Firearms & Ballistics Expert Witness Allowed to Testify Despite No Daubert Hearing

Summary: A Daubert Hearing was unnecessary for a Firearms & Ballistics Expert Witness testifying regarding a bullet comparison.

Facts: In Walters v. Kentucky (Commonwealth of Kentucky Court of Appeals), the court affirmed a judgment of the circuit court sentencing the defendant to ten years imprisonment for various criminal offenses, including home invasion

Two masked men with guns entered a residence owned by Lillian and Gary Ballman.  They demanded drugs and money. A fight ensued, and shots were fired.  The victims gave the men a safe containing drugs, money, and jewelry.

Ms. Ballman admitted that she had been selling pills to Walter Williams.  Later that day, the police found Williams passed out in the driveway of his home, about six blocks from the site of the home invasion.  They found pills and a gun near Williams.

During the trial, the state presented evidence from Steve Hughes, a Firearms & Ballistics Expert Witness.  The expert specializes in guns and tool marks.  He testified that a bullet found in a door where the home invasion occurred was fired from the same weapon as the gun found in Williams’ possession.  He also testified that there was gunshot residue found on the Williams clothes lying near him when he was arrested.

Williams demanded a Daubert hearing regarding the testimony of the expert witness.  The circuit court denied the motion.  At trial, the defense did cross examine the state’s expert witness.

The jury found Williams guilty of robbery, burglary, and drug possession.  They recommended a minimum sentence of ten years.  The court agreed with the sentence.

The defense appealed on several grounds, including the impropriety of denying a motion for a Daubert Hearing for the State’s expert witness.

Discussion:  The court reviewed the Defendant’s right to a Daubert hearing for the Firearms & Ballistics Expert Witness.  In reviewing the standards under Kentucky Rules of Evidence 702, the court set out the rules as follows:

If specialized, scientific or technical knowledge will assist the jury to understand the evidence or to determine a fact in issue, a person with such experience, training, skill, knowledge, training, or education, the expert witness may testify and give an opinion or if:

(1) The testimony is based upon sufficient data or facts; (2) The testimony is based on f reliable methods and principles; and (3) The proposed expert witness has applied the methods and principles reliably to the facts of this case.

The defense relied on Johnson v. Commonwealth, 12 S.W.3d 258 (Ky. 1999).  In that case the Kentucky Supreme Court referenced judicial notice of scientific tests.  The court stated that once the appellate court holds that a Daubert test is satisfied, lower courts can take judicial notice, and there is not a need to reinvent the wheel each time a method or technique is challenged.

Williams argued that a report by the President’s Counsel of Advisors on Science and Technology ((PCAST), Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods (September 20, 2016) provides the foundation that expert witness testing concerning bullet comparison should no longer by reliable.  The defense argued that this necessitated a Daubert hearing.

The defense also cited U.S. v. Tibbs, No. 2016-CF1-19431, 2019 WL 4359486 (D.C. Super. Ct. Sept. 5, 2019), a lower court decision.   In Tibbs, the court opined that an expert’s testimony regarding the comparison of bullets,  the expert may only testify that a gun cannot be excluded as the source of a bullet found elsewhere. Williams contends Tibbs supports the argument that a Daubert hearing should have been held to determine whether the States expert witness should have been excluded or limited.

The court in this case found that the ballistic testing was generally accepted, and that Williams had a chance to discredit the States’s Expert Witness.

Conclusion:  The lower court did not err in denying Defendant’s motion for a Daubert hearing of the State’s Firearms & Ballistic’s expert witness.


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