Moving the Goalposts in the George Zimmerman Trial

George Zimmerman’s case is scheduled for trial on June 10, 2013.

In advance of the trial, his defense team has filed a “Motion for Evidentiary Hearing Regarding Admissibility of Expert Opinion Testimony” because the State is attempting to introduce expert testimony relating to “Speaker Identification” or voiceprint evidence, which suggests George Zimmerman made some rather startling statements in the heat of his altercation with Trayvon Martin.

Florida follows the standard for the admission of scientific evidence announced in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). As such, this lengthy titled motion is more generally referred to as a Motion for a Frye Hearing, which requests that the Court determine if the proposed scientific evidence complies the Frye standard.

What is the Frye Standard?

The Frye standard requires that before new or novel scientific techniques will be admissible in a trial, the court must find that the “scientific principles and methodologies” which the expert relies upon in rendering the opinion are generally accepted within the scientific community.

What is Generally Accepted within the Scientific Community?

Essentially, to be generally accepted within the scientific community, the methods and principles the expert relied upon in reaching his opinion must be generally accepted by his peers.

However, under Frye, your peers do not have to agree with the opinion you reached, only agree that the methods and principles you relied upon in reaching your conclusion are generally accepted methods and principles that are used in a particular field.

This is a critical issue in George Zimmerman’s case, because the Defense’s motion claims that numerous experts dispute the validity of rendering an opinion on “Speaker Identification” given the evidence in this case.

But given current Florida law, it is my opinion that Judge Nelson would let in this expert testimony under Florida’s evidence code as it exists today and will exist on June 10, 2013.

Notably, the Federal courts, Canada, and the majority of States have adopted the Daubert standard, which many consider to be a more difficult standard. Florida is one of the few remaining adherents to the Frye standard.

But if Florida followed the Daubert standard, I believe Judge Nelson would view the State’s expert witness with much greater scrutiny and probably disallow the evidence.

Just in Time, Florida Adopts Daubert Standard

And wouldn’t you know it, the Republican led Florida legislature adopted the Daubert Standard this legislative session when it passed House Bill 7015. (No doubt a plot by right-wing FOX news to assist George Zimmerman.) The bill was presented to Governor Scott on May 20, 2013 and is currently awaiting his signature. Under Florida law, the Governor has until June 5th to either sign or veto the law (he is expected to sign it).

As most of you can probably guess, the Zimmerman defense team is very pleased with this favorable development, because the law would be signed before the trial starts and just in time for Judge Nelson to apply the Daubert standard.

What is the Daubert Standard?

Generally, for something to be admissible under the Daubert Standard, a judge must review the following criteria:

  1. Has the technique been generally accepted within the relevant scientific community? [The Frye Test]
  2. Has the technique been tested in actual field conditions (and not just in a laboratory)?
  3. Has the technique been subject to peer review and publication?
  4. What is the known or potential rate of error?
  5. Do standards exist for the control of the technique’s operation?

Judge as a Gatekeeper

The most important distinction of the Daubert standard is that the judge becomes a gatekeeper as to whether scientific evidence is admitted, and not just a potted plant that is required to allow in any quack opinion so long as it is rooted in the basic methodologies of a particular field.

Moving the Goalposts Mid-Trial

There is only one problem; the Frye standard would still be the current law! Why, because the effective date for House Bill 7015 is July 1, 2013! Talk about Moving the Goalposts.

And given that the Zimmerman trial, including jury selection, is scheduled to last about two months it is entirely possible that the State’s expert witnesses could be qualified and presented under the Frye standard before July 1, 2013; but the defense expert witnesses could be presented after July 1, 2013 and subjected to the more restrictive Daubert standard.

The Law on Evidence Code Changes

While the Florida Constitution requires the Florida Supreme Court to formally approve any legislative changes to the evidence code, the Florida Supreme Court’s unwritten policy is “to allow trial courts to utilize a rule of evidence during the period between its legislative enactment and its adoption by the supreme court if the trial court determines that the new rule of evidence is procedural and does not violate the prohibition against ex post facto application.” Mortimer v. State, 100 So. 3d 99, 104 (Fla. 4th DCA 2012).

Changes in laws regarding the admission of evidence are considered procedural changes, so the prohibition on ex post facto laws is not a concern. Additionally, a procedural statute is “to be applied retrospectively” and is “to be applied to pending cases. Mortimer v. State, 100 So. 3d 99, 103 (Fla. 4th DCA 2012). This means the law would be applied to Zimmerman’s case on July 1, 2013; but not one day before.

And while this is not the first time changes have been made to the evidence code, it is more than likely the first times that such an important change would go into effect in the middle of such a high profile trial and have such a disparate impact on the rules of that trial. (I have been unable to find any reported cases of similar import.)

Academic Exercise or Legal Chaos?

Ultimately, this unique set of circumstances could just be a moot academic exercise if:

  1. Governor Scot vetoes the law;
  2. The Zimmerman trial concludes before July 1, 2013;
  3. The Zimmerman trial is continued past July 1, 2013;
  4. Judge Nelson excludes the State expert under the Frye standard; or
  5. The State and Defense stipulate to apply the Daubert standard to all scientific rulings.

But if the trial proceeds forward as expected and none of the above circumstances occur, the Zimmerman trial could present one of the most unique legal quandaries one could ever encounter.

And if Zimmerman was convicted under this unique set of circumstances, it could set things up for a very interesting appeal.

Stay tuned, this could get interesting!

Extra Credit Assignment

For those of you who believe that someone can magically determine the contents of unintelligible audio recordings, I invite you to look up the case of Sabrina Aisenberg.

In the Arrest Warrant to have her parents arrested and charged with murder, “the county detectives reported conversations that no reasonably prudent listener could hear from the tapes, that the county detectives quoted conversations that do not even appear at all in the supporting transcripts of the tapes or do not appear in the manner described, and that the county detectives deliberately or with reckless disregard summarized conversations out of context.” US v. Aisenberg, 358 F. 3d 1327 (US 11th Cir. 2004).

Ultimately, the Aisenberg’s not only had their case dismissed, they successfully sued the Federal Government for malicious prosecution and received $2.9 million dollars based on the fabricated and contrived audio evidence.

Author: Richard Hornsby

Orlando, Florida Criminal Defense Lawyer and DUI Attorney Richard Hornsby is Board Certified in Criminal Trial Law by the Florida Bar and represents clients throughout Central Florida in all criminal defense and DUI defense cases.

9 thoughts on “Moving the Goalposts in the George Zimmerman Trial”

  1. If you are interested in catching new eyeballs, consider including the “startling” comments allegedly made

  2. You didn’t mention Wolfinger’s involvement in the Aisenberg case.

    I think I gave myself whiplash from the double take.

    : – )

  3. “This act shall take effect July 1, 2013.” So would Judge Nelson get into trouble if she said she would use the Daubert standard for determining admissibility in the hearing on June 6 – 7? For the reasons given in the article, it sounds like that fairest thing to do.

  4. Is there any truth to this strange story circulating that the forensic
    hair+fiber expert from the Casey Anthony trial is one and the same
    as one of the two FBI agents who just recently met a “mysterious death”
    allegedly “falling” from a moving helicopter? Or is it just an
    “urban legend?”

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