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Evening at the School of Government, Part III: Firearms 101

We are excited to announce “Firearms 101,” the third program in our Evenings at the School of Government series. This series, cosponsored by the UNC School of Government and NC Office of Indigent Defense Services, consists of free presentations on forensic evidence and other criminal law topics that are designed to enhance the knowledge of criminal law practitioners. Available for CLE credit, these programs will occur after business hours at the School of Government in Chapel Hill. A social hour at a local venue will follow each presentation so that participants may continue their discussions with the speakers.

At this program, veteran defense attorney David Waters and private investigator Michael Grissom will instruct participants on firearm mechanics and functionality, projectile trajectory, and basic information about the firearm/toolmark comparison.  Using examples and images from their own cases, they will describe common issues related to forensic firearm analysis, and how defense counsel can address these through motions practice and cross-examination. They will also discuss raising challenges to a witness’s qualification as an expert and the merits of hiring a private firearms expert in a particular case.

Participants: This program is geared toward attorneys who may confront issues regarding firearms in their cases.

Location, Dates, & Times: The program will be held on Thursday, August 22 at the School of Government on the UNC-Chapel Hill campus. Sign-in is from 5:15pm to 5:30pm, at which time the program will begin. The 1.50 hour program ends at 7:00pm. Following the presentation, we welcome you to join the presenters for an informal happy hour at W XYZ bar, located in the lobby of the Aloft Hotel on Highway 54 in Chapel Hill. Directions to the Aloft Hotel can be found here.

RSVP: Registration is not required, but we ask that you RSVP via email by August 15 to Brooke Bailey, at bailey@sog.unc.edu.

Fee: Free. (Because no registration fee will be charged by the School of Government, each lawyer is responsible for paying the NC State Bar for earned CLE credits at $3.00 per hour.)

CLE Credit & Certification: This program offers 1.5 hours of general CLE credit and qualifies for NC State Bar criminal law specialization credit.

Materials: Materials for this program are forthcoming and will be available under the Course Materials category on the program website (http://www.sog.unc.edu/node/3666). Those who RSVP for this event will receive a confirmation email on August 19 with a link to the program materials. Please note that the materials will not be provided in hard-copy form at the program. We strongly recommend that you either bring a laptop and access the materials electronically or print and bring them with you to the program.

Directions and Parking: Directions to the School of Government may be found on our website’s visitor information page. Parking will be available in the lot adjacent to the School of Government. You will not need a parking code to enter the lot or a parking pass. (The gate opens at 5:00pm.) You will enter the building via the side entrance by the parking lot.

Additional Information: We look forward to seeing you next month.  If you have any questions or would like additional information, please contact Brooke Bailey (919.966.4227 / bailey@sog.unc.edu) or Defender Educator Alyson Grine (agrine@sog.unc.edu / 919.966.4248).

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Two Bullets, One Gun?

By Alyson Grine, Defender Educator, UNC School of Government

In State v. Britt, __ N.C. App. __, __ S.E.2d __ (Dec. 6, 2011) the North Carolina Court of Appeals addressed the admissibility of expert testimony regarding firearms and toolmark identification. The facts, in brief: Nancy Britt, a Wake County school teacher, was shot and killed while visiting her disabled sister in Lumberton. At the autopsy, a .25 caliber Winchester bullet was recovered from her body. The defendant, Myron Britt, was Nancy’s husband. Myron became a suspect when his brother, Dickie, told law enforcement that Myron had borrowed a .25 caliber pistol from him about five weeks before Nancy was killed. Dickie also told officers that two years previously, the same gun had accidentally discharged into a baseboard at their mother’s home. Officers recovered a .25 caliber Hornady bullet from the baseboard. SBI agents Theresa Tanner and Peter Ware compared the bullet from the decedent’s body and the bullet from the baseboard and concluded that they had been fired by the same gun.

The defendant made a pretrial motion in limine to exclude Agents Tanner and Ware’s firearm identification testimony. The trial judge decided to limit the State’s experts’ testimony to statements that the bullets were “consistent” and not allow them to testify that they had been fired from the same gun. However, after defense counsel said in opening statements that defense experts would testify as to their “opinion that you cannot make a match, that there [are] simply not enough points of comparison on the two bullets,” the trial judge reversed his ruling and allowed the State’s experts to testify to their opinions that the bullets were fired from the same gun. Their opinions were based upon the lands and grooves as well as microscopic striations and marks on each of the bullets—that is, the “toolmarks” left on the bullets from the firing of the gun. The defendant, in turn, offered the expert testimony of John Dillon, a former chief of the FBI’s firearms and toolmark unit, and William Conrad, a private consultant on firearms identification, that there were insufficient microscopic points of comparison between the two bullets to conclude that they had been fired from the same gun.

The defendant was found guilty of first-degree murder and sentenced to life imprisonment without parole. According to appellate counsel, the verdict hinged on the firearm identification testimony. “The State’s case was built on the SBI’s bullet comparison. Without the expert testimony of SBI Agents Tanner and Ware that the bullets matched, the State would have had no evidence connecting the murder with the only gun known to have been in Myron Britt’s possession.” (Appellant’s Brief, p. 13)

On appeal, the defendant argued that the trial judge erred in reversing his ruling on the motion in limine and attacked the reliability of the methodology as well as the agents’ qualifications to testify as expert witnesses. The Court of Appeals dismissed the reliability argument, stating that precedent supported the admission of expert testimony on firearms ID, and the defendant had not produced new evidence to challenge the reliability. The Court also rejected the defendant’s argument that the State’s experts were not qualified to testify. While the State did not present verification of one of the expert’s training and neither expert was a member of a professional organization, both experts explained how firearms and toolmark identification works and how they conducted their investigations. Thus, the Court found that they were better qualified than the jury to form an opinion and the trial court did not abuse its discretion in allowing them to testify.

What lessons might defenders take away from Britt? First, a trial judge may be willing to limit expert testimony about this methodology. (Sarah has posted trial counsel’s Motion to Exclude State’s Firearm Testimony in her Motions Bank as an aid.) The trial judge had misgivings about allowing the SBI firearms and toolmark identification testimony, and although he believed he was bound to admit it, he initially limited the testimony. “We should require more. But given [North Carolina] precedent…” (Tp. 4380) “[I]t’s a frightening prospect when you can’t testify to a statistical certainty under DNA analysis that a match is a certain match and you can do the exact same thing under ballistics testimony as subjective as that testimony might be. That’s concerning.” (Tp. 4381) (Appellant’s Brief, p. 14)

A defendant benefits significantly where testimony is limited to “these toolmarks are consistent with each other,” rather than “these toolmarks were made by the same gun.” Bullets or cartridge cases have consistent toolmarks, even if fired by different guns, if the guns have the same class characteristics (e.g., barrels of a particular caliber with a particular number of lands and grooves of a particular width and direction of twist), according to Professor Adina Schwartz of John Jay College of Criminal Justice, CUNY. (Schwartz has written widely on the unreliability of this forensic discipline, and Sarah Rackley has posted links to some of her articles  here.) Counsel might offer evidence of the hundreds of other firearms, with the same class characteristics as the gun in question, that were sold at the local Walmart in recent years, rendering the expert testimony merely speculative as to which gun or guns fired the bullets.

Second, if the defense succeeds in getting a ruling that limits the State’s experts to “consistency,” defense attorneys should refrain from forecasting or introducing defense expert testimony that the resemblances between the individual characteristics of toolmarks were not sufficient to justify an identification. Such testimony may open the door for the court to retreat from its consistency ruling and allow prosecution experts to testify to an identification. Meanwhile, according to Professor Schwartz, defense expert testimony is not likely to offer any advantage: “In most cases, defense experts will only be willing to testify to an ‘inconclusive’; such testimony adds nothing where a pre-trial ruling limits prosecution experts to testifying that marks on ammunition components are ‘consistent with’ each other because firearms and toolmark examiners use both terms  ‘consistent with’ and ‘inconclusive’ to mean that it is not possible to conclude that marks were made by the same gun, but only that the marks were made by a gun(s) with the same class characteristics.”

In rare cases, defense experts may be willing to go beyond an “inconclusive” and testify that the lack of resemblance between individual characteristics of the toolmarks is so great that ammunition components can be excluded from having been fired from the same gun. Even in this instance, however, it is generally inadvisable for the defense to put on its own testimony about individual characteristics. Professor Schwartz cautions that on cross, the prosecution will be able to bring out the fact that most firearms and toolmark examiners (including FBI examiners) do not exclude on the basis of individual characteristics. Additionally, the prosecution may point out the absence of any objective criteria for how much difference between individual characteristics is needed for an exclusion. Opening the door remains a concern as well; a trial judge is not likely to allow defense experts to testify that individual characteristics are so different as to justify an exclusion without allowing prosecution experts to testify that the individual characteristics are so similar as to justify an identification.

By contrast, Professor Schwartz advises that the defense should put on expert testimony, even if there is a pretrial consistency ruling, if the disagreement between defense and prosecution experts extends to whether toolmarks on ammunition components have the same class characteristics (in other words, whether the ammunition components could have been fired from the same type of gun): “Defense expert testimony about class characteristics will not open the door for prosecution experts to testify that individual characteristics justify an identification.”

A third important takeaway from Britt is that defenders should not give up on the reliability argument. Under Howerton v. Arai Helmet, Ltd., when presented with “compelling new perspectives on otherwise settled theories or techniques,” a trial court can look beyond precedent to determine whether an expert’s area of testimony is sufficiently reliable. 358 N.C. 440, 597 S.E.2d 674 (2004)(Appellant’s Brief, p. 25) In Britt, the defense introduced case law and law review articles discussing the unreliability of firearm and toolmark evidence. (Appellant’s Brief, p. 21) However, the Court of Appeals appeared to require a greater showing of the defendant, holding that “[i]n the instant case, however, defendant did not introduce any ‘new’ or ‘compelling’ evidence to the trial court.” Slip op p. 10. Defenders who wish to challenge the reliability of firearms toolmark identification may therefore need to introduce evidence of unreliability beyond written materials such as case law and law review articles. However, the reliability argument was undermined in Britt by the fact that the defense put on experts who had relied on the same or similar methodology as the State’s examiners.

Furthermore, in a previous post on expert testimony, I commented that following legislative changes to N.C. Evidence Rule 702(a), “Court actors should not presume that a method of proof that was deemed sufficiently reliable under the former North Carolina rule and Howerton will be admissible under the amended rule.” S.L. 2011-283 (H 542), as amended by S.L. 2011-317 (S 586), effective for actions arising (that is, offenses occurring) on or after October 1, 2011. The Britt case illustrates that it is not unusual for firearms and toolmark examiners to disagree about whether resemblances between individual characteristics are sufficient to show that ammunition components were fired from the same gun, giving rise to an argument that opinion testimony about whether toolmarks match does not meet the requirements of revised Rule 702(a): “The absence of an objective criterion for when the resemblances between toolmarks are sufficient for a match means that when examiners disagree, the discipline of firearms and toolmark identification has no resources for determining who is right,” according to Professor Schwartz.

Finally, while a consistency ruling is a victory for the defense, defenders should not give up on arguing for total exclusion of firearms and toolmark identification testimony because of the risk of unfair prejudice and confusion. Professor Schwartz advises: “The problems with allowing prosecution experts to testify that ammunition components were fired from a gun or guns with the same class characteristics are, first, there is no data on how many guns share the same class characteristics; second, jurors are likely to confuse testimony that the marks on ammunition components are consistent with testimony identifying ammunition components as having been fired from the same gun.” This gives rise to an argument under N.C. Evidence Rule 403 that the probative value of testimony about toolmarks is outweighed by the dangers of unfair prejudice and confusion of the jury and must, therefore, be excluded.

In writing this post, I drew on the brief by David Neal, counsel for the defendant-appellant, and notes by Professor Adina Schwartz of John Jay College of Criminal Justice, CUNY. I thank them for their insights.

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Legislative Change Regarding Expert Testimony

By Alyson Grine, UNC School of Government Defender Educator

In S.L. 2011-283 (H 542), the General Assembly revised North Carolina Evidence Rule 702(a). Rule 702(a) guides the trial court in serving a gatekeeper function with regard to expert testimony; the trial court must make a preliminary determination as to whether a witness has the qualifications to testify as an expert, and if so, whether the expert’s testimony is admissible. S.L. 2011-283 was enacted as a part of new limits in civil tort actions; however, the amended rule applies to criminal cases as well as civil. Thus, criminal defenders are asking: to what extent has the framework for determining the admissibility of expert testimony changed?

The amendments to Chapter 8C, Rule 702(a) read:

(a) If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.opinion, or otherwise, if all of the following apply:

(1) The testimony is based upon sufficient facts or data.

(2) The testimony is the product of reliable principles and methods.

(3) The witness has applied the principles and methods reliably to the facts of the case.

The legislation does not alter the language pertaining to the qualifications of an expert. Instead, the legislation adds the above subparts to impose restrictions on the admissibility of expert testimony. The subparts are lifted verbatim from Federal Rule of Evidence 702 as amended in 2000, which was intended to codify the criteria for the admissibility of expert testimony established in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Daubert established the modern standard for admitting expert testimony in federal trials; the Court set out five factors for trial judges to use as a measure of reliability in making a preliminary determination about the admissibility of scientific evidence:

  1. Is the evidence based on a testable theory or technique;
  2. Has the theory or technique been subjected to peer review and publication;
  3. Does the technique have a known error rate;
  4. Are there standards controlling operation of the technique; and
  5. To what degree is the theory or technique generally accepted by the scientific community? Id. at 593-94.

In Howerton v. Arai Helmet, Ltc., 358 N.C. 440 (2004), the North Carolina Supreme Court rejected the federal standard for determining the admissibility of expert testimony. “North Carolina is not, nor has it ever been a Daubert jurisdiction.” Id. at 469. Instead, North Carolina has used the three-part inquiry set forth in Howerton: “(1) Is the expert’s proffered method of proof sufficiently reliable as an area for expert testimony? (2) Is the witness testifying at trial qualified as an expert in that area of testimony? (3) Is the expert’s testimony relevant?” Id. at 458, relying on State v. Goode, 341 N.C. 513, 527-29 (1995) (internal citations omitted). The first prong of the Howerton test includes a requirement that the expert’s method of proof be reliable, much like the second restriction in amended Rule 702(a). Unlike amended Rule 702(a), however, the Howerton test does not explicitly require that experts have sufficient facts and data for their opinions, or that they apply their methods reliably to the facts. Arguably, these were implicit requirements under Howerton as they are components of reliability. Some North Carolina decisions have recognized that experts should have sufficient facts and data for their opinions and should apply their methods reliably. See, e.g., State v. Grover, 142 N.C. App. 411, aff ’d per curiam, 354 N.C. 354 (2001). Amended Rule 702(a) makes it clear that trial judges must apply those requirements before allowing expert testimony before the jury.

The approach that North Carolina adopted in Howerton was “less mechanistic and rigorous than the exacting standards of reliability demanded by the federal approach.” Howerton, 358 N.C. at 464 (internal citations omitted); see also Robert P. Mosteller et al., North Carolina Evidentiary Foundations at pp. 10-15 to 10-17 (2d ed. 2006). Amended Rule 702(a) may or may not mandate the precise approach required by Daubert, but by adopting the language of Federal Rule 702, the General Assembly has raised the bar (or better stated, “the gate”), thereby requiring greater scrutiny of expert testimony than the former North Carolina rule and the cases interpreting it. Court actors should not presume that a method of proof that was deemed sufficiently reliable under the former North Carolina rule and Howerton will be admissible under the amended rule. The subparts added by S.L. 2011-283 are not a codification of Howerton, and it may no longer be good law. See Daubert, 509 U.S. at 586-87 (holding that the “general acceptance test” of Frye v. United States,54 App. D.C. 46 (1923) was superseded by the adoption of the Federal Rules of Evidence). In response to the legislative changes, defenders should be prepared to conduct more rigorous scrutiny of experts to determine admissibility, which will require probing discovery, motions, and voir dire practices to determine whether the expert’s testimony complies with the amended requirements.

As mentioned above, the amendments to Rule 702(a) are part of the “An Act to Provide Tort Reform for North Carolina Citizens and Businesses.” Possibly, the General Assembly did not have an eye to the impact the amendments would have on criminal practice in North Carolina. However, recent cases reveal growing concerns about unreliable expert testimony in criminal cases.  See State v. Ward, 364 N.C. 133 (2010) (expert’s testimony was not based on sufficiently reliable method of proof where expert identified substances based on a visual examination rather than a chemical analysis); State v. Davis, __ N.C. App. __, 702 S.E.2d 507 (2010) (expert’s testimony was not based on sufficiently reliable method of proof where expert relied on odor analysis to conduct retrograde extrapolation of defendant’s blood alcohol concentration at time of accident); State v. Meadows, __ N.C. App. __, 687 S.E.2d 305 (2010) (expert’s testimony was not based on sufficiently reliable methods of proof where expert relied on the results of the NarTest machine). Thus, amended Rule 702(a) may be viewed as a timely reform in the criminal context.

Note: A later bill (SL 2011-317) makes the revised rule applicable to actions arising on or after October 1, 2011. For criminal cases, the rule likely applies to cases in which the offense occurred on or after that date.

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