Author Topic: June 7th Hearing  (Read 13436 times)

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Offline annoyedbeyond

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Re: June 7th Hearing
« Reply #120 on: June 08, 2013, 05:34:56 AM »
That makes sense. Thank you.

or it's just a kind of sneaky way to get something past the prosecution.

But lawyers would never...you know...cheat, right?

By putting the material into email back and forths like that, it stays as work product. That Nelson read over each and every page before agreeing they were in fact work product despite being written is the clue.

But believe what you want. You will anyway.

Offline nomatter_nevermind

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Re: June 7th Hearing
« Reply #121 on: June 08, 2013, 05:50:02 AM »
So Owen did a forensic analysis of the NEN call, using critical listening skills, and managed not to notice that it's not a 911 call. Impressive.

6/7/13 hearing, 21:16 


Offline cboldt

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Re: June 7th Hearing
« Reply #122 on: June 08, 2013, 05:56:44 AM »
I got the impression that the emails were defining answers to questions posed by West in an effort to get better acquainted with the material he would be confronted with during the Frye hearing.  I never really thought that it would be an opinion. 

They could be "are you available," "are you qualified," "what are your qualifications," sort of intro stuff, as well as apprising the experts of the case.  Additional input to the expert/consultant (there is a distinction) is generally evidence, maybe opinions or reports of opposing experts.  Good lawyers don't lead experts.  The experts are led by the evidence.

Then, along the lines you mention, the consultant may suggest weaknesses in the reports of opposing experts (this is clearly protected attorney work product) by way of assertions or questions about standards, methodologies, assumptions made by opposing experts, external evidence not taken into account (sounds by W6, televisions in the room where the 911 caller is and so forth) and so forth - substantive in a general sense, but not stating any particular conclusion based on the evidence in this case.  Nelson would be looking for remarks where the expert independently evaluated the evidence with an eye on forming an independent opinion.  Absent remarks along those lines, there is nothing in the nature of "report and/or conclusions," and that is the material that is discoverable under the discovery rule, 3.220.

In the realm of expert testimony, the defense is obliged to produce ...

reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons


As to the distinction between consultant and expert, the consultant can analyze the evidence, and might (being independent) reach a conclusion that is unfavorable to the defense.  This person would not be called to testify, but might be very good at poking holes in framing of the case, the methodology, and the exact conclusions reached by the state's experts, even though the consultant might have an opinion that comports with the state's case.  That is in the nature of attorney work product, and is not discoverable.

Any time I am asked to review evidence, I insist on being taken on as a consultant, because the only things that lead my thought process are the evidence in the case, and scientific, engineering and technical materials.  It is common for me to form a preliminary opinion that is not favorable to the side that contacts me.

Offline cboldt

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Re: June 7th Hearing
« Reply #123 on: June 08, 2013, 06:04:28 AM »
By putting the material into email back and forths like that, it stays as work product. That Nelson read over each and every page before agreeing they were in fact work product despite being written is the clue.

The fact that the communication is in e-mail form does not save it from being an expert's opinion (or partial opinion) based on the evidence or facts of this case.

A good expert will carefully limit what is said in any written form, and sequester notes, calculations and conclusions based on the evidence in this case.  Other materials, such as questions that might be put to opposing experts (either interrogatory or deposition questions), or requests for additional production of evidence are in the nature of attorney work product.

The judge has to review the communications to determine if any are in the nature of expert work product, where the expert is independently applying technical analysis to the evidence in this case.  That material is discoverable.  Criticizing another expert's opinion or analysis is not necessarily the same as forming your own opinion.  The critic may see gaps in analytical process, or gaps in logic (failure to connect the dots) or failure to account for a potentially critical variable, without coming to a contrary opinion.

Offline cboldt

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Re: June 7th Hearing
« Reply #124 on: June 08, 2013, 06:07:46 AM »
I got the impression that the emails were defining answers to questions posed by West in an effort to get better acquainted with the material he would be confronted with during the Frye hearing.  I never really thought that it would be an opinion. 

I forgot to mention that another function of the expert is to educate.  If the person is named as an expert in the case, the expert's function is to educate the jury.  To demystify the technology behind the opinion, and put the technical analysis into terms that the jury can better understand.

A consultant (who might become a named expert in the case) can do the same thing for the lawyers.  Educate, I mean.

Offline annoyedbeyond

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Re: June 7th Hearing
« Reply #125 on: June 08, 2013, 06:09:48 AM »
The fact that the communication is in e-mail form does not save it from being an expert's opinion (or partial opinion) based on the evidence or facts of this case.

A good expert will carefully limit what is said in any written form, and sequester notes, calculations and conclusions based on the evidence in this case.  Other materials, such as questions that might be put to opposing experts (either interrogatory or deposition questions), or requests for additional production of evidence are in the nature of attorney work product.

The judge has to review the communications to determine if any are in the nature of expert work product, where the expert is independently applying technical analysis to the evidence in this case.  That material is discoverable.  Criticizing another expert's opinion or analysis is not necessarily the same as forming your own opinion.  The critic may see gaps in analytical process, or gaps in logic (failure to connect the dots) or failure to account for a potentially critical variable, without coming to a contrary opinion.

When I said emailing I was using a kind of shorthand for exactly that. I should've been more clear and apologize for not being so.

I tend to forget not everyone is thinking the same as I do.


Offline cboldt

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Re: June 7th Hearing
« Reply #126 on: June 08, 2013, 06:12:11 AM »
Odd that Owen had to use a redacted version of the 911 call.  Serino had an unredacted version for his last interview of Zimmerman. It's near the end of 2/29-3.

I find it odd that Owen is even entertained as a testifying witness.  He was questioned yesterday on the work he did for Orlando Sentinel, which only had public evidence.  I don't think the state ever hired him, except to testify yesterday.  That is, I don't think the state provided him with any evidence (which would, presumably, be the best evidence available), nor did the state task him with forming an opinion and preparing a report.

My hunch is the state drew him in at this late time just to make work for the defense.

Offline cboldt

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Re: June 7th Hearing
« Reply #127 on: June 08, 2013, 06:17:32 AM »
When I said emailing I was using a kind of shorthand for exactly that. I should've been more clear and apologize for not being so.

I tend to forget not everyone is thinking the same as I do.

No sweat, and I didn't think you were of a mind that the form of communication (e-mail vs. printed copy) was a distinguishing factor.  I just used your remark in a literal sense to expound on how the court will find that a communication is in the nature of the expert forming an opinion on the facts in evidence in this case.

I make the same "mistake" in forgetting that readers aren't inside my head; and frequently make remarks that are inaccurate (at best) if taken literally.

Offline DebFrmHell

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Re: June 7th Hearing
« Reply #128 on: June 08, 2013, 09:12:44 AM »
or it's just a kind of sneaky way to get something past the prosecution.

But lawyers would never...you know...cheat, right?

By putting the material into email back and forths like that, it stays as work product. That Nelson read over each and every page before agreeing they were in fact work product despite being written is the clue.

But believe what you want. You will anyway.

Actually, that is what I got from the way Don West was describing what was contained within the emails.  Not No Matter.

 

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