Md. high court weighs ballistics testimony under new admissibility standard

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State ballistics experts should be barred from giving the damning testimony that a specific bullet was fired from a specific gun, because emerging studies belie the accuracy of a definitive link, a defense attorney told Maryland’s top court Tuesday.

Rather, their testimony must be limited to saying the gun “cannot be excluded” as the possible source of the fired bullet, J. Bradford McCullough said in pressing the appeal of a man convicted of murder based on ballistics evidence.

“That is at most what the science can say,” McCullough told the Court of Appeals.

But Assistant Maryland Attorney General Andrew J. DiMiceli countered that ballistics, while an inexact science, remains sufficiently reliable so that trial judges may continue to allow expert testimony at trial specifically linking guns to bullets, subject to cross-examination by the defense.

While experts cannot testify to 100 percent certainty, they should still be allowed to tell the jury that based on their tests and opinion a specific gun fired a specific bullet, DiMiceli told the high court.

The Court of Appeals’ consideration of the continued admissibility of ballistics testimony follows the abandonment in 2020 of its long-held “general acceptance” standard for admitting scientific testimony in favor of a “reliability” standard annunciated by the U.S. Supreme Court in 1993 and adopted by about 40 states since then.

The widely accepted – and now Maryland-adopted — standard is called Daubert, after the Supreme Court’s ruling in Daubert v. Merrell Dow Pharmaceuticals Inc.

McCullough said the specific linkage between a gun and a bullet — “firearm and toolmark identification” – cannot survive the Daubert standard of admissibility because a host of recent studies have seriously questioned the identification’s reliability.

“Reliability is the key to admissibility,” McCullough said in pressing Kobina Abruquah’s appeal.

Firearm and toolmark “methodology is not accurate, it’s not repeatable and it’s not reproducible” recent studies have found, added McCullough, of Lerch, Early & Brewer Chtd. in Bethesda.

DiMiceli countered that other studies vouch for the science, leaving judges the responsibility to act “as a gatekeeper” in each case to determine whether the expert’s testimony is sufficiently reliable and thus admissible to enable the jury to hear the evidence and determine what weight it should be given.

“There is ample evidence that the error rate (of positive ballistics matches) is near zero,” DiMiceli told the high court.

Firearm and toolmark identification is not “junk science” and ballistics experts do not engage in “speculation or conjecture,” DiMiceli added.

But Chief Judge Matthew J. Fader interjected that “some serious people” have questioned the identifications’ accuracy and thus its reliability.

And Judge Angela M. Eaves said that “if the court is the gatekeeper, we don’t want to admit science that is not valid.”

DiMiceli responded that the science remains sufficiently reliable and may become even more accurate in the future.

“Science progresses and time waits for no man,” DiMiceli said.

McCullough responded that scientific advances may one day lead to reliable firearm and toolmark identification.

“That is possibly down the road,” he said. “It is not here. It is not in the record.”

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 Court of Appeals then-applicable Frye-Reed standard of general acceptance, permitted McVeigh to testify at trial that the bullets that killed Ivan 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 intermediate 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 directly to the high court.

The Court of Appeals is expected to render its decision by Aug. 31 in the case, Kobina Ebo Abruquah v. State of Maryland, No. 10, September Term 2022.