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Zimmerman Trial: State Experts’ Audio Findings Not Admissible

Zimmerman Trial: State Experts’ Audio Findings Not Admissible

Prosecution’s “Experts” cannot testify that screaming voice on 911 tape was not George Zimmerman

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!

You can follow Andrew on Twitter on @LawSelfDefense (or @LawSelfDefense2 if I’m in Twitmo, follow both!)on Facebook, and at his blog, The Law of Self Defense.

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Comments

This appears to be a no-brainer. Why would it take so long for the judge to issue this ruling?

    The tape will be played and both sides can make arguments and inferences based on fact witness testimony. The expert crap is over the top and unsupported. This is a no brainer.

    JackRussellTerrierist in reply to creeper. | June 22, 2013 at 1:37 pm

    Probably because she loathed doing it.

It is nice that this one fraudulent prosecution argument will not be supported by this junk evidence. Nevertheless, my guess is that in retrospect it will appear to have been just a few drops in a sea of false government arguments made in this trial.

Toldja.

Who wants to step up to the steam table for their nice helping of crow…???

JackRussellTerrierist | June 22, 2013 at 1:30 pm

Looks like the snakeoil salesman’s and Reich-in-Wonderland’s whacked-out testimony was a bridge too far even for Judge Nelson’s bias.

What isn’t clear to me from the order is, if the State offers witnesses (eg. Ma and Pa Trademark) that it was Trademark screaming, can the defense bring in Nakasone and the others to refute it?

    When the State offers the parents, there will be questions even without resorting to an expert. Sybrina claimed to know her son’s voice screaming in the background of the 911 call, but she wasn’t sure if it was his voice in the background of the video of a fight that he recorded on his own phone, and that was just a normal speaking voice instead of screams. Tracy was heard by a few police officers saying it wasn’t his son screaming in the early days of the investigation, but later reversed himself and said it was Trayvon. On the other hand, Zimmerman family and friends have been consistent (according to released evidence) in identifying the screamer as George Zimmerman. But the biggest question is why would the guy seen by witnesses on top punching the guy on the bottom in a fight be screaming for help?

Hallelujah!
I was very worried that Nelson was going to go the other way on this. Maybe she is not as biased as I thought. I think this pretty much sinks the prosecution. Without any experts claiming it was Trayvon screaming, the prosecution is sitting there pretty empty handed.

Sure, they still have the story of Zimmerman “persuing” Trayvon, but they really have no evidence of that, barring Dee Dee’s totally uncredible testimony, and even if they did, it certainly didn’t rise to the level of stalking, therefore, it was perfectly legal.

The only chance they have is to convince the jury that George physically attempted to detain Trayvon and there doesn’t seem to be any evidence to support that whatsoever.

Actually, I suppose they can also try to say the Zimmerman did NOT have a reasonable fear of great bodily injury, but with his injuries, I don’t see them getting very far with that.

    siguiriya in reply to fogflyer. | June 22, 2013 at 3:09 pm

    “Actually, I suppose they can also try to say the Zimmerman did NOT have a reasonable fear of great bodily injury, but with his injuries, I don’t see them getting very far with that.”

    Even though Martin was unarmed, the defense can offer one variety of the “disparity of force” argument. In this case the disparity of force was brought about by the position of advantage that Martin had over Zimmerman. GZ was knocked to the ground, stunned, and injured. TM then got on top of him and continued the attacks to GZ’s face and head. Had GZ been standing he could have “rolled with the punches.” But on the ground the full force of blows to the head are absorbed by the head.

    The argument wouldn’t be that GZ’s present injuries were life-threatening. But with blows to the head the danger is what the NEXT injury might be, up to and including brain damage and death. This is why a referee will stop a boxing match when one of the boxers can no longer defend himself. I think even the State would have a hard time finding a witness who would testify that blows to the head are not dangerous.

      fogflyer in reply to siguiriya. | June 22, 2013 at 4:39 pm

      Yeah, I don’t think the prosecution has a prayer of proving Zimmerman should not have had a reasonable fear of great bodily injury, I just think they will have to try as they really have very little else to go on.

      Good point with the boxing match. That might be a good analogy to use in the trial.

      JackRussellTerrierist in reply to siguiriya. | June 23, 2013 at 6:31 am

      They could always bring Reich ad Owens in to testify that repeatedly slamming a person’s head on concrete isn’t at all life-threatening……which would of course also buttress their claim that it wasn’t GZ screaming. 🙂

      Kidding. 😉

    I think Zimmerman’s recorded back condition will end the nonsense about a hot pursuit. I doubt he could have been running that fast.

    Also, there is the matter of the boots that he was wearing.

Kerrvillian | June 22, 2013 at 3:06 pm

Biased or not, Nelson is aware of the attention her court is getting. There are lawyers and judges all over the world watching what she does.

If she doesn’t dot every i and cross every t there will be plenty of valid critique that her superiors will not ignore. If she values her job she will be as by the book as possible. It’s not just about being overturned on appeal. It’s about getting caught playing funny. She can’t afford that.

Now that the state’s paid liars are dealt with the judge has to deal with the motion by the defense that could bring in witness testimony. The case law seems very strong in support of that evidence coming in. That evidence shows Zimmerman telling witnesses that HE was screaming and no one came to help.

That pulls any value from the 911 tapes. If the jury accepts the evidence that initiated on that night, that Zimmerman screamed as he was beaten the 911 call only condemns the prosecution. The concept that Zimmerman was screaming is supported by the contemporaneous photos that show injuries on his face. There are none on Martin’s body at autopsy. Only a laceration to a finger. The bullet to his heart would have prevented bruising to his hands and fingers that might have showed up otherwise.

All that the prosecution can do is put the Martins up and have them play the grieving parents. They deserve sympathy, but that is all. Their child attacked a man and got what he had coming to him.

    fogflyer in reply to Kerrvillian. | June 22, 2013 at 3:48 pm

    “If she doesn’t dot every i and cross every t there will be plenty of valid critique that her superiors will not ignore. If she values her job she will be as by the book as possible. It’s not just about being overturned on appeal. It’s about getting caught playing funny. She can’t afford that.”

    Well, that assumes that her superiors actually want a fair and unbiased trial. With the current political climate, I do not take that as a given, but I hope you are correct.

This ongoing reporting by Andrew is amazingly thorough. My concern is for defendants who don’t have a handful of top experts to refute a rogue prosecutor’s attempt to use junk science to get a guy convicted. Remember that the county prosecutor who first reviewed the facts determined that the State could not prosecute the case with a good faith expectation of prevailing over the self-defense evidence. Once a “special” prosecutor was inserted, good faith was tossed and the mission was to get Zimmerman’s scalp by pushing the envelope of enormous powers at her disposal. This prosecutor’s political ambitions trump all notions of even-handed justice.

George Zimmerman Judge Denies Use of State Audio Experts’ Testimony
…so there will be a LITTLE less KANGAROO in this farcical KANGAROO COURT effort by the lunatic-left to convict someone for DEFENDING HIMSELF against a doped-up burglar.

Mr. Branca, thank you so much for all of your hard work and attention to detail – it really does help us non-lawyers figure out all of the intricacies of this kind of trial.

I do worry about the jurors’ ability to remain unbiased, but I have to remind myself that they were pulled from a pool of people who didn’t have as much exposure to this case as most of us did.

Hopefully, they will be able to render a fair judgment without fear of retribution from the people who ginned this up into the circus it has become.

So, after the prosecution puts its case forward, can the defense move for dismissal based on the lack of evidence? If so, any chance of this succeeding?

    Ragspierre in reply to fogflyer. | June 22, 2013 at 6:03 pm

    Yes, and they will, if simply as a matter of form to preserve error.

    Is there a chance the judge will grant that motion…???

    Depends entirely on the evidence. Judges are loath to take a case away from a jury, but do when there is insufficient evidence to support a conviction.

      In my totally unsupported opinion, I don’t believe the judge will allow the case to be dismissed at that point. The judge needs to be able to say, “I went through the entire trial and sent it to the jury. The innocent verdict was not my fault.” And the prosecutor needs to be able to say the *exact* same thing. Both of them are very carefully washing their hands of the eventual rioting in the probable case he is found not-guilty. In the event he is found guilty (which I really doubt), they both will be almost silent in the press, as they should know it will get overturned on appeal, which may be their actual hope. An overturned appeal would occur long after all the violence is sucked out of the instigators, who for all intents and purposes have picked out the stores they want to loot and the gas stations they intend on torching in their ‘rage’ at the verdict.

        fogflyer in reply to georgfelis. | June 22, 2013 at 9:05 pm

        Yeah, that is pretty much what I was thinking.
        It just seems that with the utter lack of evidence supporting the prosecution in this case, the judge would almost be obligated to dismiss the case. I don’t know where the bar is set or what discretion the judge has in this matter.

        I don’t expect much from the general public, nor do I have a lot of faith in juries, but I just have to wonder how a judge will be able to look at this case and think that the prosecution has presented enough evidence for the trial to continue.

        If the judge threw this case out though, riots would be assured, which is why I doubt that will happen. Too bad though, the threat of riots should have no bearing on the case in a truly just system.

I was wondering if one of the legal types has a sense of whether or not the federal government would file civil rights charges against Zimmerman if this effort fails? Seems to be an overreach, but they have unlimited resources, provided by us, the taxpayer. And, Zimmerman could very well have exhausted his resources by the end of this trial.

    Ragspierre in reply to gasper. | June 22, 2013 at 10:52 pm

    Not my forte, but on what grounds?

    If it had been a cop, under color of law…maybe. Here, no.

    JackRussellTerrierist in reply to gasper. | June 23, 2013 at 6:39 am

    The feds already investigated and concluded that the shooting of Trademark was not racially motivated. With racial motivatio off the table by their own hand, I don’t see a role for the feds bringing a civil rights case against GZ.

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