any standards exist for making shell-casing-to-firearm comparisons.
Hicks also notes that Beene admitted that he had read articles and heard presentations critiquing shell casing comparisons precisely because no objective standards or criteria exist for making matches. Moreover, Hicks argues that Beene's application of the casing comparison technique in this case was particularly unreliable because Beene could not remember (even when looking at his notes) how many marks he used to make the match, how wide or deep the markings were, and precisely where the marks were located on the casings. Additionally, Hicks notes that Beene admitted that he did not test-fire other .30-30 rifles to exclude markings that were not unique to the rifle found at Hicks's house. Finally, Hicks challenges Beene's qualifications, alleging that Beene was not qualified as an expert to testify that shell casings discovered at the crime scene were fired from the rifle found at Hicks's home.
As for Hicks's challenge to Beene's qualifications as a ballistics expert, there was more than ample evidence to permit the district court to find that he is a qualified ballistics expert. This court has held that "[t]o qualify as an expert, 'the witness must have such knowledge or experience in [his] field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth.' " United States v. Bourgeois, 950 F.2d 980, 987 (5th Cir.1992) (second alteration in original) (quoting United States v. Johnson, 575 F.2d 1347, 1361 (5th Cir.1978)). Additionally, Fed.R.Evid. 702 states that an expert may be qualified based on "knowledge, skill, experience, training, or education...." See also Kuhmo Tire Co., 526 U.S. at 151 (discussing witnesses whose expertise is based purely on experience).
At the state-court Daubert hearing, Beene testified that he had a degree in chemistry, had received training in firearms comparisons testing from the FBI, and had done firearms examinations for over twenty years. At Hicks's trial in federal court, Beene repeated most of these claims, adding that he had performed more than a thousand cartridge-firearm comparisons in the course of his twenty-eight-year career with the Texas Department of Public Safety without a suggestion that any of his matches were incorrect. Based on Beene's training, twenty-eight years of experience, and numerous prior cartridge comparisons, the district court did not abuse its discretion in allowing him to testify as an expert at trial.
Turning to Hicks's attack on the reliability of Beene's methodology, the court notes that under Fed.R.Evid. 702, expert testimony is permissible if the district court finds, pursuant to Rule 104(a), that the expert is testifying to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact issue. Daubert, 509 U.S. at 592. "Under Daubert, Rule 702 charges trial courts to act as 'gate-keepers,' [and to] mak[e] a 'preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.' " Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243-44 (5th Cir.2002) (quoting Daubert, 509 U.S. at 592-93).
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In support of his claim that Beene's methodology is unreliable, Hicks invites the court's attention to Sexton v. Texas, 93 S.W.3d 96 (Tex.Crim.App.2002). Sexton, however, is inapposite. In Sexton, the Texas Court of Criminal Appeals assessed the reliability of the technique of using magazine markings to connect spent shell casings found at a crime scene with live shell casings found at another location. The expert in Sexton had testified that certain spent shell casings and live shell casings had at one time been in the same magazine or magazines because they had similar magazine marks; however, the magazines that allegedly made those marks were never found. Similarly, the gun used to shoot the spent shell casings was never found. The Texas Court of Criminal Appeals held that the expert's methodology was not proven to be reliable given that the absence of the magazines rendered the expert unable to make test marks for comparison. Id. at 101. Hicks's case is wholly distinguishable from Sexton because the .30-30 rifle suspected of having produced the spent shell casings was available and was used for purposes of comparison testing.
Moreover, the matching of spent shell casings to the weapon that fired them has been a recognized method of ballistics testing in this circuit for decades. See United States v. Washington, 550 F.2d 320, 324 (5th Cir.1977) ("firearms expert testified that the shell casing found in the trunk of the Mercury Comet had been fired from the pistol 'to the exclusion of all other weapons in existence' "); see also United States v. Lopez-Escobar, 920 F.2d 1241, 1243 (5th Cir.1991) (observing that the district court directed the prosecutor to arrange a comparison of a casing found near the scene of the arrest and casings to be test-fired from a specific gun). We have not been pointed to a single case in this or any other circuit suggesting that the methodology employed by Beene is unreliable.
Additionally, standards controlling firearms comparison testing exist. As Beene testified at the state-court Daubert hearing, he followed well-accepted methods and scientific procedures in making his comparisons. He also testified in federal court that the Association of Firearm and Tool Mark Examiners produces literature about firearms comparison testing that he relied on and that is authoritative in the field of firearms and tool mark examination. Further buttressing the reliability of his methodology, Beene also testified at the state-court Daubert hearing that the error rate of firearms comparison testing is zero or near zero.
Based on the widespread acceptance of firearms comparison testing, the existence of standards governing such testing, and Beene's testimony about the negligible rate of error for comparison tests, the district court had sufficient evidence to find that Beene's methodology was reliable. Accordingly, it did not abuse its discretion by admitting his testimony.
U.S. v. Hicks (C.A.5 2004)
He was first charged in state court with murdering a cop, but he was aquitted. The feds then charged him with a count of possessing a weapon and ammo while subject to a domestic restraining order. They used the expert to link fired casings found at the murder scene to a 30/30 rifle found in the suspect's house.
I mention the decision here because the fired casings that are now included with many new guns (as required by a couple of states) often stir Internet discussions on whether a gun can reliably be matched to a spent casing. This shows how the courts look at that issue.
I do not write to defend or promote any view, just to share information. Enjoy.
You can read the entire decision, US v. Hicks, here:
http://www.ca5.uscourts.gov/opinions/pub/03/03-40655-CR0.wpd.pdf
Or I have pasted below some of the pertinent parts:
III. THE TESTIMONY OF BALLISTICS EXPERT JOHN BEENE
Hicks next contends that the district court abused its discretion by admitting, over his pre-trial and trial objections, the testimony of the government's ballistics expert, John Beene. Hicks asserts that Beene's testimony--concluding that the bullet casings in the field were fired from the .30-30 rifle found in Hicks's son's bedroom--should have been excluded under Fed.R.Evid. 702 because Beene was not qualified to render an expert opinion on shell casing comparisons. Further, Hicks claims that the government failed to demonstrate that the method Beene employed when comparing the casings met the criteria for reliability set forth in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
***
Hicks argues that John Beene's shell casing comparison technique did not meet the criteria for reliability set forth in Daubert for several reasons. First, he contends that Beene could not say: (1) if the technique had ever been empirically tested; (2) if the technique had been published in a peer-reviewed article; (3) if any studies have been performed to calculate the rate of error for the technique; and (4) if any standards exist for making shell-casing-to-firearm comparisons.
Hicks also notes that Beene admitted that he had read articles and heard presentations critiquing shell casing comparisons precisely because no objective standards or criteria exist for making matches. Moreover, Hicks argues that Beene's application of the casing comparison technique in this case was particularly unreliable because Beene could not remember (even when looking at his notes) how many marks he used to make the match, how wide or deep the markings were, and precisely where the marks were located on the casings. Additionally, Hicks notes that Beene admitted that he did not test-fire other .30-30 rifles to exclude markings that were not unique to the rifle found at Hicks's house. Finally, Hicks challenges Beene's qualifications, alleging that Beene was not qualified as an expert to testify that shell casings discovered at the crime scene were fired from the rifle found at Hicks's home.
As for Hicks's challenge to Beene's qualifications as a ballistics expert, there was more than ample evidence to permit the district court to find that he is a qualified ballistics expert. This court has held that "[t]o qualify as an expert, 'the witness must have such knowledge or experience in [his] field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth.' " United States v. Bourgeois, 950 F.2d 980, 987 (5th Cir.1992) (second alteration in original) (quoting United States v. Johnson, 575 F.2d 1347, 1361 (5th Cir.1978)). Additionally, Fed.R.Evid. 702 states that an expert may be qualified based on "knowledge, skill, experience, training, or education...." See also Kuhmo Tire Co., 526 U.S. at 151 (discussing witnesses whose expertise is based purely on experience).
At the state-court Daubert hearing, Beene testified that he had a degree in chemistry, had received training in firearms comparisons testing from the FBI, and had done firearms examinations for over twenty years. At Hicks's trial in federal court, Beene repeated most of these claims, adding that he had performed more than a thousand cartridge-firearm comparisons in the course of his twenty-eight-year career with the Texas Department of Public Safety without a suggestion that any of his matches were incorrect. Based on Beene's training, twenty-eight years of experience, and numerous prior cartridge comparisons, the district court did not abuse its discretion in allowing him to testify as an expert at trial.
Turning to Hicks's attack on the reliability of Beene's methodology, the court notes that under Fed.R.Evid. 702, expert testimony is permissible if the district court finds, pursuant to Rule 104(a), that the expert is testifying to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact issue. Daubert, 509 U.S. at 592. "Under Daubert, Rule 702 charges trial courts to act as 'gate-keepers,' [and to] mak[e] a 'preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.' " Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243-44 (5th Cir.2002) (quoting Daubert, 509 U.S. at 592-93).
****
In support of his claim that Beene's methodology is unreliable, Hicks invites the court's attention to Sexton v. Texas, 93 S.W.3d 96 (Tex.Crim.App.2002). Sexton, however, is inapposite. In Sexton, the Texas Court of Criminal Appeals assessed the reliability of the technique of using magazine markings to connect spent shell casings found at a crime scene with live shell casings found at another location. The expert in Sexton had testified that certain spent shell casings and live shell casings had at one time been in the same magazine or magazines because they had similar magazine marks; however, the magazines that allegedly made those marks were never found. Similarly, the gun used to shoot the spent shell casings was never found. The Texas Court of Criminal Appeals held that the expert's methodology was not proven to be reliable given that the absence of the magazines rendered the expert unable to make test marks for comparison. Id. at 101. Hicks's case is wholly distinguishable from Sexton because the .30-30 rifle suspected of having produced the spent shell casings was available and was used for purposes of comparison testing.
Moreover, the matching of spent shell casings to the weapon that fired them has been a recognized method of ballistics testing in this circuit for decades. See United States v. Washington, 550 F.2d 320, 324 (5th Cir.1977) ("firearms expert testified that the shell casing found in the trunk of the Mercury Comet had been fired from the pistol 'to the exclusion of all other weapons in existence' "); see also United States v. Lopez-Escobar, 920 F.2d 1241, 1243 (5th Cir.1991) (observing that the district court directed the prosecutor to arrange a comparison of a casing found near the scene of the arrest and casings to be test-fired from a specific gun). We have not been pointed to a single case in this or any other circuit suggesting that the methodology employed by Beene is unreliable.
Additionally, standards controlling firearms comparison testing exist. As Beene testified at the state-court Daubert hearing, he followed well-accepted methods and scientific procedures in making his comparisons. He also testified in federal court that the Association of Firearm and Tool Mark Examiners produces literature about firearms comparison testing that he relied on and that is authoritative in the field of firearms and tool mark examination. Further buttressing the reliability of his methodology, Beene also testified at the state-court Daubert hearing that the error rate of firearms comparison testing is zero or near zero.
Based on the widespread acceptance of firearms comparison testing, the existence of standards governing such testing, and Beene's testimony about the negligible rate of error for comparison tests, the district court had sufficient evidence to find that Beene's methodology was reliable. Accordingly, it did not abuse its discretion by admitting his testimony.
U.S. v. Hicks (C.A.5 2004)
