Author Topic: Audio Experts  (Read 5015 times)

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Offline AJ

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Audio Experts
« on: May 06, 2013, 06:57:22 PM »
Not sure if this should be filed in "Court Matters," but since there isn't a thread on the audio experts in "Witness Discussion" I figured I might as well make one.

I'm confused, and it could be because of the way the witness list from the State hasn't been submitted in a complete list in a while.

Question 1: What are they categorized as by the State?
Question 2: Can they testify based on the answer to Q1?

Q1:
In this document, they're listed as Category B witnesses. I could have sworn there was a newer witness list in one of the filings that had an updated witness list from them, but I've yet to find it. I thought I saw them listed as "Category C" once before.

http://www.flcourts18.org/PDF/Press_Releases/CJC3rdFlCScan20120515084012.pdf

Q2:
Florida Rules of Criminal Procedure
http://www.floridabar.org/TFB/TFBResources.nsf/0/BDFE1551AD291A3F85256B29004BF892/$FILE/Criminal.pdf

Quote
3.220(b)(1)(A):
  a list of the names and addresses of all persons known to the prosecutor to have information that may be relevant to any offense charged or any defense thereto, or to any similar fact evidence to be resented
at trial under section 90.404(2), Florida Statutes. The names and addresses of persons listed shall be clearly designated in the following categories:

    (i) Category A. These witnesses shall include (1) eye witnesses, (2) alibi witnesses and rebuttal to alibi witnesses, (3) witnesses who were present when a recorded or unrecorded statement was taken from or made by a defendant or codefendant, which shall be separately identified within this category, (4) investigating officers, (5) witnesses known by the prosecutor to have any material information that tends to negate the guilt of the defendant as to any offense charged, (6) child hearsay witnesses, and (7) expert witnesses who have not provided a written report and a curriculum vitae or who are going to testify.

    (ii) Category B. All witnesses not listed in either Category A or Category C

    (iii) Category C. All witnesses who performed only ministerial functions or whom the prosecutor does not intend to call at trial and whose involvement with and knowledge of the case is fully set out in a police report or other statement furnished to the defense;

Based on this, I had come to the conclusion that in order for Ed Primeau and Tom Owens to testify they would need to be classified as "Category A." Where am I going wrong? Were they changed to "Category A" somewhere along the way? If I am understanding 3.220 and the witness list correctly, then why would Mr. O'Mara want an extended hearing to say someone can't testify when they shouldn't be able to testify anyway (I've considered CYA, but I'm not sure how viable of a reason that would be)?

Offline MJW

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Re: Audio Experts
« Reply #1 on: May 06, 2013, 07:08:08 PM »
Based on this, I had come to the conclusion that in order for Ed Primeau and Tom Owens to testify they would need to be classified as "Category A." Where am I going wrong? Were they changed to "Category A" somewhere along the way? If I am understanding 3.220 and the witness list correctly, then why would Mr. O'Mara want an extended hearing to say someone can't testify when they shouldn't be able to testify anyway (I've considered CYA, but I'm not sure how viable of a reason that would be)?

I don't think you are going wrong. I, too, am confused as to why the state hasn't listed any expert witnesses in category A.

Offline RickyJim

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Re: Audio Experts
« Reply #2 on: May 06, 2013, 07:24:28 PM »
Do we necessarily know about all emendations that state has made to their witness list?

Offline leftwig

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Re: Audio Experts
« Reply #3 on: May 06, 2013, 07:34:14 PM »
Is my memory correct that Cat A witnesses must be available to opposing counsel for depositions and in my interpretation, Cat B expert witnesses would only be called to rebut other experts? 

Offline cboldt

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Re: Audio Experts
« Reply #4 on: May 06, 2013, 07:36:01 PM »
Based on this, I had come to the conclusion that in order for Ed Primeau and Tom Owens to testify they would need to be classified as "Category A." Where am I going wrong? Were they changed to "Category A" somewhere along the way? If I am understanding 3.220 and the witness list correctly, then why would Mr. O'Mara want an extended hearing to say someone can't testify when they shouldn't be able to testify anyway (I've considered CYA, but I'm not sure how viable of a reason that would be)?

I'm sure I've incorrectly said they were listed as Category C witnesses, but I was relying on memory.  No big deal, the point was that the state initially indicated that it did not intend to call Owens or Primeau.

My hunch is that the still do not plan to call either of those two, and that if the state has an expert or two, it is somebody other that Owens and Primeau.  Owens and Primeau are tainted by their previous remarks to the press, and also by their own remarks.  Owens is 'self-disqualifying' if you follow his prescription that describes the criteria necesssarily precedent to reaching a conclusion.  Anyway, neither Owens nor Primeau was a state witness at the start, and I doubt the state has decided to reverse itself and adopt them as experts.

Offline cboldt

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Re: Audio Experts
« Reply #5 on: May 06, 2013, 07:50:36 PM »
Is my memory correct that Cat A witnesses must be available to opposing counsel for depositions and in my interpretation, Cat B expert witnesses would only be called to rebut other experts?

I think any expert who is prepared to testify has to be deposable by the defense, even if that expert is perhaps held in reserve, in case the state feels like rebutting a defense expert.  Assume for the sake of argument the state lists an expert as "B", then defense would be required to obtain leave of the court for permission to depose.

No party may take the deposition of a witness listed by the prosecutor as a Category B witness except upon leave of court with good cause shown. In determining whether to allow a deposition, the court should consider the consequences to the defendant, the complexities of the issues involved, the complexity of the testimony of the witness (e.g., experts), and the other opportunities available to the defendant to discover the information sought by deposition.


O'Mara asserts that the defense intends to call experts.  The fact that there are state experts who intend to testify is new information.  I don't know if O'Mara is blowing smoke (the state doesn't really have an expert lined up), or if he has seen the state's expert's report and has substantive basis to disqualify the expert, or something in between those two extremes (e.g., fishing for the state's expert's methodology, because the state won't honor its discovery obligation).  There's no way to tell, because O'Mara's motion is substantively void.  All it recites is the law.

Offline FromBelow

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Re: Audio Experts
« Reply #6 on: May 06, 2013, 08:14:35 PM »
I have to wonder if the state is going to stress expert identification of the voice at all. Surely they know the defense can simply come up with their own experts to counter. My guess is the state realizes they can't win if they base their case on facts, evidence or common sense. They need emotion, not science. Enter Sybrina tearfully testifying that the screaming voice is her son. Something the less melodramatic Zimmerman family will be unable to match.

Offline nomatter_nevermind

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Re: Audio Experts
« Reply #7 on: May 07, 2013, 05:46:24 AM »
Surely they know the defense can simply come up with their own experts to counter.

If you don't consider paying the experts a complication.

Offline DebFrmHell

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Re: Audio Experts
« Reply #8 on: May 07, 2013, 08:00:58 AM »
It is my esteemed opinion  :) that in the end the FBI analysis will be the only thing that matters to a jury since they trump family, friends, and audio experts like Owen and the VoiceWhisperer, whose name I can't remember but it starts with a "P."

 8)

Offline nomatter_nevermind

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Re: Audio Experts
« Reply #9 on: May 07, 2013, 08:04:34 AM »
It is my esteemed opinion  :) that in the end the FBI analysis will be the only thing that matters to a jury since they trump family, friends, and audio experts like Owen and the VoiceWhisperer, whose name I can't remember but it starts with a "P."

 8)

It's in the first post on the thread.

Based on this, I had come to the conclusion that in order for Ed Primeau and Tom Owens to testify they would need to be classified as "Category A."

Offline leftwig

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Re: Audio Experts
« Reply #10 on: May 07, 2013, 08:20:34 AM »
I think any expert who is prepared to testify has to be deposable by the defense, even if that expert is perhaps held in reserve, in case the state feels like rebutting a defense expert.  Assume for the sake of argument the state lists an expert as "B", then defense would be required to obtain leave of the court for permission to depose.

No party may take the deposition of a witness listed by the prosecutor as a Category B witness except upon leave of court with good cause shown. In determining whether to allow a deposition, the court should consider the consequences to the defendant, the complexities of the issues involved, the complexity of the testimony of the witness (e.g., experts), and the other opportunities available to the defendant to discover the information sought by deposition.


O'Mara asserts that the defense intends to call experts.  The fact that there are state experts who intend to testify is new information.  I don't know if O'Mara is blowing smoke (the state doesn't really have an expert lined up), or if he has seen the state's expert's report and has substantive basis to disqualify the expert, or something in between those two extremes (e.g., fishing for the state's expert's methodology, because the state won't honor its discovery obligation).  There's no way to tell, because O'Mara's motion is substantively void.  All it recites is the law.

Thanks for the clarification.  AFAIK, these 2 experts are still listed as Cat B and  have not submitted any written reports about tests performed and conclusions.  If that is correct, do we think the judge would be granting the defense access to depose these witnesses on the clause "except upon leave of court with good cause shown" given her past rulings?

Offline cboldt

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Re: Audio Experts
« Reply #11 on: May 07, 2013, 08:46:30 AM »
AFAIK, these 2 experts are still listed as Cat B and  have not submitted any written reports about tests performed and conclusions.  If that is correct, do we think the judge would be granting the defense access to depose these witnesses on the clause "except upon leave of court with good cause shown" given her past rulings?

I don't think the expert or experts that the state has in mind are Owens or Primeau.  Each of them is loaded with baggage that would make their testimony subject to total evisceration on cross examination.

But, if those were the experts, and the state intends to proffer their testimony at trial, they are incorrectly pigeonholed in "b".  If Nelson doesn't admit this, and requires a showing of good cause, I think she would allow defense deposition.  Her wacky discovery rulings have so far been limited to putting Crump off limits, and to seeing no violation by the state in its deliberate withholding of evidence.

In North Carolina, the state bar was flabbergasted with Nifong.  I think Nifong would have been a hero under the Florida justice system.

Offline leftwig

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Re: Audio Experts
« Reply #12 on: May 07, 2013, 10:54:00 AM »
As was asked above, does the state have any expert witnesses listed under Cat A?  Can they add them whenever they want under the guise that they had been working on the 911 call and voices, but only came to form an opinion/conclusion recently? 

Offline cboldt

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Re: Audio Experts
« Reply #13 on: May 07, 2013, 11:47:29 AM »
As was asked above, does the state have any expert witnesses listed under Cat A?  Can they add them whenever they want under the guise that they had been working on the 911 call and voices, but only came to form an opinion/conclusion recently?

I don't know of any experts listed in Category A.

The time for disclosing witnesses was supposed to be closed as of April 10, with April 17 being allowed to disclose witnesses who might be responsive to witnesses disclosed by April 10.  O'Mara moved for, and was granted an extension of time to April 30, with is list of "too late" witnesses being disclosed in his April 26th Motion.  The court granted his motion, and allowed the state time to respond to those new witnesses.

If the state does have additional witnesses, I think what has been going on is informal disclosure by the state.  I don't recall any witness list from the state beyond its initial filing, about a year ago.  O'Mara's primary concern is the defense being notified.  I have a sense that he is not offended if the state doesn't formalize its notifications so as to appear in a public filing.  O'Mara knows much more than the public does.

Offline MJW

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Re: Audio Experts
« Reply #14 on: May 07, 2013, 01:53:12 PM »
I don't recall any witness list from the state beyond its initial filing, about a year ago.  O'Mara's primary concern is the defense being notified.

Witnesses have been added by the state. They're listed at the beginning of the discovery supplements. For instance, Sondra Osterman was added as a Category A witness in the 8th Supplement of September 19, 2012.

 

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