Council Motion and Rebuttal Issues
56 linesJUDGE NEWMAN: If everyone would be seated. How many more witnesses do you have, Mr. Waters?
MR. WATERS: I believe just one, Your Honor. At lunchtime there's one more that I might talk about, but I believe just one, Your Honor, and that will be Dr. Kinsey.
JUDGE NEWMAN: All right. I received an email that I want to have counsel look at. Let's see who --
MR. WATERS: May we approach, Your Honor?
(Break in proceedings.)
JUDGE NEWMAN: And I will give you all an opportunity to digest it and discuss it, and we'll talk about it on the other side of, of lunch.
(Break in proceedings.)
JUDGE NEWMAN: Anything else before we break for lunch?
MR. WATERS: Your Honor, very briefly. I know that there has been a request by the defense for a jury view, and for planning purposes I didn't know if Your Honor had a -- if we had some planning for that, to do that, so I guess after this last witness or at what point --
JUDGE NEWMAN: Yes, after the State rests. And we'll -- it'll -- depending on what time you rest today, it might be this afternoon.
MR. WATERS: Okay.
MR. BARBER: Your Honor?
JUDGE NEWMAN: Yes, sir.
MR. BARBER: And it can be now or after lunch, whatever the Court prefers, but I would like to make a Council motion for the record regarding the cell phone testimony we just heard.
JUDGE NEWMAN: Okay.
MR. BARBER: Your Honor, the previous objection was that I was objecting to it being beyond the scope of the expertise for which it's offered, but the Supreme Court --
JUDGE NEWMAN: That wasn't your objection.
MR. BARBER: That was the objection. I'm now making it a motion under Council for the record. In Council, the Supreme Court said that when admitting scientific evidence, the trial judge must find the evidence will assist the trier of fact, the expert witness is qualified, and the underlying science is reliable. The trial judge should apply the Jones factors to determine reliability. And then the case gives the Jones factors as considering the admissibility of scientific evidence under the Jones standard. The Court notes several of the factors, including, one, publications of peer review --
JUDGE NEWMAN: Yes, sir, we know what the rule says. Beyond that --
MR. BARBER: Your Honor, the testimony that we've heard, which we had no notice of to make an earlier motion, there's no publications of peer review of the technique he described. There's no prior application to that method. He testified he's never done this before. Number three, the quality and control procedures used to ensure liability. No data was recorded at all so he's --
JUDGE NEWMAN: Your motion is late. You stipulated, you agreed that he was an expert. I gave you an opportunity to voir dire him, question him in any way.
MR. BARBER: Your Honor, we had no notice that he was going to offer this experiment. We -- he was offered as a cell phone forensics expert, which he is, and there was no notice that he had done this engineering analysis, throwing his phone around.
JUDGE NEWMAN: He did not do an engineering analysis; he said he didn't do an engineering analysis. And what was scientific about his testimony?
MR. BARBER: Well -- yes, Your Honor. His testimony was not scientific. That's why we're moving under Council that it is not reliable scientific testimony and should not -- it should be struck from the record.
JUDGE NEWMAN: All right. What says the State?
MR. CONRAD: Your Honor, I think again, as Your Honor has pointed out, there was no objection. This was in the nature of reply testimony. And I think that, again, there's a practical experience that is acceptable for opinions to be offered, and that's kind of what we're talking about. He understands the Raise to Wake feature and manner in which it works, and which it doesn't work, and he offered his testimony based on his experiments in that regard. Counsel was allowed to fully cross-examine the witnesses, and it will ultimately go to weight, not admissibility, Your Honor.
JUDGE NEWMAN: All right. The objections are noted for the record. He did not provide scientific testimony. He conducted an experiment and told the jury about it. The fact that the -- had the defense had any questions concerning his qualification to testify as an expert witness, the defense had an opportunity to do that through voir dire or otherwise. Rule 5 does not apply to reply testimony in the sense that the State is not required to provide any advance report or anything. Your objections are noted for the record. The testimony speaks for itself, and that's that. Yes, sir?
MR. HARPOOTLIAN: Your Honor, one other matter. The forensic pathologist said this morning concerning some of her testimony about the white material that was noted. She indicated that she had never put that in her autopsy report; she had never given this opinion before. We propose in surrebuttal to bring our pathologist back to testify when they finish their case --
JUDGE NEWMAN: I'm not inclined to allow any surrebuttal based on what I've heard at this point.
MR. HARPOOTLIAN: Even though she said it wasn't in the report --
JUDGE NEWMAN: Yes, sir.
MR. HARPOOTLIAN: -- and revealed it today for the first time?
JUDGE NEWMAN: Yes, sir.
MR. HARPOOTLIAN: Thank you, Your Honor. So, you're denying that request.
JUDGE NEWMAN: I said I'm not inclined to at this time.
MR. HARPOOTLIAN: Well, when would be the appropriate time?
JUDGE NEWMAN: Well, when it's time for you to offer it, then I'll hear it fully. But I'm telling you now I do not anticipate allowing any surrebuttal based on what I've heard at this point.
MR. HARPOOTLIAN: Thank you, Your Honor.
JUDGE NEWMAN: Yes, sir. Anything else?
MR. WATERS: Nothing from the State prior to the lunch break, Your Honor.
MR. HARPOOTLIAN: Nothing from the defense, Your Honor.
JUDGE NEWMAN: All right. We'll be in recess until 2:15.
(A lunch break was taken.)
MR. CONRAD: Your Honor, I have a -- State's Exhibit 521 is a worksheet showing steps and time steps were taken, along with some calculations about how many steps per minute. It's come to my attention that there is a math error contained in the previously submitted exhibit, and I think the error bled over into the defense's exhibit. I think it's 156?
MR. BARBER: Yes.
MR. CONRAD: And so at this time with the State's -- consent, the State would just like to substitute a worksheet with the correct math for the previous incorrect worksheet.
MR. BARBER: And the defense would also ask to do the same.
JUDGE NEWMAN: Okay.
(Break in proceedings.)
MR. WATERS: Your Honor, if we may approach very quickly?
JUDGE NEWMAN: Yes, sir.
(Break in proceedings.)
JUDGE NEWMAN: If you'll bring the jury.
(The jury returned to the courtroom.)
COURT BAILIFF: The jury is present, sir.
JUDGE NEWMAN: All right, thank you. Your next witness.