Wednesday, May 15, 2013
Good evening everyone.
Tonight I am going to follow-up on my post last week explaining the purpose of a Frye hearing, Zimmerman: Pssst hey buddy what’s a Frye hearing.
The issue Judge Nelson would have to decide, assuming she decides to hold a Frye hearing, is whether the methodologies used by the state’s experts are generally accepted by audiologists as capable of producing accurate and reliable results.
The Frye test has been described as a counting-heads test because it does not require the judge to understand the theory or methodology at issue. The judge need only count the heads of the experts in the particular field and decide whether they generally accept the methodology.
The glaring, and I believe fatal, omission in O’Mara’s motion for a Frye hearing is the absence of any supporting affidavits from experts in audiology that one or both of the methodologies used are not generally accepted by audiologists as capable of producing accurate and reliable results.
Nobody gives a damn about what the non-expert lawyer thinks. He is not qualified to express an opinion about general acceptance of these methodologies.
Therefore, I would deny his motion for a Frye hearing.
The State objected to a Frye hearing on the ground that the defense request lacked sufficient specificity to identify the basis for the defense request and, in any event, the Frye rule does not apply in this case because the technology/methodology used by its experts is not new. They correctly noted that the Frye rule only applies to new or novel scientific evidence. This is an additional valid reason for the court to deny the motion for a Frye hearing.
The defense has also filed a bizarre motion that would permit the defense experts to testify by video conferencing from remote locations. O’Mara basically pleads poverty in support of his request by complaining that the defense cannot afford to pay their round trip transportation, hotel and food expenses.
I call this request “bizarre” because the trial date is less than 30 days away and he has not identified his expert(s) or provided an offer of proof regarding what their testimony would be. He has not even identified the technology/methodology that he is attacking or set forth a basis for his attack.
He just wants a Frye hearing, just because.
Apparently, he recently told a reporter for the Orlando Sentinel that he was surprised by the claim of one of the State’s experts identifying Trayvon Martin as the source of the shriek. O’Mara reportedly said he would have to ask for a continuance to find an expert who will disagree with the State’s experts.
Judge Nelson is not going to grant a continuance so that he can shop around for an expert who will say what he wants the expert to say.
O’Mara does not appear to understand the Frye rule or whether it even applies in this case.
Is he clueless in Orlando?
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