1 Monday, 22nd July 2013
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.35 a.m.
5 JUDGE ORIE: Good morning to everyone in and around this
7 Madam Registrar, would you please call the case.
8 THE REGISTRAR: Good morning, Your Honours. This is the case
9 number IT-09-92-T, the Prosecutor versus Ratko Mladic.
10 JUDGE ORIE: Thank you, Madam Registrar.
11 The Chamber was informed that there are no preliminary matters to
12 be raised, which means that we could start the examination of the next
13 witness which is Mr. Curtis.
14 MR. JEREMY: That's correct, Your Honour.
15 JUDGE ORIE: Could the witness be escorted into the courtroom.
16 MR. JEREMY: Your Honours, while the witness is being brought in,
17 perhaps I might deal with a request to add three exhibits to the
18 witness's 65 ter -- to the Prosecution's 65 ter exhibit list. Two of
19 those exhibits were the subject of a filing made in June and the third
20 exhibit is a CV of Mr. Curtis that we're seeking to add to the 65 ter
21 exhibit list.
22 JUDGE ORIE: Mr. Ivetic.
23 MR. IVETIC: No objection to any of the three for the Defence,
24 Your Honour.
25 JUDGE ORIE: Any of the three.
1 Could you list the 65 ter numbers?
2 MR. JEREMY: Yes, Your Honour. The first one is 29111.
3 JUDGE ORIE: Yes. The second is that 29112 and the third one
5 MR. JEREMY: Correct.
6 JUDGE ORIE: Then leave is granted to add them to your 65 ter
8 MR. JEREMY: Thank you.
9 [The witness entered court]
10 JUDGE ORIE: Good morning, Mr. Curtis, I presume.
11 THE WITNESS: Yes, good morning, sir.
12 JUDGE ORIE: Good morning. Before you give evidence, the Rules
13 require that you make a solemn declaration. The text of which is now
14 handed out to you. May I invite you to make that declaration.
15 THE WITNESS: Yes. I solemnly declare that I will speak the
16 truth, the whole truth, and nothing but the truth.
17 WITNESS: TIMOTHY CURTIS
18 JUDGE ORIE: Thank you, Mr. Curtis. Please be seated.
19 THE WITNESS: Thank you, sir.
20 JUDGE ORIE: Mr. Curtis, you'll first be examined by Mr. Jeremy.
21 You find him to your right. Mr. Jeremy is counsel for the Prosecution.
22 Mr. Jeremy, you may proceed.
23 MR. JEREMY: Thank you, Your Honours.
24 Examination by Mr. Jeremy:
25 Q. Good morning, Mr. Curtis.
1 A. Good morning, sir.
2 Q. Could you please states your full name.
3 A. Yes. Timothy Joseph Curtis, last name is spelled C-u-r-t-i-s.
4 Q. And I see you've brought some materials into the courtroom.
5 Could you just tell us what those are, please?
6 A. Yes. It's a copy of my report, an envelope with two photographs,
7 and a copy of the -- a submission 5 or request number 5.
8 Q. Thank you. Mr. Curtis, what is your current profession?
9 A. I currently am the chief operations officer for laboratory
10 services for the Bureau of Alcohol, Tobacco, Firearms, and Explosives.
11 Q. And how long have you been the chief operations officer?
12 A. Since May of this year.
13 Q. And before then what was your profession?
14 A. I was also with the Bureau of Alcohol, Tobacco, Firearms, and
15 Explosives but as the chief of their
16 National Integrated Ballistic Identification Network. The NIBIN
18 Q. And could you tell us what the ATF is, please?
19 A. I'm sorry. The ATF is the Bureau of Alcohol, Tobacco, Firearms,
20 and Explosives. It's a part of the United States Department of Justice,
21 one of the bureaus, and their primary function of -- for the laboratories
22 is to examine the forensic evidence recovered in arsons, bombings, and
23 shooting cases.
24 Q. And you mentioned the NIBIN programme. Could you tell the Court
25 what that is, please.
1 A. Yes, the NIBIN programme, National Integrated Ballistic
2 Information Network, is a programme run throughout the United States in
3 which they use the IBIS systems which are the integrated ballistic
4 integrated systems. They are ballistic computers. And the NIBIN
5 programme --
6 JUDGE ORIE: May I ask you to slow down a bit for the
7 interpreters and the transcribers.
8 THE WITNESS: Yes. Yes, sir.
9 Yes, the NIBIN programme is part of the bureau's ballistic
10 imaging programme where it links all the ballistic computers throughout
11 the United States into a -- several different computer databases where
12 they can be searched locally or nationally.
13 MR. IVETIC: Your Honours, if I can just interject, I apologise,
14 but I just received a note that my client requires to have a break to use
15 the facilities. So if he can be permitted to attend to that.
16 JUDGE ORIE: Mr. Mladic would like to withdraw from the courtroom
17 for a moment or? Leave is granted.
18 Any estimate as -- I mean, should we take a break? Can we
19 continue meanwhile? Or what's the --
20 MR. IVETIC: I'm told five minutes, Your Honours.
21 JUDGE ORIE: And are we supposed to continue or would Mr. Mladic
22 prefer to --
23 MR. IVETIC: Yes, we can continue.
24 JUDGE ORIE: [Overlapping speakers] We can continue in his
25 absence. And the Chamber understands this as an explicit waiver of his
1 right to be present in court.
2 MR. IVETIC: Yes, Your Honour.
3 [The accused withdrew]
4 JUDGE ORIE: Thank you. Please continue, Mr. Jeremy.
5 MR. JEREMY:
6 Q. Mr. Curtis, you mention there the IBIS system, could you just
7 give us a few lines about what that is, please?
8 A. Yes. The IBIS system is a computerised network that will take
9 digital images of the digital photographs of the cartridge case,
10 breechface, firing pin, and ejector marks. It also -- you can take
11 images of fired bullets, and they are put into a database and they are
12 searched using an algorithm [Realtime transcript read in error
13 "algor ethnic"]. After the search results came back, and they are looked
14 at by the IBIS specialist to determine if there are any high confidence
16 Q. And you mentioned a cartridge case. Could you just provide
17 details about what a cartridge case is? Yes.
18 A. Yes. A cartridge case is a part of the whole cartridge. A
19 complete cartridge is a round of ammunition which has the case filled
20 with gun powder, a bullet on the other end of it, and on the head portion
21 there is a primer. When the cartridge is placed into a fire-arm, the --
22 and the trigger is pulled, the firing pin will strike the primer on the
23 head of the case, that will detonate, igniting the gun powder. Once the
24 gun powder is ignited it burns forming a gas. The gas pushes the bullet
25 out of the barrel. It also helps push the breech where the bolt of the
1 fire-arm rearwards extracting the case which is now fired and empty out
2 of the fire-arm and ejecting it onto the surrounding area.
3 Q. And is it correct to also refer to a cartridge case as a shell
4 case? Is that accurate?
5 A. Yes, that's accurate.
6 MR. JEREMY: Could the Court Officer please bring 65 ter 29113 to
7 our screens.
8 JUDGE ORIE: Could I ask one clarifying question. You said that
9 they are searched using an algorithm. If I say -- it says
10 "algor ethnic," but that apparently is a mistake.
11 THE WITNESS: Yes.
12 JUDGE ORIE: Algorithm, does that mean that the characteristics
13 of the material which is examined is -- is reduced to a numerical set of
14 data and then compared with others? Is that how I have to understand it?
15 THE WITNESS: Yes. That is correct. It becomes digitalised and
16 then numeric formulas and then it is searched that way. You are correct.
17 JUDGE ORIE: Thank you.
18 Please proceed.
19 MR. JEREMY:
20 Q. Mr. Curtis, do you recall providing a copy of your CV to this
21 Tribunal, to the Office of the Prosecutor?
22 A. Yes, I do.
23 Q. And do you recognise the document on the screen now before you?
24 A. I do. It is a copy of my CV.
25 Q. Does it detail your education, professional training, and
1 professional experience?
2 A. Yes, it does.
3 Q. And I note from your CV that you have testified over 125 times as
4 an expert in firearms in US courts; is that correct?
5 A. That is correct.
6 MR. JEREMY: Your Honours, I tender this document as the next
7 Prosecution exhibit.
8 MR. IVETIC: No objection.
9 JUDGE ORIE: Madam Registrar.
10 THE REGISTRAR: Document 29113 receives number P1816,
11 Your Honours.
12 JUDGE ORIE: And is admitted into evidence.
13 MR. JEREMY:
14 Q. Mr. Curtis, has the ATF previously provided a report relating to
15 analysis of certain cartridge cases to the Office of the Prosecutor of
16 this Tribunal?
17 A. Yes, it has.
18 MR. JEREMY: Could the Court Officer please bring 65 ter 04613
19 [Realtime transcript read in error "01613"] to our screens.
20 JUDGE MOLOTO: 4613, is that it?
21 MR. JEREMY: Yes, Your Honour.
22 JUDGE MOLOTO: Thank you.
23 MR. JEREMY:
24 Q. Mr. Curtis, do you recognise the document on the screen before
1 A. Yes, I do. It's an ATF, Bureau of Alcohol, Tobacco, Firearms,
2 laboratory report.
3 Q. And can you briefly just provide an overview of what this report
4 is about?
5 A. Yes. It's evidence that was received in our laboratory, both in
6 November of 1997 and February of 1999. The first several pages, nine
7 pages, list the exhibits, and then the following pages, 9 through 14,
8 will list the results of those comparisons of those exhibits.
9 MR. JEREMY: Can we please go to page 15 of this document.
10 Q. Mr. Curtis, do you see your signature on that page?
11 A. Yes, I do.
12 Q. And were you involved in the preparation of this report and the
13 underlying investigation and that culminated in the production of this
15 A. Yes, I was.
16 Q. And I see you're listed as a fire-arms tool-mark examiner. Can
17 you tell us what that is, please?
18 A. Yes. Back in 2000, I was a fire-arm and tool-mark examiner with
19 the Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF for short.
20 And as fire-arm examiner, my duties were to do the microscopic comparison
21 of bullets, cartridge cases, or shell casings, and function testing of
22 firearms. And the main purpose of doing these microscopic comparisons is
23 to determine if the cartridge cases or bullets were fired from the same
24 fire-arm or from a particular fire-arm if you have the fire-arm to
1 Q. And can you explain what it was that the Office of the Prosecutor
2 of this Tribunal asked the ATF to do in connection with this report and
3 the cartridge casings they provided to you?
4 A. Yes. They asked us to enter these into our IBIS system and then
5 do a physical comparison of any possible matches that may have come up in
6 the IBIS system.
7 Q. And what was the basic aim of that analysis? What was it to
9 A. To determine if any of these cartridge cases that were submitted
10 had been fired in the same fire-arm.
11 [The accused entered court]
12 JUDGE ORIE: I put on the record that Mr. Mladic has returned to
13 the courtroom.
14 Please proceed.
15 MR. JEREMY:
16 Q. And how were you able to make that determination as to whether
17 these cartridge cases had been fired in the same fire-arm?
18 A. In this case we received a list of request from our IBIS
19 specialist who had entered the cartridge cases into the IBIS system, done
20 their correlations and reviewed them. So they gave us a list of possible
21 matches. And then as firearms examiners, we took the actual evidence
22 items, and using a comparison microscope, which is two microscopes with a
23 common eye piece, we were able to compare two cartridge cases at the same
24 time and overlay the images of the cartridge cases in the microscope to
25 see which markings are reproducing from one cartridge case to the next,
1 and that's what we did in this case.
2 Q. Now you mentioned that you received a list of requests from your
3 IBIS specialist?
4 MR. JEREMY: Can we please go to 65 ter 29111.
5 Q. Mr. Curtis, can you tell us what we're looking at here, if you
6 recognise it?
7 A. Yes. This is a copy of the list or the request that I received,
8 request number 5, to inter-compare the exhibits that are in the left-hand
9 column to the exhibits that are in the right-hand column to determine if
10 they were fired in the same fire-arm.
11 Q. So these shell casings are the result of the preliminary IBIS
12 analysis and they identify the potential matching shell cases; is that
14 A. That is correct. That is what the IBIS personnel thought were
15 high confidence matches.
16 Q. And I see a reference in this request to Zeleni Jadar and Kravica
17 warehouse. Did you -- did those names mean anything to you at the time?
18 A. No, they did not.
19 Q. And in respect to the -- the potential matches identified the
20 high confidence candidates, what would -- what would happen to those once
21 they had been supplied to you by the IBIS examiners? What was the next
23 A. The next step was for me to take the actual physical items, the
24 cartridge cases, and compare them on the comparison microscope to
25 determine if they were fired in the same fire-arm or not.
1 Q. And I see on this memorandum there are some manuscript markings
2 on the right side. Can you tell us what those are, please?
3 A. Yes. They are markings I placed there during my examination of
4 these items, such as in Exhibit 1627-10 when I compared it to
5 Exhibit 0913-19. I wrote next to it "negative," that I was not able to
6 identify those two cartridge cases as being fired in the same fire-arm.
7 And then as you come down there are several other negatives, and there is
8 one LSM, which is "lacks sufficient marks." In that case there were some
9 markings there to indicate they may have been fired, but I did not have
10 enough to positively say they were fired in the same fire-arm.
11 Q. And just --
12 JUDGE ORIE: Could I ask you, is it also that you couldn't say
13 that they were not fired from the same fire-arm?
14 THE WITNESS: That is correct, sir.
15 JUDGE ORIE: That makes it a special category against the
16 negatives and the positives.
17 THE WITNESS: Yes.
18 JUDGE ORIE: Thank you.
19 MR. JEREMY:
20 Q. Do you see your signature on that page, Mr. Curtis?
21 A. I do.
22 Q. Is that the signature on the right side?
23 A. Yes. It's on the bottom right-hand side with the date of
25 Q. And there is also a signature of a second person on that page.
1 Whose signature is that?
2 A. That is the signature of my supervisor, and he signed that when
3 he received the request from the IBIS specialist.
4 Q. So of the potential matches identified in this particular
5 memorandum, there are only two positive matches that you were able to
6 make; is that correct?
7 A. That is correct.
8 Q. Did you photograph the matches that you were able to make?
9 A. Yes, I did.
10 JUDGE MOLOTO: If I might just ask a question. I see the second
11 positive, there doesn't seem to be anything that 0913-47 is compared
13 THE WITNESS: On the left-hand column under Exhibit 1627-55, it
14 has the digital marks below it.
15 JUDGE MOLOTO: Okay.
16 [Trial Chamber confers]
17 JUDGE MOLOTO: Thank you so much.
18 THE WITNESS: You're welcome, sir.
19 MR. JEREMY: Could I tender this document as the next Prosecution
21 MR. IVETIC: No objection.
22 JUDGE ORIE: Madam Registrar.
23 THE REGISTRAR: Document 2911 receives number P1817,
24 Your Honours.
25 JUDGE ORIE: And is admitted into evidence.
1 JUDGE FLUEGGE: I have an additional question in relation to the
3 Is it common in your system that first the supervisor signs a
4 document and then you?
5 THE WITNESS: He was signing for receipt of the document from our
6 IBIS specialist in this case, and for these -- the cases for this
7 examination, yes, he would sign for them first. And then after I did my
8 examination, he would -- I would sign my results. And after we did our
9 report, after I signed my report, he would also review it and sign it
10 after me in that case.
11 JUDGE FLUEGGE: Thank you very much.
12 THE WITNESS: Yes.
13 MR. JEREMY:
14 Q. Staying with that question, if you made a positive match, would
15 that be verified by another member of your team?
16 A. Yes. All of our matches and non-matches are verified by a second
17 fire-arm -- qualified fire-arms examiner, as was in this case.
18 Q. You mention that you photographed these matches. What was the
19 purpose of photographing of the matching of the shell cartridges?
20 A. Photographs, at the time we were doing them, just for our
21 recollection later on to refresh our memory as to exactly what we saw
22 under the microscope at that time so that later on if we have to go to
23 court we have a documented photograph of what we had seen.
24 Q. In the process of determining whether two cartridge cases match,
25 would that be based on the photograph or what you saw through the
2 A. All our identifications are through the microscope. We do not
3 make identifications off photographs or off the IBIS computer screens.
4 And when our second examiner confirms our verifications, they are also
5 doing that through the comparison microscope.
6 JUDGE ORIE: And could I ask you whether the image that you saw
7 on the comparative microscope, whether that will be photographed again or
8 stored in any other way?
9 THE WITNESS: It can -- if we had the items of evidence and put
10 them on a comparison microscope today, we can rephotograph them as well.
12 JUDGE ORIE: But not at the time, if I ...
13 THE WITNESS: I'm not sure I understand, sir.
14 JUDGE ORIE: You compared the items under the comparative
15 microscope. I asked you whether you then photographed the image which
16 would be visible and then you said:
17 "It can -- if we had the items of evidence and put them on a
18 comparison microphone scope today, we can rephotograph them as well."
19 But were they photographed at the time?
20 THE WITNESS: Yes, they were. I'm sorry, sir. We photographed
21 all our positive results. We did not photograph any of the negative
23 JUDGE ORIE: Yes. And they are still stored and available, if
24 need be?
25 THE WITNESS: Yes. I actually brought those two photographs with
1 me today.
2 JUDGE ORIE: Yes.
3 MR. JEREMY: We'll look at one of those --
4 JUDGE ORIE: Yes.
5 MR. JEREMY: -- now, please. 65 ter 29112. Could we rotate that
6 180 degrees, please.
7 Q. Mr. Curtis, could you please tell us what we're looking at here?
8 A. Yes. In this photograph we're looking at two different cartridge
9 cases with the images overlaid. On the left-hand side is exhibit number
10 1627-55, and on the right-hand side is Exhibit 0913-89. In the area that
11 is of significance in this photograph is on the right -- lower right-hand
12 side at about 4.00 position on a clock, that would be the ejector mark on
13 the cartridge cases. You can see a fine thin line coming down through
14 the photograph, that is the hairline that is within the comparison
15 microscope, and that separates the cartridge case on the left from the
16 cartridge case on the right, and I'm able to sweep that line back and
17 forth on the microscope to show those marks carry over from the one
18 cartridge case to the other, thus identifying them as being fired in the
19 same fire-arm.
20 JUDGE ORIE: You are referring to 4.00. Shouldn't we turn it
21 180 degrees in order to have it really at 4.00 or ...
22 THE WITNESS: On mine, it's on the lower right-hand side.
23 JUDGE ORIE: On mine, it may be -- oh, it's turned already. I
24 had it on my own screen. Yes. I see. Problem resolved.
25 MR. JEREMY:
1 Q. And, Mr. Curtis, is this one of the matching shell casing
2 identified in request 5 that we looked at a few moments ago?
3 A. Yes, it is.
4 Q. And I see the writing "request 5" on the left side and the date
5 and some initials. Whose initials are those?
6 A. They are my initials.
7 Q. And I see "1.5 x" on the bottom of the screen, "1.5 x." What
8 does that mean, please?
9 A. That means this photograph was taken at 15 times the resolution
10 of the original size of the cartridge case, so ...
11 Q. Could we go to the next picture.
12 JUDGE ORIE: Just for my understanding, if I look at this
13 picture - and could we still have the previous once - do I well
14 understand that what is found at approximately 2.00 that where, of
15 course, the -- what looks like a V but then horizontally, that that
16 doesn't match because the cartridge may be put in the weapon in whatever
17 position and, therefore, only marking made once the weapon is in position
18 will match, whereas any other letters or whatever is -- may not match at
20 THE WITNESS: Yes. Once the cartridge is put in the fire-arm,
21 they can be put in at any position, and that horizontal V is actually
22 part of the manufacturing head stamp on the cartridge case.
23 JUDGE ORIE: Yes. Which may or may not well be found on the
24 other part as well if manufactured by the same factory but does not have
25 to match if you compare the two because the only relevant matter is the
1 marking made by the weapon?
2 THE WITNESS: That is correct, sir.
3 JUDGE ORIE: Thank you.
4 MR. JEREMY: Could we go to the next picture, please. Page 2.
5 If we can rotate it so the 1627-55 is horizontal, please.
6 Q. And, Mr. Curtis, if you could tell us what we're looking at here,
8 A. Yes. This is Exhibit 1627-55, comparing it to Exhibit 0913-47.
9 Once again, two fired cartridge cases; one on the left, and one on the
10 right. And once again down around the 4.00 position. We're looking at
11 the markings from the ejector of a fire-arm that are imparted to the
12 case, and there is the hairline down through there, and if we sweep the
13 hairline, the microscopic markings would once again -- they all line up
14 indicating these two cartridge cases were fired in the same fire-arm.
15 Q. Were the cartridge cases that you looked at the same calibre or a
16 different calibre?
17 A. They were the same calibre. They were all of the 7.62 by .39
19 Q. And is there a particular weapon that would discharge shell
20 casings of that calibre?
21 A. Commonly the AK style of fire-arm. It fires the 7.62 by .39.
22 Q. And the matching shell casings in this picture, are those the
23 second match that we looked at in request number 5, the second of the two
25 A. It is.
1 MR. JEREMY: Your Honours, I'd tender that as the next
2 Prosecution exhibit, please.
3 MR. IVETIC: No objection.
4 JUDGE ORIE: Madam Registrar.
5 THE REGISTRAR: Document 29112 receives number P1818,
6 Your Honours.
7 JUDGE ORIE: And is admitted into evidence.
8 MR. JEREMY: Could we go to 65 ter 04613, please. That's the ATF
10 Q. Now, Mr. Curtis, we have the ATF report before us. I see there
11 is a subheading "Exhibits" and then there is a list of cartridge casings
12 that goes on for the next nine pages in the report. What are those?
13 A. Those are the exhibits that were entered into our IBIS system
14 that came back as a possible high confidence match to another exhibit.
15 And there is a, I believe, eight and a half or nine pages of these.
16 Q. So if a cartridge casing was entered into the IBIS system and it
17 came back with a negative match, would it be included in this list?
18 A. No, it would not.
19 Q. Can we go to page 9 of this document, please.
20 Mr. Curtis, half way down the page we see the results of
21 examination which states:
22 "Microscopic examination of the above-listed cartridge case
23 exhibits have been conducted. Based upon that examination, the following
24 cartridge cases have been identified as having been fired in the same
1 And then there is a list of cartridge casings identified with
2 other cartridge casings. Can you just briefly explain this part of the
4 A. Yes. The cartridge case in the left-hand column would be
5 identified as being fired in the same fire-arm as the cartridge case in
6 the right-hand column directly opposite it -- opposite of it. And it's
7 not saying that there was only one fire-arm, but those cartridge cases --
8 as example 1488/A1-3 and in the right-hand column 1486/332-1 were
9 positively identified as being fired in the same fire-arm.
10 Q. So when we looked at the memorandum number 5 earlier and you
11 identified two matching shell cases, they would be included in these
13 A. Yes, they would.
14 MR. JEREMY: Could we go to page 15 of this document, please.
15 Q. Mr. Curtis, here we see your name and signature and the name of
16 three other persons and their signatures. Can you tell us the role that
17 those three other persons played in the investigation and preparation of
18 this report?
19 A. Yes. Three of us were fire-arm examiners: Myself, Mr. Danridge
20 and Mr. Ols. And the three of us did the actual physical comparisons of
21 the cartridge cases using the comparison microscopes to identify or
22 eliminate cartridge cases being fired in the same fire-arms. Mr. Wilson,
23 who is on the lower right, he was our section supervisor at the time and
24 his role was basically to review our paperwork and make sure it was
25 proper following all of our procedures. And afterwards, after we'd
1 signed off on everything and he saw it was correct, he would then sign.
2 Q. And as an example in respect of the two matches we identified for
3 request number 5, do you know who it was that verified your own findings
4 that there had been a match?
5 A. Yes. Mr. Walter Danridge verified my positive identification on
6 those two identifications.
7 Q. And how do you recall that?
8 A. After I verified it, I asked Mr. Danridge to look into the
9 microscope. He came to the same conclusion as I did. I took a
10 photograph, marked the front of it as you had seen, but on the backside
11 Mr. Danridge initialled and dated the photograph to verify that he agreed
12 with my findings.
13 JUDGE ORIE: Could I ask one additional question. Would
14 Mr. Wilson also look at the photographs or just at the -- if I could say
15 so, the procedural paperwork?
16 THE WITNESS: In some instances he would look at the photographs,
17 but he was more interested in the paperwork and us following proper
18 procedures as far as the paperwork.
19 JUDGE ORIE: Thank you.
20 Please proceed.
21 MR. JEREMY:
22 Q. The methods of analysis employed by the ATF, both the IBIS
23 preliminary analysis phase and the microscopic analysis phase, were they
24 consistent with -- or are they consistent with prevailing industry
1 A. Yes. The procedures we used back in 2000 are basically the same
2 procedures that are followed today as far as comparisons of evidence on
3 comparison microscope and working with the IBIS system.
4 MR. JEREMY: Your Honours, I would like to tender that report.
5 However, the English report, the last three pages of it comprises an
6 information report prepared by the Office of the Prosecutor. Now, that's
7 different to the report that the ATF prepared, and I would propose to
8 redact those last three pages before the report is fully admitted. The
9 reason I've not done that redaction now is because the report was filed
10 in this form pursuant to the 94 bis procedure. If we can go --
11 JUDGE ORIE: If I can have a look --
12 MR. JEREMY: Yes.
13 JUDGE ORIE: -- you are talking about the last three pages. The
14 last three pages follow the page we look at at this moment.
15 MR. JEREMY: And those are an OTP information report that's
16 actually already in evidence as P01733. So to ensure there is no
17 confusion, I would propose redacting those from this particular report
18 because it's a work product of the OTP rather than the ATF.
19 JUDGE ORIE: Mr. Ivetic.
20 MR. IVETIC: No objection to either suggestion, so at
21 Your Honours' leave.
22 JUDGE ORIE: Then we'll assign an exhibit number to it and leave
23 is already granted to have the last three pages of the reports, that's
24 pages 16, 17, and 18 in e-court to be redacted, and in it redacted format
25 replace the original one.
1 MR. JEREMY: Would it be better to remove them, Your Honour, or
2 redact them?
3 JUDGE ORIE: Removing is a way of redacting. I think if they do
4 not appear at all in the B/C/S version and if they are more or less
5 separate following the signature page, that removal would be acceptable
6 as well.
7 MR. JEREMY: Thank you, Your Honours.
8 That concludes my direct examination.
9 JUDGE ORIE: Thank you, Mr. Jeremy.
10 But we still need a number.
11 Madam Registrar.
12 THE REGISTRAR: Document 04613 receives number P1819,
13 Your Honours.
14 JUDGE ORIE: And is admitted into evidence.
15 Mr. Curtis, you'll now be cross-examined by Mr. Ivetic.
16 Mr. Ivetic is a member of the Mladic Defence team and you find him to
17 your left.
18 THE WITNESS: Thank you, sir.
19 MR. IVETIC: Thank you, Your Honour.
20 Cross-examination by Mr. Ivetic:
21 Q. Good day, sir.
22 A. Good morning, sir.
23 Q. Now before we begin with the actual questions, I do have to
24 remind you, since we both will be speaking English, to please observe a
25 pause between my question and your answer so as to permit the court
1 reporters and translators to their job. Is that okay, sir?
2 A. Yes, sir.
3 Q. All right. Now I'd like to begin. And to do so I'd like to turn
4 to your CV which has now been admitted as P1816 in e-court. And if we
5 can look at page 3 in the English, page 4 in the B/C/S. And, sir, at the
6 bottom we have the court qualifications that you testified about in
7 direct. And by my count, it's 127 times. But without getting caught up
8 in the actual total number, would you tell us out of those total times
9 that you were an expert in other proceedings, how many of those times did
10 you testify as to an examination of spent gun cartridge casings to try to
11 match them up with other spent cartridge casings?
12 A. I cannot give an exact number, sir, but a majority of them --
13 because with the second bullet point where there is 118 testimonies, at
14 that time I was a fire-arms examiner and police officer in Washington DC,
15 and in that time-period there were a lot of shooting cases in the city,
16 many of them involved either cartridge casings and/or bullets. So I
17 would have to say a majority of those would compare cartridge cases.
18 JUDGE ORIE: Could I ask one question.
19 Now if you have only one cartridge in a fire-arm, you would make
20 shots with that fire-arm and then again compare the shell casings?
21 THE WITNESS: That is correct, sir.
22 JUDGE ORIE: So to identify whether a cartridge matches with a
23 weapon would take an intermediary step of producing another cartridge and
24 then compare them?
25 THE WITNESS: That is correct.
1 JUDGE ORIE: And to that extent, at least in this respect, there
2 seems to be no major difference because what you're still doing at the
3 end is to compare cartridges.
4 THE WITNESS: Correct, sir.
5 JUDGE ORIE: Thank you.
6 Please proceed.
7 MR. IVETIC:
8 Q. Sir, in relation to the approximately 127 times that you were an
9 expert, how many of those times were in your capacity as an officer of
10 the Bureau of Alcohol, Tobacco, Firearms and Explosives?
11 A. Sir, let's see. If you could scroll the page up, please, to the
12 next -- the other way, please. It appears six of those testimonies were
13 with the Bureau of Alcohol, Tobacco, Firearms.
14 Q. Okay. Now in relation to all of these court appearances as an
15 expert witness, have you been a court or defence expert or have you
16 always been an expert testifying as a witness for the prosecution?
17 A. I've testified for both the prosecution and the defence.
18 Q. Thank you. Now I want to ask you: Did you also have occasion in
19 this -- in this case to perform testing on rounds that were test fired
20 from weapons that were seized from the Army of Republika Srpska to see if
21 they could be matched to any of those that are the subject of the report
22 that has been entered into evidence today?
23 A. I do not know, sir. If they're on this list of request number 5,
24 yes, I did, but other than that I would not know.
25 Q. Okay. A former Prosecution investigator, Dean Manning, who is an
1 Australian law enforcement official, testified at this trial that in 1998
2 he participated in a mission to seize somewhere between 1.000 to 2.500
3 rifles from the Bratunac and Zvornik Brigades of the VRS to test fire
4 these rifles, and then that the investigation compared those spent rounds
5 and casings to those which had been recovered at the graves, and that the
6 results of those tests were a negative match. Do you know if your office
7 did that work trying to match the spent cartridges to those recovered
8 from the grave-sites?
9 A. I do not.
10 Q. Okay. Now looking at your CV on this same page that we have up
11 in e-court, I see or note that you are a member of the AFTE,
12 Association of Firearm and Tool Mark Engineers [sic]. Are you also a
13 member of the IAI, the International Association of Identification?
14 A. No, I am not a member of the IAI.
15 Q. How about the ENFSI, the European Network of Forensic
16 Science Institutes. Are you an accredited member of that organisation?
17 A. No, I am not.
18 Q. I'd like to take a few moments now to go over some AFTE issues
19 with you. I take it, sir, that you are familiar with the AFTE criteria
20 for identification committee?
21 A. Yes, I am.
22 Q. Would you agree with me that the AFTE criteria for identification
23 committee has promulgated that an identification means:
24 "The likelihood another tool could have made the mark is so
25 remote as to be considered a practical impossibility"?
1 A. That is correct, sir.
2 Q. And would you agree that based on the AFTE theory of
3 identification, there are four categories of examination outcomes which
4 are also called "range of conclusions possible when comparing
5 tool-marks," which are typically used by fire-arms examiners in the
6 microscopic comparisons of cartridge casings and shot-shell casings?
7 A. That is correct.
8 Q. Would you be able to agree, then, that the first of these AFTE
9 definitions is identification defined by the AFTE glossary as:
10 "Agreement of a combination of individual characteristics and all
11 discernible class characteristics where the extent of agreement exceeds
12 that which can occur in the comparison of tool- marks made by different
13 tools and is consistent with the agreement demonstrated by tool-marks
14 known to have been produced by the same tool."
15 A. I would agree with that, sir.
16 Q. Would you agree that the second of the AFTE range of conclusions
17 possible from an examination of a fire-arm is known as elimination which
18 is defined as:
19 "Significant disagreement of discernible class characteristics
20 and/or individual characteristics."
21 A. I agree with that also.
22 Q. And would you agree that the third possible range of conclusion
23 as defined by the AFTE is known as inconclusive defined as either:
24 "Some agreement of individual characteristics and all discernible
25 class characteristics but insufficient for an identification," or,
1 "agreement of all discernible class characteristics without agreement or
2 disagreement of individual characteristics due to an absence in
3 sufficiency or lack of reproducibility," or, "agreement of all
4 discernible class characteristics and disagreement of individual
5 characteristics but insufficient for elimination."
6 A. I would agree with that.
7 Q. And just to finish up those AFTE range of conclusions, the fourth
8 would be unsuitable for microscopic comparison. Would you agree with
10 A. Yes.
11 Q. Were the tests that were conducted by your bureau on the spent
12 bullet cartridge casings that are the subject of these reports conducted
13 and accord with these AFTE identification and range of conclusion
14 parameters that we have just gone through?
15 A. Yes. Our cartridge case examinations were in compliance with
16 these AFTE accords.
17 Q. Okay. Now is it correct, sir, that some differences always exist
18 between cartridges that even are fired from the same gun?
19 A. There are possibilities of differences. Yes, sir.
20 MR. IVETIC: Your Honours, I see we are at the time for the first
22 JUDGE ORIE: If this would be a suitable moment for you to
23 interrupt your cross-examination, then we'll take the break now.
24 MR. IVETIC: It is, Your Honour.
25 JUDGE ORIE: We take a break of 20 minutes and would like to see
1 you back after the break. You may follow the usher.
2 [The witness stands down]
3 JUDGE ORIE: We resume at 10 minutes to 11.00.
4 --- Recess taken at 10.30 a.m.
5 --- On resuming at 10.54 a.m.
6 JUDGE ORIE: Could the witness be escorted into the courtroom.
7 [The witness takes the stand]
8 JUDGE ORIE: Please be seated, Mr. Curtis.
9 THE WITNESS: Thank you.
10 JUDGE ORIE: Mr. Ivetic will now continue his cross-examination.
11 MR. IVETIC: Thank you, Your Honour.
12 Q. Sir, now I would like to talk with you about some general
13 concepts that are paramount to your line of work to see if I am
14 understanding them correctly. Now, first of all, am I correct that the
15 marks which identify the gross properties of a fire-arm including but not
16 limited to calibre, number of lands, number of grooves, direction of
17 rifling twist, would be considered that fire-arm's class characteristics
18 which are the marks that often are visible to the naked eye and that
19 these class characteristics will be the same for any bullet or cartridge
20 fired from any fire-arm of the same make and model and sometimes even
21 several makes and models of the same manufacturer?
22 A. That is correct.
23 Q. And is it correct that as to class characteristics there exist
24 reference works or resources that list these class characteristics for
25 each fire-arm a particular manufacturer makes which would enable an
1 examiner such as yourself to determine the type of fire-arm by examining
2 the classes characteristics of either a recovered cartridge case or a
3 recovered bullet?
4 A. In my instances there are, yes.
5 Q. Can you tell me if any reference manuals listing any class
6 characteristics were utilised in this case to identify what would be the
7 source of those spent cartridge casings so as to identify class
8 characteristics of that type of fire-arm so that one could be aware of
9 them when doing the review and comparison?
10 A. None that I know of, sir.
11 Q. Now would you agree that fire-arms identification, as a line of
12 inquiry, assumes also that there are individual characteristics which
13 would be unique and consistent to one specific fire-arm because in theory
14 it is not possible to make two machined surfaces that are microscopically
16 A. Yes. There are the individual characteristics.
17 Q. And then would you agree in your line of work that one must be
18 conscious of class characteristics, that they need to be known so as to
19 be ruled out as being identified as individual characteristics because
20 they can often times be mistaken for individual characteristics?
21 A. Well, the class characteristics will basically get us into the
22 ballpark, but it's looking at the individual characteristics that will
23 get us to the identification.
24 Q. Thank you, sir, for that, but my question was more related
25 towards knowing that a particular mark is a class characteristic of a
1 particular run, manufacturing running of fire-arms, would be necessary so
2 as to exclude those class characteristics from being mistakenly
3 identified as individual characteristics of a specific fire-arm. Would
4 you not agree?
5 A. Yes, I would agree.
6 Q. Now, if no reference manuals listing class characteristics were
7 consulted for purposes of this review for which we have a report now, how
8 can we exclude class characteristics from being identified as individual
9 or accidental characteristics?
10 A. In our examination of these cartridge cases, we looked at class
11 characteristics even though we did not refer to a manual on class
12 characteristics, and the class characteristics we did look at were the
13 general shape of the firing pin impression, the basic lack of breechface
14 markings on the head of the cartridge case, and general shape of the
15 ejector marks. Those are the class characteristics. The individual
16 characteristics that we then further looked at -- yeah, once we aligned
17 all these other class characteristics were the individual markings within
18 each of those class areas such as firing pin, breechface, and ejector
20 Q. Thank you. I'm just waiting for the transcript to catch up with
22 A. Yes.
23 Q. Now I also want to talk with you about what's called subclass
24 characteristics. Am I correct that those would be markings caused by
25 temporary conditions in the manufacturing process such as a chipped or
1 broken tool and, therefore, are the same on many fire-arms in a given
2 production run although they would not be a permanent feature of the same
3 class of fire-arms?
4 A. Yes, there are those markings as well.
5 Q. And thus, sir, an examiner such as yourself must also decide if a
6 mark that you see is an individual mark unique to a specific fire-arm or
7 a potential subclass mark which may be shared by many fire-arms that were
8 produced as part of the same production run. Is that accurate?
9 A. That is correct.
10 Q. Now the report that we have looked at in this case -- I guess
11 there's two. There is the request number 5 and there is the more lengthy
12 15-page report that your bureau prepared for the
13 Office of the Prosecutor. Do the reports prepared by your office
14 identify what the class or subclass characteristics are that were
15 identified for these cartridges such that they could be distinguished
16 from and excluded as being individual characteristics?
17 A. On a -- request number 5, all that we noted were if it was a
18 negative identification or a positive or if it lacked sufficient markings
19 for an identification to say negative or positive. We did not do
20 complete work-sheets that would take into account all the other general
21 class characteristics.
22 Q. In the normal everyday functioning of your lab for other cases,
23 would such full work-sheets have been completed?
24 A. Yes, sir.
25 Q. So the work done in this case for the Office of the Prosecutor
1 was not in full accord with the standard procedure that would have been
2 followed by your office at the bureau for any other case; is that
4 A. That is correct. For this case, the items were first entered
5 into the IBIS system, and the IBIS system was used to come up with the
6 possible high confidence candidates. And it was from those list of high
7 confidence candidates that we had -- did our actual microscopic
9 Q. We'll get to the IBIS system in a second. I want to ask just a
10 few more questions about the type of work that's normally done. Is it
11 correct that some labs have in recent years instituted policies that
12 identifications cannot be reached unless the suspect fire-arm is examined
13 precisely to eliminate the possibility of subclass characteristics?
14 A. I'm not absolute about that one, sir.
15 Q. And also when examining spent ammunition, whether the bullet or
16 the -- actually, it would be on the casing, are there also what is called
17 proof markings which would designate a country of origin of a particular
19 A. On the cartridge case there is the head stamp which normally
20 determines the manufacturer of the ammunition, and -- but it does not
21 specifically have to say which country it is.
22 Q. Were any head stamps or proof markings reviewed or investigated
23 for purposes of your investigation in this case to determine the origin
24 of the ammunition that was being reviewed?
25 A. No, sir.
1 Q. Now, thus far we've been talking about fire-arms that were
2 produced in the traditional factory milling process and the distinctions
3 that would result in the components when they were milled at the factory.
4 Am I also correct that when talking about modern fire-arms, there are
5 also now some nowadays that are cast or stamped rather than being tool
6 milled and that those that are cast or stampeded can have components that
7 have the same markings and thus can have fire-arms that have identical
8 individual markings as well?
9 A. Even a cast and stamped fire-arms, a majority of those or their
10 parts do have some machining processes or processes done after the
11 stamping to rid them of burrs that are on the surfaces so that they will
12 also develop individual characteristics.
13 Q. Was there any work done in this particular case to determine if
14 the fire-arms that were used to fire the cartridges that your bureau
15 reviewed, whether those came from milled fire-arms or fire-arms that have
16 been created with a casting or stamping process?
17 A. I did -- I'm sorry. I did not do any of that examination to look
18 at fire-arms. I did not have a fire-arm to examine for request number 5.
19 JUDGE ORIE: Mr. Ivetic, in one of your previous questions where
20 you were talking about "there are also now some nowadays that are cast or
21 stamped," could you either -- could you clarify with the witness or press
22 more -- be more precise in your question what you understand by
23 "nowadays." These cast or stamped ones, they are produced since when if
24 you know?
25 THE WITNESS: I am not sure, sir. I believe it's after the 1960s
1 but I am not positive.
2 JUDGE ORIE: Yes. But still before 1995?
3 THE WITNESS: Yes.
4 JUDGE ORIE: Yes. Thank you.
5 MR. IVETIC:
6 Q. I would like to now ask you a few questions about the IBIS system
7 that we talked about.
8 MR. IVETIC: And if we can first of all look at P1818 together.
9 P1819, I apologise. Thank you. And if we can turn to page 9 of the
10 same, I believe that's where the actual results of the examination are
12 Q. Now, with respect to request number 5, it was very clear the role
13 that the IBIS examination played in that report. Here we have discussion
14 of the cartridges being microscopically examined. For purposes of this
15 report, can you tell us how we can tell from the report which ones would
16 have resulted from being identified by the use of the IBIS system as
17 opposed to being identified pursuant to a microscopic review of an
18 examiner or perhaps in addition to being identified pursuant to
19 microscopic review of an examiner.
20 A. The exhibits on pages 1 through 9 were all examined through the
21 IBIS system, and they came up as possible high confidence matches to
22 another cartridge case. And then as we got the separate request, in this
23 case request number 5, I looked at the exhibits from request number 5,
24 and that is the report I received from the IBIS examiner. And I did the
25 microscopic comparison of those casings at that point. But before that,
1 it was done by the machine.
2 Q. Now with respect to the results and the review of the items on
3 pages 9 through 15 of this report that we have in the system now, did you
4 perform the microscopic examination and analysis of all of these or were
5 there colleagues involved?
6 A. There were colleagues involved.
7 Q. Was your work limited to doing the microscopic examination or
8 of -- of a certain number of these items, or did you also participate in
9 the verification of items that your colleagues either identified or
11 A. I also participated in the verification of items that my
12 colleagues identified or excluded.
13 Q. Do you have any way of knowing what percentage or what portion of
14 these would have been ones that you verified as opposed to ones that you
15 were the primary opinion on?
16 A. No, sir, I do not.
17 Q. Fair enough. Now, just so that we are clear, we have been
18 talking about the IBIS system, and I want to know: Are you referring to
19 the older identification system manufactured by
20 Forensic Technologies WAI, Inc. of Canada or some of the newer
21 modifications such as IBIS 3.0 or the newer brass tracks CD system.
22 Which IBIS was it that was used for purposes of preparing this report and
23 identifying these cartridge casings?
24 A. In 1999 and 2000, they only had the older version, the original
25 IBIS system which is known to us as the heritage system.
1 JUDGE ORIE: Could I ask you there a question. The IBIS system,
2 if I understand you well, is primarily used to make selection of those
3 cartridges which deserve to be further examined microscopically by a
4 person. Is that well understood?
5 THE WITNESS: That is correct, sir. In this case --
6 JUDGE ORIE: So --
7 THE WITNESS: -- that's how we did it.
8 JUDGE ORIE: So any shortcomings in the IBIS system as far as
9 positive results are concerned would be immediately corrected by the
10 comparative microscopical review on the materials. Negatives is
11 something different, but ...
12 THE WITNESS: Yes. Any positive results would be verified then
13 by the fire-arms examiner.
14 JUDGE ORIE: Yes. And in the IBIS system would have been --
15 well, whether wrong or not, identified the cartridges as, I think you
16 said, "confidence," well, at least as good candidates for a match, that
17 would result in a negative outcome of the microscopical examination of
18 those -- of that material, whereas if the IBIS system would not classify
19 them as good candidates, you most likely would never find out?
20 THE WITNESS: That is correct.
21 JUDGE ORIE: Thank you.
22 MR. IVETIC:
23 Q. Now in relation to other work that your office at the bureau
24 would do for other similar cases, would it not also be part of the normal
25 procedure to compare the actual bullets that were recovered from a scene
1 using the FBI's general rifling characterise or GRC file which is
2 organised by number of calibre, number of lands and grooves, direction or
3 twists, widths of lands and grooves, and other categories?
4 A. If we had bullets, we would measure the lands and grooves and
5 compare them to the general rifle and characteristics database, yes.
6 Q. Do you know if in this case you were advised of the existence of
7 bullets that had been recovered?
8 A. I have no knowledge of any bullets.
9 Q. If your bureau had received bullets to be analysed, am I safe in
10 assuming that either you or the other two individuals who signed this
11 report -- or actually three individuals that signed this report would be
12 aware of that process?
13 A. One of the three of us may have been, but I was not aware of any.
14 Q. Okay. Now in relation to the IBIS system and -- well, first of
15 all, I presume that you have knowledge of the test performed on that
16 system known as AB 1717 in relation to California's consideration of
17 whether or not to implement that system in their jurisdiction. Do you --
18 are you familiar with that particular study?
19 A. I remember hearing of the study. I don't recall exactly what it
20 was at this point.
21 Q. Okay. If we talk about other studies, I think we can step away
22 from IBIS for a moment since we've, I think, talked about the possibility
23 of errors and how those are then rectified by the microscopic evaluation,
24 but are you familiar with the 1955 study performed by Alfred Biasotti
25 which found that 15 to 20 per cent of the stria and bullets fired from
1 different .38 special Smith & Wesson fire-arms matched. Are you familiar
2 with that study, sir?
3 A. Yes, I am.
4 Q. And have I accurately summarised the results of that particular
5 study according to your recollection of the same?
6 A. I believe he also went on to say that you could have
7 consecutively matching stria totalling, I believe, it was six to nine
8 impressions, and that's all you would need for identification.
9 Q. And are you familiar with the 1997 study by Joseph J. Masson
10 based on the IBIS system which found that increasing similarities were
11 being discovered in the individual characteristics of tool-marks on
12 ammunition components known to have been fired by different guns of that
14 A. Yes.
15 Q. And am I correct that Masson's study found that similarities
16 between known non-matching tool-marks were sometimes so great that even
17 under a comparison microscope it was difficult to tell the tool-marks
18 apart and not erroneously attribute them to the same gun. Are you aware
19 of that conclusion reached in that 1997 study?
20 A. Yes, I am.
21 Q. Now I want to turn to the actual investigation that was done.
22 And the first question I want to know is, am I correct that some of the
23 spent cartridge casings were actually collected by and brought from
24 Bosnia by ATF bureau staff, whereas other batches were brought and
25 delivered by staff of the Prosecutor of the Tribunal?
1 A. I am not sure who brought them in, sir. I was not involved in
3 Q. Do you have knowledge of the methods employed to secure these
4 cartridges and keep them separated from one another?
5 A. Once they're brought in -- once they were brought into our
6 laboratory, they were entered into the evidence vault until the examiner
7 or the IBIS specialists working them signed for them and then they were
8 in their custody.
9 Q. You say, "Once they were brought into our laboratory ...," can I
10 take from that, sir, that your bureau would not be in a position to
11 verify or opine as to what manner they were secured in prior to coming to
12 your laboratory, except, perhaps, for the once instance where cartridges
13 may have been brought by a member of your staff?
14 A. I cannot say how they were kept prior to our receiving them.
15 THE INTERPRETER: Could the witness kindly speak closer to the
16 microphone. Thank you.
17 THE WITNESS: Yes.
18 MR. IVETIC:
19 Q. With respect to this particular case, is this one that you would
20 consider a high profile case for your office?
21 A. Yes, it was.
22 Q. Was there any instruction or a concern to obtain results as
23 promptly and quickly as possible?
24 A. No, sir. It's just a -- as they got entered into the IBIS and
25 they were evaluated, after evaluation then they were assigned to a
1 fire-arms examiner for comparisons.
2 Q. Now you've already told us earlier that the procedure for filling
3 out work-sheets was not followed in full for this review. What I'd like
4 to know now is if there were any other protocols or procedures which your
5 office would normally employ that were not complied with in relation to
6 the review and investigation done in this case?
7 A. To the best of my knowledge, just the fire-arm examiner
8 work-sheets were the only forms that were not followed. And during
9 the -- as well as entering the items into IBIS prior to the fire-arms
10 examiner looking at them, that was a different set in protocols.
11 Normally the fire-arms examiner examines the items first and then gives
12 them to the IBIS specialist to enter, but in this case we had the IBIS
13 machine doing the portion of the work for us to narrow it down our
14 microscopic examinations.
15 JUDGE ORIE: Mr. Ivetic, if you allow me one clarifying question.
16 What would these fire-arm examiner work-sheets tell us if they
17 are full? What kind of information is there contained in those
19 THE WITNESS: For a cartridge case, the -- it would have the
20 exhibit number, the possible brand, manufacturer of the cartridge case,
21 and any general characteristics on that cartridge case, shape of the
22 firing pin, if there were breechface markings, if there were parallel,
23 cross-hatch, granular, and then basically our conclusion from examining
24 that one cartridge case to others.
25 JUDGE ORIE: Yes. Now that kind of information, could that still
1 be obtained on the basis of the shell casings which have been preserved?
2 THE WITNESS: Yes, it can. And I believe the IBIS personnel did
3 partial work-sheets, so it may be on their work-sheet as well.
4 JUDGE ORIE: Thank you.
5 Please proceed, Mr. Ivetic.
6 MR. IVETIC: And I think, for the record, we have not received
7 any partial work-sheets.
8 Q. Do you know if the IBIS personnel actually did have partial
9 work-sheets? Are you -- is that a confident memory, or are you just
10 speculating, sir?
11 JUDGE ORIE: Mr. Jeremy.
12 MR. JEREMY: Your Honours, just for the record, we did receive
13 some IBIS work-sheets from the ATF and those have all been disclosed to
14 the Defence.
15 JUDGE ORIE: Mr. Ivetic, then --
16 MR. IVETIC: I stand corrected.
17 JUDGE ORIE: -- if you need the assistance, I take it that
18 Mr. Jeremy will help you out.
19 MR. JEREMY: Of course.
20 JUDGE ORIE: Please proceed.
21 MR. IVETIC:
22 Q. Now, with -- with respect to the normal procedure of examining
23 all the casings that were to come into your office in preparing your
24 work-sheet, wouldn't that also assist the examiner in determining
25 potential class characteristics that should be excluded from the further
1 review and in terms of not being misidentified as individual
3 A. Well, by looking at the cartridge cases, you can determine
4 through the microscope what the class characteristics are, such as the
5 shapes of the firing pin impressions and the breechface and the ejector
6 markings. So in a sense we did that examination in our mind's eye
7 through the microscope but we just did not note it on our work-sheet.
8 Q. But the examination you would have done in your mind's eye that
9 was not on the work-sheet would have only been for a smaller subset of
10 the cartridges; i.e., those for which the IBIS had already given a high
11 probability of match; is that accurate?
12 A. That is correct.
13 Q. Were any interim reports or bench notes maintained as part of the
14 review that your office performed for this case?
15 A. Not that I know of, sir.
16 Q. Okay. Would it be a normal part of your work, procedure, and
17 practice within the laboratory to maintain interim reports or bench
19 A. Can you define interim reports for me, please?
20 Q. Sir, from my understanding of -- interim reports would be
21 anything that pre-dates the final report that is signed by the examiners
22 and by the supervisor.
23 A. Yes, sir. If there is a draft report prepared, normally they are
24 not preserved. It is the final report that is our findings.
25 Q. And could you tell us the process of what happens between a draft
1 report being prepared and a final report being generated? How -- how
2 do -- how does -- who is in charge of creating the final report from the
4 A. In this case since there were three examiners on this case,
5 Mr. Ols prepared the final report from the draft, and the only changes
6 that may have been made to that without any of our knowledge may have
7 been typographical errors that were corrected.
8 Q. Okay. Now has the normal work and methodology utilised in your
9 laboratory been the subject of any peer reviewed or blind testing?
10 A. Yes, sir.
11 MR. IVETIC: If we can take a look at P1817, and I hope I have
12 the number right. This should be the request number 5 memo report.
13 Q. If we can have that in e-court, I'd have some questions for you
14 on that document.
15 Now, while looking at this document now, I'd first like to ask
16 you about the information contained at the top. It comes from
17 Randy Hartman to Ben Wilson. Am I correct that Mr. Hartman is not an
18 employee of the Bureau of Alcohol, Tobacco, Firearms and Explosives?
19 A. You are correct.
20 Q. And is the company that Mr. Hartman is an employee of,
21 Forensic Technology Inc., in fact, a subsidiary company of the Canadian
22 manufacturer of the IBIS system?
23 A. That is correct.
24 Q. And now could you explain for us -- first of all, I assume that
25 he is the IBIS specialist that you've been referring to for -- at least
1 for request number 5?
2 A. He is one of several, yes.
3 Q. Would the subject cartridge casings that were secured in the ATF
4 vault, would they have been given to the IBIS specialist at this outside
5 company for purposes of inputting them into the IBIS system?
6 A. Not to my knowledge. We had four ATF IBIS specialists working
7 within our laboratory doing the entries, and I do not know if Mr. Hartman
8 was privy to those cartridge cases.
9 Q. Now the identifications that are handwritten -- pardon me,
10 withdraw that. The notes that are handwritten on the right-hand side of
11 the document, sir, that you've identified as being positive, negative,
12 and lacks sufficient marks, could you tell me, since we talked earlier
13 about the AFTE guidelines and the ranges of conclusions that were
14 possible resulting from an examination, why weren't the AFTE standard
15 categories or terminology used for purposes of this review?
16 A. For -- during my examination, negative is basically the same as
17 the second category of the AFTE, Association of Firearm and Toolmark
18 Examiners, range of conclusions. The "pos" [Realtime transcript read in
19 error "pause"] is similar to the first one, where it was "positive
20 identification," and then the "lacks sufficient marks" was with the third
21 one. Just in making my rough notes, everyone in my office, we all used
22 basically the same terminology knowing what we are referring to when we
23 say "negative," "positive," or "lacks sufficient markings."
24 JUDGE ORIE: Mr. Jeremy.
25 MR. JEREMY: Your Honours, just a clarification of the transcript
1 that might not get picked up when itself replayed. Transcript 44, line
2 12. The -- it currently reads "pause." I think the witness said "pos"
3 as a shorthand for positive.
4 JUDGE ORIE: Yes. Yes. It is not a word often used and perhaps
5 not easily recognised, "pos" being p-o-s and stands for positive result.
6 Please proceed.
7 MR. IVETIC: Thank you, Your Honours. And I also see -- I should
8 have gone back to my prior method os spelling out the acronym. Just to
9 make sure it's correctly recorded, it's A-F-T-E, AFTE, but it's A-F-T-E
10 as the acronym.
11 JUDGE ORIE: Now, Mr. Jeremy, everything of course became
12 perfectly clear on page 44, line 16. There the negative, the positive,
13 and the third category are mentioned as the three used.
14 Please proceed.
15 MR. IVETIC:
16 Q. Now this particular report as considerably more detailed
17 information than the other report we looked at, the 15 pages. Would this
18 report be an exemplar type of work or review that was undertaken for
19 purposes of doing the identifications -- or confirming the
20 identifications, I should say, that are reflected in the longer 15-page
22 A. This request number 5 with the notations on it were -- basically
23 are notes for this and they would be used for preparing the longer
25 Q. And so when we earlier talked about bench notes or interim
1 reports, would such a document as this memo with your handwritten
2 modifications qualify as a bench note or interim report?
3 A. Yes, sir. I stand corrected on that. This would be considered a
4 bench note.
5 JUDGE ORIE: Mr. Ivetic, the -- you say it's considerably more
6 detailed. Are you talking about the tables or are you talking about the
8 MR. IVETIC: Both, Your Honour.
9 JUDGE ORIE: But the tables, as far as I can see them -- and
10 perhaps the witness could help us out. What we see is that in the long
11 list, all the negatives and all the insufficient material or insufficient
12 markings are left out - that's the quintessence of that report, at least
13 where the matches are described - and apart from that, we only have
14 exhibit numbers on what seems to be in this table to be one-in-the-same
16 THE WITNESS: Your Honour --
17 JUDGE ORIE: I'm trying to understand exactly what we find in
18 this table, what apparently we do not find in the other report. We
19 looked at the 15 pages.
20 THE WITNESS: Yes. In the first nine pages of the long report,
21 you would have all the exhibit numbers listed that are on request
22 number 5 because they were deemed by the machine as possible matches.
23 But from page 9 through 14, you would only have the positive matches --
24 JUDGE ORIE: Yes.
25 THE WITNESS: -- that were verified by fire-arms examiner.
1 JUDGE ORIE: Yes. So by -- the negatives are in -- and whatever
2 other you could think of as to compare but did not match.
3 THE WITNESS: Correct.
4 JUDGE ORIE: But not written out in any detail further.
5 THE WITNESS: That's correct, sir.
6 JUDGE ORIE: Thank you.
7 Please proceed.
8 MR. IVETIC:
9 Q. However, one difference is that here we can tell whoever did the
10 microscopic examination, whereas on the long list we can't tell and you
11 can't tell us right now which ones you did; right?
12 A. That's correct. Except for the ones I have note here we can find
13 in the long list.
14 Q. Right. Now the question I have is if any drafts would have been
15 destroyed as procedure why do we have request number 5, and does such is
16 a document exist for any of the other cartridge casings that would have
17 been reviewed and reported in the long report that we've looked at?
18 MR. JEREMY: Your Honours, just --
19 JUDGE ORIE: Mr. Jeremy.
20 MR. JEREMY: -- again for the record, there are requests numbers
21 1 to 13. Those have been provided to the Defence and translated into the
23 JUDGE ORIE: Memos -- including memos such as this one?
24 MR. JEREMY: Correct. So 5 is an example, and there are actually
25 13 of those.
1 JUDGE ORIE: Yes. Mr. Ivetic.
2 MR. IVETIC: It's possible. I am just trying understand the
3 witness's earlier answer that if such things would have been discarded,
4 why were they saved?
5 THE WITNESS: My draft report of the laboratory report itself, if
6 there were typographical errors, would have been discarded and just the
7 final report signed.
8 MR. IVETIC:
9 Q. Correct.
10 JUDGE ORIE: But now I'm confused. I did understand from
11 Mr. Jeremy, but please correct me when I'm wrong, that for all the other
12 requests, all 13 similar documents, memos do exist and are disclosed to
13 the Defence?
14 MR. JEREMY: Correct, Your Honour.
15 JUDGE ORIE: Yes. Then I'm still confused by your next question,
16 Mr. Ivetic. You're trying to understand the witness's earlier answer
17 to --
18 MR. IVETIC: Previous answer today where he indicated that any
19 interim reports or drafts would have been destroyed as a part of their
20 procedure, and now he's, I think, clarified that these are not considered
21 draft report. That a draft report would actually be the pre-proofing, I
22 guess, version of the longer report that would need to be
23 [Overlapping speakers]
24 JUDGE ORIE: Yes. I understood it like that from the beginning
25 but then let's proceed.
1 MR. IVETIC: Now if we can go to the next page of this exhibit --
2 no -- no. Then let's turn to P1818, which now should be the photographs
3 of -- thank you.
4 Q. Now, are these what would be called photomicrographs in your line
5 of work, sir?
6 A. Yes.
7 Q. Now can you explain for me why these photomicrographs are not of
8 the entire circumference of the cartridge casing?
9 A. This is photomicrograph was taken at what I have noted as 1.5 x
10 which is actually 15 times the size of the head of the cartridge case,
11 it's magnified, and the main area that I was concerned with here is the
12 ejector marks that appear on the right-hand and left-hand cartridge cases
13 that are in this photo at the 10.00 position.
14 Q. Would you agree with me, sir, that normally the best and accepted
15 procedure is to photograph the entire circumference so as to get all of
16 the potential marks so as to identify or eliminate class markings,
17 et cetera?
18 A. No, sir, I would not agree with you.
19 Q. Do photomicrographs that were taken of all the other cartridges
20 which were positively identified or reviewed for purposes of your report
21 all taken focusing on the part that matches most closely instead of the
22 entire circumference of a shell casings breechface?
23 A. To the best of my recollection that would be the case, but I have
24 not reviewed all of those photographs in many years, sir.
25 Q. Is that a standing practice within your laboratory to only take
1 photomicrographs of a particular section of a bullet casing as opposed to
2 the entire circumference, or was that a decision that was made to do so
3 in this particular case?
4 A. The taking of the photomicrographs in our laboratory, the
5 procedures for it and policies, basically was so we would have something
6 to refresh our recollection of the markings and the areas in which we
7 made our identifications. It was not required to take the full
8 circumference of the cartridge case but just the areas where we felt the
9 identification is.
10 JUDGE ORIE: Mr. Ivetic, when you are talking about the whole of
11 the cartridge heading, are you talking about the big one or about the
12 other part? I mean, you can't have the -- both? They would overlap if
13 you had -- I mean, the whole system, the whole technique is to show a
14 specific part of a shell casing, put it next to a similar part of another
15 shell casing, and then see how any stria -- I don't know how you call it.
16 THE WITNESS: Stria.
17 JUDGE ORIE: Stria are connecting. So therefore when you are
18 talking about the whole of the shell case, certainly that could not be
19 done for either of them because it would contradict the technique you are
20 using. Therefore, I'm asking whether you would expect, for example,
21 the -- more information from the -- from the one shell casing where we
22 see -- it looks something like perhaps AK or at least at -- or what you
23 meant by your question. I mean, if you take the whole of the shell case
24 you can't overlay it any further with the portion of the other one.
25 MR. IVETIC: I understand. And perhaps we should go to the
1 second page of this exhibit where there are two separate shell cases as
2 two separate photographs. I apologise.
3 JUDGE ORIE: Okay. That's fine. But I didn't understand the
4 question entirely.
5 MR. IVETIC: I apologise, Your Honours. In my version there is a
6 page that has the --
7 Q. In any event, am I correct that in addition to the work done in
8 doing the overlays that photomicrographs were taken of each individual
9 bullet that was being reviewed and being matched and identified as a
10 positive match?
11 A. I don't believe photomicrographs of each cartridge case
12 individually were done. They were not done by me in this case for
13 request 5. And to get the whole head into the photograph, I would have
14 had to go to a lower magnification and then I would not be able to see
15 the area clearly enough where I had made my identification.
16 Q. Would it not be standard procedure to first make a
17 photomicrograph of the two shells with their full circumference, have
18 those photomicrographs side by side and then do a second at higher
19 magnification to discuss specific areas of either a -- for comparison
20 purposes either of match or of exclusion of difference?
21 A. It was not the policy of our laboratory to do that work, sir.
22 Q. Thank you, sir, for answering my questions.
23 MR. IVETIC: Your Honours, I have nothing further for this
25 JUDGE ORIE: Thank you, Mr. Ivetic.
1 Mr. Jeremy, any need to re-examine the witness?
2 MR. JEREMY: Just a couple of questions, Your Honours.
3 JUDGE ORIE: Please proceed.
4 Re-examination by Mr. Jeremy:
5 Q. Mr. Curtis, at transcript page 38 you were asked about methods to
6 secure the shell casings. Were the shell casings categorised by the ATF?
7 Were they marked in order to keep track of those?
8 A. Yes. As the IBIS specialist recovered the shell casings from
9 their evidence vault, they cleaned them and then they marked them with
10 the exhibit number that they received them with.
11 Q. And you've told us during the cross-examination that fire-arms
12 examiner work-sheets were not produced. Now had they been reduced, could
13 they have changed the conclusions that you reached in respect to which
14 cartridge cases matched?
15 A. No, they would not have changed the conclusions for the matches.
16 Q. Thank you.
17 MR. JEREMY: No further questions, Your Honours.
18 JUDGE ORIE: I may have one question for you.
19 Questioned by the Court:
20 JUDGE ORIE: During cross-examination you were asked about class
21 characteristics and individual characteristics and the risk of
22 misinterpreting a class characteristic for an individual characteristic
23 and therefore come to a conclusion based on a class characteristic rather
24 than on individual characteristics, which would mean that the whole range
25 of shell casings in that class would then be mistaken for identical ones
1 where they were only from the same batch.
2 Did you have ever in your career the experience that you had to
3 reconsider your identification because you had misinterpreted what you
4 later found to be a class characteristic where you initially thought of
5 them as individual characteristics?
6 A. No, sir. I have not had to reconsider it. And one of the
7 reasons is we always have a second qualified examiner review our work and
8 our identifications and non-identifications so that we are not making
9 that mistake.
10 JUDGE ORIE: Yes. Is there anything published about the risk of
11 making such a mistake?
12 A. I believe there are in the AFTE journals, which is the
13 professional publication for the Association of Firearm and
14 Toolmark Examiners.
15 JUDGE ORIE: Yes. Now, was the number of cartridges to be
16 compared in this case uncommon, exceptional, or was it normal that you
17 have so many even possible matches out of two series of cartridges that
18 were provided to your laboratories?
19 A. This case was uncommon for our laboratory because of the number
20 of cartridge cases to be examined, and that is why we altered our
21 procedures to use the IBIS system to help narrow down the microscopic
22 comparisons that we would have to do, the inner comparisons. And
23 otherwise most of our cases have, say, 20 cartridge cases or fewer, and
24 this one had up into the thousands, I believe.
25 JUDGE ORIE: Thank you for those answers.
1 Any questions? Further?
2 MR. IVETIC: None, Your Honour.
3 JUDGE ORIE: Then, Mr. Curtis, this concludes your testimony in
4 this Court. I'd like to thank you very much for coming and having
5 explained to us the -- all these technical matters, more in general to
6 have answered all the questions that were put to you by the parties and
7 by the Bench, and I wish you a safe return home again. You are excused.
8 THE WITNESS: Thank you very much, sir. Thank you.
9 [The witness withdrew]
10 JUDGE ORIE: I think it's time for the break. After the break
11 we'll resume with the next witness who will testify in closed session, if
12 I am well informed.
13 Then we'll take the break and we'll resume at quarter past 12.00.
14 --- Recess taken at 11.54 a.m.
15 --- On resuming at 12.19 p.m.
16 JUDGE ORIE: The Chamber was informed that one of the parties
17 would like to raise a preliminary matter.
18 Mr. Stojanovic.
19 MR. STOJANOVIC: [Interpretation] Yes, Your Honours. Just a
20 request. We said that we would cross-examine the witness whose due to
21 arrive now for three and a half hours. Yesterday we said it would be
22 less. And now I have a request and a proposal.
23 We will cross-examine this witness for an hour and a half, but we
24 kindly ask that part of this time be a bonus for cross-examining the
25 expert who is due to arrive in two days since our assessment is that we
1 will need somewhat more time, more than the two and a half hours we had
2 originally said we would need.
3 JUDGE ORIE: Yes. You said the expert -- we have two experts
4 still on our list, I think, for the remainder of the week. Any one of
5 the two is special?
6 MR. STOJANOVIC: [Interpretation] Yes, Your Honours. I don't
7 think that there are any protective measures. I am speaking of
8 Mr. Haglund. I think that it is all right for me to say his name.
9 JUDGE ORIE: Yes, I don't think there is any problem with that.
10 Well, the Chamber is usually not providing bonuses, but if you say
11 whether or not the Chamber will also consider that you have saved time
12 with this witness when you asked for more time, time in itself is not the
13 relevant thing. Important is a relevant and focused cross-examination.
14 And if you can't do that in the time you estimated, then the Chamber
15 certainly will be more forthcoming even after you've saved time with the
16 present witness.
17 Is that an answer to your question, Mr. Stojanovic?
18 MR. STOJANOVIC: [Interpretation] It is, Your Honour. And we
19 shall do our best for it to be that way and we will honour our time
21 JUDGE ORIE: We turn into closed session to hear the evidence of
22 the next witness.
23 [Closed session]
11 Pages 14870-14904 redacted. Closed session.
22 [Open session]
23 THE REGISTRAR: We're in open session, Your Honours.
24 JUDGE ORIE: Thank you, Madam Registrar.
25 We'll adjourn for the day and we'll resume tomorrow, Tuesday, the
1 23rd of July, in this same courtroom III at 9.30 in the morning.
2 --- Whereupon the hearing adjourned at 2.13 p.m.,
3 to be reconvened on Tuesday, the 23rd
4 day of July, 2013, at 9.30 a.m.