All Female Jury to decide Zimmerman case, Opening Statements Monday at 9 am

June 20, 2013

Thursday, June 20, 2013

Good evening:

We have a jury, an all female jury.

B-29
B-76
B-37
B-51
E-6
E-40

The four alternates:

E-54
B-72
E-13
E-28

Two males and two females.

Here’s a link to fauxmccoy’s chart on the jurors.

Those in green made the jury. Those in red were stricken.

I tried hundreds of cases during my 30 year career and never had an all female or an all male jury.

5 of the 6 women are white. One is Hispanic.

5 of the 6 women are mothers.

I would be very worried, if I were George Zimmerman, because I believe those mothers are not going to believe him. I think they are going to hold him accountable for killing an unarmed teenager.

I am unhappy that none of the jurors are black, but I do not believe that is going to affect the final outcome of this case.

I predict GZ will testify because Mark O’Mara did not voir dire the panel of jurors regarding a defendant’s right to remain silent and not testify. When my clients decided not to testify, I always made sure that the jurors understood that my clients were not required to testify and no one could assume that their silence was evidence of guilt.

Judge Nelson announced that counsel will give their opening statements beginning at 9 am EDT on Monday morning.

After she dismissed the remainder of the panel and swore in the jurors, Judge Nelson excused the jury and completed the evidentiary part of the Frye hearing.

Assistant State Attorney Manthei summed up the situation when he said there was nothing novel or new about the methodologies used by the State’s experts. What is new is a move across several different scientific disciplines to establish a universal set of standards to use when attempting to match a recording of an unknown voice to a database of recorded voices of known individuals in order to declare a match.

That is a far more complicated task than listening to a known voice and excluding that known individual as the source of a voice on a recording. There are only two possible sources of the terrified shriek that ends with the shot and it’s not difficult to exclude the armed defendant who admitted firing the fatal shot as the source of that scream.

Manthei added that the State was not responsible for the recent news reports that the defense had an expert who identified GZ as the source of the scream.

And some PJs mentioned hearing that in the news before reporting for jury service.

However, as it turned out, the defense could find no expert to testify to that opinion and the reports were false.

If I were Judge Nelson, I would rule that the State’s experts may testify and express their opinions. The defendant’s objections go to the weight of the evidence, not its admissibility.

Judge Nelson will issue her ruling after court reconvenes at 9 am tomorrow.

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Zimmerman: Day 8 Liveblogging Jury Selection Completed

June 19, 2013

Wednesday, June 19, 2013

Good afternoon:

We have completed liveblogging the 8th day of jury selection.

Bernie de la Rionda spent the day teaching and indoctrinating the panel of 40 prospective jurors (PJs) with the legal foundation of the case that he will present to them in opening statement. Judging by their reaction, he succeeded in building rapport and trust.

The defense has a big mountain to climb tomorrow.

Bernie used a mixture of one-at-a-time voir dire as to the entire group and then switched to what we used to call the Donahue Method after the former TV host, Phil Donahue.

We would never have been allowed to conduct a classroom style multiple-hour education of the panel regarding legal principles as Bernie did.

Judges instruct on the law, not lawyers.

Voir dire means to question.

During his initial questioning of the panel, he asked each individual juror how long they had lived in Seminole County and Florida, their marital status and children, and what they liked to do with their spare time.

Then he used the Donahue Method to question the panel of 40 as a group on the following subjects:

1. Knowledge of the defendant, lawyers, court personnel and witnesses to be called;

2. Familiarity with TV programs about forensics, cops and the law;

3. Difference between direct and circumstantial evidence;

4. Whether anyone was arrested and prosecuted for a crime;

5. Victims of crime, particularly violent crime;

6. Experience with Neighborhood Watch programs;

7. Whether anyone believes they have the right to take the law into their own hands;

8. Whether anyone believes any person by reason of wealth, education, employment, gender, race, ethnicity, religion, age, language or dress should be treated differently under the law;

9. Whether anyone has been a witness before or served on a jury;

10. Member of law enforcement or knows someone who is;

11. Whether anyone has medical experience or knowledge;

12. Owns a gun, has a license to carry concealed, NRA membership;

13. Whether people who own guns have a responsibility to learn how to use them;

14. Whether anyone is a fitness freak or trained fighter or been in a fight;

15. Whether anyone has special knowledge or training in cell phones, phonetics, linguistics, or DNA testing; and

16. Whether anyone would not be able to look at gruesome photographs for their evidentiary value.

No one was excused today although I believe 2 PJs should be excluded for financial and familial hardship, especially since the trial is expected to last 2-4 weeks and the jury will be sequestered. Both are Hispanic.

B-29 is a married mother with 8 children at home. The oldest is 22. She works as a CNA. She is juror #2 in the box and would be replaced by B-51, a retired white female from Oviedo with a dog and 20-year-old cat. Knows a good deal about the case, but said “I’m not rigid in my thinking.” She moved to Florida from Atlanta and was the Director of a call center for 1,200 employees.

P-67 is an auto mechanic whose job might not be there after the trial. He is 22nd on the list of 40.

The defense will voir dire tomorrow starting at 9 am EDT.

If the defense has not completed questioning the PJs by 2 pm, Judge Nelson will excuse them for the day in order to resume and complete at least the evidentiary portion of the Frye hearing. The prosecution will be presenting one rebuttal witness, Tom Owen.

I doubt she will be ready to issue her decision at the conclusion of the hearing, so look for it early next week, probably Monday.

I will see you all tomorrow morning at 9 am EDT.

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Zimmerman: Day 7 of Jury Selection Completed

June 18, 2013

Tuesday, June 18, 2013

Good afternoon:

We have reached the magic number of 40 prospective jurors (PJ) passed for cause on the issues of hardship and exposure to pretrial publicity.

1. B-12
2. B-29
3. B-76
4. B-7
5. B-35
6. B-37
7. B-51
8. B-86
9. E-6
10. E-40
11. E–54
12. E-73
13. M-75
14. B-61
15. B-72
16. E-22
17. E13
18. E-28
19. K-80
20. K-95
21. P-67
22. G-14
23. G-29
24. G-47
25. G-63
26. G-66
27. G-81
28. H-6
29. H-7
30. H-18
31. H-29
32. H-35
33. H-81
34. H-69
35. H-86
36. I-5
37. I-19
38. I-24
39. I-33
40. I-44

As I have previously described the likely process:

When she gets to 40, she will gather that group together seating the PJs in the jury box, and subsequently the benches, in the order in which they were called and likely instruct them to raise their hands indicating an affirmative answer as she asks a series of questions, pausing to record each PJ’s affirmative answer to each question.

For example, she might ask for a show of hands by each PJ who has been a victim of a crime and write down each PJs number who raises their hand.

After she completes her list of questions, the lawyers, starting with Bernie de la Rionda, will question the first PJ on the list (B12) regarding each question she answered affirmatively. After both lawyers have finished with B12, they will pass or challenge her for cause. If she is excused, she will be replaced in the box by PJ B51 (she is 7th in the order).

This process will be repeated with B51 until she is passed or excused for cause. If she is excused, her seat will be taken by B55. If she is passed, the lawyers will question B29, the PJ in the second seat in the box.

This procedure likely will be followed until 30 PJs have been passed for cause.

Then the lawyers will exercise their peremptory challenges, which is usually done secretly with the lawyers passing back and forth a sheet of paper alternately listing a PJ number until one or both sides exhaust their allotment of peremptory challenges.

If one side accepts the jury of 6 before exhausting their peremptories, they retain the right to use a peremptory challenge to excuse the PJ who replaces a member of the jury struck by their opponent after they accepted the jury.

Judge Nelson announced in court that she intends to begin at 9 am EDT and recess at 3:45 pm EDT, if jury selection has not been completed.

She will reconvene court at 4 pm EDT for the State’s rebuttal case in the Frye Hearing.

The State is going to call one witness: Tom Owen.

Jury selection will resume Thursday morning and continue until completed.

Opening statements will follow jury selection.

I estimate Friday morning for opening statements.

See you in court tomorrow morning at 9 am EDT.

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Zimmerman: Day 6 of Jury Selection Completed

June 17, 2013

Monday, June 17, 2013

Good evening:

Judge Nelson just recessed court for the day at 8:30 pm EDT after a very long day in court.

Day 6 of jury selection concluded at 4 pm. Counsel questioned 8 prospective jurors (PJs), 4 were excused for cause.

The 4 who were passed for cause on the hardship and pretrial publicity issues are H7, H18, H29 and H35.

They join the pool of 29 PJs (Total 33).

Here is the updated list of 33 PJs for your scorecard:

1. B-12 F 40s-50s White
2. B-29 F 40s Black
3. B-76 F 50s-60s White
4. B-7 M 40s-50s White
5. B-35 M 40s-50s Black
6. B-37 F 50s White
7. B-51 F 60s-70s White
8. B-55 F 20s E. Indian
9. B-86 F 50s White
10.E-6 F 20s-30s White
11.E-40 F 50s-60s White
12.E-54 M 60s-70s White
13.E-73 F 60s White
14.M-75 F 30s Black
15.B-61 F 20s White
16.B-72 M 20s White/Bi-racial
17.E-22 F 50-60 Black
18.E-13 F 20s White
19.E-28 F 50s-60s White
20.K-80 F 40s-50s White
21.K-95 F 40s-50s White
22.P-67 M 40s-50 Hispanic
23.G-14 F 40s-50s White
24.G-29 F 30s Black
25.G-47 M 20s White
26.G-63 M 20s Mixed
27.G-66 F 50s White
28.G-81 M 30s-40s Black
29.H-6 M 30s-40s White
30.H-7 M
31.H18 M
32.H29 M
33.H35 F

Judge Nelson wants to get a pool of 40 PJs passed for cause on hardship and pretrial publicity before she switches to group voir dire.

She will gather that group together seating the PJs in the jury box, and subsequently the benches, in the order in which they were called and likely instruct them to raise their hands indicating an affirmative answer as she asks a series of questions, pausing to record each PJ’s affirmative answer to each question.

For example, she might ask for a show of hands by each PJ who has been a victim of a crime and write down each PJs number who raises their hand.

After she completes her list of questions, the lawyers, starting with Bernie de la Rionda, will question the first PJ on the list (B12) regarding each question she answered affirmatively. After both lawyers have finished with B12, they will pass or challenge her for cause. If she is excused, she will be replaced in the box by PJ B51 (she is 7th in the order).

This process will be repeated with B51 until she is passed or excused for cause. If she is excused, her seat will be taken by B55. If she is passed, the lawyers will question B29, the PJ in the second seat in the box.

This procedure likely will be followed until 30 PJs have been passed for cause.

Then the lawyers will exercise their peremptory challenges, which is usually done secretly with the lawyers passing back and forth a sheet of paper alternately listing a PJ number until one or both sides exhaust their allotment of peremptory challenges.

If one side accepts the jury of 6 before exhausting their peremptories, they retain the right to use a peremptory challenge to excuse the PJ who replaces a member of the jury struck by their opponent after they accepted the jury.

In other news today, the defense rested its case in the Frye hearing after calling Dr. James L. Wayman.

Dr. Wayman testified that science does not have the capacity yet to identify who screamed in the background of the 911 call or identify anything said.

In a surprising development, Don West may have provided him with a document that does not describe the test that Tom Owen conducted thereby rendering Dr. Wayman’s criticism of Owen’s results irrelevant.

The State is going to call Owen to the stand in rebuttal on Wednesday at 4 pm after the court concludes jury selection for the day.

Jury selection resumes tomorrow morning at 9 am EDT.

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Expert opinions about the death shriek are admissible at trial

June 9, 2013

Saturday, June 9, 2013

Good afternoon:

The defense presented the testimony of two expert witnesses yesterday, Dr. Peter French from the UK and George Doddington from the United States, who agreed with Dr. Nakasone of the FBI Crime Lab that there is insufficient information in the background of the recorded 911 calls with which to form an opinion regarding whether Trayvon Martin or George Zimmerman uttered the terrified death shriek.

The three experts also agreed that there is insufficient information to support an opinion regarding whether there are any identifiable words or phrases in the background of those calls.

Note that the three experts have described the prosecution and defense effort to rely on expert witnesses to identify the source of the terrified death shriek, as well as any words or phrases that either of them might have used, as an absence-of-evidence problem. That is, they agreed that the methodologies used by the prosecution experts are generally accepted by audiologists and neither novel nor new.

This conclusion is all that is required to satisfy the Frye rule, since the rule is a counting-heads test that establishes a threshold requirement or legal foundation to introduce an expert opinion that is based on a novel scientific theory or new methodology. The expert’s conclusion is irrelevant.

In other words, there was no need for a Frye hearing since the prosecution experts based their opinions on long accepted methodologies. Therefore, their opinions are admissible.

How much weight should be accorded to those opinions is a separate issue that only the jury can decide.

Defense counsel have focused their effort during the Frye hearing on attacking the validity of the opinions expressed by the prosecution experts. They are going to have to repeat that effort during the trial.

I predicted long ago that expert opinion regarding who uttered the terrified death shriek would not play a significant role in the outcome of the trial.

If I were arguing the State’s case to the jury, I would emphasize the strength of the circumstantial evidence that proves Trayvon Martin uttered the shriek. I would briefly add that the conclusions reached by the prosecution experts independently confirm the circumstantial evidence.

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Prosecution experts exclude the defendant as the source of the death shriek

June 7, 2013

Friday, June 7, 2013

Good evening:

The Frye hearing is developing much as I expected it would, although I am surprised by how far afield the testimony has wandered.

The scope of the hearing should be confined to determining whether the methodologies used by the experts are generally accepted by forensic audiologists. Dr. Nakasone, Tom Owen and Dr. Reich agreed that they are and that resolves the Frye inquiry.

The defense presented evidence questioning the accuracy of the results due to the very short (3-second recording) length of time in which the death shriek is not competing with other sounds. However, that argument and the rest of the defense arguments affect the weight that should be given to the results rather than the admissibility of the evidence.

Therefore, we basically watched a full dress rehearsal of the defense case challenging the accuracy of the opinions expressed by Tom Owen and Dr. Reich.

They agreed that the defendant did not utter the death shriek and indeed the circumstantial evidence independently confirms their opinions.

I confess that I had a difficult time hearing what the experts were saying because the audio was fuzzy and cutting in and out.

West’s monotone and stubborn nitpicking instead of focusing on the general acceptance issue, which is the purpose of the Frye hearing was quite annoying.

I think the defense committed a potentially serious tactical error by asking for a Frye hearing this close to trial because they have little or no chance to win and the hearing creates an opportunity for the State to remind everyone that their experts have excluded the defendant as the source of the death shriek.


Watch and Comment: Zimmerman Frye Hearing Livestream

June 6, 2013

Thursday, June 6, 2013

Good morning:

Judge Nelson set aside today and tomorrow for a Frye hearing regarding the admissibility of expert testimony about the death shriek and a hearing on the defense motion for sanctions and a judicial inquiry into alleged discovery violations by the State.

Not sure which order she plans to hear these motions, but I am sure we will find that out when the hearing starts in about 25 minutes @ 9 am EDT.

Here is a link to the livestream:

http://wildabouttrial.com/george-zimmerman-live-stream.html

Comment below.

Due to inclement weather, Crane and I have decided not to take our computers with us on our trip to TN for a doctor’s appointment. We will be with you for the first 1.5 hours and catch up with you later after we return.

Peace


What to expect tomorrow at the hearings in the Zimmerman case

June 5, 2013

Wednesday, June 5, 2013

Good morning:

Except for RZ, Jr.’s unsupported claim that Dr. Alan Reich’s opinions are based on voodoo science, nothing new has been reported in the press today about the case.

Speaking of new, the purpose of a Frye hearing is to determine whether a new or novel scientific theory or methodology is generally accepted in the scientific community. If the answer to the question is “No,” evidence obtained using that theory or methodology will be excluded and the jury will never hear about it.

If the theory or methodology used is not novel or new, the evidence will be admitted and objections to the accuracy of the results will go to weight and not admissibility. In other words, the jury will determine how much weight to assign to the evidence.

I think the defendant’s objections go to weight rather than admissibility, since the technology used is not novel or new.

Therefore, I am predicting that Judge Nelson will deny the defense motion to exclude testimony by the defense audiologists, including Dr. Reich.

The other motion scheduled for tomorrow is the defense motion for sanctions and a judicial review of alleged prosecution discovery violations. This will involve a continuation of the hearing that began last Tuesday with Wesley West on the stand. West, the former Nassau County prosecutor who resigned due to differences of opinion with State Attorney Angela Corey last December, represents whistleblower Ben Kruidbos, the Fourth Circuit Director of Information Technology who is going to testify that Bernie de la Rionda had photographs and video from Trayvon Martin’s cell phone that he did not disclose to the defense.

As I have said before, “Who cares?”

BDLR turned over the BIN file to the defense back in January, but the defense did not hire anyone to extract it or purchase the software to do it themselves.

In addition, the information on the phone is not relevant, admissible or exculpatory and, in light of Mark O’Mara’s lie about a video supposedly depicting Travon laughing as his buddies beat up a homeless person, O’Mara should have the decency to withdraw the motion and apologize for filing it.

He will not do that, of course.

I would deny his frivolous motion and fine him, if not jail him for contempt, but Judge Nelson is nicer than I am, so she will just deny it or hold off on issuing a ruling until after the trial, which is what she did with the last defense motion for sanctions.

The testimony from the audiologists should be interesting and worth listening to. After they are finished testifying, I think O’Mara will deeply regret having asked for a Frye hearing.

This is a golden opportunity for BDLR to inform the jury panel, the nation and the world on the eve of trial that Trayvon uttered the death shriek.

The hearing is scheduled to begin at 9 am EDT.

We will live blog on the road via livestream from a motorcycle somewhere deep in Tennessee.

Ciao, baby.

______________________________________________________________

Please keep those donations coming.

We’ll need the gas money to get home.

Many blessings to all of you from

Fred and Crane


Zimmerman defense stumbled into money trap

May 19, 2013

Sunday, May 19, 2013

ChrisNY~Laurie said,

Why haven’t we seen any reciprocal discovery? I’d like to see what the defense has turned over to the State. Do we not get to see reciprocal discovery?

The Defense has expert witness’ that they would like to call via video conferencing at the next hearing, and filed a motion for approval. Does the Judge approve or deny this motion before the next hearing date or wait and tell them during the hearing when she gets to that motion? I haven’t even seen a motion in reply from the State yet, so maybe they have no objections to this. I don’t see how they don’t considering the defense did not name these experts, unless they did through emails or something.

Let’s not place the cart before the horse. Judge Nelson first has to decide whether to grant the defense motion for a Frye hearing. She will decide that motion at the hearing on May 28th.

I do not believe she will grant the motion because O’Mara has not made a proper showing. He needs affidavits from experts asserting that the technology/methodology used by the prosecution’s experts is not generally accepted in the relevant scientific community (i.e., audiologists). He hasn’t done that.

If she were to grant the motion, however, I do not believe she would conduct it via video conferencing. Cross examining someone on a video screen is not the same as cross examining them in person when the witness is not on his own turf with support at the ready off camera. I do not believe Bernie de la Rionda would agree to O’Mara’s request. I certainly would object if I were the prosecutor. I do not believe Judge Nelson would grant O’Mara’s request over de la Rionda’s objection.

O’Mara appears to be caught up in a money trap caused by frivolous expenditures of internet contributions and now he cannot afford experts.

Too bad, so sad.

The answer, as I have been suggesting for several months, is to attempt to get the defendant declared indigent so that the court will pay for the experts, but O’Mara and his client do not want to go there.

I suspect the reason is they do not want the internet fund shut down and turned over to the Court for reimbursement.

Greed and stupidity are quite the double whammy.

They have only themselves to blame.

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Writing articles every day and maintaining the integrity and safety of this site from people who would like nothing better than to silence us forever is a tough job requiring many hours of work.

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Zimmerman: Pssst hey buddy what’s a Frye hearing

May 7, 2013

Tuesday, May 7, 2013

To Frye or not to Frye,
that is the question.
Whether ’tis nobler in the mind
to suffer the slings and arrows
of outrageous fortune
or to take arms against
a sea of troubles
and by opposing end them.

Hamlet, Act III, by William Shakespeare

Good morning:

I write today to explain the Frye Rule and Mark O’Mara’s latest strategic mistake. Let’s begin with the mistake.

If Judge Nelson grants his motion, there will not be any testimony by an expert witness regarding the identity of the person who uttered the terrified shriek. That will not help the defense because that intense, high-pitched, and prolonged nightmarish shriek of sheer terror ends abruptly with the fatal gunshot to the heart.

Just as it does not take a weatherman to tell which direction the wind blows, no juror is going to have any difficulty figuring out that the person who uttered that inhuman shriek is the victim of that gunshot. No juror is going to believe that the person armed with the gun; who pulled it out of a holster; who extended his arm; who aimed the gun taking care to make sure his left hand was out of the way; and who pulled the trigger at point-blank range is the person who screamed.

I am certain the prosecutor will not forget to remind the jury that the defendant told the police that he kept screaming for help after the shot because he thought he missed Trayvon Martin.

Apparently, Mark O’Mara has not listened to that agonizing shriek because, if he had listened to it, he never would have filed this ridiculous motion that can only hurt his client, if Judge Nelson grants it, since the absence of expert testimony would simplify identifying Trayvon as the source of the shriek while also disproving the defendant’s claim that Trayvon was beating him to death and attempting to smother him when he fired the fatal shot.

Breath. Taking. Stupidity.

Now, let’s take a look at the Frye-hearing request.

Every once in awhile someone develops a new theory or a new way of performing some task (i.e., a new methodology). A lawyer finds out about it and decides he wants to apply that new theory or methodology to win a case. Opposing counsel says, “Not so fast, pal. Not without a Frye hearing.”

A Frye hearing is a pretrial hearing to determine if evidence obtained pursuant to a new theory or methodology should be admitted or excluded during the trial. Think of it as a judicial screening device to exclude potentially inaccurate and unreliable evidence based on a new untested theory or methodology.

We call it a Frye hearing because the first published case that dealt with this issue was Frye v. United States, 293 F. 1013 (D.C. Cir 1923). Judge Van Orsdell laid out the facts:

A single assignment of error is presented for our consideration. In the course of the trial counsel for defendant offered an expert witness to testify to the result of a deception test made upon defendant. The test is described as the systolic blood pressure deception test. It is asserted that blood pressure is influenced by change in the emotions of the witness, and that the systolic blood pressure rises are brought about by nervous impulses sent to the sympathetic branch of the autonomic nervous system. Scientific experiments, it is claimed, have demonstrated that fear, rage, and pain always produce a rise of systolic blood pressure, and that conscious deception or falsehood, concealment of facts, or guilt of crime, accompanied by fear of detection when the person is under examination, raises the systolic blood pressure in a curve, which corresponds exactly to the struggle going on in the subject’s mind, between fear and attempted control of that fear, as the examination touches the vital points in respect of which he is attempting to deceive the examiner.

In other words, the theory seems to be that truth is spontaneous, and comes without conscious effort, while the utterance of a falsehood requires a conscious effort, which is reflected in the blood pressure. The rise thus produced is easily detected and distinguished from the rise produced by mere fear of the examination itself. In the former instance, the pressure rises higher than in the latter, and is more pronounced as the examination proceeds, while in the latter case, if the subject is telling the truth, the pressure registers highest at the beginning of the examination, and gradually diminishes as the examination proceeds.

Prior to the trial defendant was subjected to this deception test, and counsel offered the scientist who conducted the test as an expert to testify to the results obtained. The offer was objected to by counsel for the government, and the court sustained the objection. Counsel for defendant then offered to have the proffered witness conduct a test in the presence of the jury. This also was denied.

Judge Van Orsdell then proceeded to define the new rule:

The rule is that the opinions of experts or skilled witnesses are admissible in evidence in those cases in which the matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it, for the reason that the subject-matter so far partakes of a science, art, or trade as to require a previous habit or experience or study in it, in order to acquire a knowledge of it. When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that particular science, art, or trade to which the question relates are admissible in evidence.

Numerous cases are cited in support of this rule. Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.

(Emphasis supplied)

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.

As I recall, two experts used different methodologies to compare the shriek to a voice exemplar provided by the defendant. One methodology has been used for many years and the other one, which was developed recently, involves the use of a software program.

Both experts have excluded the defendant as the source of the scream.

Since the first method has been used for many years, it probably has survived a Frye challenge in Florida.

The second method may be too new to have been challenged at a Frye hearing.

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.

Notice that regardless whether Judge Nelson grants or denies O’Mara’s motion, the State will still be required to lay a proper foundation for each of its expert audiologists at trial pursuant to Evidence Rule 702 that the witness is a duly qualified expert in the field and the result obtained using the particular methodology in question will assist the jury to decide who is screaming.

In conclusion, if I were the prosecutor, I would be inclined to try the case without putting on any audiologists during my case-in-chief for the simple reason that I do not believe they are necessary. This is another illustration of the KISS rule.

BTW, all that sparring about whether Tracy Martin could identify Trayvon as the source of the shriek does not matter.

Hardly anyone ever shrieks like that and lives to tell about it, so it stands to reason that no one, including his father, ever heard Trayvon utter a shriek like that. This may explain why it may not be possible for any expert to positively identify the source of the shriek without considering the circumstances or context that produced it.

That’s why it sounds inhuman.

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Writing articles every day and maintaining the integrity and safety of this site from people who would like nothing better than to silence us forever is a tough job requiring many hours of work.

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