Forensics

Jersey City, New Jersey – Scientific, or seemingly scientific, evidence is often the most damning and dangerous evidence presented against a defendant at trial. The impact of scientific evidence, such as fingerprints and DNA, is so strong it has a name: The CSI Effect, which is a reference to the TV show CSI that focuses on these types of evidence. The effect works both ways, jurors accustomed to seeing scientific evidence on TV expect such evidence to be presented in real life, and, if it is not, they are much more skeptical of the evidence. On the other hand, where such evidence is presented in real life, the jurors often accept it as gospel and the chance of acquittal is dramatically reduced.

Another type of purportedly scientific evidence often seen on TV and in real life is firearm identification. The theory behind traditional firearm identification is to compare markings on the inside of the barrel of the firearm to markings on the exterior of the bullet. Theoretically, these markings are unique. Though this “scientific” comparison is nothing more than a state lab employee looking at these two markings under a microscope and deciding whether they are similar enough to be considered a match or not. There is no test, checklists, markers or data-driven method – it is an eye test followed by an opinion that gets passed off as science. The Supreme Court noted recently in State v. Ghigliotty, decided on April 20, 2020, that “Neither the underlying principles nor the methodology has changed significantly during the last 100 years.” The foremost industry publication on firearms identification acknowledges the process is “subjective in nature.”

In Ghigliotty, over the span of more than a decade, multiple firearms analysts were unable to conclude the bullets recovered in a homicide matched those from bullets test-fired from Ghigliotty’s gun. Eventually, the investigators used the BULLETTRAX,  a new technology for firearms identification. The program uses computer automation and confocal microscopy to scna the surface of a bullet, read its topography in 3D, and created 2D and 3D images of the bullet’s surface. The program scans 1.6 millimeters of the bullet at a time and “stiches” those images together to make a complete image of the bullet. When that process is complete, images from different bullets are compared using another software program called Matchpoint. After using the BULLETTRAX technology, which the analyst testified help him locate points of focus on the bullets, the analyst testified he did further comparisons on his own with his microscope that led him to conclude the bullets were fired from the same gun.

Ghigliotty’s defense attorney moved to preclude or limit the expert testimony of the analyst because the technology he used had never been reviewed for its reliability and because that technology influenced the analyst’s opinion. The trial judge agreed that a hearing to determine whether this technology is scientifically reliable would be necessary. The State appealed and the Appellate Division affirmed the trial court’s decision. At this time, it is unknown whether the State is pursuing further appeal to the Supreme Court or not.

The outcome of this case is still to be determined at trial, after what will be long hearings on the scientific reliability of this new technology. It is also possible that the burden of such a hearing will deter the State from prosecuting Ghigliotty and could lead to dismissal or to a favorable plea deal. The lesson of this case for any Jersey City criminal defense lawyer and those charged with crimes in New Jersey is to not accept what the State says as gospel; challenge everything that can be challenged and take out the State’s best (or only) evidence before it even gets to trial.