Opinion
CR170179563
03-21-2019
State of Connecticut v. Abdur Terrell
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Alander, Jon M., J.
MEMORANDUM OF DECISION
Jon M. Alander Judge of the Superior Court
The defendant has moved to preclude the State from presenting the testimony of Andrew Pike, a firearm and toolmark examiner, to the jury during the defendant’s criminal trial because the methodology of toolmark analysis is not scientifically valid. In the alternative, the defendant requests that the court limit the scope of Pike’s testimony by prohibiting him from testifying that the shell casing found at the scene was fired from the firearm located there. The State responds that the defendant’s motion should be denied because the field of firearm and toolmark identification is well established and found to be generally accepted in the relevant scientific community. For the reasons that follow, I conclude that the defendant’s motion regarding the expected testimony of Pike should be denied in part and granted in part.
The defendant is charged with criminal possession of a firearm and carrying a pistol without a permit. The charges arise out of a shooting that took place in the area of 85 Saint John Street in New Haven on October 15, 2017. Witnesses reported that two men were firing guns at each other. Two guns were subsequently recovered at the scene. One of the firearms, a .40 caliber semi-automatic handgun, was allegedly seized within feet of the defendant. The New Haven police also recovered a .40 caliber projectile, multiple projectile fragments and a .40 caliber shell casing.
The .40 caliber firearm and the .40 caliber shell casing were sent to the state forensic laboratory for examination. Using standard firearm and toolmark analysis, Andrew Pike, who is a forensic examiner at the state forensic lab, examined the .40 caliber shell casing found at the crime scene and a .40 caliber shell casing test fired from the recovered .40 caliber firearm and concluded that they were fired from the same weapon. It is this conclusion that is challenged by the defendant.
In his motion to preclude Pike’s testimony, the defendant requested a Porter 1 hearing for the State to establish the reliability of the scientific methodology underlying Pike’s conclusion. The State objected to the defendant’s request citing State v. Raynor, 181 Conn.App. 760 (2018) and State v. Legnani, 109 Conn.App. 399 (2008) in which the Appellate Court affirmed the denial of a request for a Porter hearing on the admissibility of firearm and toolmark identification. Notwithstanding these appellate decisions, I granted the defendant’s request for a Porter hearing for two reasons. First, the court in both decisions held that the trial court did not abuse its discretion in refusing to conduct such a hearing on the issue of firearm analysis. The court held that "a Porter hearing to determine the validity of firearm and toolmark identification was not required." State v. Raynor, supra, 181 Conn.App. 771. The decisions implicitly leave a trial court the discretion to hold such a hearing.
Second, the basis for upholding the denial of a Porter hearing was the court’s conclusion that the science of firearm and toolmark identification is well established. Id., 770. See also State v. Legnani, supra, 109 Conn.App. 421. The question of whether a particular scientific methodology is generally accepted in the relevant scientific community is a factual question. It is also not static. A methodology may at one time be viewed as reliable by the scientific community and later fall out of favor. One only has to look at the recent about face regarding lead bullet examination, also known as Compositional Analysis of Bullet Lead (CABL). From the 1960s until 2005, the FBI used compositional analysis of bullet lead as a forensic tool of analysis to identify the source of bullets. A National Research Council Report issued in 2004 found that there were insufficient research and data to support drawing a connection, based on the compositional similarity, between a particular bullet and a given batch of ammunition. In 2005, the FBI discontinued the practice of bullet lead examinations. See PCAST Report, at 27. Given recent national studies raising questions regarding the methodology used in firearm and toolmark examination, see pp. 5-8 infra, I concluded that a hearing on the validity of the methodology was warranted.
Firearm and toolmark analysis involves the study of marks made by tools, such as the marks a gun imprints on projectiles or shell casings when the firearm is discharged. "Firearm and toolmark analysis rests on the twin assumptions that the surface contours of every gun are unique and that, every time that gun is fired, some of those unique markings, along with markings caused by the act of firing itself, are transferred to the shell casing and bullet, leaving distinctive patterns on each of them." United States v. Glynn, 578 F.Supp.2d 567, 572 (S.D.N.Y. 2008). A firearm examiner presented with a handgun and fired projectile or cartridge case will test fire the weapon using the same type of ammunition. The examiner will first analyze the class characteristics of the bullets and casings. Class characteristics are general characteristics that separate a group of objects from a universe of diverse objects and are determined prior to manufacture. When the items share the same class characteristics, the examiner will then look at the individual characteristics of the bullets or casings. Individual characteristics refer to those "fine microscopic markings and textures that are said to be unique to an individual tool or firearm." National Research Council of the National Academy of Sciences issued "Strengthening Forensic Science in the United States: A Path Forward" (National Academies Press 2009) at 152. The examiner will look at the test-fired sample and the recovered item simultaneously using a comparison microscope. The comparison microscope allows the examiner to compare the markings left on the two items. In theory, if the test projectile or cartridge casing and recovered projectile or cartridge casing were fired from the same gun, the examiner would see sufficient patterns of matching marks. The examiner can make: (1) an "identification" of the components, concluding that they came from the same source; (2) "inconclusive," meaning that there is not enough evidence to determine whether the components either do or do not come from the same source; and (3) an "elimination" of the components, concluding that they did not come from the same source.
A conclusion that the items have a common origin is made "when the unique surface contours of two toolmarks are in sufficient agreement." Association of Firemark and Tool Mark Examiners Identification Standard (2013). Sufficient agreement is attained "when the agreement in individual characteristics exceeds the best agreement demonstrated between toolmarks known to have been produced by different tools and is consistent with agreement demonstrated by toolmarks known to have been produced by the same tool. The statement that ‘sufficient agreement’ exists between two toolmarks means that the agreement of individual characteristics is of a quantity and quality that the likelihood another tool could have made the mark is so remote as to be considered a practical impossibility." Id. A finding of sufficient agreement is essentially a subjective determination, based on the training and experience of the examiner. This conclusion is not based on any quantitative standard for how many striations or marks need to match or lineup. Instead, it is based on an assessment of the patterns that the examiner sees in a particular case compared to the patterns the examiner has seen in prior cases. An examiner’s conclusions are then reviewed by a second examiner who reviews the first examiner’s documentation and conducts his own analysis of the evidentiary items.
Three national reports have recently raised substantial questions regarding the validity of the methodology used by firearm and toolmark examiners. The first was issued in 2008 by the National Research Council of the National Academy of Sciences and is entitled "Ballistic Imaging" (National Academies Press 2008) ("NRC Ballistic Imaging Report"). The National Research Council assembled a committee to "assess the feasibility, accuracy and reliability, and technical capability of developing and using a national ballistics database as an aid to criminal investigations." Id., 2. While the authors stressed that their study was not "an assessment of the validity of firearms identification as a discipline," id., 18, the committee found that "[t]he validity of the fundamental assumptions of uniqueness and reproducibility of firearms-related toolmarks has not yet been fully demonstrated," id., 3. "A significant amount of research would be needed to scientifically determine the degree to which firearms-related toolmarks are unique or even to quantitatively characterize the probability of uniqueness." Id. The committee further opined that "Notwithstanding this finding, we accept a minimal baseline standard regarding ballistics evidence. Although they are subject to numerous sources of variability, firearms-related toolmarks are not completely random and volatile; one can find similar marks on bullets and cartridge cases from the same gun." Id. It observed that "firearms identification ultimately comes down to a subjective assessment— specifically, a subjective probability statement[.]" Id., 54. The committee said: "Conclusions drawn in firearms identification should not be made to imply the presence of a firm statistical basis when none has been demonstrated." Id., 82. For example, an examiner should not assert that a match can be made "to the exclusion of all other firearms in the world." Id.
State v. Porter, 241 Conn. 57 (1997).
While raising issues about the validity of the methodology of firearm analysis, each study expressly stated that it was not making any recommendation concerning the admissibility of firearm and toolmark evidence in court.
In 2009, the National Research Council of the National Academy of Sciences issued "Strengthening Forensic Science in the United States: A Path Forward" (National Academies Press 2009) ("NRC Forensic Science Report"). According to the NRC Forensic Science Report, other than nuclear DNA analysis, "no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source." Id., 8. The NRC Forensic Science Report noted that "the decision of the toolmark examiner remains a subjective decision based on unarticulated standards and no statistical foundation for estimation of error rates." Id., 153-54. In its summary assessment the report concluded: "Because not enough is known about the variability’s among individual tools and guns, we are not able to specify how many points of similarity are necessary for a given level of confidence in the result. Sufficient studies have not been done to understand the reliability and repeatability of the methods. The committee agrees that class characteristics are helpful in narrowing the pool of tools that may have left a distinctive mark. Individual patterns from manufacture or from wear might, in some cases, be distinctive enough to suggest one particular source, but additional studies should be performed to make the process of individualization more precise and repeatable." Id., 154.
Finally, in 2016, the President’s Council of Advisors on Science and Technology issued its report, "Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature Comparison Methods" ("PCAST Report"). One of the feature comparison methods studied in the report was firearm and toolmark examinations. The report criticized the "sufficient agreement" approach as "circular" and "clearly not a scientific theory." Id., 60. The PCAST Report in its recommendations to the judiciary suggested that federal judges should ensure that the testimony about the accuracy of feature-comparison methods, such as firearm and toolmark examinations, and the probative value of proposed identifications is scientifically valid in that it is limited to what the empirical evidence supports. Id., 19. The report specifically stated that statements such as "identification to the exclusion of all other sources" and "a chance of error so remote as to be a ‘practical impossibility’ are not scientifically valid and should not be permitted. Id.
The PCAST Report concluded that: "Scientific validity and reliability require that a method has been subjected to empirical testing, under conditions appropriate to its intended use, that provides valid estimates of how often the method reaches an incorrect conclusion. For subjective feature-comparison methods, appropriately designed black-box studies are required, in which many examiners render decisions about many independent tests (typically, involving ‘questioned’ samples and one or more ‘known’ samples) and the error rates are determined. Without appropriate estimates of accuracy, an examiner’s statement that two samples are similar— or even indistinguishable— is scientifically meaningless: it has no probative value, and considerable potential for prejudicial impact. Nothing— not training, personal experience nor professional practices— can substitute for adequate empirical demonstration of accuracy." Id., 46. Specifically with respect to firearms analysis, the PCAST Report found that "firearms analysis currently falls short of the criteria for foundational validity, because there is only a single appropriately designed study to measure validity and estimate reliability. The scientific criteria for foundational validity require more than one such study, to demonstrate reproducibility." Id., 112.
The admissibility of scientific evidence is governed by State v. Porter, 241 Conn. 57 (1997). In State v. Porter, the court adopted the test for determining the admissibility of scientific evidence set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). State v. Porter, supra, 241 Conn. 68. The court quoted Daubert for the proposition that "The subject of the testimony must be scientifically valid, meaning that it is scientific knowledge rooted in the methods and procedures of science and is more than subjective belief or unsupported speculation." (Citations and internal quotation marks omitted.) Id., 64. "A Porter analysis involves a two-part inquiry that assesses the reliability and relevance of the witness’ methods. First, the party offering the expert testimony must show that the expert’s methods for reaching his conclusion are reliable. A non-exhaustive list of factors for the court to consider include: general acceptance in the relevant scientific community; whether the methodology underlying the scientific evidence has been tested and subjected to peer review; the known or potential rate of error; the prestige and background of the expert witness supporting the evidence; the extent to which the technique at issue relies on subjective judgments made by the expert rather than on objectively verifiable criteria; whether the expert can present and explain the data and methodology underlying the testimony in a manner that assists the jury in drawing conclusions therefrom; and whether the technique or methodology was developed solely for purposes of litigation. Second, the proposed scientific testimony must be demonstrably relevant to the facts of the particular case in which it is offered, and not simply be valid in the abstract. Put another way, the proponent of scientific evidence must establish that the specific scientific testimony at issue is, in fact, derived from and based on scientifically reliable methodology." (Internal quotation marks omitted and citations omitted.) Fleming v. Dionisio, 317 Conn. 498, 506-07 (2015).
The State asserts that firearm and toolmark analysis is generally accepted in the relevant scientific community and is admissible for that reason alone. "[I]f a trial court determines that a scientific methodology has gained general acceptance, then the Daubert inquiry will generally end and the conclusions derived from that methodology will generally be admissible." State v. Porter, supra, 241 Conn. 85. To evaluate this claim, one first has to define "the relevant scientific community." That community must extend beyond the practitioners of the methodology in question. See Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) (physiological and psychological authorities are the relevant scientific community for determining the acceptance of a systolic blood pressure deception test) and United States v. Porter, 618 A.2d 629, 634 (D.C. 1992) (members of the relevant scientific field include those whose scientific background and training are sufficient to allow them to comprehend the process and form a judgment about it). It is self evident that practitioners accept the validity of the method as they are the ones using it. Were the relevant scientific community limited to practitioners, every scientific methodology would be deemed to have gained general acceptance.
The State conceded at oral argument that the relevant scientific community includes forensic scientists who are familiar with firearm and toolmark analysis. The members of the National Research Council which issued its reports in 2008 and 2009 and the members of PCAST which issued its report in 2006, all of which analyzed firearm and toolmark examinations, unquestionably included scientists familiar with such analysis. Though each report questioned and criticized the methodology used by firearm examiners, none concluded that firearm and tool mark methodology was an entirely unacceptable one. Based on the evidence presented before me, I conclude that the State has established that the basic techniques employed by firearm and tool mark examiners are generally accepted in the relevant scientific community.
That conclusion does not end the inquiry in this case. "[T]he proponent of scientific evidence must establish that the specific scientific testimony at issue is, in fact, derived from and based on scientifically reliable methodology." (Internal quotation marks and citations omitted.) Fleming v. Dionisio, supra, 317 Conn. 507. See also State v. Kirsch, 263 Conn. 390, 407 (2003) (the court must consider whether the methodology is scientifically reliable for one purpose, but not another).
There are two areas of Pike’s proposed testimony that are problematic. First, Pike seeks to testify that the likelihood that a firearm other than the .40 caliber firearm recovered at the crime scene could have fired the recovered .40 caliber casing is so remote as to be considered "a practical impossibility." A number of courts on reviewing the scientific methodology underlying firearm and toolmark analysis have concluded that expert testimony about the accuracy of the method and the certainty of its results were not supported by the methodology. Courts have prohibited firearm and toolmark experts from testifying that their opinions are absolute or 100% accurate, Gardner v. United States, 140 A.2d 1172, 1177 (2016) and United States v. Monteiro, 407 F.Supp.2d 351, 372 (D.Mass. 2006) (expert may not testify to an absolute certainty or an arbitrary degree of statistical certainty); and testifying that there is a match to the exclusion of all other guns, United States v. Taylor, 663 F.Supp.2d 1170, 1180 (2009). In United States v. Glynn, 578 F.Supp.2d 567, 575 (S.D.N.Y. 2008) the court limited the firearm examiner’s testimony to a statement that it was "more likely than not that certain bullets or casings came from the same gun." In United States v. Willock, 696 F.Supp.2d 536, 546-47 (D.Md. 2010), aff’d sub nom. United States v. Mouzone, 687 F.3d 207 (4th Cir. 2012), the court precluded a firearm analyst from opining that it was "a practical impossibility" for another firearm to be the source of the evidentiary item. Similarly, the PCAST Report concluded that expert testimony that a chance of error was so remote as to be a "practical impossibility" is not scientifically valid and should not be permitted. PCAST Report, supra, at 19.
Pike testified that his conclusions were based on a subjective determination that there was sufficient agreement between the marks found on the known casing and the unknown casing. He admitted that his conclusions lacked any quantitative standards or measurements. He also admitted that he could provide no probability statement as to the likelihood that the unknown casing was fired from a firearm other than the supplied .40 caliber handgun. I conclude that his testimony that a chance of error is so remote as to be a practical impossibility is not based on a scientifically reliable methodology and must be precluded. See United States v. Willock, supra, 696 F.Supp.2d 546-47 and PCAST Report, supra, at 19.
Second, Pike intends to testify that the .40 caliber casing located at the crime scene was fired from the .40 caliber firearm found near the defendant. To say that a casing has fired from a particular handgun is a probability statement. See NRC Ballistic Imaging Report, supra, at 54. ("Behind every opinion rendered by a forensic scientist there is a statistical basis. We may not know what that basis is, and we may have no feasible means of developing an understanding of that basis, but it is futile to deny that one exists.") Cf. Michael J. Saks & Jonathan J. Koehler, "The Individualization Fallacy in Forensic Science Evidence." 61 Vand. L.Rev. 199, 211 (2008) (anything less than checking every sample results in probability statements rather than conclusions of absolute specificity and absolute identification). Pike admitted that he could not and did not check every firearm in existence and that he could not say that his conclusion that the casing was fired from the recovered firearm is "to the exclusion of all other firearms. Accordingly, there is some chance that the casing came from a different firearm. As stated earlier, Pike testified that he did not know the probability that the recovered casing was fired from a firearm other than the subject handgun. He also testified that he did not know the probability that the markings observed on the recovered casing appeared by chance.
These failings have caused some commentators to conclude that testimony by a firearm and toolmark examiner that an evidentiary projectile or shell casing was fired by a particular firearm is not scientifically valid. See, e.g., William A. Tobin & Peter J. Blatt, "Hypothesis Testing of the Critical Underlying Premise of Discernible Uniqueness in Firearms-Toolmarks Forensic Practice," 53 Jurimetrics J. 121 (2013); Adina Schwartz, "A Systemic Challenge to the Reliability and Admissibility of Firearms and Toolmark Identification," 6 Colum. Sci. & Tech. L.Rev. 2 (2005); and Michael J. Saks & Jonathan J. Koehler, "The Individualization Fallacy in Forensic Science Evidence." 61 Vand. L.Rev. 199, 212 (2008). Two courts have agreed. In United States v. Green, 405 F.Supp.2d 104, 108-09 (2005), the court ruled that the firearm and toolmark examiner could describe the ways in which the subject shell casings were similar to the shell casings test-fired from the recovered pistol and could not conclude that the shell casings came from a specific pistol. See also United States v. Medley, 17 CR 242 (D.Md. April 24, 2018) (permitting the firearm examiner to express an opinion that the marks on the crime scene cartridges are consistent with the marks found on the test fire but prohibiting the firearm examiner from expressing the opinion that they were fired by the same gun) cited in United States v. Johnson, 16 CR 281, 2019 WL 1130258 (S.D.N.Y. March 11, 2019). In a prior case, I prohibited the firearm examiner from making a common origin statement. State v. Jaquwan Burton, Superior Court, judicial district of New Haven, Docket No. CR14-0150831 (February 1, 2017) (oral decision). I limited her testimony to describing the similarities and dissimilarities between the known and unknown shell casings and allowed her to conclude that the casings were consistent with having been fired from the subject hand gun. Id. See W. Tobin & P. Blatt, supra at 142 ("Currently, the strongest opinion that is scientifically defensible is that, in the opinion of the examiner ..., the characteristics exhibited by the evidence are consistent with the evidence having been fired from a particular firearm or that the firearm could not be excluded as the firing platform ..." Emphasis in original). While my substantial concerns about the scientific validity of common source testimony remains, the evidence submitted before me in this case is insufficient to impose those same limitations here. Though the defendant was not required to provide his own expert witness, it would have been helpful, and potentially determinative, as the expert could have expounded on the flaws in the methodology identified in the three national reports and by numerous commentators and applied them to the facts of this case. Cf. State v. Raynor, 181 Conn.App. 760, 771 (2018) (noting the failure of the defendant to proffer his own expert witness to testify that the science of firearm and toolmark identification is not reliable). In the absence of contrary testimony, the evidence that was presented through the State’s expert witness carries the day and establishes in this case that Pike’s common origin testimony is based on a valid methodology.
For the foregoing reasons, the defendant’s motion to preclude the testimony of Andrew Pike in its entirety is hereby denied. Pike is however prohibited from testifying that the likelihood that a firearm other than the .40 caliber firearm recovered at the scene could have fired the subject .40 caliber casing is so remote as to be considered a practical impossibility.