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

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.

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

-CM