If I were the judge l would admit expert opinion evidence regarding who uttered the death shriek

June 6, 2013

It’s important to remember that every scientific principle, law, or methodology that is generally accepted in the scientific community today was once a novel theory or new methodology.

The process by which these novel theories and new methodologies become generally accepted in the scientific community can take many years.

It can be extremely frustrating to have to wait for general acceptance to develop in the scientific community when a pressing need exists to use a novel theory or methodology to solve crimes as was the case with applying DNA testing to solve otherwise unsolvable crimes or to hold a pharmaceutical company liable for birth defects that mighth ave been caused by anti-nausea medication prescribed by doctors for pregnant women.

The so-called DNA Wars of which I was a part in the late 80s and 90s resisting the admissibility of DNA test results that implicated my clients in death peenalty cases and the pressure on the courts to provide a legal remedy for parents of children born with birth defects possibly because the mothers ingested prescription Bendectin at the recommendation of their physicians to overcome morning sickness placed a mighty stress on our legal system.

The National Association of Prosecuting Attorneys pressured the courts to admit DNA testing and they were eventually successful in overcoming criminal defense lawyers like me who fought hammer and tong to prevent the evidence from bein admitted.

Plaintiff’s personal injury lawyers fought hard to persuade the courts to permit them to show a link between not only Bendectin and birth defects, but also between certain lung cancers and exposure to radioactiviy, coal dust, asbestos or smoking.

The SCOTUS decided the Daubert case in the midst of this war being fought in the courts to reject or at least loosen the strictures of the Frye Rule to allow litigants a shot at convincing juries to rule their way.

For those who cling to the Frye Rule believing the scientific tradition should be respected and followed before a litigant should be permitted to introduce into evidence the results of a scientific test based on a novel scientific principle or new methodology, I think they need to reexamine their view in a manner that recognizes that most trials consist of a lot of evidence from different sources that often independently confirm a result obtained using an experimental theory or methodology.

In addition, one party or the other has to satisfy a burden of proof and each side can call its own experts to challenge or support the results obtained with the new theory or methodology.

I have confidence in the ability of jurors to evaluate evidence obtained as the result of new scientific theories and methodologies in light of other evidence in the case and to fairly and impartially determine guilt or innocence according to which party has the burden of proof in any case, whether civil or criminal.

Of course this requires skilled lawyerswho understand science and can explain it to lay people. Unfortunately, we have a shortage of those lawyers, but the times are changing.

Daubert recognizes that, although a courtroom is not a laboratory, it is an excellent crucible for determining the truth and judges, lawyers and jurors are capable of making correct decisions and delivering justice in a way that no laboratory can accomplish.

The death shriek in the Zimmerman case is an excellent example of a situation where other evidence in the case confirms the hypothesis that Trayvon Martin uttered the death shriek.

Briefly, the evidence will show that Trayvon was an unarmed 5’11,” 158-pound 17-year-old male walking home in the rain minding his own business after purchasing Skittles and an iced tea at a 7/11. He spent most of his time during his walk home talking to his girlfriend on his cellphone informing her about a creepy man who followed him slowly at a distance in his vehicle in a menacing manner without identifying himself or attempting to engage him in a conversation. Trayvon attempted to elude the creepy man by running away from the street and ducking into a grassy area corresponding to the backyards of two rows of town houses,That area was not visible from the street and once there he told his girlfriend that he thought he had successfully eluded him.

The evidence will also show that the defendant was a 5’8,” 207 pound 28-year-old Neighborhood Watch Captain, professionally trained fighter and former bouncer, who was armed with a fully loaded 9 mm semiautomatic handgun that he carried in a holster concealed from view inside the right rear waistband of his pants.

The evidence will show that he got out of his vehicle after Trayvon ran away, ran after him in hot pursuit, and continued running after him despite being warned not to do so and agreeing not to do so by the NEN dispatcher. Then, instead of agreeing to meet the officer dispatched to the scene at a set location such a his parked vehicle, the RTL front gate, Clubhouse, or the rear entrance to RTL though which “these assholes always get away,” he instructed the dispatcher to tell the officer to ring him up on his cell phone when he arrived at the RTL so that he could tell him where he was.

Finally, the evidence will show that Trayvon’s girlfriend heard Trayvon say to someone, “Why are you following me for?” and then she heard an older male voice challenge Trayvon stating, “What are you doing here?”

Then she heard a sound like two bodies coming together and Trayvon yelling, “Get off me. Get off me.”

Then the phone went dead.

Less than one minute later, the defendant shot Trayvon in the heart, killing him.

I contend that nothwithstanding Dr. Nakasone’s legitimate concerns about the capability of audio technology today to positively identify the source of the death shriek from an isolated 3 second recording of a 911 call, a jury can reach the right conclusion by considering Dr. Nakasone’s opinion together with the opinions of other experts, and most importantly, the other evidence in the case, and the possibility that only Trayvon Martin or the man with the gun could have made those screams.

This, by the way will be the State’s argument, given the questions that Mr. Mantei asked Dr. Nakasone.

I hope this clarifies your understanding of the issues that relate to the admissibility of expert opinion evidence regarding the identity of the person who uttered the death shriek.

In my experience, judges have almost always allowed the expert witness to testify and express an opinion in a situation like this. They rule that objections by counsel go to the weight that the jury should give to any expert’s opinion rather than to the admissibility of the evidence itself.

I believe Judge Nelson will reach the same conclusion.

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