Fall
2008 SWGGUN Meeting Summary
The SWGGUN met in Missoula, Montana for their
semi-annual meeting from October 20-23, 2008.
Fifteen members of the Board members were
present for the meeting with three members
absent and two Board vacancies through recent
resignations. Topics and issues covered during
this meeting are listed below.
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The Board reviewed the following proposed
guidelines and then voted that these guidelines
be adopted and placed on the website for final
posting:
The Board reviewed
the following guideline and voted to post this
document on the website for review:
The Admissibility Resource Kit (ARK) Maintenance
Committee presented the following reports and
updates to the Board:
-
Eight new
court ruling citations and summaries have
recently been added to the
Admissibility Resource Kit (ARK). Many
of these rulings involved reference to the
NAS/NRC Report on Ballistic Imaging.
-
Additional
Power Point photographs, articles and
caveats are being reviewed and will be
incorporated into the ARK at a later time.
The SWGGUN Survey Committee informed the Board
that the SWGGUN CMS Survey Report was accepted
for publication in the AFTE Journal.
The Gunshot Residue and Firearms Function
Committees presented their initial working
outline to the Board. Both of these committees
are reviewing current examination protocols and
conclusion criteria, used in these two areas of
analysis.
The Science Committee also presented its initial
working outline to the Board. This Committee
will be composing a general declaration
supporting the science of Firearms and Toolmark
Identification; as well as addressing numerous
opposing views of the discipline, such as those
raised in the NAS/NRC Report on Ballistic
Imaging.
The Document Archive Committee is currently
determining the most advantageous method for
storing and maintaining documents and
correspondence.
The Document Committee will begin reviewing the
Quality Assurance Guidelines document for
possible updates.
The following new committees were formed at last
week’s meeting:
-
The Technical
Assessment and Review Committee (TAR) - the
TAR will provide guidelines on conducting a
technical peer review of case work. A
draft of their proposed guidelines
for insertion in the SWGGUN QA/QC Guidelines
has been posted for review.
-
The
Admissibility Training Committee (ATC) - the
ATC will develop a program that will train
and assist Firearm & Toolmark Examiners on
how to testify in admissibility hearings.
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
guidelines/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.
The SWGGUN Chairman reported the following
contacts since the last meeting:
-
The SWGGUN was
contacted on numerous occasions this past
year by the European Network of Forensic
Science Institutes (ENFSI) inviting SWGGUN
to their annual meeting in Croatia. Prior to
this, ENFSI also contacted the SWGGUN Chair
expressing a desire to coordinate our
efforts in setting forth general recommended
guidelines to the firearms and toolmark
discipline.
-
Numerous
inquiries from firearm and toolmark
examiners across the United States were
received regarding information on preparing
for admissibility hearings. Many of those
inquiries were included in the SWGGUN
announcement update (see homepage) regarding
the NAS/NRC Report on Ballistic Imaging and
its impact on the admissibility of firearms
related court testimony.
The following personnel matters were approved by
the Board during this meeting:
-
Ms. Kim Haag
accepted and was voted to a third term as
SWGGUN Secretary.
-
James S.
Stephenson from the Connecticut State Police
Laboratory and Gerald Andrew “Andy” Smith
from the San Francisco, California, Police
Laboratory were selected as new Board
members replacing Don Mikko and Jim Krylo
who recently resigned from the Board.
During this meeting, SWGGUN members were
afforded training tours of the Montana State
Crime Laboratory located in Missoula; as well as
Cooper Firearms and HMS Ammunition, Inc. located
in Stevensville, Montana.
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
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.
