allowing expert to testify that the firearms match was reached to a “reasonable degree of ballistics certainty” or a “reasonable degree of certainty in the ballistics field”
How later courts described this case
- allowing expert to testify that the firearms match was reached to a “reasonable degree of ballistics certainty” or a “reasonable degree of certainty in the ballistics field”
- “[T]he Court declines to follow sister courts who have limited expert testimony … and, instead, remains faithful to the long-standing tradition of allowing the unfettered testimony of qualified ballistics experts.”
- allowing expert to testify the firearms match was “more likely than not”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ARABIA WHITFIELD, et al. CIVIL ACTION
VERSUS NO. 09-1877 c/w
09-8074
WARREN RILEY, et al.
SECTION M (2)
ORDER & REASONS
Before the Court is the Daubert motion in limine of plaintiff Arabia Whitfield to limit
and/or exclude the testimony of Byron Winbush.1 Defendants Warren Riley, Joseph Meisch,
Daniel Scanlan, Greg Lapin, Steven Keller, Marcellus White, Julio Alonzo, Larisa Austin, Regina
Barr, Colette Booth, and the City of New Orleans (together, “Defendants”) oppose the motion.2
Whitfield replies in further support of her motion.3 On April 30, 2021, the Court heard oral
argument and took the motion under submission.4 Having considered the parties’ memoranda, the
record, and the applicable law, the Court issues this Order & Reasons allowing Winbush to testify,
but limiting the degree of his testimony.
I. BACKGROUND
This case arises from the fatal police shooting of Adolph Grimes, III in the early-morning
hours of January 1, 2009. An important factual dispute in this case is (1) whether Grimes was
holding his 9 mm gun in his hand, and (2) if he did have the gun in his hand, whether he fired the
1 R. Doc. 122.
2 R. Doc. 133.
3 R. Doc. 153.
4 R. Doc. 175.
gun at the officers. Grimes had a valid permit to carry the 9 mm Glock he had in his car on the
night of the shooting.5
Detective Ryan Aucoin of the New Orleans Police Department (the “NOPD”) examined
the 9 mm gun at the scene.6 He testified that “[w]hen I racked the slide of the firearm back, a spent
shell casing ejected.”7 Aucoin identified this 9 mm spent casing at the scene.8 Aucoin also testified
that “the weapon was photographed. It was then put in a bag, and then I transported it to central
evidence and property.”9 On January 1, 2009, at 7:12 a.m., Aucoin delivered the gun and spent
casing to central evidence and property clerk, Delores Fleming, who documented them with receipt
number 200900030.10 Whitfield does not dispute the chain of custody for the gun or spent casing.
On January 5, 2009, Sergeant Byron Winbush, a – now retired – NOPD crime technician,
analyzed Grimes’s gun and the spent 9mm casing.11 In the NOPD scientific criminal investigations
division ballistics report, he concluded that:
Examination revealed that specimen 2 [the fired 9mm cartridge case recovered from
the scene] was fired from specimen 1 [Grimes’s 9mm glock recovered from the
scene]. Specimen 1 was test fired and is functional.12
These two sentences represent the entirety of Winbush’s documented analysis. However, Winbush
was deposed at length about his analysis. He stated at his deposition that he tested the gun by
firing bullets from Grimes’s gun into a water tank.13 He then compared the test cartridge cases to
the one recovered at the scene to conclude there was a match.14 Through this match, Winbush was
5 R. Doc. 122-22.
6 R. Doc. 122-24 at 2.
7 Id. at 7.
8 Id.
9 R. Doc. 133-1 at 5.
10 R. Doc. 122-4 at 11.
11 R. Docs. 122-1 at 6; 122-9 at 10.
12 R. Doc. 122-9 at 10.
13 R. Doc. 122-23 at 2-3 (Winbush testified that “usually it’s two rounds that’s fired” but did not indicate
how many rounds were fired in his test-firing of Grimes’s gun).
14 Id. at 4.
able to conclude that the spent casing at the scene was fired from Grimes’s gun.15 He explained
that, after his test, he put the evidence into a clear plastic bag, taped it, marked it with his initials,
and sent it to the central evidence department.16 On January 6, 2021, counsel for all parties
examined the evidence at the NOPD crime laboratory.17 They found four casings from the test-
firing to be improperly marked in that they were placed in an unlabeled brown paper envelope
with a piece of tape labeled “Jefferson Parish Sheriff’s Office,” not NOPD or NOPD crime
laboratory.18 Also, Winbush’s initials did not appear on the envelope.19
Defendants did not identify Winbush as an expert in their witness list.20 Nor did they
provide an expert report or expert disclosures. Whitfield requests that the Court “exclude the
testimony and any mention at trial [of] an empty shell casing allegedly removed from the decedent
Grime [sic] 9mm Glock pistol.”21 In her reply, Whitfield clarifies this request: She says that
Winbush should be allowed to testify as a fact witness, not as an expert, but he should “be limited
to testifying [that] the Glock 9mm of Grimes appeared functional and did not appear stove piped
or jammed, and be barred from expanding his testimony to include his examinations and
conclusions that the empty cartridge matched the Grimes 9mm Glock since the evidence was
improperly marked and not preserved.”22
II. PENDING MOTION
In her motion, Whitfield argues that testimony from Winbush concerning the spent 9mm
casing must be excluded because “Winbush failed to properly test, store, seal, photograph, and
15 Id. at 3-4.
16 Id. at 5.
17 R. Doc. 122-1 at 6.
18 Id. at 6-7.
19 Id. at 7.
20 R. Doc. 112 at 3.
21 R. Doc. 122 at 1.
22 R. Doc. 153 at 2.
label the evidence of any testing done of the 9mm casing.”23 Whitfield claims that there is no
proper chain of custody for the tested cartridges.24 Whitfield argues that because the ballistics
report is only a two-sentence conclusion and the evidence from the tests is tainted, there is no
opportunity for her to assess Winbush’s methodology.25 Whitfield says that Winbush’s failure to
perform an industry-standard photographic ballistic comparative test shows that his methodology
is flawed.26
In opposition, Defendants argue that Winbush was not required to submit an expert report
because he was not retained or specially employed to provide expert testimony within the meaning
of Rule 26(a)(2)(b) of the Federal Rules of Civil Procedure.27 Although Winbush is employed by
the NOPD, Defendants submit that he did not regularly give testimony so no report was required.28
Defendants argue that Whitfield’s concerns about Winbush’s report, methodology, and tests
(including the evidence from the tests) can be better addressed during cross-examination at trial
rather than through the exclusion of his testimony.29
III. LAW & ANALYSIS
A. Daubert Standard
A district court has discretion to admit or exclude expert testimony under the Federal Rules
of Evidence. General Elec. Co. v. Joiner, 522 U.S. 136, 139 (1997). In Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993), the Supreme Court held that Rule 702 requires
a district court to act as a gatekeeper to ensure that “any and all scientific testimony or evidence
admitted is not only relevant, but reliable.” Rule 702 of the Federal Rules of Evidence provides:
23 R. Doc. 122-1 at 6.
24 Id. at 6-7.
25 Id. at 7-8.
26 R. Docs. 122-1 at 11-13; 153 at 2.
27 R. Doc. 133 at 2-4.
28 Id. at 4-5.
29 Id.
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
case.
The reliability inquiry requires a court to assess whether the reasoning or methodology
underlying the expert’s testimony is valid. See Daubert, 509 U.S. at 592-93. In Daubert, the
Supreme Court listed several non-exclusive factors for a court to consider in assessing reliability:
(1) whether the theory has been tested; (2) whether the theory has been subjected to peer review
and publication; (3) the known or potential rate of error; and (4) the general acceptance of the
methodology in the scientific community. Id. at 593-95. However, a court’s evaluation of the
reliability of expert testimony is flexible because “[t]he factors identified in Daubert may or may
not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular
expertise, and the subject of his testimony.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150
(1999) (quotations omitted). In sum, the district court must ensure “that an expert, whether basing
testimony upon professional studies or personal experiences, employs in the courtroom the same
level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id. at
152. The party offering the testimony must establish its reliability by a preponderance of the
evidence. See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998).
Next, the district court must determine whether the expert’s reasoning or methodology
“fits” the facts of the case and whether it will assist the trier of fact to understand the evidence,
i.e., whether it is relevant. Daubert, 509 U.S. at 591. An expert’s testimony is not relevant and
may be excluded if it is directed to an issue that is “well within the common sense understanding
of jurors and requires no expert testimony.” Vogler v. Blackmore, 352 F.3d 150, 155 (5th Cir.
2003). Further, an expert cannot make “legal conclusions reserved for the court,” credit or
discredit witness testimony, or “otherwise make factual determinations reserved for the trier of
fact.” Highland Cap. Mgmt., L.P. v. Bank of Am., N.A., 574 F. App’x 486, 491 (5th Cir. 2014).
Ultimately, the expert must “‘bring to the jury more than the lawyers can offer in argument.’”
Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir. 1992) (quoting In re Air Crash Disaster at New
Orleans, La., 795 F.2d 1230, 1233 (5th Cir. 1986)).
B. Analysis
“The underlying principle of firearm identification is that each firearm will transfer a
unique set of marks, known as ‘toolmarks,’ to ammunition fired from that gun.” United States v.
Monteiro, 407 F. Supp. 2d 351, 359 (D. Mass. 2006). The Fifth Circuit has explained that “the
matching of spent shell casings to the weapon that fired them has been a recognized method of
ballistics testing in this circuit for decades.” United States v. Hicks, 389 F.3d 514, 526 (5th Cir.
2004). Whitfield does not challenge Winbush’s qualifications as an expert in firearms
identification but limits her opposition to the reliability of Winbush’s test. She makes much of the
fact that Winbush did not complete a photographic ballistic comparison test on the cartridges to
support his conclusion, but instead relied on his own observations. She cites to the following
exchange at Winbush’s deposition to show the need for a photographic test:
Q: Isn’t it a fact that [the photographic ballistic comparison] test needs to be
done to definitively determine that the two cartridges match? You have to put them
under a microscope, I believe it is –
A: Yes.
Q: – and photograph and see if the striations – if I’m using the right term – the
marks on the cartridges from the gun being fired, match; right?
A. That’s correct.30
30 R. Doc. 122-23 at 7.
When read in context, Winbush can be understood to have been answering questions about
what the photographic test would have required had he conducted the test, not whether he should
have chosen to conduct it. This is confirmed by Winbush’s subsequent deposition testimony.
When asked shortly thereafter whether the photographic test is an industry standard, Winbush
stated: “Not necessarily. It’s actually an optional thing because, once again, you’re taking a one-
dimensional photo of a three-dimensional object.”31 Winbush preferred to do a visual comparison
of the recovered casing and the test casings – that is, the three-dimensional objects – as opposed
to a comparison of the one-dimensional photographs. Therefore, Winbush’s failure to use the
photographic test does not support exclusion of his expert testimony, but of course, it can be
attacked on cross-examination.
Whitfield also urges the exclusion of Winbush’s testimony due to his bare-bones ballistics
report and the mishandling of the evidence from his test-firing. But Whitfield fails to show that
Winbush needed to include any more in his report to document the match between Grimes’s gun
and the spent casing based on his visual comparison or that he typically reported more in
conducting such examinations. Whether or not the evidence from his test-firing was mishandled
is also fodder for vigorous cross-examination but not a basis for exclusion of Winbush’s testimony.
This is especially true since there is no dispute that Grimes’s gun and the spent casing have been
preserved and are available to replicate the test-firing and thereby assess the visual comparison
test of casings that was the basis for Winbush’s report.
For these reasons, the Court finds that Winbush’s expert testimony is sufficiently reliable
to be admissible.
31 Id. at 8.
Even if Winbush’s testimony is not excluded, however, the question becomes whether and,
if so, how to limit his testimony to protect against overstated conclusions. “The problem is how
to admit [ballistics testing] into evidence without giving the jury the impression – always a risk
where forensic evidence is concerned – that it has greater reliability than its imperfect methodology
permits.” United States v. Glynn, 578 F. Supp. 2d 567, 574 (S.D.N.Y. 2008). Other courts have
prevented firearms examiners from testifying that they are 100% certain of their conclusions. See,
e.g., United States v. Ashburn, 88 F. Supp. 3d 239, 249 (E.D.N.Y. 2015) (allowing expert to testify
that the firearms match was reached to a “reasonable degree of ballistics certainty” or a “reasonable
degree of certainty in the ballistics field”); Glynn, 578 F. Supp. 2d at 575 (allowing expert to testify
the firearms match was “more likely than not”). At oral argument, Defendants’ counsel indicated
that he intended to offer Winbush’s ballistics opinion at this civil trial in terms of “more likely
than not.” Thus, this Court takes the course marked by its sister courts and will limit this aspect
of Winbush’s testimony. But see United States v. Casey, 928 F. Supp. 2d 397, 400 (D.P.R. 2013)
(“[T]he Court declines to follow sister courts who have limited expert testimony … and, instead,
remains faithful to the long-standing tradition of allowing the unfettered testimony of qualified
ballistics experts.”). Therefore, at trial, Winbush will only be allowed to testify that he matched
Grimes’s gun and the recovered casing to the degree of “more likely than not,” but not more.
IV. CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that the motion in limine of plaintiff Arabia Whitfield to limit and/or
exclude the testimony of Byron Winbush (R. Doc. 122) is GRANTED IN PART and DENIED IN
PART. Winbush is allowed to testify as an expert if he is found to be properly qualified at trial,
but he must limit the certainty of his overall conclusion to “more likely than not.”
New Orleans, Louisiana, this 5th day of May, 2021.
________________________________
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE