Author Topic: Frye Hearing, June 20, 2013  (Read 14850 times)

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Offline jjr495

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Frye Hearing, June 20, 2013
« on: June 18, 2013, 07:04:50 PM »
Update: Hearing moved from June 19 to June 20.

Tom Owen is scheduled to return as a rebuttal witness for the state.
My understanding from the last day of the Frye hearing is that West will have the opportunity to introduce research articles during cross.
If anybody could help me with the limitations of the type of questions that can be asked of a rebuttal witness on cross, I would appreciate it.
« Last Edit: June 19, 2013, 10:40:03 PM by TalkLeft »

Offline jjr495

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Re: Frye Hearing, June 19, 2013
« Reply #1 on: June 18, 2013, 08:08:37 PM »
Here are questions I would like to ask of Owen

1. How did you know that the various screams/shouts that you put together were the same person? Reich thinks he hears two people. Wouldn't having more than one person give you a poor match?

2. In your last testimony there were 14 words, and most of them were help. "Help" should occupy limited MFCC parameter space, hence occupy limited Gaussian components of the GMM (i.e few cotton balls). Doesnt this seriously degrade your ability to get a match?

3. How is your background model constructed? This is not documented in the STC literature that I could find. Follow up: Does the context and channel of speech in the background model match the exemplar and screams?

4. Did you only have 2 seconds that EVB identified as speech (based on your CNN interview)? EVB gives error message for anything less than 3 seconds. Repeating the 2 seconds gives the exact same cepstral coefficients during feature extraction. How does this help?

5. How did you change the pitch? What affect does this have on the formants (i.e the cepstral coefficients)? If Owen simply sped up the recording, then all of the formants will scale up linearly. At this point West should introduce a paper on how speaker context affects formants and degrades speaker recognition. He should also introduce the Reynolds paper and use Fig 3 (one of Wayman's slides) to ask about the fragility of EVB when channel and context aren't matched. If the x's in that figure are too far from a cotton ball, the EM process may find the wrong maximum.

6. What does the matching percent in EVB mean? How is it calculated? Why did you previously call it the likelihood ratio? If Owen responds that he doesn't know and/or proprietary: What is the importance of repeatability in science?

7. Why did you not publish your work on screams in a peer-reviewed journal so that you could be honored with great prizes in the field of speech recognition?

8. Why are you in court with EVB when SpeechPro writes that it is not a good use of its product?

Offline nomatter_nevermind

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Re: Frye Hearing, June 19, 2013
« Reply #2 on: June 19, 2013, 12:24:16 AM »
If anybody could help me with the limitations of the type of questions that can be asked of a rebuttal witness on cross, I would appreciate it.

Fla. Stat. § 90.612
Quote
(2) Cross-examination of a witness is limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in its discretion, permit inquiry into additional matters.
(3) Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’s testimony. Ordinarily, leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

I'm not a lawyer, much less an expert on the Florida Evidence Code, so I can't speak with confidence on what isn't in it. But there is nothing in this statute that distinguishes rebuttal witness from other kinds of witnesses, and I don't know of any such provision elsewhere.

Offline nomatter_nevermind

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Re: Frye Hearing, June 19, 2013
« Reply #3 on: June 19, 2013, 02:24:37 AM »
My understanding from the last day of the Frye hearing is that West will have the opportunity to introduce research articles during cross.

Fla. Stat. § 90.706
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Authoritativeness of literature for use in cross-examination.—Statements of facts or opinions on a subject of science, art, or specialized knowledge contained in a published treatise, periodical, book, dissertation, pamphlet, or other writing may be used in cross-examination of an expert witness if the expert witness recognizes the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative, or, notwithstanding nonrecognition by the expert witness, if the trial court finds the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative and relevant to the subject matter.

Offline cboldt

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Re: Frye Hearing, June 19, 2013
« Reply #4 on: June 19, 2013, 04:06:43 AM »
Tom Owen is scheduled to return as a rebuttal witness for the state.
My understanding from the last day of the Frye hearing is that West will have the opportunity to introduce research articles during cross.
If anybody could help me with the limitations of the type of questions that can be asked of a rebuttal witness on cross, I would appreciate it.

You know, that is going to be funny.  The article that Mantei objected to, and the Judge upheld the objection by using the wrong rule of evidence, West might bring that article in as evidence in cross examination of Owen.  Not that Mantei's objection is what allows the article to come in, it can come in anyway.

Cross exam is generally limited to subjects covered in direct examination.

Elsewhere, Jeralyn posted that rebuttal is limited to rebut material raised by the opponent (in this case, testimony of French, Nakasone, Doddington and/or Wayman), using facts and argument that were not presented the first time around.  It is not supposed to be a repeat of arguments already on the record.  That "rebuttal limitation" applies to Mantei and Owen on direct examination.  The limitation is a function of efficiency, avoidance of repetition, so there is no prejudice if the court disregards the "rebuttal limitation" principle and allows Owen to essentially repeat parts of his previous testimony.

Offline nomatter_nevermind

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Re: Frye Hearing, June 19, 2013
« Reply #5 on: June 19, 2013, 04:16:54 AM »
Cross exam is generally limited to subjects covered in direct examination.

And 'matters affecting the credibility of the witness.'

Offline annoyedbeyond

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Re: Frye Hearing, June 19, 2013
« Reply #6 on: June 19, 2013, 06:43:59 AM »
And 'matters affecting the credibility of the witness.'

"Generally". Which is different than "always" or even, "is".


Offline cboldt

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Re: Frye Hearing, June 19, 2013
« Reply #7 on: June 19, 2013, 07:29:21 AM »
Nelson just announced in open court that for scheduling purposes, the state's rebuttal witness is now on for 2 p.m. on Thursday.  There will be no Frye action today.

Offline jjr495

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Re: Frye Hearing, June 19, 2013
« Reply #8 on: June 19, 2013, 02:58:37 PM »
Nelson just announced in open court that for scheduling purposes, the state's rebuttal witness is now on for 2 p.m. on Thursday.  There will be no Frye action today.
I don't believe I can change the date in the title of this thread.
I appeal to the moderator to do so, if possible. Thanks.

Offline TalkLeft

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Re: Frye Hearing, June 20, 2013
« Reply #9 on: June 19, 2013, 11:09:24 PM »
Here's an interesting article on when  the trial courts will begin using Daubert. There are several scenarios of "what happens if expert depositions are taken prior to the Daubert effective date but trial begins after".

It predicts courts would liberally rule on continuance motions.

And suggests the defense could reopen depositions and amend motions to address Daubert.

Daubert was signed by the Governor around June 6  and becomes effective July 1.
GZ's trial has not yet begun (EG, Trial begins for double jeopardy purposes when all jurors are selected and sworn -- right before opening arguments. ) They are still having pre-trial hearings on the evidence.  By the time the jury is instructed and given the case to deliberate, the law will be in effect.

So why hasn't O'Mara amended his motion and asked the court to apply Daubert?

« Last Edit: June 20, 2013, 12:36:34 AM by TalkLeft »

Offline cboldt

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Re: Frye Hearing, June 20, 2013
« Reply #10 on: June 19, 2013, 11:21:06 PM »
Here's an interesting article on when  the trial courts will begin using Daubert. There are several scenarios of "what happens if expert depositions are taken prior to the Daubert effective date but trial begins after".

It predicts courts would liberally rule on continuance motions.

And suggests the defense could reopen depositions and amend motions to address Daubert.

So why hasn't O'Mara amended his motion and asked the court to apply Daubert?

Florida Chapter 2013 Law 107, based on H 7015, includes a clause that makes the effective date (whatever that means) July 1, 2013.

Do you think the experts are admissible under Frye?  I don't.

Assuming the standard is Daubert, the court could fabricate Daubert-style sophistry, just as it can fabricate Frye-style sophistry.  Either way, Frye or Daubert, we get a similar dance between the trial court and the appellate court.

Make-work for the lawyers.  Good paying make work, mind you.
« Last Edit: June 20, 2013, 12:51:31 AM by TalkLeft »

Offline jjr495

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Re: Frye Hearing, June 20, 2013
« Reply #11 on: June 20, 2013, 12:11:26 AM »
BDLR questioned jurors yesterday about how they would handle expert opinion. Do you suppose that he is hoping to have his experts testify under the pure opinion exception to the Frye test (Marsh v Valyou) in the event he loses after today's hearing?

Offline cboldt

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Re: Frye Hearing, June 20, 2013
« Reply #12 on: June 20, 2013, 12:30:34 AM »
BDLR questioned jurors yesterday about how they would handle expert opinion. Do you suppose that he is hoping to have his experts testify under the pure opinion exception to the Frye test (Marsh v Valyou) in the event he loses after today's hearing?

He might. Reich seems closer to the "pure opinion" category.  I don't think Owen gets the same chance at passing under the Pure Opinion Exception, because Owen asserts his conclusion is based on statistical "rule out" analysis of waveforms, and there is a body of science behind his software.

Offline TalkLeft

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Re: Frye Hearing, June 20, 2013
« Reply #13 on: June 20, 2013, 12:50:35 AM »
CBoldt, you are right the law goes into effect July 1. I forgot that when I wrote my response. So I just added a second argument I have been thinking about: The jury will be instructed on the law and begin deliberations July 1. Shouldn't they be instructed on the law that applies at that time -- especially when the Judge and parties know before trial begins that the law is changing?

I researched this a few weeks ago and it depends on whether the change is procedural or substantive. Usually, evidence rules are considered procedural which means it's up to the discretion of the judge which to apply (new law or old.)  And laws passed by the legislature have to be adopted by the Fla. Supreme Court. But there is an argument to be made that a rule that changes the evidence that would be admissible against a defendant in a way that reduces the state's burden, is substantive, and evidence that comes in under Frye but not Daubert could be such an example.

No, I don't think it's admissible under Frye. I would exclude it by finding it's not "otherwise admissible" under Florida's equivalent of Rule 702 because it's likely to confuse the jury, since neither can say with any certainty they believe it's Martin's voice.  But I don't trust Nelson to do that. I think Nelson may decide it is by saying the field of speaker identification/voice identification is not novel.  If she doesn't think it's new or novel, I think that will be the end of the discusison for her. Meaning she won't address whether the techniques or methodology are new and novel.

Darling v. State, 808 So. 2d 145 (Fla. 2002)

Quote
[The Frye] standard requires a determination, by the judge, that the basic underlying principles of scientific evidence have been sufficiently tested and accepted by the relevant scientific community. . . . "[T]he burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts at hand. . . . The general acceptance under the Frye test must be established by a preponderance of the evidence."Brim, 695 So. 2d at 272 (quoting Ramirez v. State, 651 So. 2d 1164, 1168 (Fla. 1995)). "Any doubt as to admissibility under Frye should be resolved in a manner that minimizes the chance of a wrongful conviction.

Offline TalkLeft

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Re: Frye Hearing, June 20, 2013
« Reply #14 on: June 20, 2013, 12:54:46 AM »
BDLR questioned jurors yesterday about how they would handle expert opinion. Do you suppose that he is hoping to have his experts testify under the pure opinion exception to the Frye test (Marsh v Valyou) in the event he loses after today's hearing?

I think he might as to Reich, but I don't see how he pulls that off with Owen since speaker/voice examination is deemed to be a forensic science and Owen  used his special Biometric software.   The new law substituting Daubert for Frye expressly says Marsh is overruled. There no longer will be the POE in Florida. That's one of the main reasons the legislature passed it, was to get rid of Marsh and the POE.

 

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