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Steven AverytranscripttranscriptWilliam Newhouse — Direct/Cross/Redirect/Recross - Day 14 - Steven AveryFirearms examiner William Newhouse linked 11 cartridge casings and bullet FL to a Marlin .22-caliber rifle on Day 14, but could not identify the gun that fired bullet FK. Questioning focused on his comparison markings and review records.
Thomas J. FallonJerome F. ButingDean A. StrangPatrick L. WillisWilliam NewhouseCourt ClerkWilliam NewhouseMR. FALLONMR. BUTINGTHE COURTMR. STRANGdirectcrossredirectrecross
Steven Avery/Day 14/March 1, 2007
3 pages·3 witnesses·1,632 lines
Leslie Eisenberg qualified her identification of quarry bone and explained her burn-site opinion. Curtis Thomas identified burned device parts and described limits on data recovery. William Newhouse gave differing conclusions for two bullets and was questioned about his comparison methods and documentation.
DirectDirectWilliam Newhouse — Direct William Newhouse Thomas J. Fallon

COURT CLERK: You can step over there. Please raise your right hand.

WILLIAM L. NEWHOUSE, called as a witness herein, having been first duly sworn, was examined and testified as follows:

COURT CLERK: Please be seated. Please state your name and spell your last name for the record.

WILLIAM NEWHOUSE: William L. Newhouse, N-e-w-h-o-u-s-e.

MR. FALLON: Thank you. Good morning, sir.

DIRECT EXAMINATION BY ATTORNEY FALLON:

MR. FALLON: What do you do for a living?

WILLIAM NEWHOUSE: I'm employed as a firearm and toolmark examiner with the Wisconsin State Crime Laboratory in Madison, Wisconsin.

MR. FALLON: How long have you been so employed?

WILLIAM NEWHOUSE: I joined the Wisconsin State Crime Laboratory in November -- I'm sorry, September of 2002.

MR. FALLON: Prior to joining the Wisconsin State Crime Laboratory, what other employment have you held?

WILLIAM NEWHOUSE: Well, I have to back up to 1972. I accepted a position with the California Department of Justice in August of 1972, as a -- out there they call us criminalists -- as a trainee, essentially, at that time. I didn't really encounter firearms and toolmark work, which is the work I do here in Wisconsin, until probably the fall of 1974.

I, at that time, went through -- initiated the training courses they had in place in the Sacramento Crime Laboratory that dealt with the firearms and toolmark section and dealt with the kinds of examinations that we were expected to perform in the course of case examinations in the firearm section. I completed that training course successfully.

And January of 1975, then, still in Sacramento, I was asked to take a week long course, again as part of my training, that dealt with the theory of identification and how is it you can say anything about a bullet or a cartridge casing and answer questions about whether they were fired from a particular gun or not.

After I completed that, and I think the next week I was in another course that dealt with ammunition problems. I was then assigned to the firearm section of the Sacramento Laboratory and was responsible, until I left that laboratory, for most of the firearms work that came into that firearms section of the laboratory.

MR. FALLON: And when were you doing your firearms identification work for the State of California, about what time frame are we in?

WILLIAM NEWHOUSE: We're talking about the spring of 1975 until 1981.

MR. FALLON: And after that, where did you next have professional experience?

WILLIAM NEWHOUSE: I moved to the Montana State Crime Laboratory in January of 1981. Took a position there as that State's Firearm and Toolmark Examiner. While I was there in Montana, I had the opportunity to obtain some additional training.

I went to the FBI Academy. It was probably in 1984, approximately. Took a course there. It was a week long course that dealt with specialized techniques in firearms and toolmark identification. We look at special problems that we encounter in the firearms section. And I was there until November of 1988.

At that time I then moved to Kansas City, Missouri Police Department Crime laboratory as a Firearms and Toolmark Examiner, one of four in that laboratory, and was responsible primarily for firearms case work in that laboratory.

The last two years that I was in the firearms section there, before I came to Wisconsin, I was Chief Criminalist of the Firearms Section in which I had supervisorial (sic) duties in addition to the case work duties.

And then in, as I mentioned, in September of 2002, I came from Kansas City up to the Wisconsin State Crime Laboratory.

MR. FALLON: And prior to engaging in this field, did you receive any bachelor's degree from any university?

WILLIAM NEWHOUSE: I have a bachelor of science degree in physics from Purdue University. I received that in June of 1970.

MR. FALLON: And did you pursue any post-graduate training, at least in some respects?

WILLIAM NEWHOUSE: I took a number of graduate courses for approximately two years, until I -- until August of 1972, when I went to California. Those were -- most of them were in physics courses. And I was doing that while I was looking for employment after I had gotten my degree.

MR. FALLON: All right. First of all, if you could tell us what is firearms and toolmark identification, if you can just generally tell us about that field.

WILLIAM NEWHOUSE: In the firearms section of most crime laboratories, we're dealing with evidence that's recovered in the course of criminal investigations that involve shootings. So, obviously, what I'm going to be looking at, in most cases, there's going to be a gun.

I'm interested in and have to be able to define how a gun functions, whether it's functioning properly, perhaps whether it's been altered in some cases and, of course, whether or not I can fire the gun safely, or whether or not it was capable of being operated safely in the instant in which -- from which it was recovered.

I'm also asked to look at bullets and cartridge casings. We fire these guns, the bullets, of course, are -- leave the gun, the cartridge casings, depending on the design of the gun, can leave the gun and are recovered at the crime scenes, occasionally recovered at autopsies.

I'm asked to examine those items of evidence, the cartridge casings and bullets. And most often I'm asked to determine, if a gun has been recovered, whether that gun, or that bullet, or that cartridge casing has been fired in a particular weapon. In those instances where I may not have a gun, then the question may be, was this group of cartridge casings all fired in the same gun or do we have more than one gun involved.

The same questions apply to bullets. So, then the next thing I do in that section most frequently is look at bullets and cartridge casings, compare them to test fired bullets and cartridge casings so that I can answer those questions.

The other element of firing the gun involves gunpowder and gunpowder residues. And it's also part of, or one of the duties that I have, to examine clothing; to examine patterns on skin of shooting victims; and answer questions about distance, can I determine, if possible, what distance the shooting victim may have been from the gun when the gun was discharged.

MR. FALLON: All right. Have you had any -- Do you currently belong to any professional organizations?

MR. FALLON: And what are those?

WILLIAM NEWHOUSE: I'm a member, and have been for something over 20 years, of the Association of Firearms and Toolmark Examiners.

MR. FALLON: All right. And have you testified in courts of law regarding your findings and expressed opinions on those findings?

WILLIAM NEWHOUSE: Yes, I have.

MR. FALLON: Do you have any estimate for us as to approximately how often you have been called upon to testify in court proceedings regarding firearms identification issues?

WILLIAM NEWHOUSE: I'm satisfied it's been much in excess of 300 times at this point.

MR. FALLON: I believe there's an exhibit placed in front of you, and what is the number on that exhibit, for us?

WILLIAM NEWHOUSE: Exhibit 416.

MR. FALLON: 416. And what is Exhibit 416?

WILLIAM NEWHOUSE: 416 is a curriculum vitae, a description of my experience and the training that I have received in the 30 some years of experience I have had in crime laboratories.

MR. FALLON: All right. All right. Mr. Newhouse, in this particular case, were you called upon to examine some weapons, some bullet fragments, and some cartridges?

WILLIAM NEWHOUSE: Cartridge casings, yes, I was.

MR. FALLON: Did you conduct such an examination?

MR. FALLON: And were you able to make any findings or any comparisons, based on your examination?

MR. FALLON: All right. Well, before we get into that, if you could -- I think it would probably be good if you would define some terms for us. Some of us are not so proficient in firearms technology and language. So, first of all, can you tell us what a cartridge is?

WILLIAM NEWHOUSE: Most of you are probably familiar, if only secondarily through TV, with guns, and know that what you fire in a weapon is a cartridge. You may not be aware of what the different components of a cartridge are, and it's the components, of course, most often, that I'm asked to look at. You are going to hear me talk about some of these parts of a cartridge and how they relate to and connect with different parts of the weapon.

A cartridge is a composition of about four different parts. A cartridge consists of a cartridge casing, and we'll see some of these later, I presume, at least pictures of them. We also have a bullet or a projectile. This is part of a cartridge. And, of course, the bullet is what is aimed at a particular target and what will, if the weapon is working properly and the cartridge works properly, what will strike that target.

Inside of the cartridge, inside the cartridge casing, is gunpowder. Gunpowder is a propellant. It's a chemical that, under the conditions that we expose it to when we're firing the gun, essentially explodes in the gun. And, of course, when it does that, a couple of things happen. It forces the bullet out of the barrel of the weapon and, again, down range from wherever the weapon is pointed.

The last component in a cartridge is what we call a primer. There's a part of the gun that's going to cause the cartridge to fire. That part of the gun actually strikes a different chemical in the gunpowder that's present in the cartridge casing and that is very shock sensitive. It gets struck. It explodes. It ignites the gunpowder and then our cartridge fires and the gun should work as it's intended to.

MR. FALLON: Generally, on a gun, where would the primer be located or found.

WILLIAM NEWHOUSE: Really only two places on any cartridge, these days at any rate. We may have a rim fire cartridge, and in this case that's the kind of ammunition that was used. And in the case of a rim fire cartridge, the primer is located around the edge of the head of the cartridge.

And we may also have, in other weapons, a center fire. In that instance, the primer is located in the center of the head or the end of the cartridge.

MR. FALLON: All right. And you began to explain, I think you did, on how the cartridge is actually fired. So let me ask you, then, what happens to the bullet as it is propelled down the barrel and out toward its intended target?

WILLIAM NEWHOUSE: Well, we have to know where the bullet starts out. Of course, it's in the cartridge. But in the weapon, the cartridge is going to be chambered or located right at the end of the barrel of the weapon.

The muzzle of the weapon is the very front and most portion of that barrel. And at the back of the barrel will be a part of the barrel that's called the chamber. And it's designed to receive a cartridge. When the cartridge is fired, the bullet is projected or is expelled from the cartridge and into the barrel.

If the gun is going to work properly that barrel has to be sealed by the bullet. That is, no gases can escape around the sides of the bullet. And so the bullet, as it comes down the barrel of the gun, is in contact with that inner surface of the barrel. We have, then, the lead surface or the copper jacketed surface of the bullet being scraped by the inside of the barrel of the weapon.

MR. FALLON: All right. What happens to the cartridge when the weapon is fired?

WILLIAM NEWHOUSE: That's going to be determined by the design of the weapon. Some weapons are designed to keep the cartridge, the fired cartridge casing now, inside the weapon, so that it has to be extracted manually.

In other designs of weapons, allow you to extract the cartridge casings in certain ways. We may have what's called a bolt on a weapon that if you actually pull up and back and that will cause the cartridge casing that's been fired in the weapon to be extracted and rejected from the weapon.

And, finally, there's a design of a weapon that's very common that's called a semi-automatic design. And, in this instance, the cartridge, when it's fired, the weapon is designed to use the gases, the energy that's created by the explosion of that gunpowder in there, to actually drive back a part of the weapon, extract whole that cartridge casing from the chamber and then there will be another part of the weapon that the cartridge casing comes into contact with that causes the cartridge casing to be ejected from the weapon.

And, then, the next step in this kind of weapon is that that same part of the gun that's driven backward and extracts the fired cartridge casing, moves forward again, under spring pressure most of the time, and it pushes the next cartridge that's in the weapon up into the chamber, and at the same time cocks the weapon.

So on a semi-automatic weapon, if you fire a cartridge in that weapon, it ejects -- extracts and ejects the cartridge casing, chambers the next round, cocks the weapon, and now the gun can be fired by a pull of the trigger.

MR. FALLON: All right. And just so that we're clear, we have had some other terminology used by some of the other witnesses, a phrase called a shell casing. What is the relationship, if any, between a cartridge, and a shell casing, and what have you?

WILLIAM NEWHOUSE: There's a number of different terms that are used commonly in the public that refer to the same thing. I generally, and in my reports, describe a fired cartridge casing as a cartridge casing. But it can also be called a shell casing. Some people call them hulls, that's generally in shotguns, but it is misused also. If you heard the term shell casing, it's the same thing as what I'm referring to as cartridge casing.

MR. FALLON: All right. Given this process that you have described about how -- what happens to the bullet upon its being fired and what happens to the cartridge casing; what makes firearms identification possible?

WILLIAM NEWHOUSE: You have heard me describe, I think, that when a cartridge casing or cartridge is fired in a gun, that we have contact between different parts of the gun and the cartridge casing. And, then, I know I described, specifically, that when the bullet passes through the barrel of the gun that it's in contact with that inner surface of the barrel.

Whenever there is a contact between either the bullet and the cartridge casing with a part of the gun, we have the opportunity for a marking to be transferred to that item. Let's talk, specifically, about the bullet. When that bullet passes through there and is scratched by the inside of the barrel of the weapon, and I look at that surface of the bullet under magnification in the laboratory, what I'm going to see are a series of scratches. We call them stria. They are actually three dimensional engravings, something more than scratches, in most instances, on the surface of the bullet.

When I test fire the gun in the laboratory, I fire it into a water tank and I retrieve the bullets that I fired. I can examine those test fired bullets and demonstrate to myself that I have a pattern of these engravings, of this stria, on that surface of the bullet. And I can compare, test to test, two bullets that I test fired in the weapon and establish that, in fact, when I fire a bullet from that particular weapon there is a pattern I can expect to see on that bullet.

And so now I know, having done that, that when I look at a bullet that I don't know what gun it has been fired from, that if I find that pattern on there, then I have the opportunity to draw a connection between the bullet that's been recovered and submitted to the laboratory and possibly the gun that's been submitted too. And that connection is going to be based on the presence of these patterns of markings.

With the cartridge casing, they have exactly the same thing going on, and of course we have different parts of the gun that are involved. I will talk about two because they were involved in my examination in this case.

I told you that a part of the gun strikes the cartridge and causes it to fire. It's that primer causes an explosion and, of course, the cartridge goes off and the bullet goes away. That firing pin, that piece of metal in the gun that actually strikes the cartridge, has markings on it that were created during the manufacture of that firing pin. And some of those markings can be transferred to the cartridge casing.

Again, I test fired the cartridge casing. I don't know when I test fire the gun what parts of the weapon may be marking the cartridge casings in a way that will allow me to come to any conclusion about it, or whether there will be any marks there. I examine my test fires. I will examine the firing pin impression. And under magnification, I may see a pattern of markings in the firing pin impression.

And, again, if I do, and can demonstrate that that's occurring with that ammunition on every cartridge casing I fire in there, then I know I have something to look for on cartridge casings that have been recovered in the course of an investigation and maybe tie that into that gun. The other part --

MR. BUTING: I'm sorry, could we have a little bit more question and answer to break it up and follow along. The narrative is rather lengthy.

THE COURT: That's a good point.

MR. FALLON: Very well.

MR. FALLON: (By Attorney Fallon)~ We'll develop that a little further as we get into some of the opinions you will offer. But I wanted to have you define another term or two for us, if you would. There's a phrase that I'm sure many people have heard on television and elsewhere called lands and grooves; could you tell us what they are?

WILLIAM NEWHOUSE: These relate to the inner surface or the inside of the barrel of the modern gun. When they manufacture that barrel, they put grooves on the inside surface of the barrel.

And, additionally, when they put those grooves into that surface of the barrel, they turn the tool that they are using to put the grooves in there and give it a twist. We call, of course, the grooves of the barrel are the grooves. The term that's applied to the area of the barrel between the grooves, we call lands, or l-a-n-d-s. Don't know where the term came from, but that historically has been the term applied to that area between the grooves in the barrel of the rifle -- or of the weapon.

MR. FALLON: Your Honor, I think this would be a good place to break for lunch.

THE COURT: All right. Members of the jury we'll take our lunch break at this time. We will resume at 1:00. I will remind you not to discuss the case at all during the lunch break. You're excused at this time.

(Jury not present.)

THE COURT: You may be seated. Counsel, were you going to be prepared to meet in chambers at 1, 1:00?

MR. BUTING: Yes, we could do that.

THE COURT: The package that you were expecting came in?

THE COURT: Very well. We'll see you at 1:00 then in chambers.

MR. FALLON: Judge, would it be beneficial to have a quick five minute chat right now perhaps?

THE COURT: Back in chambers?

(Noon recess taken.)

THE COURT: Members of the jury, I have been informed that some of you have had questions about whether or not the trial is proceeding on schedule. I discussed that matter with counsel during the break and I have been assured that the trial is proceeding on schedule.

And I can also tell you that because of the weather situation today and tomorrow, it's likely that we'll leave early today and we may be well adjourning early tomorrow as well. We'll try to make arrangements to get the bus here a little sooner to accommodate that schedule. At this point, Mr. Fallon, you may resume your direct examination.

MR. FALLON: Thank you, Judge. Good afternoon, sir.

DIRECT EXAMINATION CONTD. BY ATTORNEY FALLON:

MR. FALLON: I believe we left off with your discussion of lands and grooves. And I just wanted to have one more question on that topic before we move on. And that is, why are there lands and grooves, or how does it come to be that there are lands and grooves in the barrel of the rifle that occur during manufacturing?

WILLIAM NEWHOUSE: The manufacturers put those in the barrel. And you remember, I described how they will turn the tool that creates the grooves in the barrel. Those are there because when the bullet passes through the barrel, it fills the barrel, engages that rifling, and when it leaves the barrel it is now spinning and that makes the bullet more stable and makes the gun much more accurate.

MR. FALLON: Now, I'm going to have Investigator Wiegert show you some exhibits, sir, as we begin the remainder of your testimony. First of all, I would like Exhibit 247, which I believe it is the rifle. The record should reflect that Investigator Wiegert is handing Exhibit 247 to Mr. Newhouse. And I would ask you, sir, do you recognize that item?

MR. FALLON: And what is, for the record, item -- Exhibit 247?

WILLIAM NEWHOUSE: Exhibit 247 is a .22 caliber Marlin manufactured semi-automatic rifle. Actually known as the Glenfield Model 60. And this was a weapon that was submitted to the laboratory in the course of this investigation.

MR. FALLON: And how is it that you are able to recognize that particular weapon as the one that was submitted to you for examination?

WILLIAM NEWHOUSE: I mark or, in some cases, with guns in particular, place a sticker on the weapon with the information that associates it with -- associates it with our case number and the date that I opened the box that it was in and so on.

Additionally, I had also, when it was submitted to the laboratory, I had checked it to make sure it wasn't loaded, and safe to handle and store in the laboratory, before I examined it in the firearms section. I also have a tag on there with that same kind of information on it.

MR. FALLON: And I see you are holding the exhibit, you are pointing to what appears to be a green tag on the trigger guard?

WILLIAM NEWHOUSE: That's correct.

MR. FALLON: And that is a tag that you affixed to the weapon upon your receipt of it?

MR. FALLON: All right. I would like to have Investigator Wiegert also show you one other item -- well, two other items. Exhibit 250, the shell casings; do you have Exhibit 250 in front of you?

MR. FALLON: And do you recognize that exhibit?

MR. FALLON: And for the record, what is Exhibit 250?

WILLIAM NEWHOUSE: Exhibit 250 is a paper bag, a box, and eventually you get to 11 fired cartridge casings, all of them .22 caliber cartridge casings.

MR. FALLON: And are those the casings that were submitted to you for examination and comparison in this case?

MR. FALLON: And, finally, if Investigator Wiegert would provide to you Exhibits 276 and 277. Which one are you holding at the moment?

WILLIAM NEWHOUSE: I have Exhibit 277.

MR. FALLON: All right. And tell us what Exhibit 277 is?

WILLIAM NEWHOUSE: Exhibit 277 is a bullet, a bullet fragment if you like, that we designated as Item No. FL when it was received in the laboratory.

MR. FALLON: All right. And Exhibit 276?

WILLIAM NEWHOUSE: Exhibit 276 is a second bullet. And this one we designated as Item FK when it was received in the laboratory.

MR. FALLON: All right. Were all these items submitted at the same time, or did they come in in different -- at different times?

WILLIAM NEWHOUSE: They came in at different times.

MR. FALLON: All right. And as a result of which, how many reports did you generate regarding your examination of those items?

WILLIAM NEWHOUSE: I wrote two reports to describe the conclusions I came to.

MR. FALLON: All right. Let's take them one at a time. We'll start with the first report. At approximately when was that first report prepared by you regarding your findings?

WILLIAM NEWHOUSE: The first report that I wrote was written on February the 21st of 2006.

MR. FALLON: All right. So let's begin, then, with that report and your examination regarding that report. With respect to that first or initial examination what were you asked to do?

WILLIAM NEWHOUSE: Well, I had -- I knew that we had submitted in the case a rifle and that some cartridge casings had also been recovered and submitted. I was asked to examine and test fire the rifle, and then to answer the question, determine if I could, whether the cartridge casings that had been recovered had actually been fired in this rifle, or whether they had been fired in some other weapon.

MR. FALLON: All right. All right. Let's begin with the rifle. What was the first thing that you had to do in order to attempt any subsequent comparisons?

WILLIAM NEWHOUSE: The procedure, the approach to a weapon examination is really the same on just about any gun that I look at. Initially, I'm concerned about whether the weapon is safe to fire. I know I'm going to want to do that.

I also want to examine the weapon, as I did in this case, and document various features of the weapon that might allow me to identify it later, or that give me some idea of a possible problem with its function if I examine it closely.

Additionally, I'm interested in whether or not there might be, in most cases, some other kind of evidence on the weapon. Just depends on whether it's been examined by someone else or not or whether I'm the first to actually handle it.

So, in this case, the first thing I did was to go through the weapon. It had already been through the DNA section. I didn't need to be concerned about any materials or substances on the exterior of the weapon. And so I just documented serial number, caliber, make, model, length of the barrel, various physical characteristics of the weapon.

One of the other things that I did in my initial examination is to examine the bore of the weapon, to look down the barrel. For two reasons, one, I want to know that it's not obstructed. And the only way to do that is to look down there and make sure there is not a bullet caught up somewhere in the middle of the barrel.

And the other was to look at the condition of the barrel. That gives me some idea of what I might expect to see when I fire it, and in particular what condition the bullet that I recover from test firing it might be.

MR. FALLON: All right. And did you subsequently, then, test fire that weapon?

MR. FALLON: And what determination did you make regarding the weapon's functioning capability?

WILLIAM NEWHOUSE: After I worked my way through the gun, I was satisfied it was working and in safe enough condition to fire. So I went ahead and selected some ammunition from the collection there at the laboratory and actually fired the weapon recovering cartridge casings and the bullets and also confirming that the weapon does function as it was designed to function.

MR. FALLON: All right. And what kind of ammunition did you select for your test firing?

WILLIAM NEWHOUSE: The cartridge casings that had been submitted, the recovered cartridge casings, were manufactured by CCI, one of the companies that makes ammunition. So I fired, from my collection, three CCI cartridge casings. I'm sorry, three CCI cartridges.

MR. FALLON: All right. And those cartridges contained the bullets that you previously described, in terms of how the weapon operates?

MR. FALLON: All right. And, generally, just for our benefit, what is a bullet? What does it consist of? What is in the bullet?

WILLIAM NEWHOUSE: Virtually all bullets are going to be either lead composition, or they will be a lead core that's contained within some kind of a copper alloy jacketing. In this case, the bullets that I fired initially in this weapon, particularly for the comparison to and the examination of the cartridge casings that were submitted, were lead bullets.

MR. FALLON: All right. All right. Now, after you determined that the .22 caliber rifle was functioning properly, what did you do with respect to determining whether any of the cartridge casings had been fired from that rifle?

WILLIAM NEWHOUSE: Well, as I said, I recovered the cartridge casings that I had fired in this weapon. The next step was to compare those to the recovered cartridge casings, those ones that were submitted. And at that moment, or at the point that they were recovered, of course, we didn't know what gun they were fired in.

The examination is a microscopic examination. I'm looking at very, very, tiny markings that are placed, as I described earlier, on the cartridge casings, by the different parts of the gun.

First thing I do is to look at my test fires, to again assess what expectation I can have of finding markings that are placed there by the gun, what they look like, what patterns I will see. Having done that, I would then, using my microscope again, place one of the cartridge casings that we're wondering whether it was fired from the gun, and one of my test fired cartridge casings, on the microscope, and do a direct comparison, under magnification, of those markings that I see on the cartridge casings.

MR. FALLON: And were you able, then, to make a determination as to whether the casings submitted to you had in fact been fired from that gun?

MR. FALLON: And what conclusion did you reach?

WILLIAM NEWHOUSE: I was able to determine that all 11 of the cartridge casings that had been submitted had, in fact, been fired in this rifle.

MR. FALLON: And the opinion that all of them had been fired in that rifle, do you hold that opinion to a reasonable degree of scientific certainty?

MR. FALLON: And your opinion that the weapon, the .22 caliber Marlin Glenfield 60 rifle, was functioning properly upon its submission to you; do you hold that opinion to a reasonable degree of scientific certainty?

MR. FALLON: All right. I would like to direct your attention then to the second examination that you prepared in this particular case. I want to direct your attention to May of 2006; were you once again asked to conduct an analysis involving that very same Marlin Glenfield rifle?

MR. FALLON: All right. This time, what was the requested task or examination that was expected?

WILLIAM NEWHOUSE: By now, two bullets, two pieces of metal that looked like bullets, at any rate at that point, had been recovered. I was asked, again, to determine, if possible, whether those two bullets had been fired from this same weapon that I had already identified the cartridge casings as having been fired in.

MR. FALLON: All right. And are those the previously identified exhibits, 277 and 276, which are in front of you?

MR. FALLON: All right. And they have the Crime Lab designation Item FL and FK; is that correct?

WILLIAM NEWHOUSE: That's correct.

MR. FALLON: All right. Let's begin with a closer description, if possible, of the bullet fragments, or suspected bullet fragments that you were asked to examine. First of all, let's begin with Exhibit 276 identified as bullet FK. Tell us, if you can, what the condition of that particular fragment was upon its submission to you for examination?

WILLIAM NEWHOUSE: Well, the bullet in Exhibit 276 which, again, is our Item FK, is probably -- or would not be immediately recognizable to most people as a bullet. It's in very poor condition. It doesn't look like it did when it was still in the cartridge.

MR. BUTING: Your Honor, I object and move to strike that comment as to what other people would think it looked like. He can give an opinion as to its condition, but he can't express an opinion about whether other people would have recognized it.

THE COURT: I think he's talking about its apparent condition. I'm going to overrule the objection.

MR. FALLON: Thank you.

MR. FALLON: (By Attorney Fallon)~ All right. Please describe further the condition of the bullet.

WILLIAM NEWHOUSE: This is -- has been damaged greatly, no longer looks like a bullet. Of course, having looked at these for 35 years, it does look to me like a bullet that has passed through or has struck some harder object than the bullet.

When I examine it in the laboratory initially, I do a number of things. I weigh the bullet. I look at it under the microscope to determine what kinds of, or if any, rifling characteristics might be present on what remains of this bullet.

I'm also interested in the bullet composition. I want to -- I want to fire a bullet like that from this gun, for comparison, and so I'm interested in whether this is a lead bullet, or whether this is a lead bullet that's coated with copper, and so on. And all of those things were part of what I documented and recorded in the course of my examination of this item, State's Exhibit 276.

MR. FALLON: And what can you tell us about the bullet. You said you wanted to select one that was similar to what had been submitted to you. So I guess my question is, what would you have selected or -- not what would you have -- what did you select for purposes of making a comparison?

WILLIAM NEWHOUSE: When I did the microscopic examination, it was clear it was a coated bullet and not a lead bullet. It was also clear it was a .22 caliber bullet to me. Additionally, under the microscope, I could see markings that were put there by the rifle, in particular the barrel through which it was fired.

Those lands and grooves that I described earlier, in the bullet, leave what we refer to as land and groove impressions. And in this particular item, Exhibit 276, I could identify under the microscope, eight remaining land and groove impressions on that bullet.

MR. FALLON: All right. Was that enough to be able to make any comparisons whatsoever as to whether that bullet was fired from that gun, or any other gun for that matter?

WILLIAM NEWHOUSE: The next step was to look at that under greater magnification on the microscope. And the fact is, on this Exhibit 276, although I had eight of these land and groove impressions remaining on the bullet, under greater magnification I could see that I had none of the very small detail, those things that make up patterns that I was trying to describe earlier. None of that was present, or at least not enough of it for me to use to come to any conclusion about what gun fired this bullet in Exhibit 276.

MR. FALLON: All right. Now, I need you to explain something. You previously described the bullets you selected, the CCI bullets, as being lead bullets. And then you just made some comment about not lead but coated with a different substance. Can you kind of explain --

MR. FALLON: -- so that we're not --

MR. FALLON: -- confused here?

WILLIAM NEWHOUSE: Yes. Most .22 caliber bullets, with the exception of .22 magnums, are actually lead bullets. But many of them are coated with a very fine powder of copper, or possibly a copper alloy, that they actually impress into the surface of the bullet. And that is the kind of bullet that we have here in Exhibit 276.

That's important to me because I know that if I'm going to compare this to the test fired bullets from this gun, I want to shoot the same kind of thing. So I selected, then, for this second set of examinations with the bullets, an ammunition that, in fact, was copper coated.

MR. FALLON: All right. Although it was a lead bullet, but the coating was not lead, the coating was copper?

MR. FALLON: Okay. All right. So, just so we're clear, were you able to make any comparisons then with respect to bullet FK, Exhibit 276?

WILLIAM NEWHOUSE: I was able -- or it was limited to a class characteristics comparison, a term I haven't used yet. I knew by examining the bullet in Exhibit 276, that it had been fired from a gun manufactured with 16 lands and grooves and a right hand twist. That much information is on the bullet. It's also a .22 caliber bullet.

This weapon is a .22 caliber bullet. And in the barrel of this gun are 16 lands and grooves and a right hand twist. However, I can say no more than that about this bullet. And the fact of the matter is, I cannot specify exactly what gun this bullet was fired in, again, because I don't have those small stria, those scratches on the bullet surface, that I can use for that kind of conclusion.

MR. FALLON: All right. So in terms of class characteristics is that a general category, or a specific category, or tell us. I'm not a gun person, so what do I -- what should I take from that?

WILLIAM NEWHOUSE: It means that, based just on the class characteristics on Exhibit 276, I know it was fired in some gun, among a group of guns, thousands of guns, if you like, tens of thousands of guns, that were manufactured with 16 lands and grooves and a right hand twist, and were .22 caliber. And I can be no more specific than that, based on what we have left on this bullet.

MR. FALLON: All right. And do you hold that opinion to a reasonable degree of scientific certainty?

MR. FALLON: All right. Let's direct our attention, then, to the remaining bullet, Item FL, Exhibit No. 277; were you able to conduct an analysis of that particular bullet?

MR. FALLON: And were you able to make a determination as to whether Exhibit 277, bullet designation FL, was fired from the Marlin Glenfield .22 caliber rifle in front of you?

MR. FALLON: And what conclusion were you able to reach?

WILLIAM NEWHOUSE: In this case, I was able to be more specific. And, in fact, because of markings on the bullet in State's Exhibit 277, I was able to conclude that this bullet had been fired from this specific gun.

MR. FALLON: All right. So Exhibit 277 had been fired from Exhibit 247?

WILLIAM NEWHOUSE: Yes, that's correct.

MR. FALLON: All right. Now, how is it that you were able to make that determination?

WILLIAM NEWHOUSE: Again, we have to refer to, or talk about what's present, at high magnification, on the surface of that bullet. And on this bullet I have, in fact, patterns of scratches, or patterns of stria, present on a number of different areas of the bullet, even in the condition it's in, that I could -- could relate to, that I could identify with the same patterns on the test fired bullets.

Furthermore, the patterns that were there, the markings that I see, are patterns that I recognize as being more than could be expected to be seen, more than we would ever see on a bullet that was not fired from the same gun. It has to exceed what I recognize as those -- those set of markings that we expect to see on two bullets not fired from the same gun.

So when I looked at State's Exhibit 277, the pattern I saw there, the quality and quantity of the pattern correlations and matchings that I saw there, was enough for me to come to a conclusion that, in fact, the reason they had the same pattern on this bullet and my test fired bullets, is because it had been fired from the same gun.

MR. FALLON: All right. Is there -- Does that mean it could not have been fired from any other gun?

MR. FALLON: The opinion that Exhibit 277, item designation FL, was fired from Exhibit 247, the Marlin Glenfield, Model 60, .22 caliber rifle; do you hold that opinion to a reasonable degree of scientific certainty?

MR. FALLON: The opinion that it could not have been fired from any other gun; do you hold that opinion to a reasonable degree of scientific certainty?

MR. FALLON: Did you prepare two brief reports and a disc summarizing your findings?

WILLIAM NEWHOUSE: The findings with regard to the bullets was on a report dated May 10th of 2006. I also had taken photographs of some of what I saw under the microscope and had had those transferred to a disc.

MR. FALLON: All right.

MR. FALLON: For the record, your Honor, counsel has seen them, I have had the two reports marked and a disc marked to complete the testimony, would offer them into evidence, and tender the witness for cross-examination.

THE COURT: Any objection?

MR. BUTING: No objection.

THE COURT: All right. The exhibits are received.

MR. BUTING: Give us the numbers, please.

MR. FALLON: Certainly, 418, 419 and 417, the disc.

CrossCrossWilliam Newhouse — Cross William Newhouse Jerome F. Buting

CROSS-EXAMINATION BY ATTORNEY BUTING:

MR. BUTING: Good afternoon, sir.

WILLIAM NEWHOUSE: Good afternoon.

MR. BUTING: Let me go back a little bit and maybe have you explain to the jury in a little bit more detail a few things. Okay.

MR. BUTING: About your field. Now, one thing, sir, you are a little bit far from the microphone. If you could pull it toward you, or pull your chair up, or lean forward, I think that would probably help.

MR. BUTING: That's much better. Thank you. You say you belonged to this organization for 20 years now, the Association of Firearms And Toolmark Examiners; is that right?

WILLIAM NEWHOUSE: Probably more than that, but at least 20 years.

MR. BUTING: Okay. And that's a reputable organization, it's been around a long time?

MR. BUTING: And if you have been a member that long, I assume you have kept up with -- do you get sort of a regularly monthly publication?

MR. BUTING: Do you get the AFTE Journal?

WILLIAM NEWHOUSE: It's a quarterly journal but, yes, I do.

MR. BUTING: Okay. And that's a journal that is -- where articles are published, people in your field share studies and information with other people such as yourself?

WILLIAM NEWHOUSE: That's correct.

MR. BUTING: And I take it that to belong to that organization you -- there's certain guidelines or qualifications that you have to have?

WILLIAM NEWHOUSE: Yes, there are.

MR. BUTING: It's not just pay your money and you are in, right?

MR. BUTING: Okay. And you abide by those guidelines and qualifications, right?

WILLIAM NEWHOUSE: I had to satisfy them to become a member, yes.

MR. BUTING: Right. And you continue to abide by whatever requirements are recommended, or the recommendations of that organization, right?

WILLIAM NEWHOUSE: Beyond maintaining the work that I do in the field, and then paying the fee every year, there are no other requirements to receive the journal.

MR. BUTING: Okay. But you do read the literature?

MR. BUTING: All right. And you also said that your lab, the Crime Lab, is a member of ASCLD, that's A-S-C-L-D, often referred to by people like you as ASCLD?

WILLIAM NEWHOUSE: I don't think I said that, but we are ASCLD lab accredited.

MR. BUTING: I thought you did say that actually, but I may be wrong.

MR. BUTING: And is that true of the entire Crime Lab, all the different units are A-S-C-L-D qualified?

MR. BUTING: Your unit, though, is ASCLD accredited, right?

MR. BUTING: And in order to become accredited by that organization which, again, we had some testimony about it, but that's a different witness, that's actually an Association of Crime Lab Directors, right?

MR. BUTING: And they do a number of things in terms of reviewing the procedures and the qualifications of the people in the lab, whatever unit they are accrediting, before they get -- before they give out that accreditation, right?

WILLIAM NEWHOUSE: That's correct.

MR. BUTING: And that includes they review your protocols for tests and examinations, right?

WILLIAM NEWHOUSE: Yes, they do.

MR. BUTING: And proficiency tests as well?

MR. BUTING: Do you do proficiency tests?

MR. BUTING: What sort of proficiency tests does a firearm and toolmark person do?

WILLIAM NEWHOUSE: We do probably two a year. One of them will be a firearms case, may be a set of bullets that we have to determine were fired from the same gun or maybe cartridge casings. We're also asked, once a year, to do a proficiency test that's focused on more specific toolmark kind of comparison. Might be a bow cutter case. Might be a mark made by a screw driver.

MR. BUTING: Okay. So, it's not just bullets, it's also other tool markings?

MR. BUTING: And then you also have a protocol for different types of examinations that you do?

WILLIAM NEWHOUSE: We have procedures in place that relate to how we perform certain examinations.

MR. BUTING: Okay. And one of the things that ASCLD requires, and I believe the other association, the AFTE, is that you make sure that you have proper documentation of what you examine, right?

WILLIAM NEWHOUSE: That's correct.

MR. BUTING: That can include notes, right?

MR. BUTING: Photographs?

MR. BUTING: And peer review, right?

WILLIAM NEWHOUSE: That's correct. That's an element of our examination process, yes.

MR. BUTING: Okay. And, in fact, the guidelines, I believe, require that -- that your documentation be good enough that another person in your absence can look at it and come to the same conclusion, right?

WILLIAM NEWHOUSE: That's correct.

MR. BUTING: And when you do these examines you actually have -- you are supposed to have two people look at it. You look at it, come to a conclusion, and then you have another person look at it up here, and come to the same conclusion?

WILLIAM NEWHOUSE: That's correct.

MR. BUTING: And that's part of your protocol?

MR. BUTING: Okay. Now, when we talked about proficiency tests, you are aware, I assume, of a gentleman by the name of Alfred Biasotti?

MR. BUTING: You probably have been questioned about this gentleman before, haven't you?

WILLIAM NEWHOUSE: Not specifically that I recall, no.

MR. BUTING: Okay. Then I will be the first. He's a very well-known -- he produced a very well-known study in your field, correct?

MR. BUTING: And forgive me for a moment while I get the actual name of it, it's called a Statistical Study of the Individual Characteristics of Fired Bullets; does that sound right?

WILLIAM NEWHOUSE: Yes, it does.

MR. BUTING: Actually, that was a study done quite some time ago, 1959, but still is relied on in your field?

MR. BUTING: All right. And what he concluded is, that among other things, that in the real world, there's no such thing as a perfect match when it comes to cartridges and bullets, correct?

WILLIAM NEWHOUSE: That's correct, if by that you mean everything lines up, yes.

MR. BUTING: Right. And in his study -- Actually, his study echoed the findings of another study that found only 21 to 38 percent of the marks will match up on bullets fired from the very same gun; does that sound right?

WILLIAM NEWHOUSE: That sounds like an appropriate range if we're talking about percent match.

MR. BUTING: Okay. So that when you are looking at these bullets and you are calling something a match, you are doing so with only 21 to 38 percent of those markings matching up?

WILLIAM NEWHOUSE: If, in fact, on the particular bullets I'm looking at, that may be the case that if we look at percent matching, that may be that only 21 percent match.

MR. BUTING: All right. And yet you could still call it a match?

WILLIAM NEWHOUSE: That's correct.

MR. BUTING: Now, part of that is because, in your field, your opinion is really what we would call subjective, correct?

WILLIAM NEWHOUSE: There are subjective elements to it. There are objective qualities to the examinations and conclusions as well.

MR. BUTING: Well, let me just give you an example. You mentioned in this case there were bullets with 16 lands and grooves, the rifle you believe had 16 lands and grooves, right?

WILLIAM NEWHOUSE: That's correct.

MR. BUTING: There's no magic number when you are looking at a bullet that says you have to have 14 -- you have to see 14 of those match up in order to call it a match, right?

WILLIAM NEWHOUSE: No, the number of actual groove impressions or land impressions that remain on a bullet that we're examining does not have to be a certain number of the original number that were there.

MR. BUTING: Okay. So you are a little bit -- you're probably a little bit familiar with fingerprints for instance, right?

WILLIAM NEWHOUSE: Not really too much. In terms of identification, no.

MR. BUTING: Okay. So you are not aware of how many standards they have, about how many points of similarity have to match up before they can make a call?

WILLIAM NEWHOUSE: I'm aware that they have -- or that some agencies operate under the need or requirement to have a certain number of points.

MR. BUTING: Okay. But in your field there is no quantitative number or guidelines that you have to follow before you call something a match or not a match?

WILLIAM NEWHOUSE: There is no required guideline. There are guidelines established that have been published in the literature of that same journal we have been talking about.

MR. BUTING: Okay. But it's not something that you follow?

WILLIAM NEWHOUSE: No, that's not true.

MR. BUTING: Well, it's not something that you -- do you have a specific number that have to be -- you have to get to in terms of number of lands and grooves before you can call something a match?

WILLIAM NEWHOUSE: I have a certain number of matching stria. We're going to have -- I'm going to have to use terminology I haven't defined yet.

MR. BUTING: We'll define stria a little bit more later. But just tell me what is it, you have a specific number?

WILLIAM NEWHOUSE: Again, there's nothing regarding how many land and groove impressions must be on a bullet. The only requirement is that we have a pattern of markings on the bullet or the cartridge casing and that they satisfy some kind of minimum requirement.

MR. BUTING: But the minimum requirement is a subjective requirement. It's your opinion that there's enough to call a match, right?

WILLIAM NEWHOUSE: No, that's not correct.

MR. BUTING: Is there a specific number you must have, you know, 40 particular stria in order to call it, or what?

WILLIAM NEWHOUSE: There are -- And, in fact, Mr. Biasotti, in that treatise that you named a moment ago, there are a certain number of stria that have been identified and that we recognize as a number, beyond which, we know we will not see that amount of correlation in a non-match type of comparison.

That's going to require a little explanation probably, but the point of what I'm trying to say is that Mr. Biasotti, in fact, with that paper, was the one who first defined it, that there are and we can talk about minimum criteria of consecutive matching stria or markings and treat that as a threshold, above which we can be sure, statistically, that this is an identification.

MR. BUTING: Well, tell us, what is the minimum? What's the number? Is there a number associated with the minimum?

WILLIAM NEWHOUSE: Yes, there is.

MR. BUTING: What is it?

WILLIAM NEWHOUSE: When we're talking about a three dimensional stria comparison, if you look under the microscope, the markings I'm looking at, as I alluded to earlier, I think are not just scratches, they actually have depth. They have width. They have that three dimensional element to it. So we're not just counting lines.

When I'm performing this kind of a comparison, the all important question is, of course, when do I know I have enough for an identification. Mr. Biasotti's research, followed up by any number of other three or four other important papers over the last few years, have defined that minimum criteria. And it's available for examiners to use, if they wish, to rely on it.

In response, what the actual number is, when I'm looking at three dimensional patterns of marks on bullets, or any toolmark for that matter, and we're talking about stria, that if I have two consecutive groups of three marks, or a single run of consecutive markings that number six, or more than that, of course, this is a minimum conservative criteria again, then I can be assured, again, based on these studies that have been published in the AFTE Journal and that all of these researchers have completed, I can be assured that, in fact, that is not possible with two bullets fired from different guns.

When I see that minimum criteria or one more, I can be assured, based solely on that, that those two bullets had to have been fired from the same gun in order to observe that set of matching stria.

MR. BUTING: All right. Let me -- Jumping around a little bit here, but as long as we're on this topic, tell us, what was the number you found for Item FL in this case?

WILLIAM NEWHOUSE: If we look at Item FL and we look at the photographs, a little more specifically later if you want to, you will see one run on, I believe it was groove impression number three, of approximately -- not approximately -- of six consecutive stria. What I was trying to remember was whether there were actually seven or not. But at any rate, we have at least six consecutive stria. And, again, that is the minimum criteria that would allow me, based solely on what I'm seeing in that one groove impression, to come to the conclusion that it was fired from this particular gun.

MR. BUTING: And you are stating that from your memory; is that right?

WILLIAM NEWHOUSE: Well, I have reviewed my case notes and my photographs.

MR. BUTING: Okay. I'm going to show you Exhibit 420, if you could identify that for us, please.

WILLIAM NEWHOUSE: Exhibit 420 is a worksheet that I used to document the cartridge casings, or my examination of the cartridge casings.

MR. BUTING: And that worksheet has information that you fill out, it's sort of a graph, or actually more like a chart, and it's where you make note of a number of things, right?

WILLIAM NEWHOUSE: That's correct.

MR. BUTING: And nowhere on this document do you indicate anywhere what you just testified to to the jury, is it?

WILLIAM NEWHOUSE: That's correct.

MR. BUTING: What it does say, though, is this particular worksheet includes both -- well, let's put it up on the ELMO. You can see it from the screen, I believe, from where you are sitting. Actually, I marked the wrong exhibit. Let me give you another one.

(Exhibit No. 425 marked for identification.)

MR. BUTING: Just to clarify for the jury here, look at Exhibit 425 for a minute.

MR. BUTING: You said you did this on two different dates?

WILLIAM NEWHOUSE: That's correct.

MR. BUTING: One date you did the cartridges. The first one I gave you, actually, was the worksheet for the cartridges.

WILLIAM NEWHOUSE: Cartridge casings, yes.

MR. BUTING: So, let me direct your attention now to 425 instead, which is the worksheet from the bullets, correct?

WILLIAM NEWHOUSE: That's correct.

MR. BUTING: Okay. Let's put that up. All right. We have got Exhibit 425 up on the screen. Let me zoom out a little bit so we see the whole thing. And at the top there's a chart that you fill out that includes some numerical types of information, right?

WILLIAM NEWHOUSE: Some of it are measurements of the bullets that I made, yes.

MR. BUTING: Okay. And this includes both Item FL and FK, right?

WILLIAM NEWHOUSE: Yes, it does.

MR. BUTING: And for both of them you indicate .22 caliber; is that right? Is that what that says?

MR. BUTING: It doesn't say .22 caliber long either does it?

MR. BUTING: There's a difference, right.

WILLIAM NEWHOUSE: The dimension that you see there, the 0.22 inch, is approximately the diameter of the bullet.

MR. BUTING: Okay. Doesn't tell you whether it's a .22 caliber long, .22 caliber short, or plain old .22 caliber, does it?

WILLIAM NEWHOUSE: Just tells me it's a plain old .22 caliber and just that measurement does not allow me to conclude whether it's a .22 long, short, long rifle.

MR. BUTING: Well, in this particular instance, with FL and FK, were you able to conclude, from looking at the bullet alone, whether this was a .22 caliber long, short, or plain old .22 caliber?

WILLIAM NEWHOUSE: Are we talking about FL or FK, I'm sorry.

MR. BUTING: Let's look at FL.

WILLIAM NEWHOUSE: Okay. FL, the other characteristic of the bullet that might allow me to determine and distinguish a long from a long rifle and from a short is the weight of the bullet. The weight of the bullet there is 19.7 grains. And the weight of the bullet when --

MR. BUTING: We're talking about this column right here, right?

WILLIAM NEWHOUSE: That's correct.

WILLIAM NEWHOUSE: The weight of a long rifle bullet is generally around -- it's 40 grains. There is a few variations in that out there the manufacturers have produced. A .22 short bullet, I honestly don't recall what the weight of those are, but they are much less than that, than 40 grains. The 19.7 grains is clearly -- because of the condition of the bullet, which I also observed, I recognize I'm missing parts of the bullet. And so I don't see that 40 grain weight that you would expect from a .22 long rifle.

MR. BUTING: Well, but you don't know what you have got, whether it's a .22 long or not, so you don't really know what the weight is supposed to be?

WILLIAM NEWHOUSE: Based on the weight, no, I don't know.

MR. BUTING: So, there's really nothing you can tell from this bullet whether this is a .22 long or not, right?

WILLIAM NEWHOUSE: Well, that's not true. I know it's not a .22 short, because if I had 20 grains of a .22 short bullet I would have more of the bullet --

WILLIAM NEWHOUSE: -- there than I have.

MR. BUTING: Fair enough. Fair enough. But can you tell the difference between a long and a short, just from this bullet?

WILLIAM NEWHOUSE: The difference between a long rifle and a -- or I'm sorry, a long and a short, or a long rifle and a short?

WILLIAM NEWHOUSE: There's two different things. I can't tell the difference between a long rifle and a long. I can tell the difference here between a long rifle and a short, and a long and a short.

MR. BUTING: All right. Well, let's not get bogged down on that. As long as you talked about the weight, let's talk about that. If it is a long, .22 long caliber, a full bullet would be about 40 grains, right?

WILLIAM NEWHOUSE: Again, I don't recall the weight on a .22 long. A .22 long rifle is 40 grains.

MR. BUTING: Okay. And in this instance then, Item FL would be about -- only about half of that, correct?

WILLIAM NEWHOUSE: That's correct.

MR. BUTING: And Item FK is actually about three-quarters of it, right?

MR. BUTING: So Item FK is actually more -- a larger fragment than FL?

WILLIAM NEWHOUSE: More of the original bullet is present in FK.

MR. BUTING: Okay. Now, third column over is -- TWT means twist. It's a right hand twist, both of them, right?

MR. BUTING: The next one is lands and grooves. And it says 11 of 16 for the first one and 8 of 16 for the second one, right?

WILLIAM NEWHOUSE: Eleven remaining and sixteen original and eight remaining, yes.

MR. BUTING: Okay. All right. And then over by the grains, it says coated, that explains the -- that particular type, right?

MR. BUTING: And in the base construction, concave coated for both?

MR. BUTING: And I can't read that last column; what is that?

WILLIAM NEWHOUSE: That's an indication that I marked the container in which the bullet was received, but I did not mark the bullet.

MR. BUTING: Okay. Just the container. And then down below you have some handwritten notes. First part is packaging, fairly routine. And then below that you have got FL. It says no markings in the land impression, correct?

MR. BUTING: That means the land portion of the barrel is making no impressions on this particular bullet that you can tell.

WILLIAM NEWHOUSE: It means that, on this bullet, I have no markings in the impression made by the land.

MR. BUTING: Fine. So you are left with the grooves. And you do have useful groove -- useful markings in the groove impression, test to test, comparisons typical of coated .22 caliber bullets, right?

MR. BUTING: But, again, nothing in this document records any kind of minimum number that you testified about earlier?

WILLIAM NEWHOUSE: That's right.

MR. BUTING: And the determination, let's just get back to that for a moment. The whole determination of whether you are seeing these little scratches or stria or you are not, it requires a subjective eyeball opinion, right?

WILLIAM NEWHOUSE: Certainly requires an evaluation of what's present there and the judgment about what that means, yes.

MR. BUTING: And you are looking at these like two -- is this a comparison microscope with two fields?

MR. BUTING: So you have got a test bullet in one and the evidence bullet in the other?

WILLIAM NEWHOUSE: That's correct.

MR. BUTING: And then you are looking through this microscope and you are making an eyeball comparison based on your judgment, experience, and what not, right?

MR. BUTING: Sort of like used to be done with hair comparison, microscopic analysis; are you familiar with that?

MR. FALLON: Objection, no foundation, argumentative, and speculation.

MR. BUTING: (By Attorney Buting)~ Well, are you familiar with that field?

MR. FALLON: Could we have a ruling on the objection before counsel starts asking more questions?

THE COURT: Well, I'm going to sustain the objection. I will let him ask the next question, if he is familiar with it.

MR. BUTING: I meant to withdraw and rephrase, is what I was trying to do.

MR. BUTING: (By Attorney Buting)~ Are you familiar with the field of hair comparison, microscopic analysis?

WILLIAM NEWHOUSE: Familiar is one thing, I have no expertise in hair comparison.

MR. BUTING: I understand, but you are aware -- I mean you have been in Crime Labs for 30 years, right?

MR. BUTING: And you are aware that that was a field, forensic field, that was offered by Crime Labs for many years, right?

WILLIAM NEWHOUSE: It was a comparison or examination that was performed for a long time, yes.

MR. BUTING: And it is no longer, right?

WILLIAM NEWHOUSE: I'm satisfied that some laboratories may still be -- are probably still performing hair comparisons.

MR. BUTING: Generally, it's been discredited, however?

MR. FALLON: Objection.

MR. BUTING: (By Attorney Buting)~ If you know. If you know.

WILLIAM NEWHOUSE: Certain elements, certain conclusions that are based on a hair examination certainly are discredited.

MR. BUTING: All right.

WILLIAM NEWHOUSE: Hair examination itself, done properly, interpreted correctly, has not been discredited.

MR. BUTING: To your knowledge. But you are not an expert in that field, right?

WILLIAM NEWHOUSE: I'm not an expert in that field.

MR. BUTING: So, this eyeball comparison that you are making, this judgment, just so we're clear, a difference between objective and subjective, let's use some other types of tests that your Crime Lab does. DNA, for instance, would you agree that DNA is a more objective test than yours?

WILLIAM NEWHOUSE: No, I would not.

MR. BUTING: All right. You are aware that DNA, though, the test that comes up with specific numbers and genetic markers, and it either matches or it doesn't, right?

WILLIAM NEWHOUSE: They produce statistics that give them probabilities.

MR. BUTING: But before you even get to that, they have to determine whether something is completely excluded, whether it just can't be, it doesn't match, right?

MR. FALLON: Your Honor, I'm going to interpose an objection again, the witness is not trained in DNA. There is no foundation for these questions.

THE COURT: I'm going to sustain the objection.

MR. BUTING: (By Attorney Buting)~ Is it your opinion that your field of forensics is just as objective as DNA; is that your opinion?

MR. FALLON: Objection. Same objection.

THE COURT: Without more foundation, I agree. The objection is sustained.

MR. BUTING: (By Attorney Buting)~ Beyond this minimum number that you -- or description that you have given us, there's no particular number at which a perfect match can be declared; is that right?

WILLIAM NEWHOUSE: I would never declare a perfect match, because I have never seen one and I don't need more than the minimum criteria that have been specified in the research and the literature that's been published.

MR. BUTING: And is that a specific written protocol of your department in the lab?

WILLIAM NEWHOUSE: Absolutely not.

MR. BUTING: There is no protocol on how to -- or what's required in order to make a match, is there?

WILLIAM NEWHOUSE: That is not described in our procedures, no.

MR. BUTING: What is described is that you have to document whatever it is you are examining, right?

WILLIAM NEWHOUSE: We're required to document our comparisons. I do that with photography.

MR. BUTING: Okay. And you also -- And you always make sure there is another person who looks at the same thing, so it's a peer review?

WILLIAM NEWHOUSE: That's correct.

MR. BUTING: Okay. Going back just a minute to some of the basics of your field. This kind of testimony, or this kind of analysis, has been going on for many years, early in the 19th century, or something like that, right?

WILLIAM NEWHOUSE: Mid to late 19th century, I believe.

MR. BUTING: And originally, one of the basises (sic) for it was that at that time firearms were hand-forged or handmade, by and large, right?

WILLIAM NEWHOUSE: Many of them were, certainly. Certainly all of them were at the beginning.

MR. BUTING: Sure. And by doing that handmade process, there were many more unique kind of markings, scratches, features inside of a rifle barrel at that time, right.

WILLIAM NEWHOUSE: Probably not correct, no.

MR. BUTING: Well, all right. Would you agree with me that modern manufacturing of guns has made guns more uniform from one particular gun off the line than to the next, same manufacturer.

WILLIAM NEWHOUSE: No, that's not true.

WILLIAM NEWHOUSE: In terms of what I'm looking at for identification, no.

MR. BUTING: Well, let's just talk about the lands and the grooves for a minute. All right. The way a barrel is made these days, most often is it's cast.

MR. BUTING: Is it forged?

WILLIAM NEWHOUSE: Forging would be part of the process of creating the metal blank that's used to create the barrel.

WILLIAM NEWHOUSE: Forging has nothing to do with the inside of the barrel and the process that creates the lands and grooves inside that barrel.

MR. BUTING: But the process that drills the barrel open, hollow, is a mechanical process?

MR. BUTING: And it's done by a machine, that same machine that makes rifle number one that's coming down the line, rifle number two that's coming down the line, and so forth, right?

WILLIAM NEWHOUSE: You will have the same tool used to make many, many barrels.

WILLIAM NEWHOUSE: You will have the same tool used to put the grooves and the lands in many, many barrels.

MR. BUTING: All right. So there are actually two tools, one that bores out the -- hollows out the tube and then it deliberately -- I mean it's put through another machine that deliberately puts this -- these grooves with a twist in it?

WILLIAM NEWHOUSE: That's correct.

MR. BUTING: And the twist is done in order to make -- deliberately make the bullet spin as it's fired, right?

MR. BUTING: And sometimes the more it spins the more accurate it can be to its target?

MR. BUTING: Okay. The Marlin 60, would you agree is, probably is, or is close to, the most popular .22 made in the world?

WILLIAM NEWHOUSE: I really -- I don't know any sales figures or anything. I see a lot of them and suggests to me that it's very popular.

MR. BUTING: Well, you keep -- you have data banks and data bases that you rely on, right?

WILLIAM NEWHOUSE: For some things, yes.

MR. BUTING: Okay. And from that I assume you learn something about the rifle that you are examining and testing, right?

MR. BUTING: You are aware that the Marlin 60 has been made for 40 -- since 1960, right?

WILLIAM NEWHOUSE: I don't think I knew when they started making it.

MR. BUTING: Okay. But it's been around for decades, would you agree with that?

MR. BUTING: And it's mass produced by Marlin and it's considered a very accurate rifle.

WILLIAM NEWHOUSE: I believe it would be, yes.

MR. BUTING: Partly because it has those 16 lands and grooves with the twist. Some rifles have much less, right?

MR. BUTING: And so, for that reason, plus the fact that it's relatively inexpensive, it's quite common; would you agree with that?

WILLIAM NEWHOUSE: Yes, I would.

MR. BUTING: Did you examine any other Marlin 60 firearms for this case?

MR. BUTING: I'm going to read for you a statement from the AFTE, A-F-T-E, Journal, the organization that you belong with. And you tell me if you agree or disagree with this particular statement. Quote, "Currently the interpretation of individualization/identification is subjective in nature, founded on scientific principles and based on examiner's training and experience."

WILLIAM NEWHOUSE: That's correct.

MR. BUTING: Okay. Let me go back for just one minute. When you talked about class, whether something is part of the same class, which is what you concluded the FK was?

MR. BUTING: There's really sort of three different levels that you could come up with a similarity between bullets that would be class, sub-class, or individual characteristics?

MR. BUTING: So that when a rifle comes from the same class, and certainly any Marlin 60 is the same class; would you agree?

WILLIAM NEWHOUSE: Assuming that Marlin manufactured all Marlin 60's with 16 lands, grooves, and right hand twists, yes.

MR. BUTING: Okay. So that would make this Item FK could have been fired by any Marlin 60?

WILLIAM NEWHOUSE: Based on what remains on that bullet, yes.

MR. BUTING: And as you candidly admitted, there are least tens of thousands, if not millions, have been made over the years?

WILLIAM NEWHOUSE: I suspect not millions, but certainly tens of thousands.

MR. BUTING: Okay. And then the next more unique kind of feature that you could find is called sub-class features, right?

MR. BUTING: And then even more unique, or supposedly unique than that, would be these individual characteristics?

WILLIAM NEWHOUSE: That's correct.

MR. BUTING: By the way, do you know how many other, if any, firearms are manufactured with 16 lands and grooves and a right hand twist?

WILLIAM NEWHOUSE: I'm familiar with one other, a .22 caliber pistol manufactured by Jennings. They are no longer in business, but they manufactured some .22 caliber pistols with 16 lands and grooves and a right hand twist, and there may be others as well.

MR. BUTING: And Item FK, is that the sort of ammunition that could also have been fired in a Jennings .22 caliber, or not?

MR. BUTING: So, when you talk about class of possible firearms for that bullet, you have to include not just Marlin, but this whole, however many number of Jennings there are, right?

WILLIAM NEWHOUSE: That's correct.

MR. BUTING: Okay. All right. Now, let me just go for a minute to the cartridges. I'm going to show you what's been marked as -- these are Exhibits 424, 21, 22, 23 and 24. Can you identify these?

MR. FALLON: Excuse me, counsel, are those the cartridge photos?

MR. BUTING: Yes, those are all the cartridge, I believe.

WILLIAM NEWHOUSE: These are copies of photographs that I took of the cartridge comparisons.

MR. BUTING: Okay. Some of them are -- I am going to put one or two of these up on the screen. Some of them are just photograph of the cartridge itself, unfired, and others of one of these comparisons having one side one and one side the other, right?

WILLIAM NEWHOUSE: Three of them are comparisons of the test fire to one of the cartridges submitted. And the fourth picture is a photograph of the head of one of the cartridges submitted.

MR. BUTING: Let's start with that last one first since -- I will go ahead and leave the photocopies up here with you so you can refer to them as numbers. That's 421?

WILLIAM NEWHOUSE: I'm sorry. Yes, it is.

MR. BUTING: And that's just a close up photograph of the cartridge before it's fired?

MR. BUTING: After it's fired?

WILLIAM NEWHOUSE: This is a photograph of, as I indicate there on the bottom, one of the cartridge casings from what we refer to as Item EI and is in State's Exhibit 250. I took a picture of it just to illustrate what we see when a cartridge casing has been fired, that indentation you see, the rectangular one at 3 o'clock, I guess --

WILLIAM NEWHOUSE: -- is the firing pin impression that was created by the gun that fired that cartridge casing.

MR. BUTING: Okay. And so that little rectangular thing at 3 o'clock is a very distinctive marking that apparently occurred when these shells were fired?

WILLIAM NEWHOUSE: That's correct.

MR. BUTING: And this is one of the shells, 11 shells, that was given you in that box, right?

MR. BUTING: Okay. I don't want to belabor this too much, but let's look at Exhibit 424. Is that one of these where you made a comparison side by side?

MR. BUTING: So in this one, you can kind of see the line down the middle and you have got numbers or lettering at the bottom that says test fire from Item DD.

WILLIAM NEWHOUSE: That's correct.

MR. BUTING: And that shows a very close match even to the unaided -- to the layperson. One can see that this marking over on the right side of the picture matches up very nicely with the one on the left, which is the shell that was found in Item EI, right?

MR. FALLON: Counsel, which Exhibit is this now?

MR. FALLON: Thank you.

WILLIAM NEWHOUSE: I hope it's clear. From here, to me, it's not real clear, but I will use the pointer. The dividing line, that is, what separates the image of my test faired cartridge casing from one of the cartridge casings in Exhibit 250 here is, really, in the photograph, a discontinuity from the distance you are at.

If you could see it more closely you would see there's a very fine dark line there. On the right side of that line is the image of the test fire, on the left side the image of one of these cartridge casings. The area of interest runs from approximately where the pointer is now up to here.

And, yes, along that line, there is what appears to me, of course, to be a very clear correlation or agreement of detail that was created by the firing pin of the rifle, the Marlin Glenfield 60 rifle.

MR. BUTING: That's fine. And that's fairly easy, I think, even for myself and the jury to be able to see that similarity. I want to show you now -- did I mark the other ones? Do you have any bullet ones up there too?

MR. BUTING: Are they marked?

MR. BUTING: All right. Thanks.

(Exhibit Nos. 426, 427, 428, marked for identification.)

MR. BUTING: I'm showing you Exhibits 426, 7, and 8, can you identify those?

WILLIAM NEWHOUSE: Exhibits 426, 427 and 428, these are all copies of, again, photographs that I took of markings in this case on -- that I observed during the bullet comparison and, specifically, of the bullet in Item 277, compared to the test fires from the Glenfield Model 60.

MR. BUTING: All right. I'm going to put one of them up on the screen and you are going to have to tell us what number it is on your --

WILLIAM NEWHOUSE: That's No. 426.

MR. BUTING: All right. Now, again, this is one of those split screen ones. The one on the right is the test fired bullet and the one on the left is Item FL, right?

MR. BUTING: This is only one portion of the cylindrical kind of bullet, at any rate, that you are looking at, right?

WILLIAM NEWHOUSE: Just a portion of what's remaining on that bullet.

MR. BUTING: Okay. But it's a fragment, right?

WILLIAM NEWHOUSE: Very small portion of it, yes.

MR. FALLON: Excuse me, counsel, could we have the witness -- now that we have that up on the screen, identify which photograph goes with that?

MR. BUTING: He did, 426. Is that right?

MR. FALLON: Okay. I'm sorry.

MR. BUTING: That's okay.

MR. BUTING: (By Attorney Buting)~ You've got the pointer, I don't, so I'm going to just point. Would it be fair to say that the indentation, linear areas of this, on either side of this, is what you call the groove?

WILLIAM NEWHOUSE: What you just pointed to -- here let me use the pointer. This area here that you see defined by two parallel lines, and this area here, which is clearly defined by two parallel lines on this side, but less obviously so here, those are the land impressions as they were created by the lands in the barrel.

MR. BUTING: I see, it's the reverse here, because we've got -- these are impressions?

MR. BUTING: So on the barrel, these would actually -- the flatter surfaces on the bullet is what actually is the groove in the barrel; is that right?

WILLIAM NEWHOUSE: Well, they aren't really flat, but on the bullet they are raised. And they are raised because they are impressions of the groove in the barrel of the weapon.

MR. BUTING: And as I recall, your notes said that the grooves don't give us any particular information in this case; is that what you said?

WILLIAM NEWHOUSE: I said the land impressions don't have any detail.

MR. BUTING: Okay. And the land ones, again, are point -- are which ones?

WILLIAM NEWHOUSE: You see in the photograph the label GI No. 1, and that refers to Groove Impression No. 1. I labeled this one No. 1. The land impressions are this area and this area, on each side of the groove impressions.

MR. BUTING: In any event, the test fired bullet on the right shows quite a bit of differences in the land area from the one on the left, does it not? It seems to have some extra ridges or bulges sticking out of some sort?

WILLIAM NEWHOUSE: There are differences on -- between both bullets. I don't know what you're referring to specifically. There's a great deal of differences on the bullet on the left side of the photograph when you compare it to the bullet on the right side of the photograph.

MR. BUTING: A great deal of difference, right?

WILLIAM NEWHOUSE: Absolutely, yes.

MR. BUTING: And yet you are saying that this bullet on the right, which was fired from the gun that you had in front of you earlier, is a match with the bullet on the left, the fragment, despite the great deal of differences; is that right?

WILLIAM NEWHOUSE: I'm saying there's enough detail there, and not in this position in that photograph, but in the composite of positions that we -- some of which we see exhibited in other photographs, for me to conclude that, yes, that bullet in my FL, Exhibit 277, was fired from that Marlin rifle.

MR. BUTING: And in doing that you have to discount the differences that you find on the bullet from the test fire?

WILLIAM NEWHOUSE: I have to understand them, yes.

MR. BUTING: All right. Let's go to the next one and can you tell us which exhibit that is?

WILLIAM NEWHOUSE: Oh, your number is 427.

MR. BUTING: Okay. 427 is on the screen now. Again, we see -- show us the line on this one, from the microscope, from one to the next?

WILLIAM NEWHOUSE: It runs here. See the discontinuity, particularly in this area right here, you see the different colors?

WILLIAM NEWHOUSE: That's the dividing line that separates the image of the bullet in 277 from my test fired bullet.

MR. BUTING: And your test fired bullet, also, there's another vertical line running down the line of it, the center of it, right?

WILLIAM NEWHOUSE: Yes, that's right.

MR. BUTING: And that's not the microscope line, that's on the bullet.

WILLIAM NEWHOUSE: That's a design feature of the bullet that remained in tact after firing it.

MR. BUTING: That's not a designed feature that's on the Item FL?

MR. BUTING: And, again, we see these multiple raised bumps, I call them, on the right in the test fire, but we don't see them on FL; is that right?

WILLIAM NEWHOUSE: Are you talking about these?

WILLIAM NEWHOUSE: Okay. Those are called cannelures. And you are right, they are not, in that photograph, present on the bullet in Exhibit 277.

MR. BUTING: All right. And, finally, this is I think the last photograph that you took comparing Item FL with the test fired bullet. And here it looks like the bullet itself is damaged, the Item FL appears to be significantly damaged, in that area?

WILLIAM NEWHOUSE: We're at the edge of the useful part of Item -- or Exhibit 277, our Item FL bullet. And above that area you see that it is impacted and just been completely obliterated by the impact it made with whatever it struck.

MR. BUTING: Maybe for my benefit, again, tell me what those bumps are again, cannelures?

WILLIAM NEWHOUSE: Over here, again, on the test fire bullet, I have two sets of cannelures.

MR. BUTING: Would you spell those for the court reporter.

WILLIAM NEWHOUSE: C-a-n-n-e-l-u-r-e-s.

MR. BUTING: Okay. And on this one, the test fire bullet has two sets of those visible?

WILLIAM NEWHOUSE: This is the same test fire bullet we were looking at before but, yes, in this photograph there are two sets of them visible.

MR. BUTING: And again, they are not at all visible on any of the three photographs that you took of Item FL?

WILLIAM NEWHOUSE: No, they are not.

MR. BUTING: By the way, while I'm thinking of it, do you have your CV up there, Item -- or Exhibit 416?

MR. BUTING: Is there a typo on here, third from the bottom, 1978 to 1989, California Department of Justice? The one right above it says 1981, you weren't working at both the California Department of Justice and -- should that be 1979?

WILLIAM NEWHOUSE: There's clearly a typographic error there.

MR. BUTING: And what is it supposed to be, 1979?

WILLIAM NEWHOUSE: Should be, yes, 19 -- that refers to the -- my last two years there, 1978, and it should have been 19 -- should have gone to 1980 actually. I don't know why it says 1989. Because in 1981 is when I joined the Montana State Crime Laboratory.

MR. BUTING: And did you go right from one job to the next or were you off work for a while?

WILLIAM NEWHOUSE: No, I left the California Laboratory, I think in May of 1980. And I was -- had opened a business with an acquaintance there in Sacramento that eventually didn't work out. And chose then to take the position in Montana in January of 1981.

MR. BUTING: So by the time you left the California Department of Justice, you had risen to the level of section supervisor, right?

WILLIAM NEWHOUSE: Criminalist 3, yes, I functioned as section supervisor, yes.

MR. BUTING: But then in your next job, you actually went sort of down the ladder, when you started in Montana, as just a plain old examiner, right?

WILLIAM NEWHOUSE: They simply classified them differently.

MR. BUTING: You weren't a section supervisor at Montana?

WILLIAM NEWHOUSE: I was the only examiner there.

WILLIAM NEWHOUSE: No one to supervise.

MR. BUTING: Okay. And then, from there, you went to Kansas City in 1988, right?

WILLIAM NEWHOUSE: That's correct.

MR. BUTING: This is now the third different organization you have worked for, right?

WILLIAM NEWHOUSE: At that time, yes.

MR. BUTING: And when you left there, you were considered Chief Criminalist of the toolmark section, right?

WILLIAM NEWHOUSE: I had -- The last two years there, I had assumed the supervisorial (sic) position there, which is that of Chief Criminalist, yes.

MR. BUTING: Again, there must be a typo because it says 7/2002 and then it says Wisconsin starts 2000, which is it?

WILLIAM NEWHOUSE: Well, no, when I left the laboratory there, I left myself a month and a half or two months in between before I actually started here.

MR. BUTING: And you didn't start here as a chief head of the firearms toolmark section, did you?

WILLIAM NEWHOUSE: Again, I'm the only examiner in the firearm section in the Madison laboratory. My title I think is that of unit leader, for what it's worth.

MR. BUTING: You are the only firearm examiner?

WILLIAM NEWHOUSE: In the Madison laboratory, yes.

MR. BUTING: Well, how do you ever have anybody review your work?

WILLIAM NEWHOUSE: I do that using the photographs. And one of the examiners in the Milwaukee laboratory, another of the Wisconsin State Laboratories, of course, reviews my photographs. And on occasion, I will take cases over to him where I believe it's warranted, or where he does. And that's how we conduct our peer review of the examinations.

MR. BUTING: That's how you comply with that part of your protocol that says you always have an examiner -- two examiners look at the same thing, right?

MR. BUTING: Okay. I will use the ELMO for just a minute now. And when you do that, when you have that peer review, you actually have -- I will just use this example, 422 -- put down PC2. You have got two signatures. You have got -- is this the person in Milwaukee who signed off on this?

MR. BUTING: And what's his name?

MR. BUTING: So the first initials on 2/21/06 is yourself, right?

MR. BUTING: And the next one below is -- on 4/13/06 is Reginald Templin, T-e-m-p-l-i-n?

MR. BUTING: And this is the -- one of the cartridge fires, test fires?

MR. BUTING: Okay. Again, same thing with -- this is another cartridge fire, this being Exhibit 423, also initialed by yourself and Mr. Templin, right?

WILLIAM NEWHOUSE: That's correct.

MR. BUTING: And Exhibit 424, which is another cartridge fire, same initials, I can't tell if it's the same date that Mr. Templin signed, looks like that might be a 13, 4/13/06?

MR. BUTING: Okay. Now, one last one from that cartridge casing, again. Peer reviewed, signed by both yourself and Mr. Templin, right?

MR. BUTING: Now, let's go to the photograph for Exhibit 426. Those your initials on it, dated 5/10/06?

MR. BUTING: Do you see Mr. Templin's initials anywhere on there?

WILLIAM NEWHOUSE: No, they are not there.

MR. BUTING: Is there anybody besides Mr. Templin who ever reviews your work?

WILLIAM NEWHOUSE: Occasionally, but not in this case, no.

MR. BUTING: Okay. This, by the way, is bullet Item FL, right?

MR. BUTING: Let's look at 427, another photograph, one of the ones we looked at on the screen, again, Item FL; those your initials?

WILLIAM NEWHOUSE: Yes, they are.

MR. BUTING: Same date, 5/10/06?

MR. BUTING: Do you see Mr. Templin's initials anywhere on here?

WILLIAM NEWHOUSE: They are not there.

MR. BUTING: Do you see any other firearm tool examiner's initials anywhere on here?

WILLIAM NEWHOUSE: No. Mr. Templin is the one who reviewed that one, there wouldn't be anyone else.

MR. BUTING: Do you see Item 428?

MR. BUTING: Also another one for Item FL; do you see your initials on there?

WILLIAM NEWHOUSE: Yes, they are.

MR. BUTING: Do you see Mr. Templin's initials on there?

WILLIAM NEWHOUSE: No, they are not.

MR. BUTING: So, we have, in your documentation that you must keep in order to maintain your profile -- protocol, no record that any other examiner, besides yourself, looked at Item FL to confirm whether your opinion that this bullet was fired from the gun that was before you earlier, were one in the same, came from the same gun, right?

WILLIAM NEWHOUSE: The error here is that that's not where he makes or records his approval, his acknowledgment that he reviewed the identification via the pictures.

MR. BUTING: Well, sir, we saw how he made very diligent initials when he reviewed your opinions, your subjective opinion, about the cartridges, right?

MR. FALLON: Objection to the characterization, subjective.

MR. BUTING: He's giving us that, certainly subjective. I'll rephrase it.

MR. BUTING: (By Attorney Buting)~ On each and every one of the photographs that you took of the cartridge -- of your opinion about the cartridges, Mr. Templin signed his initials, did he not?

WILLIAM NEWHOUSE: Not at the time he reviewed the photographs.

MR. BUTING: Well, they are on these documents, right?

WILLIAM NEWHOUSE: That's correct.

MR. BUTING: Do you have any documents in that file with -- that show the very exhibits we just showed, the photographs with Mr. Templin's name -- or initials for Item FL?

WILLIAM NEWHOUSE: No, because he had not reviewed the printed copy. He reviewed the computer stored copy.

MR. BUTING: Do you have any documentation, anywhere in your file, that establishes anyone else reviewed your opinion, that Item FL was fired from the gun that was before you?

WILLIAM NEWHOUSE: That documentation is not in the file.

MR. BUTING: Nowhere in your file?

WILLIAM NEWHOUSE: That's correct.

MR. BUTING: And so that would be a deviation from your protocol, wouldn't it?

MR. BUTING: The protocol requires documentation, you told us, right?

MR. BUTING: And documentation including peer review, right?

MR. BUTING: And yet on this very same bullet, Item FL, that we have heard a lot of testimony about, once again, we have something that indicates a deviation from your protocol; is that right?

MR. FALLON: Argumentative, mischaracterization.

THE COURT: Well, I'm going to allow him to explain his answer. Why do you feel it's not a deviation?

WILLIAM NEWHOUSE: The protocol and the approved method that we use for peer review involves my taking those pictures that you saw, some of which you saw up there. I copy them to a location on our server, in our computer network, that is secure, of course, that Reg Templin in Milwaukee has access to. He then -- then I email him, I let him know that, in fact, I have a case there that needs to be reviewed before I can then send a report out, or write the report expressing my opinions.

He reviews those photographs. If he agrees that -- that those photographs that we have been looking at, to him support my opinion that that bullet was fired from that gun, or that the cartridge casing was fired from that gun, he then records, with the computer, that A, he has reviewed it, and B, he has approved it.

And that, then, is the record of the peer review. The initials that you see on the paperwork which are in our file at the laboratory in Madison, of course, reflects the other part of the procedure and it is part of a review process, but different from the peer review of my identifications.

Once or twice a year, it's entirely up to what Reg and I work out, he comes over to Madison, he has to review a certain percentage, approximately 20 percent, of all the cases I have done since he was there last. And this case, the cartridge casing examinations, because I did them first, before he came in April, was one of those case files that he reviewed.

As part of the procedure to prove that he's reviewed the case file, he initials all the paperwork there, all the supporting documentation that I put in the case file. And that's why we see this April 13 date on some of those documents, and that's because he came over in April, but the bullet examination was actually performed in May.

MR. BUTING: Okay. I think we understand what you are saying. It's now March 1st, 10 months later, from the Item FL opinions that you came to, right? And you said that you see Mr. Templin twice a year, so presumably you have seen him since April of '03, right -- '06, I'm sorry. April of '06, correct?

WILLIAM NEWHOUSE: That's correct.

MR. BUTING: Despite that, Mr. Templin has never signed off on any of those exhibits we showed of the photographs that comprise your opinion about Item FL; isn't that right?

MR. FALLON: Objection, mischaracterization, that's not what the witness testified to. He explained the process. This is asked and answered --

MR. BUTING: No, it's not.

THE COURT: I'm sensing there might be a misunderstanding here between the questioner and the witness. Explain again --

MR. BUTING: I understand what he's saying.

MR. BUTING: (By Attorney Buting)~ Of the 20 percent -- Are you saying he has reviewed you -- reviewed 20 percent of your cases since April of '06?

MR. BUTING: Okay. And you are telling us that it just so happens that of the files that he reviewed during that time, Item FL just wasn't one of the ones that he took a look at; is that right?

WILLIAM NEWHOUSE: I choose -- From all those cases I worked since he was here last, I choose that 20 percent at random.

MR. BUTING: Oh, you do.

WILLIAM NEWHOUSE: And it is exactly the case, that this case file was not, when he came over in October, of one of those that I chose.

MR. BUTING: Okay. So you choose the 20 percent?

MR. BUTING: And so you come here to this jury today, though, with no documentation of any sort that establishes Mr. Templin has ever reviewed your opinion about Item FL?

WILLIAM NEWHOUSE: I came here today with -- able to tell you that the procedure that we abide by requires, before this report is approved by a supervisor and allowed to leave the laboratory --

MR. BUTING: All right. Your Honor --

WILLIAM NEWHOUSE: There has to have been --

MR. BUTING: -- he is not responsive.

WILLIAM NEWHOUSE: -- a review by Reg Templin.

THE COURT: No, it is responsive.

THE COURT: I'm going to allow it.

MR. BUTING: (By Attorney Buting)~ Go ahead.

WILLIAM NEWHOUSE: There has to have been, before this report is allowed out of there, proof to the supervisor that this case has been reviewed, that this report and my conclusions have been reviewed by Reg Templin, or someone else over in the Milwaukee Laboratory, or this report doesn't get out.

The fact that they even saw this report, anybody saw this report is, in fact, proof that Reg saw my photographs, agreed with my conclusions, approved with the review process, acknowledged that those conclusions were correct in his mind, and the report then went out.

MR. BUTING: Okay. And that is your assumption because of the usual way in which reports get approved, right?

WILLIAM NEWHOUSE: Well, it's not an assumption, it's what I know happened.

MR. BUTING: But you don't have any documentation in the file that confirms that, do you?

WILLIAM NEWHOUSE: I do have documentation on the computer that could only have been created by him.

MR. BUTING: And you don't have it with you?

WILLIAM NEWHOUSE: I do not, that's correct.

MR. BUTING: All right.

MR. BUTING: Thank you. That's all I have.

THE COURT: Members of the jury, let's take a stretch break before we go back for redirect. Since this is going to be the last witness today, I'm not sending you out for an afternoon break.

(Brief stretch break taken.)

THE COURT: Mr. Fallon, any redirect?

MR. FALLON: Yes, just a couple questions, thank you, Judge.

RedirectRedirectWilliam Newhouse — Redirect William Newhouse Thomas J. Fallon

REDIRECT EXAMINATION BY ATTORNEY FALLON:

MR. FALLON: I'm going to ask my colleague to see if we can pull up exhibit -- Well, before we do that, you indicated in cross-examination that there are class characteristics, sub-class characteristics, and individual characteristics, as I understand it; is that correct?

MR. FALLON: All right. Now, with respect to Item FK, I believe your testimony was there were general or class characteristics that were still present on Item FK?

MR. FALLON: Were there sufficient sub-class features or sufficient individual characteristics that you might have been able to rely upon to attempt any identification or comparison?

WILLIAM NEWHOUSE: On that Item FK, your 276, there were simply not enough of the individual characteristics. I'm not concerned with sub-class characteristics, particularly in this examination. There were not enough of the individual characteristics, some of those little markings that we saw on some of the photographs, on that item, to allow me to come to any specific conclusion about the gun that fired that bullet.

MR. FALLON: All right. Now, I had a couple of questions -- There we go. You were asked questions about Item 426, Groove Impression No. 1. And you used the words that "between the test fired bullet and the sample bullet" there were, I think you said, "a great deal of difference". First of all, tell us what you mean by that.

WILLIAM NEWHOUSE: Sure. Well, what we have to understand is there's always differences. The test fired bullets, when I compare those, I expect to see differences. You cannot fire two bullets from any gun and expect to see what we have maybe heard referred to as a perfect match. Those simply just don't exist.

What's critical is to be able to understand when the difference you see are, in fact, significant. Do I have to worry about this difference, what I think I described as a cannelure, this set of markings, or this set of depressions that you see vertically over here. Clearly that's a difference, a very obvious difference to everyone.

Does it mean anything? It means absolutely nothing. That's a manufacturer's marking that's put on there, has nothing to do with the gun it was fired in. It's not obliterated by firing it through the barrel of the gun. I don't even care whether it's there or not. Clearly, it plays no role. That's an example of the difference, it plays no role, has no influence whatsoever in my evaluating those markings on the bullet to determine whether it was fired from a gun.

Other differences, differences in the color here, they may have started out the same color. Differences in color don't mean a thing. What I'm interested in, so long as all of the class characteristics are the same, what is absolutely required of me, is that I recognize what markings we do have here that are individual, that have some significance because they relate to the manufacturing process that created the barrel from which this bullet was fired. I have to know that they are individual, individual or unique, to that particular barrel. That's not an issue in this case either.

The other element of this is related to markings that, from where you are sitting I suspect you can't see, I know I can't see them clearly from here. They are in this area right here. And this is the only place in this photograph where I have individual detail that I'm trying to take a picture of to show you the kind of thing I'm seeing under the microscope. This isn't everything I saw under the microscope. This is just an example of what I saw.

And I will tell you that in Groove Impression No. 1, that we have some correlation. We have some matching of stria in this location. And, in fact, in this location, however, there is not enough stria there for an identification. If this is all I had on this bullet, I would have had the same conclusion I had with the other bullet here, because that wouldn't be enough. Of course, it isn't all I had.

With regard to this photograph, though, the usefulness of this area that I have labeled DI No. 1, was that it gave me a reference point. I have got all this stuff you see on these bullets. I need to be comparing different parts of the bullets -- of one bullet to different parts of the other bullet. It's kind of nice to have a place to start.

And there are a pair of stria there that I had observed on my test fires, that when I got done looking at my test fires, I knew I was going to look for those on the bullet and, frankly, see if I got lucky. And they were on the bullet that was recovered in Exhibit 277. And the fact of the matter is, they were there. That's what this photograph exhibits.

This is part of the process, but it is not the whole process. And this isn't everything that lead me to the conclusion that this bullet here was fired from that Marlin rifle.

MR. FALLON: So that photograph is an example of what part of the overall analysis?

WILLIAM NEWHOUSE: It's one element of the examination.

MR. FALLON: All right. Now, those markings, those stria that you are talking about, are those the things that occur during the manufacturing process that actually leaves and makes firearms weapons identifications possible?

WILLIAM NEWHOUSE: These stria are a result of the manufacturing process.

MR. FALLON: All right. One second. Can you elaborate on that manufacturing process, I know you talked a little bit about it. But now that it's come up here on cross-examination and those markings, how are those markings -- how did they assist you, as the examiner, in making that determination?

WILLIAM NEWHOUSE: When I'm trying to determine whether a bullet was fired from a gun, it all starts with understanding what the manufacturer is doing to produce that barrel. There are, unquestionably, methods of creating barrels, putting grooves in barrels, that will produce markings that reproduce from barrel to barrel. And, clearly, if you can't recognize it, I can't recognize those when I'm looking at bullets, then there's no way I can come to any conclusions about that.

Any firearms examiner has to bring to the examination an understanding of how that gun barrel was made and what creates these markings we see on the bullets. With Marlin, I can tell you exactly how they made that barrel. And because I know what they did, what machining processes they did, or applied to that barrel to create the grooves in the barrel, I also know that the defects, those microscopic defects that were left in the barrel, after that process was done, are going to create these markings on the bullet and they are going to be unique to that barrel.

So that's the first step in the process. And I say, looking at and having this gun in front of me, that what I'm looking at that's going to be created by the barrel of the gun, is that unique to that gun. In this case I can.

The next step, and the other thing that requires experience and training in the knowledge that a firearm examiner brings to an examination, is an awareness that when we have those markings, you know, I may have 150 of these tiny little scratches and stria scattered around the surface of a bullet. And, clearly, some of them are going to line up. We expect that randomly, if I have two bullets that have been fired from separate guns, obviously, some of these are going to line up. So there's got to be more than just finding lines that line up.

And there is, of course. I have to be aware of, part of my background has to have looked at hundreds, or probably thousands by now, of non-matched situations where I'm looking at bullets that I know were not fired from the same gun, trying to force a match, but recognizing what's the -- what kind of agreement am I going to see in a non-matched situation. And then demanding that when I look at something like this, that I have more than that, to come to an identification. That is also critical for a firearms and toolmark examiner.

And, finally, we talked about consecutive matching stria a little bit. I didn't get into it in a lot of detail. When we look at our matching lines, there's a number of different ways to evaluate them. I think counsel brought up, from I think Mr. Biasotti's paper, that we might find as much as 38 percent lines matching on a comparison and -- on two bullets that we know were fired from the same gun.

Is that significant? Can I look at two bullets, count all the lines and see if I've got 38 percent, and if I have 40 percent say, oh, those were fired from the same gun. Not at all. The percent matching is not a good criteria for judging whether a bullet was fired from the same gun. We don't use that.

What we have found, because -- and Mr. Biasotti's study that counsel quoted over there, started this all up back in 1959. What we have been able to define and quantify -- I can provide some numbers for you if you like -- is what about matching lines is significant to the examiner when he is trying to make that conclusion.

MR. FALLON: If I can stop you there for a second. These matching lines, those are produced in the manufacturing process?

WILLIAM NEWHOUSE: These are produced -- they are a result of defects in the barrel.

MR. FALLON: All right.

WILLIAM NEWHOUSE: These defects create these stria, these lines, if you like, on the surface of the bullet, or on the cartridge casings, as the case may be.

MR. FALLON: And that's how -- that is what they use to make the identification?

WILLIAM NEWHOUSE: Exactly. And if you could look more closely at this --

MR. FALLON: If I could interrupt you --

MR. FALLON: -- and ask you a couple questions to conclude, then. I think it's important that we make one point that may not be as abundantly obvious as it should be. But when you test fire a bullet in the laboratory, what are the conditions under which that bullet is test fired?

WILLIAM NEWHOUSE: I want a bullet that has not been damaged. I want a bullet on which the only markings I see were created by the barrel of the gun from which I fired it.

And to accomplish that in the laboratory, I fire it into water. I have this big old 9 foot X 2 1/2 foot X 4 foot deep water tank and a port on one end of it. And I fire the bullet into the water. If the water is sufficient to slow it down, it drops to the bottom and then I recover it, from the bottom of the tank. And I know, then, that I have a bullet that's only been marked by the barrel of the gun.

MR. FALLON: All right. Now, is that the way you normally receive a sample from the field?

WILLIAM NEWHOUSE: Of course not, no.

MR. FALLON: And so that the fact that there may appear to be differences, could it simply be the result of the quality of what is submitted from having been shot in less than ideal situations, compared to what you are doing in the laboratory when you test fire a bullet?

WILLIAM NEWHOUSE: Almost any bullet I have ever seen recovered from a criminal investigation has struck something. It has struck a shooting victim, it's struck a wall, it's passed through a wall, whatever the case may be. And as you can imagine, this is a lead bullet, even a copper jacketed bullet, they get damaged, broken up into pieces.

The kind of damage we saw on that bullet is just very, very common. And so, I'm not concerned about those kinds of differences. They don't matter. What I'm concerned about is whether this detail, this individual characteristics, these stria, have they been obliterated or not by its passage through a wall, or by it's having struck a shooting victim. And, of course, I determine that by examination under the microscope.

MR. FALLON: Nothing else.

THE COURT: Mr. Buting, anything else?

RecrossRecrossWilliam Newhouse — Recross William Newhouse Jerome F. Buting

RECROSS-EXAMINATION BY ATTORNEY BUTING:

MR. BUTING: All right. It's the same exhibit, but what was the number? Do you have it in front of you?

MR. BUTING: This is groove impression?

WILLIAM NEWHOUSE: I don't have them anymore.

MR. FALLON: It's 426, counsel.

MR. BUTING: (By Attorney Buting)~ 426 is up there. One thing I just want to make clear, because I don't know that it's clear, on the record, to the jury. These -- What appear are lineal indentations or rows on these bullets are the lands, right?

WILLIAM NEWHOUSE: The two you just pointed at are land impressions.

MR. BUTING: Okay. Land impressions. And the general impressions that you get here, you are going to get on any rifle that has 16 grooves and lands with a right hand twist, right?

WILLIAM NEWHOUSE: The characteristics of that, the width of those impressions, would be characteristic of what you would get from a 16 land and groove manufactured barrel.

MR. BUTING: Okay. So, the similarities in this exhibit with these -- on these two sides, of having these rows or lands impressions, would be something that would just be considered a class characteristic?

MR. BUTING: That would be common with any Marlin 60, or even the Jennings pistol manufacturer, right?

WILLIAM NEWHOUSE: That's correct.

MR. BUTING: What your opinion is based on are these smaller scratches, or stria, in the groove area, right?

WILLIAM NEWHOUSE: In this particular case, they happen to be in the groove impression, that's correct.

MR. BUTING: Right. And in your redirect testimony, you said that on this photograph, really, the only area that to you demonstrated enough individual characteristics on this whole photograph, is this central area right here, which would be just to the left of where it says GI No. 1; is that right?

WILLIAM NEWHOUSE: Only in Groove Impression No. 1, in this photograph.

MR. BUTING: In this photograph, correct. So it's your opinion --

MR. BUTING: Zoom in on that once.

MR. BUTING: (By Attorney Buting)~ So, in your opinion, those two halves are so similar, in this instance, that you are able to consider this as one of your features that make this bullet unique to that rifle that was before you earlier?

WILLIAM NEWHOUSE: No, that's not what I said.

MR. BUTING: Well, okay, let me ask it this way. Your opinion is that those two sides match?

WILLIAM NEWHOUSE: Again, I would not use that term for this particular groove impression, no.

MR. BUTING: Well, this one you thought was so unique, or so similar that it was a reference point, right?

WILLIAM NEWHOUSE: It was similar enough to be a reference point, and that's why I took the photograph of it, yes.

MR. BUTING: Okay. And so we rely on your opinion then, that both sides of this photograph, in that area, match?

WILLIAM NEWHOUSE: Again, I would not say that. That's not my description of this.

MR. BUTING: Similar. What's the word you want to use?

WILLIAM NEWHOUSE: What I would say is that in this area I have this pair of stria that were easy to see, and that I could look for and use as a reference point. I was also very clear that, in fact, there is not enough other stria -- and two is not enough -- to support the conclusion that we have an identification here. I had to rely on other detail that -- some of which I tried to photograph in the other photographs.

MR. BUTING: None of which can be quantitated. You can't just look at that and say, you know, quantitatively, these match. Instead, it depends on your subjective opinion to this jury that those two sides match -- or I'm sorry, not match -- similar enough to consider individual?

WILLIAM NEWHOUSE: With regard to this groove impression, there is quantitatively not enough information to conclude an identification. That information, that more complete quantitative information is present in other areas on the bullet.

MR. BUTING: But in each one of those instances, it is an eyeball subjective conclusion on your part, about whether those are similar -- those two strias are similar or not?

WILLIAM NEWHOUSE: I have no other way of evaluating it other than looking at it through the microscope, that's correct.

MR. BUTING: All right. Thank you. That's all I have.

THE COURT: All right. Mr. Fallon?

THE COURT: Very well. The witness is excused. Members of the jury, that is going to conclude our session today. I did notify the bus line that they should stop early today. Hopefully they are here already. If they aren't, they will be here shortly.

I will remind you again not to discuss the case among yourselves or with anyone else, and not be exposed to any news media accounts of this case. We'll see you at the normal time tomorrow morning.

(Jury not present.)

THE COURT: You may be seated. Counsel, are there any exhibits that either party wishes to address at this time?

MR. BUTING: I would move -- I would move in, I think all of the exhibits that I introduced, which is 420, through 428.

MR. FALLON: I believe 420 was the one that was mismarked and never really discussed. That was the worksheet on the cartridges. So I'm not sure it has any particular relevance. And in terms of the photograph, or the black and white copies -- Well, all right, I suppose we might as well move them in. I was going to say the disc is a much more representative. The CD ROM has all seven photographs that were brought for exemplary purposes and identified as Groove Impression 1, 3, and 6, so.

MR. BUTING: Sure. I have no objection to that. The black and white simply give us a frame of reference on the record from which one is which.

THE COURT: So, is somebody going to provide for the record a disc that identifies them by the exhibit number they were given?

THE COURT: We have that?

COURT CLERK: Yeah, 417.

THE COURT: Very well.

MR. BUTING: It doesn't identify each individual ones inside. When you open it up, it doesn't have exhibit numbers on it, but these black and white ones will correspond, I think, enough that you can figure it out.

THE COURT: Fair enough. What about the 420, the one that was --

MR. BUTING: I will withdraw 420. We didn't get into. It was mismarked, actually.

THE COURT: Withdraw or simply not offer it for admission, two different things. If you withdraw it, I'm going to give it back to you. All right.

MR. BUTING: Yeah, let's take it back.

THE COURT: 420 is withdrawn?

MR. FALLON: That's fine.

THE COURT: Are there any other exhibits that need action?

COURT CLERK: Do you want me to keep a copy of it, that it was marked or doesn't it matter? Normally when it's withdrawn, I always keep a copy of it.

THE COURT: Keep a copy.

MR. FALLON: I was just wondering if maybe tomorrow we could get together with the Clerk and see if we can have an overall accounting, see where we are on the exhibit score card.

THE COURT: At the beginning of the day or the end?

MR. FALLON: Probably at the end.

THE COURT: At the end, when the jury is gone. All right. We'll do that. We'll see you tomorrow morning.

MR. FALLON: Thank you.

MR. BUTING: Do you have 425 up there?

COURT CLERK: Yes. I'm going to make a copy of this one that's withdrawn. And then I will give it back to you.

(Proceedings concluded.)

Continue to Day 151.Kenneth Olson — Direct/Cross/Redirect/Recross