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Saturday, July 9, 2011

Simple Fracture: Supreme Judicial Court Of Massachusetts Finds No Problem With "Fracture Match" Testimony

A "fracture match" is a "physical match" or "jigsaw match" that occurs when a substance or an item has been broken into one or more pieces, and the jagged ends are observed to fit together. The underlying premise of a "fracture match" is that an item that is broken or torn by human action will not be fractured in exactly the same way twice. This is because the application of human force is not precisely reproducible, and the characteristics of a break or a tear will be different every time. Thus, a break or a tear brought about by human force will be unique, and the resulting ends at the point of the break or tear will interlock in a unique "match." And, as the recent opinion of the Supreme Judicial Court of Massachusetts in Commonwealth v. Gomes, 944 N.E.2d 1007 (Mass. 2011), "fracture-match" testimony has been accepted in at least six States and has seemingly not yet been rejected. 

In Gomes, John Gomes was charged with murder in the first degree in connection with a shooting murder. After the subject shooting,

one eyewitness directed an officer to the area behind 26 Ridgewood Street. The officer reached under an unenclosed porch and recovered a Calico M950 semiautomatic handgun with a velvet bag attached by black electrical tape to the spent cartridge ejection port of the gun. The bag contained eighteen spent shell casings. The jury could have found, based on the testimony of a ballistics expert, that the gun was the murder weapon and that the eighteen spent shell casings had been fired from the gun. 

Police later obtained a search warrant for Gomes' apartment, and

[a]mong the items seized during the execution of the warrant were four magazines about guns and a roll of black electrical tape from the top dresser drawer in the defendant's bedroom. A senior criminalist with the Boston police department compared the end of the roll of tape with the ends of a piece of tape affixed to the Calico M950 handgun. She found a "fracture match" from which she opined that the piece taken from the gun had been severed from the roll of tape seized from the defendant's bedroom dresser drawer.

At trial, the criminalist testified "that one end of a piece of black electrical tape that held the velvet bag to the ejection port of the gun matched the end of the roll of electrical tape seized from the defendant's apartment."

After he was convicted, Gomes appealed, claiming, inter alia, that the Commonwealth failed to establish that the science of "tape-end" (fracture) matching was reliable, that the criminalist was a competent expert in this field, and that his counsel's failure to challenge the criminalist's opinion on these grounds constituted ineffective assistance of counsel.

The Supreme Judicial Court of Massachusetts disagreed, first noting that it basically still follows Frye, holding that "general acceptance in the relevant scientific community will continue to be the significant, and often the only, issue." Applying this standard, the court found that the trial judge acted propely in accepting

the foundational testimony of the criminalist as to the general acceptance of fracture match theory within the scientific community. Moreover, he indicated that he relied on the witness's education, training, and experience, and looked to his own common sense in evaluating the reliability of fracture match theory, which depends not on esoteric scientific principles but rather on common experience that is within the grasp of the ordinary jury. This analysis was appropriate in the circumstances....We accept the trial judge's observation, and conclude that he acted within his discretion in allowing the fracture match evidence.

Moreover, the court noted that 

"fracture-match" testimony has been accepted in at least five States, and the defendant has directed our attention to no case where the theory has been rejected. See Davis v. State, 2 So.3d 952, 956 (Fla.2008), cert. denied, ––– U.S. ––––, 129 S.Ct. 2872, 174 L.Ed.2d 585 (2009) (broken knife blade);Grim v. State, 841 So.2d 455, 458–459 (Fla.), cert. denied, 540 U.S. 892, 124 S.Ct. 230, 157 L.Ed.2d 166 (2003) (masking tape); State v. Dressner, 45 So.3d 127, 134 (La.2010), cert. denied, 79 U.S.L.W. 3370 (Mar. 7, 2010) (broken knife blade); State v. Smith, 988 So.2d 861, 867 (La.Ct.App.2008) (wood);Commonwealth v. McCullum, 529 Pa. 117, 121, 602 A.2d 313 (1992) (broken jewel stone in bracelet);State v. Zuniga, 320 N.C. 233, 251–252, 357 S.E.2d 898, cert. denied, 484 U.S. 959, 108 S.Ct. 359, 98 L.Ed.2d 384 (1987) (pieces of torn newspaper); State v. Jackson, 111 Wash.App. 660, 667, 46 P.3d 257 (2002), aff'd, 150 Wash.2d 251, 76 P.3d 217 (2003) (duct tape).

Finally, the court found that the criminalist was properly qualified as an expert witness because

The witness has a master's degree in forensic chemistry. She has had a wide range of fracture match experience involving a wide variety of materials in the course of her graduate studies in forensic chemistry. She had specific practice in performing fracture matches in workshops at graduate school. At least one court has held that fracture match testimony is an appropriate subject for opinion testimony by a forensic chemist. 

(Hat tip to Michael Avery)

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/07/a-fracture-match-is-a-physical-match-or-jigsaw-match-that-occurs-when-a-substance-or-an-item-has-been-broken-into-one-or-more.html

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