The Supreme Court of Maryland's recent 4-3 decision in Abruquah v. State takes a strict view of the admissibility of firearms identification testimony under Rule 5-702. (Sept. 2022 Term, Case No. 10) (decided June 20, 2023). The decision raises complex questions about whether defendants can retroactively challenge criminal convictions that were supported by such testimony. But I will leave that issue to others. Here, I want to focus on the Justices' vigorous debate over the abuse-of-discretion standard under Rule 5-702.
The decision revolves around firearms identification, which the Majority describes as "the practice of investigating whether a bullet, cartridge case or other ammunition component or fragment can be traced to a particular weapon." Slip Op. at 1. In murder trials, expert testimony directly connecting bullets from the crime scene to a defendant's gun is quite powerful and damning. The science behind such identification is well-established and rigorous. But it is not infallible.
Applying Rochkind/Daubert and Rule 5-702 on remand after a re-trial had again yielded a murder conviction, the trial court sustained the conviction based on the admissibility of an expert firearms examiner's testimony that a bullet from the scene was fired from the defendant's gun. It did so despite its pre-trial ruling, under the now-obsolete Frye-Reed standard, that the expert could opine only whether the crime-scene bullets fell into a particular set of five classifications, including matching an unknown bullet to a known bullet—but could not opine unequivocally that the bullets came from the defendant's gun. Slip Op. at 4. Despite this ruling, the expert testified over objection at the second trial that bullets from the crime scene not only matched sample bullets shot from defendant's gun but also had been shot from the gun. Id. at 4-5.
The Supreme Court Majority concluded that "the examiner should not have been permitted to offer the unqualified opinion that the crime scene bullets were fired from Mr. Abruquah's gun." It reasoned that the firearms-identification methodology can reliably show a bullet's consistency with a specific gun but not an "unqualified conclusion that such bullets were fired from a particular firearm." Slip Op. at 1-2. So the expert could testify that the crime scene bullets were consistent with other bullets fired from defendant's gun. Presumably, he could have told jurors that he believed that the bullet probably came from the defendant's gun. He might have been allowed to testify even that the bullet almost certainly came from the defendant's gun. But the unqualified testimony that the bullet was from the defendant's gun was inadmissible.
To the dissenting Justices, such thin slicing of opinion testimony's admissibility seemed incompatible with the deferential abuse-of-discretion review that Rochkind requires. Re-affirming the proper standard of review, the Majority recognized that a reviewing court should not reverse simply because it would not have made the same ruling. But it remains an abuse of discretion to admit "expert evidence where there is an analytical gap between the type of evidence the methodology can reliably support and the evidence offered." Slip Op. at 6. None of this is new or controversial. But the dissenting Justices struggled to see the Majority opinion as anything other than the Majority reversing simply because it would not have made the same ruling.
This prompted a remarkable footnote in the Majority opinion:
This Court has frequently described an abuse of discretion as occurring when "no reasonable person would take the view adopted by the circuit court" or when a decision is "well removed from any center mark imagined by the reviewing court and beyond the fringe of what the court deems minimally acceptable." [citations] In our view, the application of those descriptions to a trial court's application of a newly adopted standard, such as that adopted by the Court in Rochkind as applicable to the admissibility of expert testimony, is somewhat unfair. In this case, in the absence of additional case law from this Court implementing the newly adopted standard, the circuit court acted deliberately and thoughtfully in approaching, analyzing, and resolving the question before it. This Court's majority has come to a different conclusion concerning the outer bounds of what is acceptable expert evidence in this area.
Slip Op. at 6 n.5.
The footnote seemed only to affirm the dissenting Justices' criticisms. Two points merit immediate comment: the (1) fairness of the abuse-of-discretion standard and (2) availability of relevant caselaw.
First, the startling characterization of a well-settled and important standard of review as "somewhat unfair" is followed by an equally startling failure to explain what is "unfair" about it or what a different fair standard would be. See Dissenting Op. by Justice Hotten (joined by Eaves, J. and, in relevant part, Gould, J.) at 14; Dissenting Op. by Justice Gould at 4. The Majority's juxtaposition of the apparently unfair "beyond the fringe of what the court deems minimally acceptable" with the apparently fair "outer bounds of what is acceptable" gives trial judges and practitioners only a semantic update on an unchanged standard. Requiring expert testimony to be "acceptable" or "minimally acceptable" is the same thing. And there is no difference between requiring testimony not to exceed "the fringe" of acceptability versus the "outer bounds" of acceptability. The abuse-of-discretion standard is not changed in any meaningful way. Instead, it is merely toned down to sound less insulting to hard-working trial judges who abuse their discretion.
Second, the Majority's praise of the trial court's diligence while operating "in the absence of additional case law from this Court implementing the newly adopted standard" again seems geared mostly towards softening the blow of the abuse-of-discretion holding. While technically true that Daubert was "newly adopted" in Maryland and "this Court" has not created a large body of Daubert caselaw, Daubert is now thirty years old. There is a massive body of Daubert caselaw to guide trial courts — including a body of cases on firearms-identification testimony. See Dissenting Op. by Justice Gould at 3. This is not the mid-1990s, when federal courts were grasping to understand the sea change that Daubert prompted for expert testimony under FRE 702.
It is dangerous for Maryland appellate courts to suggest otherwise. The wisdom of adopting Daubert and ending two decades of "jurisprudential drift" was the legal clarity that it provided in the already complex and nuanced world of assessing the reliability and admissibility of expert testimony. Rochkind did not wipe the slate clean for a new generation of Maryland judges to re-invent Rule 5-702. Adopting Daubert gave Maryland a tried-and-true approach to expert admissibility that saves trial judges from having to make these important decisions "in the absence of additional caselaw."
Because of this, Abruquah seems most likely to stand alone on its facts to create a per se rule against unqualified firearms identification testimony in criminal cases. But it should not be read as watering down the Rochkind/Daubert standard or abandoning the abuse-of-discretion standard. Otherwise, Maryland would be starting a second era of incomprehensible jurisprudential drift so soon after reaching the solid ground of Daubert. That would serve no one well.
Derek Stikeleather is Chair of Goodell DeVries's Appellate Practice Group. He practices primarily in appellate advocacy and complex litigation, often in commercial disputes or defending product liability, medical malpractice, and class action claims. He can be reached at email@example.com.
This post originally appeared on the Maryland Appellate Blog, the blog of the Maryland State Bar Association Litigation Section.