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Univ. of South Carolina School of Law

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Tuesday, November 13, 2007

Faces of a Stranger?: Prosecution Tries to Prevent Frye Hearing in Professor Rafael Robb's Murder Trial

Economics Professor Rafael Robb is facing charges that he murdered his wife, Ellen.  Ellen Robb was found bludgeoned to death in the couple's Pennsylvania home, and Professor Robb is charged with first degree murder and staging a break-in to cover up the crime.  The prosecution seeks to introduce into evidence a report by a psychologist and a psychiatrist who examined photographs of the victim and the crime scene.

The report concluded that "the obsessive intensity of force used against Mrs. Robb went beyond that necessary to cause her death" and that the killer demonstrated a "need to depersonalize" Ellen Robb.  The experts would testify that Ellen Robb was "specifically targeted for death" by a killer who "wanted to wipe her face off the map."  The report and the experts' opinions would greatly discredit the defense that Ellen Robb was killed by a random burglar, rather than by her husband.

On Friday, the Pennsylvania judge hearing the case was to hold a Frye hearing to determine whether the expert testimony and report were admissible because the technique or theory upon which they were based had general acceptance in the relevant scientific community (Pennsylvania has not adopted the federal Daubert test).  The prosecution, however, delayed the hearing by arguing that a Frye hearing did not apply to the proposed report and testimony because the testimony in question concerned experts' opinions, not scientific testing.

I don't believe that this argument has any merit.  For instance, in Callum v. Scott, 2002 WL 31951308 (Pa.Com.Pl. 2002), the court found that Frye applied to a doctor's report and his expert opinions based upon that report.  In the same way that Daubert applies to both scientific and non-sceintific expert opinions (See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999)), Frye also applies even when the expert opinion at issue is non-sceintific.

Thus, over the prosecution's objections, a Frye hearing should be held, and it is unlikley that the expert evidence will be admitted.  Courts across the country have ruled that expert testimony basing a killer's psychological profile on crime-scene photographs is inadmissible.  While what other courts have done with evidence is not conclusive in the Frye analysis, it is a very relevant factor. See, e.g., Commonwealth v. Moore, 635 A.2d 575, 582 (Pa. Super. 1993).  Thus, unless the prosecution can characterize the expert evidence at issue in a unique manner, the court is likely to find it inadmissible.

-CM

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