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View Diary: Yet Another Ruling against Trayvon -- Audio Experts excluded from Trial (155 comments)

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  •  Unfair criticism -- need to address the standard (10+ / 0-)

    the judge had to apply in her ruling before you criticize it.   You can't simply assume that any ruling the defense asked for is incorrect or unfair, any more than you can assume that any ruling the prosecution asked for is incorrect or unfair.

    As a lawyer, I can tell you that you can pretty much find an "expert" to say almost anything you want.  It is the job of the judge to decide if the expert is using a method that is generally accepted in the field as scientifically valid.  If the expert's methods are considered scientifically valid in the field, the expert is generally allowed to testify.  If the expert is an "outlier," using a method that others in the field do not consider scientifically valid, then the judge is supposed to exclude the expert.  The standard the judge used in this case is called the "Frye" standard for a case that discussed this standard.  My understanding is that, as of July 1, Florida adopted the more stringent Daubert standard, which is now the rule in Federal Courts and in the majority of states.   You need to look at the standard that the judge was obligated, as a matter of law, to apply in deciding whether to allow the experts to testify.

    My understanding is that the two experts who were excluded used methods that were not generally recognized in the field as valid and reliable.  In fact, an FBI expert in the area said he was "disturbed" by the methods used by the experts that were excluded.  Apparently, the judge excluded the experts because “There is no evidence to establish that their scientific techniques have been tested and found reliable."   If the prosecution wanted to present the experts, the prosecution had the burden of demonstrating to the Court that the methods used by these experts were considered reliable in that scientific community.  As I understand it, nobody else in the field (including an FBI expert) believed that you could tell who was, or was not speaking through a scream.  In addition, most experts in the field testified that you had to have to have an audio of a certain length to identify the speaker, which wasn't present here.  One expert that was excluded "looped" a very short clip (i.e., played it over and over to get to the right "length,") and there was no evidence presented to the Court that the method of "looping" a very short clip was scientifically tested and found to be reliable.  If the judge is correct when she states that the prosecution did not present any evidence that the methods used by these two experts were scientifically tested and found to be reliable, she was probably correct to exclude them. A judge is supposed to act as a gatekeeper for experts, and is not supposed to let anyone who claims to be an expert testify before a jury.  A judge is supposed to independently find that there's some basis for determining that the expert's methods are valid and reliable before that expert is allowed to testify.  Sometimes the methods can be validated through the literature -- textbooks, scientific studies, etc. discussing the methodology and the evidence that the method is valid and reliable.  Sometimes the methods can be validated through other experts who say, for example, the methods Mr. Expert used are pretty standard, whether I agree or disagree with Mr. Expert's conclusions.  Apparently, if the judge's statement in the ruling is correct, the prosecution did not present and of that kind of "back up" of the methods used by the experts that were excluded.   (I will be interested to read the full opinion to see it, but I'm basing my comments on the reports of the basis of her ruling, for example in the links I include).  

    If the judge had allowed the testimony, and Zimmerman had been convicted based on testimony about scientific methods that had not been tested and found to be reliable, that would have been a huge issue in Zimmerman's favor on appeal.  

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