Author Topic: Frye Hearing, June 20, 2013  (Read 14712 times)

0 Members and 1 Guest are viewing this topic.

Offline Cylinder

  • Hero Member
  • *****
  • Posts: 730
  • Rate Post +0/-0
  • IANAL
Re: Frye Hearing, June 20, 2013
« Reply #45 on: June 20, 2013, 04:20:56 PM »
Is Nelson's refusal to hear a sur-rebuttal a sign she intends to rule for the defense, another sign she dislikes West, of merely a sign of impatience?

Maybe, yes and yes. :)

Offline jjr495

  • Full Member
  • ***
  • Posts: 118
  • Rate Post +0/-0
Re: Frye Hearing, June 20, 2013
« Reply #46 on: June 20, 2013, 04:28:03 PM »
West was sure loaded for bear today. He was going to introduce the CNN interview and show that Owen didn't understand how his own software worked.
Mantei limited his rebuttal so that West couldn't cross on much material. That left Mantei with a fancy Powerpoint closing, including a picture of four pencils, while West had strewn notes on yellow legal pads.

Offline cboldt

  • Hero Member
  • *****
  • Posts: 1262
  • Rate Post +0/-0
Re: Frye Hearing, June 20, 2013
« Reply #47 on: June 20, 2013, 04:50:55 PM »
I saw somewhere that the State loses the chance for interlocutory appeal on a Frye ruling after the jury is sworn in. I can't find any such language in the appellate rules on this. Does anybody here know?

That turns out to be a hard question.  I don't know the answer.  Florida v. Gaines (Fla. 2000) involves a (granted) defense motion to suppress evidence, granted after the jury was sworn, appealed after the trial court dismisses the case.  Gaines is a bit of a procedural mess, but within the body of the case is discussion about the Florida Supreme Court created rules for interlocutory appeals pertaining to suppression of evidence.

Although only this Court may define the scope of interlocutory appeals, this Court's procedural rules do not provide authority for the State to appeal an order granting a motion to suppress during trial. See Savoie v. State, 422 So. 2d 308, 311 (Fla. 1982); see generally Fla. R. App. P. 9.140(c)(1). This is in contrast to rule 9.140(c)(1)(B), which authorizes appeals of trial court orders suppressing evidence before trial.


A couple points.  I have no clue if Gaines is still good law, and even if it is, it covers defense motion to suppress (fact) evidence; and a messy conclusion to the case that isn't (yet) present in Zimmerman's case.

I think, like O'Mara's motion to depose Crump, the hearing of a petition from the state will be at DCA's discretion.  Even if the law doesn't provide for it, I can't picture the state just taking a denial of their experts without moving for a stay, petitioning for a writ, etc.

Offline cboldt

  • Hero Member
  • *****
  • Posts: 1262
  • Rate Post +0/-0
Re: Frye Hearing, June 20, 2013
« Reply #48 on: June 20, 2013, 04:54:22 PM »
West was sure loaded for bear today. He was going to introduce the CNN interview and show that Owen didn't understand how his own software worked.

Turns out that would have been piling on.  Nelson stated that Owen already admitted that he did not know the math principles inside the software he was using.  Owen also said that the algorithms were proprietary, so, even if he understood the math in principle, he has no basis for saying what math was applied by the software.

Offline RickyJim

  • Hero Member
  • *****
  • Posts: 1580
  • Rate Post +0/-0
Re: Frye Hearing, June 20, 2013
« Reply #49 on: June 20, 2013, 05:10:38 PM »
is the following legally possible?  Nelson withholds ruling until either Owen or Reich hand in their reports.  If that happens before closing arguments, she will continue the hearing (perhaps as a Daubert, if after July 1) to decide on admissibility.  This way the whole business may just disappear since I doubt either will hand in a real report.

Offline jjr495

  • Full Member
  • ***
  • Posts: 118
  • Rate Post +0/-0
Re: Frye Hearing, June 20, 2013
« Reply #50 on: June 20, 2013, 05:15:03 PM »
Turns out that would have been piling on.  Nelson stated that Owen already admitted that he did not know the math principles inside the software he was using.  Owen also said that the algorithms were proprietary, so, even if he understood the math in principle, he has no basis for saying what math was applied by the software.
I agree with your comment and I also think it would not have swayed Nelson at all.
What I meant to say is that West was going to show that Owen did not understand the output of the EVB software. Mantei used the mechanic and DNA tech analogies, but the CNN interview shows that Owen can't even run and interpret the output of EVB correctly.

Offline TalkLeft

  • Administrator
  • Hero Member
  • *****
  • Posts: 1125
  • Rate Post +0/-0
    • TalkLeft: The Politics of Crime
Re: Frye Hearing, June 20, 2013
« Reply #51 on: June 20, 2013, 06:16:44 PM »
i doubt the state would try to appeal a denial of the Frye motion is that occurs. I don't even think the state is counting on Reich, and Owen doesn't do much for their case. It's not as if he says he has an opinion to a degree of scientific certainty that GZ is excluded from being the speaker. His opinion is couched in terms of probability. The defense will be able to cross examine him and expose the unreliability of his methodology and put on its own experts at trial to show the inadequacies of his testing (scream to words, too short a sample, different conditions).

The state has repeatedly said it does not want a continuance of this trial. Also, if it were to appeal and lose,  the test at the rescheduled trial date would be Daubert.

Also, in case I haven't mentioned this, I don't think Reich would be allowed to testify as to what words he heard on the tape. There is case law  that this is a jury fact finding issue and an expert cannot give an opinion as to words spoken on a recording. In US v. Timothy Naegele, (2007) a federal case out of DC, there was an issue about what a debtor testified to at a first creditors meeting in a bankruptcy. This was the exchange, with the questioned word  bolded:

Quote
MR. MERVIS: Do you have a car sir?
DEFENDANT: No. Ah, I've, I've
been renting a car from National Car (UI).
MR. MERVIS: In Florida and LA and
here or?
DEFENDANT: In LA primarily. Ah,
here, here, ah, ah, when I'm in Washington
I often use the Metro.
MR. MERVIS: Do you know what
your, your automobile rental payments
are?
DEFENDANT: They've been running
about a thousand a month.

The question that the expert was asked to address in his expert report was whether the defendant actually said "No" before he said "I've been renting a car from
National Car (UI). (UI is unintelligible)

From the opinion:

Quote
According to Mr. Lacey's report and testimony, he
analyzed that specific segment of the tape recording of
the Creditors Meeting to determine whether intelligible
voice information was present and could be reliably
transcribed. In the course of this work, he enhanced the
audio recording and repeatedly listened, with the aid of
head phones, to both the enhanced and unenhanced
versions. In addition to listening numerous times to both
versions of the recording -- a methodology described by
Mr. Lacey as "critical listening" -- Mr. Lacey also used
the methodologies of time waveform analysis and
spectrographic analysis. He described the former as a
methodology that shows time, amplitude and volume and
the latter as a methodology that shows time and (sound)
frequency. In the course of his spectrographic analysis,
compared the designated portion with certain other
portions of the audio recording where the word "no" also
allegedly was used. In some cases, he found similar
characteristics to the low level speech segment of the
designated portion and therefore concluded that these
portions also were unintelligible and could not be
transcribed. In other portions of the recording where the
word "no" was purportedly used, he found the word to
be intelligible.

Based on the three methodologies he employed, Mr.
Lacey concluded that "the designated portion contains no
indications of intelligible vocalizations, voice pitch, or
voice formant information. Therefore, if any
speech information exists in this portion, it cannot be
transcribed."

The court praised the expert's qualifications

Quote
Mr. Lacey clearly is an expert in forensic audio
examination and analysis. He is qualified to perform all
three of the tests he has performed in this case -- audio
enhancements of recordings, time waveform analysis, and
spectrographic analysis. There is nothing to suggest that
any of these tests or the [**10] methodology used by Mr.
Lacey in performing them is not reliable. He certainly is
qualified to explain any or all of these processes to the
jury to the extent the Court finds his testimony regarding
them relevant and helpful to the jury in performing its
responsibilities to find facts and resolve factual disputes.

Indeed, the government has no objection to Mr. Lacey
explaining the first methodology -- audio enhancement --
to the jury. Since both sides apparently intend to offer
enhancements of the audio recording of the May 23
Creditors Meeting in evidence at trial, the Court
concludes that an explanation of the enhancement process
by a recognized expert will be of assistance to the jury

With respect to the time waveform analysis and
spectrographic analysis, however, the Court concludes
that testimony by Mr. Lacey with respect to these
methodologies would be relevant and admissible only if
the Court permits the jury also to hear and consider Mr.
Lacey's opinion that the designated portion of the
recording of the Creditors Meeting "contains no
indications of intelligible vocalizations, voice pitch, or
voice formant information" and that the speech
information (if any) contained therein therefore
cannot reliably be transcribed

The  court excluded his opinion on what he heard on the tape

Quote
It is the jury's function to determine whether the
word "no" was stated by Mr. Naegele at the Creditors
Meeting in response to the question "Do you have a
car?". To permit Mr. Lacey to testify that he could not
hear the word "no" at that point in the recording of the
meeting would be an invasion of the jury's prerogative to
find the facts in this case. The jury is just as capable of
listening to the enhanced and unenhanced versions of the
audio recordings of the Creditors Meeting, and the jury
needs no assistance in deciding what it hears.

The court cites United States v. Mitchell, 311 U.S. App. D.C. 35,
49 F.3d 769, 780 (D.C. Cir. 1995) (The "district court was well within
its discretion in concluding that expert testimony was unnecessary to elucidate tape recorded conversations. Such material . . . is squarely within the traditional
province of the jury."); see also United States v. Libby, 2006 U.S. Dist. LEXIS 79828, 2006 WL 3095680 at *11..(That's the case of Scooter Libby)

The court concludes

Quote
The Court therefore will not permit Mr. Lacey
to testify about waveform analysis, spectrographic
analysis  or the conclusions he reached from
engaging in these methodologies. Nor will it permit him
to offer an opinion that the word "no" was unintelligible
or was not capable of being transcribed at the relevant
point in the recording of the Creditors Meeting

I don't think Reich, even if allowed to testify as to some things, would be allowed to say what he heard on the tape. Unless, of course, Florida law is different. But I think identifying what was said is very different from who said it, and it's the jury's job to determine on its own what was said. An expert is unnecessary. it would be like having an expert to look at a photo and opine it was a photo of the defendant. Jurors have eyes -- and ears. Even though Naegele was decided under Daubert, since it was decided under Rule 702 which is the same as Florida's rule, the outcome should be the same. It doesn't come in because it's confusing and not helpful to the jury. In fact, the Naegle court even cited a Frye case for its ruling

Quote
The Court has read the two cases provided to it
by the defendant regarding spectrography. The
Supreme Court of Alaska upheld a trial court's
decision that spectrography was generally
accepted within the relevant scientific community.
See State v. Coon, 974 P.2d 386, 402 (Alaska
1999). That says nothing, however, about the
relevance or potential assistance to the jury of Mr.
Lacey's specific opinion in this matter -- whether
or not the defendant said "No" in response to a
specific question.

Quote
The court in United States v.
Maivia -- a decision rendered pre-Daubert when
Frye v. United States, 54 App. D.C. 46, 293 F.
1013, 1014 (D.C. Cir. 1923), was the law in the
federal courts -- permitted a spectrography expert
to testify for voice identification purposes. See
United States v. Maivia, 728 F. Supp. 1471, 1478
(D. Haw. 1990). Again, that is a different inquiry
from the issue before the jury in this case, as to
which Mr. Lacey's testimony would not be
helpful.

Offline TalkLeft

  • Administrator
  • Hero Member
  • *****
  • Posts: 1125
  • Rate Post +0/-0
    • TalkLeft: The Politics of Crime
Re: Frye Hearing, June 20, 2013
« Reply #52 on: June 20, 2013, 06:21:59 PM »
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.

I put this in the wrong thread yesterday in responding to your question:

check out some of the cases here. One is this 7th Circuit case:

Quote
the Seventh Circuit concluded the trial court did not abuse its discretion in excluding the additional testimony. The circuit restated the role of rebuttal evidence: “The proper function of rebuttal evidence is to contradict, impeach or defuse the impact of the evidence offered by an adverse party.” Peals, 535 F.3d at 630 (quoting United States v. Grintjes, 237 F.3d 876, 879 (7th Cir. 2001) (internal quotation marks omitted)). Under this standard, “Testimony offered only as additional support to an argument made in a case in chief, if not offered ‘to contradict, impeach or defuse the impact of the evidence offered by an adverse party,’ is improper on rebuttal.” Peals, 535 F.3d at 630 (quoting Grintjes, 237 F.3d at 879). On the record, the trial court did not err.

Florida's rule is  here


Offline nomatter_nevermind

  • Hero Member
  • *****
  • Posts: 5449
  • Rate Post +0/-0
Re: Frye Hearing, June 20, 2013
« Reply #53 on: June 20, 2013, 10:26:44 PM »
Strange why Owen and Reich didn't test the Trayvon Martin sample.

Reich compared the 911 recording to a sample of Martin's voice from his phone (p. 2 of Reich's report.)

I don't know what you mean by his not testing the sample.

Offline nomatter_nevermind

  • Hero Member
  • *****
  • Posts: 5449
  • Rate Post +0/-0
Re: Frye Hearing, June 20, 2013
« Reply #54 on: June 21, 2013, 05:38:41 AM »
Is Nelson's refusal to hear a sur-rebuttal a sign she intends to rule for the defense, another sign she dislikes West, of merely a sign of impatience?

According to the WFTV talking heads, the courthouse has a policy of turning off the AC at a certain time in the evening, regardless of who is still using the building. Maybe Nelson just didn't want to sit in that robe without AC. I sure wouldn't.

Nelson also pointed out that the prosecution has the burden, as West had said, and were entitled to speak last. If she let West speak again, she would have to let Mantei speak again. Without AC.

Offline RickyJim

  • Hero Member
  • *****
  • Posts: 1580
  • Rate Post +0/-0
Re: Frye Hearing, June 20, 2013
« Reply #55 on: June 21, 2013, 05:52:24 AM »
Reich compared the 911 recording to a sample of Martin's voice from his phone (p. 2 of Reich's report.)

I don't know what you mean by his not testing the sample.
Sorry, forgot about that.  I don't remember the TM sample being brought up with Owen and I find that strange since, as I point out, it would be easy since he had the looped scream sample already prepared for comparison.  He would just need to raise the pitch of the Martin sample as he did with the Zimmerman. 

Offline nomatter_nevermind

  • Hero Member
  • *****
  • Posts: 5449
  • Rate Post +0/-0
Re: Frye Hearing, June 20, 2013
« Reply #56 on: June 21, 2013, 06:20:19 AM »
I don't remember the TM sample being brought up with Owen and I find that strange since, as I point out, it would be easy since he had the looped scream sample already prepared for comparison.

I think Owen's intended testimony is just a reiteration of the results he got working for the media. I'm fairly sure there has been no mention of Martin's voice sample being provided to him. I think at one point he specifically said that didn't have it at the time he did the work for the media, which I think was before Corey got the case.

I don't find it strange. If I were one of the prosecutors, I wouldn't want Owen testing Martin's voice.
« Last Edit: June 21, 2013, 06:23:42 AM by nomatter_nevermind »

Offline cboldt

  • Hero Member
  • *****
  • Posts: 1262
  • Rate Post +0/-0
Re: Frye Hearing, June 20, 2013
« Reply #57 on: June 21, 2013, 12:00:44 PM »
The docket sheet that summarizes yesterday's activities includes this entry (edited to remove extraneous material):

06/20/2013      MNFD    -- ... -COURT WILL RULE AS TO FRYE HEARING ON FRIDAY, JUNE 21, 2013.

Offline Redbrow

  • Sr. Member
  • ****
  • Posts: 332
  • Rate Post +0/-0
Re: Frye Hearing, June 20, 2013
« Reply #58 on: June 21, 2013, 12:30:43 PM »
I think Owen's intended testimony is just a reiteration of the results he got working for the media. I'm fairly sure there has been no mention of Martin's voice sample being provided to him. I think at one point he specifically said that didn't have it at the time he did the work for the media, which I think was before Corey got the case.

I don't find it strange. If I were one of the prosecutors, I wouldn't want Owen testing Martin's voice.
So you don't think the prosecution actually believes Trayvon is the screamer on the 911 recording?
If they believed it was Martin, they would want to verify it by running it through the EZbake software.

So either they ran it and it was a worse match than Zimmerman so they withheld the fact or they never believed it was Trayvon to begin with and did not risk testing it with EZbake. They are acting in bad faith at minimum either way.

Offline nomatter_nevermind

  • Hero Member
  • *****
  • Posts: 5449
  • Rate Post +0/-0
Re: Frye Hearing, June 20, 2013
« Reply #59 on: June 21, 2013, 12:47:21 PM »
So you don't think the prosecution actually believes Trayvon is the screamer on the 911 recording?

I don't know what they think. They might think different things.


 

Site Meter
click
tracking