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Preliminary Hearing — Day 4 (July 9, 2026) (Part 2 of 2)
Court proceeding — State of Utah v. Tyler James Robinson (Case 251403576, 4th Judicial Dist. Ct., Utah County). Transcript is the YouTube auto-caption track of the Court TV feed (https://www.youtube.com/watch?v=89ZKQIHaJpM) — verbatim ASR, not a certified court transcript.
recognized portions of it and then was given the opportunity to compare it to her standard operating procedure. I think she said SOP. For those reasons, uh, Carer 27, >> yes, And looking at the language of this, the second part of it according to Afty says currently the interpretation of individualization identification is subjective in nature. Do you agree with that? >> Yes. >> Why is it subjective in nature? >> The conclusions that I author are of my opinion. >> Of your opinion. >> Correct. >> Does your you can take that down. Thank you. And no, wait a minute. Go back if you would. But while he's doing that, does your manual state what what you're looking for under this theory is correspondence of individual characteristics? >> Yes. >> That the theory is that if you see a certain level of correspondence, you can make a source identification but not to the exclusion of all other firearms in the world. Correct. >> Correct. >> Okay. And the standard at least as it's articulated here is uh the theory as it pertains to the comparison enables opinions of common origin to be made when the unique surface contours of two tool marks are quote in sufficient agreement and is a subjective part of that the quoted part sufficient agreement. The subjective part of the conclusion is saying yes the it is my opinion that there is or is not sufficient agreement or sufficient disagreement amongst two or more tool marks >> and and what what may constitute sufficient for you may be completely different from the next examiner. Fair? >> Yes and no. I would expect any trained competent examiner to come to the same conclusion. So the threshold of sufficient agreement might be different from one examiner but the conclusion I would expect to be the same. >> Um does your manual state your ATF manual section 431 state that correspondence or lack thereof individual characteristics is not easily communicated. An an observation such as significant agreement can mean different things to each examiner. This does not serve as interpretable descriptions of what was observed because the individual performing the review will likely have his or her own concept of the phrase based upon their training experience and knowledge. >> Objection, your honor. This question goes to Wade. Oh, I'm sorry. You don't want maybe heard. >> If you're objecting, I I will hear the objection. >> It's a speaking objection. That's why I stopped myself. Um, this goes to Wade. Um this goes to uh credibility. Um and uh the witness's report has already been admitted as is appropriate under the Utah Constitution rule 7B and rule 1102 of the rules of evidence. This is beyond the scope of preliminary hearing for those reasons. >> Mr. Bird, >> uh number one, that's a general objection which I think has been waved. The state was privy to the interview with this pre-tri prehering interview with this witness where these same questions were asked. uh we had a scheduled hearing where the court was going to rule on objections. The state indicated in advance of that hearing that it had no objections uh to the admiss the testimony reserving the right to make particular objections. But the objection being made is a global one. And it's relevant because the state offered the evidence I'm I'm offering here is relevant because the state offered through a hearsay declarant the meaning of this report that this uh examiner authored and I'm trying to inform the court on what the limitations are of the opinions expressed in the report that the state offered. And it's certainly relevant to the reliability issue to know that the opinion is based on a subjective standard that the witness herself admits is subjective. So I think it helps the court understand what weight if any to give to this report that the state offers. >> All right, Mr. McBride, final thought. >> That's all fine, but it's inviting the court to weigh the evidence. That's the whole point. And at this point, uh, the inferences are drawn in the state's favor and the court is not to weigh even contrary evidence. >> Okay. >> Well, it in regards to whether objections have been waved or not, the court as the magistrate bears the ultimate responsibility to ensuring that this hearing is a probable cause standard. And so that that's a responsibility that as a magistrate I take seriously. I understand the arguments from the parties. I'm going to overrule the objection, but Mr. Bert, this is uh we don't need to go 100 miles down a path where we where one mile is is where probable cause may be. And so I invite you to to refocus to to bring it to the probable cause. I'm not trying to limit what you your theories or such, but I need to hold to probable cause. >> Absolutely. And I I don't even need a quarter of a mile. This is my last question. I'm going to move to another topic. >> Thank you, Mr. Bur. Is that what your manual states? >> I don't remember it verbatim, but it does sound accurate. >> Can I approach again? >> You may. >> I give you the two pages. >> I see where you were reading from. Yes. >> Do you see? >> Yes. >> Did I accurately read it? >> I believe so. Yes. >> Thank you. Can I approach you? >> Okay. >> Now, let's return to the report the people's or state 32. And if you would go you concluded here, did you not, that the exhibit 6A bullet jacket fragment could not be identified or excluded as having been fired from the exhibit 1A based on an agreement of all discernable class characteristics and neither sufficient agreement nor sufficient disagreement of indiv individual characteristics. The result of the comparison was inconclusive. >> Yes, >> that was your ultimate conclusion, right? >> Yes. >> And on the next page, if you go to two pages in, you have an appendix, do you not? Where you explain what inconclusive means. There we go. I want to ask you because I'm unclear on what inconclusive mean. You say reasons for an inconclusive or include the presence of microscopic similarity that is insufficient to form the conclusion of source identification. a lack of any observed microscopic similarity or a microscopic similarity that is insufficient to form the conclusion of source exclusion. Could you specify which of those possibilities exists in this case? Was this a case where you had microscopic dissimilarity but in your opinion it was insufficient to form a conclusion of source exclusion? >> No, my conclusion is inconclusive. Just as it says in the appendix, there is a lack of sufficient agreement and sufficient disagreement. So I'm unable to say one way or another. >> Okay. Uh but I guess my question is were there points of dissimilarity between the question and the known bullets? >> Again, there was sufficient agreement and sufficient dis there was not sufficient agreement or sufficient disagreement. So yes, there was times that I saw agreement in the striations in the land and grew impressions also seeing disagreement, but there was also a lot of lack of microscopic marks of value to see it all. So because of this lack of quality and quantity of marks to be able to see, it never reached the threshold of sufficient agreement nor sufficient disagreement. So an identification or exclusion could not be rendered. >> Okay. I think you and I met before today, correct? >> Yes. where we talked about what that term inconclusive meant. Correct. >> Yes. And I think, and correct me if I'm wrong, Do you recall me asking you whether you agreed with this statement that an inconclusive conclusion indicates that the microscopic marks in question may or may not have originated. ated from the same or known source. >> I do remember you asking. Yes. >> And and you agreed that that was a correct definition of what you concluded in this case. Correct. >> Correct. Yes. >> Okay. So, I I wanted if I could return not 10, I'm sorry, your case file again. the 47page document. There we go. What's the tab? >> Six. >> Six. Okay. In your case file, you have produced for us some nice comparison photos of your comparisons. Correct. >> Yes. >> Okay. is the top photo depicting one test fire on the left and another test fire from the same gun on the Right. >> Yes, it is. >> So, do you see areas of agreement and areas of disagreement in these two bullets fired from the same rifle? >> I see sufficient agreement amongst the striations that are in this land impression. >> Okay. And and tell us where they are. When you draw that conclusion using this subjective theory of identification, what show us what you're looking at? Is it touchscreen? >> Probably. >> No, it's not. Sorry. >> But we can if you direct us, we can get there with a pointer. >> Sure. So, you can see towards maybe the last third of the bullet or the land impression that Yes. Right where your cursor was below there. That's an area of agreement with that striation. It looks like it's going from the left to the right. So, that mark is appearing on the test fire on the left and the test fire on the right. Then if you look towards the top of that land impression, there's going to be some more lighter colored striations or lines that are moving from left to right. Those areas are in agreement as well. >> Where is that? Not not as far far up as where he is. Correct. It's down. >> Uh yes. And I believe the PowerPoint that I provided does have some areas and circles of some of these marks if that would help as well. Um but if you move your cursor up continually up, keep going. There you go. You have a line that was right there. And you have several others underneath of it that looks like it's going just straight across from left to right. And that shows an observed area of agreement. >> So that one he's got circled on the right, I see a line there. Are you saying you see a line on the left that it's identical to the one on the right? >> I'm saying I see agreement amongst those striations. Yes. >> Okay. Anything other than those two areas? Um, you can really go down the entirety almost of that line looking at those striations. So, under the top red circle, there's another area there. Yep. If you start right there and you draw your circle over, except at the top of the circle, there's a highlighted line on the left that goes all the way to the right. If you go a little bit farther down, maybe still in the top third of that circle, you can see another line going from one side to the other. Another area of agreement as well. And then under the final third circle in a little darker area down there, there's still some lines again in sufficient agreement. >> Okay. And again, these are comparisons between test fires. So you know the rifle that you're test firing fired these these two bullets, right? >> Yes. And the purpose of those test fire is to ensure that the though it was smart, it was fired from the same firearm, you want to make sure that those individual characteristics are reproducing. >> All right. So, go to the photo on the This is the first of several comparisons between the test fire on the left and 6A on the right. Correct? >> Yes. >> And what is the writing on the top mean? Blue index gim. So that will be the first number there is the case number, the laboratory case number. Then next 1.11B is going to refer to the specific test fire that's on the picture. >> And then V versus 6A. So that's the evidence that's on also pictured. [ __ ] stands for a groove impression. So I'm looking at a groove impression in this photo. Blue index means I'm specifically looking at the groove impression that I have put a blue indexing mark on so that I know where I am during the comparison process. >> Okay. >> 30X refers to the magnification that the photo was taken at. And then INC refers to inconclusive the final conclusion. >> So I'm interested in the areas of disagreement. Are there areas of disagreement between the the known and the unknown here that you could point us to? So for this photo to me I see areas of agreement in the top >> and then on the way down from the 6A right after you see those two highlighted lines near the top it's there is a lot of damage that is observed and almost no microscopes microscopic marks of value can be observed at all. So again that lends to the lack of quality and quantity of marks even to do a comparison. It's almost like missing data points. >> Okay missing is not the same thing as dissimilar though right? It just means there's nothing there to call agreement or disagreement. >> So, do you see areas of disagreement here or no? >> On the striations that are available to me on this groove impression, I see areas of agreement and specifically talking about those two highlighted lines at the top on the right. Top photo on the next page 38. Do you see uh areas of disagreement in this photo? >> So, this is the same photograph that we looked at before, just at a different magnification. It's um it's zoomed in a little bit more from 30 to 40x. So, again, I'm looking at those two highlighted lines near the top. And then if you look down, you can almost see that damage a little bit better. And there's none of those striated lines that you see on the test fire which you would expect to see in a land or groove impression on the right at all. So again, no microscopic marks of value to compare whatsoever. And again the question areas of disagreement the possibility of an area of disagreement maybe in the middle there on the 6A is a line that does not look like it carries over but just from this snapshot. I cannot say if that if I had moved the photo a little bit different or the specimens together that that area would be agreement in this photo. It does not look like it does though. >> Okay. Uh, and could you go to the next photo, please? >> Same question here. Areas of disagreement. >> The way this photo was taken is highlighting more of the lack of microscopic marks of value. If I had pulled the specimen that's on the left, the test fire over, there might be some agreement that could be observed. But the way the photograph is now, you don't see the line on the right going all the way over. But again, this is just a snapshot of one particular area. >> Doesn't show areas of agreement or disagreement. >> There is an area of agreement at the >> Okay. >> Correct. Yes. How about this one? >> This is another zoomed in of the previous photo, focusing in on that bottom area of agreement. So, we went from 30x to 40x and just highlighting one specific area. And this is showing you agreement. So again, this area that is highlighted, the bottom portion that's in focus is showing an area of agreement. As you go up, the lines are a little bit blurred on the 6A bullet jacket fragment. So, it's hard to say if that area was in agreement or disagreement. That's not what my photo was focusing on. So again, this is going to show you part of the groove impression at the white index. On the top you can see some strided lines or excuse me more of the middle of the photo the top of the groove impression from the 6A you see some lines do not appear to be on the right side either but this photo is also trying to show the lack of microscopic marks at all towards the bottom of that groove impression. >> Okay. But there are in these photos areas of disagreement as well as areas of agreement. Correct. in the the photo that we just looked at. It could be possible areas of disagreement. Again, it's just one area that I'm looking at. It's hard to tell when you can't look at the entirety of the land in this moment. >> Now, this you can take that down, please. Do you keep up with uh the literature relevant scientific literature relevant to your field? >> I do. Yes. And are you aware of certain criticisms that have been leveled against this AFT theory of identification? >> I have heard Yes, I've heard recommendations on how to improve the afty theory of identification. Yes. >> Well, the criticism have gone beyond that, right? >> Specifically, what are you referring to? Well, you you you know you're aware that the National Resource, you know, the National Resource Council, >> the National Academy of Science, >> National Academy of Science? >> Yes. >> Is that a pretty preeminent uh scientific organization in this country? >> Yes. Did they conclude in 2009 that quote a fundamental problem with toolmark and firearm analysis is the lack of a precisely defined process. As noted above, Afty has adopted a theory of identification, but it does not provide a specific protocol. It says that an examiner may offer an opinion that a specific tool or firearm was the source of a specific set of tool marks or a bullet striation pattern when quote sufficient agreement exists in the pattern of two sets of marks. It defines agreement as significant when it exceeds the best agreement demonstrated between tool marks known to have been produced by different tools and is consistent with the agreement demonstrated by tool marks known as known to been produced by the same tool. a meaning of exceeds the best agreement and consistent with or not specified and the examiner is expected to draw on his or her own experience. This afty document which is the best guidance available for the field of tool mark identification does not even consider let alone address questions regarding variability, reliability, repeatability or the number of correlations needed to achieve a given degree of confidence. >> I do objection. >> We're now firmly into 702 territory. I object on grounds of relevance to the probable cause hearing and beyond the scope of the PC hearing as I previously objected. >> I think it goes directly to reliability that a group a scientific group studied this exact process that she used in this case and reach that conclusion if you would. So again I I I'm trying to keep us on the probable cause standard. This is going a bit deep in regards to it. Uh this is citing to 2009 and so we're in 2026 and and again I'm I'm not I don't want to have to dive deep into areas trying to determine because I I feel that we are exiting the the orbit of probable cause if if I'm having to make that analysis and and trying to see like how is this relevant? How does this apply? How does this go to probable cause? Um, so if you wish to ask this question and then move on, we certainly could do that. But I >> sure the only thing I wanted to do was establish that this was the foundation criticism in 2009. And I know when we had raised this issue with respect to one of the other experts, the comeback was, oh well, this was in 2009 and the PCAST report was in 2016. In this particular field, these criticisms have have started in 2009, but they have continued up to the present day and have gotten more striden. So, I think that's the take-home here is that this is not some past criticism that has been set aside. This is a criticism that this expert is aware of and that has continued in the literature up to the present time. But I don't have that second portion of what you just said in front of me. So I can't I can't I can't agree with you because what I have is what's before me. I can't I can't go searching myself as a magistrate for probable cause. I have to take what you say as it is and and and if I have to start searching, I've left the universe of probable cause. >> I agree. And I was I was offering that to the court as a profer in terms of where this line of questioning is going so the court could understand the context. Okay. >> It isn't just an isolated criticism and I'll establish with a couple of questions that it's continued up to the present time. >> So, I will overrule the objection, but I will limit you to this question. We're going to more and more and more. Doesn't I see your point. You're you're you're looking at whether this science is challenged or not. The point's been received, but anything further goes outside of probable cause. So, we have to get back on the path. Got it. >> Thank you, Mr. Burke. >> You're aware of that criticism, right? >> Yes, I am. >> And you're also aware of the criticism leveled in 2016. >> Council, I just said that we're we're focused solely on I've accepted what you've said, but I said it's limited to this question and then we're moving on because anything further is going outside of probable cause. >> I misunderstood. I'm apologize to the court >> and I apologize if I wasn't clear on that. So maybe it was my error not communicating. I've accepted that coming in. I've overruled the objection, but I said we're going to we're going to leave that where it is and then move forward. >> And and that's where I'm unclear when the court says move forward. No more questions about any further criticisms beyond that one >> on this on this line of question. That's correct because >> Thank you, Mr. B. >> And I I think I've made the profer in terms of the relevancy of the >> and I accept that. So thank you, Mr. B. All right. Then the last area is um in the years that you've been doing this testing, is it true that you've only taken one proficiency test that involves bullet comparisons? >> Yes, I've only had the opportunity to take one bullet proficiency test so far. >> And is it true that that was in uh 2023? I don't remember the exact year, but that sounds correct. Yes. All >> right. And is it true that that proficiency test involved a test where you had question bullets and then you had two sets of bullets. one that was fired from one gun, not the suspect gun, and then a second gun that that was fired from another gun. >> I don't remember the exact final ground truth answers that were there. No, I I'm sorry. I don't remember. >> I think when you and I talked about this, you said you were aware of a controversy about that particular test. Correct. >> I was aware, yes, of the results of the proficiency test. Yes, >> that the that there was a very high error rate in that um particular proficiency test. Right. >> There was a higher error rate. Yes. However, my answers were satisfactory along with the five other examiners at my specific laboratory that took it as well. >> Yeah. Your conclusion in that case was as in this case that it was inconclusive. Correct. >> Correct. Even though the uh correct answer was that the bullets did not come from the question, the two did not match. The known in the question should have been an elimination. >> The ground truth answer was yes, they were excluded. However, an inconclusive result in this comparison was extremely appropriate. The lack of quality and quantity of those individual characteristics never reached sufficient agreement, nor did it ever reach sufficient disagreement. So saying anything but inconclusive was not appropriate. >> I see. And can you have bullets fired from different weapons that can have uh individual characteristics that look pretty similar? >> There is occasions, yes, that tool marks that are made by two separate tools are similar. Yes. Could you go? Um, and this is my last area. Question n uh exhibit >> Your honor, I'm requesting 20 minutes for crossexamination. Uh, we're coming up on 437. >> That would be my request, your honor. >> Just my last question. I'm sorry. >> All right, Mr. Burton. Thank you, Mr. McBride. I appreciate the the heads up. >> In your opinion, does this uh the one on the left and the right show matching individual characteristics? >> because I I see it displayed. I I just want to make sure is this all >> it has not been admitted and I'm asking this question and I as a foundation for admitting it. >> Okay, that's fine. So, I just want it was on another screen. I wanted clarification. So it's not on any screens because it hasn't been admitted but clearly it can be on her screen. >> So only to the witness and council table >> page Does this compare comparison show individual characteristics indicating that it was fired from the same weapon? >> There are individual characteristics present, but without examining it in person, I don't feel comfortable making a conclusion. 27. I see individual characteristics. On a very first glance, I can see maybe one striation that is in agreement, but without seeing it physically in person and having an accurate represent representation of the entirety, I can't conclude in any answer. And the last Exhibit >> Same question. >> I do see individual characteristics. I do see some areas of agreement with without looking at it further. I wouldn't make a conclusion. It's a holistic approach when you're examining items. >> Would it surprise you if I told you that all three of those were fired from different weapons? >> Again, I don't know any context to these photos other than what you showed, so I don't feel comfortable saying one way or another. >> Thank you. >> Good afternoon. Good afternoon. >> Those last three photos that you were shown, were you have you had you seen those before? >> I have looked at them probably back in 2024 when it was published. >> Okay. That's a study. Is that what that is? Some >> it was a look um from the Association of Firearm Tool Mark Examiners. Um it was a volunteer of photographs of people that did have a incorrect answer in that proficiency test. >> Okay. Um, and when you do an examination or a comparison, are you limited to one photograph? >> No. >> Uh, you actually have the item in front of you, correct? >> That is correct. Yes. >> And you can manipulate it, you can turn it, you can look at every angle and every side of that item as you do the comparison. Is that correct? >> Yes, that's correct. And as you're doing that process, you're looking for as many uh characteristics that match or or agree or disagree as you can possibly find. Correct? >> Yes. It's a holistic approach. If I have a bullet like this case, I'm looking at every single land, every single groove impression and doing an evaluation of each one of those, looking for areas of agreement and disagreement before rendering a conclusion. Would it be responsible for you to reach a conclusion based on a single photograph of a very limited area of two uh bullets? >> I would not feel comfortable doing that. No. >> Okay. I want to back up. How long have you First of all, where do you work? >> I work at the Forensic Science Laboratory in Washington for the Bureau of Alcohol, Tobacco, Firearms, and Explosives. >> How long have you been there? >> A little over six and a half years. >> Where did you come from? Where did you work before that? Prior to working for ATF, I was a latent fingerprint technician recovering latent fingerprints from improvised explosive devices and I also worked as a crime scene investigator in Winston Salem, North Carolina and Anaundo County, Maryland. >> How long did you have that position? >> I think cumitively it was about five to six years. >> And uh before that, >> those are the only ones. I think it was about six months as a latent front fingerprint technician, two years as a crime scene in Winston Salem and three in Anterondo County. >> Do you have education and training before that position? >> Yes, I have a bachelor of science in forensic and investigative science from West Virginia University and have attended and graduated the National Firearms Examiner Academy as well as done specific training at my laboratory. At each of the positions you've held, have you had on the job training at the laboratories where you've worked? >> I have. Yes. >> And will you describe what that training is like at the ATF where you are now? >> Yes. So, part of becoming a firearm toolark examiner for ATF was attending the NFA, the National Firearms Examiner Academy, which is a year-long intensive comprehensive training program. I learned about historical cases, figures, and the evolution of firearms, fired ammunition components, and manufacturing. In phase two, I worked 16 weeks of hands-on experience assembling and disassembling firearms using a comparison microscope, comparing fired ammunition components and tool marks, going on manufacturing tours, and participating in moot court. I worked on an independent research project in four practical exercises and then presented that independent research project to a panel of experts and participated in two moot court sessions on two of those four practical exercises. Then specifically for ATF, I still work on my training going through practical exercises and competency tests, working under trained firearms examiners at my laboratory and also continue learning about any manufacturing evolutions or going on manufacturing tours. And I also participate in moot court for every single competency test that I work. Once all of that is complete, then I work on supervised case before moving on to And supervised casework means what? >> It means that the author of the final report will be a different examiner, but I am working on all of the work side by side and going through all the steps that are needed for that examination. >> And in that process, you're having discussions and uh discussions about your work with a more experienced examiner. Yes, it's an opportunity to work a case that has come into the laboratory, but still have someone there making sure I feel comfortable with everything and following every step necessary. >> How long ago was that that you had that uh that that you graduated from that supervised work? >> I believe that was in 2022 or 2023. I'm not sure. >> Do you supervise now others? >> I do not have a supervisor capacity, but I have had the opportunity to now teach at the NFA. I've been fortunate enough to participate as an instructor in the test firing module, the mini moot court module, and the comparison of bullets >> Are you required to undergo continuing education in your position? >> There is not a specific continuing education program. However, when the opportunity to go on AF's annual conferences and it allows it, I will go to those as well as continually go to manufacturing tours. Uh is this an area of science and um forensics that is continuing to develop new techniques and advance in research? >> Yes, it is. >> And how do you stay up on those advances? >> Part of the way to do that is to continue my membership with AFTY. Again, they do an annual training seminar recently just in May of 2026 here in Baltimore where there's case searches and studies that are presented, different manufacturing techniques, just new and upcoming research that is throughout the community, not just firearms practitioners, but also standard and technology researchers like those from the National Institute of Standards and Technology or NIST. And I think uh defense council has asked you a little bit about some of the publications that have given criticism is how he's phrased it but given uh recommendations on how to improve the science in your field. Are you aware of that? >> I am. Yes. >> And is there an effort to adopt those suggested improvements where they have merit? >> Yes. Afty especially takes those recommendations very seriously. If the PCAST repres as asked for more specific design test studies, they said yes, we will do that. I can think of just a few right off the top of my head that has satisfied those asks that they wanted. >> Is your laboratory accredited? >> It is. Yes. >> What does that mean to be accredited as as a laboratory? >> An accredit accreditation means that my laboratory is held to an international standard of reporting, testimony, training, and proficiency tested. We have a large audit every four years through ANAB or the American National Standard Institute National Accreditation Board, but we also do internal audits and we make sure there is some type of audit that we are staying in within those accreditation limits every single year. >> Uh there is a mention of proficiency testing. Are you required to do proficiency testing? >> Yes, I am. >> And are those specific as to what type of um proficiency testing that you do? Yes. >> What are some examples? >> We are required to take proficiency tests in all discipline that our scope enables. So, serial number restoration and the comparison of tool marks, bullets, and cartridge cases. >> Are there similarities and principles that apply to all aspects of tool mark analysis and comparison? >> Can you elaborate on the question, please? Well, let's say you're comparing um what we've been talking about here, uh rifling on a bullet. Are there principles that apply to that area versus um that also apply in tool marks analysis, say of um impressions of a handheld tool? >> Yes, all of those comparisons are a a product of a tool mark comparison. A firearm is nothing but a tool. So when you are talking about a cartridge case comparison, it's still looking at a tool and a tool mark. The tool in this case is the firearm. The tool mark is being >> I want to uh draw your attention to plaintiffs exhibit 32. while that's pulling up. Uh, and this has been published. It's been a proof of publication at all three levels already. So, we can, uh, put that thank you. I want to ask you first about an entry here. The second the second sentence under results of examination. Exhibit one's rifle was test fired and found to be in operable condition. Did you perform that test fire? >> I did. Yes. >> Um, how did you receive this this firearm? I received it from another physical scientist in our laboratory. >> Okay. And did it have a scope on it? >> Yes, it did. >> What did you do to to determine if it was in operable condition? >> In order to determine if the firearm is in operable condition, I will find ammunition that it is calibered for. In this place, it was 30 odd 6 Springfield. Load that into the firearm. And then I fired any test fires into our water recovery tank. Okay. And why do you choose a water recovery tank? >> The water recovery tank is what is used to obtain bullet specimens. The water is going to slow down the bullet from its movement so that we can actually obtain the bullet and it is supposed to cause minim minimal damage. >> Why does it matter if there's minimal damage or more damage? You would like minimal damage because that means that there's going to be less damage on the areas that you need to compare >> in the evidence rounds that you or in the in the bullets that you often receive in your cases. Are there cases where there's a lot of damage to those bullets? >> I have received cases with lots of damage to bullets. Yes. Uh, in this circumstance, exhibit one rifle, this Mouser 98306, um, was it an autoloading rifle or a boltaction? >> Exhibit two, cartridge case. Um, let's And we've already read this line. I think defense council wrote read this line to you. The exhibit 6A paragraph there. The result of the comparison was inconclusive. What could there could further testing be done to try and see if there is any uh if you come to a conclusion on this round? >> There was no further testing that I could do. No. >> Is there further testing that could be done in the field? >> There is the possibility of using a 3D system to visualize the individual characteristics on the bullet. >> Do you have the capability of doing that at your lab? >> My laboratory currently does not have that capability. Do you know if the FBI lab does have that capability? >> Um, defense council put up a list of potential firearms that could have filed fired this round or this bullet. Is that list comprehensive? >> It's not an all-inclusive list. >> And does it mean that that this round Probably There's been some discussion about a bullet the 6A bullet jacket fragment. Will you describe what a bullet jacket is? >> Yes, I do have a demonstrative. May I use that? >> Do you have that with you? >> So, this is a demonstrative of a bullet. So, a bullet jacket, it would refer to the outside of the bullet. Inside the bullet would be the lead core. So, when I'm referring to the jacket, it means that I've only received that outer portion. I did not receive any of the lead core intact with it. >> In this circumstance, you received a bullet jacket. A bullet jacket fragment. What does that mean that it's a fragment? >> Fragment means I don't have the entirety of that jacket. >> And can you testify as to why you don't have that entirety? >> And it also your report also says that there are four lead fragments. What is this? Why would you have lead fragments? So, the lead fragments, the lead would be from the inside of the bullet, that core. Um, occasionally when the bullet reaches its final destination, it can split and some of that core might be pulled off of the jacket and be found where it landed. >> And would you be able to gather information from those lead fragments that could identify them as coming from this particular firearm? Would you expect to be able to make that comparison? >> I would not expect to see any characteristics that would help me reach a conclusion. No. >> Why not? >> Because the leg core is on the inside of the bullet. The landing grooves are going to be imparted onto the jacket or the exterior. So when it's moving down the barrel, the inside is not coming In this case, uh, do you have a verification step where your work is reviewed by a another analyst? >> We do. Yes. >> And were your conclusions in this case verified by another analyst? Um, is is there a potential that uh the testing you do can uh destroy the How do you what do you mean? >> Well, prevent it from being tested in the future. >> No, I would not expect anything that I've done to prohibit more examination in the future. No, >> but in general, um, you say you peeled back the the petals, I think you said, of the bullet jacket because it was so crumpled. If that's >> Yes. I think if anything that lends to a better comparison process. It is a very well-known practice amongst firearm tool mark examiners. Without doing a examination like that in preparation, no one's able to see the marks that are needed for the comparison process. >> Okay. In reaching the conclusions that you did in this case, did you follow the protocols and practices that are uh required by your position? >> I did. Yes. >> you said a couple of things of interest to me. Uh, one was that your work is peer reviewed, right? >> The >> there's a peer reviewer, >> a second reviewer. >> It is a verification process. >> Verification process. And you know, in this case, we requested to produce the case file from your reviewers so we could see whether it was accurate or not. You're aware of that, right? >> I am not. And the verification process does not require that the verifier has Kate's notes. their case notes would be within mine and it's just an authored verification chart. >> Well, you wrote a memo to Mr. McBride dated May 19th, did you not? In which you said in answer to our request for the reviewers work product that ATF laboratories do not release materials concerning technical reviewers or verifiers. And you went on to state that do you not that we don't even release the CVs of who the reviewers are. >> So that is not authored by me. That is our ATF procedures and protocols. If that was an email that came from me, I am just verbatim what our quality assurance manager has said. >> Do you think science works best when it works in secret? >> Objection. >> Objection. Argumentative >> council. >> Uh it goes to the issue of that was raised on cross- examination which is my work was peer-reviewed. So, how do we evaluate the strength of that assertion when they refuse to hand over to us the work product of the reviewers or even identify what their credentials are? That's relevant. >> Well, I'm not agreeing or disagreeing with that, but the question itself was argumentative because we can look at the question working in secret. >> Let me rephrase. >> Okay. So, I am going to sustain the objection because of the phrasing. It is inherently argumentative. It is it wouldn't be a question that would be able to proceed into prelim. >> Do you um have an opinion on whether it is scientifically defensible to rely on a peer reviewer and not reveal that peer reviewer's work product? I believe I understand what you're asking. However, in this case, the verifier does not have any work product to show. If you'd like to see their CV, I cannot testify to anything about the procedures of giving their information out. All I can say is that they are employed at my laboratory. They're under the same scrutiny of pro proficiency testing, went through the same training with competency and practical exercises. So, they are a trained and competent examiner. Right. They don't have any work product they show, but your protocol calls for does not documentation of whatever it is they did. >> And that is included in my case file, >> right? But not not the reviewer's work product. >> The reviewer's work product is a verification sheet. If you'd like, I can refer to my case notes and find that specific page number, but that would be the only work product that they would have in this case. >> I see. Now you said two things about the PCAS report on cross- examination. One was that if I understood it that the PCAS findings have been addressed in subsequent studies. Did I hear that correctly? >> Because one of the recommendations was to further actually I think the recommendation was one more blackbox study to show the foundational validity of fireman toolmark examination and since 2016 several have been published. All right, let's let's look at that for a second. First of all, they didn't recommend they found, did they not? Quote, "Pass finds that firearms analysis currently falls short of the criteria for foundational foundational validity because there is only a single appropriately designed study to measure validity and estimate reliability. The scientific criteria for foundational validity requires more than one such study to demonstrate reproducibility. Isn't that what they found? >> That is what their finding was. Correct. >> Okay. And then after that report was published in 2017, they came out with a second report because people said, "Oh, the literature already exists. You missed it." And they said, "No, that's not true." Isn't that right? >> They relevance the preliminary hearing. We're now well into 702 argument. >> He he raised this issue on cross, your honor. He he clearly went beyond the 2009 reference that the court allowed and opened this area up and I don't think it's fair for him to be allowed to do that without me being able to respond to it. >> Thank you. it on crossexamination that door was opened by the state and so I will allow limited questioning uh on recross or redirect however we want to label this. So you may proceed. The In 2017, they filed a second report responding to assertions by people in your profession and others that they had missed or the studies had already been done. Isn't that true? >> Yes. PCAST did a 2017 addendum to their 2016 report, reiterating that they believe that the only way to properly empirically test the science is through these blackbox studies and that they would not take into consideration the numerous amount of work and validation studies done over decades that the firearms community has published. >> And a bunch of other studies were done. Right. >> Correct. And in response to those additional studies, there have been continual criticisms of the methodology of those studies. Isn't that fair? >> Yes. >> And you've read for instance, well, first of all, you attended I see a webinar by the group that did some of the critiques. >> Remember that? >> Which webinar are you referring to? You attended a webinar I believe in 2023, treatment of inconclusive results and error rates of firearm studies webinar hosted by the center for statistics and applications in forensic evidence 2021. >> Correct. I did >> according to you and that group has published a number of studies right up to 2026. For instance, uh their study in 2024 called meth methodological problems in every blackbox study of forensic firearm comparisons in which they concluded that the field still was not reliable despite the studies that you referenced. Isn't that true? >> That is the author's opinion. Correct. >> Right. And they're not the only ones. There have been other groups of statisticians who published articles right up to 2026 saying that the studies that you referenced are unreliable >> that their method methodology of those studies is flawed and cannot be relied upon to support the science of toolar comparison. Correct. >> Yes. There has been studies to say that they believe there is flaws in the blackbox studies and stuff, but there has also been plenty of research done to say the opposite. >> And and lastly, you mentioned that um or it was brought out that you have training and training and experience, right? >> Correct. Yes. Do you agree with the conclusion stated in the uh that neither experience nor professional practices can substitute for foundational validity? Do you agree with that? >> I do. Yes. You agree with the conclusion forensic science discipline that has an error rate higher than 5% is not reliable. >> I don't know that I have opinion to that because I think it's a little on the broad side. I don't know what you would consider high as far as a percentage. Well, I'm I'm referring to the statement at page 151 where they say methods with a high false positive rate are scientifically unreliable for making important judgments in court about the source of a sample. To be considered reliable, the false positive rate should certainly be less than 5% and it may be appropriate that it be considerably lower depending on the intended application. I would agree with that statement. >> You would agree with that. And you also lastly reference your knowledge of the study by the AF AFT of that proficiency test which you have taken uh on bullet comparisons. Correct. >> Correct. >> And the error rate in that particular uh study proficiency test was 20.4%. 4% correct for correct >> item two, >> 18.2% for item three >> and 18.9% for item five. >> I believe those were the results. However, I don't agree that proficiency tests are what are used for validation studies to show foundational validity proficiency. >> So if if the error rates are high, then they shouldn't be relied upon to show invalidity. But they should be relied upon to establish that your experience means that your science is valid. Is that what you're saying? >> Foundational studies are looking at just as Pass said those blackbox studies, different test design, all of which firearm and toolark community has conducted. We've looked at cartridge cases, bullet pristine samples, damage samples, and different firearms. Proficiency test is looking at the accuracy of an examiner's results, not foundational validity. But you would agree that an error rate of 20% is unacceptable. Would establish unreliability. Correct. >> I would agree that those results need to be looked at to see where that error was coming from. >> Right. Okay. Thank you. >> Thank you. Anything further for this witness? >> Yes. >> And and Mr. McBride, I'm going to limit you because your objection to going outside and going to 702 the you're you open the door, but I I've got to close that door to some point. So I will give you a limited number of questions. We need to come to a close. I understand your science has been accepted by courts across the country. Correct. >> Correct. Yes. >> It's routinely admitted in courts across the country. Correct. >> That is correct. Yes. >> Your your science has been peer- reviewviewed and uh viewed favorably by numerous publications and studies across the country and across the world. Correct. >> Correct. Yes. >> No more questions. All right. May this witness be excused? Thank you, Mr. Bert. Thank you, Mr. McBride. Ma'am, thank you for being here. You are excused. All right. That brings us to a close. Do either party wish the benefit of the record before we adjourn for the night. >> Can you just give us about five minutes and then I think an announcement. Can you just give us a minute to chat? >> Yes, you may have that. And um we'll stay in court for these five minutes just because it would take longer to let everyone go and then come We're on. We're live. So, court is back in session. All the parties are present uh except for maybe one attorney. Mr. Grunender, should we wait for council? >> Take maybe 30 seconds to wait for Mr. McBride. >> All right, we'll wait for Mr. McBride. I just want to ensure all the attorneys All right. I note the presence of all attorneys at turning to Miss Netor. >> Thank you, your >> um your honor, we have uh just one more witness um who would be a fairly short witness, not super long. Um so I anticipate we will be done tomorrow, probably by lunch, I would think. Um so maybe if we could plan that that we'll be finished. Um we probably will will not need the entire day tomorrow is my suggestion. falling. Turning to the state, uh, obviously I'm not holding you to your answer today, but just for guidance, does the state anticipate and Judge, we don't anticipate um any rebuttal evidence that needs to be presented to this hearing. So I think the question would be is are we going to argue the bind over tomorrow and the state would be prepared to argue bind over tomorrow. >> All right. Well, I appreciate that in regards to trying to budget time here. Uh how much time does the state anticipate? Obviously, there's one more witness, so I'm not going to um >> if it's a short witness, if it's a short witness, judge, I don't think it should take us the entire morning. Um, but we would would be prepared to argue tomorrow morning at the close of of evidence or first thing in the afternoon. >> And how much time do you anticipate that that argument being? Again, a rough estimate. I'm not holding you to the exact number. I'm just trying to see how close are we to the 5:00 because I'm going to ask the defense the same question as well. >> Um, it wouldn't come close to the 5:00 hour, judge. >> For just you or for both? >> I for for argument. >> Yes. >> Both of us. >> Okay. All right. Well, I'll turn it. Thank you, Mr. If we if if we have to argue two hours a piece for bind over, there's a problem. >> All right. Thank you. >> Thank you. >> To the to the defense. I again, I'm I'm just getting an estimate. I'm not holding you. I'm not going to time you to this, but I'm just trying to see as it relates to 5:00 and for argument for bind over tomorrow afternoon. >> Understood, your honor. Our our request, the defense request is that we be allowed to submit briefing. There are some legal issues that we would like to brief for the court prior to the decision on the bindover. Um we're open to briefing page limits, time limits, all of that. But we would like that opportunity because there are some legal complexities involved here. >> All right. And if uh and and I'm going to ask the state, but if the state Well, I'm not going to I'm not going to assume anything. Thank you. I believe the state is going to object to that, your honor. >> So, so you're what I hear you saying is you wish to >> Well, I don't want to assume what I what it seems like you're saying, I want to be clear, is you're waving oral argument and just doing briefing. >> So, generally, your honor, in cases with multiple counts that are pretty complex issues of law, um I have asked for briefing and the opportunity for an argument. We can set time limits on that as well. prior to bind over. Um I've done this in multiple other cases before courts in Utah. Um and that is my preference to make sure we get the law right. >> And so what how much time if you're asking for argument that in addition to briefing. I'm trying to get the total universe of what's being what's in front of me. >> So I anticipate that I agree with Mr. Grunander that I don't think an argument would take more than a half day. um should take less than that particularly if we're briefing issues beforehand. Um so I don't know two hours for argument total. >> All right. Thank you Miss Fisser. Turning back to the states what is we've you've heard from the defense >> again judge. The the state would prefer to argue tomorrow. We think the court has all the evidence before it and could make a bindover decision um after oral argument tomorrow. If the court decides the briefing is necessary um I believe the court reporter could have a transcript available as early as Monday of next week at an expedited um on an expedited request. Um with that said, each side would need, you know, two weeks to we would we would we're the moving party. We would prefer a motion in support of bindover. There would be a response and then a reply. So we're probably six weeks out before we can actually argue before bind over. We would rather not wait 6 weeks to argue bind over. That's why we would like to do it tomorrow. But that's the timeline we're probably looking at is about 6 weeks and then 2 to three hours of argument. So, are you requesting to move forward with oral argument tomorrow and in addition to briefing or again I'm just trying to see the whole universe that's before me? >> Good question, judge. If if if the court wants briefing, I don't do don't believe we would argue tomorrow. >> We would save that argument until the briefing is finished. >> All right. would you agree on the time frame for briefing as been proposed by Mr. Gernander to allow each side the appropriate time taking in consideration a transcript which may or may not be needed by the parties. >> Um, we are also okay with simultaneous briefing on this if the state prefers that. um that wouldn't take 6 weeks if that's the concern, but uh we have no objection to the 6 weeks. >> All right. And does uh your client waves any speedy trial rights that may result as this request? I I just want to make sure I'm addressing constitutional rights. Also going to be addressing uh from uh the victim representative. This goes squarely into the victim's rights to uh speedy disposition. So again, I'm just trying to take it and I know we're late. I just want to cover all these bases. >> Yes, sir. Client will wave his right, his speedy trial right so that we can properly brief the preliminary hearing issues. >> All right. >> To the state. If the court wants briefing, we would not like to do simultaneous briefing. We would like to start it out as the moving party. Uh defense would then respond. We would then have the opportunity to reply before oral argument. >> All right. And I'll invite uh Miss Kirk's attorney if you wish to be heard. This goes squarely into uh victim's rights as recognized in the Utah Constitution as well as Utah statute as >> Your honor, obviously we want swift justice for for Charlie here. Um, I I I I think we obviously know the court needs to make sure they're balancing all interests here, but I think as soon as the matter could be bound over and this matter could be set for trial, that's that's what the Kirk family would like. >> But in Do you want to weigh in regards to briefing because it sounds like it's >> Your honor, I'm hesitant to weigh in on briefing. I I I feel as if that is a decision which the court should decide whether or not it's necessary. Um, and and we're going to take no position on briefing. We just we we've asked for for speak. with this has been 10 months coming. Uh we've heard a lot of evidence. To me, it seems rather uh rather overwhelmed, but that's that's my my opinion. Obviously, it doesn't matter. Um but so we've just asked for it to to move quickly. >> Thank you. All right. Right. Having heard from the parties, I will go ahead and allow uh well, I'm granting the request for briefing as it relates to probable cause uh to allow both parties to um file the briefs with defense as you are the moving party requesting briefing. When would you when would you >> or to the state? Because we have the burden, I believe it's appropriate for us to initiate the briefing. >> Okay. >> Because we're moving for the bind over and then we would have an opportunity to reply >> and that's okay. So let's let's start. Mr. Grunander, when can you have your brief filed? >> Just a moment, judge. >> Thank you. And then going to defense. Well, I'll follow up with you as well. One moment, Mr. Gander. I'm trying to >> Mr. Gander, turning to you, >> judge. If we were able to collect the transcript Monday, if we had two weeks from Tuesday, we could have our our uh motion in. I believe that's the 28th of July. >> All right. So, states brief by the 28th of July, assuming that they can get the transcript by Monday. All right. States brief. Okay, Miss Visser, >> we need two weeks after that. So August 11th I believe is two weeks. >> All right. And to the state if you wish to file a reply when >> it would be 7 days after that judge. >> So so the 18th >> August 18th. All right. And for oral argument what I can set is September 1st in the morning. Uh, let let me take a quick glance here at the calendar. I'm trying to keep that close in time so we can move this along for all reasons previously stated. 10:00 a.m. on September 1st. How does that look for the parties? Your honor, I'm going to be in trial that week and I'd really like to be here for this argument. Is there any way we could just do it the next week? >> Well, the problem is I'm happy to look, but it is getting very It would be very tricky. This is a fortunate opening. >> Got it. >> Otherwise, I >> We'll take it then. >> Okay. I appreciate you accommodating the court's schedule. September 1st in person. I see the defense nodding. Yes. Yes. >> Yes, please. >> All right. September 1st at 10:00 a.m. Uh and uh it sounds like up to two hours per side and uh and we can take it from there. Mr. Granander. >> Uh judge, page limits. Uh we spoke as a team and our preference would be to limit uh at least the initial briefs on both sides to 30 pages, no longer than 30. >> Uh defense stipulates to that. I'd like to counter with 40. >> Okay. Well, this is not an auction, but um any any final thoughts? >> We'll submit it, judge, and then we would ask for half of whatever your honor grants for the final reply. >> All right, we will set it at 35 pages and then we will go half of that, which is an odd number. Um 17. We'll go 17 pages for the reply. Parties agree. >> I was going to offer to round up to 18. >> We'll take the 18, judge. >> All right, we will go with 18. So 35 pages for the rep for the initial filings, 18 response, and September 1st at 10:00 a.m. Anything further for this evening? >> Yes, judge. I believe the Kirk family uh there was a ruling that was reserved by the court with respect to publication of an exhibit that probably needs to be addressed. >> Yes. And um now my understanding is what's being requested is the portion that had been altered which I believe is Your I believe it was enhanced um and that it was like zooming in and and circles that were put on. we would ask for the entirety of of that exhibit to be displayed in in court. So, I believe it was about eight minutes if I'm not mistaken. Don't hold me on the on the on the time. >> All right. Any any any final input on that? Thank you for reminding me from defense, any final inputs. All right. What we can do is at the conclusion of defense's uh presentation of whatever witnesses are going to do, we can address that. So, The concern I heard was that the um victim represented representative wanted to see what the court would consider before bindover decision is made and that a lots for that. So whether it happens right now which the hour is late or by right after the conclusion of evidence that's going to help in well before I consider bind over. So, in the interest of justice and balancing that, I do I don't want to take away time. It sounds like we're going to be okay, but I I always want to be cautious, but I will grant that request and that will be played in open court and we will watch the totality of I believe it is states exhibit 12.1, which is eight give or take two minutes, >> your honor. And just to clarify, it will not be televised. Correct. It's only for people in the courtroom. >> That is correct. Because the request was made by the victim representative who is present in court. Right. >> I will grant that request and it will be played in the courtroom uh for all present to see, but not to be broadcast on TV. >> And we just would like a continuing objection for all the reasons we raised before. Your honor, >> thank you. I appreciate you making that record. I note the standing objection. That objection as it relates to this request is overruled and that will be played at the conclusion of defense's presentation of evidence and before uh the state if they do have a rebuttal witness. Please remind me so that I can address it and uh that is taken care of. Thank you to the parties. I'm hesitant to ask this anything further. >> All right. >> Nothing further from the state. >> All right. Thank you all. I appreciate your hard work today. And that concludes court. We are in recess till 9:00 tomorrow morning.