EvidenceProf Blog

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

Friday, February 26, 2016

The Game is Not Worth the Candle: Is Chad Fitzgerald's Testimony Enough For a New Trial?

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In yesterday's post, I noted how Judge Welch can grant Adnan a new trial even without delving into the substantive issue of whether AT&T cell tower pings from incoming calls were (un)reliable back in 1999. Simply put, the opinion of the Court of Special Appeals of Maryland in Wilder v. State, 991 A.2d 172 (Md.App. 2010), requires an expert to vouch for the accuracy of such information, and the State's cell phone/tower expert at trial, Abraham Waranowitz, has now indicated that he would not have given such testimony if he had been shown the fax cover sheet/disclaimer.

If Judge Welch does delve into this substantive issue, it appears that there is a "battle of the experts." According to Keene Corp., Inc. v. Hall, 626 A.2d 997 (Md.App. 1993), this substantive issue should be resolved in Adnan's favor unless Judge Welch finds State expert Chad Fitzgerald more knowledgeable than Waranowitz and defense expert Gerald Grant. But even if Judge Welch does find Fitzgerald more knowledgeable, there is still a good chance that Judge Welch would rule in Adnan's favor.

In State v. Collins, 464 A.2d 1028 (Md. 1983), the Court of Appeals of Maryland dealt with the question of whether hypnotically refreshed testimony was per se inadmissible or whether "testimony of a previously hypnotized witness [can be] admissible if certain safeguards are followed." In particular, the court considered safeguards outlined by the Supreme Court of New Jersey in State v. Hurd, 432 A.2d 86 (N.J. 1981). The court, however, rejected these safeguards, citing to the opinion of the Supreme Court of California in People v. Shirley, which had previously rejected these safeguards, concluding, "In our opinion, the game is not worth the candle."

Here is an explanation of that saying:

The returns from an activity or enterprise do notwarrant the time, money or effort required. For example, The office he is running for is so unimportantthat the game's not worth the candle. This expression,which began as a translation of a term used by theFrench essayist Michel de Montaigne in 1580, alludesto gambling by candlelight, which involved theexpense of illumination. If the winnings were notsufficient, they did not warrant the expense. Usedfiguratively, it was a proverb within a century.

As a result, the court found that hypnotically refreshed testimony did not satisfy the Frye/Reed standard, but it did leave the door open for other safeguards possibly being sufficient to guarantee the reliability of such testimony. Sixteen years later, the court shut that door.

In its 1999 opinion in Burral v. State, 724 A.2d 65 (Md. 1999), Maryland's highest court revisited the issue of whether "testimony based on hypnotically-enhanced recollections is admissible if certain specified safeguards were employed to assure that the testimony was not improperly influenced by the hypnosis." In the end, the court rejected this proposition, ruling that

In the face of this overwhelming and largely uncontradicted evidence, we find no justification to depart, as a matter of common law, from the approach we took in Collins. The fact is that both the scientific community and a majority of the courts continue to view hypnosis, when used as a memory enhancer, as unreliable and, in terms of testimony in court, as likely to produce false recollections and inaccurate testimony that cross-examination may be unable to expose. The same deficiencies that were prevalent in 1983 appear to remain prevalent today.

Judge Chasanow dissented, noting that 

Over 100 years ago, in what was probably the first case to deal with the issue of hypnotized witnesses, a court made the statement, “the law of the United States does not recognize hypnotism." Without any critical analysis of the divergent issues associated with hypnosis, this Court expands the above statement into an inflexible, rigid, and unreasonable approach. While I agree that statements made by a person while under hypnosis are suspect and should generally not be admitted, at least not without safeguards, the instant case concerns a slightly different issue-the admissibility of post-hypnotic testimony of a witness whose recollections have been enhanced or possibly evoked by the party objecting to the witness's testimony.

I certainly sympathize with Judge Chasanow's opinion, but here's the thing: The Frye test uses an inflexible, rigid approach. The Court of Appeals of Maryland recognized as much when rejecting the federal Daubert test in Keene Corp., Inc. v. Hall: "The federal courts have recently discarded the Frye rule as too rigid and unworkable." It's why the court in Hall found that a "battle of the experts" was insufficient to allow for the admission of scientific evidence.

As noted in the tweet that opened this article, however, there wasn't a complete battle of the experts in this case. Apparently, Fitzgerald acknowledged that there were problems with incoming pings, but he claimed that these problems only arose when the recipient's phone was turned off and the call went to voicemail. In turn, Grant (1) testified that there were other problems; and (2) read testimony from the Bulos Zumot case, in which an AT&T radio frequency engineer testified that calls going to voicemail pinged the tower of the caller and sometimes showed up as connected.

In other words, Judge Welch has been presented with a question similar to the one in Burral: Were AT&T pings from incoming calls in 1999 per se inadmissible, or were they admissible on a case-by-case or call-by-call basis? In a Daubert jurisdiction, in which the judge is the gatekeeper of expert evidence, it would likely be the latter, and indeed many Daubert jurisdictions have allowed for the admission of hypnotically refreshed testimony under certain circumstances.

Conversely, in a rigid, inflexible Frye jurisdiction, "the game is not worth the candle."* If there's a "battle of the experts," expert evidence is typically excluded. If expert evidence is sometimes unreliable, the existence of safeguards is often not enough to ensure reliability in a given case. Judge Welch might find Fitzgerald no more knowledgeable than the defense experts, which would mean a new trial for Adnan. But, even if he does find him more knowledgeable, there's still a great argument for a new trial.


*In shutting the door on hypnotically refreshed testimony, the Burral court once again cited this language.



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It seems to me that the chosen dominance of evaluation -- of the general over the specific, or vice versa -- comes into play here.

For example, if I'm the prosecutor, I'm going to preference the 'individual cell data could be right' position. This starts with the hypothesis/scenario I want to prove instead of the general reliability of the data. I believe x is guilty, I'm going to search for proof of my position (rather than test the hypothesis to be tested/proved wrong as in the scientific method), there is cell data that could support it, I'm going to use that because individual cases can be correct. My job is to support my case, not the truth, and convince a jury. The motivation is driving the values applied.

But for an impartial party, say a scientist or a judge, who understands and operates under a different paradigm (or should), then the evaluation should be quite different. If there is significant unreliability in the measurement, i.e. you can't generalise reliability of in-coming cell data, then it can't be used as 'proof', because it could unreliable.

In a system that doesn't make decisions on unreliable data, that is, where 'innocent until PROVEN guilty' is the baseline, then the individual cell *might* be real doesn't stand. It must be shown and seen to be factual. In this case of Adnan Syed, at the point in technology development time as opposed to now, the cell data is unreliable and should be inadmissible.

[ps: these blog pages refresh a lot, so typed in comments disappear in mid-create. For other commenters: write offline, then copy/paste in from another window/program. And it just did it again during preview.]

Posted by: JLWhitaker | Feb 26, 2016 3:22:50 PM

Twitter may not have given enough detail about what was going on here with the expert testimony. Fitzgerald testified (on the basis of a short discussion he had with his buddy Steve about "why we logically thought [the instruction sheet] was there") that the instruction sheet didn't have anything to do with either physical location or cellsites, but instead a column called "Location1," which designated the switch a call went through. Switch names have geographic references, based on where that network is located, but they're not something used in historic cell site analysis or something you'd be using to determine a phone's location in a case like this. For instance, in some calls from Adnan's phone records, the switch is recorded as 13Greenbelt4-A. This doesn't mean that the phone was anywhere near Greenbelt, just that the phone was connecting through somewhere other than a cellsite on the home switch.

Which is why calls to voicemail while the phone was off could record a switch that has nothing to do with the switch the phone is actually close to, because it would default to the home switch. However, this, according to Fitzgerald, would never affect the cellsite data reported on the CDRs/SARs/"toll records."

When confronted with the helicopter problem, Fitzgerald kept repeating that he would need to do more research first, and that without more research he could not explain how it was possible for the records to show what they did, although he did offer as an off-the-cuff suggestion that perhaps the Dupont Circle tower was really for AT&T's coverage of the DC Metro system. (The State presented this as The Answer, but Fitzgerald himself kept saying he didn't know if that was what was going on, it was just an idea.)

Fitzgerald did volunteer another explanation for why incoming calls would be less reliable for location than outgoing calls, though, having to do with the fact that for an incoming call, the phone might stay connected to a weaker signal even after having moved to a location where a stronger signal was received by a different cellsite, because the wireless provider could have set a threshold that must be met before a phone will re-register. In other words, a phone will remain on the same cellsite unless and until a signal that is sufficiently stronger than the current one it is registered on, and which would be recorded as the cellsite for any incoming call received then.

Posted by: Susan | Feb 26, 2016 4:25:15 PM

The unreliability of hypnosis makes me think of the unreliability of the whole Reid technique used in interviewing – I’m assuming suggestibility is an issue in both. And yet the Reid technique is still apparently OK, but not hypnosis? Has an attorney ever called a Frye hearing on the basis of admissibility of interview records obtained using the Reid technique? It would definitely make for an interesting in-court debate! I’m guessing most scientists in the field would be very concerned about the false-positive (confession) rate, and thus it wouldn’t be deemed overly reliable.

Posted by: Cupcake | Feb 27, 2016 9:12:06 AM

The Reid technique has been abandoned by much of the European law enforcement community because it creates too many false confessions.

Posted by: Kitsune | Feb 28, 2016 5:41:18 AM

Kitsune - Yep. Here in the UK confessions mean nothing unless there's evidence to back them up. All interviews must be recorded, and some forces even use multiple cameras in each interview room to ensure that nothing about the interview can be disputed

This was all implemented because of a number of high profile wrongful convictions

In addition to this rules, minors must be accompanied by a parent/guardian/appropriate adult, and if there are any doubts about an adults cognitive function, then they too must be interviewed in the presence of an appropriate adult.

Posted by: Squatch | Mar 1, 2016 11:11:35 PM

Apologies for the errors, I've just woken up!

Posted by: Squatch | Mar 1, 2016 11:13:34 PM

Hi Colin,
I try to read your blog posts as much as possible, so I don’t know if this has ever come up before but while reading about Adnan’s case on Reddit, I came across this article in The New Yorker about cell phone records and their reliability; http://www.newyorker.com/news/news-desk/what-your-cell-phone-cant-tell-the-police
Sorry for the long quote, here it is:
“A few years ago, the F.B.I. established a unit specializing in cell records, called C.A.S.T. (Cellular Analysis and Surveillance Team), with the mission of analyzing cell-location evidence. The Bureau declined requests for an interview, but C.A.S.T. agents in recent cases have asserted a different theory of how cell networks operate. Testifying at a trial for murder and robbery in Florida in June, 2013, Special Agent David Magnuson said that the instant a call is received or placed, it’s the phone that decides which tower to go to—not the software that adjusts network load—and that, “ninety-nine per cent of the time, it’s the closest tower.” Although he conceded that cell records can be imprecise, he described them as “like a historical digital fingerprint.”
He added that the F.B.I. checks its information by doing periodic “drive tests,” in which it measures radio-frequency information emitted by cell towers to see if the coverage area agrees with its models. Independent experts I spoke to called this testimony into question—both the accuracy of the estimates and the validity of the drive tests. Conditions are so changeable that, even if a drive test confirms the model on a particular day, it may not on another, and certainly not on a day years in the past. It’s a probabilistic statement, not a scientific one.
In 2012, the U.S. District Court for the Northern District of Illinois ruled that an F.B.I. agent could not testify about the location of a defendant’s cell phone because the analyses did not rise to the level of trusted, replicable science. Other courts have found for the defendant after the defense attorney discredited the prosecution’s expert witness.”
The last paragraph is what really caught my attention and I was wondering if this is applicable to Adnan’s case? If so, is it possible that Fitzgerald’s testimony could be deemed invalid by the judge considering the ruling by the U.S. District Court for the Northern District of Illinois as a precedent? Sorry if this sounds stupid. I am not from the U.S. and not very familiar with the judicial system there.

Posted by: Skylar | Mar 7, 2016 6:02:04 AM

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