Defendant Adrian Garcia was charged in a three-count indictment for an alleged carjacking that occurred on May 22, 2022:
- Carjacking
- Using and carrying a firearm during and in relation to a crime of violence, and possessing a firearm in furtherance of such crime, and discharging said firearm
- Being a felon in possession of a firearm and ammunition.
The Government stated it would present evidence showing the offender possessed a firearm, used it during the carjacking, and discarded it while fleeing. Police later recovered the firearm at the scene.
The Government retained firearms and toolmark expert witness Erich Smith. Smith examined a spent cartridge case found at the carjacking scene and a nearby 9mm pistol. He determined that the cartridge case was fired from the recovered pistol. Smith followed the E3CV methodology, which stands for evaluation, classification, comparison, conclusion, and verification. This method is recognized by the Association of Firearm and Toolmark Examiners (AFTE). After a challenge under Rule 702 and Daubert, this Court permitted Smith to testify.
To rebut Smith’s testimony, Defendant retained psychology expert witness, Nicholas Scurich, Ph.D., who specializes the evaluation of forensic firearm/toolmark examination. Now, the defense intended to use Scurich’s testimony to impeach or rebut Erich Smith’s testimony.
To begin with, Scurich was supposed to testify regarding low repeatability and reproducibility of conclusions by firearm/toolmark examiners in validation studies. Moreover, to the extent Smith relies on validation studies in his testimony, Scurich may testify to fundamental design flaws in the studies regarding the sampling of examiners and materials, problem difficulty and bias, missing data, and inconclusive responses. Finally, Scurich will rebut Smith’s testimony by testifying about reasons for growing skepticism by scientists in the field.
Psychology Expert Witness
Nicholas Scurich is a quantitative psychologist with a PhD in Psychology from the University of Southern California. His training included courses on advanced research methods and advanced statistical methodology. He currently works as a professor at the University of California at Irvine, where he is the chairman of the psychology department. Scurich teaches graduate courses in advanced research methods and forensic assessment. Moreover, he has authored more than 75 peer-reviewed journal articles, book chapters, law review articles, technical reports, and conference proceedings.
Discussion by the Court
The Government moves to exclude Scurich’s testimony for multiple reasons. The Government argued that the Notice is too broad and did not comply with Federal Rule of Criminal Procedure 16. It also contends that Scurich’s testimony should be excluded under Federal Rule of Evidence 702 because Defendant has not established that Scurich is qualified or that his opinions are reliable, relevant, or helpful to the jury. According to the United States, allowing his testimony would undermine the Court’s gatekeeping function under Daubert and confuse the jury. For the reasons explained herein, the Court disagrees with the Government.
A. Rule 16 does not justify the exclusion of Scurich’s testimony
The United States argues that Defendant’s Notice does not contain “a complete statement of all opinions” that Scurich will offer, but instead too broadly lists topics, rather than substantive opinions. It asserts his proposed testimony should be struck on this ground alone.
While Defendant’s Rule 16 summaries are relatively cursory, the record contains substantial discussion of Dr. Scurich’s opinions based on his published articles.
Also, Defendant provided a list of the 25 studies that Scurich is familiar with that informs the Government about which validation studies he may testify. Moreover, any prejudice from the lack of more specificity in the Notice was cured at the hearing. Basically, the purposes of Rule 16 include minimizing surprise from unexpected expert testimony and allowing a party to prepare for cross-examination and presentation of opposing experts.
Therefore, the Court held that Rule 16’s purposes are met via the disclosures in the record and the opportunity the United States had to cross-examine Scurich at the Daubert hearing. Basically, the United States asked Scurich specific questions as to each of the five enumerated opinions listed in the Notice and gained additional detail as to each.
B. Defendant satisfied his burden under Rule 702 and Daubert to establish Scurich’s qualifications and the relevance and reliability of his opinions
Now, the Federal Rule of Evidence 702 governs the admissibility of expert testimony. An expert must be qualified by knowledge, skill, experience, training, or education, and their testimony must be based on sufficient facts, reliable principles, and a reliable application of those principles to the facts of the case.
The Court finds that Scurich is qualified as an expert in research design, the evaluation of research design, data analysis including statistical analysis, and the evaluation of data analysis.
1. Scurich is qualified as an expert.
According to the Government, Scurich is not qualified in the field of firearm and toolmark identification evidence to render an opinion about the evidence in this case. Scurich, however, is not offering an opinion about the firearm and toolmark analysis Smith conducted in this case. Instead, the Court held that his testimony will be more generally about the research on the reliability of the field of firearm and toolmark identification.
Although he does not have experience and training in firearms and toolmark casework, he has extensive experience and training in research methods and design.
2. Scurich’s opinions are reliable.
Moreover, the Court held that he has extensively reviewed the literature and research studies testing the firearms and toolmark field and analyzed the raw data therein. He applied reasoning to reach his conclusions based on his specialized knowledge in research design and statistical analysis, his education, and his training.
3. Scurich’s opinions are relevant and helpful to the jury.
The United States next argued that, because the issues at trial are not about research designs or the best way to analyze statistical data, the evidence is not relevant and will confuse the jury.
The Court held that Scurich’s testimony will aid the jury in understanding the issue of the reliability of firearms and toolmark forensic analysis and help the jury evaluate the weight to afford the expert testimony of Smith.
4. The Court will permit Scurich to offer expert testimony.
Defendant has demonstrated that Scurich is qualified, his opinions are reliable, and his testimony is relevant. Therefore, the Court will allow Scurich to testify as an expert witness at trial.
Held
In conclusion, the Court denied the United States’ motion to exclude the testimony of psychology expert witness Nicholas Scurich.
Key Takeaway:
Scurich has sufficient education, training, experience, and knowledge to qualify as an expert in research design, the evaluation of research design, data analysis including statistical analysis, and the evaluation of data analysis to offer the opinions. Also, he has acquired familiarity with the research studies and underlying data that the firearm and toolmark examiners rely on to support their assertion that the AFTE theory of identification is a reliable method for comparing cartridge cases and bullets.
Case Details:
| Case Caption: | United States V. Garcia |
| Docket Number: | 1:22cr1171 |
| Court: | United States District Court for the District of New Mexico |
| Dated: | December 10, 2024 |
