Ky. Supreme Court hears arguments on constitutionality of bullet casing testimony
Kentucky Supreme Court justices heard arguments on Wednesday over whether ballistics experts should be able to testify under oath that a bullet casing is a “match” to a specific gun.
The legal question stems from a case involving Joshua Ward, who received two life sentences without parole in 2021 in Boone County for the murders of his former girlfriend Kelli Kramer and her 9-year-old son Aiden.
During Ward’s trial, investigators said they found nine shell casings in the apartment where the victims were killed and – using toolmark analysis – compared them to two shell casings from an Ohio farm where Ward would practice shooting targets. A report from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) laboratory found that the bullets from the crime scene and the field casings were identified as “having been fired from the same firearm.” However, the murder weapon was never recovered.
Kentucky Department of Public Advocacy Attorney Kayley Barnes said the shell cases from the farm were the only pieces of physical evidence linking Ward to the crimes. She also said that there have not been enough studies conducted to test whether every gun barrel leaves unique marking patterns on bullets.
“There is no database of all the markings that are consistent with all of the guns in the world and all of the guns in Kentucky. We have no way to know how specific and how individualized these markings are,” Barnes said. “We know DNA is different from person to person. We don't have those same databases for ballistics at this point in time to match the degree of certainty of saying it's the same or a match that experts are using.”
Some organizations have called into question the methodology behind toolmark analysis. When a bullet is fired through a gun’s barrel, ridges and grooves in the barrel cause the bullet to spin andleave behind microscopic striations and impressions on the bullet and cartridge case.
When comparing bullets and shell casings, forensic examiners look to see if there is “sufficient agreement” between striations and impressions. If the examiner finds enough commonalities between the samples, they conclude that the bullets likely were fired by the same weapon. However, the National Institute of Justice notes that the process of identification is subjective, and that the process’s conclusions, while founded on scientific principles, are based on each examiner’s training and experience.
In 2017, the Kentucky Supreme Court upheld the use of ballistics analysis evidence in trials. Ballistics evidence has been allowed to be used in Kentucky trials since 1948. Earlier this year, Maryland’s Supreme Court limited the use of ballistics evidence in the state’s courts.
Kentucky Assistant Solicitor General Harrison Kilgore argued that the analysis error rate is low, and that the state’s courts should continue to allow testimony from ballistics experts.
“It has been tested over and over. Those studies have been published in peer reviewed journals,” he said. “Study after study has shown that firearms and toolmark examiners rarely err when applying the controls and standards applicable to their methodology.”
Several justices questioned why there was not a hearing prior to Ward’s criminal trial to determine whether the ballistic evidence should have been allowed to be presented to a jury. This can take place under a Daubert hearing, where parties can call on an expert to testify prior to trial and the court can evaluate whether the expert’s testimony is admissible.
Justice Robert Conley raised concerns to Barnes about why some of the studies she cited that question ballistic analysis reliability were not introduced at Ward’s original trial.
“I'm not unsympathetic to your position. But we're not a fact finding body,” Conley said. “If the reports that you are relying upon were never made a part of the record, and at the trial court, if there was no fact finding by the judge, for or against in regard to these reports, there is no expert witness to contravene the reports and expert testimony of the Commonwealth. How do we get to where you want us to go?”
Barnes said if the Supreme Court is unwilling to limit the use of ballistics testimony, the justices should consider setting guidance for the language forensic experts are allowed to use when testifying before a jury about bullet analysis.