Lack Of Publications Did Not Disqualify Expert Testimony

On obstruction of justice count concerning murder of a witness, rifling and ballistics expert noted gun model possessed by defendant based on serial number and confirmed number of grooves matched the bullets which killed victim, in United States v. Mikos, 539 F.3d 706 (7th Cir. Aug. 25, 2008) (Nos. 06-2375, 06-2376, 06-2421)

A recent Seventh Circuit case considered whether expert testimony could be admitted in the absence of any publications in the field supporting the theory used.

Under FRE 702 and Daubert, the trial court fulfills a “gateway” role before admitting expert testimony. In Daubert, the Supreme Court identified four non-exclusive factors to assess the reliability of proposed expert testimony (whether “the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue”). The five factors include:

  1. Whether the proposed theory or technique has been tested;
  2. Peer review and publication;
  3. The potential rate of error of the method used and the existence and maintenance of standards controlling the technique's operation;
  4. The existence and maintenance of standards and controls; and
  5. Whether the theory or technique has been generally accepted by the scientific community.

See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993). In Daubert, the Supreme Court explained the application of the publication factor:

“Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability, and in some instances well-grounded but innovative theories will not have been published. Some propositions, moreover, are too particular, too new, or of too limited interest to be published. But submission to the scrutiny of the scientific community is a component of ‘good science,’ in part because it increases the likelihood that substantive flaws in methodology will be detected. The fact of publication (or lack thereof) in a peer reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised.”
Daubert, 509 U.S. at 593-94 (citations omitted).

The expert challenge arose in a prosecution of a podiatrist for falsely billing Medicare for surgeries when he actually performed routine, non-reimbursable procedures. The defendant provided affidavits and forged the signature of several patients claiming that the surgeries had been performed. One patient began cooperating with investigators and was discovered shot. The defendant was charged with her murder along with fraud and obstruction counts. Prior to the murder, police learned that the defendant possessed several firearms. After the murder, the police confirmed the location of all previously identified firearms except a .22 caliber Herbert Schmidt revolver. Law enforcement also found a box of .22 rounds with twenty missing shells inside the defendant’s car. At trial, an FBI agent firearms’ rifling and ballistics expert testified that the serial number for the missing .22 caliber revolver “revealed it to be a ‘Deputy Combo’ model, and that a database of weapons maintained by the FBI shows that barrels of Herbert Schmidt Deputy Marshal models have eight grooves with a right-hand twist, matching the bullets that killed” the victim. Mikos, 539 F.3d at 708. The expert also test-fired a Deputy Marshal revolver from the FBI’s armory and confirmed that “the barrel had eight grooves and a right twist.” Id.

The defendant objected to the expert testimony, arguing that “there is no scholarly literature on the rifling of gun barrels, and the FBI’s database is inaccurate (or at least incomplete).” Id. The defense claimed the defendant owned a “Model 21,” which had six grooves, and did not own either a “Deputy Combo” or “Deputy Marshal.” The trial court concluded the expert testimony was reliable based on the FBI’s rifling data. The jury convicted the defendant and sentenced him to death after concluding he had committed four aggravating factors in committing the charged murder.

On appeal, the Seventh Circuit noted that the absence of scholarly literature did not disqualify the expert testimony, and the expert testimony was helpful in assisting the jury in deciding “whether the missing gun was a model that would have produced bullets with eight grooves.” Mikos, 539 F.3d at 711. The testimony was offered to show that the “rifling on the bullets did not rule out a Herbert Schmidt Deputy Combo revolver.” Id. The circuit explained that the expert testimony was “based on the FBI's rifling database [and accordingly] may not have been ‘scientific’, but it was both ‘technical’ and ‘specialized’. Rule 702 does not condition admissibility on the state of the published literature, or a complete and flaw-free set of data.” Id.

The Mikos case illustrates that the Daubert factors are not exclusive. The fact that the publication factor was missing, did not bar the expert testimony, as long as other bases adequately established the reliability of the expert testimony.

Federal Rules of Evidence