NAS
National Ballistic Database Study Report and its
Present Impact on the Admissibility of Firearms
Related Court Testimony
In 2004 the
National Institute of Justice (NIJ) of the U.S.
Department of Justice requested that the
National Research Council (NRC) appoint a
committee of experts through its National
Academy of Science to address certain issues
raised by the computerized imaging ballistics
technology. This NAS Committee was tasked to
assess the feasibility, accuracy, and technical
capability of a National Ballistics Database
and, essentially, “assess the feasibility,
accuracy and reliability, and technical
capability of developing and using a national
ballistics database as an aid to criminal
investigations.”
Earlier this year
the NAS committee issued a 386 page detailed
report of their findings. The NAS also issued an
abbreviated Executive Summary (click
here to read the Executive Summary)
summarizing their findings.
Included in this
report was a passage of particular concern to
firearm and toolmark examiners. That passage can
be seen below (The formatting and bold print are
from their summary).
Underlying the
specific tasks with which the committee was
charged is the question of whether
firearms-related toolmarks are unique: that
is, whether a particular set of toolmarks
can be shown to come from one weapon to the
exclusion of all others. Very early in its
work the committee found that this question
cannot now be definitively answered.
Finding: The validity of the fundamental
assumptions of uniqueness and
reproducibility of firearms-related
toolmarks has not yet been fully
demonstrated.
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.
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. Assessing
uniqueness at, say, a submicroscopic level,
though probably technically possible, would
be extremely difficult and time consuming
compared with less definitive but more
practical and generally available methods at
the macroscopic level. It is an issue of
policy and of economics as to whether doing
so would be worthwhile. The committee did
not and could not undertake such research,
nor does it offer any conclusions about
undertaking such research. Although it
appears to the committee that the needs for
research are extensive, specifying the
nature of that research was not part of the
committee’s charge. We also note that the
committee does not provide an overall
assessment of firearms identification as a
discipline nor does it advise on the
admissibility of firearms-related toolmark
evidence in legal proceedings: these topics
are not within its charge.
Needless to say,
this report has caused some serious problems
between the discipline of Firearm and Toolmark
Identification and the court systems. Shortly
after the NAS report was issued several appeals
were filed by defense attorneys in the states of
Washington, Pennsylvania, New York and the
District of Columbia challenging the science of
FA/TM ID using the NAS Committee report as the
basis for their appeal. Even though the NAS
Committee specifically stated in the last
sentence above, "the committee does not
provide an overall assessment of firearms
identification as a discipline nor does it
advise on the admissibility of firearms-related
toolmark evidence in legal proceedings: these
topics are not within its charge.". The
report was quickly seized upon and misapplied as
evidence of the lack of validation of the
science of FA/TM ID.
It was clear that
the report was going to continue to be
misapplied in a way unintended by the NAS
Committee and as such the committee was asked to
provide clarification in the case of United
States v. Kevin Edwards filed in the District of
Columbia as to their conclusions related to the
science of FA/TM ID.
On May 23rd, 2008,
the chair of the NAS Committee, Dr. John F.
Rolph, filed an affidavit (click
here to read the affidavit) with the
Superior Court of the District of Columbia that
reaffirmed the committee’s charge was not one to
question the validity of the science. Dr. Rolph
summarized the NAS Committee's viewpoint by
stating: “….Our charge is to focus on the
‘uniqueness of ballistic images’- that is, on
the markings (toolmarks) left on cartridge cases
and bullets as they are recorded or measured by
various technologies…”. Additionally, "……In
the Committee's view, ‘statements on toolmark
matches (including legal testimony) should be
supported by the work that was done in the
laboratory, by the notes and documentation made
by examiners, and by proficiency testing or
established error rates for individual examiners
in the field and in that particular
laboratory’."
As mentioned
above, two appeals have been filed this spring
in the District of Columbia where this NAS
Report was used as the primary basis for defense
motions to exclude firearms evidence. In the
first matter of U.S. v. English, the judge
issued a bench ruling denying defense motion for
a Frye Hearing. The second matter of U.S. v.
Worsley, et al, is pending with a judge’s ruling
expected in the next few weeks. The Government’s
response brief to the defense motion, along with
a supporting affidavit by FBI FA/TM Unit Chief
Stephen Bunch, in the
Worsley matter is posted and
can be viewed in the “Supporting & Opposing
Viewpoint” section of the SWGGUN
Admissibility Resource Kit (ARK). The English
and Worsley, et al rulings will be posted under
the “Court Ruling” tab of the ARK when they
become available.
The NAS
Committee's viewpoint is one that has been the
subject of countless Daubert hearings throughout
state and federal courts. These hearings have
concluded that the science of firearm and
toolmark identification is valid and
well-established within the scientific
community. Please visit the
SWGGUN
Admissibility Resource Kit for a list of
the most recent FA/TM ID Daubert rulings and
other materials related to the admissibility of
the science.
Additional
responses from SWGGUN, the
Association of
Firearm and Tool Mark Examiners (AFTE) and
the FBI to the NAS Committee’s report will be
posted when they become available.
Spring 2008 SWGGUN Meeting Summary
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The SWGGUN met
in Woodbridge, Virginia, for their semi-annual
meeting from 4/15- 17/2008. Fourteen members
attended the meeting, along with the Association
of Firearms and Tool Marks (AFTE) president,
with seven Board members absent. Topics and
issues covered during this meeting are listed
below.
A presentation was given by Ms. Melissa Smrz,
Deputy Assistant Director of the FBI Laboratory,
to the SWGGUN Board detailing numerous
administrative and policy issues related to all
of the Scientific Working Groups (SWGs). During
this presentation, Ms. Smrz conveyed that both
the Department of Justice and the FBI are very
satisfied with the work of all the SWGs. She
encouraged us to continue to develop new
guidelines, as well as reviewing established
guidelines, to ensure that they are current and
relevant. Finally, Ms. Smrz proposed that we
consider the possibility of organizing a
symposium to promote further standardization in
the Firearm and Toolmark discipline.
The ARK Maintenance Committee presented the
following reports to the Board:
- Three new
court rulings have recently been added to
the ARK. These three admissibility rulings
were all favorable rulings to the discipline
and in two of these matters, the judge
denied defense motions for a hearing as they
considered Firearms and Toolmark
Identification to be an established
scientific discipline.
- The
Committee will also be including additional
publication citations under the ARK’s
Testability Section. These publications will
provide additional theoretical and practical
statistical validation of the Firearms and
Toolmark discipline.
The SWGGUN
Survey Committee reported that no new feedback
was received since the last meeting on the
SWGGUN’s CMS Survey.
The Criteria for Identification Committee
reported no feedback on its proposed guidelines
that reaffirmed the AFTE Theory of
Identification. The Board reviewed the proposed
guideline and then voted that this guideline be
placed on the website for final posting.
The Standardized Comparison Documentation
Committee reported no new feedback on its
proposed guideline that essentially included
contents of the AFTE comparison documentation
standard with the addition of some verbiage that
included CMS as a method that could be used in
the text of examiners notes to describe
examination conclusions. The Board reviewed the
proposed guideline draft and determined that
additional study should be conducted to note
whether other imaging systems, such as Condor,
be included in this guideline.
The ISO Committee presented its developed
guideline text to the Board. After some
discussion the ISO Committee will continue to
revise its present guideline text by better
defining, articulating and differentiating
between “critical” and “uncertainty” of
measurements.
Two new committees were formed during this
meeting. These committees are the Gunshot
Residue Pattern Testing and the Firearms
Function Committees. Both of these committees
will review the current examination protocols,
as well as the conclusion criteria, used in
these two areas of analysis.
The SWGGUN Chairman reported the following
contacts since the last meeting:
- The SWGGUN
was contacted by the SWGs for Material
Analysis and Shoeprint (SWGMAT & SWGTRAX).
These SWGs, which are developing their own
ARK contacted SWGGUN for details on website
set-up and formatting information.
- A response
letter was received from the President of
the California Association of Criminalists (CAC)
denying our request for respondent raw data
in the CAC Survey on consecutive matching
striae (CMS). This letter was in response to
the SWGGUN’s November, 2007 letter that
requested the CAC’s raw survey data so that
an external peer review could be conducted
on the CAC’s Survey results.
During this
meeting, SWGGUN members were afforded a tour of
the National Rifle Association’s Firearm Museum
in Fairfax, Virginia.
These committees are working to develop a
product that can be posted on the SWGGUN website
for review and comments from the forensic
community. SWGGUN continues to operate its own
website at
www.swggun.org and solicits valuable input
from the discipline through a number of
different mechanisms during the development
stages of the guidelines which we produce. These
guideline/documents are then posted on the
website for your review and we encourage peer
review of these materials. Feel free to contact
a Board member with your comments/concerns or
visit us at the “Feedback Forum” tab above.
Thank you for allowing us to serve you. Board
member information can be found under the
“Members” tab. We look forward to hearing from
you and encourage your continued participation
in these ongoing projects that ultimately affect
our work product.
Gregory S.
Klees- Chair, SWGGUN
