5 Slides Power Point on digital evidence

CH51011.pdf

Home >Law homework help >Criminal homework help >5 Slides Power Point on digital evidence

Chapter 5

Pretrial Forensic Issues

DNA Databases

The DNA Identification Act of 19941 mandated the creation of the FBI's Combined DNA Index System ("CODIS") forensic DNA database. CODIS is a "computer software program that operates local, state, and national databases of DNA profiles from convicted offenders, unsolved crime scene evidence, and missing persons."2 All fifty states mandate DNA databases of some sort, although the types of crimes that require inclusion in a DNA database vary from state to state.3 In 2004, the Justice for All Act4

significantly increased funding for the use of DNA in the criminal justice system, including an expansion of CODIS to allow state crime laboratories to include even more persons in the database. The Act's DNA backlog grant program authorized $755 million in grants over five years. This created significant expansions of previous police databases, which had primarily focused on fingerprints. CODIS now includes what has been estimated to be over five million DNA samples.5

CODIS DNA databases are searched for matches based on specimens collected at a crime scene to identify a potential perpetrator. While these searches are often used in serious cases of murder, rape, or robbery, it has been suggested that they should be used to solve multiple minor crimes.6

There is a debate about the scope and use of these DNA databases. The debate focuses on which crimes should prompt a DNA sample collection and the stage in the criminal process at which DNA samples should be taken from defendants. On the one hand, some suggest that the largest possible database is an important tool in law enforcement and that a government DNA database should be collected and

Shelton, Donald E.. Forensic Science Evidence : Can the Law Keep Up with Science, LFB Scholarly Publishing LLC, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/ashford-ebooks/detail.action?docID=1057854. Created from ashford-ebooks on 2022-04-20 23:01:55.

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

50 Forensic Science Evidence

maintained on the entire population. There is no universal DNA database system but clearly the trend is to expand the breadth of genetic criminal identification databases, from violent felons, to felons, to misdemeanants. Other questions about DNA sampling include: (1) at what stage in the process DNA samples are taken (arrest, indictment, or conviction); and (2) what should happen to DNA samples after acquittal or dismissal?7 At least twenty-one states have enacted statutes requiring DNA sampling at felony arrests, before any guilt has been established even preliminarily.8

A recent report to Congress summarized the legal status of mandating the taking of DNA samples:

As DNA database programs have widened in scope and grown in numbers, their consistency with the Fourth Amendment’s prohibition on unreasonable searches and seizures has increasingly been challenged. In the context of compulsory DNA collection, courts have widely upheld laws mandating the collection of DNA from persons who were convicted and are subject to the penal system’s custody or supervision. However, no judicial consensus has emerged regarding the constitutionality of mandating DNA collection from arrestees who have been criminally indicted. Instead, courts have split over the existence and scope of an arrestee’s reasonable expectation of privacy and the degree of privacy intrusion caused by DNA sampling. The limited number of court decisions in this area also suggests that there are conflicting opinions about the analogousness of DNA collection and fingerprinting.9 For its part, Congress has determined that the DNA of all federal

arrestees should be obtained. Amendments to the DNA Act in 200610, as implemented recently by Attorney General Regulations,11 allows the collection of samples from all arrestees. In United States v. Pool12 the Ninth Circuit held that mandating DNA samples from arrestees did not violate the Fourth Amendment, but that Court subsequently granted an en banc rehearing of the issue.13 The Third Circuit took a definitive stand in United States v. Mitchell holding that "under the totality of the circumstances, given arrestees' and pretrial detainees' diminished expectations of privacy in their identities and the Government's

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

Pretrial Forensic Issues 51

legitimate interests in the collection of DNA from these individuals, we conclude that such collection is reasonable and does not violate the Fourth Amendment".14 The Supreme Court has not yet spoken to the issue.

Many people are concerned about the threat of eugenics posed by continuing to enlarge the scope of DNA databases. Their concern is that genes contain information about the racial and ethnic heritage, disease and mental illness susceptibility, and even behavioral tendencies, of every person in the database. In this respect, they point out that DNA databases are inherently different than the fingerprint databases that law enforcement has maintained for many years and which are useful only for identification purposes.15

Recently, such concerns have been heightened by the use of DNA

databases to locate potential relatives of an unidentified suspect. An "indirect genetic kinship analysis" uses crime scene DNA to search the convicted offender/arrestee DNA databases to identify not just the perpetrator, but also any biological relatives of the potential suspect.16 Familial searching of large DNA databases has the potential to develop valuable investigative leads regarding the source of a forensic sample so that police can narrow their investigation to a small range of related suspects. Familial searches are specifically authorized in Colorado17 and California18 and its apparently successful use in identifying an alleged serial killer has heightened interest in expanding the process.19 Congress is apparently favorably considering legislation that would encourage the FBI to expand its use of familial DNA searches, subject to "appropriate protections for the privacy rights of those in the NDIS database". 20 Familial searching does raise compelling policy questions that the legislatures and the courts have yet to definitively answer.21

The danger opponents see is that this personal, private health data will be used for a variety of discriminatory and currently unlawful purposes. This debate poses what many see as a conflict between public safety and individual privacy. Some maintain that balancing these conflicting interests is ultimately a political issue and that privacy interests are best protected through regulatory control over the law enforcement agencies that have access to the DNA databases.22

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

52 Forensic Science Evidence

Search Issues

DNA database issues may most often present themselves in pretrial motions alleging that they are the result of unlawful searches and seizures in violation of the Fourth Amendment. Generally, such motions have failed. The federal courts have consistently ruled that the federal statute and various state statutes mandating the taking of DNA samples for law enforcement databases are not constitutionally infirm.23

The physical gathering of a DNA specimen from a suspect for DNA testing is, of course, governed by the same Fourth Amendment constraints that apply to any seizure, and the DNA purpose of that seizure does not change that analysis. Statutes of Limitations and "John Doe" Warrants

One of the side effects of the use of newly developing DNA techniques and ever- expanding DNA databases in "cold" cases is an often lengthy delay in charging a defendant whose identity is finally revealed by that DNA comparison. Applicable statutes of limitation may well have expired in the interim. In response, federal and state legislatures have begun to revise the statutory limitation periods.24

The Justice for All Act of 200425 that expanded the CODIS database also extended the federal statute of limitations in cases which DNA testing implicates a perpetrator until the time that the actual identity of the perpetrator is discovered. Several states have similarly extended some periods of limitations, including "Colorado, Florida, Indiana, Michigan, Nevada, New Jersey, and New York."26 Many states have created special statutory limitation extensions applicable to sexual assault cases.27 A myriad of additional extensions and modifications of state limitations periods are currently under consideration.28 The proposals range, for example, from eliminating the limitations period entirely for certain offenses29 to extending the statute when DNA evidence is recovered at a crime scene but the evidence does not currently match anyone in the DNA database.30

Additionally, prosecutors in several states have tried to toll the

statute of limitations by filing a criminal complaint and warrant naming "John Doe" as the defendant and identifying him by the DNA profile obtained from a crime scene specimen. Prosecuting attorney

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

Pretrial Forensic Issues 53

organizations and the Justice Department are encouraging the filing of such "John Doe" warrants.31 These warrants were first originated in Wisconsin in 1999 but are now being used by prosecutors in many other jurisdictions.32 Federal and some state statutes have specifically authorized the use of such warrants.33 The legal issue is whether such warrants or indictments sufficiently identify the defendant so as to toll the statute of limitations. The Fourth Amendment requires that warrants particularly describe the person to be seized.34 The Federal Rules of Criminal Procedure require that an arrest warrant "contain the defendant’s name or, if it is unknown, any name or description by which the defendant can be identified with reasonable certainty."35 Most states have similar requirements.36

"John Doe" warrants without further identifying information are clearly constitutionally insufficient,37 even when they contain some physical description such as race, height, or weight.38 Prosecutors contend, however, that including the DNA profile not only meets but exceeds the reasonable certainty requirement because the profile can only identify one person. Defense lawyers disagree on the basis that "DNA samples will degrade over time, even under optimal conditions and errors in the collection, handling and storage of DNA samples can result in errors in identification."39 Defense lawyers assert that nameless DNA warrants do not meet the requirement of reasonable certainty and that allowing such John Doe warrants vitiates their rights under the applicable statute of limitations.

Courts which have reviewed John Doe DNA warrants have generally upheld their validity.40 As the Supreme Court of Massachusetts recently put it, "[w]here a general John Doe indictment, bereft of any particularity, must fail as generally anonymous, the converse is true of a DNA indictment: it prevails as precisely eponymous".41

Defense Discovery and Requests for Assistance

The increase in the use of forensic scientific evidence by the government also heightens the need for the defense in a criminal case both to investigate and respond to the government's evidence and possibly to affirmatively seek forensic evidence of its own.

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

54 Forensic Science Evidence

Preliminarily, this means that the defense will seek to discover the test results obtained by the government as soon as possible. Unfortunately, many government crime laboratories are simply incapable of performing forensic tests within a reasonable period of time.

In 2002, the federal government estimated that state crime laboratories "ended the year with over 500,000 backlogged requests for forensic services—a more than seventy percent increase in the backlog of requests compared to the beginning of the year."42

They also “estimated that about 1,900 additional FTEs [full time equivalent personnel] would have been needed to achieve a 30-day turnaround for all 2002 requests for forensic services . . . [and the] estimated cost of the additional FTEs exceeds $70.2 million.”43

More recently, the federal government estimates that, just as to DNA, there was a national backlog of 100,628 DNA cases as of January 1, 2009, which grew to 111,647 by the end of the year.44 The backlogs have also resulted in some very high profile mistakes, delays and even closures at police laboratories.45 The federal government has recognized the problem and initiated a program designed to assist States in reducing the backlog, at least as it relates to DNA testing46 but it remains a significant problem.47

Often laboratories seem to base the priorities for testing on the proximity of a trial date, and defense attorneys rightly complain that this leaves them with little time to prepare a response or even to responsibly advise their clients about the weight of the evidence against them. In its simplest form, this may come before the trial court as a defense motion to compel or enforce discovery. It may even come up in a motion to reduce bond based on an assertion that the laboratory results may be exculpatory.48

Ultimately, if the prosecution fails to produce the test results in spite of a court order, the judge may have to hear a request for a variety of sanctions against the prosecution.

Some states have enacted statutes to relieve the pressure on their crime laboratory personnel by specifically allowing the admission of laboratory reports in lieu of the testimony of the persons who performed the testing. Those laws were struck down by the Supreme Court in Melendez-Diaz v. Massachusetts.49 The Court held that laboratory reports are indeed "testimonial" under the Supreme Court's prior holdings in Crawford v. Washington50 and Davis v. Washington.51 Therefore it was a violation of the Sixth Amendment right of confrontation to allow the government to submit a chemical drug test

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

Pretrial Forensic Issues 55

report without the testimony of the scientist. Since Melendez-Diaz, the holding has been applied to other forensic evidence reports as well, including DNA testing reports.52 However, the scope of the close ruling in Melendez-Diaz remains a current topic in the courts. In Bullcoming v. New Mexico53 the Supreme Court applied Melendez- Diaz to strike down the admissibility of a blood-alcohol laboratory report, when the accompanying testimony was from a laboratory technician who did not perform the analysis or write the report. In Williams v. Illinois54 the Supreme Court is considering whether the a report from an independent laboratory and accompanying testimony from a state analyst who reviewed the data also violates the confrontation clause. It has been common for experts to testify about DNA matches though they did not actually perform the testing and the court's decision in Williams could end that practice.

The Supreme Court, however, has left open a different option which would be constitutional. Justice Scalia, writing for the majority, stated that alternative "notice and demand" laws which require the prosecution to provide notice to the defendant of its intent to use an analyst's report, and give the defendant a period of time in which he may object to the admission of the evidence or forfeit that objection, are permissible. Given the already existing backlog and demands on state crime laboratories,55 many states are quickly trying to follow up on that suggestion.56

Aside from the issue of the admissibility of laboratory reports, a defendant has a constitutional right of confrontation to examine the evidence against him, and that would include the specimens used in laboratory tests as well as the details of the testing performed on those specimens. The discoverable materials at the pretrial stage would certainly include more than just the laboratory report. Pretrial discovery would normally include a right by the defense to obtain, and perform its own testing and analysis on, the specimen. The circumstances of that examination, especially when the evidence is subject to contamination or even consumption, often may be tightly controlled by the terms of a discovery order. Note, however, that the failure of the police to preserve a specimen may not amount to a constitutional violation absent a showing of police bad faith.57

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

56 Forensic Science Evidence

Indigent defendants clearly have the same discovery rights. Trial judges often, however, have to address the desire of indigent defendants to retain defense experts for analysis and testimony. In Ake v. Oklahoma,58

the Supreme Court of the United States established that an indigent defendant in a criminal case has a constitutional right to the assistance of publicly funded experts.59 Some commentators believe that the right granted by the Supreme Court in Ake has proven to be illusory in practice.

In determining whether the court must make public funds available for a defense expert witness, the trial judge must consider the probable value of the expert analysis to the defense. Public funding is required when the issue is likely to be significant in the trial. The burden is on the defense to show that the expert is necessary.60 However, at the least, when the prosecution has conducted a forensic examination of evidence, the defense would clearly seem to be entitled to its own similar expert examination of that evidence.

1 The DNA Identification Act of 1994, Pub. L. 103-322, 108 Stat. 2065 (1994). 2 Nat’l Inst. of Justice, U.S. Dep’t of Justice, Using DNA To Solve Cold Cases 9

(2002), available online at http://www.ncjrs.gov/pdffiles1/nij/194197.pdf (last visited December 14, 2011).

3 Id. 4 42 U.S.C. § 14135(j) (2006 & Supp. 2007). 5 Matejik, Laura, DNA Sampling: Privacy and Police Investigation in a Suspect

Society, 61 Ark. L. Rev 53 (2008). 6 Nat’l Inst. of Justice, U.S. Dep’t of Justice, DNA in "Minor Cases" Yields

Major Benefits in Public Safety, in In Short: Toward Criminal Justice Solutions, Nov. 2004, at 1, 3, available online at http://www.ncjrs.gov/pdffiles1/nij/207203.pdf (last visited December 14, 2011).

7 For a discussion of some of these issues, see Cole, Simon A., Fingerprint Identification and the Criminal Justice System: Historical Lessons for the DNA Database, in DNA and the Criminal Justice System: the Technology of Justice, ed. David Lazer, (2004), at 80-84.

8 DNA Research Report, Domestic DNA Legislation, available online at http://www.dnaresource.com/documents/2007DNAExpansionLegislation.pdf

(last visited December 14, 2011).

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

Pretrial Forensic Issues 57

9 Barbour, Emily C., DNA Databanking: Selected Fourth Amendment Issues

and Analysis, Congressional Research Service No. 7-5700 (June 6, 2011), available online at http://fulltextreports.com/2011/07/19/crs-dna- databanking-selected-fourth-amendment-issues-and-analysis/ (last visited November 17, 2011).

10 DNA Fingerprint Act, 42 U.S.C. § 14135a(a)(1)(A). 11 28 C.F.R. § 28.12, 73 Fed. Reg. 74932 (eff. Jan. 9, 2009). 12 United States v. Pool, 621 F.3d 1213 (9th Cir. 2010). 13 United States v. Pool, ___ F.3d ___, 2011 WL 2151202, at *1 (9th Cir. June

2, 2011). 14 United States v. Mitchell, ___ F.3d ___ (3d Cir. No. 09-4718, July 25,

2011). 15 See Steinhardt, Barry, Privacy and Forensic DNA Data Banks, in DNA And

The Criminal Justice System: The Technology Of Justice, ed. David Lazer, (2004) at 173: and Preston, Corey, Faulty Foundations: How the False Analogy to Routine Fingerprinting Undermines the Argument for Arrestee DNA Sampling, 19 Wm. & Mary Bill Rts. J. 475 (2010).

16 See Bieber, Frederick R, Charles H. Brenner, and David Lazer, Finding Criminals Through DNA of Their Relatives, Science: Vol. 312 no. 5778 pp. 1315-1316, (June 2, 2006) available online at http://www.sciencemag.org/content/312/5778/1315.citation (last visited November 18, 2011); and Ge, Jianye, Ranajit Chakraborry, Arthur Eisenberg and Bruce Budowle, Comparisons of Familial DNA Database Searching Strategies, J. Forensic Sci.Vol.56, No. 6 (November 2011).

17 Colorado Bureau of Investigation, DNA Familial Search Policy (October 22, 2009), available online at http://www.denverda.org/DNA/Familial_DNA_Database_Searches.htm (last visited December 14, 2011).

18 Information Bulletin from Edmund G. Brown, Jr., Attorney General, DNA Partial Match (Crime Scene DNA Profile to Offender) Policy No. 2008-BFS- 01 (2008), available online at http://ag.ca.gov/cms_attachments/press/pdfs/n1548_08-bfs-01.pdf (last visited November 19, 2011).

19 Steinhauer, Jennifer, ‘Grim Sleeper’ Arrest Fans Debate on DNA Use, N.Y. Times, July 2, 2010, available online at

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

58 Forensic Science Evidence

http://www.nytimes.com/2010/07/09/us/09sleeper.html (last visited November 19, 2011).

20 The House and Senate have approved a Conference Report that states "The Committee encourages the FBI to undertake activities to facilitate familial DNA searches of the National DNA Index System (NDIS) database of convicted offenders, and work with the NDIS Procedures Board to consider the establishment of procedures allowing familial searches only for serious violent and sexual crimes where other investigative leads have been exhausted. The procedures should provide appropriate protections for the privacy rights of those in the NDIS database." Commerce, Justice, Science and Related Agencies Appropriations Bill, 2012, House Report 112- 169, 112th Congress (2011-2012) available online at http://thomas.loc.gov/cgi- bin/query/z?c112:H.R.2596 (last visited November 26, 2011) . See Schiff, Adam, Schiff’s Familial DNA Language Passes as Part of Conference Report, Press Release (Nov. 21, 2011) available online at http://schiff.house.gov/index.cfm?sectionid=49&parentid=6&sectiontree=6,4 9&itemid=869 (last visited November 26, 2011).

21 See Ram, Natalie, Fortuity and Forensic Familial Identification, 63 Stan. L. Rev. 751 (2011); and Murphy, Erin, Relative Doubt: Familial Searches of DNA Databases, 109 Mich. L. Rev. 291 (2010) arguing for the prohibition or at least restriction of familial database searches.

22 See Etzioni, Amitai, A Communitarian Approach: A Viewpoint on the Study of the Legal, Ethical and Policy Considerations Raised by DNA Tests and Databases, 34 J. L. Med. & Ethics 214, 219-20 (2006).

23 See, e.g., Jones v. Murray, 962 F.2d 302, 308 (4th Cir. 1992). 24 For a general description of statute of limitations issues relating to DNA, see

Imwinkelried, Edward J., The Relative Priority That Should Be Assigned to Trial Stage DNA Issues, in DNA And The Criminal Justice System: The Technology Of Justice, ed. David Lazer, (2004); Diehl, Jonathan W. , Note, Drafting a Fair DNA Exception to the Statute of Limitations in Sexual Assault Cases, 39 Jurimetrics J. 431 (1999); and Dunn, Amy, Note, Criminal Law—Statutes of Limitation on Sexual Assault Crimes: Has the Availability of DNA Evidence Rendered Them Obsolete?, 23 U. Ark. Little Rock L. Rev. 839 (2001).

25 Justice for All Act of 2004, Pub. L. No. 108-405, 118 Stat. 2260 (2004). 26 Imwinkelried, Edward J., The Relative Priority That Should Be Assigned to

Trial Stage DNA Issues, in DNA and the Criminal Justice System: The

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

Pretrial Forensic Issues 59

Technology of Justice, ed. David Lazer, (2004) at 94, 103 n.26.

27 For a listing of legislative enactments by state, see Nat’l Conference of State Legislatures, Statute of Limitations for Sexual Assaults (2007), available online at http://www.ncsl.org/default.aspx?tabid=12723 (last visited December 14, 2011). For a discussion of early statutory limitation changes in response to DNA developments, see Ulmer, Frank B., Note, Using DNA Profiles to Obtain "John Doe" Arrest Warrants and Indictments, 58 Wash. & Lee L. Rev. 1585 (2001).

28 For an updated list of DNA related state statute of limitation proposals, see Gordon Thomas Honeywell Gov’t Affairs, 2008 Statute of Limitations DNA Legislation (2008), available online at http://www.dnaresource.com/documents/2008StatuteofLimitationsLegislatio n.pdf (last visited December 14, 2011).

29 Id. 30 Id. 31 See Nat’l Inst. of Justice, U.S. Dep’t Of Justice, Using DNA To Solve Cold

Cases 9 (2002), at 22, available online at http://www.ncjrs.gov/pdffiles1/nij/194197.pdf (last visited December 14, 2011).

32 See Akehurst-Moore, Scott, An Appropriate Balance?–A Survey and Critique of State and Federal DNA Indictment and Tolling Statutes, 6 J. High Tech. L. 213, 216 (2006); and Ulmer, Frank B., Note, Using DNA Profiles to Obtain "John Doe" Arrest Warrants and Indictments, 58 Wash. & Lee L. Rev. 1585 (2001), at 1586-88.

33 See, e.g., 18 U.S.C. § 3282 (2006); Ark. Code Ann. §§ 5-1-109(b)(1)(B), (i)- (j) (2006); Del. Code Ann. Tit. 11, § 3107 (2007); Mich. Comp. Laws § 767.24(2) (2008); N.H. Rev. Stat. Ann. § 592-A:7(II) (Supp. 2008).

34 U. S. Const. amend. IV; Frank B. Ulmer, Note, Using DNA Profiles to Obtain "John Doe" Arrest Warrants and Indictments, 58 Wash. & Lee L. Rev. 1585 (2001), at 1600.

35 Fed. R. Crim. P. 4(b)(1)(A); Frank B. Ulmer, Note, Using DNA Profiles to Obtain "John Doe" Arrest Warrants and Indictments, 58 Wash. & Lee L. Rev. 1585 (2001),at 1600-01.

36 Ulmer, Frank B. , Note, Using DNA Profiles to Obtain "John Doe" Arrest Warrants and Indictments, 58 Wash. & Lee L. Rev. 1585 (2001), at 1600-01.

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

60 Forensic Science Evidence

37 See, e.g., United States v. Doe, 703 F.2d 745 (3d Cir. 1983); United States v.

Swanner, 237 F.Supp. 69 (E.D. Tenn. 1964); Winters v. Campbell, 137 S.E.2d 188 (W. Va. 1964).

38 See, e.g., People v. Montoya, 63 Cal. Rptr. 73 (Ct. App. 1967); McIntyre v. State, 530 N.Y.S.2d 898 (N.Y. App. Div. 1988).

39 Nat’l Ass’n of Criminal Def. Lawyers, Resolution Of The Board Of Directors Regarding John Doe DNA Warrants/Indictments (2004), available online at http://www.nacdl.org/About.aspx?id=19672 (last visited December 14, 2011).

40 See State v. Dabney, 663 N.W.2d 366 (Wis. Ct. App. 2003); State v. Davis, 698 N.W.2d 823 (Wis. Ct. App. 2005); State v. Belt, 179 P.3d 443 (Kan. 2008); People v. Robinson, 222 P.3d 55 (Cal. 2010); Commonwealth v. Dixon, 458 Mass. 446 (Mass. 2010); State v. Danley, 138 Ohio Misc.2d 1 (2006); People v. Martinez, 855 N.Y.S.2d 522 (2008). For a history of how courts have treated such warrants, see Sucherman, Micah, People v. Robinson: Developments and Problems in the Use of “John Doe” DNA Arrest Warrants, 99 Cal. L. Rev. 885 (2011).

41 Commonwealth v. Dixon, supra at 452-453. 42 Office of Justice Programs, U.S. Dept. of Justice, Census of Publicly Funded

Forensic Crime Laboratories , Bureau Of Justice Statistics Bull., 2002, Feb. 2005, at 1 (2005), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cpffcl05.pdf (last visited December 14, 2011).

43 Id. 44 National Institute of Justice, U.S. Department of Justice, DNA Evidence

Backlogs: Forensic Casework, 2011, available online at http://www.nij.gov/topics/forensics/lab-operations/evidence- backlogs/forensic-evidence-backlog.htm (last visited November 20, 2011).

45 See, e.g., Hornbeck, Mark, Law officials: Closing of Detroit Police Crime Lab a Crisis for State Justice System, Detroit News (Feb. 18, 2010); Van Derbeken, Jaxon, DNA Lab Chief Quits as SFPD Considers Outsourcing, San Francisco Chronicle (June 23, 2010), available online at http://www.sfgate.com/cgi- bin/article/article?f=/c/a/2010/06/22/BALL1E32QP.DTL (last visited November 20, 2011); Lystra, Tony, Statewide Increase in Cases Delay Crime Lab Results, The Daily News (Washington Nov. 3, 2011), available online at http://tdn.com/news/local/article_cffa5634-068a-11e1-b26f-

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

Pretrial Forensic Issues 61

001cc4c03286.html (last visited November 20, 2011); Pinkerton, James, Backlog at HPD Crime Lab is Causing Trial Delays, Houston Chronicle (Sept. 28, 2010) available online at http://www.chron.com/news/houston- texas/article/Backlog-at-HPD-crime-lab-is-causing-trial-delays-1717970.php (last visited November 20, 2011).

46 National Institute of Justice, U.S. Department of Justice, Forensic DNA Backlog Reduction Program (2011), available online at http://www.dna.gov/funding/backlog-reduction/ (last visited November 20, 2011).

47 See Strom, Kevin J. and Matthew J. Hickman, Unanalyzed Evidence in Law- Enforcement Agencies: A National Examination of Forensic Processing in Police Departments, 9 Crim. & Pub. Pol'y 381 (May 2010).

48 Shelton, Donald E. Twenty-First Century Forensic Science Challenges for Trial Judges in Criminal Cases: Where the "Polybutadiene" Meets the "Bitumen", 18 Widener L. J. 309 (2009), at 368.

49 Melendez-Diaz v. Massachusetts, 557 U.S. 1256 (2009). 50 Crawford v. Washington, 541 U.S. 36 (2004). 51 Davis v. Washington, 547 U.S. 813 (2006). 52 See, e.g., Cuadros-Fernandez v. State, 316 S.W.3d 645 (Tex. Ct. App. 2009). 53 Bullcoming v. New Mexico, ___ U.S. ___, 131 S.Ct. 2705 (2011). 54 People v. Williams, 939 N.E.2d 268 (2010), cert. granted sub nom Williams

v. Illinois, __ U.S. __, 131 S. Ct. 3090 (2011). For ongoing commentary about these issues, see Friedman, Richard D., The Confrontation Blog, available online at http://confrontationright.blogspot.com/ (last visited December 14, 2011),

55 Office of Justice Programs, U.S. Dept. of Justice, Census of Publicly Funded Forensic Crime Laboratories , Bureau Of Justice Statistics Bull., 2002, Feb. 2005, at 1 (2005), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cpffcl05.pdf (last visited December 14, 2011).

56 See, e.g., Jackman, Tom and Rosalind S. Helderman, Kaine Calls Session To Amend Laws On Trial Testimony, The Washington Post, July 23, 2009, (Virginia). For updated information on statutory changes and evolving case law arising out of the Melendez case, see Federal Evidence Review, The Melendez-Diaz Resource Page, available online at

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

62 Forensic Science Evidence

http://federalevidence.com/evidence-resources/melendez- diaz.v.massachusetts-overview (last visited November 20, 2011).

57 See Arizona v. Youngblood, 488 U.S. 51, 55-59 (1988). 58 Ake v. Oklahoma, 470 U.S. 68 (1985). 59 Id., at 74. 60 Findley, Keith A., Innocents at Risk: Adversary Imbalance, Forensic

Science, and the Search for Truth, 38 Seton Hall L. Rev. 893 (2008), at 930.

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

117

Chapter 10

Bite Mark Analysis

Bite mark testimony seeks to identify a perpetrator by comparing a cast or image of teeth from a bite mark left on a victim or at a crime scene with a sample of the defendant's teeth. A forensic odontologist offers testimony in which the bite marks are analyzed and compared. The basic premise underlying bite mark forensic evidence is that human dentition is unique and that, when compared within a reasonable time, an expert opinion identifying the person who made both impressions can be made.1 Obtaining and Analyzing Odontology Evidence

The American Board of Forensic Odontology has established methods to be used in obtaining and preserving bite mark evidence.2 Bite marks on human skin can be recorded with a number of accepted techniques, including various forms of photography. Casting three dimension impressions of bite marks is also suggested when feasible. Since the bite marks are a potentially valuable source of suspect DNA, a bite mark is usually swabbed for later DNA analysis as well. The dentition from a suspect to be compared is obtained through dental records, x- rays, or actual physical examination if possible. At least two casts are made and, if possible, a suspect's bite mark into a comparable substance is obtained and casted. Odontologists will make exemplars of the suspect's teeth by anything from a hand-traced outline to xerographic copying to computer imaging.

While there is little dispute about the validity of these techniques, there are significant problems associated with the deterioration of bite marks with the passage of time or contamination from other sources or

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

118 Forensic Science Evidence

deformation through the natural healing process. Additionally, problems can arise with the normal changes in a suspect's dentition as well. The eventual comparison is made visually, microscopically, and, in some cases, with digital photography.

The Scientific Validity of Bitemark Testimony

The basic concept of dental uniqueness has been accepted by many courts.3 Indeed, bite mark evidence in general has received widespread acceptance. In State v. Timmendequas,4 when admitting bite mark evidence, the Supreme Court of New Jersey stated that "[j]udicial opinions from other jurisdictions establish that bite-mark analysis has gained general acceptance and therefore is reliable. . . . Over thirty states considering such evidence have found it admissible and no state has rejected bite-mark evidence as unreliable."5

Nevertheless, significant questions remain about the scientific validity of bite mark comparison testimony and its continued admissibility under Daubert scrutiny.6

First, despite its acceptance in various cases, there is significant disagreement among odontologists and other scientists about the basic premise of dental uniqueness. The American Society of Forensic Odontology asserts that the uniqueness premise has been established by at least two studies.7 And odontologists are convinced that human dentition is unique to each living person.8 However, The NAS Report states that “the uniqueness of the human dentition has not been scientifically established.”9 That claim is supported by the studies of several other scholars.10 If human dentition is not unique, there may be very little proper use for bite mark testimony in criminal proceedings.

Beyond the basic question of uniqueness, a number of factors in a

particular case may affect the accuracy of bite mark identification.11 These include such things as the "freshness" of the bite mark impression and its changes over time, temperature or contamination effects at the crime scene, damage to soft tissue around the bite mark, and dental similarities among individuals.12 A primary concern is often that the impression includes only a limited number of teeth.13 When experts rely, as they often do, on photographic images of bite marks made at the scene or during an autopsy, the quality of the photography and the enhancement techniques used for comparison can clearly affect the reliability of the odontologist's conclusions.14 Guidelines have been

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

Bite Mark Analysis 119

suggested by the American Board of Forensic Odontology that specifically address many of these factors.15

Perhaps the biggest technical evidentiary issues relating to these factors are questions of whether a reliable pattern of bite marks is transferred to human skin when a bite occurs and, if so, whether the skin can retain that pattern for any period of time without undergoing a distortion caused by the biological reaction of the skin to being punctured. The NAS Report was specific and very critical in its findings on these points:

The ability of the dentition, if unique, to transfer a unique pattern to human skin and the ability of the skin to maintain that uniqueness has not been scientifically established. i. The ability to analyze and interpret the scope or extent of distortion of bite mark patterns on human skin has not been demonstrated. ii. The effect of distortion on different comparison techniques is not fully understood and therefore has not been quantified.16 As to the first point, "[c]entral to bitemark analysis are the

characteristics of the skin receiving the mark, because in cases of physical assault having skin injuries, the anatomy and physiology of the skin, and the position of the victim, affect the detail and shape of the bitemark."17 There is one recent study which attempted to measure the accuracy of human skin as a "substrate," or recording recipient, of bitemarks by using the same dentition to make bites on cadavers. The authors found that no two bites were measurably identical and that there was distortion between the bites of as much as 80%.18 In a subsequent study of the cadavers, several selected dentition models were used and the investigators found that up to 86% of the models could not be excluded by examination and that, indeed, some of the non-biter dentitions appear to "fit" better than the actual biter's dentition.19 The odontologists concluded that "this study suggests that an open population postmortem bitemark should be carefully and cautiously evaluated."20 That assessment has been called "understated."21

As to the issue of distortion, from bruising, healing, or other biological skin reactions to injury, the scientific research indicates that there is a significant degree of distortion that takes place in a bite mark

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

120 Forensic Science Evidence

impression on the skin with any passage of time.22 The longer the time interval, the greater the distortion, and it appears that even preservation of the skin does not necessarily lessen the distortion.23

In spite of its general admissibility, expert testimony has varied to such a degree that some courts have excluded the testimony altogether. The conclusions that an expert can draw from the evaluation are necessarily limited by the number and quality of corresponding points in the evidentiary sample. Testifying odontologist experts have expressed opinions ranging from stating that the bite mark was "consistent" with the defendant's teeth, to stating that the defendant's teeth "probably" made the bite mark, to conclusively claiming that there was a "match" that was a positive identification of the defendant.24

The error rate for odontologist experts appears to be high. An

interpretation of results of the latest study by the American Board of Forensic Odontology indicated an error rate of 12.5% out of a possible 27%, meaning that participating odontologists were almost half as wrong as they could be in that study.25 Of particular concern in criminal cases, the bulk of that error rate was from false positives.26

As with all scientific testimony, the qualifications and bias of a particular proffered expert is always an issue. In Ege v. Yukins,27 for example, the District Court for the Eastern District of Michigan found constitutional error in a state court case in which testimony about bite marks was a critical factor in the conviction.28 The court found that testimony of the government's bite mark expert comparing a photograph of a disputed bite mark on the victim's cheek with a mold of the defendant's teeth made some nine years prior was unreliable, grossly misleading, and "so extremely unfair that its admission violates fundamental concepts of justice."29 Specifically, the court used the expert's testimony that out of the 3.5 million people residing in the Detroit metropolitan area, the defendant was the only one whose dentition could match the individual who left the possible bite mark on the victim's cheek “was unreliable and not worthy of consideration by a jury."30 The court specifically noted that “[t]he opinion apparently was based on the mathematical product theory, a proposition that long has been condemned.” Other bite mark experts have also been the subject of blistering reviews by the courts.31

As in other types of long accepted forensic scientific evidence, postconviction DNA exonerations have called the validity of bite mark

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

Bite Mark Analysis 121

evidence into question. In a case that received a great deal of publicity, bite mark evidence from two experts convicted a defendant of capital murder. The defendant was later exonerated by DNA while on death row.32 Publicity surrounding other murder case DNA exonerations based on bite mark evidence has led to serious public and professional doubts about its validity.33 The extent to which bite mark evidence will survive Daubert scrutiny, especially in light of both these significant and public reversals and the lack of empirical studies on the subject, remains to be seen.

1 For general information about bite mark comparisons, see Bitemark Evidence

(Robert B.J. Dorion ed., 2004); Identification from Bitemarks §§ 37.1 et seq, in Modern Scientific Evidence: The Law and Science of Expert Testimony, eds. David L. Faigman, Michael J. Saks, Joseph Sanders, and Edward K. Cheng, (2009-2010 edition).

2 American Board of Forensic Odontology, Inc., Diplomates Reference Manual (June 28, 2009), available online at

http://www.abfo.org/pdfs/ABFO%20Manual%20-%20revised%2010-28-09- B.pdf (last visited December 14, 2011).

See, e.g., People v. Milone, 356 N.E.2d 1350, 1355 (Ill. App. Ct. 1976); People v. Smith, 443 N.Y.S.2d 551, 556-57 (Sup. Ct. 1981).

4 State v. Timmendequas, 737 A.2d 55 (N.J. 1999). 5 Id. at 114 (citations omitted). 6 See Deitch, Adam, An Inconvenient Tooth: Forensic Odontology is an

Inadmissible Junk Science When it is Used to "Match" Teeth to Bitemarks in Skin, 2009 Wis. L. Rev. 1205 (2009); Kieser, Jules A., Weighing Bitemark Evidence: A Postmodern Perspective, 1 J. Forensic Sci. 75 (2005); Kittelson, J. M., J. A. Kieser, D. M. Buckingham, and G. P. Herbison , Weighing Evidence: Quantitative Measures of the Importance of Bitemark Evidence, 20 J. Forensic Odonto-Stomatology 31 (2002).

7 Sweet, David J. , Human Bitemarks: Examination, Recovery, and Analysis, in Manual Of Forensic Odontology 148 (C. Michael Bowers & Gary L. Bell eds., 3d rev. ed. 1997); Rawson, R. D., R. K. Ommen, and G. J. Kinard, Statistical Evidence for the Individuality of the Human Dentition, 29 J. Forensic Sci. 245 (1984); Sognnaes, Reider F., R. D. Rawson, B. M. Gratt, and N. B. Nguyen, Computer Comparison of Bitemark Patterns in Identical Twins, 105 J. Am. Dent. Assoc. 449 (1982).

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

122 Forensic Science Evidence

8 Pretty, Iain,A Web-Based Survey of Odontologist's Opinions Concerning

Bitemark Analysis, 48 J. Forensic Sci. 117 (2003); Bowers, C. Michael, Identification From Bitemarks: Scientific Issues, in Modern Scientific Evidence: The Law and Science of Expert Testimony, (eds. David L. Faigman, Michael J. Saks, Joseph Sanders, and Edward K. Cheng), 2009- 2010 edition) at §37.8, et seq.

9 Nat 'L Research Council Of The Nat'l Acads., Strengthening Forensic Science in the United States: A Path Forward (2009), at 175.

10 See Bowers, C. Michael, Problem-Based Analysis in Bite Mark Misidentifications: The Role of DNA, 159 Forensic Sci. Int'l. (Supp. 1) 104 (May, 2006); Wilkinson, Allen P. and Ronald M. Gerughty, Bite Mark Evidence: Its Admissibility Is Hard to Swallow, 12 W. St. U. L. Rev. 519 (1985); Pretty, Iain and M. D. Turnbull, Lack of Dental Uniqueness Between Two Bite Mark Suspects, 46 J. Forensic Sci. 1487 (2001); Giannelli, Paul C., Bite Mark Analysis, 43 Crim. L. Bull. 930 (2007); Moriarty, Jane Campbell and Michael J. Saks, Forensic Science: Grand Goals, Tragic Flaws, and Judicial Gatekeeping, Judges’ J., Fall 2005, p. 16 (2005), at 21.

11 Bowers, C. Michael , Identification From Bitemarks: Scientific Issues, in Modern Scientific Evidence: The Law and Science of Expert Testimony, eds. David L. Faigman, Michael J. Saks, Joseph Sanders, and Edward K. Cheng, (2009-2010 edition) at §37:12; Rothwell, Bruce M. , Bitemarks in Forensic Dentistry: A Review of Legal, Scientific Issues, 126 J Am. Dent. Assoc. 223 (1995).

12 See Wilkinson, Allen P. and Ronald M. Gerughty, Bite Mark Evidence: Its Admissibility Is Hard to Swallow, 12 W. St. U. L. Rev. 519 (1985), at 535- 37, 550-52.

13 See Giannelli, Paul C., Bite Mark Analysis, 43 Crim. L. Bull. 930 (2007), at 932.

14 See Wilkinson, Allen P. and Ronald M. Gerughty, Bite Mark Evidence: Its Admissibility Is Hard to Swallow, 12 W. St. U. L. Rev. 519 (1985), at 557- 59.

15 American Board of Forensic Odontology, Guidelines For Bite Mark Analysis, 112 J. Am. Dental Assn. 383, 384-86 (1986); see also McClure, Michelle, Odontology: Bite Marks as Evidence in Criminal Trials, 11 Santa Clara Comp. & High Tech. L. J. 269, 273-75 (1995) (summarizing the American Board of Forensic Odontology’s guidelines).

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

Bite Mark Analysis 123

16 Nat 'L Research Council Of The Nat'l Acads., Strengthening Forensic

Science in the United States: A Path Forward (2009), at 175. 17 Bowers, C. Michael, Identification From Bitemarks: Scientific Issues, in

Modern Scientific Evidence: The Law and Science of Expert Testimony, eds. David L. Faigman, Michael J. Saks, Joseph Sanders, and Edward K. Cheng, (2009-2010 edition) at §37:18 at p. 45.

18 Bush, Mary A., et al., Biomechanical Factors in Human Dermal Bitemarks in a Cadaver Model, 54 J. Forensic Sci. 167 (2009).

19 Miller, Raymond G. , et al, Uniqueness of the Dentition as Impressed in Human Skin: A Cadaver Model, 54 J. Forensic Sci. 909 (2009).

20 Id., at 913. 21 Bowers, C. Michael Identification From Bitemarks: Scientific Issues, in

Modern Scientific Evidence: The Law and Science of Expert Testimony, eds. David L. Faigman, Michael J. Saks, Joseph Sanders, and Edward K. Cheng, (2009-2010 edition) at §37:18 at p. 46.

22 Dailey, J. C. and C. Michael Bowers, Aging of Bitemarks: A Literature Review, 42 J. Forensic Sci. 792 (1997).

23 Rothwell, Bruce R. and A. V. Thien, Analysis of Distortion in Preserved Bite Mark Skin, 46 J. Forensic Sci. 573 (2001).

24 For a review of various reported cases using these qualifiers, see generally Giannelli, Paul C., Forensic Science, 33 J. L. Med. & Ethics 535 (2005).

25 Bowers, C. Michael, Identification From Bitemarks: Scientific Issues, in Modern Scientific Evidence: The Law and Science of Expert Testimony, eds. David L. Faigman, Michael J. Saks, Joseph Sanders, and Edward K. Cheng, (2009-2010 edition) at §37:13.

26 Id. 27 Ege v. Yukins, 380 F. Supp.2d 852 (E.D. Mich. 2005). 28 Id. at 880. 29 Id. at 880 (quoting Dowling v. United States, 493 U.S. 342, 352 (1990)). 30 Id. at 871. 31 See Brooks v. State, 748 So. 2d 736 (Miss. 1999); Banks v. State, 725 So. 2d

711 (Miss. 1997); Harrison v. State, 635 So. 2d 894 (Miss. 1994). 32 See State v. Krone, 897 P.2d 621 (Ariz. 1995) (en banc); Hansen, Mark, The

Uncertain Science of Evidence, A.B.A. J., July 2005, at 49, 49-50; Randerson, James, Bite-Mark Evidence Can Leave a False Impression, New Scientist, Mar. 13, 2004, at 6, available online at http://www.newscientist.com/article/dn4758-bitemark-evidence-can-leave-

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

124 Forensic Science Evidence

false-impression.html (last visited December 14, 2011).

33 See Leonard, Wade H., Brewer Seeks $18M in Damages for Wrongful 1995 Conviction, Com. Dispatch (Columbus, Miss.), Oct. 12, 2008, at 1A; Levs, Melanie Lasoff, Bite-Mark Evidence Loses Teeth, A.B.A. J., May 2008, at 16, 16, available online at http://www.abajournal.com/magazine/bite_mark_evidence_loses_teeth (last visited December 14, 2011); Santos, Fernanda, Evidence from Bite Marks, It Turns out, Is Not So Elementary, N.Y. Times, Jan. 28, 2007, at WK 4.

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

125

Chapter 11

Toolmarks, Firearms, and Bullet Lead Comparison

Toolmarks and Firearms

Toolmarks are the impressions left when a hard tool contacts a softer object. The marks may be generated during the manufacturing process, such as when the barrel of a gun is rifled by cutting tools which leave marks on the barrel. The marks may also be generated when a manufactured item, perhaps a tool itself, is used in contact with other substances, such as when a screwdriver or crowbar is used to break into a door or window. In turn, the use of the item generates further marks on surfaces of the tool itself that were not present at the time of manufacture, such as when a gun is repeatedly fired or a screwdriver is used over time on various other items.

When a suspect tool is recovered, examiners look for distinctive features, often microscopically. They seek first to identify "class characteristics," or features that are shared by many similar objects.1 Then they examine the item microscopically for "individual characteristics," markings which are thought to be unique to the individual tool or firearm.2 They may also classify some features as "subclass characteristics" when they are common only to a small group of the manufactured items.3 The analysis then is the comparison of two sets of marks to see if they can be identified by common individual characteristics.

The proffered basis for expert toolmark testimony is that each set of markings is somehow unique.4 Such testimony has been almost universally accepted.5 Testimony about a variety of tools has been

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

126 Forensic Science Evidence

admitted,6 including screwdrivers and crowbars,7 bolt cutters,8 hammers,9 pliers,10 and a punch tool.11 Testimony about knives has been admitted when used as a tool.12 A Florida Court did, however, refuse to admit toolmark testimony about a knife when used as a weapon, finding no scientific basis for proffered testimony relating a particular knife to marks made on human cartilage.13

In this multitude of cases, the admissibility of testimony of toolmark witnesses seems almost presumed. However, in United States v. Green, the judge allowed toolmark evidence but commented that "[t]he more courts admit this type of toolmark evidence without requiring documentation, proficiency testing, or evidence of reliability, the more sloppy practices will endure; we should require more."14

Weapons used in the commission of crimes are a prime source of evidence, as investigators seek to identify a particular gun as the unique source of bullets or other ammunition components. Firearms testimony is simply one branch of the larger field of toolmark evidence. As with some other types of toolmarks, firearms examiners assert that marks on firearms and ammunition bear individual characteristics that are particular to one firearm and that can be reproduced only with that firearm. The marks made by tools in the manufacture of guns or ammunition may result in particular corresponding marks on bullets, cartridge cases, and shot shells as they process through the firing mechanism.15

Manufacturers cut a groove in the barrel of a gun so that the bullet spins as it travels through the barrel to make it travel straighter when it leaves the barrel. This "rifling" process leaves marks and scrapes on the barrel metal. When a bullet is fired and travels through the barrel, the barrel marks are transferred to and reflected in marks, called "stria," on the fired bullet.16 As the gun is used repeatedly and as the barrel is cleaned, the marks in the barrel, and the resulting stria on the bullet, may develop more individual characteristics.

Other individual gun characteristics can be imparted to the brass cartridge case of the bullets as they are fired and as they are ejected from some types of guns. As the firing pin strikes the cartridge, it leaves its mark. As the cartridge case is blown back to the breech of the gun, the toolmarks in that area of the gun are impressed on the exterior of the casing. If the gun ejects the casing, the toolmarks of the extractor and ejector parts of the gun are imparted to the exterior of the casing as well.

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

Toolmark, Firearms and Bullet Lead Comparison 127

To compare bullet striations or cartridge impressions, a recovered gun may be test fired so that the test bullet or casing can be compared to a found bullet or casing to see if they originated from the tested gun. As with other toolmarks, a firearms examiner makes initial visual determinations of class characteristics. The markings are then compared with a comparison microscope to see if the individual characteristics correspond.

American courts have admitted firearms comparison testimony routinely for over 130 years, with reported cases beginning with Wynn v. State.17 Any early hesitancy about its admissibility had all but disappeared by the 1930s,18 when the pioneer firearms scientist Calvin Goddard, perfected the comparison microscope.19 Expert testimony that a found bullet or cartridge and a test bullet or cartridge originated from the same gun has now been admitted in every U. S. jurisdiction.20

Toolmark evidence may be susceptible to a viable Daubert challenge. The questions primarily arise in two areas, the claimed uniqueness of toolmarks and the standards by which experts may testify that toolmarks on two items agree or correspond sufficiently to claim a common origin.

On the uniqueness question, the National Academy of Sciences 2008 ballistics report concluded that "The validity of the fundamental assumptions of uniqueness and reproducibility of firearms related toolmarks has not yet been fully demonstrated."21 The report went on to state that "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."22

The standard, or lack thereof, for determining whether the marks on two items agree is of greater concern. Experts agree that there is no perfect match.23 The Association of Firearms and Tool Mark Examiners (AFTE) states that the marks must be of "sufficient agreement" and only defines that phrase as "when it exceeds the best agreement demonstrated between tool marks known to have been produced by different tools and is consistent with the agreement demonstrated by tool marks known to have been produced by the same tool."24 The circularity of this "standard," and the lack of more definite criteria, has been the subject of criticism.25 And the expertise of firearms and toolmark examiners to make reliable comparisons has been steadfastly defended by its practitioners.26

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

128 Forensic Science Evidence

Like fingerprint and other impression testimony, the testimony of toolmark experts is, in the final analysis, subjective but that alone does not render it inadmissible. The 2009 National Academies report is critical of the scientific basis for the type of toolmark and ballistics evidence that has been routinely accepted by the courts because “not enough is known about the variabilities among individual tools and guns” and because “[s]ufficient studies have not been done to understand the reliability and repeatability of the methods.”27 The Academy report found that a “A fundamental problem with toolmark and firearms analysis is the lack of a precisely defined scientific process" and noted the "heavy reliance on the subjective findings of examiners rather than on the rigorous quantification and analysis of sources of variability."28 However, even when confronted with the Report's findings, some courts have held that ballistics testimony is admissible even without a Daubert hearing.29 Even when Daubert hearings or analyses are conducted, they have not resulted in many successful attacks on classic firearms expert testimony.30

Some courts have taken notice of the NAS Report and the Daubert challenges to ballistics testimony and have at least limited the language of such testimony. In United States v. Glynn31 the federal district judge conducted a Daubert hearing and stated that "Based on the Daubert hearings this Court conducted . . . , the Court very quickly concluded that whatever else ballistics identification analysis could be called, it could not fairly be called 'science' ," and the court limited the expert to testifying that a firearms match was "more likely than not". And in United States v. Taylor32 the court ruled that the government expert "will not be allowed to testify that he can conclude that there is a match to the exclusion, either practical or absolute, of all other guns."

In two federal cases in Massachusetts, the courts conducted lengthy Daubert hearings to determine the admissibility of firearms expert testimony. In United States v. Montiero33 the court reviewed the Daubert requirements at length and found that firearms testimony was generally admissible but that the government's proffered witness was not qualified.34 Moreover, the judge held that even a qualified government expert "may testify that the cartridge cases were fired from a particular firearm to a reasonable degree of ballistic certainty. However, the expert may not testify that there is a match to an exact statistical certainty."35 Similarly in United States v. Green36 the judge admitted testimony regarding cartridge casings but limited the

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

Toolmark, Firearms and Bullet Lead Comparison 129

government expert's testimony to his "observations" and prohibited him from testifying "that the match he found by dint of the specific methodology he used permits 'the exclusion of all other guns' as the source of the shell casings."37

Even with this limitation, there are no reported cases that reject the fundamental assumptions of firearm or other toolmark testimony based on a Daubert analysis. Of course, such testimony remains subject to attacks on the propriety and reliability of the laboratory procedures utilized or the qualifications of a proposed expert witness in a particular case and may require the trial judge to hold preliminary hearings into those matters to determine if they pose admissibility questions or only go to the weight of the government's evidence.38 While often holding that issues of reliability go to the weight of the evidence and are therefore jury issues, at least one court has held that a witness who would testify about the unreliability of ballistics analysis was "not an appropriate subject for expert opinion testimony" and the defense would be limited to cross examination of the government's experts.39

As in other forensic science fields, the future of firearms identification expert testimony may lie in the availability of better science rather than traditional subjective judgments. The FBI and ATF have developed a computerized system known as the Integrated Ballistic Identification System (IBIS) that automatically digitizes and sorts bullet and shell casing characteristics:

The ballistic comparison of crime scene bullet or cartridge casing evidence can be automatically compared with other bullet or cartridge casing images previously entered into the system. The ballistic comparison system does not positively identify (match) bullets or casings fired from the same weapon — that must be done by a firearms examiner. However, the system does produce a short list of candidates for the match. The numerical probability of a match is given for each candidate on the list eliminating the need for the examiner to visually compare unlikely candidates. By doing automated searches, the system speeds up and optimizes time spent on comparisons.40

IBIS has become a nationwide, and even international, system available to local law enforcement agencies.41 It has proven to be a reliable

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

130 Forensic Science Evidence

computerized tool for initial analysis of firearms.42 Although the ATF emphasizes that "the system does not make identifications; the firearm examiner must make the identification if two bullets or cartridge cases come from the same firearm,"43 the automated comparison process can be a substantial step toward probabilistic based testimony rather than subjective "match" opinions. Further refinements of the digital based automated system are being investigated and those may well lead to a more scientific analytical basis for firearms identification testimony.44

Bullet Lead Comparison

Bullet lead comparison is of very questionable validity. Analysis of bullet lead for identification purposes is premised on the theory that batches of lead in bullets have unique combinations of arsenic, antimony, tin, copper, bismuth, silver, and cadmium.45 The theory of compositional analysis of bullet lead (CABL) is that when two bullets have the same ratios of these elements, they came from the same source.46 However, one batch of lead in the bullet making process produces a large number of bullets, and those bullets may in turn go to a variety of distribution routes.47

Several courts initially admitted bullet lead analysis comparison testimony for identification.48 Subsequently, however, metallurgists and statisticians demonstrated that it is not reliable. An early Daubert evaluation in United States v. Mikos49 found that source conclusions based on bullet lead analysis were based on faulty science and were inadmissible.50 The court allowed the FBI agent in that case to testify as to the chemical similarities in the bullets but not as to any probability that they came from the same source.51

The National Research Council of the National Academy of Sciences conducted an earlier study funded by the FBI in 2004 and found that, while the methods for identifying and measuring the elements were sound, the assumptions based on those measurements were simply unsupportable.52 Initially, the FBI rejected the results of its own funded study,53 but shortly thereafter, the FBI announced that it had ceased to use bullet lead comparison in its investigations.54 No state laboratories do such analysis.55

Since the FBI decision, analysis of bullet lead comparison testimony under Daubert standards has been rejected by courts.56 Even Frye courts have since rejected bullet lead comparisons.57

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

Toolmark, Firearms and Bullet Lead Comparison 131

Subsequently, several convictions which had been based on CABL evidence were overturned.58 Surprisingly, the Ninth Circuit in a habeas action recently refused to overturn an old conviction which had been based on CABL testimony, holding that "While the CABL evidence introduced against Berry may have been flawed, we do not find it so arbitrary as to render Berry's trial “fundamentally unfair.”59 The decision probably should be interpreted more as a statement of habeas standards than any endorsement of the use of bullet lead analysis, which remains a sad chapter in the history of forensic science.

1 Nat’l Research Council of the Nat’l Acads., Strengthening Forensic Science

in the United States: A Path Forward (2009), at 152. 2 Id. 3 Id. 4 Nat’l Research Council of the Nat’l Acads., Strengthening Forensic Science

in the United States: A Path Forward (2009), at 150; Biasotti, Alfred, John Murdock, and Bruce R. Moran, Firearms and Toolmark Identification- Scientific Issues, §§ 35.6 et seq, in Modern Scientific Evidence: The Law and Science of Expert Testimony, eds. David L. Faigman, Michael J. Saks, Joseph Sanders, and Edward K. Cheng, (2009-2010 edition).

5 See Firearms and Toolmark Identification, §§ 35.1-5 in Modern Scientific Evidence: The Law and Science of Expert Testimony, eds. David L. Faigman, Michael J. Saks, Joseph Sanders, and Edward K. Cheng, (2009-2010 edition); Moriarty, Jane Campbell & Michael J. Saks, Forensic Science: Grand Goals, Tragic Flaws, and Judicial Gatekeeping, Judges’ J., p. 16.( Fall 2005).

6 Id.; and see Moenssens, Andre A., et al., Scientific Evidence in Civil and Criminal Cases (5th ed. 2009 Supp.).

7 State v. Brown, 291 S.W.2d 615 (Mo. 1956); State v. Wade, 465 S.W.2d 498 (Mo. 1971); State v. Eickmeier, 187 Neb. 491, 191 N.W.2d 815 (1971); Fletcher v. Lane, 446 F. Supp. 729 (S.D. Ill. 1978).

8 Souza v. United States, 304 F.2d 274 (9th Cir. 1962). 9 State v. Olsen, 212 Or. 191, 317 P.2d 938 (1957). 10 People v. Genrich, 928 P.2d 799 (Colo. Ct. App. 1996). 11 People v. Wilkes, 280 P.2d 88 (Cal. App 1955).

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

132 Forensic Science Evidence

12 State v. Clark, 156 Wash. 543, 287 P. 18 (1930); but compare the earlier

ruling of the same court in State v. Fasick, 149 Wash. 92, 270 P. 123 (1928), aff'd 149 Wash. 92, 174 P. 712 (1929).

13 Ramirez v. State, 542 So.2d 352 (Fla. 1989). 14 United States v. Green, 405 F. Supp.2d 104, 107 (D. Mass. 2005). 15 See generally Firearms and Toolmark Identification, §§ 35.1 et seq, in

Modern Scientific Evidence: The Law and Science of Expert Testimony, eds. David L. Faigman, Michael J. Saks, Joseph Sanders, and Edward K. Cheng, (2009-2010 edition); Nat’l Research Council of the Nat’l Acads., Strengthening Forensic Science in the United States: A Path Forward (2009) at 150-161; Hocherman, Gil, Arie Zeichner, and Tzipi Kahana Firearms - A Review: 2001-2004, 14th Interpol Forensic Science Symposium Report at 47 (2004).

16 See Expert Evidence to Identify Gun From Which Bullet or Cartridge Was Fired, 26 A.L.R.2d 892 (1965); Admissibility of Testimony That Bullet Could or Might Have Come From Particular Gun, 31 A.L.R.4th 486 (1992); Nat'l Research Council Of The Nat'l Acads,, Ballistic Imaging (2008) .

17 Wynn v. State, 56 Ga. 113, 1876 WL 2941 (1876). 18 See Evans v. Commonwealth, 230 Ky. 411, 19 S.W.2d 1091 (1929) and the

discussion of that opinion in Moessens, Andre, et al, Scientific Evidence in Civil and Criminal Cases §6.18; and see Firearms and Toolmark Identification, in Modern Scientific Evidence: The Law and Science of Expert Testimony, eds. David L. Faigman, Michael J. Saks, Joseph Sanders, and Edward K. Cheng, (2009-2010 edition) at §35.3.

19 Goddard, Calvin H., Scientific Identification of Firearms and Bullets (1926) Northwestern University; and see Fred E. Inbau, Scientific Evidence in Criminal Cases, 24 Am. Inst. Crim. L. & Criminology 825 (1933-1934); Tom A. Warlow, Firearms, the Law and Forensic Ballistics, 2nd ed. (2004).

20 Expert Evidence to Identify Gun From Which Bullet or Cartridge Was Fired, 26 A.L.R.2d 892 (1965); Admissibility of Testimony That Bullet Could or Might Have Come From Particular Gun, 31 A.L.R.4th 486 (1992); and see Firearms and Toolmark Identification, in Modern Scientific Evidence: The Law and Science of Expert Testimony, eds. David L. Faigman, Michael J. Saks, Joseph Sanders, and Edward K. Cheng, (2009-2010 edition)at §35.3.

21 Nat’l Research Council of the Nat’l Acads., Ballistic Imaging (2008) at p. 3. 22 Id.

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

Toolmark, Firearms and Bullet Lead Comparison 133

23 See Biasotti, Alfred A., A Statistical Study of the Individual Characteristics

of Fired Bullets, 4 J. Forensic Sci. 34 (1959). 24 American Federation of Firearms and Toolmark Examiners, Theory of

Identification, Range if Striae Comparison Reports and Modified Glossary Definitions - An AFTE Criteria for Identification Committee Report, 24 J. Assoc. of Firearm and Tool Mark Examiners 336 (1992). Further discussions of criteria appear in Masson, J. J.,Confidence Level Variations in Firearms Identification Through Computerized Technology, 29 J. Assoc. of Firearm and Tool Mark Examiners 42 (1997); and J. Miller and M. M. McLean, Criteria for Identification of Toolmarks, 30 J. Assoc. of Firearm and Tool Mark Examiners 15 (1998).

25 Schwartz, Adina , A Systemic, Challenge to the Reliability and Admissibility of Firearms and Toolmark Identification, 6 Colum. Sci. & Tech. L. Rev. 2 (2005).

26 Nichols, Ronald G., Defending the Scientific Foundations of the Firearms and Tool Mark Identification Discipline: Responding to Recent Challenges,522 J. Forensic Sci. 586 (2007).

27 Nat’l Research Council of the Nat’l Acads., Strengthening Forensic Science in the United States: A Path Forward (2009) at 154.

28 Id at 155. 29 See, e.g., Commonwealth v. Heang, 942 N.E.2d 927 (Mass. 2011) (stating

that "Although the NAS report called into question the exactitude with which a forensic ballistics expert could declare a 'match,' there was no evidence before the judge suggesting that firearms examiners could not assist the jury by using their technical expertise to observe and compare toolmarks found on projectiles and cartridge cases"); State v. Green, 2009 WL 3353595 (Ohio App. 2 Dist. 2009); People v. Melcher, 2011 WL 4432935 (Cal.App. 1 Dist. 2011); State v. Fuentes, 228 P.3d 1181 (N.M. Ct. App. 2011) (holding that as to firearms analysis "the reliability of the science in question could properly be taken for granted"); Jones v. United States, ___ A.3d ___, 2011 WL 3847414 (D.C. App 2011) ( in response to the defense assertion that it could show that ballistics was no longer generally accepted in the scientific community, the court stated that "This assertion is simply not true").

30 See, e.g., Turner v. State, ___ N.E.2d ___-, 2011 WL 4479926 (Ind. 2011) ; Commonwealth v. Powell, 940 N.E.2d 521 (Mass. App. Ct. 2011); United States v. Pugh, 80 Fed. R. Evid. Serv. 950 (S.D. Miss. 2009); State v. Adams,

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

134 Forensic Science Evidence

713 S.E.2d 251, 2011 WL 1938270 (N.C.App. 2011); State v. Onunwor, 2010 WL 4684717 (Ohio App. 8 Dist. 2010).

31 United States v. Glynn, 578 F.Supp.2d 567 (S.D. N.Y 2008). But see United States v. Givens, 912 N.Y.S.2d 855 (2010) citing Glynn only as precedent for the blanket admission of firearms testimony.

32 United States v. Taylor, 663 F.Supp.2d 1170 (D. N.M. 2009). 33 United States v. Monteiro, 407 F. Supp. 2d 351 (D. Mass. 2006). 34 Id. 35 Id. 36 United States v. Green, 405 F. Supp. 104 (D. Mass. 2005). 37 Id., at 108-09. 38 See, e.g., State v. Torres, 222 P.3d 409 (Ha. 2009). 39 United States v. Taylor, 704 F.Supp.2d 1192 (D.N.M. 2009). 40 Bureau of Alcohol, Tobacco, Firearms and Explosives, Automated Firearms

Ballistic Technology, available online at http://www.nibin.gov/about/program-overview/automated-firearms- ballistics-technology.html (last visited November 24, 2011).

41 Bureau of Alcohol, Tobacco, Firearms and Explosives, National Integrated Ballistic Information Network, available online at http://www.nibin.gov/ (last visited November 24, 2011); and see, e.g., California Department of Justice, NIBIN Program - Automated Firearms Evidence Imaging, available online at www.crime-scene-investigator.net/CAnibin.pdf (last visited November 24, 2011).

42 Puente, Leo´n, Fernando, Automated Comparison of Firearm Bullets, 156 Forensic Science International 40 (2006).

43 Bureau of Alcohol, Tobacco, Firearms and Explosives, Automated Firearms Ballistic Technology, available online at http://www.nibin.gov/about/program-overview/automated-firearms- ballistics-technology.html (last visited November 24, 2011).

44 See, e.g., Chu, Wei, et al, Pilot Study of Automated Bullet Signature Identification Based on Topography Measurements and Correlations, 55 J. Forensic Sci. 341 (March 2010).

45 See generally Bullet Lead Analysis §§ 36.1 et seq, in Modern Scientific Evidence: The Law and Science of Expert Testimony, eds. David L. Faigman, Michael J. Saks, Joseph Sanders, and Edward K. Cheng, (2009-2010 edition); Bohan, Thomas L., Scientific Evidence and Forensic Science Since Daubert: Maine Decides to Sit out the Dance, 56 Me. L. Rev. 101, 139 (2004).

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

Toolmark, Firearms and Bullet Lead Comparison 135

46 See Bullet Lead Analysis §§ 36.1 et seq, in Modern Scientific Evidence: The

Law and Science of Expert Testimony, eds. David L. Faigman, Michael J. Saks, Joseph Sanders, and Edward K. Cheng, (2009-2010 edition)§ 36:1.

47 For a general description of the theory of bullet lead analysis, see Koons, Robert D. and JoAnn Buscaglia, Forensic Significance of Bullet Lead Comparisons, 50 J. Forensic Sci. 1(2005); and Kiely, Terrence F., Forensic Evidence: Science and the Criminal Law (2d ed. 2005) at 199-212.

48 See e.g., United States. v. Davis, 103 F.3rd 660, 46 Fed. R. Evid. Serv. 189 (8th Cir. 1996); State v. Ware, 338 N.W.2d 707 (Ia. 1983); State v. Noel, 157 N.J. 141, 723 A.2d 602 (1999); State v. Grube, 126 Idaho 377, 883 P.2d 1069 (1994); Kiely, Terrence F., Forensic Evidence: Science and the Criminal Law (2d ed. 2005), at p. 235; and Bullet Lead Analysis, in Modern Scientific Evidence: The Law and Science of Expert Testimony, eds. David L. Faigman, Michael J. Saks, Joseph Sanders, and Edward K. Cheng, (2009- 2010 edition) §36.2, at 728-729.

49 United States v. Mikos, No. 02 CR 137, 2003 WL 22922197 (N.D. Ill. 2003). 50 Id. at *6. 51 Id. 52 Nat’l Research Council of the Nat’l Acads., Comm. On Scientific

Assessment Of Bullet Lead Elemental Composition Comparison, Forensic Analysis: Weighing Bullet Lead Evidence (2004), available online at

http://books.nap.edu/openbook/0309090792/html/index.html (last visited December 14, 2011).

53 FBI Press Release, National Academy of Sciences Releases FBI- Commissioned Study on Bullet Lead Analysis, (February 10, 2004), available online at http://www.fbi.gov/news/pressrel/press-releases/national-academy- of-sciences-releases-fbi-commissioned-study-on-bullet-lead-analysis (last visited December 14, 2011).

54 FBI Press Release, FBI Laboratory Announces Discontinuation of Bullet Lead Analysis, (September 10, 2005), available online at http://www.fbi.gov/news/pressrel/press-releases/fbi-laboratory-announces- discontinuation-of-bullet-lead-examinations (last visited December 23, 2011); and see Charles Piller, FBI Abandons Controversial Bullet-Matching Technique, L.A. Times, Sept. 2, 2005, at A38.

55 Bullet Lead Analysis, in Firearms and Toolmark Identification, in Modern Scientific Evidence: The Law and Science of Expert Testimony, eds. David L.

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

136 Forensic Science Evidence

Faigman, Michael J. Saks, Joseph Sanders, and Edward K. Cheng, (2009- 2010 edition) at 731.

56 See, e.g., Ragland v. Com., 191 S.W.3d 569 (Ky. 2006). 57 See, e.g., Clemons v. State, 392 Md. 339, 896 A.2d 1059 (2006). 58 See Ragland v. Com., 191 S.W.3d 569 (Ky. 2006); Clemons v. State, 392

Md. 339, 896 A.2d 1059 (2006); State v. Behn, 868 A.2d 329, (N.J. Super. Ct. App. 2005).

59 United States v. Berry, 624 F.3d 1031 (9th Cir. 2011) at 1040.

C o p yr

ig h t ©

2 0 1 2 . L F

B S

ch o la

rl y

P u b lis

h in

g L

L C

. A

ll ri g h ts

r e se

rv e d .

Forensic_Science_Evidence_Can_the_Law_Keep_Up_with..._----_(Chapter_5_Pretrial_Forensic_Issues)
Forensic_Science_Evidence_Can_the_Law_Keep_Up_with..._----_(Chapter_10_Bite_Mark_Analysis)
Forensic_Science_Evidence_Can_the_Law_Keep_Up_with..._----_(Chapter_11_Toolmarks_Firearms_and_Bullet_Lead_Comparison)