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CLE Committee: Whoas of Grammar

On May 31, the BCBA presented “The Whoa(s) of Grammar Misadventures.” The CLE Committee sponsored the event with the help of visiting grammar expert Kelli Lakis. The presentation, which employed a quiz format available via Zoom, invited participants to answer a series of questions covering some of the more nuanced applications of rules governing punctuation, pluralization, and the distinctions between word pairs such as because/since, which/that, or among/between. We also discussed using the singular “they” as an evolving language area in which modern sensibilities differ from what many learned in school. The quiz was sufficiently challenging that nearly every question garnered a number of incorrect responses. Hopefully, all participants will remember these lessons when writing their next motion, brief, or Advocate article.

– Mike Jacko, Esq.

Criminal Law Committee: Criminal Law Update

Kobina Ebo Abruquah v. State of Maryland, No. 10, Sept. Term 2022

If you only scanned the headlines of multiple news outlets on June 21, 2023, you may be under the impression that ballistic toolmark identification is a thing of the past in Maryland state courts. The reports of its death, however, are greatly exaggerated. – Mark Twain. What the Supreme Court of Maryland did conclude is that ballistic toolmark identification is sufficiently reliable for an examiner testifying as an expert to express an opinion that the patterns and markings on bullets found at a crime scene are consistent or inconsistent with bullets fired from a specific firearm. The examiner may not, however, express the opinion that the unknown bullets were definitively fired from the specific firearm. Abruquah, slip op. at 1-2.

The holding arises out of an appeal from a conviction for first degree murder and related firearm charges tried before a jury in Prince George’s County in December of 2013. The issue of the admissibility of firearm identification evidence was first argued in the trial court under the Frye-Reed standard. While an appeal was pending from Mr. Abruquah’s second trial, the then Court of Appeals issued its Rochkind v. Stevenson, 471 Md. 1, (2020) opinion, and the matter was remanded for the trial court to evaluate the admissibility of the expert’s testimony in light of the newly adopted standard. Abruquah v. State, 471 Md. 249, 250 (2020). After taking additional testimony, the trial court reviewed each of the 10 factors enumerated in Rochkind and concluded that the testimony remained admissible. Abruquah, slip op. at 5. In this 4-3 opinion, the Supreme Court of Maryland began its analysis by noting that they review a trial court’s decision to admit expert testimony under an abuse of discretion standard. Id. at 6. They then reviewed Maryland Rule 5-702 governing the admissibility of expert testimony and the ten, Daubert-Rochkind, nonexhaustive list of “’factors in determining whether the proffered expert testimony is sufficiently reliable to be provided to the trier of facts.’” Id. at 7 (quoting State v. Matthews, 479 Md. 278, 310 (2022)). The Court summarized by stating “the overarching criterion for the admission of relevant expert testimony under Rochkind, and the goal to which each of the 10 Daubert-Rochkind factors and the five principles summarized in Matthews are all addressed, is reliability. The question for a trial court is not whether proposed expert testimony is right or wrong, but whether it meets a minimum threshold of reliability so that it may be presented to a jury, where it may then be questioned, tested, and attacked through means such as cross-examination or the submission of opposing expert testimony.” Id. at 9. What followed is an incredibly detailed and thorough review of all of the evidence presented to the trial court regarding the reliability of firearm identification. If, as a practitioner, you have a firearm identification/toolmark issue, the discussions in both the majority and dissenting opinions are mandatory reading. For purposes of the Advocate, however, I will simply refer you to the opinion.

So, despite reports of its demise, the Court did not rule that the information is inadmissible. Rather they held “We do not question that firearms identification is generally reliable, and can be helpful to the jury, in identifying whether patterns and markings on ‘unknown’ bullets or cartridges are consistent or inconsistent with those on bullets or cartridges known to have been fired from a particular firearm. . . . However, based on the record here, and particularly the lack of evidence that study results are reflective of actual casework, firearms identification has not been shown to reach reliable results linking a particular unknown bullet to a particular known firearm. Id. at 55-56. The result being that while the proponent of the evidence may ask the expert if the markings are consistent with bullets fired from a specific firearm, they may not ask if the expert has an opinion regarding whether the bullets were fired from the specific firearm.

– Jennifer W. Ritter, Esq.