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Firearm and toolmark opinion evidence—in particular firearm identification testimony—has been admitted in courts in the United States for over a century, but the milestones of Daubert and the “NAS Reports” mark changes in the legal landscape concerning the admission of certain firearm and toolmark opinion evidence. The seminal event of the 1993 United States Supreme Court opinion in Daubert v. Merrell Dow Pharmaceuticals led to challenges to the admission of firearm and toolmark opinion evidence, but more challenges resulted from the publication of two reports by the National Academy of Sciences in 2008 and 2009. In 2008, the National Academy of Sciences published “Ballistic Imaging”, which questioned the fundamental assumptions of uniqueness and reproducibility underlying firearm identification evidence. The 2009 publication of the National Academy of Sciences Report Strengthening Forensic Science in the United States: A Path Forward further sparked challenges to the admission of firearm and toolmark opinion testimony and identification conclusions offered by experts. Published so closely in time, it is difficult to separate the legal impact of the two reports and for purposes of this article the two reports will be considered together. In this article, the “post-Daubert” and “post-NAS Reports” decisions concerning the admission of firearm and toolmark opinion evidence are discussed with a focus on cases involving firearm identification evidence. As with other areas of forensic science, neither Daubert nor the NAS Reports resulted in the widespread exclusion of firearm and toolmark opinion evidence but the legal landscape has been altered with some courts limiting opinions of certainty and with broader recognition of the reliance on the subjective findings of examiners in firearm identification evidence. Keywords: firearm comparison; toolmark comparison; expert testimony; Daubert; 2009 NAS report; 2008 NAS report; admissibility; identification; absolute certainty |
