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George Zimmerman Trial Coverage => Daily Trial Proceedings => Topic started by: jjr495 on June 18, 2013, 07:04:50 PM

Title: Frye Hearing, June 20, 2013
Post by: jjr495 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.
Title: Re: Frye Hearing, June 19, 2013
Post by: jjr495 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 (http://works.bepress.com/cgi/viewcontent.cgi?article=1000&context=sanjay_patil) on how speaker context affects formants and degrades speaker recognition. He should also introduce the Reynolds paper (http://speech.ee.ntu.edu.tw/previous_version/Speaker%20Verification%20Using%20Adapted%20Gaussain%20Mixture%20Models.pdf) 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? (http://speechpro-usa.com/product/1129)
Title: Re: Frye Hearing, June 19, 2013
Post by: nomatter_nevermind 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 (http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0090/Sections/0090.612.html)
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.
Title: Re: Frye Hearing, June 19, 2013
Post by: nomatter_nevermind 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 (http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0090/Sections/0090.706.html)
Quote
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.
Title: Re: Frye Hearing, June 19, 2013
Post by: cboldt 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.
Title: Re: Frye Hearing, June 19, 2013
Post by: nomatter_nevermind 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.'
Title: Re: Frye Hearing, June 19, 2013
Post by: annoyedbeyond 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".

Title: Re: Frye Hearing, June 19, 2013
Post by: cboldt 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.
Title: Re: Frye Hearing, June 19, 2013
Post by: jjr495 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.
Title: Re: Frye Hearing, June 20, 2013
Post by: TalkLeft on June 19, 2013, 11:09:24 PM
Here's an interesting article (http://www.mondaq.com/unitedstates/x/244992/court+procedure/What+Lies+Ahead+As+Florida+Transitions+To+Daubert) 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?

Title: Re: Frye Hearing, June 20, 2013
Post by: cboldt on June 19, 2013, 11:21:06 PM
Here's an interesting article (http://www.mondaq.com/unitedstates/x/244992/court+procedure/What+Lies+Ahead+As+Florida+Transitions+To+Daubert) 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 (http://laws.flrules.org/2013/107), 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.
Title: Re: Frye Hearing, June 20, 2013
Post by: jjr495 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) (http://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/c0d731e03de9828d852574580042ae7a/00d34c3a55321f4a852579a0005baa1b!OpenDocument&Highlight=0,*) in the event he loses after today's hearing?
Title: Re: Frye Hearing, June 20, 2013
Post by: cboldt 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) (http://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/c0d731e03de9828d852574580042ae7a/00d34c3a55321f4a852579a0005baa1b!OpenDocument&Highlight=0,*) 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.
Title: Re: Frye Hearing, June 20, 2013
Post by: TalkLeft 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.
Title: Re: Frye Hearing, June 20, 2013
Post by: TalkLeft 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) (http://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/c0d731e03de9828d852574580042ae7a/00d34c3a55321f4a852579a0005baa1b!OpenDocument&Highlight=0,*) 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.
Title: Re: Frye Hearing, June 20, 2013
Post by: cboldt 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."
Title: Re: Frye Hearing, June 20, 2013
Post by: RickyJim 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".  :(
Title: Re: Frye Hearing, June 20, 2013
Post by: leftwig 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.
Title: Re: Frye Hearing, June 20, 2013
Post by: nomatter_nevermind 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.
Title: Re: Frye Hearing, June 20, 2013
Post by: cboldt 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.
Title: Re: Frye Hearing, June 20, 2013
Post by: leftwig 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. 

Title: Re: Frye Hearing, June 20, 2013
Post by: jjr495 on June 20, 2013, 02:22:40 PM
Link to document currently in question. (http://www.easyvoicebiometrics.com/docs/evbadditionalinfo.pdf)
Title: Re: Frye Hearing, June 20, 2013
Post by: Cylinder 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.
Title: Re: Frye Hearing, June 20, 2013
Post by: Cylinder 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.
Title: Re: Frye Hearing, June 20, 2013
Post by: Cylinder 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.
Title: Re: Frye Hearing, June 20, 2013
Post by: Cylinder 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..."
Title: Re: Frye Hearing, June 20, 2013
Post by: RickyJim 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.
Title: Re: Frye Hearing, June 20, 2013
Post by: Cylinder on June 20, 2013, 02:33:34 PM
More bickering...no real information here....
Title: Re: Frye Hearing, June 20, 2013
Post by: cboldt 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.
Title: Re: Frye Hearing, June 20, 2013
Post by: cboldt 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.
Title: Re: Frye Hearing, June 20, 2013
Post by: cboldt on June 20, 2013, 03:00:33 PM
ROTFL.  Reich's report should have started, "It was a dark and stormy night."

This is a good closing by West.  Anybody have a suggested site where I can upload the audio?  Or a place I can e-mail it so somebody else can post/host it?
Title: Re: Frye Hearing, June 20, 2013
Post by: Cylinder on June 20, 2013, 03:01:34 PM
West is the strongest he's ever been here. Very convincing argument.

"Dark and stormy night" indeed.
Title: Re: Frye Hearing, June 20, 2013
Post by: Cylinder on June 20, 2013, 03:04:37 PM
SoundCloud (http://soundcloud.com/tour/widgets)
Title: Re: Frye Hearing, June 20, 2013
Post by: Cylinder on June 20, 2013, 03:06:02 PM
Damnit West, stay off differing opinions and back to methodological flaws. Opinion isn't Frye territory.
Title: Re: Frye Hearing, June 20, 2013
Post by: Cylinder on June 20, 2013, 03:11:50 PM
Reich attributes behavioral characteristics for which is has no expertise.
Title: Re: Frye Hearing, June 20, 2013
Post by: RickyJim on June 20, 2013, 03:13:46 PM
West so far has not said that there is no scientific way to identify a screamer by comparing screams with anything else, even other screams.  That is why Owen and Reich don't satisfy Frye.
Title: Re: Frye Hearing, June 20, 2013
Post by: Cylinder on June 20, 2013, 03:17:16 PM
The facts of Ramirez is the best argument here. Just because the label is accepted doesn't mean the methodology is.
Title: Re: Frye Hearing, June 20, 2013
Post by: cboldt on June 20, 2013, 03:24:49 PM
Only Owen has testified the method is accepted.  All the other experts say it (EZ Voice biometrics) is not, and Owen can;t explain how he reaches the conclusion that his method (EZ Voice) is scientifically valid.

West now ties this to Ramirez.  First part, is there a methodology?  Aural spectrographic, aural listening have been around.  Automated speaker recognition is getting traction, but not there yet.  But, even if you assume the method is generally accepted (Owen's is not, or critical listening alone which is not), under Frye, it is not just the method, but application of the method to the facts of the case, and if that is not accepted, then it is new and novel, and it is up to the proponent to prove propriety of the method/application.

In Ramirez, the tool mark testimony was not admitted, even though tool mark is admitted, the application in the Ramirez case was new and novel.

Burden is on Maintei to show the method is accepted.  Mantei is relying on Owen and Reich to validate their own methods.  Courtroom is not a laboratory.  The court has to do a legal reliability analysis.  The court has to consider the effect on the jury, will prejudice outweigh probative value?  Or would it confuse the jury?  State's experts oppose each other on the words said.  Most jurors are aware of the recordings.  Some were aware the parties were litigating admissibility of the voice experts.

This evidence must be excluded on (Rule) 403 grounds.  It is not helpful.  It will confuse them.  Minimal probative value.

West says he is going to sit down.  The court has been very patient.  He asks the court to exclude the testimony.

Rebuttal by Maintei.  403 says "substantial risk of unfair prejudice."  PhD not required to be an expert.  Reich does have a tentative opinion; and none of the other experts have listened to the NEN call - Doddington did, says Nelson.  Mantei rebuts the defense whinge about timing (which isn't an issue for Frye purposes).

Title: Re: Frye Hearing, June 20, 2013
Post by: RickyJim on June 20, 2013, 03:27:32 PM
Strange why Owen and Reich didn't test the Trayvon Martin sample.  Owen has the scream section looped for comparison so it should be a snap for him to carry it out.  Neither lawyer wants to mention this.
Title: Re: Frye Hearing, June 20, 2013
Post by: cboldt on June 20, 2013, 03:30:07 PM
Mantei has no objection to defense experts.  They can come in.

Mantei says if any expert had said Zimmerman was screaming (Hello! H&H said that), the defense would not be complaining the testimony didn't meet the Frye standard.

Mantei done at 5:27.  West wanted to surrebut.  Nelson says no, she has enough.  She will review her notes, and expects to have an order tomorrow.  Court in recess until 9 am tomorrow, several motions and the Frye result.

Title: Re: Frye Hearing, June 20, 2013
Post by: MJW on June 20, 2013, 04:03:16 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?
Title: Re: Frye Hearing, June 20, 2013
Post by: cboldt on June 20, 2013, 04:07:26 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?

I don't think West had anything to add that would play in the legal calculus.  He might have rebutted the contention that no expert heard Zimmerman screaming, H&H claimed to.

I'm biased to think Nelson will rule for the state just to keep the trial from being put on hold while the state appeals denail of the expert.  If she buys the defense argument, she sure as H E double toothpicks isn't going to admit it.
Title: Re: Frye Hearing, June 20, 2013
Post by: jjr495 on June 20, 2013, 04:12:52 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?
I was wondering the same thing. I think she may rule for the defense. The testimony has been so overwhelming and clear that no science can identify the screams. Nelson seems to me to be a "law and order" judge likely to side with law enforcement and the state. That is why I think the defense having the FBI, someone with NSA top secret security, and the head of DOD's national biometric lab may have had a big impact on Nelson's decision.
Title: Re: Frye Hearing, June 20, 2013
Post by: jjr495 on June 20, 2013, 04:17:05 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?
Title: Re: Frye Hearing, June 20, 2013
Post by: jjr495 on June 20, 2013, 04:20:24 PM
I was wondering the same thing. I think she may rule for the defense. The testimony has been so overwhelming and clear that no science can identify the screams. Nelson seems to me to be a "law and order" judge likely to side with law enforcement and the state. That is why I think the defense having the FBI, someone with NSA top secret security, and the head of DOD's national biometric lab may have had a big impact on Nelson's decision.

Also Nelson helped the defense by interjecting that Reich has not completed his report and that Doddington did look at the spectrograms. Both seem to me to be good signs for the defense.
Title: Re: Frye Hearing, June 20, 2013
Post by: Cylinder 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. :)
Title: Re: Frye Hearing, June 20, 2013
Post by: jjr495 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.
Title: Re: Frye Hearing, June 20, 2013
Post by: cboldt 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 (http://www.floridasupremecourt.org/decisions/pre2004/ops/sc95738.pdf) (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.
Title: Re: Frye Hearing, June 20, 2013
Post by: cboldt 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.
Title: Re: Frye Hearing, June 20, 2013
Post by: RickyJim 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.
Title: Re: Frye Hearing, June 20, 2013
Post by: jjr495 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.
Title: Re: Frye Hearing, June 20, 2013
Post by: TalkLeft 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 (http://www.gpo.gov/fdsys/pkg/USCOURTS-dcd-1_05-cr-00151/pdf/USCOURTS-dcd-1_05-cr-00151-9.pdf), (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.
Title: Re: Frye Hearing, June 20, 2013
Post by: TalkLeft 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 (http://federalevidence.com/taxonomy/term/314). One is this 7th Circuit case (http://tinyurl.com/n4na4wx):

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 (http://tinyurl.com/m6prte5)

Title: Re: Frye Hearing, June 20, 2013
Post by: nomatter_nevermind 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. (http://www.gzdocs.com/documents/0513/051013_reich_report.pdf))

I don't know what you mean by his not testing the sample.
Title: Re: Frye Hearing, June 20, 2013
Post by: nomatter_nevermind 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.
Title: Re: Frye Hearing, June 20, 2013
Post by: RickyJim 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. (http://www.gzdocs.com/documents/0513/051013_reich_report.pdf))

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. 
Title: Re: Frye Hearing, June 20, 2013
Post by: nomatter_nevermind 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.
Title: Re: Frye Hearing, June 20, 2013
Post by: cboldt 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.
Title: Re: Frye Hearing, June 20, 2013
Post by: Redbrow 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.
Title: Re: Frye Hearing, June 20, 2013
Post by: nomatter_nevermind 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.

Title: Re: Frye Hearing, June 20, 2013
Post by: MJW on June 21, 2013, 01:31:25 PM
So you don't think the prosecution actually believes Trayvon is the screamer on the 911 recording?

If they actually believe Martin was screaming in terror for half a minute and then Zimmerman shot him, how would that not be first degree murder?
Title: Re: Frye Hearing, June 20, 2013
Post by: jjr495 on June 21, 2013, 01:59:25 PM
If they actually believe Martin was screaming in terror for half a minute and then Zimmerman shot him, how would that not be first degree murder?
Crump seems to agree with you at 7:20 in this interview. (http://www.nbcnews.com/id/45755884/vp/52062757#52062757)
However, he goes on to make clear that he doesn't have a clear idea as to what did actually happen.
Title: Re: Frye Hearing, June 20, 2013
Post by: cboldt on June 21, 2013, 02:18:33 PM
If they actually believe Martin was screaming in terror for half a minute and then Zimmerman shot him, how would that not be first degree murder?

I think Murder 1 breaks down for want of premeditation.  IIRC Jeralyn did a piece on this, and having only short term contact with a person (i.e., Martin was a stranger) precludes a charge of 1st degree murder.

The statute:

1. When perpetrated from a premeditated design to effect the death of the person killed or any human being


The jury instruction:

"Killing with premeditation" is killing after consciously deciding to do so.  The decision must be present in the mind at the time of the killing.  The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the killing.  The period of time must be long enough to allow reflection by the defendant.  The premeditated intent to kill must be formed before the killing.

The question of premeditation is a question of fact to be determined by you from the evidence.  It will be sufficient proof of premeditation if the circumstances of the killing and the conduct of the accused convince you beyond a reasonable doubt of the existence of premeditation at the time of the killing.


Then there is the fact that Murder one is a capital offense, and Corey would have had to engage the services of a grand jury to obtain an indictment.
Title: Re: Frye Hearing, June 20, 2013
Post by: jjr495 on June 21, 2013, 02:25:32 PM
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.

I think the Florida Supreme Court is saying pretty much the same thing in Martinez V State (761 So. 2d 1074; 2000 Fla. LEXIS 1218; 25 Fla. L. Weekly S 471)
Quote
[HN12] Preliminarily, the trial court must determine that the unintelligible
portions  [*1086]  of the tape do not render the whole recording untrustworthy.
See Odom, 403 So. 2d at 940; Henry, 629 So. 2d at 1059; Harris, 619 So. 2d at
342. [**32]  As for the transcript, trial courts should exercise extreme caution
before allowing transcripts of recordings to be viewed by the jury. See Robinson
, 707 F.2d at 876; Slade, 627 F.2d at 302. The preferred approach is for the
parties to stipulate to the accuracy of the transcript. See Slade, 627 F.2d at
302. If there is a dispute as to the accuracy, the trial court should make an
independent pretrial determination of the accuracy of the transcript after
hearing from persons who can properly testify as to its accuracy. See Robinson,
707 F.2d at 876; Slade, 627 F.2d at 302. Those who may be able to verify the
accuracy of the transcript are: (1) the actual participants to the conversation;
or (2) those who listened to or overheard the conversation as it was being
recorded, so long as such persons can establish that the quality of the
conversation that they overheard or listened to was better at the time they
overheard it than the quality of the tape recording.
So I guess Zimmerman or W11 could authenticate what was said.
Title: Re: Frye Hearing, June 20, 2013
Post by: MJW on June 21, 2013, 02:28:02 PM
I think Murder 1 breaks down for want of premeditation.

GZ would have had at least 30 seconds to think about what he was going to do. I've often heard premeditation can occur in a moment.
Title: Re: Frye Hearing, June 20, 2013
Post by: TalkLeft on June 21, 2013, 03:06:00 PM
Let's keep this to the Frye hearing please.

Is the ruling out? It's 5pm ET. She said this morning she expected to have it out today.
Title: Re: Frye Hearing, June 20, 2013
Post by: cboldt on June 21, 2013, 03:11:37 PM
Is the ruling out? It's 5pm ET. She said this morning she expected to have it out today.

It might be, we don't know.  It isn't up at the court's pages (but those usually lag by a day), it isn't up at GZLegal (but that hasn't been updated since the 6th of June), and I know of no news media reports that state it has been published (I have a google Zimmerman aggregator open).
Title: Re: Frye Hearing, June 20, 2013
Post by: nomatter_nevermind on June 21, 2013, 03:44:50 PM
I'm following Rene Stutzman and Kathi Belich on Twitter. Belich is the one whose tweets I've been tagging 'WFTV' on the updates, since her name isn't widely known. I expect they will have the news as soon as anyone. They are probably both at the courthouse now.
Title: Re: Frye Hearing, June 20, 2013
Post by: nomatter_nevermind on June 21, 2013, 04:12:53 PM
About 6:08, Kathi Belich tweeted 'no ruling yet'.
Title: Re: Frye Hearing, June 20, 2013
Post by: nomatter_nevermind on June 21, 2013, 04:18:00 PM
I'm wondering if Nelson's chambers have a bathroom with a bathtub. After all the aggravation West gave her, she might have taken a warm bath to relax, and fell asleep . . .
Title: Re: Frye Hearing, June 20, 2013
Post by: ding7777 on June 21, 2013, 05:40:34 PM
Does Judge Nelson have clerks to (help) write her decision or does she do it all herself?
Title: Re: Frye Hearing, June 20, 2013
Post by: jjr495 on June 21, 2013, 07:50:42 PM
I think the Florida Supreme Court is saying pretty much the same thing in Martinez V State (761 So. 2d 1074; 2000 Fla. LEXIS 1218; 25 Fla. L. Weekly S 471)So I guess Zimmerman or W11 could authenticate what was said.
Oops. Sorry. Just learning how to properly use LexisNexis. I should have read the footnote at the end of the paragraph I quoted.
Quote
5 We do not address the situation where an expert witness professionally skilled in understanding inaudible and indistinguishable tape recordings testifies that the transcript is an accurate rendition of the tape recording. See Henry v. State, 629 So. 2d 1058, 1059 (Fla. 5th DCA 1993); Harris v. State, 619 So. 2d 340, 343 (Fla. 1st DCA 1993). The considerations and procedures used in such cases to determine if a transcript is admissible are beyond the scope of this opinion.
And Henry v State reads:
Quote
In regard to admissibility of the transcript of a tape, the law of Florida requires authentication by one of two methods. The person who prepared the transcript could testify that he witnessed the events recited in the transcript and thus had personal knowledge that the transcript was an accurate rendition of the tape-recording, or an expert witness professionally skilled in understanding indistinguishable taped conversations could testify that the transcript was an accurate rendition of the tape-recording

So it does seem that Florida may be different in allowing speech experts to provide transcriptions.
Title: Re: Frye Hearing, June 20, 2013
Post by: RickyJim on June 21, 2013, 08:25:20 PM
Did Reich supply any evidence that he is "an expert witness professionally skilled in understanding indistinguishable taped conversations".
Title: Re: Frye Hearing, June 20, 2013
Post by: DebFrmHell on June 21, 2013, 09:54:53 PM
I don't know what they think. They might think different things.

I remember back at a hearing in February or March BDLR can up with the two voice theory, the last scream being Martin's and that comes from H & H? 
Title: Re: Frye Hearing, June 20, 2013
Post by: jjr495 on June 21, 2013, 11:15:31 PM
I remember back at a hearing in February or March BDLR can up with the two voice theory, the last scream being Martin's and that comes from H & H?
H&H have Martin's voice at the beginning and Zimmerman at the end. Reich has Zimmerman at the beginning and Martin at the end. Owen assumes they all came from one person. Three State experts. Three contradictory reports.
Title: Re: Frye Hearing, June 20, 2013
Post by: ding7777 on June 22, 2013, 05:51:57 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?

IIRC, the using the voice experts will add  2 weeks to the trial.  Nelson seems to want this trial over as quickly as possible
Title: Re: Frye Hearing, June 20, 2013
Post by: cboldt on June 22, 2013, 06:11:33 AM
IIRC, the using the voice experts will add  2 weeks to the trial.  Nelson seems to want this trial over as quickly as possible

The expert testimony is projected to add one week.  Th state and defense have given a 2-4 week estimate of total duration.  My guess is that they mean and maybe have expressed to Nelson, 2-3 weeks if no experts, 3-4 weeks if the voice experts are admitted.

I don't think Nelson had any particular concern over the previous estimate of 4-6 weeks, other than for purposes of the cost of sequestration.  And, O'Mara has said that the previous estimate of 4-6 weeks included jury selection, which took 2 weeks for all practical purposes.

She won't say "no experts" in order to make the trial shorter.  Plus, a "no experts" decision runs the risk of the state appealing that decision to the DCA, and pushing the end of the trial farther out into the future.  Meaning that a "no experts" ruling creates a trial that could take longer than the 4 weeks if the experts are admitted.

jjr495 wondered if the state is allowed to appeal now that the trial has officially started (swearing in the jury).  That's a good question, but I think the state would appeal an adverse ruling even if the end result is the DCA ruling that it won;t visit that issue due to the untimeliness.  I think the DCA would take the appeal.  It is not the state's fault that Nelson ran the jury selection and Frye hearing in the same week, and it is not the state's fault that the court swore in the jury before rendering a decision on admissibility of experts.  The state has a "legally/technically" valid point that its case would be prejudiced if it can't present its experts; and that if the jury renders a not-guilty verdict, the state is precluded from conducting another trial.

If Nelson rules against the defense, and allows the experts, the defense has no right to appeal until after the trial concludes.

So, from a timing standpoint, assuming Nelson wants to get this over with quickest, the preferred decision is to rule in favor of the state and admit the experts.
Title: Re: Frye Hearing, June 20, 2013
Post by: cboldt on June 22, 2013, 06:17:42 AM
H&H have Martin's voice at the beginning and Zimmerman at the end. Reich has Zimmerman at the beginning and Martin at the end. Owen assumes they all came from one person. Three State experts. Three contradictory reports.

A non-important observation about the role of H&H in this proceeding.  Since the state did not attempt to enter their testimony in the Frye hearing, Nelson is acting as though H&H's report does not exist.  So when Mantei claimed that the defense would love to have an expert who said the voice was Zimmerman, and that no expert made that conclusion (a conclusion that H&H did make, albeit with a substantial degree of uncertainty attached), Nelson will turn a deaf ear to being told that H&H report, which is on the record but not in the Frye hearing, contradicts Mantei.  What Mantei implied about no expert finding the voice to be Zimmerman is not true, but from Nelson's point of view, it is true.

Very slimy on Nelson's part.
Title: Re: Frye Hearing, June 20, 2013
Post by: nomatter_nevermind on June 22, 2013, 06:51:45 AM
What Mantei implied about no expert finding the voice to be Zimmerman is not true, but from Nelson's point of view, it is true.

I don't see how that point is relevant. It was a cheap shot at the other side by Mantei. But I don't see how it's being true, or not true, has any bearing on whether the state's evidence meets the Frye standard.

Quote
Very slimy on Nelson's part.

Exactly what has Nelson done that you consider slimy?
Title: Re: Frye Hearing, June 20, 2013
Post by: RickyJim on June 22, 2013, 08:07:51 AM
I think the performance of West and O'Mara in the Frye hearing left much to be desired.  They diluted their experts' testimony and I am sure most on this jury would not be paying attention and would miss the punch line if they did the same thing in front of them.  Nelson can at least read the CVs so why bother to spend hours having them present them?  West sounded particularly lame when he went into Owen's financial stake in the software he used while he had so many better, more important complaints.  Here is what was not asked or emphasized.
Title: Re: Frye Hearing, June 20, 2013
Post by: MJW on June 22, 2013, 02:17:38 PM
The post also points out the Castillo case, which recedes from Ramirez.

It was the law review article that said Castillo "retreated" from Ramirez. The court, itself, cited Ramirez without giving any indication there was any disagreement, much less an intention to "recede" from the previous decision. The dissent also doesn't mention this supposed receding.

I admit that there are statements in Castillo that seem at odds with Ramirez. I think, though, based on the court's discussion of the scientific evidence, that what the court meant was that once the methodology has proven acceptable, the experts' conclusions derived from the methodology aren't subject to the Frye test. At one point, the court says:

Quote
It is clear that the Castillos do not need to present epidemiological studies to meet their burden. It is also clear that there were at least three studies at the time of the Frye hearing that the Castillos' experts considered and then deemed inconclusive to establish a causal link between benomyl exposure and microphthalmia, or lack thereof. DuPont and Pine Island's objections are to the conclusions the Castillos' experts reached, not the methodology itself.

(Also, the Florida supreme court seems to be very plaintiff-friendly when it comes to medical malpractice suits and the like. They seem to bend the rules a bit in these cases to achieve their preferred result. As I understand it, that's why the legislature shoved Daubert down their throats.)

Title: Re: Frye Hearing, June 20, 2013
Post by: nomatter_nevermind on June 23, 2013, 01:30:09 AM
Cboldt, are you going to answer my question? It wasn't rhetorical. I don't understand what you were talking about. (http://forums.talkleft.com/index.php/topic,2469.msg112498.html#msg112498)

You have accused Judge Nelson of committing, or contemplating, some impropriety, using nasty language. Do you not feel an obligation to support that, or retract it?