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Megyn Kelly and Legal Experts Examine Forensic Ballistics Evidence in High-Profile Shooting Case Involving Tyler Robinson
Megyn Kelly sits down with legal experts Andrew Kolvet and Mark Geragos to discuss the controversial forensic evidence in the Tyler Robinson case. The conversation centers on a critical detail that has sparked widespread debate: the absence of an exit wound despite a high-powered rifle being used, and the ATF's inability to conclusively match bullet fragments recovered from the victim to the defendant's weapon. Kelly and her guests examine whether the prosecution's ballistics analysis holds up to scrutiny, the science behind bullet fragmentation, and what exculpatory evidence means for the defense. With expert testimony suggesting that ballistics matching may be questionable forensic science, this discussion raises important questions about the strength of the state's case and the integrity of evidence presented in modern criminal prosecutions.
The Exit Wound Question
A significant debate has emerged surrounding the shooting case involving Tyler Robinson, with many questioning key forensic details. Megyn Kelly addresses one of the most contentious issues: the absence of an exit wound despite the use of a high-powered rifle. Kelly notes that while many people, including gun experts online, have questioned this detail, the Daily Mail reported that the bullet fragmented inside the victim's body, citing experts who confirmed this can happen even with rifle ammunition.
Legal expert Andrew Kolvet explains that this is not unusual. He points out that anyone can research examples of high-powered rifle rounds that have been fired into human bodies without resulting in an exit wound, with the bullet being captured within the body. Kolvet emphasizes that terminal ballistics—how a bullet functions in whatever it ultimately strikes—is a matter of probability, not certainty.
While someone firing a 30-06 round into a human body would likely see it completely traverse the body with an exit wound, Kolvet stresses this is not a certainty. Bullets can behave unpredictably upon impact, taking 90-degree turns or entering horizontally and traveling down into the body. These occurrences, while unexpected, happen often enough that they are neither shocking nor impossible.
ATF Testing and Inconclusive Results
Kelly raises questions about the ATF's testing procedures, particularly regarding their attempts to match bullet fragments to the rifle in question. Two reports emerged with seemingly conflicting information: one stated that authorities were unable to identify the bullet recovered at autopsy to the rifle, while a media filing referenced an ATF summary describing a bullet jacket fragment that was compared to the rifle.
After calling the authorities for clarification, Kelly learned that both the media motion and the defense motion were referring to the same thing—there was only one fragment found or tested, not two separate tests. For whatever it's worth, some fragment of the bullet was recovered, but the ATF was unable to conclusively identify it as coming from the defendant's weapon.
Kelly questions why the ATF, being unable to make a positive identification, didn't immediately conduct more extensive testing. The state has indicated that the FBI is now in the process of conducting a second comparative bullet analysis as well as a bullet lead analysis, but these tests are not yet complete. Kelly suggests that as a prosecutor, one might delay turning over evidence to the defense until all testing is complete to try to get the best result possible showing a link.
Prosecutorial Obligations and Defense Strategy
Andrew Kolvet acknowledges the tension prosecutors face in these situations. While they are obligated to turn material over to the defense, they often like to delay as much as possible. Kolvet has seen many cases where prosecutors delay getting evidence to the defense late in the process, making it very difficult for the defense to conduct an adequate evaluation or challenge of the evidence.
He notes that prosecutor's offices sometimes take enormous volumes of evidence and bury important items within it, knowing the defense won't have time to look through everything. However, at some point, the prosecution must turn over the evidence or risk being castigated by the judge for failing to do so in a timely manner. This tends to drive prosecutors toward releasing what they have when they have it, even if it's not the totally comprehensive analysis that would ultimately result.
Legal expert Mark Geragos emphasizes that the prosecution has an obligation to turn over exculpatory evidence—evidence that would help Tyler Robinson. He explains that he has been down this road countless times in his career. The ATF's inconclusive results represent exculpatory evidence, and prosecutors have a duty under Brady to turn it over.
Geragos outlines his strategy in similar situations: he insists that his expert be present when authorities do any further testing, or alternatively, that no more testing can be done until his expert has taken a sample or reviewed all bench notes and work product. This prevents a situation where remaining exculpatory evidence might be destroyed, which could lead to a Trombetta-Youngblood motion to dismiss.
Understanding Exculpatory Evidence
Kelly asks how the inconclusive ATF results are exculpatory when, as Kolvet explained, a bullet fragment from a rifle round might not necessarily be identifiable to a specific rifle. She notes that it would be highly exculpatory if the fragment were from a 9mm or different caliber that wasn't used by Tyler Robinson, but that's not the case here—the authorities are simply saying the bullet was too damaged to positively identify it as coming from this specific weapon.
Geragos explains that under Brady and to a lesser degree Giglio, anything that diminishes the prosecution's case qualifies as exculpatory. The prosecution must prove its case beyond a reasonable doubt, and when a forensic test comes back inconclusive, that by definition represents a lesser standard than beyond a reasonable doubt. Therefore, it is exculpatory by definition, which is why the prosecution turned it over.
Furthermore, Geragos points out that the prosecution's decision to send the evidence to another agency—the FBI—for secondary testing reveals their recognition that the inconclusive results are problematic for their case. No matter how they try to couch it or diminish it publicly, they recognize the exculpatory nature of the evidence. This is precisely why the defense is focusing so heavily on this issue.
The Defense's Role and Burden of Proof
Kolvet clarifies an important legal principle: it is not the job of the defense to prove Tyler Robinson innocent. There is no legal concept of proving innocence in court. Rather, the defense's job is to prevent the state from proving the defendant guilty beyond a reasonable doubt. In that sense, anything that does not advance the prosecution's movement toward proof beyond a reasonable doubt is helpful to the defense.
Kelly asks about the bullet lead analysis mentioned in court documents. Kolvet explains that bullet leads come in many different alloys—some harder, some softer—and these can be differentiated with laboratory testing. Authorities will test the lead from the bullet fragment and then test inside the barrel of the gun to see if those leads can be matched up, which would obviously be helpful for the prosecution.
However, Kolvet notes that whether such a match is likely is questionable. Many different bullets can be fired through a single gun, resulting in many different types of lead residue. Much lead is common among many different types of bullets, making it very difficult to get an exact match. Still, authorities are looking for anything they can use to try to tie the bullet to the gun, and if they can achieve that, it would be very helpful for the state.
Questionable Forensic Science
Kelly references a conversation with Shawn Davis at The Federalist, who has expertise in firearms and familiarity with ATF documents. Davis suggested that barrel matching and this type of comparative bullet analysis represent questionable forensic science at best. He doesn't believe it constitutes valid forensic science, and multiple courts are now reaching the same conclusion.
According to Davis, at best, forensics can tell you whether a bullet was fired from a particular make and model of gun, but it absolutely cannot conclusively determine that a bullet from gun A and not gun B when both are the same make and model. In essence, the forensic community may be asking too much of the ATF and similar agencies in expecting definitive matches.
Geragos agrees, referencing the Daubert analysis (called Sargon in California, with additional Sanchez considerations) used to challenge the scientific validity of evidence. Experts have been challenging ballistic-style evidence for years using these standards. He reminds viewers of cases from Texas involving arson evidence that was once considered state-of-the-art and was admitted in many murder prosecutions, only to later be found to be junk science.
The same type of analysis has been applied for years in various jurisdictions challenging ballistics evidence, because there are experts who characterize it as junk science. The idea of making ballistics evidence equivalent to fingerprint evidence—which also has some of its own issues—remains a hotly contested topic in legal and forensic circles.
Video Transcript
[00:00] Can you explain what's going on here?
[00:02] Because there's been a big debate.
[00:04] People who have questions, and they're
[00:05] entitled to them, about what happened to
[00:08] Charlie that day. Have me, many people,
[00:10] a lot of gun experts online have
[00:12] questioned the absence of an exit wound.
[00:15] You know, we all saw how where the
[00:17] entrance wound was and how badly and
[00:19] grievously Charlie was injured, but
[00:21] there wasn't an exit wound, and I
[00:23] believe that's not in dispute. Now, the
[00:26] Daily Mail did go on to report that this
[00:30] bullet was fragmented inside of
[00:32] Charlie's body and that that also that
[00:35] that can happen. They had experts in
[00:37] there saying that that can happen when
[00:39] even with a bullet that comes from a
[00:41] rifle like this. Um it can it can
[00:45] basically shatter, I guess, inside of
[00:46] the victim.
[00:48] >> Yeah, that's right. In fact, again, it's
[00:50] not an all unusual. Anyone can Google or
[00:52] go on Grock or whatever and just ask get
[00:54] it to provide examples of high-powered
[00:56] rifle rounds that have been shot into
[00:58] human bodies and didn't result in an
[00:59] exit wound. The bullet was captured
[01:01] within the body. Uh you know there's the
[01:04] what we call terminal ballistics. How
[01:06] the bullet functions and whatever it
[01:08] ultimately strikes is really a matter of
[01:11] probability not of certainty. Now, if
[01:13] someone fired a 30 six round like this
[01:15] into a human body, the probability is
[01:17] it's going to completely traverse the
[01:19] body and there'll be an exit wound. But
[01:21] that's not a certainty. And it's not
[01:23] unusual that the bullet does weird
[01:25] things as soon as it hits. They can take
[01:27] 90° turns. Uh they can enter
[01:30] horizontally and neck and go down into
[01:32] the body. It's it's it's not what you
[01:34] would expect to happen, but it's it
[01:36] happens often enough that it's it's not
[01:38] shocking and it's certainly not
[01:40] impossible.
[01:42] Are do you find it strange, Andrew, at
[01:43] all that the ATF did a test to see what
[01:47] they could match up from the remnants of
[01:50] this bullet, bullet fragments? By the
[01:52] way, there are two reports here. One one
[01:53] says that it was the bullet
[01:56] uh that they they they unable to
[02:00] identify the bullet recovered at autopsy
[02:02] to the rifle. And then the media filing
[02:05] referencing this same ATF summary
[02:07] described it as a bullet jacket fragment
[02:11] that was compared to the rifle. We
[02:13] actually called uh the authorities and
[02:15] asked whether there's more than one like
[02:17] are is was there analysis done on a
[02:19] bullet and analysis done on a bullet
[02:21] jacket and neither one was conclusive
[02:23] and they told us no that the media
[02:24] motion and the defense motion are
[02:26] talking about the same thing. There was
[02:28] one fragment found or at least tested.
[02:32] It's not two separate tests. One's from
[02:34] the casing and one's from the bullet.
[02:36] So, for whatever it's worth, some
[02:38] fragment, we believe, of the bullet was
[02:40] recovered. But do you find it odd,
[02:43] Andrew, that the ATF being unable to
[02:46] like I I'll use their word,
[02:50] I guess, uh identify that to the gun
[02:54] then didn't do the more testing that
[02:56] they that they're now doing because the
[02:59] state indicates that the FBI is in the
[03:01] process of conducting a second
[03:02] comparative bullet analysis as well as a
[03:05] bulletled analysis, but these are not
[03:07] yet complete. Now, I'm just thinking,
[03:09] Andrew, that if I'm the prosecution,
[03:11] I'm probably not going to turn any of
[03:13] this over to the defense until I've done
[03:15] all my tests trying to get the best
[03:16] result possible showing a link.
[03:20] Well, I mean, there's a tension here,
[03:21] right? So, as a prosecution, you're
[03:23] obligated to turn this material over to
[03:25] the defense. At some point, uh certainly
[03:27] the judge won't like it if you delay
[03:29] excessively in getting this material.
[03:31] So, uh with the prosecution, I mean,
[03:33] they they do like to delay, right?
[03:35] There's a lot of there's a lot of
[03:37] evidence in this case and I've seen many
[03:39] cases in which prosecutors delay as long
[03:40] as possible, get it to the defense late
[03:42] in the process. That makes it very
[03:44] difficult for the defense to do an
[03:46] adequate evaluation or challenge of the
[03:48] evidence. I've seen prosecutor's offices
[03:51] take these enormous volumes of evidence
[03:54] and and basically bury things inside all
[03:57] of it because they know the defense
[03:58] isn't going to have time to look through
[04:00] everything. At some point, the
[04:01] prosecution has to turn it over. uh the
[04:03] exact timing of that. They don't want to
[04:05] be castigated by the judge for not
[04:07] having turned it over in a timely
[04:09] manner. That would intend to drive them
[04:11] towards releasing what they have what
[04:13] they have it even if it's not the
[04:15] totally comprehensive analysis that
[04:18] would ultimately result
[04:19] >> and it's not good for the prosecution of
[04:21] of course Mark they have an obligation
[04:23] to turn it over to the defense if it's
[04:25] exculpatory um if it would help Tyler
[04:27] Robinson. I you tell me whether you
[04:29] think this is unusual that they turned
[04:31] over the thing that was going to be
[04:32] exploited by the defense and also the
[04:35] defense appears to know because this
[04:36] comes from their brief that the state
[04:39] that the FBI is in the process of
[04:40] conducting a second comparative bullet
[04:42] analysis as well as a bulletled analysis
[04:45] and that they're not yet complete.
[04:47] >> Well, what's going on here I and this
[04:50] I've been down this road I can't tell
[04:51] you how many times they want they have
[04:54] to turn it over because it is
[04:55] exculpatory. People can diminish it.
[04:58] People can say, "Well, it doesn't mean
[05:00] this, and you can you can do whatever
[05:02] you want in terms of couching it." It's
[05:04] exculpatory evidence. They've got a duty
[05:06] under Brady to turn it over. That's
[05:07] number one. Number two, you're dealing
[05:09] with a fragment. What I always do in
[05:12] this situation, and I've learned this
[05:14] from others who are uh very um well
[05:17] schooled in this, I then say I want my
[05:20] expert present when you do any further
[05:22] testing because I'm not going to sit
[05:24] here and wait for you to do the testing.
[05:27] my expert is going to be present number
[05:29] one or number two you can't do any more
[05:31] testing until I make sure that my expert
[05:34] has taken a sample or has reviewed your
[05:37] bench notes and all of your work because
[05:40] you do not want a situation where
[05:42] there's going to be something called a
[05:43] trumpet hitch motion where you've
[05:45] destroyed what remaining exculpatory
[05:47] evidence there is you knew that you did
[05:49] that and then there's going to be
[05:50] subject to a motion to dismiss. So the
[05:53] defense is all over this.
[05:56] How how is it exculpatory, Mark, when um
[05:59] you know what Andrew is saying is you
[06:01] had a bullet go in, it fragmented. You
[06:04] know, I think Andrew's basically saying
[06:05] h of course you're not necessarily going
[06:07] to be able to tie a bullet fragment to
[06:10] this rifle in particular. Like you you
[06:13] might be able to say, "Oh, this is the
[06:15] bullet fragment of a 9mm." That's not
[06:17] what was used by Tyler Robinson, so
[06:18] that's very exculpatory. But that's not
[06:20] what they have here. that they're just
[06:22] saying this bullet was so torn up we
[06:24] can't positively say it came from this
[06:27] weapon.
[06:28] >> Yeah. Under Brady and to some degree
[06:30] lesser degree Jigglio. Anything that
[06:33] diminishes the case. Remember they have
[06:35] the prosecution has to prove this case
[06:37] beyond a reasonable doubt. When you have
[06:39] a forensic test that is done that comes
[06:43] back and it's inconclusive by
[06:45] definition. That's a lesser standard
[06:47] than beyond a reasonable doubt, which is
[06:50] certainty to some degree. And so that by
[06:54] definition is exculpatory. That is why
[06:57] they turned it over. That is why, by the
[06:59] way, all you need to know about the
[07:01] prosecution is the fact that they've
[07:03] already turned that over to another
[07:05] agency, namely the FBI, to do secondary
[07:09] testing. They recognize the fact no
[07:11] matter how they couch it, no matter how
[07:13] forward facing or public facing, they
[07:16] try to diminish it. They recognize that
[07:18] it's exculpatory. That's why they're
[07:20] doing further uh investigation, further
[07:23] testing. And that is that to my mind is
[07:27] exactly why um the defense is honing in
[07:30] on this.
[07:31] >> Yeah. Do you agree with you think
[07:34] >> I I do agree with Mark in the sense that
[07:36] of course, you know, it's not the job of
[07:37] the defense to prove uh Tyler Robinson
[07:40] innocent, right? There's no innocence in
[07:42] in court. It's their job to prevent the
[07:44] state from proving him guilty beyond a
[07:46] reasonable doubt. So, in that sense,
[07:48] anything that does not advance the
[07:50] prosecution's movement towards proof
[07:53] beyond a reasonable doubt is helpful to
[07:54] the defense, of course.
[07:57] >> And what do you know anything, Andrew,
[07:58] about this? Great way of putting a
[08:01] second comparative bullet analysis as
[08:02] well as a bulletled analysis. Do you do
[08:05] you know what a bulletled analysis is
[08:07] Andrew? Is that toward trying to figure
[08:08] out whether this came from the 30 6 or
[08:12] whether it's like I said maybe a 9mm or
[08:14] a 357 Magnum which would be helpful to
[08:17] Tyler Robinson if it's not.
[08:18] >> Well, I mean bullet leads come in a lot
[08:20] of different alloys. Some are harder,
[08:22] some are softer and and you can
[08:23] differentiate those with laboratory
[08:25] testing. So they they'll test the lead
[08:27] from the bullet and then they'll test
[08:28] inside the barrel of the gun and see if
[08:30] those leads can be matched up and that
[08:32] would that would be helpful obviously
[08:34] for the prosecution. Um again whether
[08:37] you're likely to be able to do that or
[08:38] not. Lots of different bullets can be
[08:40] fired through a single gun. You get lots
[08:42] of different leads. Uh much lead is
[08:44] common among many different types of
[08:46] bullets. So it's very difficult to get
[08:47] an exact match that way. But they're
[08:49] looking for anything they can use to try
[08:51] to tie this bullet to the gun. If they
[08:54] can get that, that's very helpful for
[08:55] the state.
[08:57] >> Mark, we talked to our pal Shawn Davis
[08:58] over at the Federalist who knows a thing
[09:00] or two about guns and um he knows a bit
[09:03] about these ATF documents, too. Um and
[09:06] he suggested
[09:08] that uh the these sort sort of barrel
[09:12] matching matching this whole process,
[09:14] it's questionable as a valid forensic
[09:16] science at all. Um he doesn't believe it
[09:18] is. And he said multiple courts are now
[09:20] concluding the same thing. He said, "At
[09:22] best, the forensics can tell you whether
[09:24] this bullet was fired from this
[09:27] particular make and model of gun, but it
[09:29] absolutely cannot conclusively determine
[09:32] that this bullet from gun is from gun A
[09:34] and not gun B when gun A and B are the
[09:37] same make and model of gun." So, I think
[09:39] he's suggesting we're asking too much of
[09:42] the ATF here.
[09:43] >> Yeah. And for those who are in the
[09:45] weeds, there's something called the
[09:47] Dalbert analysis. In California, we call
[09:49] it Sargon. We've got Sanchez where you
[09:52] challenge the science in these kinds of
[09:55] cases. We've been doing that on
[09:57] ballistic style evidence for a while.
[10:00] You may remember Megan years ago because
[10:03] I think you covered a couple of these
[10:04] cases out of Texas. The arson so-called
[10:07] arson evidence which was thought of as
[10:10] state-of-the-art which is was admitted
[10:12] into many different murder prosecutions
[10:15] was later found to just be junk science.
[10:18] And so that is the same kind of analysis
[10:21] has been used for a number of years in
[10:23] various jurisdictions challenging this
[10:26] ballistics evidence because there are
[10:28] those experts who will say this is junk
[10:31] science and the idea of of making it
[10:34] akin to fingerprints which also has some
[10:36] of its own issues is something that is a
[10:39] hotly contested topic.
[10:41] >> Thanks for watching this clip. If you're
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