Posted April 30, 2015 2:56 PM
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Ballistic expert’s opinion not quite a smoking gun

Aurelia Pucinski
Aurelia Pucinski
By Lauraann Wood
Law Bulletin correspondent

There’s a new rule for ballistics experts who testify at trial.

“Take my word for it” is not enough.

In a 43-page opinion authored by 1st District Appellate Justice Aurelia Pucinski, a split appeals court held that expert witnesses must provide a factual basis for their opinions given in testimony.

That requirement, the panel held, is essential for an expert to lay an adequate foundation for his or her testimony.

During a 2011 Cook County murder trial, an Illinois State Police forensic scientist testified that a bullet recovered from a dead body originated from defendant Joe Jones’ gun — but without specifying why he thought so.

The appeals panel ruled that the firearm expert should have identified at least one specific similar characteristic between a lab-produced shell casing and one found at the crime scene for his testimony to be admitted.

The ruling, one Jones’ attorney called a “landmark,” will give Jones a new trial.

Jones was arrested and charged with first-degree murder and armed robbery after police found Ivory Anderson fatally shot near a South Side alley in September 2008.

Police searched Jones’ home two days later and recovered a .38-caliber pistol which was sent for forensic testing at an Illinois State Police crime lab.

When ballistic experts analyze bullet casings, they compare a casing’s grooves and scratches to match those on test bullets fired by a gun of the same make and model. Some marks come from the manufacturing process, but others come from imperfections within the firearm as a bullet travels through its barrel.

While firearms of the same make and model will etch similar markings into casings, the belief is that each firearm also has its own set of individual characteristics that set it apart.

During a December 2011 trial, state police firearms examiner Justin Barr testified that he believed the bullet recovered from the victim’s body originated from Jones’ gun.

Barr explained that experts look for “sufficient similarities” between bullets when trying to identify a match, but there is a level of subjectivity in the process.

On cross-examination, he explained firearm examiners don’t have to identify a set number of matching irregularities or scratches, nor do they have to count them in order to determine a match. He ended his testimony without identifying any individual characteristics between his test bullets and the one recovered from the victim’s body.

The jury found Jones guilty of first-degree murder. Then-Cook County Associate Judge Jorge L. Alonso, now a U.S. district judge, sentenced him to 55 years in prison.

Jones appealed, arguing that he was not proven guilty beyond a reasonable doubt and that the court shouldn’t have admitted Barr’s testimony.

He argued Barr didn’t establish a proper foundation for his opinion because he didn’t specify any specific matching characteristics between the laboratory’s bullet and the one found at the crime scene.

Jones also questioned whether firearm identification by comparing bullet casings is scientific at all.

Jones argued in his appellate briefs that “firearms identification is ‘scientific’ only to the extent that it is performed by individuals employed as forensic scientists,” citing a 2009 National Academy of Science report.

Assistant Public Defender Ingrid A. Gill, who represented Jones in the case, said the evidence from the examination is comparable to eyewitness testimony — except that is treated as expert analysis.

In the appellate ruling, Pucinski wrote that in expert testimony involving scientific evidence, Illinois employs the standard created by the 1923 federal case Frye v. United States, which found that scientific testimony can only be admitted if the methodology behind its results is generally accepted within the scientific community.

The panel found the Frye standard doesn’t apply in Jones’ case because the standard only applies to “new or novel sciences.”

Nothing is new or novel about using a microscope to compare bullets, Pucinski wrote.

The majority agreed with Gill’s argument that Jones’ case is similar to the 2009 1st District ruling in People v. Safford, which required fingerprint experts to specify points of similarity between prints for identification in trial testimony.

Pucinski wrote that if such a rule applies to another area of forensic science, then it should also apply to firearm identification.

Without offering a single example of how Barr’s test bullets provided enough individual characteristics to match the one recovered from the victim, the majority held, his testimony mounted up to no more than “take my word for it.”

And that’s not good enough, Pucinski wrote.

The court ruled that providing no facts regarding how an expert’s opinion is reached allows no opportunity to cross-examine the reasoning behind it.

“Although we have previously declined to expressly hold that there should be a minimum number of points of comparison to establish some foundation, it is apparent that at least a minimum of one point of comparison or marking or other reason for the expert’s opinion must be given,” Pucinski wrote.

The panel acknowledged one case exists on record — 1969’s People v. O’Neal — where an appeals panel admitted a ballistics expert’s testimony for firearm identification without any specification.

The state cited O’Neal to show Barr’s testimony was correctly admitted. But the panel noted that the four times O’Neal was previously cited have been for issues not connected to the Jones case.

While neither expert in People v.Safford or O’Neal testified to specific points of evidence comparison, Pucinski wrote, they’re different because O’Neal’s expert at least testified to the methodology used to reach an opinion — just as Barr did regarding Jones.

Justice Michael B. Hyman concurred in the majority in the modified opinion published last week.

In a 10-page dissent, Justice Mary Anne Mason said she would affirm Jones’ conviction because the deficiencies in Barr’s testimony affected the evidence’s weight, not its admissibility.

Jones wasn’t truly challenging the foundation of his expert opinion, Mason wrote, but rather its specificity.

Foundational requirements were met as soon as the state established Barr’s qualifications for testimony, Mason held, and opting for a summary instead of a point-by-point comparison shouldn’t eliminate the foundation that was already established.

“It certainly renders the opinion weaker, a point defense counsel emphasized in both cross-examination and closing argument, but it does not render it inadmissible,” she wrote.

Assistant State’s Attorney Alan J. Spellberg, who argued for the state in the case, said the majority got it wrong.

He said the question in Jones’ case is not one of foundation but whether specific details are necessary to admit a ballistic expert’s testimony. According to O’Neal and Mason’s dissent, Spellberg said, that answer is “no.”

Gill said although firearm examiners aren’t forensic scientists by definition, requiring them to tie a gun back to a suspect with at least one individual characteristic “just makes them better analysts.”

She said requiring experts to provide at least one individual characteristic comparison during testimony is significant because zero holds a numerical value in science.

With Barr testifying to zero characteristics that would have matched the question bullet to Jones’ gun, she said, that meant there was no legitimate basis for him to make such a connection.

The case is People v. Joe Jones, 2015 IL App (1st) 121016.

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