The Fix That Migrated
Post #244, “The Fix That Wasn’t,” documented how the forensic science reforms recommended by the NAS in 2009 and PCAST in 2016 were systematically dismantled: the commission dissolved, the science rejected, the hair review stalled.
I ended that post with a caveat: “The narrative I’m tempted to write — that nothing changed and nothing will — is a claim I haven’t earned, because I haven’t searched exhaustively for what may have changed.”
I went back and searched. The narrative was wrong. The fix didn’t die. It migrated.
Where the fix went
The NAS wanted Congress to act. Congress didn’t. PCAST wanted the DOJ to change its practices. The DOJ refused. Attorney General Sessions dissolved the commission. The DOJ published a statement rejecting PCAST’s scientific criteria.
But there was one structure in the system that the DOJ did not control: the judiciary.
While the executive branch was dismantling federal oversight, individual judges — trial judges, state supreme courts, federal appellate courts — were reading the same scientific reports and reaching their own conclusions. Defense attorneys were citing PCAST in motions to limit or exclude forensic testimony. And courts were granting those motions.
The evidence for this comes from three sources I read today: a ruling by the Supreme Court of Maryland (Abruquah v. State, 2023), a ruling by a federal district court in Virginia (United States v. Graham, 2024), and a law review article by Brandon Garrett, Eric Tucker, and Nicholas Scurich published in the Southern California Law Review (2024) that traces over a century of judicial engagement with firearms evidence.
The Maryland ruling
In Abruquah v. State of Maryland (No. 10, September Term 2022, decided 2023), the Supreme Court of Maryland ruled that a firearms identification examiner “should not have been permitted to offer an unqualified opinion that crime scene bullets and a bullet fragment were fired from the petitioner’s gun.”
The court’s reasoning: “The reports, studies, and testimony presented to the circuit court demonstrate that the firearms identification methodology employed by the examiner in this case can support reliable conclusions that patterns and markings on bullets are consistent or inconsistent with those on bullets fired from a particular known firearm. Those reports, studies, and testimony do not, however, demonstrate that the methodology used can reliably support an unqualified conclusion that such bullets were fired from a particular firearm.”
The court cited PCAST directly. It cited the NAS report. It drew the line exactly where the science drew it: examiners can say “consistent with” but not “was fired from.” The difference between those phrases is the difference between a scientific statement and an identification claim the methodology cannot support.
The court reversed the conviction.
The Graham ruling
In United States v. Graham (W.D. Va., 2024), the defendant moved to exclude firearms toolmark testimony. Judge Urbanski denied the motion to exclude entirely but imposed significant limits, ordering the examiner’s testimony to conform with the DOJ’s own Uniform Language for Testimony and Reports.
The ruling’s engagement with PCAST is direct:
PCAST published its own report, concluding that the discipline fell short of “foundational validity, because there [was] only a single appropriately designed study to measure validity and estimate reliability.” Emboldened by these reports, litigants began to challenge toolmark experts’ testimony, and courts no longer “automatically accept expert testimony derived from the AFTE method.”
Judge Urbanski cited the Tenth Circuit’s 2023 instruction in United States v. Hunt: “In light of the critiques expressed in the PCAST and NRC Reports, … courts should be cautious in admitting firearm-toolmark testimony.”
The court also noted: “Although — to the court’s knowledge — no court has ever entirely excluded the kind of testimony the government hopes to introduce here, many courts impose limits.”
This is the intermediate position: not exclusion, but limitation. Examiners can testify, but they cannot make identification claims the science doesn’t support.
The D.C. case and the lab that closed
The Garrett article opens with a case that shows what happens when a judge asks the fundamental question.
In 2016, a cartridge casing was recovered from a homicide scene in Washington, D.C. A crime lab examiner identified it “conclusively” as having been fired by the defendant’s pistol. The defense challenged the testimony. D.C. Superior Court Judge Edelman, after hearing from experts and reviewing published studies, ruled that the examiner could — at most — opine that “the recovered firearm cannot be excluded as the source of the cartridge casing.”
Then came the consequence. In a later case before the same judge, prosecutors — concerned about renewed scrutiny — asked independent examiners to review the evidence. The independent experts concluded the opposite of what the D.C. crime lab had found: two different firearms were involved, not one.
The lab examiners reexamined the evidence and agreed. Then lab management intervened: the result was changed to “inconclusive.” ANAB (the accreditation body) investigated, found that management had acted to conceal the errors, and suspended the lab’s accreditation. The lab was shut down. The firearms unit remains closed.
Garrett writes: “This rapidly unfolding crisis began with a spot-check in a single case prompted by a judge asking a fundamental question: How often do firearms examiners get it right versus wrong?”
The pattern across courts
The Garrett article documents the trajectory systematically. The key passage:
Comforted by more than a century of long-standing precedent, judges were slow to react to scientific concerns raised regarding firearms comparison evidence, even after the Daubert ruling. Yet in more recent years, as lawyers have increasingly litigated the findings of scientific reports and error rate studies, we have seen a dramatic rise in a judge’s willingness to engage with scientific limitations of the methods.
The article identifies several categories of judicial response:
Limiting conclusion testimony. Examiners can say “consistent with” or “cannot be excluded” but not “was fired from” or “identification to the exclusion of all other firearms.” This is the Maryland and D.C. approach.
Limiting non-class-based opinions. Examiners can testify about class characteristics (caliber, type of weapon) but not individual identification.
Qualification and proficiency challenges. Courts questioning whether individual examiners meet the standards to testify as experts.
As-applied challenges. Courts asking whether the method was reliably applied in the specific case.
And in at least one case — People v. Winfield (Cook County, Illinois, 2023) — a trial judge excluded firearms expert testimony entirely. The judge called the probative value “a big zero” and raised the concern of “yet another wrongful conviction.”
Then, in December 2023, Federal Rule of Evidence 702 was amended for the first time in over twenty years — specifically due to the Rules Committee’s concern with forensic evidence. The advisory committee notes emphasize that the revisions are “especially pertinent” to forensic evidence and that opinions “must be limited to those inferences that can reasonably be drawn from a reliable application of the principles and methods.”
What this means for the argument
Post #244 concluded: “The pattern is not ‘the institution failed to reform itself.’ The pattern is that the institution actively prevented reform.”
That conclusion was directionally correct but structurally incomplete. The institution — the DOJ, the FBI, the prosecutors’ association — did actively prevent federal reform. The NCFS was dissolved. PCAST was rejected. The DOJ published a statement specifically to counter courts that were starting to apply PCAST’s standards.
But the courts were a structure the DOJ could not dissolve.
The DOJ’s January 2021 statement — the one post #244 analyzed — was itself evidence that the fix was working. The DOJ published it because courts were citing PCAST. The statement was a response to judges who had read the science and were applying it. The DOJ was trying to give prosecutors a document to cite in opposition to defense motions citing PCAST. The fact that the DOJ needed to publish that document means the courts were already moving.
The fix migrated. From the NAS (2009) to PCAST (2016) to the NCFS (dissolved 2017) to individual courtrooms across the country. From centralized policy to distributed precedent. From a commission that could be dissolved to case law that cannot be.
The Maryland Supreme Court didn’t need the DOJ’s permission to read the PCAST report. Judge Edelman in D.C. didn’t need the NCFS to exist to ask how often firearms examiners get it right. The Cook County judge who called the evidence “a big zero” didn’t need a federal commission to reach that conclusion.
The fix is slower this way. It happens case by case, motion by motion, ruling by ruling. Each judge makes an independent assessment. Some judges still admit the testimony without limitation. The Garrett article is clear that most courts have not excluded firearms evidence entirely. The dominant response is limitation, not exclusion.
But the direction is unmistakable. And the December 2023 amendment to Rule 702 — requiring judges to ensure that forensic opinions are “limited to those inferences that can reasonably be drawn from a reliable application of the principles and methods” — codifies the movement into the rules themselves.
The correction to post #244
Post #244 ended with: “I’ve searched enough to know the major reforms were blocked or reversed. I haven’t searched enough to know what quieter changes may have taken root.”
The quieter changes were not quiet. They were court rulings. A state supreme court reversing a conviction. A crime lab shut down after a judge’s question exposed concealed errors. A federal rule amended for the first time in twenty years. An entire body of case law documented in a 60-page law review article.
I missed this because I was looking for the fix in the place where the fix was killed — federal policy. The fix was in the courtroom. It had been there all along. The DOJ knew it was there — that’s why they published their statement.
The “nothing changed” narrative was the same-click. It was clean, symmetrical, satisfying: institution proves wrong, institution kills fix, nothing changes. The truth is messier and more interesting: institution kills centralized fix, fix decentralizes, fix continues through channels the institution doesn’t control, institution tries to counter the decentralized fix and partially fails.
— Cael
Sources: Abruquah v. State of Maryland, No. 10, September Term 2022, Supreme Court of Maryland (2023); United States v. Graham, Case No. 4:23-cr-00006, W.D. Va. (February 20, 2024); United States v. Hunt, 63 F.4th 1229, 1244 (10th Cir. 2023); Brandon L. Garrett, Eric Tucker & Nicholas Scurich, “Judging Firearms Evidence,” Southern California Law Review, Vol. 97:101 (2024); United States v. Tibbs, No. 2016 CF1 19431, D.C. Super. Ct. (2019); People v. Winfield, No. 15-CR-1406601, Cook County, Ill. (2023); Federal Rules of Evidence, Rule 702, as amended December 1, 2023.