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Firearm microstamp technology: failing Daubert and Federal Rules of Evidence 702.

I. INTRODUCTION

Imagine someone picking up another person's shell casings at the firing range and placing them at the scene of a crime. Following a trace of the shell casing by law enforcement, with the use of serial numbers imprinted on it, an innocent shooter faces trial for the crime due to a new law hailing Firearm Microstamp Technology as the best thing since DNA testing. This has danger written all over it and sounds like something from a murder mystery novel. However, this is precisely the danger that people potentially face if this new technology finds roots in state legislation before rigorous testing is performed. Hence, while Microstamp technology may be good in principle, it is lacking by far in theoretical practice and should result in an across the board exclusion in potential courtroom expert identification of firearms.

This Note attempts to highlight the dangers associated with Microstamp technology if further incorporated into state and federal legislation and more importantly if it finds its way into criminal courtrooms via expert testimony. Part II of this discussion will first explain the traditional methods and procedures of forensic ballistic testing and identification methods. Part III introduces the new Intentional Microstamping technology ("Microstamping") and what it claims to bring to the science of ballistic forensic study. Part IV compares the assertions made by the inventors with inconclusive studies conducted on the new technology. Parts V and VI discuss some of the major legal and practical problems with the technology as it applies to states like California, which have already, incorporated the technology into legislation. Moreover, Parts V and VI argue that these legal and technical problems are too great and the societal implications far outweigh accepting the technology until further research or peer studies are conducted. Part VII and VIII of this Note explore how the implementation of Microstamping creates evidentiary issues with expert witness testimony. It is argued that because the technology does not satisfy any of the United States Supreme Court "Daubert" factors for admissibility of scientific expert testimony pursuant to Federal Rule of Evidence 702. Even though the factors are only guidelines, courts should not admit Microstamping evidence as "scientific knowledge".

Scientific knowledge must be more than a mere belief; it must be fact or theory grounded in methods or procedures of science. Because this new technology has not been thoroughly peer reviewed, the rate of error is so high, and there is no general acceptance among the scientific community, a judicial inquiry should bar admission of it as evidence. This runs in direct conflict with California's new law requiring that all new models of semiautomatic pistols sold in the state be engraved with the Intentional Microstamp laser codes.

II. TRADITIONAL METHODS OF FIREARM BALLISTIC TESTING AND IDENTIFICATION

"The underlying principle of firearm identification is that each firearm will transfer a unique set of marks, known as 'toolmarks,' to ammunition fired from that gun." (1) There are two prominent methods that law enforcement officials use to identify the source of a bullet used in a crime; ballistic testing and firearm tracing. Ballistic testing is the science of mechanics that deals with the flight, behavior, and effects of projectiles. (2) The purpose of firearm tracing is to use the ballistic testing to assist state and local law-enforcement in investigating and solving crimes. (3) When bullets and shell casings are discharged from firearms, they can leave unique marks that when examined by forensic scientists can link a particular firearm to a specific crime. (4) This data helps "track the transfer of a firearm from the importer or manufacturer to the gun's first purchaser, and can assist law enforcement in ultimately pinpointing the individual who used the gun to commit a particular crime." (5)

There is a rich history of firearm forensic identification methods in the United States, (6) but it was not until the early 1990's that forensic ballistics saw major advancements. (7) The most notable advancements were the Bureau of Alcohol Tobacco and Firearm's (ATF) Integrated Ballistics Identification System (IBIS) and the Federal Bureau of Investigation's (FBI) Drugfire. (8) While both systems collected data and stored the pertinent information, they were not interoperable. (9) However, in 1997 the two systems merged the best of both to form one cooperating database. "The resulting single, unified system ... form[s] the backbone of a network ... capable of identifying the individual fingerprint left by virtually every gun used in a violent crime." (10)

Much of this system involves the development of a method called "ballistic fingerprinting," which allows an investigative laboratory to compare unique marks made on shell cartridge casings fired from a particular gun. (11) "Currently deployed ballistics technology focuses on the tool marks on the interior surface of a firearm that are transferred from the firearm to an expended cartridge during the firing process." (12) The first step in firearms and tool mark identification is determining the class characteristics of each. (13) These "class characteristics include the caliber (diameter) of the barrel (and bullet), the number of lands and grooves (alternating raised and lowered areas within the inner surface of the barrel that spiral along the course of the barrel) of the barrel and imprinted on the sides of the bullet, and the direction of the spiraling (the twist) within the barrel and imprinted on the sides of the bullet." (14) The next step is to fire a bullet from the suspected weapon and examine the microscopic marks (striations) on the bullet made from traveling through the barrel of the gun. (15) If the class characteristics are a match to the collected evidence and test tool marks, microscopic examination will determine whether the individual characteristics are so similar that the same tool must have produced both the test and the evidence tool mark. (16) This is premised on the fact that no two weapons are identical and that the marks created by a firearm are unique to each particular weapon. (17)

However, this traditional method of identifying bullets relies on "unintentional microstamping". (18) "[U]nintentional microstamping experienced by the bullet cartridge occurs under a violent multivariate dynamic state of gas pressure expansion during combustion, added to the motion induced during gun fire cycling." (19) These variables cannot be correlated using causation analysis under traditional methods of ballistic forensic techniques. (20) "This poses a major problem for forensic tool mark examiners since the tool marks.... [A]re neither purposeful nor optimally placed for transferability to the brass cartridge." (21) In order for officials to identify the marks made on cartridge casings spent, they must locate the actual firearm. (22) One of the major difficulties in crime enforcement is that guns used to commit crimes are not always recovered. (23)

III. THE TECHNOLOGY OF MICROSTAMPING

Firearm "Microstamping" is a new technology invented by Todd Lizotte, (24) that can imprint serial numbers on spent ammunition casings by utilizing a solid-state ultraviolet laser to machine an array of microscopic characters onto the tip of a firearm's firing pin. (25) Similar to "ballistic fingerprinting," it allegedly helps police identify what firearm might have been used in a crime. Microstamping uses precision equipment to remove microscopic amounts of metal from the tip of the firing pin. When a firearm trigger is pulled, there is no guarantee of one single identifiable mark on the bullet. (26) What the microstamp technology does is place "intentional codes" linked to the serial number of a firearm by using an "optimized laser micromachining" process. (27) The basic theory behind the technology is that a firearm's firing pin or other internal parts could bear microscopic codes unique to the firearm that could imprint the codes on fired cartridge cases. (28) The codes then contain information like the gun's make, model and serial number. (29) This acts much like a fingerprint on the bullet. If the gun is then used in any crime, this allows law enforcement officials to enter the found shell casing codes into a database to determine not only the manufacturer of the gun, but even the licensed dealer who sold it, and ultimately the owner. "The goal is to provide an improved piece of trace evidence for forensic investigators, so that they can track a firearm without having to recover it." (30)

This so-called confirmed link between a firearm and its bullet purports to provide invaluable leads for investigators in tracing the gun to its registered owner who may either become a suspect or provide useful information regarding a crime. (31) This technology is thought to expand ballistic identification because without having to provide additional testing it can directly tell law officials the serial number of a firearm just by looking at the spent shell casing found. (32) Considering that approximately forty percent of homicide cases go unsolved (33) and firearm injuries are the eighth leading cause of death in the United States, (34) there are many advantages to this new form of firearm identification. (35)

IV. INTENTIONAL MICROSTAMP TECHNOLOGY TESTING AND RELEVANT STUDIES SHOW CONTRADICTORY AND INCONCLUSIVE RESULTS

Support for the Microstamp technology is based on the notion that it will "increase the speed of firearm identification and tracing to provide opportunities to target ... criminal networks." (36) NanoMark Technologies, the manufacturer of the Microstamp technology, conducted the initial study. (37) Here, the technology utilized numerous tests with firearms including the Colt Arms Model 1911, S&W 4006, Ruger Mark III, SIG P229, AR-15, and AK-47. (38) The firearms were tested at a firing range and the "cartridge cases were retrieved, documented and archived in consecutive serial order for later analysis." (39) The primary difference between the traditional toolmark identification methods and the intentional microstamping is that the latter is geared more towards "extracting" information rather than a "matching" methodology. (40) During testing, the identifying codes were imprinted on multiple surfaces of the firearm including the firing pin and further down on the firing shaft, away from the tip. (41) "The criterion for a successful extraction of the code was based on the ability to reconstitute the entire eight digit code, based only on observation and the digital image taken, stored and archived representing the cartridge pin impression." (42) The resulting findings--when the firearm is properly "outfitted and tested with intentional Microstamping features"--has the ability to yield a greater than ninety percent accuracy rating for extraction of the coded numbers. (43) The NanoMark study further asserted that code extraction approaches one hundred percent certainty and even compared the new forensic method of tracing guns to the forensic method of DNA analysis and identification. (44) "By providing a consistent and high degree of certainty, IFM [Intentional Firearm Microstamping] is the only forensic tool that provides a physical evidence 'link between firearm evidence (e.g. the fired cartridges found at a crime scene) and a specific firearm source.'" (45)

Microstamping technology is still in its beginning stages and has yet to be widely accepted or adopted. (46) In fact, it has been suggested that further examination and testing is necessary before the firearms industry should embrace the proposed solution of intentional Microstamping technology. (47) Two major groups have conducted studies and reported on microstamp technology's effectiveness thus far: 1) the Forensic Science Graduate Program at UC Davis, (48) and 2) industry expert George G. Krivosta, with the Suffolk County, NY, Crime Laboratory. (49)

The goal of the UC Davis research was to evaluate the efficacy of this new technology so that policymakers could make informed decisions on whether to adopt the technology for use as a forensic science method or whether to pass future legislation. (50) The study was primarily concerned with the effectiveness of the outfitted firing pins and their ability to withstand repeated firing. (51) This testing included not only a range of different firearms but also a variety of ammunition. (52) The findings revealed that "[t]he legibility and quality of the micro-stamped characters ... varied among the set of firearms tested." (53) While at times some of the codes were still legible after firing, there were different degrees of degradation or flattening of the alphanumeric codes on the firing pins tested. (54) Additionally, there were findings that "defacement/obliteration methods demonstrated that the micro-characters could easily be intentionally destroyed with the firing pin removed from the firearm." (55) Because this study was designed to educate and advise lawmakers, it ultimately concluded that while the technology works with some firearms, it does not perform equally well for every encoding structure or for every semiautomatic handgun tested and that the forensic potential had not been fully assessed. (56)

In another independent study conducted by George Krivosta, the findings raised concerns about the multiple dangers and inconsistencies associated with the dependability of the technology. (57) The study addressed three key questions on the reliability of the proposed microstamping system: 1) whether the markings would be readily decipherable, 2) how resistant to wear would the marked firing pin be under normal use, and 3) how susceptible the firing pin would be to intentional defacement. (58)

First, the study explained that in real world conditions, when a firearm is discharged, the firing pin actually strikes the cartridge multiple times. (59) Traditional methods of forensics can navigate this problem by firing several rounds to compare similarities but the Microstamp markings are being lost in the overlapping impact area. (60) Second, the firing pin was analyzed for both durability and resistance to defacement. The series of tests showed that after numerous firings, the cartridges were for the most part still decipherable, even after the overlapping firing pin impacts. (61) Finally, one of the most astounding aspects was the intentional defacement of the firing pin, which was accomplished "in approximately one minute's time with no special equipment or knowledge needed." (62) The testers merely used everyday household items such as a sharpening stone, a tip of a ballpoint pen, and a portable drill to successfully extract the firing pin and wear away the intentionally microstamped codes. (63) NanoMark has suggested that one way of curtailing this problem would be to place additional marks on other areas of the weapon. (64) However, extensive studies have not been conducted to confirm that this would be a viable option in the prevention of defacement. There is an inherent risk in generally accepting the technology before thoroughly investigating all of its problems. (65)

V. LEGISLATION

California currently has some of the toughest gun laws in the country. (66) In 2008, Governor Arnold Schwarzenegger signed into law AB 1471, requiring that all new models of semiautomatic pistols sold in the State of California, on or after January 1, 2010, be engraved with an identifying code that is transferred to the cartridge upon firing (i.e. Microstamping). (67) AB 1471 would require the weapons "to stamp the gun's make, model and serial number on the shell casing of the bullet every time the weapon is fired." (68) "AB 1471 also requires at least one other internal location for microstamping a number," although more testing on the effectiveness of this requirement is needed. (69) This is among the first enacted legislation of its kind in the nation to incorporate this technology. (70) It should be noted though that California's "unsafe firearm" laws, which include AB 1471, do not apply to any firearms used or purchased by any law enforcement agency. (71)

While the Microstamp technology law is currently in effect in California, it is owned solely by a company called Identification Dynamics, LLC, which recently acquired the U.S. patent. (72) However, the California legislature "required the [A]ttorney [G]eneral to certify that the technology was available to more than one [gun] manufacturer unencumbered by any patent restrictions" before it could take effect. In essence, the requirement does not activate until Microstamping is outside of patent protection but the manufacturing company has a patent on it that runs until approximately 2023. Thus far, this certification requirement has not been satisfied so the legislation is practically non-functioning. (73) Even if the patent problems are eventually resolved, there are concerns that the new legislation is not ready for implementation as opponents say that more studies on the readiness and the potential cost of the technology have not been fully explored. The gun lobbies, such as the National Rifle Association (NRA) and National Shooting Sports Foundation (NSSF) have repeatedly objected to the use of Microstamping of firearms on the grounds that the technology failed tests and is unreliable. (74)

There have also been Federal attempts in the United States House and Senate to adopt Microstamping technology. The proposed amendment to Chapter 44 of Title 18, H.R. 1847--Technological Resource to Assist Criminal Enforcement (TRACE) Act--requires "[M]icrostamping of all firearms manufactured in or imported into the United States, and ballistics testing of all firearms in the custody of the Federal Government." (75) This would mean "revok[ing] the license of an importer who imports into the United States a firearm that is not [M]icrostamped, or the license of a manufacturer who manufactures a firearm that is not [M]icrostamped or a [M]icrostamped firearm that does not transfer the array of characters constituting the [M]icrostamp onto the cartridge case of any ammunition fired from the firearm." (76) The legislation was introduced, but because of the controversy, never made it past committee referrals. (77)

VI. POTENTIAL PROBLEMS WITH IMPLEMENTING THE TECHNOLOGY INTO LAW ENFORCEMENT AND FORENSIC COMMUNITIES

Microstamping has repeatedly failed in tests. The UC Davis study concluded that "because its forensic potential has yet to be fully assessed, a mandate for the implementation of this technology in all new semiautomatic handguns sold in the state of California is counter-indicated." (78) Results of the study were consistent with earlier tests published by the Association of Firearms and Tool Marks Examiners. Firearm examiner George Krivosta, of the Suffolk County, N.Y. crime lab, found that the "vast majority" of Microstamped characters in the alphanumeric serial number could not be read on "any of the expended cartridge cases generated and examined." (79) However, one of the greatest flaws that the two studies revealed was that the Microstamp codes were easily removed. Firing pins were removed in minutes, and serial numbers were obliterated in less than a minute, with household tools. (80)

Additionally, most gun crimes cannot be solved by micro-stamping, or simply do not require micro-stamping to be solved.

Most gun crimes do not involve shots being fired, thus there are no cartridge cases for police to recover. Notwithstanding TV shows that portray crime-solving as impossible without high-technology, most crimes can be solved by traditional means. For example, of murders in which the victim-offender relationship is known, most involve family members, friends, and other acquaintances. (81) Only a small percentage involves strangers. (82) Most criminals also obtain "guns through unregulated channels." (83) According to the BATFE, 88% of crime guns are acquired through unregulated channels, and the average time between a crime gun's acquisition and its recovery by police is 10.8 years. (84) There is also a very real risk that Microstamp technology would lead to gun thefts if legally purchased guns could link a criminal to a computerized system. (85) It is argued that this technology would lead to an increase in black market sales of firearms. (86)

However, one of the biggest dangers is the possibility that anyone could collect Microstamped shell casings from firing ranges and plant them at the scene of a crime. This ultimately could lead to a false arrest or implicate an innocent person in criminal activity. (87)

Moreover, "[m]aintaining a proper 'chain of custody' involves producing and maintaining written documentation[,] which accompanies the evidence and provides an uninterrupted timeline showing the secure location of the evidence from the time it was discovered until the present time." (88) "Any transfer of evidence from one person or secure location to another must be

documented." (89) Maintaining this chain of custody helps to ensure that the evidence will not be contaminated or compromised in any way. If the proper chain of custody is not maintained and the chain is broken, it may provide a potential reason for such evidence to be inadmissible in court. (90) Thus, even if Microstamping was mandated, it would have limited value, because there would be no way to ensure that the evidence was not compromised, rendering it ultimately inadmissible in court.

VII. EVEN IF MICROSTAMP TECHNOLOGY FINALLY COMES OUT OF PATENT PROTECTION, USE OF THIS EVIDENCE IN CRIMINAL PROSECUTIONS IS INADMISSIBLE EVIDENCE UNDER THE DAUBERT TEST AND FEDERAL RULE OF EVIDENCE 702

In Daubert v. Merrell Dow Pharmaceuticals, Inc., (91) the United States Supreme Court ruled that the admissibility of any and all scientific testimony or evidence at trial must not only be relevant but reliable as well. (92) This marked a significant shift to the admissibility standard for scientific testimony in both civil and criminal trials. (93) Daubert settled the circuit debate over whether the then leading case, Frye v. United States, (94) or the Federal Rules of Evidence, which became effective in 1975, controlled admissibility. Ultimately, the Court held that Federal Rule of Evidence 702 (95) displaced the general acceptance requirement of Frye. (96) Specifically, the Court noted that:

"'[g]eneral acceptance' is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence-especially Rule 702-do assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." (97)

Daubert also held that the trial judge is to act as a "gatekeeper" in determining whether proffered expert scientific evidence should be admitted. (98) The Daubert opinion lists several factors germane to the question of whether or not proffered evidence constitutes admissible "scientific knowledge", or more commonly known as the Daubert factors. (99) The first factor for consideration is "whether a theory or technique ... can be (and has been) tested." (100) Second, "whether the theory or technique has been subjected to peer review and publication." (101) The Court noted that while not dispositive of admissibility, "submission to the scrutiny of the scientific community is a component of 'good science."' (102) Third, attention should be given to "the known or potential rate of error ... and the existence and maintenance of standards controlling the technique's operation." (103) Finally, the court should note whether the proffered evidence has achieved some degree of "general acceptance" in the scientific community. (104) The Daubert Court was careful to point out that "'a known technique which has been able to attract only minimal support within the community,' may properly be viewed with skepticism." (105) Additionally, courts must also decide whether the testimony is relevant to the facts of the case. "Rule 702 further requires that the evidence or testimony 'assist the trier of fact to understand the evidence or to determine a fact in issue."' (106) This condition goes primarily to relevance. "'Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful."' (107) This is essentially Rule 702's "helpfulness" standard which requires a reasonable connection to the dispute at hand. (108)

In a subsequent case, Kumho Tire Co. v. Carmichael, the Supreme Court articulated that a Daubert determination of reliability and relevance must be made in all cases where expert evidence is offered, whether we call it scientific evidence, technical knowledge, or skilled profession. (109) This "technical knowledge or skilled profession" language does mean that reliability will vary from expertise to expertise, but "an opinion from an expert who is not a scientist should receive the same degree of scrutiny for reliability as an opinion from an expert who purports to be a scientist." (110)

Post Daubert and Kumho Tire, there was criticism of whether certain forensic evidence had "made its way into the courtroom without empirical validation of the underlying theory and/or its particular application." (111) More specifically, the challenges to forensic firearms and toolmark identifications have been that "(1) the individual characteristics of toolmarks are comprised of non-unique marks, (2) subclass characteristics shared by more than one tool may be confused with individual characteristics unique to one and only one tool, and (3) the individual characteristics of the marks made by a particular tool change over time." (112) The courts were left to decide the admissibility of scientific forensic evidence on a case by case basis because Kumho Tire failed to provide a consistent standard by which to measure scientific and non-scientific expert testimony. However, despite many challenges to the scientific and forensic techniques of ballistics and firearm testing, courts have generally found firearm identification techniques to be reliable and have admitted expert testimony into evidence. (113) "Accordingly, the burden often shifts to the defendant to come forward with evidence challenging that assumption...." (114) This author has only found three courts that have limited or excluded a firearms examiner's testimony based on a Daubert challenge. (115) One such example was in United States v. Green, which expressed "serious reservations" regarding the reliability of tool mark identification evidence. (116)

VIII. MICROSTAMP TECHNOLOGY FALLS UNDER DAUBERT AND FEDERAL RULES OF EVIDENCE 702

Ballistic testing and firearm tracing now embarks into an unchartered territory of forensic science. Because of the dangers that Microstamping present to the already discretionary guidelines under Daubert, Kumho Tire and Federal Rule of Evidence 702, there should be an across the board exclusion of potential Microstamping firearm and toolmark testimony. The trend in post-Daubert criminal cases has had far less of an impact on expert testimony admissions than in civil cases. (117) Nevertheless, within those criminal cases the majority of courts, when faced with a challenge to ballistic identification testimony, do rule in favor of admission of the evidence. Despite this trend, Microstamping falls outside of the typical ballistic or firearm tracing methods, and forms a new subjective, untested, and unreliable approach that warrants concern for criminal defendants faced with firearm related charges. More specifically, Microstamping does not reach any of the thresholds that Daubert, Kumho Tire, or Federal Rule of Evidence 702 require in order for a court to determine that "the reasoning or methodology underlying the testimony is scientifically valid and ... that reasoning or methodology properly can be applied to the facts in issue." (118) Therefore, failure to establish a prima facie showing that the Microstamp technology meets any of the Daubert or Federal Rules of Evidence 702 standards means that any court faced with proffered evidence or testimony regarding Microstamping should rule it inadmissible.

The Supreme Court in Daubert ruled that scientific and technical evidence is admissible only if: (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the case. (119) The question of whether the methodology of identifying a match between a particular shell casing and a gun based on microscopic imprints requires far more analysis based on the lack of empirical studies. The advisory committee's note to Federal Rule of Evidence 702 counsels;
   If the witness is relying solely or primarily on experience,
   then the witness must explain how that experience leads to
   the conclusion reached, why that experience is a sufficient
   basis for the opinion, and how that experience is reliably
   applied to the facts. The trial court's gatekeeping function
   requires more than simply "taking the expert's word for
   it." (120)


The first Daubert factor, which is echoed in Kumho, is "whether [a technique] can be (and has been) tested." (121) To date, there have been limited tests regarding microstamp technology. As discussed earlier, the two tests by UC Davis and Krivosta reached conclusions that run contrary to the NanoMark test, which the company promotes as validating the new technology. Both the UC Davis and Krivosta studies warned of inconsistent results, the dangers of tampering, and statewide programs incorporating the technology; the studies recommended further testing before it should be accepted into the firearms forensic community. (122) In fact, neither study can claim to confirm the 100% accuracy rate that NanoMark proudly asserts. (123) In order to satisfy a pre-trial Daubert hearing, statistical criteria must be developed which can objectively evaluate whether Microstamp technology should be deemed reliable. Accordingly, because Microstamp technology was so strongly criticized in the latter studies and conflicting views in the broader scientific community were voiced about the validity of its results, the technology cannot be deemed to have any level of general acceptance. (124)

The second Daubert factor is whether the technique has been subjected to peer review and publication. Peer review does not include methodology manuals published by the technology's manufacturer. The Supreme Court's high expectation of peer review is telling. "[S]ubmission to the scrutiny of the scientific community is a component of "good science," in part because it increases the likelihood that substantive flaws in methodology will be detected." (125) Under Daubert and Kumho, this would require microstamping to withstand the scrutiny of statisticians, data experts, and other industry professionals. The Microstamp technology simply has not been subject to this level of scrutiny. The Association of Firearms and Toolmark Examiners (AFTE) publishes a peer reviewed journal, aptly named the AFTE Journal, which contains numerous articles validating the current technique for firearm identification. As one firearms examiner explained in the 2003 AFTE Journal:

In other words, for our work to be valid, it must be verifiable by other examiners. This means that other examiners must be able to repeat the work and come to the same conclusions. Therefore, the data that we gather should provide a well-defined "roadmap" as to what experiments we performed to answer the question(s) posed, what data was gathered, and a clear demonstration of the evidence from which we supported our conclusion(s). This mechanism of communication among scientists is a substantial part of the process of verification. (126)

Thus far, the results that Microstamp technology manufacturers claim to have attained have neither been duplicated nor verified.

Although many courts have admitted the expert testimony of forensic firearms experts, (127) there are still dangers that have yet to be explored through Microstamping. Specifically, the limited studies "reveal[] a very superficial treatment of [the] basic problem of evaluating results and establishing identity." (128) Microstamping takes the skepticism argument against toolmark and firearm identification to even more dangerous levels because of the infancy of such technology and its inconsistent results. (129) Third, the exclusion of Microstamp evidence is justified by the rate of error inherent within the small number of studies conducted in this area. The problem here is that an expert would be called to determine whether a certain firearm could have made the markings found on spent shell casings when the real question should be whether there is a reliable foundation for the expert's conclusion that this particular gun, and no others, were the source of the markings on the shell casings. In keeping with the AFTE Range of Conclusions, examiners in the United States may only (1) identify a particular tool as the source of the toolmark(s) found on an object; (2) eliminate a particular tool as the source; (3) conclude that the comparison of test and evidence toolmarks is inconclusive; or (4) conclude that the evidence toolmark is unsuitable for comparison. (130) Because there is limited knowledge on the accuracy of Microstamping, only numbers 3 and 4 of the above allowed conclusions (comparison and testing are inconclusive or that a toolmark is unsuitable for comparison). Both the UC Davis and Krivosta research found that the degree of degradation among test fired guns differed in degree, that the micro-characters could be easily defaced or obliterated, and the outcome of the studies were too inconclusive to advise implementation in legislation or production. (131) Krivosta even reported that the overall ratio of satisfactory to unsatisfactory impressions was 54 to 46. (132) While there is no requirement for percentage of accuracy in firearm identification testimony, it should at minimum, demonstrate a "reasonable degree of scientific certainty" that the microstamp was "more likely than not caused by a particular stimulus, based on the general consensus of recognized [scientific] thought." (133) Both studies reported misidentifications and inconclusive findings. This range would mislead a judge in a pre-trial hearing and a jury if such evidence was admitted. Federal Rule of Evidence 403 excludes even relevant evidence in cases of undue prejudice, confusion, or waste of time. (134) "[A]ccurate determination of the defendant's guilt is the central concern which outweighs any other possible procedural objective." (135) Under Federal Rule of Evidence 702, the expert must also possess a reasonable degree of certainty in her opinion, which may be expressed using language such as "probably." (136) While an expert can possibly sweep in otherwise inadmissible evidence under Federal Rules of Evidence 703 and 704, the 403 balance should serve as another checkpoint to exclude testimony on Microstamp identification. Because of the high rate of error, Microstamp identification would fail the reliability and relevancy prongs of Federal Rule of Evidence 702 and Daubert, and would increase the danger of misleading the jury. (137) The Krivosta study warned:

The layman might also take as gospel that if you could find a way to place a number onto the tip of a firing pin, then you could certainly read it in the impression. Not until this research was performed and many test fires examined from a firing pin that had a known recognizable pattern, did it become apparent how much change could take place, and why matching firing pin impressions can be so challenging. (138)

Therefore, it is plausible to infer that error rates among relevant studies are high enough to warrant barring Microstamp-related testimony.

Finally, because there is no degree of general acceptance within the scientific community, the Microstamp technology would fail a pre-trial Daubert challenge. (139) While the general theory of using toolmarks for connecting firearms to bullets may be accepted among the relevant scientific community, it does not support the particular application of Microstamping yet. Finding the testimony reliable is hindered by the lack of acceptance by the relevant scientific community and the fact that no literature supporting or rejecting the theory and technique exists.

IX. CONCLUSIONS

Microstamp technology, used as an evidentiary tool for identifications in both criminal and civil cases, does not meet any of the requirements under Daubert or Federal Rule of Evidence 702 stating that expert testimony be based on a valid scientific method. Aside from challenges to other firearm and toolmark analysis, Microstamping poses an even greater danger to courtrooms and prejudicial errors in trials. While the methodology of firearms identification has been called more of an art rather than science, (140) the dangers that Microstamp could potentially hold for a defendant facing criminal charges multiplies immensely under this experimental approach to firearm identification. (141) "[I]nnocent people can be framed or implicated if a criminal collects microstamped cartridge casings from abandoned shooting ranges and 'seeds' the crime scene with evidence." (142) While the Court in Daubert and Federal Rule of Evidence 702 do not purport to establish an exhaustive list of factors necessary for admissibility of expert testimony, as it remains today, it can be said that Microstamping fails any or all of the recommended guidelines. Further, the inconsistent studies do not comport with the AFTE guideline for examiners in the field of toolmark and firearm analysis. (143) Finally, instead of attempting to answer the questions of whether Microstamping in a criminal proceeding would be relevant or reliable,

it would fundamentally mislead judges and juries by claiming it can single out a particular firearm to the exclusion of all others. It is recommended that California repeal the law requiring the technology in all handguns sold within the state. One has to question the decision by the California Department of Justice to spend its time and limited resources on drafting regulations for the flawed technology. Because the California law is, in essence, tied up in patents, the actual enforcement of the provisions may never see the light of day. However, the dangers addressed should be dealt with before further legislation on the state or federal level is enacted regarding any implementation of Microstamp technology. In sum, any attempt to use Microstamp technology in expert testimony in its current form, and as applied to firearm identification, is not reliable. If expert testimony is not reliable, it is simply not evidence. (144)

(1.) United States v. Monteiro, 407 F. Supp. 2d 351, 359 (D. Mass. 2006).

(2.) See Paul C. Giannelli, Ballistics Evidence: Firearms Identification, 27 GRIM. L. BULL. 195, 197 (1991).

(3.) See Firearms Tracing, NATIONAL SHOOTING SPORTS FOUNDATION (NSSF) (2011), http://nssf.org/factsheets/PDF/FirearmsTracing.pdf.

(4.) JOSEPH PRAHLOW, FORENSIC PATHOLOGY FOR POLICE, DEATH INVESTIGATORS, ATTORNEYS AND FORENSIC SCIENTISTS 24-25 (2010).

(5.) BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, U.S. DEPT. OF JUSTICE, PUB NO. 3312.11, DISCLOSURE OF FIREARMS TRACE DATA (2007).

(6.) See generally James E. Hamby, The History of Firearm and Toolmark Identification, ASS'N OF FIREARM & TOOL MARK EXAMINERS J. (1999) (Rev. April 2008), available at http://firearmsid.com/A_historyoffirearmsID.htm (discussing the evolution of firearm and toolmark identification over the past 165 years).

(7.) Tracy Hite, Developments in Forensic Science: The National Ballistics Information Network, THE POLICE CHIEF, 178 (Apr. 2000), http://www.nibin.gov/press/the-national-integrated- ballistics-information-network.pdf.

(8.) Id.

(9.) Id.

(10.) Id.

(11.) Paul Helmke, It's Time to Pass Microstamping in California, HUFFINGTON POST (Aug. 22, 2007 11:07 AM), http://www.huffingtonpost.com/paul-helmke/itstime-to-pass- microsta_b_61407.html.

(12.) Firearms Control Amendment Act of 2008: Public Hearing Before the Comm. on Pub. Safety and the Judiciary Council of D.C., (2008) (statement of Joshua Horwitz, Executive Director of the Educational Fund to Stop Gun Violence), available at http://www.csgv.org/storage/documents/MICROSTAMPING%20TESTIMONY% 2010-1-08.pdf [hereinafter Howitz].

(13.) PRAHLOW, supra note 4, at 24.

(14.) Id.

(15.) Id.

(16.) Id. at 24-25. See also Report from Bill Lockyer, Attorney Gen., Cal. Dep't of Justice, on Assemb. Bill 1717 Stats. 2000 ch. 271 to the Cal. Legislature (Jan. 2003) (reporting on the feasibility and benefits of a statewide database to compare ballistic evidence). But see Jan De Kinder et al., Reference Ballistic Imaging Database Performance, 140 FORENSIC SCI. INT'L 207, 213 (2004) (finding that the determination of whether ammunition components were fired by the same gun was complicated by "an overlap of class characteristics of the firearms from different manufacturers").

(17.) JACK D. GUNTHER & CHARLES O. GUNTHER, THE IDENTIFICATION OF FIREARMS: FROM AMMUNITION FIRED THEREIN WITH AN ANALYSIS OF LEGAL AUTHORITIES 90-91 (1935).

(18.) Orest P. Ohar & Todd Lizotte, Extracting Ballistic Forensic Intelligence:

Microstamped Firearms Deliver Data for Illegal Firearm Traffic Mapping--Technology, PROC. OF SPIE, 15 (2009), http://www.csgv.org/storage/documents/LIZOTTE%20RESEARCH%20PAPER% 20AUGUST%202009.pdf [hereinafter Extracting Ballistic].

(19.) Id. at 14.

(20.) Id.

(21.) Id.

(22.) See id. at 14-16.

(23.) Marianne W. Zawitz, Firearms, Crime, and Criminal Justice--Guns Used in Crime, U.S. DEPT. OF JUSTICE, 4 (1995), http://bjs.ojp.usdoj.gov/content/pub/pdf/GUIC.PDF.

(24.) Todd Lizotte is a New Hampshire engineer who patented the process under the trademark NanoMark Technologies. James P. Sweeney, Casing-Code Issues Snag Handgun Law, SAN DIEGO UNION-TRIBUNE (Aug. 10, 2009), http://www.utsandiego.com/news/2009/aug/10/1n10guncodes235322- casing-code-issues-snag-handgun/?print&page=all.

(25.) David Howitt et al., What Micro Serialized Firing Pins Can Add to Firearm Identification in Forensic Science: How Viable are Micro-Marked Firing Pin Impressions as Evidence?, CAL. POL'Y RES. CTR., 16 (2005), http://forensicscience.ucdavis.edu/pdf/microserial.pdf [hereinafter UC Davis Study].

(26.) See Todd E. Lizotte & Orest Ohar, Forensic Firearm Identification of Semiautomatic Handguns Using Laser Formed Microstamping Elements, COALITION TO STOP GUN VIOLENCE(2008), http://www.csgv.org/storage/documents/FORENSIC%20FIREARM%20IDENTIF ICATION%20OF%20SEMIAUTOMATIC%20HANDGUNS%20%20LIZOTTE.pdf [hereinafter Forensic Firearm]. See generally Comm. on Identifying the Needs of the Forensic Scis. Cmty., Strengthening Forensic Science in the United States: A Path Forward, (Nat'l. Research Council, 2009) (unpublished report on file with The National Academies Press) (finding serious deficiencies in the nation's forensic science system and calls for major reforms and new research), available at http://www.nap.edu/catalog/12589.html.

(27.) Forensic Firearm, supra note 26, at 3.

(28.) Id.

(29.) Horwitz, supra note 12, at 2.

(30.) Forensic Firearm, supra note 26. See also George G. Krivosta, NanoTag Markings From Another Perspective, 38 AFTE J. 41, 41 (2006), available at http://www.nssf.org/share/legal/docs/AFTEVol38No1KrivostaNanoTag.pdf.

(31.) See What is Ballistic Id Tagging? NANOMARK, http://www.nanomark.com/Ballistic-id-tagging/ballistic-id.htm (last visited Nov. 15, 2010).

(32.) Horwitz, supra note 12, at 4.

(33.) Editorial, A Crime-Fighting Opportunity, N.Y. TIMES, Feb. 15, 2008, http://www.nytimes.com/2008/02/15/opinion/15fri3.html.

(34.) Promising Strategies to Reduce Gun Violence, OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION, 3 (Feb. 1999), http://www.ojjdp.gov/pubs/gun_violence/173950.pdf.

(35.) See ROBERT J. SPITZER, THE POLITICS OF GUN CONTROL 95-96 (2d ed. 1998) (tying certain demographics to gun ownership and demonstrating American support for regulation of handguns).

(36.) Extracting Ballistic, supra note 18, at 4.

(37.) NANOMARK, supra note 31.

(38.) Extracting Ballistic, supra note 18, at 8-10.

(39.) Id. at 11.

(40.) Id. at 15.

(41.) Forensic Firearm, supra note 26.

(42.) Id.

(43.) Id.

(44.) Extracting Ballistic, supra note 18, at 44; see also Krivosta, supra note 30, at 41 ("[The] vendor suggests that NanoTagTM markings will be readily identifiable at the crime scene, with 100% reliability, with little to no training of the analyst needed, and yet remain easily affordable.").

(45.) Extracting Ballistic, supra note 18, at 44.

(46.) See Matthew Yi, Assembly OKs Micro-Stamp on Some Guns: Bill Would Make State First in Nation to Require Tracking Device in Semiautomatic Pistols, S.F. CHRON., May 30, 2007, http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/05/30/BAG7QQ3PBB1.DTL, ("California [would be] the first in the nation to require a mechanism inside semiautomatic pistols to stamp information that would help authorities track down criminals.").

(47.) Krivosta, supra note 30, at 41; see also Press Release, National Research Council, Report Advises Against New National Database of Ballistic Images

(March 5, 2008), available at http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordlD=12162 ("[M]ore in-depth studies are needed on the durability of microstamped marks under various firing conditions and their susceptibility to tampering, as well as on their cost impact for manufacturers and consumers").

(48.) UC Davis Study,, supra note 25. David Howitt is a professor in the Department of Chemical Engineering and Materials Science at the University of California, Davis. Id. at 2. Frederic A. Tulleners is the director of the Graduate Forensic Science Program within UC Davis Extension, and former California Department of Justice laboratory director of the California Criminalistics Institute. Id. Michael T. Beddow, UC Davis M.S. graduate in forensic science at UC Davis, conducted the core tests on which the study was based. Id

(49.) Krivosta, supra note 30, at 41.

(50.) UC Davis Study, supra note 25, at 7.

(51.) Id.

(52.) Id.

(53.) Id. at 9.

(54.) Id. at 10.

(55.) Id.

(56.) Id. at 47. The study also recommended a study of the pricing estimates given by the manufacturer and the usefulness of the serial number information in solving gang shootings. Id. at 11-12.

(57.) See Krivosta, supra note 30, at 41.

(58.) Id.

(59.) Id. at 42.

(60.) Id.

(61.) Id. at 43. The overall ratio of Satisfactory to Unsatisfactory impressions was 54 to 46. Id.

(62.) Id.

(63.) Id. at 43-44.

(64.) Id. at 44. These include markings on the breech face, extractor, ejector, and interior of the chamber. Id.

(65.) Id.

(66.) David Muradyan, Firearm Microstamping: A "Bullet with a Name On It", 39 MCGEORGE L. REV. 616, 618 (2008). See generally 2008 California Report Recent Developments in Federal, State and Local Gun Laws, LEGAL COMMUNITY AGAINST VIOLENCE (2008), http://www.lcav.org/publications-briefs/reports_analyses/ 2008_California_Report.pdf (providing an updated information on federal and state legislative initiatives to fight gun violence).

(67.) CAL. PENAL CODE [section] 12126(b)(7) (West 2007), repealed by Stats. 2010, C. 711 (S.B. 1080); Horwitz, supra note 12, at 5.

(68.) See Yi, supra note 46.

(69.) Firearms Microstamping Feasible But Variable, Study Finds, SCIENCEDAILY (May 14, 2008), http://www.sciencedaily.com/releases/2008/05/080514092333.htm.

(70.) See id.

(71.) CAL. PENAL CODE [section] 32000(b)(4) (2010); see also Muradyan, supra note 66, at 618-19 (defining an unsafe handgun as "any pistol, revolver, or

other firearm capable of being concealed upon the person which does not meet certain safety requirements.").

(72.) U.S. Patent No. 7,204,419 (filed July 18, 2003) (issued Apr. 17, 2007) (regarding a method and apparatus for reading firearm Microstamping, invented by Todd Lizotte and Orest Ohar, assigned to Identification Dynamics, LLC.).

(73.) James P. Sweeney, Casing-Code Issues Snag Handgun Law, SAN DIEGO UNION-TRIBUNE, Aug. 10, 2009, at A-l, available at http://www.utsandiego.com/news/2009/aug/10/ 1n10guncodes235322-casing-code-issues-snag-handgun/.

(74.) "Microstamping," NATIONAL RIFLE ASSOCIATION--INSTITUTE FOR LEGISLATIVE ACTION (NRA-ILA) (Sept. 26, 2008), http://www.nraila.org/news-issues/fact-sheets/2008/micro-stamping- (summary).aspx; Fast Facts Microstamping, NAT' L SHOOTING SPORTS FOUND., http://www.nssf.org/factsheets/PDF/Microstamping.pdf.

(75.) Technological Resource to Assist Criminal Enforcement (TRACE) Act, H.R. 1874, 110th Cong. (1st Sess. 2007).

(76.) H.R. 1874 [section] 2(a).

(77.) H.R. 1874.

(78.) UC Davis Study, supra note 25, at 11 (emphasis omitted).

(79.) Krivosta, supra note 30, at 42.

(80.) See id. at 43-44.

(81.) Homicide Trends in The U.S., BUREAU OF JUSTICE STATISTICS, http://bjs.ojp.usdoj.gov/content/homicide/tables/relationshiptab.cfm (last visited Mar. 10, 2011).

(82.) Id.

(83.) "Micro-stamping" NRA Supports H.R. 5667, The Firearms Microstamping Evaluation and Study Act, NAT'L RIFLE ASS'N INST. FOR LEGISLATIVE ACTION, http://www.nraila.org/news-issues/fact-sheets/2010/nrasupports-hr-5667,-the- firearms-mi.aspx?s=microstamping&st=&ps= (last visited Mar. 11, 2011).

(84.) Id.

(85.) See Muradyan, supra note 66, at 624.

(86.) Micro-stamping Firearms Will Not Reduce Crime, NAT'L SHOOTING SPORTS FOUND., http:// www.nssf.org/share/legal/docs/microstamping/Microstamping-Crime.pdf.

(87.) Muradyan, supra note 66, at 624.

(88.) PRAHLOW, supra note 4, at 18.

(89.) Id.

(90.) Id.

(91.) Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

(92.) Id. at 589.

(93.) See David L. Faigman, Is Science Different for Lawyers?, 297 SCI. 339, 340 (2002) ("Daubert initiated a scientific revolution in the law.").

(94.) Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923). Under the Frye analysis, the decision to admit scientific evidence was based primarily on the consensus of the experts in the field which required proof that the procedures were generally accepted in their field. Id. at 1014.

(95.) FED. R. EVID. 702.

(96.) Daubert, 509 U.S. at 588 ("Nothing in the text of this Rule establishes 'general acceptance' as an absolute prerequisite to admissibility."). See also FED. R. EVID. 702 advisory committee's note.

(97.) Daubert, 509 U.S. at 597.

(98.) This "gatekeeper" role extends from the Federal Rule of Evidence 104(a) which provides that "[t]he court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege." FED. R. EVID. 104(a).

(99.) Daubert, 509 U.S. at 593-96.

(100.) Id. at 593.

(101.) Id.

(102.) Id.

(103.) Id. at 594.

(104.) Id.

(105.) Id. (quoting United States v. Downing, 753 F.2d 1224, 1238 (3d Cir. 1985)).

(106.) Id. at 591. See also FED. R. EVID. 702.

(107.) Daubert, 509 U.S. at 591 (quoting JACK B. WEINSTEIN & MARGARET A. BERGER, 3 WEINSTEIN'S EVIDENCE 702[02], at 702-18 (1993)). See also Downing, 753 F.2d at 1242 ("An additional consideration under Rule 702--and another aspect of relevancy--is whether expert testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute").

(108.) See FED. R. EVID. 702 advisory committee's notes (2000). ("However, the court is called upon to reject testimony that is based upon premises lacking any significant support and acceptance within the scientific community, or that otherwise would be only marginally helpful to the fact-finder.")

(109.) See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (extending Daubert's reach to technical and other specialized knowledge). See also General Electric v. Joiner, 522 U.S. 136, 146-47 (1997) (articulating the discretionary authority of trial judges by emphasizing that it is up to the trial judge to decide how best to fulfill their gatekeeping function).

(110.) FED. R. EWD. 702 advisory committee notes (2000). See Watkins v. Telsmith, Inc., 121 F.3d 984, 991 (5th Cir. 1997) ("(I)t seems exactly backwards that experts who purport to rely on general engineering principles and practical experience might escape screening by the district court simply by stating that their conclusions were not reached by any particular method or technique.").

(111.) Paul C. Giannelli, Scientific Evidence in Criminal Prosecutions: A RETROSPECTIVE, 75 BROOK. L. REV. 1137, 1140 (2010) (quoting Margaret A. Berger, Procedural Paradigms for Applying the Daubert Test, 78 MINN. L. REV. 1354 (1994) [hereinafter Procedural Paradigms]). See also Adina Schwartz, A Systematic Challenge to the Reliability and Admissibility of Firearms and Toolmark Identification, 6 COLUM. SCI. & TECH. L. REV. 2, 2 (2005) [hereinafter Systematic Challenge] ("[A]ll firearms and toolmark identification testimony should be excluded until adequate statistical empirical foundations and proficiency testing are developed for the field."); see also See Peter B. Oh, Assessing the Admissibility of Nonscientific Expert Evidence Under Federal Evidence Rule 702, 64 DEF. COUNS. J. 556, 556 (1997) (stating that ensuring the reliability of nonscientific testimony is "an increasingly common problem").

(112.) Systematic Challenge, supra note 111, at 4.

(113.) See Joan Griffin & David J. LaMagna, Daubert Challenges to Forensic Evidence. Ballistics Next on the Firing Line, THE CHAMPION, 20 (September/October 2002), http://www.swggun.org/resources/admissibility/lamagmaresponse.pdf, see e.g. United States v. Santiago, 199 F. Supp. 2d 101, 111 (S.D.N.Y. 2002) ("The Court has not found a single case in this Circuit that would suggest that the entire field of ballistics identification is unreliable.... To the extent that [the defendant] asserts that the entire field of ballistics identification is unacceptable 'pseudo-science,' the Court disagrees."); United States v. Cooper, 91 F. Supp. 2d 79, 82-83 (D.D.C. 2000) (implying that ballistics identification involves "well-established" scientific principles); United States v. Hicks, 389 F.3d 514, 526 (5th Cir. 2004) (dealing with a similar challenge, noting that "we have not been pointed to a single case in this or any other circuit suggesting that the methodology ... is unreliable"); United States v. Davis, 103 F.3d 660, 672 (8th Cir. 1996) (upholding the use of expert testimony to link bullets recovered from a crime scene to a firearm associated with the defendant). Cf. United States v. Scheffer, 523 U.S. 303, 313-14 (1998)(contrasting polygraph evidence with other more accepted fields of expert testimony, including ballistics).

(114.) Griffin & LaMagna, supra note 113, at 23.

(115.) Sexton v. State, 93 S.W.3d 96 101 (Tex. Crim. App. 2002) (holding pursuant to Fed. R. Evid. 702, that while the underlying theory of toolmark examination could be reliable in a given case, the State failed to produce evidence of the reliability of the technique used in defendant's case.); see also United States v. Green, 405 F. Supp. 2d 104, 114-21 (D. Mass. 2005) (finding under a Daubert test, the examiner did not follow the AFTE protocol and provided no notes, recorded observations, or photographs and that there were no peer-reviewed publications); see also United States v. Monteiro, 407 F. Supp. 2d 351, 374 (D. Mass. 2006) (holding that the firearms examiner's methodology was valid and the examiner's experience sufficiently qualified him as an expert, but the lack of peer review and documentation rendered the examiner's testimony inadmissible).

(116.) See Green, 405 F. Supp. 2d at 108.

(117.) See Jennifer L. Groscup et al., The Effects of Daubert on the Admissibility of Expert Testimony in State and Federal Criminal Cases, 8 PSYCHOL. PUB. POL'Y & L. 339, 364 (2002) ("[T]he Daubert decision did not impact on the admission rates of expert testimony at either the trial or the appellate court levels."); D. Michael Risinger, Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left on the Dock?, 64 ALB. L. REV. 99, 149 (2000) ("[T]he heightened standards of dependability imposed on expertise proffered in civil cases has continued to expand, but ... expertise proffered by the prosecution in criminal cases has been largely insulated from any change in pre-Daubert [sic] standards or approach.").

(118.) Daubert, 509 U.S. at 592-93.

(119.) Kumho Tire, 526 U.S. at 141.

(120.) FED. R. EVID. 702 advisory committee's note (citing Daubert v. Merrell Dow, 43 F.3d 1311, 1319 (9th Cir. 1995)). Daubert demands that the expert's "'knowledge' connote[] more than subjective belief or unsupported speculation." Daubert, 509 U.S. at 590.

(121.) Daubert, 509 U.S. at 593.

(122.) UC Davis Study, supra note 25, at 9-14. Krivosta, supra note 30, at 44-47.

(123.) See Extracting Ballistic, supra note 18.

(124.) See Ramirez v. State, 810 So. 2d 836, 851 (Fla. 2001) ("In applying the Frye criteria, general scientific recognition requires the testimony of impartial experts or scientists. It is this independent and impartial proof of general scientific acceptability that provides the necessary Frye foundation.").

(125.) Daubert, 509 U.S. at 593.

(126.) Bruce Moran, Photo Documentation of Toolmark Identifications--An Argument in Support, 35 AFTE J. 174, 181 (2003).

(127.) See sources cited supra note 111.

(128.) James W. Osterburg, The Evaluation of Physical Evidence in Criminalistics. Subjective or Objective Process?, 60 J. GRIM. L. CRIMINOLOGY & POLICE SCI. 97, 100 (1969). While Osterburg's article challenges the field of firearms and toolmark identifications as a whole, the same argument applies now to an even more subjective and error ridden application of firearms identification.

(129.) Krivosta, supra note 30, at 41-42.

(130.) Systematic Challenge, supra note 111, at 13. See, e.g., AFTE Glossary. Theory of Identification as It Relates to Toolmarks, 30(1) ASS'N FIREARMS & TOOL MARK EXAMINERS J. 86-88 (1998).

(131.) See generally UC Davis Study, supra note 25; Krivosta, supra note 30.

(132.) Krivosta, supra note 30, at 43.

(133.) See Burke v. Town of Walpole, 405 F.3d 66, 91 (1st Cir. 2005)(regarding admissible evidence in the context of bite mark identification (quoting BLACK'S LAW DICTIONARY 1294 (8th ed. 2004)).

(134.) FED. R. EVID. 403. The issue of prejudicial effect being weighed against probative force, significant throughout the law of evidence, is undeniably a factor upon which the judge must exercise discretion when considering admissibility. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or undue delay.

(135.) Procedural Paradigms, supra note 111, at 1352 (noting that this protection arises from the Constitution's Fifth and Sixth Amendments and is further articulated in FED. R. EVID. 404).

(136.) See United States v. Mornan, 413 F.3d 372, 376 (3d Cir. 2005); Daubert, 509 U.S. at 590-91.

(137.) Rule 703 is concerned solely with the types of facts and data that expert witnesses may reasonably rely on in the formulation of their opinions, and the sources of these facts and data. It does not address whether the facts gathered by expert witnesses are sufficient to support their opinions. The latter question is solely within the province of Rule 702. FED. R. EVID. 702 advisory committee's note (2000). Compare Boim v. Holy Land Found. for Relief and Dev., 549 F.3d 685, 704 (7th Cir. 2008) (en banc) ("an expert is not limited to relying on admissible evidence in forming [an] opinion"), with In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 748 (3d Cir. 1994) (if "underlying data are so lacking in probative force and reliability that no reasonable expert could base an opinion on them, an opinion which rests entirely upon them must be excluded").

(138.) Krivosta, supra note 30, at 46.

(139.) Daubert, 509 U.S. at 594.

(140.) See Alfred A. Biasotti, The Principles of Evidence Evaluation as Applied to Firearms and Tool Mark Identification, 9 J. FORENSIC SCI. 428, 429 (1964); See also Systematic Challenge, supra note 111.

(141.) See Muradyan, note 66, at 624.

(142.) Id.

(143.) It should be noted that the while the AFTE guidelines appear to be more a description of the process of firearm identification rather than a strictly followed charter for the field, the guidelines are still relevant and helpful in determining the admissibility under Federal Rule of Evidence 702.

(144.) FED. R. EVID. 702.
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