under united states versus please the court mr gill appeals for his conviction for possession of a firearm and ammunition crucial evidence admitted against mr gill it was the testimony of a new york city police detective testifying as a ballist expert that a shell casing found in the street was fired from a particular gone to a reasonable degree of certainty within the field of ballistics this is a bit over defense objections without a doubt we're hearing and based on the fact that this kind of evidence had been admitted for many years despite two recent national academy of science reports questioning the underlying validity of individual firearm identification the rulings we appeal are the court's refusal to hold a dob memos from both sides about the issues the governor issues the williams issues everything else there's proper by the government what more would have happened over here in the district court and have been from well the expert would have had to testify to the basis that the actual specific basis for his opinion which he rightly extensive summary he wasn't cross examined about he wasn't he didn't have to justify it when he testified at trial he was barely able to identify anything he said that if the pictures didn't show what he really saw he would have been grilled on that in a hearing and maybe judge conal would have seen that he couldn't really explain this or he would have had to do a better job and have better photos and bring in more from the lab to to explain to the jury how he came up with this he was like he was cross examined he was cross examine the prosecutor about one of the reports to write he was cross examined about it but he basically denied that the reports that the report did what it what it did he said he he said more than once i believe that this was really an imaging report he kept referring to the two thousand and eight report the original report on ballistics imaging and didn't really do s what he could your honor he did what he could but the jury's still got that you know ballistics expert testified three hundred twenty times a real expert in his field is certain reasonably certain that this was a match let me ask you this basis to think that it would that there would ever be any change and this was admitted based on without a hearing you know actually hearing from the expert but based on the fact that he testified three hundred twenty times and that this wasn't yes i mean judge totals decision does offer an explanation of how the proffered expert opinion derived from ballistics technique the standardized principles the methods i understand your argument that if you'd had a theory you would have been able to test some of these but my point to you is i don't see judge totals opinion ruling i'm correct that is based only on the number of times he had testified or even the frequency with which ballistics evidence had been admitted no you're not i wasn't actually finished with what i was saying it was based on the number of times the fact that this had has been this kind of evidence has been considered reliable for many many years and has been admitted and based on the ballistics fields science and validation studies but the point is that the n a s reports both of them and now again the p k s report call into question as science this about the fact that subjective rather than objective me are used but at one point they say that's by comparison to something like d n a and analysis and the report one of the reports itself says that a matter need not be as subjective as d analysis in order to provide value and what the district court noted was that the false positive rate for ballistics examinations was in the range of one percent so when we take that all together how do we say that the court abused it sticks which is which is a very different thing than individual characteristics they say the committee agrees that class characteristics are helpful in narrowing the pool of tools that may have left a distinctive mark that would be the kind of testimony that says this came from t of gun so it's consistent with however it goes on individual patterns from manufacture from where might in some cases be distinctive enough to suggest one particular source but additional studies should be performed to make the process of individualisation more precise and repeatable so distinctive enough to suggest in some cases it is not even remotely close to within a reasonable certainty a match can be made that that that that is and that's what we're complaining  we're not saying that this could have been invented for what it is but it was admitted for something much more than what it really is now that we know based on science that despite years of of everyone considering from the public to the courts this kind of matchmaking to be reliable it's not it hasn't been established to be reliable and happy with the permitted it's more likely that well that was what was asked for i think that that maybe that even goes too far but that what was the testimony well that would be a much the a much much less you know certain standard for the jury to consider i would it would it would have been i mean if we had gotten that that would have been a lot better and then it could have been probing and what that means also are it is a complicated case but there was basically no evidence without this bullet the gun the government's theory was that he was not charged with the robberies he was so the robberies were not the crimes of conviction he was only charged with possessing the gun and possessing the ammunition there was no evidence connecting him to the gun in the stairwell of his building with sixty two units in a public stairwell in the basement there was no evidence connecting him to that without the ballistic evidence and that was the government's principle theory at trial was that he possessed the gun it's true that they argued strictly as a fall back in one paragraph in their summation referred to the fact that while you can also always convict him of the shell casing don't it didn't say it never said how close some are in the area that was it that's what that's what they had to connect him to that robbery to that particular robbery so even even even proving his guilt  other evidence as well not enough by itself i'm not asking you to act lasted but when you put it together with the shell casing even if even if there's some question about reliability it's reliable often enough to just that he admitted under the wrong standard that when he allowed that there is a gate keeping in screening function that the judge is supposed to do with expert testimony it's not just up to the jury to figure it out during at all does not require a hearing in every case and you know so so you've argued to us that you would have elicited some of the weaknesses but for the judge that you elicited at trial but i'm not sure that you've shown that that would have meant that it would would have had to have been kept out am i missing something well it's perhaps it would have been kept out but what i'm arguing is that now in it given the williams rationale williams the government relies on williams because williams did affirm the admission without a doubt hearing but two things about williams two salient things concerns are with the right don't say it shouldn't be admit it but all of those concerns are concerns that would be addressed in a delbert hearing how does one keep it out well in the in this case it might have been kept out had they had had the expert actually been forced before a judge to reveal his you know his bases and hadn't been able to and he was not really able to a trial you say it might have been i think each test you stated in response to a question it was no renewed application to strike the testimony in light of in light of what cross examination it brought so how do we guess that the judge would have kept it out well we don't need to guess because the the other problem is that it should not have been admitted at all under the standard that that the expert was allowed to testify to that and that's that's really our main argument and had there been a daubert hearing also you know that standard may not probably would not have been allowed and that should have been allowed anyway just based on the science that was before the court that i know you want to research sometimes challenging currently or in using the standard within a reasonable degree of certainty in the field of ballistics nor did he abused his discretion in chief wants to get the government off the government was asked  what the standard that the witness would provide and he said within a reasonable degree of scientific certainty and the government believed that as that was how the witness himself was phrasing his own level of certainty that that was the appropriate level distinguished agency so why is the government doing your honor the government wasn't i don't know that the government was pushing that report they were asked to report back what the experts own level of certainty was concord contradicting this misinformation well your honor as i said what the government was doing was reporting back judge made it very clear that he was going to go with a rigid reasonable degree of certainty in the field and i  that's the charge with medical experts all of whom bring x a certain amount of subjectivity to their expertise exactly right he was looking for something that took away the scientific element it was clear the judge total found he also felt that the term reasonable degree of certainty as opposed to more likely than not was simply inaccurate he was aware of the opinion in the united states v glen that had used more likely than not but he noted that other judges had rejected that and he asked defense counsel to produce any study that had suggested that error rates were anywhere approaching forty nine percent or fifty percent or something that would make more likely than not an accurate standard and they were unable to in their reply brief they even studied the p cast report which cited the discrepancy between what the sort of independent analysis had found in sort of false positives for what had been found in law enforcement studies and the discrepancy was was large undeniably but notably the discrepancy when it came to independent bodies was one in sixty six which is about a one point five percent error rate which is right around error rate that the judge was considering when he allowed when he decided to allow the testimony and with that standard also a reasonable degree of certainty within the field of ballistics the judge appropriately look to not generally the field but also the witness who would be testifying it is one thing in some of the cases in other districts that have had problems with the level of certainty or have decided not to allow someone to state a level of certainty you had experts with far less experience experts who didn't have proficiency testing here was someone who describes the method they used and described that they needed to pass a proficiency test every year which they had passed and a profession test where in effect if you get one wrong you failed and you were sent for retraining so this is someone who describes the methodology he used and was able to destroy demonstrate that when he used this methodology it worked he point in terms of the other evidence there was with respect to just the shell casing in addition to it being found next to a cell phone that had texts from the defendant wherein he responded to someone asking for his information and he gave his name his address and i believe his social security number saying this is my name this is where i live in this is who i am it had pictures of him so when they pulled up photos of the person with that information it had it had  pictures on the phone that matched that person but in addition and something that has not been mentioned this defendant confessed to participating in this robbery and not just participating in it he confessed to both dropping his cell phone at the scene and to firing off a shot he put the cell phone next to the shell casing and demonstrated that this shell casing without the benefit of any of the ballistics evidence was a shell casing that he  possessed the government and that is why the government in addition to its arguments with respect to abuse of discretion which again the government does not believe that judge codell abused his discretion in employing the standard were doing so without hearing but to the extent there was any error it was harmless because there was the shell casing evidence and indeed to even get to the ballistics evidence for the jury teevan consider the ballistics evidence they need to concluded that this defendant possessed the shell casing the match of the two is what makes the ballistic evidence relevant that this shell casing matches this gun they have to accept as a premise to find him guilty of the gun that that shell casing was something he possessed and there was more than ample evidence that that shell casing was what he possessed both through his detailed confession and later from the video where he said these crimes i committed them with on the day of the second robbery the one where the shell casing it shows him leaving the building shortly before the robbery and it shows him returning it shows him returning or i should say what appears to be him he comes in through a different entrance and someone wearing his clothes comes up the stairs a staircase and you just get a glimpse but when he leaves he leaves out the front door there is also evidence on the day that the gun was found of him going to the spot where the gun was which was under a stairwell coming running out of that area going back by the dumpsters looking through to try to find something and then returning up stairs with respect to the first robbery where again the person did identify him in a photo and also described similar to the one that was found there there is video of him not only leaving but him returning  shortly after the robbery holding what clearly appears to be in the video the chain that was taken from the victim he's buzzed the buzzer and he's waiting outside and the chain is dangling there and he tries it on and  takes it off with respect to the hearing as this court made clear in williams there is no requirement that the deborah hearing be held in advance of the testimony certainly there was ample record both from the  briefs and from the information and from the research that judge total himself had done he made clear in his opinion that he had looked at these studies he had looked at the studies that the government referred to about error rates and was satisfied but in addition william says that you can look at the testimony that occurs during the trial prior to the admission of the expert and as this court pointed out when they got to the moment of this is the methodology i'm  used and this is how i employed it there was no objection other than they just said other than the objection they'd previously raised when he walks through and and hit the nature of his match was spelled out through the course of his testimony he talked about the register he did point to one of the practical difficulties of this which is you don't have a comparison microscope in the courtroom you have photos which he acknowledged were gun know here so for all of the foregoing reasons the united states asked that the judgment be affirmed thank you i just have a couple of things one getting to the government's argument that there would have had to be more than a forty nine percent error rate in the list extents thing to make to u anything close to forty nine percent or even ten percent or even five percent error rate that would not that would not allow a reasonable certainty standard two to prevail i mean it's this is not ma did what it what and they did it didn't conduct it but it referred to the only scientifically valid study that has been done since the n a s reports there has been one called the aim study that's in that p cast report i cited in my reply brief and they did a closed s which means that i mean it opens that study which means that there can be found there can be no gun no match where is the sat the ballistics community has been doing close at studies so that there is a match in there somewhere which is it which is a vastly different kind of study and in that the only sign valid study the rates were far different from all of the rates that law enforcement testing has all of this testing has been within the ballistics community which is a law enforcement community which wants to you know has every interest six and it could go up to one in forty two that's the sort of boundaries the first positive rate of point two percent in the law enforcement studies compared to the scientific studies