United States v. Smallwood

Billi Jo Smallwood (defendant) lived at the Fort Campbell US Army base with her husband and three minor children. Neighbors called authorities after the Smallwood house caught fire one night. Emergency personnel found Billi Jo, her husband, and her youngest child outside the residence, but the other two children were still inside the house and could not be rescued. Smallwood herself received second-degree burns. An Army Criminal Investigation Division agent noticed that the Smallwood vehicle had been vandalized, with the tires flattened and words written on the vehicle. A knife was located on a desk inside the home. Ultimately, Smallwood was indicted for malicious damages and destruction by fire to property owned by the federal government (plaintiff) and the same crimes with the added element of resulting deaths. At trial, the government intended to introduce testimony from Kristin Gerber. Gerber would testify that the knife found inside the Smallwood house created test tool marks that matched tool marks found in the tires of the damaged Smallwood vehicle. Gerber planned to testify that the knife found inside the house was the same knife used to slash the vehicle’s tires. Smallwood objected for several reasons. The tool-mark test is inherently subjective, and even the Association of Firearm and Tool Mark Examiners acknowledge that the individual examiner’s skill and training are pivotal to the accuracy of any test. Gerber had extensive knowledge regarding firearms but had learned about knives in only one class, which had covered knives as part of a group of different tools and marks. Gerber had never testified in a case involving knife marks before and had only looked at knife marks in tires once previously. Indeed, during a hearing regarding Gerber’s fitness under the Daubert standard, Gerber could not be meaningfully cross-examined because, on any question, Gerber would say that the photographs offered were ineffective and did not show what would be shown under an examining microscope. The government noted that most federal courts allowed firearm and tool-mark testimony, despite the fact that most cases involved firearms, which are subject to more consistent identification and better science in analysis. Smallwood filed a motion to exclude Gerber as an expert witness.