Author Topic: Frye Hearing, June 20, 2013  (Read 14713 times)

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Offline cboldt

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Re: Frye Hearing, June 20, 2013
« Reply #15 on: June 20, 2013, 04:18:03 AM »
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 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.

I don't think the jury is involved at all.  Admissibility is a question of law, and solely for the court to make.  If the court thinks it's okay to admit astrologers, then the jury will hear from astrologers.

The Florida legislature passed the expert witness admissibility law because the courts in Florida have made a mockery of "finding the truth" by admitting quacks as experts in trials.  Of course Nelson is going to admit Owen and Reich over the objections of Nakasone, French, Doddington and Wayman.  That's how Florida judges roll.  I think Nelson would find a way to admit them under the Daubert standard.  It would just be make work to recompose the arguments, opinion and order into Daubert terms, the outcome at trial would not change.  I don't think it matters what the standard of expert admissibility is, in this case, in this courtroom.  The state experts will be allowed to testify.

Off the topic a bit, I don't think the Daubert legislation will close the door to quack experts either.  Courts are able to create a diverse range of rationale to eviscerate legislation it does not approve of.  If the Florida courts think quack science is appropriate, and by most accounts they do, then the Florida courts, being willful, will continue to admit quack science under any new evidentiary standard.

In this case, Nelson can find that the techniques and methodology are not new or novel either by outright misrepresentation (ala "Crump is opposing counsel of sorts") or by limiting the scope of "techniques and methodology" to the math.  For example, she could find that more than one defense expert agrees that the GMM technique and method cited and used by Owen is not new or novel.  Just another way of saying what you did, that the field isn't novel - but she'll conflate "the techniques and methodology" with "the field."

Offline RickyJim

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Re: Frye Hearing, June 20, 2013
« Reply #16 on: June 20, 2013, 06:45:27 AM »
Has anybody looked up prior Frye decisions made by Judge Nelson?  To me, ruling for the prosecution in this case would be tantamount to abolishing both Frye and Daubert and using "if it quacks like a duck, let it in".  :(

Offline leftwig

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Re: Frye Hearing, June 20, 2013
« Reply #17 on: June 20, 2013, 07:10:20 AM »
I would be just fine in allowing Owen and Reich to testify as long as they weren't allowed to be called experts.  Something about saying the word expert to some jurors makes them think they must be telling the truth and while they will listen to the defenses experts, I guarantee at least a few of them will believe that if the judge let them testify as experts, they should be believed.

Offline nomatter_nevermind

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Re: Frye Hearing, June 20, 2013
« Reply #18 on: June 20, 2013, 11:27:20 AM »
I would be just fine in allowing Owen and Reich to testify as long as they weren't allowed to be called experts. 

Catch 22. If they aren't called experts, they aren't allowed to give opinion testimony.

Offline cboldt

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Re: Frye Hearing, June 20, 2013
« Reply #19 on: June 20, 2013, 01:29:11 PM »
The Frye hearing should be starting up again at 3:40 or so.  Mantei has been ordered to have Owen ready.  The court is in recess (15 minutes worth) until then.

Offline leftwig

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Re: Frye Hearing, June 20, 2013
« Reply #20 on: June 20, 2013, 01:39:21 PM »
Catch 22. If they aren't called experts, they aren't allowed to give opinion testimony.

Yeah, I get that.  IT just seems like with the Frye standard and the way it can be applied means that "expert" testimony might not really be that much of an expert on what they are testifying about. 


Offline jjr495

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Re: Frye Hearing, June 20, 2013
« Reply #21 on: June 20, 2013, 02:22:40 PM »

Offline Cylinder

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Re: Frye Hearing, June 20, 2013
« Reply #22 on: June 20, 2013, 02:25:18 PM »
Owen opens with his assurance that he talked to the software manufacturer and the looping is peachy with them. Zimmerman objects to hearsay, pointing out to the court that Owen admits to be no expert on the software algorithm. Court sustains.

Mantei elicits that Nakasone and Owen are currently in opposition on another matter. The state is trying to show bias by its own expert. That's helpful.

Cross.

West trying to get Owen on the same page with a document to which he is referring. Owen can't find the page. It's a report of Gaussian Mixture Model based method. Owen cannot find the document (cough). Owen refers to a "full-blown sales document." I kid you not. He's referring to the sales pitch. Alert the Nobel Prize Committee.

West wants to know if the illustration is an accurate representation of the Gaussian Mixture Model. Owen can't read it. Owen tries to push conversation toward high-level conclusion. West wants to go toward low-level methodology.

Offline Cylinder

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Re: Frye Hearing, June 20, 2013
« Reply #23 on: June 20, 2013, 02:27:25 PM »
West challenges Owen's "fundamentally flawed" method. State objects. Not rebuttal. Court agrees. Probably right.

West asks about fundamental math knowledge. Same objection and result.

Offline Cylinder

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Re: Frye Hearing, June 20, 2013
« Reply #24 on: June 20, 2013, 02:28:58 PM »
I think that the referring to a sales pitch alone instead of the underlying science excludes Owen. A solid appeal if this is allowed in.

Offline Cylinder

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Re: Frye Hearing, June 20, 2013
« Reply #25 on: June 20, 2013, 02:31:15 PM »
Last case with Owen v. Nakasone was in Miami - a federal case. Owen and West trades barbs.

West: "Dr. Owen...excuse me...Mr. Owen..."

Offline RickyJim

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Re: Frye Hearing, June 20, 2013
« Reply #26 on: June 20, 2013, 02:32:25 PM »
What in the world did Mantei think he was gaining by bringing back Owen?  The points made are very minor.

Offline Cylinder

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Re: Frye Hearing, June 20, 2013
« Reply #27 on: June 20, 2013, 02:33:34 PM »
More bickering...no real information here....

Offline cboldt

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Re: Frye Hearing, June 20, 2013
« Reply #28 on: June 20, 2013, 02:36:14 PM »
Zimmerman appearance waived, he leaves at 4:07.

Frye hearing begins.  Mantei goes to the "looping" issue.  Owen checked on the looping, says the term "looping" is by West.  Objection by West - hearsay.  Owen has asked somebody else, and that witness is not available for cross examination.  Maintei says Owen has not acknowledged he is not an expert in programming.  Nelson rules that Owen may not testify as to the conversation he had with a third party.  Whoa!

Next ... did Owen observe the testimony of Wayman?  Yes.  He showed a paper supposedly authored by Owen.  Yes.  Was that paper written by Owen? No.  Do you know it was assumed by Wayman to be authored by Owen?  Objection by West, that is a mischaracterization of Wayman's testimony.  West finds the transcript, Nelson is seeking the same.  West says Wayman's statement was that he received the document from West, that it was provided by the state in discovery, Wayman's testimony was that because it came from the state, that it was related to Owen, not authored by him.  He reviewed it, commented on it.  Now to Mantei - that paper is not a Tom Owen report.  (not much of an effect on Wayman's testimony or on Owen's bona fides)

Mantei asking questions.  Familiar with Wayman, Nakasone?  Yes as to Nakasone, no as to Wayman.  Mantei asks the relationship between Wayman and Nakasone.  Employee, employer.  Owen and Nakasone have been on opposing sides.

Mantei is done.  Cross exam by West.

Back to the document "not authored by Owen."  Are you familiar with that document?  Owen asks for the first page to be shown to him, he says he is not sure what that is.  West offers to read part of it.  West asks if Owen ahs all of the papaer work that Owen provided to the SAO in this case?  Yes.  West gives the title to Owen and reads the first paragraph.  "The EZ Voice system uses two ...."  The second paragraph reads "False Rejection, FR, is ..."  Owen recognizes the terms, but does not recognize the document.

Owen goes on to say that Wayman referred to figures in this paper, perhaps he will recognize the figures.  Still trying to get both West and Owen in sync as to what document is being referred to.  There is a figure on page 7, Gaussian Mixture Models based method, GMM (figure), shows that to Owen.   The document that Owen has includes only 6 pages.

West proffers a question, can Owen say if the figure in fact represents a GMM?  Owen sort of answers, but moves off to describe a document that is a marketing/sales document.  Owen wrote the sales document.  West again asks if Own can comment on the longer document, and is the illustration an accurate representation of GMM.  West can't identify the document that the state provided, other than it is a discussion of how the EZ Voice system works.  Owen asks if the document includes any opinions relating to the case.  No.  Owen does not know what purpose the document serves.

West says you heard Wayman's testimony that the figure on page 7 is fundamentally flawed.  Owen heard that.  Asked, do you agree?  He doesn't have the document.  West asks if Owen could "do the math" and Maintei objects as out of the scope of rebuttal.  Nelson upholds the objection because the state's direct examination was not on this subject.

West asks if it would be fair to say that Owen does not have the math background.  Objection.  Nelson says Owen has already testified that he is not a mathematician.  Nelson is going to limit cross exam to subjects covered in rebuttal.  Court has heard the testimony of Owen in exam and cross exam, and questioning today is limited to direct exam on rebuttal.

West moves to situations where Nakasone and Owen appeared in the same case.  Most recent was in Puerto Rico.  West and Owen get testy as to finishing answers.  Judge Moore in Miami, a federal case.  West wants to know the last case where Nakasone and Owen testified.  Funny start, "Dr., errrr, Mr. Owen."  Nelson says Owen is not going to talk about the substance of the testimony.  Nelson says, please don't cut him off in the middle of his answer.  What year?  1990's  He has somebody looking up the date.  West says that Owen said he used this software only in the last 3-4 years, so whatever he did in 1990's was not using the same method.  Owen: Year was 1999.  Admissibility hearing.  Voice ID was admitted.  Did not go to trial, was a plea bargain.  West asks, did you use the software in that case, that you used in this case?  Yes, Multispeech.  Nobody used EZ Voice in 1999.  No redirect.

Testimony concluded at 16:34.

Nelson asks if counsel wants to proceed to argument on the Frye hearing.  West has not prepared argument.

Mantei presents legal argument.

Offline cboldt

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Re: Frye Hearing, June 20, 2013
« Reply #29 on: June 20, 2013, 02:57:45 PM »
Mantei cites XXX (I missed it, probably Ramirez) and Sercy.  Arguing for Owen.

Basically that Fl Law favors admission, and let the jury sort it out.  Owen has analyzed the screams in this case.  Exclusion is a simpler process than ID.

Arguing for Reich.  Hired by newspapers.  None of his methods are new or novel.  Repeats that audibility (word ID) is an issue for the court, not subject to qualification as an expert.

None of what was used is new or novel.  The only thing new or novel is this criticism.  French says all the methods are in use and valid.  French is consistent with Owen as to ruling-out.  Doddington said a familiar listener has the best chance of voice ID.  Doddington disagrees with French.  If Reich has a bias, so do French and Doddington, because they ruled out making a finding without even listening to it.  Disagreement by itself is not a problem.

Mantei has a PowerPoint presentation, now that I switched over to the teevee stream.  Grab that for a better summary of Mantei's argument than I can possibly make!

Is not necessary the conclusion be generally accepted.  Frye allows opposite conclusions from experts using the same method.  It's for the jury to determine the credibility of the experts.  If the experts are really as bad as the defense says, then it should allow presentation to the jury.

West to make argument. at 16:48.  He promises to be brief, says the court took notes and knows the scope of Frye hearing.  Short delay while screen is moved back into the ceiling.  Owen has not prepared a report, we have not deposed him due to timing and fee.  Reich was disclosed at the last possible moment, got his report on May 10.  No substance in this argument, other than to make a record to continue.  We don't know Reich's methods or conclusions, but no other expert has claimed to find what he did.  The state had the preliminary report for a year.  Scrambling to get defense hands around the issue, and still don't have that.  H&H report has not been entered into evidence.  Nelson says all the court is going to consider is what has been entered into evidence (Owen and Reich).  So H&H are out.

Nakasone, FBI lab won't testify because the results are reliable enough.  Automated speaker recognition, Owen's method, is not reliable enough, says FBI. . . .

Bailing out (making audio recording of all this for reference, if I feel like a review), may make remarks when West gets around to legal argument, or when Nelson gets around to stating a ruling or timing.

 

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