Perry County Fiscal Court v. Commonwealth, 674 S.W.2d 954 (Ky. 1984)

Commonwealth v. Bolduc, 441 N.E.2d 483 (Mass. Ct.App. 1980)

Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975)

United States v. Pope, 251 F.Supp. 234 (D.Neb. 1966)

U.S. v. Bryant, 311 F.Supp. 726 (D.C. 1970)

State v. Gainer, 272 S.E.2d 666 (W.Va. 1980)

The admission of testimony from firearms experts in criminal trials is a relatively recent development. According to Paul C. Giannelli and Edward J. Imwinkelried in Scientific Evidence (2d ed. 1993) the Illinois Supreme Court was one of the first courts to permit firearms evidence at trial in People v. Fisher, 172 N.E. 743, 753 (Ill. 1930). Scientific Evidence, Chapter 14 at 372.

Not only is the science fairly new in the crim-inal justice system, it has a level of significant difficulty. "Forensic examination of firearms, bullets and gunshot residue patterns is a subject of considerable complexity...."

There are also a lot of cases nationally and in Kentucky involving firearms. Of the 253 murders in Kentucky in 1994, 62% of the victims were killed with a firearm. Crime in Kentucky 1997 (1998) at 7.

"Firearms are involved in almost two-thirds of all homicides in the United States. Understanding of the patterns and injuries produced by firearms are, therefore, crucial to the defense in many criminal trials. Vital questions often raised in such cases are: (1) How is the wound size or pattern related to range, direction of fire, type of bullet and manner of death? (2) Could the manner of death be other than homicide? (3) Can the range of the shooting be estimated from the characteristics of the gunshot wound? (4) Can the relative positions of the assailant and the victim be determined from the pattern and path of the gunshot wound? (5) When several wounds are present, which was inflicted first, etc.?" Larkin and Wecht, "Firearm Injuries" §25.04 in Forensic Sciences (Wecht editor 1996).

Class characteristics and individual character-istics are used to identify firearms. Class char-acteristics include the following caliber and rifling specifications:

1. land and groove diameters and numbers, width;
2. direction of rifling, left or right twist;
3. the degree of the rifling twist. Scientific Evidence, supra, Chapter 14.

The myth that pervades this science is that a positive identification by an expert involves an entirely objective process. "Although a positive identification is based on objective data - the striations on the bullet surface - the examiner's conclusion is essentially a subjective judgment. This judgment rests on the reproducible points of identity. There are no objective criteria used for this determination: 'Ultimately, unless other issues are involved, it remains for the examiner to determine for himself the modicum of proof necessary to arrive at a definitive opinion.' In this sense, firearms identification is more of an art than a science." Id. at 379.

As an indicator of the subjective nature of the science, qualified experts in the same case have disagreed on the ultimate firearms issue. Giannelli and Imwinkelried identify case examples of disagreements and misidentifications: State v. Nemeth, 438 A.2d 120, 123 (Conn. 1980); Commonwealth v. Ellis, 364 N.E.2d 808, 812 (Mass. 1977); People v. Kirschke, 125 Cal.Rptr. 680, 684 (Calif.App. 1975).

In addition to firearms expertise, other areas that require the evaluation by experts include the range and direction of fire, entrance and exit wounds, examination of clothing and firearm residues, and interpretation of firearm wounds. See Patrick E. Besant-Matthews, Chapter 5 "Examination and Interpretation of Gunshot Injuries" in The Pathology of Trauma (J.K. Mason editor, 2nd ed 1993); Vincent J.M. DI Maio, Gunshot Wounds: Practical Aspects of Firearms, Ballistics and Forensic Techniques (1985).

Eight myths concerning gunshot wounds are detailed in "Firearm Injuries," in Forensic Sciences, Ch. 38 (Wecht editor 1996):

1. It is possible to tell the caliber of a bullet by the size of the hole pro-duced.
2. An exit wound is always larger/ smaller than an entry wound.
3. If a bullet traverses the body com-pletely, a line extending through the wound track will indicate the direc-tion of fire, which can be calculated with a high degree of certainty.
4. The bullet is sterile.
5. An autopsy performed on a gunshot victim is an easy and routine pro-cedure.
6. A suicide will pull clothing away from the selected target before firing.
7. A suicide always removes his or her glasses before shooting.
8. Many people accidentally shoot themselves while cleaning a pistol.

When a matter concerning firearms, ballistics or gunshot wounds is material to the defense, courts recognize the need for the defense to employ their firearms expert to view the evi-dence from the perspective of the defense theory of the case.

In Kentucky, the Supreme Court had no difficulty in declining to second guess a trial judge's determination that a ballistics expert was necessary for the defendant's case, and that funds had to be forthcoming for defense employment of these experts. Perry County Fiscal Court v. Commonwealth, 674 S.W.2d 954 (Ky. 1984).

In Commonwealth v. Bolduc, 411 N.E.2d 483 (Mass.Ct.Ap. 1980), rev'd on other grounds, 422 N.E.2d 764 (Mass. 1981) the court held that the defendant was entitled to a ballistics expert who would analyze the defendant's jacket to see if there was gun powder residue on it, indicating whether or not its wearer fired a weapon even though the prosecutor had the jacket analyzed by a police department criminalist who found no trace of gun powder.

"There is no question that the evidence desired by the defendant was relevant to one of the is-sues in the case, namely, the identity or not of the defendant as one of the two participants in the holdup who had fired at the police. There was no question as to the admissibility of such evidence.... it is doubtful that the judge considered the amount of the requested expense in light of the other expenses the Commonwealth would necessarily incur in the course of a lengthy trial. The judge does not appear to have considered the likelihood that a solvent defendant, able to finance his own defense, would prefer to select and employ a competent expert of demonstrated credibility rather than rely on the testimony of a police criminalist of undisclosed qualifications who might well be a hostile witness. And the judge failed to recognize that the desired evidence might well be all the more valuable to the defendant because his substantial criminal record might deter him from taking the stand in his own behalf." Id. at 486.

In Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975) it was held that the defendant was entitled to have the murder weapon and bullet examined by an expert of his own choosing.

"The question is not one of discovery but rather the defendant's right to the means necessary to conduct his defense. Justice Barham of the Supreme Court of Louisiana pointed out in his dissent to the majority opinion in Barnard that 'the only means by which the defendant can defend against expert testimony by the State is to offer expert testimony of his own.' 287 So.2d at 778. We agree. Fundamental fairness is violated when a criminal defendant on trial for his liberty is denied the opportunity to have an expert of his choosing, bound by appropriate safeguards imposed by the Court, examine a piece of critical evidence whose nature is subject to varying expert opinion." Id. at 746.

In United States v. Pope, 251 F.Supp. 234 (D.Neb. 1966) the defendant was entitled to have funds for expert witnesses who examined and tested the gun used to commit the offense even though the defendant admitted the killings in his testimony at trial since the defense should be afforded the fullest opportunity to prepare their case.

"The rule in allowing defense services is that the Judge need only be satisfied that they reasonably appear to be necessary to assist counsel in their preparation, not that the defense would be defective without such testimony." Id. at 241.

United States v. Bryant, 311 F.Supp. 726 (D.C. 1970), aff'd 471 F.2d 1040 (D.C.Cir. 1972) held it proper to pay a ballistic expert $923.70 to insure "full preparation of the defense...." Id. at 727.

State v. Gainer, 272 S.E.2d 666 (W.Va. 1980) determined it was appropriate to pay an advance retainer of $1,000 to a ballistics expert who was being used by the defense to counter testimony by a state expert. Id. at 668.

Firearms, ballistics, gunshot wounds may seem simple, objective, matter-of-fact sciences which allow for little disagreement, difference of opinion or potential for error. The facts and caselaw shoot down this myth. When defenders have an issue involving one of these sciences which is material to the defense, they are on target in asking for funds for a defense expert to consult, analyze and report.

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