made please the court my name is ingrid gill and i represent joe jones in the fifteen to twenty minutes allocated to today's or arguments i'd like to address the first issue raised in appellant's brief and address the issue raised in the court's order of aug twenty seventh tw the first issue is the state failed to lay a proper foundation for the expert firearm examiners testimony regarding the identification of individual characteristics and also the basis of the opinion that there was sufficient agreement based on those individual characteristics at trial the state brought out and firearm examiner justin bar testified that individual characteristics have the irregularities or imperfections that are caused by the manufacturing process due to the use or abuse of the tool he testified that that why seventy one rectifier he also testified a particular eye or firearm will have its own set of individual characteristics that set it apart from other firearms and he said that the basis for an identification using pattern matching methodology is sufficient agreement of class and individual characteristics the prosecutor in the case then posed the question to this examiner did you identify the individual characteristics of the evidence fired b the examiner replied can you explain what that means the prosecutor then stated i will get back to it the prosecutor didn't and then both the direct examination and cross examination this examiner never provided forensic testimony that he had ever identified the basis of his conclusion was the theory of identification is based on sufficient argument agreement of class and individual characteristics the problem with this case is in science zero has a numerical value if there are zero characteristics individual characteristics observed on the fire bullet then his testimony is not perjur but it's misleading but are we talking about science here is this scientific determination it is not a scientific under traditional mccroskey used in biology or firearms examination to not identify the end of it individual characteristics based on their definition of the pattern matching theory a spouse by  association a firearm in tool mark examiners this is their theory sufficient agreement can there be sufficient agreement if there is zero observed individual characteristics  hasn't cross examined that he was cross he was cross examined on is lack of detail all of the individual and class characteristics but the the cross examination did not say and if there is zero areas of agreement for individual characteristics you would still find it wasn't us that question the burden of proof to lay a foundation this on the proponent of evidence three the prosecutor had the burden of proof to lay the foundation the foundation is the fact that there is a traditional there is an individual characteristic to shift that bird into the for defense i unconstitutional shift in of the burden then to the when you say the foundation i think you're combining the foundation with the substance of the opinion the foundation is that he's an expert in the field that was stipulated to that he employed methods consistently employed by experts in the field there's no dispute about that and that he actually did what he said he did that is he confirmed that they asked the foundation when he then says my opinion is there is a match that doesn't mean there is no foundation it doesn't go back in invalidate the foundation tell me how it works the foundation is that he is using his expert testimony is testimonial in nature it is based on observed fact that only he sees under the microscope the premise of the theory has to have underlying facts and as a testimonial witness even under expert rules of seven zero five and even seven no three in terms of admissibility that is part of the theory that there is of the season was file fired from the defendant's gun state and his examination and at the end of all the testimony that and having stipulated that he's an expert that he employed the methods regularly employed in the respectfully disagree that there is no evidence since he can answer the suppose if a question is there an individual characteristic determination if he hasn't determined it then there's a question as to whether in their of class an individual characteristics directing your attention to what the record five why seventy two is that it doesn't say under whose theory you can have sufficient agreement of the class characteristics which are established that were not dispute in class characteristics or establish what we're saying is that as a minimum foundation requirement you also have to require these forensic examiners who are employed by police departments to say i determined a minimum number one strike nation what what what case you're you're drawing an analogy i assume to fingerprint examiners who do here kind of loose minimal number of matching areas to say one fingerprint matches another is there any case that has transposed the at into firearms exactly i would in firearm examination and latent print examination no quarter of review has been presented evidence of this nature where the firearm examiner cannot answer the question on direct or on cross was there a determination of an individual characteristic it goes to the foundation what about o'neil all neil is interesting because if you look at o'neill o'neill requires you experts opinions must be based on facts and evidence that's o'neill we have no evidence that there was actually an individual characteristic on the fire bullets at miss ability of expert testimony is conditioned upon laying the proper factual foundation we have no factual foundation that there is an individual characteristic present on the fire w must testify as to facts personally known to him he must testify to those facts which would answer but which he did in the class characteristics he said yes but it was that we don't i mean see right ok but he didn't identify ninety one individual characteristics in there and that the individual characteristics are are unique to that particular gun it's not all those thirty eight caliber guns or manufactured but yes the theory is is that the individual characteristics again the microscopic imperfections irregularities asians that are part of the manufacturing process but also come from the use or abuse of the fire bullet so  only basis scientifically trade artistic whatever you want to call firearm examiners under friday it's the only thing to distinguish whether this bullet was fired from th thirty eight caliber automatic firearm recovered from the defendant's home or the thirty eight revolver that the defendant asserts was used by the two assailants who he claims to kill or by some other thirty eight that was made by the same manufacture yeah but there must be a million thirty etc well thirty exactly and so without those individual characteristics with him not being able to identify even one what what  if he if he had identified even one this would be an issue this wouldn't be an issue your honor because again the courts a review are experts in the law they're not experts in forensic science but at a minimum you need a minimum degree of a dance you need a fact i would propose it might not be generally deceptive under science but if the court had  means you haven't laid the proper foundation under the experts theory so i'm not attacking the theory i have because we're not scientists but we are experts in the law indicia of scientific principles behind it he's not he's he's not recorded and his work bench notes the individual characteristics and contrasts if you look at the firearm the last characteristics is a workbench and he notes the specifics he's no other analysts can actually look at his case file and make an independent expert opinion based on what he's written because his opinion is too subjective well but then the define unsought and was frantically to have the gone and the recovered in test fire bullets examined by an independent examiner of defendant's choosing there is a suggestion in the record that the expert retained by the defendant reached the same conclusion as the expert retained by the state what do you make of that i would disagree i think we're going into impermissible shifting of the burden of proof on that is  defense and i don't think the defense had a burden i'm not talking about a burden your your argument here is that the defendant was he under the care in his cross examination of the expert and prejudice by the jury's consideration of this expert opinion because he had no idea what the basis for the state's expert opinion was but the record discloses that the defendant he had an expert examined the same evidence by mistake the defendant's expert's opinion was returned to the state and there is a representation true that the defense expert reached the  confrontation sixth amendment right to cross examine the examiner based on his knowledge of the facts if he refuses to disclose whether he constitutional basis it's not articulated well in stafford and the court didn't go into the testimonial nature of the firearm examiner as they have under seven o three and subsequent decisions after william versus scott were you know they really went into detail about what makes a testimonial in nature to have a confrontation issue it has to be testimonial in nature they didn't address that  friday issue i would raise it in the sense that this examiner presented at trial i'm not a new and novel way of interpretation out in the individual characteristics that he didn't have to actually have any characteristics that in other words most responsible firearm examiners will note in a workbench will testify to the court even if it's one strike and it's one scratch that was unique that matched the evidence fired bolette to the two test fired bullets he doesn't do this this is a regional this is new and novel his application of that pock of traditional pattern match and theory identification that his own no organisation again association of firearm and to mark examiners it wasn't raised at trial i realize it's a forfeiture of the party but it doesn't bar the court to really seriously consider that just in bars opinion is an outlier no court has ever present presented with facts we're not talking about his posse as justice the dissented in safford we're talking about zero numerical value ciro and at a minimum all i'm asking the court to say that that there was an improper foundation and to reverse this conviction and not only that th question then becomes did double jeopardy attach because if you reverse his conviction on the lack of foundation you're basically telling this analysts on his novel method subjective  individual characteristics just testified to once great stations we can't cross examine you because you don't record it you don't attend a fire you don't notify your coworker here's the individual the one haitian that i'm basing my opinion his supervisor can't even quality control quality assurance do a peer review and even his peer review process is not under their own theory another words factual observations under the microscope only mean you're enhanced in something you see the interpretation did require expertise in reversed and remanded for a new trial the danger in this case when you're talking about a police officer or a police employee is they would have to change they would have to do the testing over because there's no way to guarantee that he wouldn't you know that he would change his testimony on the absence well they have a photograph of what he saw on the microscope they didn't introduce that is evidence that it does exist i think the problem with though what are you looking at you're still going to act another expert they could do the evaluation over but his testimony is totally useless to another with the the other divisions conclusion because i actually think that at salman or had established enough that it was science the did the talking point about error rate and validations are probably stick models that are not always used in every science and so degrees of certainty the fact that you don't use that language is not a time apart it means that in the science practice the methodology you might not precisely for that reason and the state actually the judge didn't rule on it the state decided on their own that they were not going to present this as science and i couldn't find anywhere where they actually used the word of science and this is the analysts didn't use the word have to move on to whatever other topics you have your honor in reference to the admissibility that you raised i would say that a subjective opinion that in this case where he doesn't say it's based on any guidelines that he doesn't document it is a novel new approach that this court has not seen before and his application of that part of the pattern matching methodology doesn't meet the scientific the minimum standards under established additional president and i would like to reserve any remaining time your honor exceeded my time weight that should be given to that testimony justin barr was stipulated to as an expert witness and he testified before the court as to his qualifications as an expert witness he's a trained firearms examiner he has a degree in science he testified that he had received and there is no objection to this he had received two years of firearms training and additional training throughout it's clear that he was  qualified he testified with us and correct but because he was testified that he was an expert witness he was accepted as an expert witness then his testimony would be governed by the rules seven o five and wilson versus clarke which says that the foundational requirements for his testimony are different than they are for other witnesses are you missing the foundation requirement for him to be an expert with a warrant for the facts he's talking about for the facts that he's talking about just in bar the the foundation that he has to provide is that it's established that he's an expert that he perform these tasks that he perform them using methods that are commonly accepted within his field all of which he t to so trust me it and then he specifically went on to talk about what he did and i acknowledge that he just described what he did how how he did it but he never described what the result of it was except for the class characteristics which we've all agreed you know exist in any number of guns it's not going to tell us a unique identifier for this gun in this he well he specifically testified on three occasions that he performed the examination looking for individual and class character and what's not really one individual character is that because excuse me he did not specifically testify that he took he tested for individual characteristics he kept saying if there enough agreement between class characteristics and an individual characteristics then there's a match but he never said what he did to look at for individual characteristics specifically no but he did testify on page  and one fourteen of the record that he performed tests looking for class an individual characteristics microscope correct but he did use of that but he did not specifically testify to what those individual characteristics is what these this microscope and it's got two sides on it he's looking at he's like no in my opinion these match he's got a picture of what stopped the state from bringing in the picture for example or i'll see a side to death why not just bring in the picture and save the jury see this match this match is this see this these two manage these three match what to do th why isn't that what the state wants to do in every bullet case because they've never been required to if you look at the testimony that's been given in these cases and i could say ok counsel technology is advanced we're not eighty years ago or today now where people have power point and cameras and all sorts of equipment and things like even the microscopes are advanced and so just say eighty years ago trust me was enough or maybe it was but today how can trust me be enough but it's individual class characteristics they had knowledge that it's a subjective test based they state that you have to rely on it and specifically they state you have to rely on the subjective judgment of the individual examiner they do but they testify to it how could the defense cross examine the reason well there's no reason that the that the defense couldn't cross examine on the exact questions that you're looking for here what individual characteristics did you look at did you look for strike did you look for bullet that came out of the gun would have on matching done well those are the unique characteristics that you want to look for when you're matching the bullets those aren't explained to the jury or to the trigger fact and not part of the record how can anybody even say oh right he looked at that we don't even know for sure that he did look at individual characteristics because he never testified that he looked at them he said he set it up to look at them and if there was an agreement he'd be satisfied but he never said i looked at individual characteristics he did look at the class characteristics he testified to that but that doesn't make his testimony not admissible it might affect the weight that should be given to that testimony but he can still give his testimony and give his expert opinion under rule seven o five and wilson versus clarke and all of the cases establish that an expert can provide testimony like that and it's admissible it just affects the weight that's given to it and certainly just says your honor came up with four or five questions that could be asked defense counsel could have just as easily ask those questions on cross examination to bring out whether these things were looked for or the fact that he had not testified to any individual characteristics in his direct testimony but it wasn't his  or he established that he followed he testified that specifically he followed the methods and procedures that were commonly accepted in the firearms testing community he explained what those procedures were which are to look for class an individual characteristics and that based on that and his examination under the comparison microscope he found that there was sufficient agreement and it should be pointed out as well that we're not just relying on just invites testimony he also testified that his work was verified by another examiner who also examined the two bullets or all of the bullets side by side under the comparison microscope and the first of all was it's a blind with it was there any lin statistically whether it's one percent of the cases in which there's a disagreement or thirty percent we just don't know because we don't know how reliable the verification process is we don't know as you go to the foundation or the way again it goes to the weight that's given to the testimony and it doesn't go to the admissibility of the testimony he's an expert witness we rely on his testimony in order to clarify things that an ordinary lay person would not understand and the testimony that he gave explained his procedure explained the methods that he used to explain that those methods were the ones that were generally accepted and that is enough for him to offer his expert opinion which was that there was substantial agreement trust is enough if you even said bad we have something but there's nothing here but i would disagree with that i would that based on the record where he says i performed these tests i looked for class and individual characteristics and i found that there was sufficient agreement based on my examination using this procedure i would say that based on that you could infer from that testimony that he found class in the individual characteristics and i'm sorry if you if you look at the o'neill case which is cited in my brief in that case the court said if the as long as you explain the procedure that was generally used and you provide information about the method that you use that that's sufficient and that's exactly what justin by did here also says that he establishes that there are basis for his opinion based on facts known only to him he has to testify to those facts whereas this testimony about those fans his testimony is i look for class and his testimony recess procedure where's his testimony about the fact that he identified in the individual characteristics but the o'neill case doesn't say that short of him specifically saying i found three individual characteristics that's enough but obsessed let's say one the o'neill case doesn't say short of me finding one individual characteristics my testimony that so we're only talking with individual characteristics and you know you can't give us one because there isn't any because there doesn't have to be there's there's no case out there that says a firearms examine r or even that you know i too mark examiner has to specifically testify to the explicit individual characteristics that they observed they have to testify to the methods that they use that they have to testify that those methods are commonly accepted and that's the foundation for their testimony you know you can talk about what they found in order to reach your conclusion for their testimony to be admissible you know as to the weight that should be given to that testimon question and the weight of mr burrs testimony was the centerpiece of the defense closing argument it was and it's clear it's been clear in the circuit court in the  ellate briefs and in that the question has always been the not the admissibility of the testimony but the weight that should be given to that testimony and i'm not sure i agree with you i think the defen point that the issue of background and issue but in using the term they're using the term foundation but what they're really talking about is the weight that should be afforded to that testimony and i don't think this is that at all i mean i think that's exactly what they're not in the appellate argument i agree they're saying something different well in their motion they were talking about the foundation trial it right in the motion they say they're specifically talking about the fact and the objection that's made during trial it's based on well as far as the inability for us to proceed if this testimony was excised you know this was issue that was raised before the court certainly there would arguably be another examiner who we could potentially call there was another examination made already of the bullets in this case and that would be the defense examiner certainly if this court would like me to address based on the facts and ins we have here before us this is a case of first impression where the court is looking at the record and there is an absence as zero numerical indication of any individual characteristic no other to dish or do to show decision has had to address the issue this was an unusual case where an analysts just couldn't answer the simple question posed by a prosecutor did you determine an individual characteristic of the fired gun what the state is arguing if you argue hypothetically if their eyes  individual characteristics and it goes to weight i think the confrontation clause requires issue as the state because the state also has an ethical duty as a prosecutor that's now being triggered  disclose the fact because again this biased testimony concerning the individual characteristics of the evidence fired bullet strengthen the state's case no other evidence of individual care characteristics of the fire bullet is presented there is an absence of cooperate in scientific testimony the state's suggestion that you use a non testimonial defense expert is unconstitutional outright i'm just going to say that because actually there it's it was unconstitutional to force the disclosure of the nine testimonial defense expert if that's what happened  wait this is on the cross examination their shift in the burden for the defense to lay the foundation you can't cross examine something that's not there again i would actually say that the trial there was this nonspecific opinion on heard by the prosecution we had the own idea we had no idea how to cross examine this because we we didn't know the basis but the record discloses that the defendant did retain an expert did do the testing he did get a report and so the claim that i can't cross examine this expert because i  idea it's something i have a hard time ok the cross examination of the expert regard and how he determined the imperfection irregularit goes to both the fired bullet and the test fired bullet clearly he cross examined on the test fired bullet but i think the court has to be careful to shift the burden of laying the foundation on the defense you know we did cross examine but again we didn't have that numerical value of zero to cross examine on because if you had that numerical value of zero characteristics i foundational requirement if you didn't lay the foundation as the prosecutor you are shifting the burden onto this defense to cross examine a nonexistent fact i think that's what my concern in this line of examiner who's testifying solely on his subjective opinion and his approach is new and novel because i really have not seen any case run at firearm examiner hasn't been willing or latent print examiner has been willing to say i found one point of similarity is what they use in late that there is a copy of law about latent print exam that talks about the number of points of identification there isn't any body of law regarding firearms examiners and that the standards that the national organization uses are nonspecific they don't say a firearms examiner must identify one two three or any number of individual characteristics no those decisions are not referring to individual characteristics they're referring to points of similarity or sufficient agreement of the individual characteristics and the class they didn't addressed specifically the issue it's because this is a sub process again the methodology is pattern matching theory proposed by the american x i mean the association of firearm and to market examiners the premise the underlying premise of the theory is that you make an individual characteristic identification a determination of a single minimum single again if  science has numerical values you have to make a minimum of a zero match has to be something there to match all you have present here is a matching of class characteristics so we're addressing unfortunately seventy three and seven o five in this case you really have to interpret them as they go together because this is such a novel fact pattern there is no decision to address in the absence of stafford goes doesn't actually say zero they say possibly that to the point that the methodology the lack of documentation but this this case is quite distinguishable we have zero evidence of a single that would constitute a class characteristic so it triggers we did not raise admissibility but again the court is not barred from considering it did his individual approach knowledge this was it was the subject of cross examination it wasn't talking about it not calibrated microscope were not accredited laboratory it was stipulated that he's an expert in the field by experience  the qualifications don't make the opinion expert testimony merely qualifies you to testify that beyond your eye witness identification a member just in bars an eye witness as to what he sees under the microscope his expertise is based on the strike nations if he observed any we have no evidence that he says he observed any and so we're left to conclude that his opinion views in a generally recognized accepted pattern matching their way of sufficient agreement in the class and individual characteristics we have to rely on his subjective opinion that really has no scientific trade or lab practice i mean he doesn't establish that the lab allows him to do this to say when he's asked by a prosecutor did you determine the individual characteristics of the firearm he write an invasive answer by saying could you explain what you mean on a question that was very simple and so there's a real my concern is is that this he's either incompetent or there's might this might be a case of forensic fraud and the court has a duty on its own to say at a minimum illinois state police firearm examiners we want some evidence some fact if you're going to use a generally accepted methodology because we're not disputing the generally accepted methodology to dispute in this it seems that his determination of individual characteristics is novel it's new it's something we have not seen and that's triggered by robinson again these reversed and despite the photon we're not actually not saying that you have to admit the photograph as to lay a foundation this is real simple you just have to state a fact once ration i would say that you have to send a strong message he was extensively cross examined ok double jeopardy has attached there was a confrontation cla we did strenuously without him permits constitutionally shifting the burden of proof was the way the foundation on the individual characteristic and i think the court has to seriously consider strong message that double jeopardy attaches because what are the facts and justice in bar provide that he didn't provide i'm vigorous cross examining leading our lives i know it's something for you to skate i understand