dissenting.
In reversing the judgment of the Appellate Division, the Court states the question thus:
The primary issue is whether, in the absence of statistical probability evidence, the trial court erred in admitting expert testimony concerning the similarity in composition of lead bullets____
[Op. at 143, 723 A.2d at 603.]
*153I agree that there need not be any stated percentage of probability before an expert witness may testify about the composition of lead bullets. That is not the thrust of the Appellate Division’s opinion.
Defense counsel never objected to the State’s expert testifying about lead composition tests performed on two spent bullets recovered from the victim’s body, four spent shells recovered from the crime scene, and nine cartridges recovered from a box of ammunition taken from the defendant’s clothing locker. Using an accepted chemical process, the witness analyzed the lead composition of each of the bullets on the basis of their content of various trace elements such as silver, tin, copper, and arsenic. The witness identified five compositional types of bullets. One group having the same trace elements included: one bullet from the hospital; one bullet from the victim; one bullet from the crime scene; and four bullets taken from the defendants. The second group included one bullet from the victim and two from the defendant. The third group included one bullet from the crime scene and two of the defendant’s bullets. The fourth group contained only one bullet, a crime scene bullet. The fifth group contained one bullet from the crime scene and one bullet of the defendant’s.
The expert described the process of bullet manufacturing. He said that lead bullets are made from an initial batch of molten lead and that there is a variation of the presence and percentages of trace elements in each batch. Thus it is highly improbable that any two batches or sources of bullets would have the identical composition. Because the bullets possessed by the defendant had the same composition as those that killed the victim or were found at the crime scene, the expert gave the opinion that such bullets had come from the same batch or source of lead.
So far, so good. But in its appellate brief the State asserted that this testimony is reliable scientific proof not only that the bullets “came from the same source of lead at the manufacturer” *154but were “sold in the same box.” There was simply no reliable scientific proof of that latter proposition.
To simplify the analysis, let us use a more homely example. Assume that a person who committed a crime was seen wearing Levi’s jeans and assume, as well, that an accused suspect was found to be in possession of a similar pair of Levi’s. Does it follow that the two pairs of jeans were sold in the same box? Of course not. And why? Because there are just too many of the same kind of pants in circulation to justify any conclusive inference of guilt. That is the point of the Appellate Division opinion. The problem in the case is not with what the expert testified to, but with what the State has attempted to do with his testimony.
The State’s ballistics expert was quite candid in explaining what he meant by a batch of lead. It is a source of lead of unknown quantity. From this unknown quantity there were extruded bullets, how many he or we cannot know. He testified that during the manufacturing process of bullets each batch or source of molten lead is poured into blocks called “billets.” Although the witness gave the opinion that approximately 4300 bullets could be made from each billet,1 he was unable to quantify the number of bullets or billets that could be made from a batch. The State’s expert, however, did testify that “at least 50 thousand,” identical bullets could come from the same source (the batch) and would have the same compositional mix.
Notwithstanding that fact, the State was able to present this case to the jury as though it had scientific proof that the bullets in question came from the same box, even though there were at least 49,985 other bullets in circulation similar to the matching bullets. The point of the Appellate Division opinion is the point made by this Court in State v. Spann, 130 N.J. 484, 617 A.2d 247 (1993). *155The prosecution may not present false scientific premises to a jury and proffer it as “a ‘scientific’ assumption, [and] an accepted part of a scientific calculation, ‘objective’, ‘neutral’, [and] ‘fair’ [when i]t is no such thing____”2 Id. at 497, 617 A.2d 247. Had the prosecution wished to state with scientific accuracy the results of the tests, it would have said something like this:
Ladies and Gentlemen of the Jury.
As you have heard, there are at least 50,000 bullets similar to the fifteen bullets found at the crime scene. There are thus at least 49,985 possible origins for the bullets found at the crime scene — other than from the defendant.3
Of course the State would not make that argument. Instead, although from a scientifically honest viewpoint one would have to have said that the chance may have been fifty thousand to one, the State was able to suggest to the jury that there was scientific certainty that the bullets came from the same box, even elevating the status of the ballistics expert to a mythical “man in the white coat.” This is what the prosecutor said:
Finally Mr. Charles Peters of the FBI [the ballistics expert]. I realized that was some sophisticated testimony and I know I personally had trouble following it. But I hope the conclusions are what came clear. It is a very precise scientific process that has been used for, I believe, he said about, about thirty years to test these bullet leads and his testimony is critical to this case because it completely blows away the murder theory advanced by the defense that [the witness] has somehow engineered the murder.
Now do you think Mr. Peters [the State’s expert] was a liar? He’s not a cop. He’s not even an FBI agent. Charles Peters is a scientist and he looked like a scientist, didn’t he? You could almost see him in a white lab coat You could see ■ *156him in math class in a high school in the back. He had all the answers. He’s a straight shooter. [He] did not testify beyond what the results of his examination were. [He] didn’t try to make it out to be more than what it was, but it is something very critical in this case.
Basically, what he told us was that an examination of bullets, whenever a manufacturer is going to run a line of bullets, they order a source of lead from a lead smelter. I asked him if that was like a “batch.” He said it was. The scientists like using the word “source.” I think it is easier to conceive as a batch of lead. And he said that there are millions, literally millions, of these batches of lead out in circulation and from those millions of batches of lead out in circulation, there are billions of bullets produced each year.
The key, I submit to you, is not what Mr. Roberts said it is, not about the number of bullets produced — the number of bullets produced, the key is the number of sources of lead, the number of batches. Millions of batches, each one unique like a snowflake; like a fingerprint.
Informing the jury that the lead in some of the bullets found at the crime scene was identical to the lead in some of the bullets seized from Mr. Noel says little more than what the jury already knew, that the bullets were of the same size and came from the same manufacturer. Yet the net effect of the allusions to the “white lab coat,” the fingerprint and snowflake comparisons, and the “very precise science” and “he had all the answers” comments was that the State had (as its appellate brief suggests) conclusive scientific evidence that both sets of bullets came from the same box. This was highly prejudicial.
Before us, in oral argument, the State insisted that it had never offered the ballistics evidence as proof of a match as in DNA or fingerprinting but merely as a “bit of circumstantial evidence that adds to the State’s case.” Because that is all that the ballistics evidence established, that explains why defense counsel did not at the end object to it. It was the prosecutor who elevated the status of the proofs to create a false scientific premise. He did not describe Mr. Peters’ testimony as merely a “bit of circumstantial evidence.” The prosecutor said that the expert testimony “is critical to this case because it completely blows away the murder theory advanced by the defense____” To return to our example of matching Levi’s jeans, we must ask whether the State would be able fairly to assert that the fact that a defendant had a pair of pants similar to the perpetrator’s would “blow away” an alibi *157defense. Of course not. It was the elevation here of a “bit of circumstantial evidence” to a false scientific premise that was erroneous.
To summarize, the Appellate Division was entirely satisfied that plasma atomic emission spectroscopy of lead bullets is a process adequately accepted by the scientific community and produces sufficiently reliable results to warrant the admission into evidence of expert testimony regarding that test and the results derived therefrom. From that test you can tell whether two bullets are alike, not whether if there are fifty thousand similar bullets, the two in fifty thousand that you are looking at came from the same box. In reversing the defendant’s conviction, it was the latter false scientific premise that the Appellate Division condemned. I would affirm its sound judgment.
STEIN, J., joins in this opinion.
For reversal — Chief Justice PORITZ and Justices HANDLER, POLLOCK, GARIBALDI, and COLEMAN — 5.
For affirmance — Justices O’HERN and STEIN — 2.
There is confusion in the transcript concerning the number of bullets referred to by the State's expert. The transcript states, "I think around 43 — 4 thousand 3 hundred; somewhere around that.” For purposes of this dissent, I accept 4300 bullets as the more probable reading of his testimony.
In Windmere v. International Insurance Co., 105 N.J. 373, 375, 522 A.2d 405 (1987), scientific evidence was proffered to state that a suspected arsonist’s voice was the samé voice as the voice on a tape that had called in a bomb threat. Fortunately for the suspect the real bomber confessed before the suspect was further implicated. In hindsight, we were able to state that voiceprints are not a reliable means of identifying the human voice.
For convenience, I use the number 50,000. There were actually four matches between bullets linked to the crime and bullets linked to the defendant, and therefore approximately 200,000 bullets in play. (Each match means there was a common source or batch.) The fact that there were four matches does solidify the circumstantial evidence but, again, there was no "precise scientific process” to sustain that inferential boost.