EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, April 7, 2010

Cellular: Court Of Special Appeals Of Maryland Finds Expert Testimony Required For Cellular Phone Tracking Testimony

Maryland Rule of Evidence 5-701 provides that

If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.

Meanwhile, Maryland Rule of Evidence 5-702 provides that

Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.

So, is testimony about where a suspect (generally) was at the time of a crime based upon cellular telephone tracking covered by Rule 5-701 or 5-702? That was the question addressed by the Court of Special Appeals of Maryland in its recent opinion in Wilder v. State, 2010 WL 1077325 (Md.App. 2010).

In Wilder, Aubrey David Wilder was convicted of various charges of first-degree assault, reckless endangerment, and the use of a handgun in the commission of a crime of violence based upon a shooting incident in the early morning hours of July 25, 2007 in Windsor Mill, Baltimore County. At trial, over defense counsel's objection, Detective Hanna "testified at length about mapping Wilder's whereabouts around the time of the shootings by the use of cell phone tracking and GPS technology."   

This testimony placed Wilder in the general vicinity of the shooting, but the prosecution did not qualify Hanna as an expert witness. This failure then formed the partial basis for Wilder's appeal. In his appellate brief, Wilder asserted that

[t]he admission of Detective Hanna's testimony directly contradict[ed] the holding of Ragland v. State, 385 Md. 706, 870 A.2d 609 (2005). In Ragland, the Court of Appeals held that "Md.Rules 5-701 and 5-702 prohibit the admission of “lay opinion” testimony based upon specialized knowledge, skill, experience, training, or education.” An expert from the cell phone company or an engineer familiar with cell phone technology would have been the proper person to testify as to those matters.

The court then noted that courts in other states had spilt on the issue and decided to side with those courts finding that expert testimony on the issue is required and decided to side with those courts requiring expert testimony because

In the case before us, Hanna's testimony implicated much more than mere telephone bills. He elaborated on the information provided by the cell phone records-the bills and records of calls-by his use of a Microsoft software program to plot location data on a map and to convert information from the cellular phone records in order to plot the locations from which Wilder used his cell phone. This procedure clearly required "some specialized knowledge or skill ... that is not in the possession of the jurors[.]"...

Following Ragland, the Court of Appeals has reiterated that "opinions based on a witness's 'training and experience ... should only [be] admitted as expert testimony, subject to the accompanying qualifications and discovery procedures.'"...Hanna's description of the procedures he employed to plot the map of Wilder's cell phone hits was not commonplace. Because his explanation of the method he employed to translate the cell phone records into locations is demonstrably based on his training and experience, we conclude that he should have been qualified as an expert under Md. Rule 5-702, and that the State was obliged to fulfill its discovery obligations....The trial court ought not have permitted Hanna to offer lay opinion testimony about the cell site location, and to describe the map created based on the cellular telephone records.



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