June 8th Hearing

[cboldt]

Isn't there a fine line regarding what one expert can say about the work of another expert? I believe it's relaxed some for the purpose of the Frye hearing, but I also saw Nelson get a little testy on the issue, so I don't know as that would've been the best way to go.

Not really.  I've had opposing experts say, directly, "cboldt is using junk science."  They have to back that up with what they claim is real science, so at rock bottom, there is some basis for yet another third party to come in and settle the dispute (or for me to show that my science isn't in fact junk).

Defense experts have uniformly ridiculed both Owen and Reich, and have explained how they reach their opinions that the conclusions of Owen and Reich are based on junk science.  A hundred years ago, Owen and Reich would be the guys who swore on a stack of Bibles that the moon was probably (but not for certain) made of green cheese.

[Evil Chinchilla]

If Nelson's true to form, she's going to let Owen and Reich squeak by under her interpretation of Frye.

But can she turn around and exclude the defense experts from challenging Owen's and Reich's credibility during the trial?

[cboldt]

The Frye test is, at bottom, a filter that aims to keep unreliable conclusions from being presented in court.  Before this time, the test for an expert was whether or not scientific methods would assist the trier of fact to ascertain the truth, from the (raw) evidence.

When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that particular science, art, or trade to which the question relates are admissible in evidence.

So, to that point, I think it was Doddington who said that human recognition of voices, lay-people, are pretty darned reliable.  More so than software, at any rate.  That would augur against a need for experts AT ALL.  However, the screams are amenable to speculation, and MAYBE science has an answer.  That is the threshhold questions.  Not what tools does science have, but do the tools answer the question.

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.

Frye vs. US, 54 App. D. C. 46, 293 F. 1013 (DC Cir. 1923)

I think there is enough slack in this writing to take the Frye test either way.  It can be read as only testing the instrument / conclusion pair; or it can be read to also capture the raw evidence fed to the instrument.  If one considers WHY the test exists, as a legal principle, the decision clearly favors the defense.  One has to throw the principle of law out (the principle that the court disfavors speculative and potentially misleading testimony), in order to read Frye as admitting Owen and Reich.

[annoyedbeyond]

Not really.  I've had opposing experts say, directly, "cboldt is using junk science."  They have to back that up with what they claim is real science, so at rock bottom, there is some basis for yet another third party to come in and settle the dispute (or for me to show that my science isn't in fact junk).

Defense experts have uniformly ridiculed both Owen and Reich, and have explained how they reach their opinions that the conclusions of Owen and Reich are based on junk science.  A hundred years ago, Owen and Reich would be the guys who swore on a stack of Bibles that the moon was probably (but not for certain) made of green cheese.

Are you sure? I'm pretty sure I remember Nelson telling MOM that his witness wasn't to make a comment on the validity of another expert's testimony. He responded that he knew he couldn't do that for the trial but he certainly could for the purpose of the Frye hearing. She responded by shifting her cud and spitting into her cuspidor while glaring at MOM. Which he ignored.

[cboldt]

If Nelson's true to form, she's going to let Owen and Reich squeak by under her interpretation of Frye.

But can she turn around and exclude the defense experts from challenging Owen's and Reich's credibility during the trial?

There has been no defense motion to disqualify French, or Doddington, and using the Frye test that they propose, I don't see how those experts could be excluded.  If the state gets to use Owen and Reich, then the jury will see what amounts to a condensed replay of the Frye hearing.

[jjr495]

My very limited legal knowledge had me thinking that the key question revolved around interpretation of Ramirez III. Isn't that why French was carefully trying to differentiate between methodology and technology. I thought the defense is trying to say that while the technology is in broad use, the methodology was new and novel. That is why they went after Owen with the looping and changing pitch. Those methodologies are new and novel and far outside scientific consensus.
Any insight from the legally knowledgeable is appreciated.

[cboldt]

Are you sure? I'm pretty sure I remember Nelson telling MOM that his witness wasn't to make a comment on the validity of another expert's testimony. He responded that he knew he couldn't do that for the trial but he certainly could for the purpose of the Frye hearing. She responded by shifting her cud and spitting into her cuspidor while glaring at MOM. Which he ignored.

IIRC, that was during Doddington's testimony, and Doddington admitted that he wasn't making a forensic analysis.  At any rate, all three defense experts were directly critical of Owen and Reich, using various technical bases for their criticism.  Doddington's was based on non-repeatability of results using screams as a source.  None of the defense experts, all of which are qualified by education and experience in voice recognition, knew of any scientific support for screamer identification, using speaker identification methods.

There is nothing wrong, at all, with using one expert to poke holes in opposing expert's rationale and conclusions.

[cboldt]

My very limited legal knowledge had me thinking that the key question revolved around interpretation of Ramirez III. Isn't that why French was carefully trying to differentiate between methodology and technology. I thought the defense is trying to say that while the technology is in broad use, the methodology was new and novel. That is why they went after Owen with the looping and changing pitch. Those methodologies are new and novel and far outside scientific consensus.
Any insight from the legally knowledgeable is appreciated.

Ramirez resembles Daubert.

the burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principles and the testing procedures used to apply that principle to the facts of the case at hand.

IOW, Ramirez requires the gatekeeper to factor in the application of principles to the facts of the case, in this case the facts of the case being the screams.

The prosecution will point out that the relevant authority is a different Florida case.

Retreating from Ramirez, the Castillo court held that Frye only required the trial court to examine the general acceptance of the underlying science and experiments from which the expert witness obtained the data used to draw his conclusions, not the reasoning or conclusions themselves. Finding that the science underlying each method was generally accepted, the court concluded that the opinions of the plaintiff's expert witness were admissible. The Castillo court explained that even if the methods used to interpret the data from the underlying valid science are not generally accepted, any questions about how the expert reached his conclusion go to the weight a jury should give to the expert witness' opinion and not to whether the opinion is admissible.

Both blockquotes above from Challenging Expert Witness Testimony in Florida Products Liability Cases Under Frye Rebecca Cavendish and Nicole Atkinson, March, 2007

It'll bottom out on the meaning of "valid science" or "general acceptance of the underlying science and experiments."  Notice, that under Castillo, if the methods are not generally accepted, the testimony may (might) be allowed.  IMO, in order to make sense of these judicial pronouncements, one has to get into the weeds of the testimony involved.  Nelson isn't going to do that.  She'll pick the phrase from Castillo that suits the outcome she prefers, and use that to justify the ruling.  It's possible to play word games with these cases until the cows come home.

[jjr495]

Thanks. That's very helpful.

[cboldt]

Setting aside the meat of deciding if Owen and Reich should be allowed to testify, and it's appropriate to set it aside becuase a judge can mumbo-jumbo this either way, I think the real reason Nelson allows the experts is that if she doesn't, the state will take an interlocutory appeal and delay the trial.  Once jury selection starts, this bias on the part of the judge will be more pronounced.

[annoyedbeyond]

IIRC, that was during Doddington's testimony, and Doddington admitted that he wasn't making a forensic analysis.  At any rate, all three defense experts were directly critical of Owen and Reich, using various technical bases for their criticism.  Doddington's was based on non-repeatability of results using screams as a source.  None of the defense experts, all of which are qualified by education and experience in voice recognition, knew of any scientific support for screamer identification, using speaker identification methods.

There is nothing wrong, at all, with using one expert to poke holes in opposing expert's rationale and conclusions.

I didn't think there was--but when she got going on it I just assumed I was wrong.

[cboldt]

I didn't think there was--but when she got going on it I just assumed I was wrong.

Once the hearing videos are available, if you point me to the video and an approximate time in it, I'll watch and listen carefully, to see what sense I can make of it.  I know there were a few objections, but the volume of the stream was pretty low on my end, and I didn't hear much if any of the background / objection assertions.  I picked up Mantei's "that question was too long," and something about O'Mara essentially putting words in the expert's mouth, sort of like assuming the conclusion for the expert and seeking agreement.   The attorney shouldn't do that, but the expert is free to opine.

[RickyJim]

Doddington criticizes Nakasone and French for not opening themselves up to enough evaluation even though Nakasone would never go to court under even iideal circumstances, and French says that he would immediately reject the 911 recording in this case. This illustrates just how far out of the scientific consensus are Reich and Owen. I hope Nelson understands this and not just that Doddington is critical of Nakasone and French.

Now I am quite confused about what Nakasone does.  Is his job to run comparisons of samples for police departments?  If he is certain of a match, does he tell the prosecutor in the case to go hire  wen to retest and testify in court?

[unitron]

Wikipedia says NIST is 'a non-regulatory agency of the United States Department of Commerce'.

They set standards.

They don't have the legal authority to force adherence to those standards, but if there's going to be a standard to which adherence is legally required by some regulatory agency and it's in an area for which NIST  has created a standard, it's a pretty good bet that the regulatory agency will choose the NIST-created standard as the one to which they will require adherence.

[unitron]

Even after a couple of minutes, it is clear that Mantei is much more tech savvy than O'Mara.

Which means he likely knows he's got to take the prosecution "experts" and try to make a silk purse out of a sow's fecal matter.