Judge Debra Nelson today ruled that the testimony of Mr. Tom Owens and Dr. Alan Reich, the prosecution’s experts in the field of speech recognition and speaker identification, will not be admissible at trial because they have failed to meet the requirements of Frye.  The Frye standard requires that an expert’s methodology be generally accepted, and not new or novel, within relevant scientific community.

The ruling cannot have come as a great surprise to anyone who heard the testimony first-hand, or was able to obtain objective reporting of that testimony.

Much of the ruling is a review of the testimony of the various experts. This testimony has been covered in much greater detail in the numerous Legal Insurrection posts linked below, and won’t be repeated here. The most relevant parts of the ruling are the Court’s final conclusion and the reasons underlying it. The “money quotes” from the ruling on these points follow:

Based upon the testimony of the witnesses for both the State and the Defendant, the Court finds and concludes that aural perception and spectral analysis have been widely used for many years and are sufficiently established to have gained general acceptance within the scientific community. While biometric analysis has been available for several years, it is not as widely accepted at this time.

The Court next addresses whether the application of the sample from the 911 call to the methodologies used by Mr. Owen and Dr. Reich are sufficiently established to have gained general acceptance in the scientific community. Ramirez /I, 810 So. 2d at 844. Drs. French, Doddington and Nakasone were “disturbed” by the scientific techniques used by Mr. Owen and Dr. Reich. Drs. French and Doddington went even further to characterize such techniques as “ridiculous”.

[ . . . ]

Although the aural perception and spectral analysis are not new or novel, their application by the State’s witnesses to the samples from the 911 call in this case is a scientific technique that is new and novel. There is no competent evidence that the scientific techniques used by Mr. Owen and Dr. Reich are generally accepted in the scientific field. There is no evidence to establish that their scientific techniques have been tested and found reliable. The Court accepts the opinions of Drs. French, Doddington, Nakasone and Wayman that reliable comparison of normal speech to the screams in the 911 call is not possible. . . . The scientific methodologies and techniques used by Mr. Owen and Dr. Reich are not reliable as they are not SUfficiently established and not generally accepted in the scientific community.

[ . . . ]

The Court now addresses the testimony of Dr. Reich regarding words that he claims to hear by the use of amplification that have not been heard by any other witness. The defense seeks a determination as to whether the probative value of this testimony would substantially be outweighed by the danger of unfair prejudice under Fla. Stat. §90.403.4 The Court notes that Dr. Reich issued at least two reports on his findings in this case, one for a newspaper and one for the State. The testimony presented to the Court indicated there are significant differences between the two reports as to what Dr. Reich heard in the recorded calls. Dr. Reich did not offer an explanation for the discrepancies.
None of the other witnesses were able to hear the words heard by Dr. Reich. The Court heard testimony about “listener bias,” where a listener with a biased outlook, often due to knowledge of the underlying facts, makes conclusions to support his or her preconceived notions. It was hypothesized that Dr. Reich, who took up the case based upon personal interest, subconsciously wanted to hear identifiable words. The Court finds that Dr. Reich’s testimony regarding the amplified tapes would confuse issues, mislead the jury and, therefore, should be excluded from trial.

Based upon the above, it is ORDERED:
That the opinion testimony of Mr. Owen and Dr. Reich are hereby excluded from trial. This order does not prevent the parties from playing the tapes at trial or from calling witnesses familiar with the voice of the Defendant or Martin to testify regarding the identity of the person(s) making the screams.

This is particularly damaging to the prosecution because Trayvon Martin’s father initially told the police that the voice screaming was not his son. That may come into evidence.

Mr. Tom Owens gives testimony

Mr. Tom Owens, State’s expert witness

The court has been conducting a Frye hearing on Witness #11 911 screams over the last several weeks. The relevant portion of that recording can be heard here:

Witness #11 911 call–scream

In addition to testimony by the State’s two witnesses, testimony was heard by four defense expert witnesses.  We previously covered the testimony of both State and defense experts in detail:

Zimmerman Trial: Frye Hearing Continues with Prof. James L. Wayman.

Zimmerman Case: Experts Call State’s Scream Claims “Absurd” “Ridiculous” and “Imaginary Stuff”

Zimmerman Prosecution’s Voice Expert admits: “This is not really good evidence”

Zimmerman Case: Dr. Hirotaka Nakasone, FBI, and the low-quality 3-second audio file

This issue is important to the case because the State believes that it is Trayvon Martin screaming in the background of the Witness #11 911 recording, suggesting that Martin was a victim of an act of aggression committed by Zimmerman. If believed, such a finding could profoundly undermine Zimmerman’s claims of having killed Martin in self defense. The State’s experts claim to have at least tentatively identified the recorded scream as that of Martin.

The defense experts, on the other hand, have adamantly contested any claim that it is possible to identify a person from a scream made in extremis, nor to exclude such an identification on the same basis.

Zimmerman Trial Order Excluding Audio Experts

[Note — this post was updated from the original to further incorporate language from and analysis of the Judge’s Order]

Andrew F. Branca is an MA lawyer and author of the seminal book “The Law of Self Defense,” now available in its just released 2nd Edition, which shows you how to successfully fight the 20-to-life legal battle everyone faces after defending themselves. UPDATE: July 5, 2013 is the LAST DAY to take advantage of the 30% pre-order discount, only $35, plus free shipping. To do so simply visit the Law of Self Defense blog.

BREAKING: “The Law of Self Defense, 2nd Edition” is now also being carried by Amazon.com, at list price but with a commitment for 2-day delivery.  A Kindle version to come within a week or so (I hope).

Many thanks to Professor Jacobson for the invitation to guest-blog on the Zimmerman trial here on Legal Insurrection!

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