Defense “Expert” and Forensic Firearms Skeptic Not Allowed to Testify

If you’re a reg­u­lar reader of this blog, you’ve noticed I have a prob­lem with the “acad­e­mia” crit­i­ciz­ing the field of foren­sic sci­ence. (Just read my thoughts on the recent Popular Mechanics arti­cle where the aca­d­e­mics try to shoot down foren­sic sci­ence.) Constructive crit­i­cism is always appre­ci­ated, but com­plaints and attacks by peo­ple with no actual expe­ri­ence in foren­sic sci­ence does noth­ing but con­fuse the issue.

Apparently a United States District Judge in New Mexico agrees with me. In a recent case, United States v Donald Scott Taylor, the judge ruled that defense expert Adina Schwartz, Ph.D., would not be allowed to tes­tify against noted firearms exam­iner, Ron G. Nichols. In fair­ness I don’t know Adina Schwartz, but I have read arti­cles writ­ten by her attack­ing the field of foren­sic firearms exam­i­na­tion. I have met Ron Nichols and have also read many arti­cles authored by him, some specif­i­cally writ­ten to rebuke arti­cles writ­ten by Schwartz.

One of the first things that stands out in the rul­ing is that Schwartz’s back­ground includes a BA in Philosophy from Oberlin College, a Ph.D. from Rockefeller University, and a J.D. from Yale Law School. She is cur­rently a pro­fes­sor at John Jay College of Criminal Justice in New York. Please note, none of Schwartz’s degrees are in any field of sci­ence. Schwartz’s back­ground alone screams academia.

Remember, those who can do, those who can’t teach.

In this case, the defense wanted her to tes­tify as an expert in foren­sic firearms exam­i­na­tion. One major prob­lem was that Schwartz has no for­mal train­ing in foren­sic firearms exam­i­na­tion, has never per­formed foren­sic firearms exam­i­na­tion, and admits she’s never actu­ally even fired a firearm before.

Another prob­lem was that appar­ently Schwartz has never tes­ti­fied in a jury case as a firearms exam­i­na­tion expert.

The court’s findings:

III. Dr. Schwartz is Not Qualified to Opine About the Conclusion Reached by the United States’ Firearms Identification Expert

First, the court finds that Dr. Schwartz is not qual­i­fied by knowl­edge, skill, train­ing, edu­ca­tion, or any other means to give opin­ion tes­ti­mony in which she dis­agrees (or agrees, for that mat­ter) with the spe­cific con­clu­sions of the Government’s firearms exam­iner in this case. As many other courts that have had occa­sion to inter­act with Dr. Schwartz have noted, she is not a firearms examiner.

IV. Dr. Schwartz’s Proposed Testimony as to the Unreliability of Firearms and Toolmark Identification Will Not Assist the Trier of Fact and Will Likely Lead to Juror Confusion

The more dif­fi­cult ques­tion pre­sented is whether Dr. Schwartz should be allowed to tes­tify, based on her exten­sive writ­ing and research, as an aca­d­e­mic expert on the unre­li­a­bil­ity of firearms and tool­mark iden­ti­fi­ca­tion gen­er­ally. Dr. Schwartz’s exten­sive research and writ­ing about the var­i­ous crit­i­cisms of field of firearms and tool­mark iden­ti­fi­ca­tion cer­tainly qual­ify her as an expert on that nar­row topic within the mean­ing of Daubert and Rule 720. It remains for the Court to deter­mine whether her tes­ti­mony will assist the trier of fact and whether it “rests on a reli­able foundation.”

[…]

Defense argues stren­u­ously that the Court must not abuse its gate­keep­ing func­tion by choos­ing sides in a legit­i­mate sci­en­tific debate, and even goes so far as to con­tend that by exclud­ing Dr. Schwartz’s tes­ti­mony the Court would be depriv­ing him of his con­sti­tu­tional right to present a defense. However, be exclud­ing Dr. Schwartz’s tes­ti­mony, this Court is not in any way choos­ing sides in the debate about the rel­a­tive mer­its and weak­nesses of firearms iden­ti­fi­ca­tion, nor is it pre­vent­ing Mr. Taylor from pre­sent­ing expert tes­ti­mony to rebut that of the Government’s firearms iden­ti­fi­ca­tion expert.
The Court is emphat­i­cally not deny­ing Defendant’s right to call his own firearms expert to tes­tify about the weak­nesses of the method­olo­gies in that field, or to dis­agree with the con­clu­sions reached by the Government’s firearms exam­iner. in fact, the Court, in accor­dance with the Criminal Justice Reform Act, […] approved Defendant’s request to hire a foren­sic bal­lis­tics con­sul­tant, and the Court approved pay­ment of said expert’s invoice for ser­vices ren­dered, which included exam­i­na­tion and/or test­ing of the [firearm] allegedly used by Defendant [in the case]. Defendant,for what­ever rea­son, has not cho­sen to have this firearms expert tes­tify at trial. Instead, he seeks to intro­duce the tes­ti­mony of an aca­d­e­mic who has no actual expe­ri­ence with firearms iden­ti­fi­ca­tion. It is disin­gen­u­ous for the defense to rep­re­sent Dr. Schwartz as its firearms expert, called to offer an opin­ion equiv­a­lent to, but oppo­site, that of the Government’s firearms expert. What the Court is con­fronting in the prof­fered tes­ti­mony of Dr. Schwartz is not a dif­fer­ent of opin­ion, but a dif­fer­ence in kind of expert.

V. Dr. Schwartz’s Testimony is Not Sufficiently Reliable

Even if this Court were to […] con­clude that Dr. Schwartz’s aca­d­e­mic opin­ion about the unre­li­a­bil­ity of firearms iden­ti­fi­ca­tion is an appro­pri­ate sub­ject for expert tes­ti­mony, the Court nonethe­less must only admit the tes­ti­mony if it finds that it is the prod­uct of reli­able prin­ci­ples and meth­ods, which the expert wit­ness has applied reli­ably to the facts of the case […] Here, the Court finds that Dr. Schwartz’s tes­ti­mony, even if it were oth­er­wise admis­si­ble, is not suf­fi­ciently reli­able to meet the stan­dards set out by Rule 702 and the Daubert/Kumho line of cases. During the Daubert hear­ing on this motion, the Government’s firearms expert, Ron Nichols, pointed out at least one place in Dr. Schwartz’s pub­lished writ­ings where she took a quo­ta­tion from another pub­li­ca­tion so far out of con­text as to com­pletely reverse its mean­ing and cause it to be mis­lead­ing. In addi­tion, in his arti­cle, The Scientific Foundations of Firearms and Tool Mark Identification-A Response to Recent Challenges, The CACNews, 2^nd Quarter 2006, 8, Mr. Nichols states that Dr. Schwartz’s research relies on sec­ondary, rather than pri­mary, sources. Mr. Nichols fur­ther argues that, in another part of her arti­cle, Dr. Schwartz not only mis­char­ac­ter­izes as a “study” some­thing that is actu­ally a one-page tech­ni­cal note, but also mis­rep­re­sents the under­ly­ing the­sis of that note […]
These are seri­ous crit­i­cisms, not just of Dr. Schwartz’s con­clu­sions, but of the integrity of her scholarship.

There is much more to the actual rul­ing. Please down­load and read the rul­ing directly here.