The Wrong Gun

“Then take a look.”

Manning studied the photograph. “Yes. There are four.”

“How many marks do you find that do line up?”

Again Manning studied the photograph. “I count three.”

“Four that don’t, three that do?”

Manning frowned. “That is an unfair way of presenting the evidence.”

“Oh? Why is that?”

Manning hesitated a moment, then blurted out, “You make it sound like a ball score, with my side losing.”

Laughter rocked the courtroom. Everyone broke up, spectators and jurors alike.

Judge Hendrick, sensing everyone needed relief from the tension of the case, gave it a few moments before banging the gavel. “That will do,” he said. “Proceed, Mr. Winslow.”

Steve smiled. “Well-said, Mr. Manning. I’m sorry if I gave that impression. But four to three, that’s what we just counted up, isn’t it?”

“You can’t go by that,” Manning said. “The two things are in no way equivalent. There are four scratches where someone marked the barrel of the gun that prevent us from seeing the scratches that would line up. Despite this, we’re still able to line up three. That does not yield a score of four to three. If the murderer had only scratched the gun barrel twice, would we then have a score of three to two and say the identification won? Not at all. The two things are unrelated. Except, if there were only two scratches made by the file, we could see even more scratches that matched. You see what I’m saying?”

Steve smiled, “Yes, I do, Mr. Manning, but the fact remains you have only three scratches in this photograph that line up.”

“I’ve explained that.”

“Yes, you have. What I want to know is, is that sufficient to make the identification?”

“Yes, it is.”

“Is it, Mr. Manning? Didn’t you testify yesterday that there were individual characteristics and class characteristics?”

“Yes, I did.”

“Well, couldn’t these be class characteristics, common to all Colt,45s?”

Manning hesitated a moment.

Steve’s eyes widened. “Is that right, Mr. Manning? Is that what they are?”

“No, it is not,” Manning said angrily. “And I resent the suggestion. If I hesitated for a moment, it is because I wanted to be absolutely fair. You mentioned class characteristics. There is one of the scratches in the photograph that is consistent with being a class characteristic. I would go so far as to say it is indeed a class characteristic. But there is only one of which I would say that.”

“One of the three?” Steve asked.

“Yes. One of the three.”

“You’re saying now you think that is a class characteristic?”

“Yes, I do.”

“Then that leaves two scratches that are not class characteristics?”

“That’s right.”

“You are now saying two scratches are sufficient for making the identification.”

“No, I’m not,” Manning said. “I’m merely saying the bullets match.”

“But you must have some basis for saying so.”

“I’m saying so on the basis of my examination. If you want to break that down and say I’m going on the basis of two scratches, I suppose you can do so, but that’s not an accurate assessment of the situation. Aside from the scratch we call the class characteristic, there are two scratches that are a definite match. And there is every indication there would be more matches if it weren’t for the defacing of the barrel of the gun.”

“Mr. Manning, isn’t that like saying, I didn’t find the defendant’s fingerprints, but if I had found them they’d be there?”

“Objection.”

“Sustained.”

“Mr. Manning, how can you testify that scratches that aren’t there probably exist?”

Manning smiled. “Because I have matched the bullet. So I know if the gun barrel hadn’t been defaced, those scratches on the test bullet would match those on the fatal bullet.”

“Isn’t that circular logic, Mr. Manning? You know those scratches exist because the bullets match, but you base your conclusion that the bullets match partly on those scratches that you assume must be there.”

“Objection.”

“Overruled.”

“No, I do not. And I think I’ve made a fair and accurate appraisal of the evidence, and given you my professional opinion.”

“All right,” Steve said. “Let’s move on to the other pictures. Did you bring in the photographs of the other test bullet, the one fired from the gun, People’s Exhibit Three?”

“Yes, I did.”

“Could you produce those pictures, please?”

“Your Honor, I object to the introduction of these pictures in evidence,” Vaulding said.

“We’re not introducing them in evidence now. We’re marking them for identification.”

“Nonetheless, I object to them.”

“Your objection is noted. The court reporter will mark the pictures. How many are there?”

“Four,” Manning said.

“Very well. Let’s have them marked Defendant’s Exhibits B-One-through-Four.”

When the pictures had been marked, Steve Winslow selected one and approached the witness. “Mr. Manning, I hand you a photograph marked Defendant’s Exhibit B-Two and ask you what it depicts?”

“That shows a test bullet fired from the gun, People’s Exhibit Three, on the comparison microscope with the fatal bullet.”

“The bullets are aligned?”

Manning frowned. “Once again, the bullets are not aligned. An attempt was made to align them, which I could not do. Let me put it this way. The bullets are aligned in as much as it was possible to do so. There was only one real point of similarity.”

“And what does that indicate to you?”

“That the bullets don’t match.”

“I know. I understand that’s your contention. I mean, what do you think that point of similarity represents?”

“That would be an example of class characteristic.”

“The class characteristic caused the match?”

“That’s right.”

“Tell me, would that be the same class characteristic that is shown in the test bullet fired from People’s Exhibit Four?”

“As to that, I’m not sure.”

“Well, take a look.”

Steve handed him back the other photo.

Manning studied the two photographs side by side. “It would appear to be the same mark.”

“The same class characteristic?”

“That is correct.”

“So these photos show the fatal bullet and the test bullets in basically the same position?”

“Yes, they do.”

“I see. Tell me, Mr. Manning. Did you by any chance compare a test bullet from the gun, People’s Exhibit Four, with a test bullet from the gun, People’s Exhibit Three, on the comparison microscope.”