Comparison of Frye and Daubert Rules

Saturday, June 1, 2013

Several people have asked me to explain the Daubert rule and compare it to the Frye rule. Today is a good opportunity to do that since we are experiencing a bit of calm before the storm.

Judge Nelson scheduled a Frye hearing for June 6 and 7 to determine whether to permit the State to present expert testimony identifying voices in the background of a 911 call. The purpose of a Frye hearing is to determine whether to admit evidence derived from a new or novel scientific theory or methodology. In Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the Court held that such evidence should be excluded unless the new or novel scientific theory or methodology is generally accepted in the relevant scientific community.

I previously wrote about the Frye rule here. Basically, it is a counting heads test that does not require the trial judge to understand the new or novel scientific theory or methodology.

The disadvantage of the Frye rule is that it may result in the exclusion of results obtained with theories and methodologies that are capable of producing accurate and reliable results, but are too new to have passed the test of peer review and become generally accepted in the relevant scientific community.

This hole in the Frye rule eventually led to the SCOTUS adopting a new rule in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Significant changes in long existing legal rules generally require compelling facts, particularly if the rule change is going to cost corporate America big money. Daubert was such a case.

Writing for the majority, Justice Blackmun described that set of facts at pp. 582-583:

Petitioners Jason Daubert and Eric Schuller are minor children born with serious birth defects. They and their parents sued respondent in California state court, alleging that the birth defects had been caused by the mothers’ ingestion of Bendectin, a prescription antinausea drug marketed by respondent. Respondent removed the suits to federal court on diversity grounds.

After extensive discovery, respondent moved for summary judgment, contending that Bendectin does not cause birth defects in humans and that petitioners would be unable to come forward with any admissible evidence that it does. In support of its motion, respondent submitted an affidavit of Steven H. Lamm, physician and epidemiologist, who is a well-credentialed expert on the risks from exposure to various chemical substances. Doctor Lamm stated that he had reviewed all the literature on Bendectin and human birth defects—more than 30 published studies involving over 130,000 patients. No study had found Bendectin to be a human teratogen (i. e., a substance capable of causing malformations in fetuses). On the basis of this review, Doctor Lamm concluded that maternal use of Bendectin during the first trimester of pregnancy has not been shown to be a risk factor for human birth defects.

Petitioners did not (and do not) contest this characterization of the published record regarding Bendectin. Instead, they responded to respondent’s motion with the testimony of eight experts of their own, each of whom also possessed impressive credentials. These experts had concluded that Bendectin can cause birth defects. Their conclusions were based upon “in vitro” (test tube) and “in vivo” (live) animal studies that found a link between Bendectin and malformations; pharmacological studies of the chemical structure of Bendectin that purported to show similarities between the structure of the drug and that of other substances known to cause birth defects; and the “reanalysis” of previously published epidemiological (human statistical) studies.

The Court held that Rule 702 of the Federal Rules of Evidence replaced the Frye Rule. Rule 702 states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if

(1) the testimony is based on upon sufficient facts or data,

(2) the testimony is the product of reliable priniciples and methods, and

(3) the witness has applied the principles and methods reliably to the facts of the case.

[Note that the language beginning with “or otherwise, if” was added to the rule in 2000 after the SCOTUS decided Daubert]

Application of Rule 702 must involve a consideration of the following factors discussed at pp. 592-595:

Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. We are confident that federal judges possess the capacity to undertake this review. Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test. But some general observations are appropriate.

[Note that the previous paragraph changes the trial court’s job from counting heads to functioning as a gatekeeper]

Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested. “Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry.” Green 645. See also C. Hempel, Philosophy of Natural Science 49 (1966) (“[T]he statements constituting a scientific explanation must be capable of empirical test”); K. Popper, Conjectures and Refutations: The Growth of Scientific Knowledge 37 (5th ed. 1989) (“[T]he criterion of the scientific status of a theory is its falsifiability, or refutability, or testability”) (emphasis deleted).

Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability, see S. Jasanoff, The Fifth Branch: Science Advisors as Policymakers 61-76 (1990), and in some instances well-grounded but innovative theories will not have been published, see Horrobin, The Philosophical Basis of Peer Review and the Suppression of Innovation, 263 JAMA 1438 (1990). Some propositions, moreover, are too particular, too new, or of too limited interest to be published. But submission to the scrutiny of the scientific community is a component of “good science,” in part because it increases the likelihood that substantive flaws in methodology will be detected. See J. Ziman, Reliable Knowledge: An Exploration of the Grounds for Belief in Science 130-133 (1978); Relman & Angell, How Good Is Peer Review?, 321 New Eng. J. Med. 827 (1989). The fact of publication (or lack thereof) in a peer reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised.

Additionally, in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error, see, e. g., United States v. Smith, 869 F. 2d 348, 353-354 (CA7 1989) (surveying studies of the error rate of spectrographic voice identification technique), and the existence and maintenance of standards controlling the technique’s operation, see United States v. Williams, 583 F. 2d 1194, 1198 (CA2 1978) (noting professional organization’s standard governing spectrographic analysis), cert. denied, 439 U. S. 1117 (1979).

Finally, “general acceptance” can yet have a bearing on the inquiry. A “reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community.” United States v. Downing, 753 F. 2d, at 1238. See also 3 Weinstein & Berger ¶ 702[03], pp. 702-41 to 702-42. Widespread acceptance can be an important factor in ruling particular evidence admissible, and “a known technique which has been able to attract only minimal support within the community,” Downing, 753 F. 2d, at 1238, may properly be viewed with skepticism.

The inquiry envisioned by Rule 702 is, we emphasize, a flexible one. Its overarching subject is the scientific validity—and thus the evidentiary relevance and reliability—of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.

And there you have it.

159 Responses to Comparison of Frye and Daubert Rules

  1. Okay, I just read the apology at the GZ Legal Case website, and Mr. O’Mara, I am speaking to you on this, sir: When you apologize, you ordinarily do so in the first person, can we agree on that much? The apology I read at the site came off as disingenuous, because it said, in the third person, something like, “Mr. O’Mara apologizes. The words, “I did such-and-such, it was wrong and I am deeply sorry” do not appear anywhere. Rather, there is some sort of additional rationalization. Question, Mr. O’Mara: How did you make that ‘mistake?’ How in the world is it possible that you erred in such a dramatic way? This is just some feedback from a bystander here, Mr. O’Mara, but given the nature of the ‘mischaracterization’ and the third-person afterthought nature of the apology, the whole thing looks dishonest. Why would you do such a thing and not follow up with an honest, heartfelt apology, from you, and not some writer for the site? People make mistakes. At least have the stones to talk in the first person, just my .02.

  2. fauxmccoy says:


    as a young woman, working in san francisco’s financial district, i regularly witnessed two bums working a street corner together. these specific 2 bums had managed to obtain a wheelchair (likely through nefarious deeds). if one saw these two on a regular basis, it quickly became clear that they traded off the wheel chair daily. obviously, whoever was in the wheelchair got better donations.

    one day, while walking to work, the bums (drinking their brown bag covered thunderbird at 7:45 am) were fighting over which one got the wheelchair today. in their drunken stupor, they could not remember who had it the day before. i had two choices, tell them who had the wheelchair yesterday or laugh hysterically. yup, my 23 year old self laughed her ass off. if cell phones with video recorders were available, i sure as hell would have taped it. it was hilarious.

    now ……


  3. elcymoo says:

    Correction and Apology Regarding Misstated Nature of Trayvon Martin Video

    on 02 June 2013.

    During the Tuesday, May 28th hearing, Mr. O’Mara misstated the nature of video from Trayvon Martin’s cell phone which was included in the Defendant’s 3rd Supplemental Discovery. He stated that the video showed “two buddies of his beating up a homeless guy,” when what happened was Trayvon Martin, along with a buddy, was videotaping two homeless guys fighting each other over a bike. Though it was unintentional, it is a particular concern to us because we are and have been committed to disputing misinformation in every aspect of this case, not causing it. For that, Mr. O’Mara apologizes.

    • gbrbsb says:

      Just saw that myself and came here to post it for everyone and found you have already have.

      I was convinced it was a going to prove a no no when he said it in court and so it was. To open shop and post it on a Sunday could be MOM & Co were very keen to get it out before any legal action or whatever could be mooted. He should publish THTAT in the newspapers and go on TV to correct it, let’s see if OS and any others do publish it in big print!

    • racerrodig says:

      So 2 guys that Trayvon does not know are doing something suspicious and he didn’t shoot them…Hmmmmm…I see a pattern here.

  4. Rachael says:

    God this man is SICK!!!!! Yeah, just try to unring that bell you asshole!! Damn you to hell!!!

    Correction and Apology Regarding Misstated Nature of Trayvon Martin Video

    on 02 June 2013.

    During the Tuesday, May 28th hearing, Mr. O’Mara misstated the nature of video from Trayvon Martin’s cell phone which was included in the Defendant’s 3rd Supplemental Discovery. He stated that the video showed “two buddies of his beating up a homeless guy,” when what happened was Trayvon Martin, along with a buddy, was videotaping two homeless guys fighting each other over a bike. Though it was unintentional, it is a particular concern to us because we are and have been committed to disputing misinformation in every aspect of this case, not causing it. For that, Mr. O’Mara apologizes.

    • BillT says:

      he flat out LIED……..that was not a misstating on any level it was intentional lying.

    • ks says:

      Boom. That’s big. For MOM to have to that, and make no mistake about it, he HAD to do that means he knew he made a false statement in court. The prosecution should flip the script and ask for “sanctions” against the defense.

    • PYorck says:

      Now that we know it’s true the next questions are:

      Why apologize only after it has been discovered?

      Did the defense intervene to get the article pulled?

    • SearchingMind says:

      I hope that the good Professor will tackle this issue because this is really serious. Attorneys are allowed a wide discretion in defending their clients. They are allowed to take all legitimate actions to defend their clients – regardless of any hurt such may cause to third parties. But what O’Mara did is not only immoral, it borders on criminality (if it already is not). O’Mara’s methods are akin to the ways of thieves and charlatans. I have no doubt as to why OS pulled the story – i.e. serious legal ramification for O’Mara. How could O’Mara be that boldly stupid? I am still in shock and awe.

      • racerrodig says:

        It’s a shame The Moron Man didn’t say at some point if a lawyer misstates or lies the court, they should be disbarred.

    • SearchingMind says:

      O’Mara has to address THE COURT. He has to apologize IN COURT and IN FRONT OF THE JUDGE. If not, heads must role. He abused the judicial process and the trust vested on Officers of the Court by virtue of their profession!

      • LeaNder says:

        Someone should look very, very closely into this story. I know the use of this trick to get a story out, assuming a disclaimer will get much less attention as the hearing and the session with journalists after.

        Madame Stutzman has updated her story.

        • fauxmccoy says:

          leander says

          Someone should look very, very closely into this story. I know the use of this trick to get a story out, assuming a disclaimer will get much less attention as the hearing and the session with journalists after.

          the OS owes a major retraction for portraying o’maras ‘mis-statement’ as fact. please join me in contacting their managing editor. i would recommend doing so during regular business hours EST.

  5. ay2z says:

    Haven’t read this thread yet, but since ya’ll are here, adding this, thanks for revisiting this falsifyiing of Trayvon’s image once again.

    WESH has played into this since their reporter did a video from O’Mara’s office, shaking this ‘tweeked’ and distorted photo but never showing it until WESH opsted it for their Trayvon case website banner.

    They bought into O’Mara and his false photo image, had to be knowinglly, no one could be such an idiot as to believe this photo showed a distortion from the red shirt Trayvon smiling photo taken only 6 months earlier..

    • Zia B. says:


    • Rachael says:

      My blood is boiling. I feel like I can’t wait another moment for this trial to begin – better yet, for it to be over and that disgusting cretin removed from society.

      • You all have thoughtful comments says:

        Looks as if O’Mara sits at gz’s feet to learn gz’s technique of storytelling.

        I wonder how much O’Mara pays gz for his mentoring seminars?

        • racerrodig says:

          There once was a mentor named Fogen
          Who got all caught up in his probin’
          When one rainy night
          Killed a kid with no fight
          Now he spends all his days, brain afloatin’

      • Rachael says:

        They effn deserve each other. The only problem is, NO ONE deserves the likes of them. I wish there was a big pit we could throw them in. ALL of them.

    • Lonnie Starr says:

      We need to quickly collect all the instances of misinformation and fraud that the defense has been using. If you post one piece per post with authentication I’ll added to a document I’ll create on my evidence pile for easy access. Then you can quickly grab it, tweet it , post it anywhere and everywhere as the need arises.

  6. Zia B. says:

    When you wake up every morning, grab your computer, even before you brush your teeth (ewwww…don’t judge me), and click on the bookmark for this blog…you know you’ve got it bad!

    Thanks Professor and Crane you make my days better and my nights intriguing! Everyone who comments are my teachers and peers.

    8 more days…I have a victory dance in the wings

    • cielo62 says:

      Zia B.~  LOL! Yes, THAT is my routine! Leatherman before all else in the morning! I read a few comments, make sure I haven’t missed any new posts, and then get on with my day. It’s better than caffeine! 🙂  I thank everyone who makes this possible starting with the Professor and Crane, and to my extended “family” as we work for this goal of justice for Trayvon. I believe my IQ has grown by 20 points! ( no kidding!)


    • Two sides to a story says:

      Thanks PY, I didn’t think to look in the cache.

      • SearchingMind says:

        X2. Thanks Pyock for shearing. This is just horrendous and may not happen. I will guarantee that this is a punishable offence at least under the Rules of Professional Conduct. I am just mesmerized that O’Mara stood in front of the Court and very loudly, very assertively made claims and declarations he knew/must have known not to be true and caused significant damage in the process . Mind blowing. Simply indefensible.

    • ks says:

      What does it say? Thanks.

      • PYorck says:

        It is about the alleged homeless beating video.

        It shows something far different than what defense attorney Mark O’Mara described during a hearing Tuesday.

        Back then, he told Circuit Judge Debra S. Nelson that it was Trayvon making a video-recording of his buddies “beating up a homeless guy.”

        But what the video shows is Trayvon and a friend encountering two homeless men who are fighting over a bicycle. Trayvon moves closer and records the fight and while he does, can be heard laughing.

        Whether that is accurate or not, someone somewhere has a lot of explaining to do.

        • racerrodig says:

          He’s going to blame Bernie since they only got raw data and not any of the reports nor work product like The Moron Man wanted.

      • ks says:

        Wow! Thanks PYorck. That the OS pulled it shows they are in the tank for MOM. They catch him blatantly lying and then cover it up.

    • Rachael says:

      I wonder why it was deleted.

      • PYorck says:

        Well, either because Stutzman was wrong or because she was right… 🙂

      • diary73 says:

        I think a letter-writing campaign is in order to demand that the Orlando Sentinal exercise objective reporting, citing this and other GZ- sympathizing situations and stories.

        In fact, threatening to get another paper to write about the one-sided reporting of the OS might do the trick.

        Nevertheless, RS just needs to be taken off the story period if she can’t explain why this piece was deleted.

      • SearchingMind says:

        Because O’Mara got to them (the OS folks). The onslaught against the dead kid has started backfiring. Folks have started asking questions and fact-checking, while the defense continues panicking. Wonder why the defense published everything from Trayvon’s phone except (a) the video in question and (b) the text-massages allegedly showing that Trayvon and DeeDee were having angry discussions? Because what O’Mara alleges ain’t true! And O’Mara knows that. O’Mara lies and acts in the ways of a common thief. This guy is a disgrace to the legal profession.

      • Two sides to a story says:

        I believe because since the court’s ruling last Monday, they can’t post irrelevant past info about Trayvon.

      • Two sides to a story says:

        PS – Well, they could, but it’s likely that a major newspaper will follow court ruling as their editorial policy.

      • Rachael says:

        @SearchingMind – You say: “This guy is a disgrace to the legal profession.”

        I’d go a step further and say This guy is a disgrace to all mankind.

        What he is doing is so disgusting it is unreal.

    • SearchingMind says:

      Time for Action

      I have said this before and I will say it again: what O’Mara and West are doing go way beyond what is acceptable for defense counsels. These two guys knowingly lie to the Court in an effort to obtain favorable rulings (and that’s fraud) and to the public in an effort to sway public opinion and taint prospective jurors.
      I think the following must be done by organized groups:

      a. Catalogue all of O’Mara’s violations;
      b. Gather signatures;
      c. Higher an attorney/group of attorneys;
      d. File complaints with the Florida BAR against O’Mara and demand among others investigation, suspension, disbarment of O’Mara.

      O’Mara actions are increasingly becoming criminal. Anyone who has access to organized groups (e.g. moveon; etc.) should contact them now. NOW IS THE TIME TO TAKE THE FIGHT TO O’MARA THE MAN/DEFENSE COUNSEL.

    • CherokeeNative says:

      Yes, one of the members of CrimeWatchers sleuthed Google’s Cache and found Rene Stutzman’s article stating that O’Mara lied – it has been of course since pulled from the internet, but we have screen captures. This is not the half of it. CTH’s Mark Bradman has an article up explaining how he met with executives at OS – the whole damn bunch are in kahoots, as we’ve always known, but now blatantly so. At this point, the news media is ignoring O’Mara’s outright lie to the Court. It’s working for O’Mara because it’s about the almightly $$$. Pitty the poor fools who have given their monies to the defense of this lying bunch of thieves and murderer. I am thoroughly disgusted – but what else is new….

    • LeaNder says:

      Great you caught this, PYorck. But this will not go away. Sounds much more likely than what MrSicko insinuated.

      It immediately felt like just to much of an accident, or that a TM parallel to Fogen’s own little efforts at psychops existed, thus very, very unlikely. But since it is about two homeless people, it is close enough for “polite smear talk” Momovellian..

      This should result in sanctions, really. So sick.

    • dianetrotter says:

      videoed 2 homeless men fighting – sounds reasonable. When there is a fight at my school, all kids take out their cellphones. Administrators watch the Youtube videos to investigate and see who should be exelled.

  7. LeaNder says:

    This is not an article that I find very easy to wrap my head around, admittedly. Maybe I have to go back and reread everything related to “evidentiary hearing” motion, or the Frye rule.

    Does it have any significance that O’Mara demands a decision based on the Frye and not the Daubert rule? Can he demand that the decision is based only on the Frye (counting heads) rule and not on the modified Daubert rule.

    Or is he in fact demanding a decision based on the Daubert rule, since he has some experts that challenge the reliability of the apparently far from recent technique of voice recognition?

    Under the Frye rule you simply counted heads in support of a specific a specific scientific method. If the majority agreed on the reliability under the older rule, that was enough. Now the judge has to decide. That is the rule has become more flexible? Another writ to the appellate court? The Frye and Daubert rule are closely connected? Can one consider them alternative ways to put the essentially same matters. OK, I wrote above, I may not have understood!

    I wish I could find easily the specific cases relating to voice recognition. But since they are cited all over the place in quite a few cases the specific case, especially the judgement seems to be not easy to Google up.

    June 6 and 7 will be interesting. Especially concerning their experts.

    • SearchingMind says:

      Florida is a Frye State. That means that expert testimony that does not meet the Frye test will be excluded. O’Mara seeks the exclusion of State’s expert witnesses. He want to achieve that goal by arguing that the methods applied by these witnesses to reach their conclusions cannot stand the pressures of the Frye Test. If the Court accepts his arguments as valid, then the experts will be excluded and will not testify.

      But O’Mara’s problems are among others, these:

      (a). Castillo v. E.I. Dupont de Nemours & Co., 854 So. 2d 1264 (Fla. 2003). Herein the court held that Frye only required the trial court to examine the general acceptance of the underlying science and experiments from which the expert witness obtained the data used to draw his conclusions, not the reasoning or conclusions themselves. Finding that the science underlying each method was generally accepted, the court concluded that the opinions of the plaintiff’s expert witness were admissible. The court further explained that even if the methods used to interpret the data from the underlying valid science are not generally accepted, any questions about how the expert reached his conclusion go to the weight a jury should give to the expert witness’ opinion and not to whether the opinion is admissible.


      Click to access sc00-490.pdf

      (b). O’Mara’s Motion cites Ramirez v. State, 810 So. 2d 836 (Fla. 2002). This case law has long been overtaken by Castillo v. E.I. Dupont de Nemours & Co.

      IMO, State’s expert witnesses: Alan Reich, Tom Owen, Ed et al, all meet the Frye Standard under Castillo v. E.I. Dupont de Nemours & Co.

      • LeaNder says:

        Thanks SM, that explains it.

        I have mixed feelings about it, admittedly.

        On one hand I don’t understand even a little bit, how anyone can be convinced by GZ’s scream re-enactment. But these people exist.

        I also find it absolutely hard to believe you supposedly screamed for your life and completely forget how you screamed. Really, not even a month later? My experience is, were it indeed such an event, it would have burned itself into his mind and into every cell of his body.

        On the other hand, or beyond this basic impression, am I to assume the FBI does not have state of the art expertise and equipment? They all one way or another admit the material they can use due to witness 11 and the operator’s voice is not sufficient for analysis.

        The new software programs may well be a Frye matter.

        Is that why the prosecution requested an analysis by experts using different methods, especially Reich?

        Fact is, in my own field I have often been surprised by the results of a close analysis compared to my own initial impressions. Not that it matters much in our context, I have not the slightest clue about acoustic forensics.

    • SearchingMind says:

      Let’s ASSUME – for the sake of argument – that the testimony proffered by the State via its audio experts does not meet the Frye Standard. What then? What can the State do in this imaginary worst case scenario?

      Alternatively the State may argue that its expert witnesses (Reich, Owen, Ed) will offer “Pure opinion” testimony. If the Court accepts that, their testimony will be admissible and does not need to meet the Frye Standard.

      What then is the difference between “Pure opinion” testimony and “expert testimony” (given that both kinds of testimonies originate from experts)?

      “Pure Opinion testimony” is testimony based on an expert witness’ personal experience and training. Because this testimony relies on personal experience and training, it is NOT infallible. The jury has to analyze it as it analyzes any other personal opinion or factual testimony by a witness.

      “Expert testimony” is a testimony based on generally accepted scientific studies and tests (Frye Standard). Because this testimony relies on studies and tests, it implies that its results are infallible (exact science is by nature infallible). The jury has to accept that result as true and may not analyze the testimony as it analyzes any other personal opinion or factual testimony by a witness.

      Both “Pure Opinion” testimony and “Expert testimony” originate from experts. The jury (consisting of lay folks) most probably will not even see the difference between the two and will attach to Pure Opinion testimony the same weight it attaches to Expert testimony.

  8. pat deadder says:

    What does without prejudice mean,and category A B C witness I’m assuming A is most important Mr Owen is category B.What is DeeDee.

    • SearchingMind says:

      1. Category A witnesses are:

      • Eyewitnesses; Fact witness (DeeDee: she on the phoe with Trayvon and can testify to that fact; Ear witness (DeeDee: she was speaking to Trayvon moments before his murder and can testify to Trayvon’s utterances); Alibi witnesses and rebuttal to alibi witnesses; Witnesses present during the making of the defendant’s recorded or unrecorded statement (interrogating officers, Shellie Zimmerman, other civilian witnesses); Investigating officers; Witnesses known by the prosecutor to have any material information that tends to negate the guilt of the defendant as to any offense charged; “Child hearsay witnesses” (i.e. hearsay witnesses in cases involving a child victim); Expert witnesses who have not provided a written report and a curriculum vitae or who are going to testify to test results or give opinions that MUST meet the “Frye Test”.

      2. Category B witnesses are:

      • All those witnesses not listed as either Category A or C witnesses; they include, among others, Custodians of records or evidence, and experts who have filed a report and curriculum vitae and will NOT offer opinions subject to the “Frye Test.”

      • The defendant may not depose these witnesses without leave of Court.

      Rule 3.220(b)(1)(A) F.R.C.P. classifies witnesses based on their level of (FACTUAL) knowledge concerning the charged offense. Such classification is based on the witness’s ability to contribute towards determining the guilt or innocence of the defendant. Category B witnesses cannot testify to either ‘guilt’ or ‘innocence’ of anyone and are thus not classified as category A witnesses. But the testimony of category B witnesses can in some case be as crucial as those of a category A witness (e.g. Alan Reich’s, T. Owen’s, etc. findings that it was Trayvon uttering the death shriek on the 911 tape are as good as the testimony of an eyewitness who actually saw Trayvon uttering the death shriek).

    • SearchingMind says:

      “With prejudice” means: “that’s it. Over. End of story. This matter will not be revisited again!” :). The opposite is “without prejudice” (i.e. you may try again / you may bring up the issue again for reconsideration).

  9. Two sides to a story says:

    Reader poll – HLN Is Fogen’s story believable ? [Which one?]

    • LeaNder says:

      too easy to manipulate, tstas. You can vote over and over again, you simply need to empty your cache. Besides what audience does HLN have? I don’t know much about the channel.

      Was there a recent empirically more reliable poll?

      I am not sure what to think about Rasmussen, I vaguely remember once having asked them what their questionnaire looked like: recent poll on Zimmerman on trial.

      Pretty straightforward questions, if they show us what their questionnaire really looked like. Has HLN ordered the poll? They seem to plan a rather extensive coverage of the case. For whatever reason they do not give us the results of the media question.

      In February they did a poll that suggests that still 56% of Americans get their informations from TV. But only 6% rate news media as reliable.

      • Two sides to a story says:

        Yes, Leander – it’s not meant to be a scientific poll and Fogen supporters are crowing about it nonetheless. They usually do. Last night they felt encouraged that they had 44%. And will vote multiple times to manipulate it.

        One time one particularly rabid Fogen supporter who I’m certain many people recognize here who will probably end up being a Fogen himself was crowing about being ahead on a particular poll. I checked it and It had all of 11 people who had participated when he posted about it at the GZLC Facebook last year. Just sayin.’

        • cielo62 says:

          In the end, polls mean nothing. You can’t “vote” GZ not guilty. Somehow I think his Zidiots don’t get that. That’s what happens when you live your life on reality tv.

          Sent from my iPod

          • racerrodig says:

            This is a true Zidiot story. Last Sept a poll came out and we could say Guilty or Not Guilty on it. At the time it was over 80% guilty and some Zidiot argues that he’ll walk because it was not unanimous. After at least 25 posts back & forth it turns out this Zidiot did not know the difference between a poll and a jury vote…I tell you no lie.

      • Two sides to a story says:

        I don’t know of any truly scientific polls in this case.

  10. MichelleO says:

    Hello Fogan, it’s June 1st. Do you know where your balls are?

    • racerrodig says:

      You’re lucky I had just swallowed my ice tea………as is my monitor.

      Only 8 days, don’t leave home without ’em!!

    • Two sides to a story says:

      Take the stand and confess. You’ll be glad you did.

      • racerrodig says:

        Picture the scene in court, about day 3 after the trial has seated a jury, Fogen in the box sweating under Bernie’s questioning.

        BDLR “Mr. (Fogen) ……your story simply does not make sense, instead of making up all these new versions, why not try the truth……if it involves a cleansing of the soul, so be it.

        Fogen (whimpers, hangs head, stands up and screams)…………

        (get ready….here it comes……the big moment…….)

        “…….I confess…………..he made me do it…..!!!!!!! (points to Taaffe)

        That’s about as close as he’ll ever get to a confession…..or the truth.

      • pat deadder says:

        fogen can’t take the stand lies he told He punched me in the nose at the T I fell down.He came back and circled my carHe.asked his wife to commit pejury about the money.Said under oath he thought Trayvon was just a couple of years younger than him.Says he said punk on nen call yea right.He says dispatcher asked him to get where he could see him.Trayvon was on him angle of shot disproves this. He was screaming for help.Could not remember name of street even though entrance and exit says RVC and TTL.Someone told him at the scene he had a broken nose.He says Trayvon spoke after he shot him.Says Trayvon said You got a effin problem Homie He wasn’t running he was skipping.Fly swatting in reenactment.Lied to Singleton by omission No mention of shit he’s running then split second later jumps out of car to follow him.Went to get address but doesn’t mention this all important address to dispatcher.Sorry not good at this.These are just off the top of head.BDLR would destroy him if he gets on the stand.

    • Jun says:

      Fogen sold his balls with his autograph on them to Sundance for $1000 bucks #truestory

  11. Operacarla says:

    I love this site Malisha, Crane and Colin need to collaborate on a novel.

    • Malisha says:

      We can’t; FACT is stranger than FICTION. We’ll have to just take careful notes and then type, type, type.

    • LOL, I love the idea, but as Malisha points out, I seriously couldn’t make this stuff up!

      • colin black says:

        Same here in fact events in my real time real world at the momment are unfolding like a bizzareo world novel.

        Seriously last week I received not one but two letters from The House of Commons.

        From two seprate Mempers Of Parliment.

        Both relateing to the same set of events happening to moi an me better half.
        Legal alleged civil matters though in reality Criminal.

        Not on our parts but a multi millioin assosiation s misdeeds.

        And although one of the Penny Mourdant I contacted an was half expecting a reply.

        This other MP just came out the woodwwork have no idea how he knew about the matter.

        An to cap it all I watych the news that night an he is on tv doing the perp walk.

        Been arested for sexually asaulting a vulnarable copntistuent.

        An Ive got a letter on me side board an a couple of emails
        From his office saying will be in touch.

        As when I received his letter i fired him of an email outlineing some of my our issues an problems.

        Can never have enough MP s on your side I figured if a multi million houseing assosiatin is telling lies about you.
        Releaseing your DATA to finance an FRAUD agencies saying your to be BLACK LISTED ???

        Come on with a name like mine your always black listed.

        But they falsely flagged my name an adress as ?????

        An then admited they had done so but dut too a clerical error.
        They have filled THREE False eviction notices i8n the past year an basicly done everything they can to torrment and or break crush my resolve.

        An both I an my better half are both registyered disabled an vulnerable/
        My better half is bed bound
        An I have C O P D an incurable lung disease an thease fluckers know all this.

        How ever what they dont know is they picked the wrong flucker to fluck with…..

        • Wow. Unbelievable. First of all, COPD is a rough condition, I am sorry to hear this. And with your better half being bed bound, I don’t know how you guys make it, and I am ashamed of myself for ever complaining about anything, hearing how they did you. So sorry. Well, Colin, this place would not be the same without you, we admire yo and love your humor and we are not alone. This:

          “How ever what they dont know is they picked the wrong flucker to fluck with…..”

          oddly reminds me of this scene in The Big Lebowski, I don’t know how in the name of the Lord John Turturro kept a straight face in the “Nobody fucks with the Jesus” scene:

        • fauxmccoy says:

          colin — i wish you the best with your troubles. we may both be disabled, but i suspect we kick just as hard as we used to when necessary. please, kick all the ass that you need. wish i were there to help.

  12. kllypyn says:

    MEMO TO ALL JUSTICE FOR TRAYVON SUPPORTERS….I’d like to publicly apologize. to the Martin’s because over the past year and 4months in addition to getting angry when the Zimmerpukes would post lies about Trayvon,i also got angry at them for not publicly defending trayvon. And each time i felt like a low life scumbag. because i knew my anger was unwarranted. With what they have been put through what right did i have to be angry at them for?

    They did nothing but morn the lost of a son brother and cousin. and fought for justice for him. Sometimes i get really emotional about this case. I’ve been planning on this apology for months but i didn’t have the guts to write it because i was afraid of what you would think of me. I wanted to send it Mr Martin and Ms Fulton but i don’t know their e-mail addresses. A true justice for Trayvon supporter has no business betting angry at the Martin’s. Again i’m sorry. Kelly D Payne. P.S. Sometimes i get overly emotional about things

    • GZ is vetting his defense in the public arena. You can expect MOM to parrot many of the statements made by these zimmerpukes. So it stands to reason after witnessing so many revisions to GZ’s statements, they’ve decided to remain silent so he won’t be prepared for the questions when it really counts.

    • LeaNder says:

      Kelly, we have a saying in Germany, a hit dog barks or a dog that is hit barks. It means if you say something negative or bad about someone and s/he responds to it, there is some truth in what you said. It’s not one of my favorite proverbs, but there is a grain of truth in it.

      From a PR perspective, it wouldn’t be very good to respond to it either, since it may make even more people aware of the allegations than already are. I would strongly advise against doing it for that reason. At least in this context. It’s hard to control the message in a s/he said s/he said type of verbal fight context.

      I am pretty sure that both Sybrina and Tracy responded a little bit, or appropriately, but not too much. I remember for instance Tracy stating about the recent brouhaha, it had to be expected. That’s enough as far as I am concerned.

      If you have the sincere feeling you would like to apologize for your anger, why not simply sent it to Benjamin Crump and ask him to pass it on?

      Maybe they are aware that the defense strategy, is a strategy that can easily backfire? Why enlarge it by paying too much attention to it? I surely hope it will backfire on defense heavily. I also think that their more political argument in the writ is outmoded, anachronistic.

      • LeaNder says:

        Why enlarge it by paying too much attention to it?

        Or more importantly becoming a part of the debate, by joining it?

      • kllypyn says:

        IT TO CRUMP

      • colin black says:

        They have a saying in Scotland when something is OBVIOUS.

        Like Pesident Clinton got a left hook from Hilary for not haveing sexuall relations with an intern.

        Everyone knows even the dogs in the street know.

        Well allllll the dogs in all the Streets know foggagge is guilty.

    • Spoken from the heart, a rare gem it seems, thank you. I think it is likely that your message is seen/heard. I am not just saying that to blow smoke; I am basing the statement on the site’s traffic stats.

  13. Animaljunkie says:

    Very interesting from a scientific point of view i.e. empirical data (quantitative research) overshadowed the qualitative research of Dr Lamm!

  14. PYorck says:

    As far as I can tell the defense did not have more written material from the state experts than we have when they asked for their hearing. Famously they haven’t deposed Reich yet. I am not sure about the others.

    The thing is, the experts do not really describe their methods in any useful detail. That means that the request for a hearing is a stab in the dark. Based on that information alone they can’t have any specific objections.

    The defense mentions “spectrographic analysis”, but that is ridiculously general and frankly suggests that West doesn’t know what it is. That’s just a way to present sound information, either as a chart for humans to look at or as a virtual table full of numbers that a program can use. Any real analysis starts after that. As the quote in this article shows, spectrographic analysis in general has been around for decades and there is no chance whatsoever that it will be excluded in general.

    • Jun says:

      Spectrograph only measures the sound and wave form levels, it does not actually match voices. They use a different format to match voices.

    • colin black says:


      I suspect the Defence will not depose Reich untill they depose two other experts .

      Makeing him there 3rd expert deposed .

      The THIRD REICH has the sort of ring to it that there supporters just adore

  15. Jun says:

    So my guess is Fogen and Omara will lose that hearing considering Alan Reich has around 30 to 40 years experience doing this type of profession and he has testified using the same methods for federal and state trials and the science is very simple, as it is “does A sample sound like the voice of Trayvon?”

  16. GrannyStandingforTruth says:

    Hello Crane, that’s a good one! LOL! When I start back blogging, I’ll have to use that one for those pesty trolls. I had to stop blogging temporarily. The trolls are so arrogant they think I stopped because of them, which makes me laugh at them for NOT being too bright because it never occurred to them that I have a life outside of blogging. Me thinks that they give themselves too much credit. Smh!

    My daughter has a growth on her brain stem and leaking vessel, so I’m waiting to see what the doctors are going to do with my daughter. In the process of waiting, her doctor died. It’s been one crisis after another. To make a long story short, I’ve been through hell and high water, but I still manage to remain upbeat and work on finishing a goal I set out to do a couple of years ago and almost at the finish line. God is good!

    Btw, I miss all of you. Keep up the good work!

    • truthseeker66 says:

      Grany, I pray your daughter pulls through.

      • GrannyStandingforTruth says:

        Thank you truthseeker66. I believe she will. She has strong faith.

        Have a blessed and victorious day. I must get off and finish what I was doing.

    • You all have thoughtful comments says:

      I will pray for your daughter’s recovery, granny.

    • Oh my good Lord, I am so sorry to hear this. We are really praying and sending thoughts to you and your daughter. I hope she is getting the best possible care available for this serious issue.

    • colin black says:

      Good keep strong for both you and your Daughter Im no doctor but the fact its leaking is a good sign its probably A benign cyst .
      Still dangerous an willl have to be removed but a cyst is basicly a growth can be solid or hollow filled with liquid thick mucus puss basicly.

      And that means its not cancerous and also liquid /puss oozzing means its draining therfore wont excert any more pressure on brain or stem.

      A cancerous growth would not do this.
      So stay strong an tell your Daughter to think positive….

      Will be thinking of you an yours God Bless.

      • colin black says:

        PS Granny as if the vessel leaking they refer to is the growth/cyst wich I think it may well be .I cant think of any other vessells on the brain stem that would be leaking.
        An if so it would be a blood vessel an identifable an fairly simple to stop cautrise it with a laser or even suture it.
        I susspect the vessel is the cyst an the leak is the cysts discharge wich isnt poisonios its bacicly protein though as any one whom has burst a boil at times it can smell rank.

    • Two sides to a story says:

      I worked with a lady who survived very nicely a similar situation. Hope another doctor is on this pronto!

      Prayers and best wishes.

    • racerrodig says:

      Granny….a troll stomper from HP….as I recall ?? I’ll put your daughter and family on my prayer chain. Missed you as well.

    • LadyStClaire says:

      @ Granny, I will remember you and your daughter in my prayers and, I have faith that she will be alright because, GOD ALMIGHTY is in control, now and always. if we walk by faith and not by sight, he will never forsake his children.

    • Rachael says:

      Oh goodness – you and yours will be in my thoughts and prayers.

    • ic2fools says:

      Bless you Granny, ya’ll are in my prayers…

    • pat deadder says:

      Granny Praying you soon get answers Good ones.Waiting must be hell for you and her.I have a very good friend who is a retired doctor should I ask or mind my own business.You must be a wonderful person to be able to think of others at this worrisome time in your life.

  17. Off Topic to the class-act loser trolls living in a glass house who is going to Firedoglake and ‘recommending’ old articles that Fred and I have written related to any struggles we have had with addiction: 1) The Bridge of Sighs (by me) is published in print and won first place for creative non-fiction, and I wrote it while I was in prison. 2) Neither of us drink, but I have openly discussed my past with alcohol- perhaps it is you who needs an inerlock on your keyboard annnnd 3) Sorry y’all got backhanded on Tuesday but it wasn’t us, it was the rules of evidence.

    Quit abusing the recommend function at another site, and bring your issues here. We are happy to sort them out.

    Finally, go back to Dox school. None of this stuff is even remotely hidden or secret.

    Finally, some music for you:

    • crazy1946 says:

      Too bad that those who run and hide when confronted are unable to see how their actions are seen by the majority of people! These same people are the ones that do not have the intestinal fortitude to make those comments to your face, and have to be like little children and wait until they think you do not see or hear them to make their vile comments! It would be amusing to see their faces if by chance they were to confronted face to face by you and the Professor….

      • Exactly. Un-frigging believable that they would take the time and energy to abuse a site that we neither own, moderate, edit, or have anything to do with except post with. I am very sorry for FDL that they spammed the recommended list with some of our older posts. I/we have been way more open and honest with our private lives and struggles, so crap like this isn’t ‘doxing,’ it’s abuse of another site, plain and simple.

        I suppose that proves how chicken shit the trolls really are: they try to have it out with me in person, they apt to end up like Vizzini, in one of my all-time favorite scenes:

        AH-hahahaaa-ahhaha-ah ha….

    • Two sides to a story says:

      Great smack-down, Crane!

    • Dear Zimmerlovers,

      [this video does not exist; need a new link]

  18. fauxmccoy says:

    oooh, fascinating. i was aware of the differences between standards, but did not know it was a case regarding bendectin. i’m so glad we’ve made such progress in identifying and avoiding teratogens. as a pregnant woman, i suffered morning sickness that left no ‘glow’ unless it was a green glow about the gills as it lasted the entire 9 months, 24/7, up until delivery. knowing about bendectin made me wary of taking anything, so i did not, but lost serious weight during pregnancies. once, my midwife told me that i had to eat something and she did not care if it was coca-cola and cocopuffs. ‘ahhhhh’ a lightbulb went off and hot damn if that did not sound good. i ate just that, despite my job at a natural food store.

    thanks for the history and law lesson professor!

      • fauxmccoy says:

        oh PS, fred — received my SSDI check for the month and it’s donation time for you and crane. i’d like to say ‘go out and have a nice dinner, on me’. sadly, i suspect my contribution will not stretch quite that far, even in kentucky, but it is regular, so we’ve got that going for us.

      • Thank you so much fauxmccoy, we really so appreciate that! We haven’t been out in so long, I can’t even think of ….wait! Onion rings! Yes! Now I have a craving for them. Oh goodness, this will take thought, wow. So much thanks.

      • racerrodig says:

        Professor, with all the bluster the defense ran with that Fogen is “ready and willing to take the stand” do you think he will or is this more grandstanding in an effort to raise money.

      • Jun says:

        I think Fogen will but he will probably ask not to swear an oath or submit to cross examination LOL

        Then the judge will deny

        Then Fogen will have to get on the stand because that is the only way he can submit his lies for the trial and as per usual fashion BDLR will cross him and Fogen will lose his cool and lash out at the judge and jury and get tackled by the police and thrown in the slammer

        • racerrodig says:

          If he takes the stand, the second he mumbles “I do” the Holy Bible will spontaneously combust……and that’s always a sign God is ticked you used him for an alibi…..

        • cielo62 says:

          Jun- YES! And good time will be had by all (except GZ).

          Sent from my iPod

      • Jun says:

        Omara in June

        “We will be ready in April for SYG and in June for the trial”

        December approaches

        “We would like a 3 year continuance”

        Nelson “denied”

        April approaches

        Omara “We waive the SYG hearing”

        June approaches

        Omara “We request a 6 month continuance”

        Omara now

        “We will be ready but we need a fighting chance with 1 million”

        Future prediction when trial starts

        Omara “We need more time, 3 year continuance”

        • racerrodig says:

          “We will be ready in April for SYG and in June for the trial”

          That comment alone should actually be….”We’ll bs everyone along until April, then jerk around because it’s well, undisputed we can’t win a SYG Motion and if we actually though we could we wouldn’t even say anything about the trial, but since we’ll lose every Motion and waive SYG….we’ll just limp along and whine, cry and beg for bucks.

          Only 8 days Fogen………!!

      • Two sides to a story says:

        Next to the lie about how there’s no evidence that Fogen followed, saying Fogen wants to testify is the biggest whopper of them all. : / They’re just gunning for that 75k.

    • colin black says:

      Faux as a Scot I will let you in on a delicious porridge recipe .

      Just grap some nice musleie mix an match muslies with raisins nuts you know the drilll.

      Then place muslei in tupperware container enough for one seveing half a cup .

      Pour milk over muslei till covered mix maybe a wee dash of brown sugar and or honey mix.
      Cover tupperware dish loose with lid or plastic back.

      Place in microwave full power 4 minutes.

      Pour some cold milk an then eat the most delicious porrige ever.

      • fauxmccoy says:

        thanks, colin for the porridge recipe 🙂 it was a staple in my grandma’s kitchen, my dad’s and now mine. i will try your variation, i tend to do it the old fashioned way or sometimes in a small slow-cooker over night. i used good steel cut oats from your neck of the woods and make a nice compote out of dried fruits, nuts and maple syrup. the kids don’t complain 🙂

      • ic2fools says:

        I’m not a Scot Sir Black, but I have that regularly for breakfast here in the States. Nom, nom nom Yum!!! Thanks for sharing your recipe.

        I call mi mix fruit n oats. I enjoy making the oats first then adding fresh apples,dried cranberries, chopped nuts (walnuts or pecans), brown sugar and margarine. No guess what’s on the table for breakfast here tomorrow.

        Good start for the day that stays with one ’til lunch…


      • abbyj says:

        Colin, As porridge lovers here, this family will give it a try. Sunds irresistible. You’re poetic even in your recipes. Thank you.

  19. crazy1946 says:

    Will it be necessary to have the testimony of the experts introduced at the trial? If the experts are not allowed to be there, will the tapes still be allowed to be introduced as evidence? Is it realistic to think that anyone who listened to the tape could even think it was Fogen screaming and begging for his life? Will the defense actually offer any sort of realistic defense for this killer? Perhaps I should ask instead, is there any possible defense for the actions of this individual? Only five business days till the trial….

    • The 911 recording will be coming in regardless and even if the experts cannot testify, which isn’t going to happen, the jury will decide that Trayvon is uttering the death shriek because it is ended by the shot, plus the defendant said he kept calling for help after the shot because he thought he missed Trayvon.

      Therefore, it does not matter what happens at the Frye hearing.

      Either way, the defendant loses.

      • Jun says:

        I think Alan will testify and bring his bibliography of his work and also explain the science and how often it is accepted and used in over 30 to 40 years of the profession

        Then when he testifies at the hearing, I think even Nelson will conclude it’s Trayvon screaming

        But I could be incorrect about how the hearings work

      • Two sides to a story says:

        “Either way, the defendant loses.” A comforting thought, Professor.

        Meanwhile, the Treepers are obsessing about Trayvon’s journey to Sanford and the alleged irrelevant video of what is now thought to be homeless men fighting.

      • Rachael says:

        They really do have ADD, don’t they. They are just so busy demonizing Trayvon that they just can’t focus their attention on what happened that night.

  20. fauxmccoy says:


  21. Rachael says:


    • Two sides to a story says:

      Sybrina is so sweet.

    • awe, she said he was an affectionate teenager, that’s so sweet!
      even as a girl I was horrified when my mom would pick me up from school!

      I just hope my son is like Trayvon!! cas I sure wasn’t…he was a good boy. what a damn shame.

      • dianetrotter says:

        Sabrina is articulate also! I’m sorry that I pay attention to things like that; however, this is an indication that she does not meet the stereotype. Her son does not fit the stereotype.

    • Nellie Nell says:

      What a wonderful woman of God. Her honesty and integrity shines bright and I love her for that. My heart still bleeds for her because her baby boy was taken away from her at the hands of an idiot that has no respect for human life. She will get justice and I will be watching closely for the day that the murderer will be handed his sentence 25 to life! J4T 6.10.13

    • abbyj says:

      Sybrina’s inner strength glows, and my admiration goes out to her. I do not know that I could have the courage to face the catastrophic loss that she has. She is a model of dignity beyond what any of us could ever hope to achieve in this lifetime. All my thoughts and prayers are with her and her family.

  22. aussie says:

    (in case)

    Ah so that is what they call “blind them with science”.

    MOM &Co can’t even spell some of the words in this article, so don’t like their chances of winning.

    • Lonnie Starr says:

      MOM can’t attract any experts after he degraded the expert he sought to have the court reduce his fees, so that MOM could then use him on the cheap.

      What expert would like to risk being exposed to being examined in a court, over his fees, then degraded by the very people who have offered him employment, simply to have his fees lowered?

      In my judgement, not a one! Experts live and die by their reputation, period. MOM threatens to place any expert he approaches, at huge risk of having their credentials degraded, in a court of law, by an irascible loose cannon, casting about in an uncontrollable rage. Without morals, loyalty, honor or even good sense.

      Who in the world would be so foolish as to seek his employ, would not be worth their own testimony.

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