The Maryland Court of Appeals will consider whether the long-accepted courtroom science linking fatal bullets to specific guns in homicide cases survives the high court’s recently adopted stricter standard for determining the admissibility of scientific testimony at trial.
The high court last week agreed to hear convicted murderer Kobina Abruquah’s appeal of a judge’s decision that the ballistic science remains valid under the new standard and that a firearms expert permissibly testified that the bullet that killed Ivan Aguirre-Herrera was fired from Abruquah’s gun.
In his successful request for high court review, Abruquah’s attorney said the science of matching specific guns and bullets – “firearm and toolmark identification” – has recently come under such serious question that the most an expert should be permitted to say at trial is that a specific gun “cannot be excluded” from having fired the bullet.
“In recent years, the (ballistics) technique has met with increasing scrutiny and skepticism from highly respected scientific authorities and its use has been increasingly restricted by courts throughout the country,” attorney J. Bradford McCullough wrote in the petition for review.
“Yet in the 44 years since Reed (was adopted), this court has never considered the reliability of the firearm identification methodology, even though firearm examiners routinely testify in Maryland courts, providing testimony purportedly connecting criminal defendants to criminal acts,” added McCullough, referring to the court’s since-overruled standard.
“Given the increased scrutiny and skepticism the scientific community has levied against the methodology … review by this court is desirable and in the public interest.”
This skepticism has grown since 2009, when the National Research Council issued its report “Strengthening Forensic Science in the United States: A Path Forward,” which was critical of linking specific guns and bullets, wrote McCullough, of Lerch, Early & Brewer Chtd. in Bethesda.
Assistant Maryland Attorney General Andrew J. DiMiceli responded that the science remains valid despite recent criticism.
“At best, Abruquah has established that there is an unsettled debate among experts about whether available research is sufficient to validate firearm and toolmark identification as a legitimate forensic science,” DiMiceli wrote in the state’s failed request that the high court decline to hear the appeal.
“What Abruquah has not done is establish that the bases of those criticisms are so well established or uncontested that the circuit court abused its discretion in admitting the prosecution’s firearm identification testimony and allowing the jury to make the ultimate decision as to what weight, if any, the evidence should be given,” DiMiceli added.
The Court of Appeals, without explanation, took the unusual step of agreeing to hear Abruquah’s appeal without it first being considered by the intermediate Court of Special Appeals.
The high court is scheduled to hear arguments in the case in October and render its decision by Aug. 31, 2023. The appeal is docketed at the Court of Appeals as Kobina Ebo Abruquah v. State of Maryland, No. 10, September Term 2022.
The Court of Appeals’ consideration of Abruquah’s appeal follows its August 2020 Rochkind v. Stevenson decision in which it abandoned its long-held “general acceptance” standard for admitting scientific testimony in favor of a “reliability” standard annunciated by the U.S. Supreme Court in a 1993 decision and adopted by about 40 states in the past 29 years.
The widely accepted – and now Maryland-adopted — standard is called Daubert, after the Supreme Court’s ruling in Daubert v. Merrell Dow Pharmaceuticals Inc. The former general acceptance standard was known as Frye-Reed, after a 1923 U.S. appeals court decision, Frye v. United States, and the Court of Appeals’ 1978 ruling in Reed v. State.
At Abruquah’s pretrial hearing, his counsel presented testimony from William A. Tobin, former chief of the FBI’s metallurgy lab, who said firearm examination should no longer be generally accepted as it is more art than science. The state countered with Torin Suber, a forensic scientist manager with the Maryland State Police, and Scott McVeigh, a firearms inspector with the Prince George’s County Police Department, who vouched for the reliability of their work, according to court papers.
The Prince George’s County Circuit Court, citing the then-applicable Frye-Reed standard of general acceptance, permitted McVeigh to testify at trial that the bullets that killed Aguirre-Herrera came from Abruquah’s gun.
The jury, having heard the controversial testimony, found Abruquah guilty in 2018 of first-degree murder in the 2012 slaying of Aguirre-Herrera, his Riverdale housemate. Abruquah was sentenced to life in prison.
The Court of Special Appeals upheld Abruquah’s conviction in January 2020.
But the Court of Appeals remanded the case to the circuit court in October 2020 with instructions that it determine whether it still would have permitted the firearm and toolmark testimony in light of the new standard and questions regarding the accuracy of the science.
When the circuit court determined in October 2021 that the testimony and conviction stand, Abruquah filed his latest appeal to the high court.