Defendant, Goran Gogic, was charged in a multi-count indictment with crimes related to international narcotics trafficking, in violation of the Maritime Drug Law Enforcement Act (“MDLEA”).
Subsequently, the parties filed several motions in limine concerning evidence of electronic communications that were purportedly seized and decrypted by European law enforcement.
As explained in the parties’ briefs, the communications in question were seized and decrypted by law enforcement authorities in Europe as part of a joint investigation that involved French, Belgian, and Dutch officials. Furthermore, the Government obtained electronic records of certain such communications from a French official through a Mutual Legal Assistance Treaty (“MLAT”) between the United States and France.
In order to obtain these records, a Department of Justice (“DOJ”) officer sent a written MLAT request for content associated with specific Sky user accounts, each denominated by a five-character “Sky PIN,” believed to belong to Defendant. The MLAT request specifically identified, among others, Sky PINs 28A508 and 5UIP0T as belonging to Defendant. Thereafter, French officials complied with the MLAT request and transmitted electronically a large set of spreadsheets and media files (the “Sky Evidence”).
Finally, the Defendant notified the Government of his intention to call three expert witnesses: Yehudi Moszkowicz, Andreas Milch, and Lee Koch. The Government moved to preclude any testimony and argument regarding the legality or propriety of the European law enforcement operation through which the Sky Evidence was obtained, and to preclude Defendant’s proposed experts from testifying.
Law and Legal Expert Witnesses
Yehudi Moszkowicz is a Dutch criminal defense attorney with a degree in “audio- engineering” who has experience representing clients in Europe in cases that involve encrypted phone evidence.
Moszkowicz’s two proffered reports concerned the structure and internal communications of the European governments that participated in the joint investigation, with emphasis on the purported involvement of the United States.
His analysis is based on his review of government documents and media reports that describe, inter alia, the role of Europol and the use of Dutch software to analyze communications captured from the Sky network.
The Court held that Moszkowicz’s report did not reflect any specialized knowledge and merely summarized documents that—if they had been admissible—could have been understood by a lay person. Additionally, while such information might have borne on issues raised in Defendant’s prior suppression motion, it was of minimal relevance to any issue at trial. The diplomatic details of the underlying investigation simply did not bear on the reliability of the resulting intelligence. Insofar as the defense intended to elicit Moszkowicz’s opinion about the reliability of the Sky Evidence at issue in the case, such testimony would have been speculative because, inter alia, he had not even personally reviewed the discovery.
Lee Koch
Koch’s expected testimony consisted of a single page “report” indicating that he had reviewed Sky Evidence and “agreed on all points” with the report of Milch and stated that the Sky Evidence “should be suppressed” because it was “incomplete, open to manipulation, unverifiable to an original dataset . . . contained multiple errors, contained multiple omissions, was collected and processed by unknown and unverified tools, and lacked timestamps or GPS data.”
Consequently, the Court held that the primary opinion set forth in the letter was a legal conclusion—namely, that the Sky Evidence “should be suppressed”—which would not constitute relevant or permissible testimony at trial.
Andreas Milch
Milch reviewed the Sky Evidence and drafted two lengthy reports evaluating the reliability of the data and highlighting various “anomalies” in the Chat Spreadsheets.
Those reports addressed a wide range of topics related to the Sky Evidence, including, inter alia, the functionality and format of the encryption used on the Sky network, the European “hack” operation, and various features of the Chat Spreadsheets and Media Folders. Milch’s conclusion was that the “integrity” of the Sky Evidence could not be verified due to the format in which it had been transmitted. The Court held that the integrity of the Sky Evidence is relevant to issues at trial, as it bears on the reliability of the Government’s evidence of the conspiracy.
The Court found that some (but not all) of Milch’s analysis was based on sufficient facts and sound methods—namely the close review of the Chat Spreadsheets and associated Media Folders. His speculation about the tools and methods of European law enforcement, by contrast, did not rest on a sufficient foundation. Finally, the Court held that Milch’s explication and analysis of certain topics would be helpful to the jury, who are likely to be unfamiliar with topics such as encryption, metadata and digital forensic standards that bear on the reliability of the Sky Evidence.
The Court permitted Milch to testify as an expert about the functionality and format of Microsoft Excel as well as the format and content of the Chat Spreadsheets, including metadata, in addition to general digital forensic standards and methods.
However, Milch was barred from testifying about the method by which European law enforcement captured, stored, analyzed, or decrypted communications from the Sky network and the use if artificial intelligence.
Held
The Court granted the Government’s motion in limine to preclude expert testimony as to Yehudi Moszkowicz and Lee Koch but denied it as to Andreas Milch.
Key Takeaway:
Milch is qualified to opine on the format and reliability of the Sky Evidence based on his certification as an IT forensics specialist and experience litigating multiple cases involving similar evidence. Federal Rule 702 does not require that an expert attend a specific type or number of trainings for a specific length of time, and the Second Circuit has advised that ‘the words qualified as an expert by knowledge, skill, experience, training, or education’ must be read in light of the liberalizing purpose of Rule 702.
Plaintiffs Markus Heitkoetter and Rockwell Trading Services, LLC sued Karl Domm for defamation by implication, defamation (libel), deceptive trade practice, intentional interference with prospective business relations, and abuse of process. Both Defendant and Plaintiffs operate channels on www.youtube.com (“Youtube”) where they publish videos about online trading.
Plaintiffs filed a motion to strike the testimony and report of Defendant’s consumer survey expert, Travis Tae Oh, Ph.D.
Marketing Expert Witness
Travis Tae Oh holds a Ph.D. and M.Phil in marketing from Columbia University. He is currently a tenure-track faculty in marketing at Yeshiva University.
His work has been featured in multiple media outlets, such as Vox, The Washington Post, Next Avenue, Stylus. He also regularly writes for Psychology Today. Travis is also a certified wine expert, holding a WSET Diploma. His research primarily examines the underlying psychological processes and meanings of consumer experiences, with a focus on conceptualizing and investigating fun in people’s lives.
Plaintiffs filed a motion to exclude the testimony and consumer survey of Oh, pursuant to Federal Rules of Evidence 702 and 403 on the basis that the consumer survey was “so methodologically flawed” as to render the report and Oh’s testimony unreliable and irrelevant in answering the question of how consumers understood the two allegedly misleading statements made by Plaintiffs.
Though the Plaintiffs complained that Oh wrote the survey without viewing the Youtube video or the web page in which the two allegedly misleading statements appear, they provided no evidence to support a finding that this would automatically render the survey invalid “according to accepted principles.”
As for the Plaintiffs’ claim that the universe of participants was overbroad, the Court has held that arguments that the universe of survey participants is over-or under-inclusive is a challenge to a survey’s “methodology and design” and “is precisely the kind of claimed deficiency that goes to the weight of the evidence, not its admissibility.”
Held
The Court denied the Plaintiffs’ motion to strike the testimony of Defendant’s expert, Travis Tae Oh, Ph.D.
Key Takeaway:
Survey evidence should be admitted as long as it is conducted according to accepted principles and is relevant. Technical inadequacies in a survey, including the format of the questions or the manner in which it was taken, bear on the weight of the evidence, not its admissibility. Follow-on issues of methodology, survey design, reliability, the experience and reputation of the expert, critique of conclusions, and the like go to the weight of the survey rather than its admissibility.
Case Details:
Case Caption:
Heitkoetter Et Al V. Domm
Docket Number:
1:22cv368
Court Name:
United States District Court for the Eastern District of California
The case arose from the use and reimbursement of the drug NovoSeven, which was prescribed to ten Washington Medicaid patients with severe Hemophilia A and inhibitors to Factor VIII. Some used the drug in high doses or for off-label prophylactic treatment. Washington Medicaid reimbursed these prescriptions during the relevant period.
NNI retained Dr. Michael Tarantino as an expert witness. Tarantino reviewed 65,000 pages of medical records. He found the use of NovoSeven appropriate in eight cases. For the other two, he lacked sufficient data. He also concluded the drug was used safely in the reviewed cases.
The State of Washington and plaintiff Jamie Siegel moved to exclude his testimony. They argued the case focused on Medicaid reimbursement rules—not medical appropriateness. Washington said Tarantino lacked expertise in state regulations and failed to follow the required hierarchy of evidence.
Hematology Expert Witness
Michael Tarantino is a board-certified pediatric hematologist-oncologist with over 30 years of experience in bleeding and clotting disorders. He is the Founder, CEO, and Chief Medical Officer of the Bleeding & Clotting Disorders Institute and Medical Director of the Anticoagulation Consultation Service at St. Francis Medical Center.
Since 2008, he has served as a tenured Professor of Pediatrics and Medicine at the University of Illinois College of Medicine in Peoria. He earned his M.D. from the University of Wisconsin, followed by a pediatrics residency at the University of Arizona and a fellowship in pediatric hematology-oncology at Wisconsin.
Tarantino has authored over 125 peer-reviewed publications and 140 abstracts. In 2024, he received the Lifetime Achievement Award from the National Bleeding Disorders Foundation for his contributions to patient care, research, and advocacy.
The Court found Dr. Michael Tarantino qualified under Federal Rule of Evidence 702. He had over three decades of clinical and academic experience in hematology. His report reviewed patient records to assess whether NovoSeven use was medically necessary, appropriate, and safe. The Court concluded that his opinions fell within his area of expertise and were relevant to the case.
Plaintiffs’ Challenge to Relevance
The State of Washington argued that Tarantino’s testimony failed to address the legal standards for Medicaid reimbursement. Specifically, it said he did not apply the “hierarchy of evidence” required under WAC 182-501-0165(6) or tie his conclusions to regulatory definitions of “medical necessity.” Washington emphasized that the question was not medical appropriateness, but whether the prescriptions met reimbursement criteria.
Court’s Response: Goes to Weight, Not Admissibility
The Court held that these arguments affected the weight of the testimony—not its admissibility. Washington had alleged the prescriptions were medically unnecessary and dangerous. Therefore, Tarantino’s analysis of the safety and appropriateness of NovoSeven was directly relevant. The Court ruled that his methodology was reliable and grounded in his clinical experience.
Context of Medicaid Reimbursement
The Court noted that Washington Medicaid reimbursed NovoSeven during the relevant time, including after a 2009 internal review by the Hemophilia Working Group. It had already allowed an adverse inference instruction due to the loss of documents related to that review. This instruction permits jurors to infer the documents supported medical necessity. The Court reasoned that expert testimony on medical necessity remained relevant under these circumstances.
Limits on Testimony Regarding Inducements
Tarantino also reviewed whether prescriptions were influenced by illegal inducements. The Court allowed him to testify about the medical reasons for using NovoSeven. However, it barred him from opining on whether the prescriptions were free from improper influence. The motion was granted to that limited extent.
Held
The Court granted in part and denied in part Plaintiff Washington’s motion to exclude the testimony of Defendant Novo Nordisk’s expert witness, Michael Tarantino.
Key Takeaway:
An expert’s failure to apply regulatory definitions or cite legal standards may affect the weight of their testimony—but not its admissibility—if their opinions are otherwise relevant, reliable, and within their expertise. Here, the Court allowed Tarantino to testify on the medical necessity, appropriateness, and safety of NovoSeven use, finding that his clinical evaluation was relevant to the claims, even if it did not directly apply Medicaid reimbursement criteria.
Please refer to the blogs previously published about this case:
The Commonwealth alleged that at around 10:51 A.M. on March 31, 2015, the Defendant, a cooperating witness, and Jeromie Johnson participated in a home invasion on Harvard Street in the Dorchester section of Boston. Richard Long, Yvette O’Brien, and O’Brien’s newborn son were at home at the time of the attack. Johnson and the Defendant bound Long and O’Brien with electrical cords, cut Long with a knife, and shot both Long and O’Brien in the head. They then set fire to the house. Long died from his wounds. O’Brien survived the gunshot wound and could describe the events that occurred in the apartment until she was shot in the head, but she was unable to identify the perpetrators. The cooperating witness agreed to testify against the Defendant in exchange for facing reduced charges. The Commonwealth asserted that the cooperating witness would identify the perpetrators and their roles in the home invasion and associated crimes. The Defendant allegedly drove to the crime scene in a white sedan rented by his girlfriend for his use. The Defendant’s car was captured on video being driven down Blue Hill Avenue in Dorchester, with another car carrying Johnson and the cooperating witness following behind. The Defendant’s car was next seen parked on Paxton Street near the scene of the crime. At 10:44 A.M., the Defendant received a call from Johnson lasting over three minutes, and the Defendant called Johnson several times over the next few minutes with no answer. The Defendant’s telephone utilized a cell tower the coverage area of which included the crime scene for these calls. A video camera at a Department of Youth Services facility located across the street from the crime scene captured grainy video footage of two people approaching the victims’ home at 10:51 A.M., and the same video camera captured footage of three people leaving at 11:20 A.M. The Defendant’s car was captured on video at 11:22 A.M. being driven down Blue Hill Avenue.
Prosecuting the Defendant for murder in the first degree and other crimes related to the home invasion, the Commonwealth moved in limine to permit the introduction at trial of frequent location history (FLH) data retrieved from the Defendant’s cell phone, an Apple iPhone 6.
When turned on, an iPhone generated location data points from sources such as global positioning system (GPS) data, nearby wireless computer network (Wi-Fi) access points, short-range wireless Bluetooth connections, and cell site location information (CSLI). These location data points were stored on the iPhone’s “Encrypted B” cache for between twenty-four and forty-eight hours. In 2015, an algorithm on the iPhone would use these data points to create FLH data. The FLH data created by the algorithm consisted of a longitude and latitude coordinate point and a circle around it, representing an amalgamation of the location data points. The radius of the circle, labeled the “uncertainty” in the FLH data, represented the approximate area in which the cell phone was located. The uncertainty radius could change from visit to visit to a frequent location, as could the coordinate point representing the center of the frequent location. FLH data also provided an estimated time that the iPhone entered the location, and an estimated time the iPhone left the location. The algorithm used to convert location data points into FLH data was proprietary, and thus the Commonwealth’s expert did not have access to the algorithm itself during his testing of FLH data reliability. Moreover, it was unclear how the algorithm processed, or weighed, the different location data points generated by the iPhone.
In 2022, a full-file system extraction was performed on the Defendant’s cell phone. This extraction allowed the Commonwealth to access encrypted files on the cell phone, including its FLH data. The FLH data on the cell phone listed 345 frequent location visits. Of particular interest to the Commonwealth was frequent location no. 58. Frequent location no. 58 was centered on coordinates corresponding to a Harvard Street address near the victims’ home. The uncertainty radius of frequent location no. 58 was forty-three meters, or 143 feet, which encompassed the crime scene. The Commonwealth’s proffered expert on FLH data, a senior crime analyst in the office of the district attorney for the Suffolk district (analyst), testified that he interpreted the FLH data retrieved from the Defendant’s cell phone to show that the phone entered the area represented in frequent location no. 58 at 10:36 A.M. on March 31, 2015, and left the area at 11:22 A.M. that day. The Commonwealth therefore contended that the proffered expert testimony on FLH data, if admitted, would corroborate the cooperating witness’s testimony placing the Defendant at the scene of the home invasion.
On September 11, 2023, the trial judge denied the Commonwealth’s motion to permit the introduction of FLH evidence at trial. On the same day, the Commonwealth filed a notice of appeal, believing that the notice of appeal would stay the trial court proceedings pursuant to Mass. R. Crim. P. 15 (e), as appearing in 474 Mass. 1501 (2016). The Defendant filed a response, arguing that the Commonwealth’s notice of appeal did not automatically stay the trial court proceedings. Specifically, the Defendant argued that the appeal procedures in rule 15 were inapplicable, and that the Commonwealth’s only avenue for interlocutory review of the denial of a motion in limine was a petition under G. L. c. 211, § 3, which, in turn, did not automatically stay the trial court proceedings. The trial judge concluded that the Commonwealth’s appeal was outside the scope of rule 15, but nonetheless stayed the proceedings to allow the Commonwealth to pursue relief through a G. L. c. 211, § 3, petition. A single justice of this Court then extended the stay and subsequently reserved and reported the case to the full court, including both the procedural question of whether this appeal was within the scope of rule 15 and the merits of whether the trial judge abused his discretion in denying the Commonwealth’s motion to permit the introduction of FLH data.
Discussion by the Court
As a preliminary issue, the parties disagreed as to whether the Commonwealth may appeal from the denial of its motion to admit expert testimony under Mass. R. Crim. P. 15 (a) (2), as appearing in 474 Mass. 1501 (2016) (rule 15 [a] [2]), or whether its sole avenue for interlocutory review was a petition under G. L. c. 211, § 3.
The text of rule 15 (a) (2) provided for interlocutory appeal from “an order determining a motion to suppress evidence prior to trial.” By its express terms, rule 15 (a) (2) “did not encompass other interlocutory rulings, in part for sound reasons of judicial economy, as such ‘rulings were subject to change when the case unfolds.” Although the text of rule 15 (a) (2) was directed only at motions to suppress, a narrow exception to this general rule was allowed: “if a motion to exclude all or most of the Commonwealth’s incriminating evidence is allowed, and if, as a practical matter, that ruling (if permitted to stand) would terminate the prosecution, the Commonwealth may seek leave to appeal pursuant to [rule 15 (a) (2)].”
The Commonwealth suggested that rule 15(a)(2) should be interpreted more broadly to encompass other situations where “critical” evidence is excluded, even where the evidence excluded does not have the practical effect of terminating the criminal proceeding. The Commonwealth thus proposed that, although the exclusion of its expert’s testimony did not prevent it from introducing all or most of its incriminating evidence at trial, the instant appeal was properly brought under rule 15(a)(2) because the expert’s testimony regarding FLH data was “critical” to the case against the Defendant. Because its case at trial relied significantly on testimony by a cooperating witness procured in exchange for a reduced sentence, the Court agreed with the Commonwealth that evidence corroborating the cooperating witness’s testimony (and, thus, bolstering the credibility of that testimony) might fairly be described as “critical” to the prosecution’s case. Nonetheless, the Commonwealth’s invitation to expand the scope of rule 15(a)(2) to include the ruling on the motion in limine in the instant case was declined by the Court. The plain text of rule 15(a)(2) referred only to motions to suppress and thus set out the general rule.
The Court determined that the Commonwealth’s avenue for interlocutory review of the ruling was a petition for extraordinary relief under G. L. c. 211, § 3, rather than an interlocutory appeal under rule 15 (a) (2).
As for whether the trial court abused its discretion in holding the Commonwealth’s failure to establish the reliability of FLH data, the Court stated that when proposed expert testimony uses a new theory, or new methodology to apply an accepted theory, the proponent must establish its reliability using a Daubert-Lanigan analysis.
When considering a motion to introduce expert testimony, a judge should initially consider five nonexclusive factors in determining the reliability of proposed scientific evidence:”whether the scientific theory or process (1) has been generally accepted in the relevant scientific community; (2) has been, or can be, subjected to testing; (3) has been subjected to peer review and publication; (4) has an unacceptably high known or potential rate of error; and (5) is governed by recognized standards.” Under the Daubert-Lanigan standard, “the judge, acting as gatekeeper, is responsible for making a preliminary assessment whether the theory or methodology underlying the proposed testimony is sufficiently reliable to reach the trier of fact.”
As an initial matter, the Commonwealth contended that the trial judge erred in identifying the relevant field of expertise as cellular technology, rather than digital forensics. It claimed that this error evidenced a misunderstanding of FLH data and contributed to the trial judge’s erroneous conclusion that the analyst was not qualified to testify as an expert on FLH data. Contrary to these claims, it was declared on appeal that the trial judge correctly understood the analyst’s testimony on FLH data, and the relevant required expertise, and decided the pertinent issue: whether the Commonwealth had met its burden of establishing the reliability, under the Daubert-Lanigan standard, of FLH data.
Regarding the first Daubert-Lanigan factor, general acceptance by the relevant scientific community, the trial judge found that the primary evidence in support of general acceptance was the analyst’s conclusory testimony to that effect, which, as the trial judge noted, was not well supported by the evidence in the record. The articles submitted in evidence by the Commonwealth in support of the analyst’s testimony largely discussed the technology that produced the location data points used as inputs by the FLH algorithm to output FLH data and instead of discussing the reliability of the FLH data themselves. The analyst identified two digital forensics experts whose writing he claimed supported his conclusion that FLH data had been deemed reliable by the scientific community, yet Commonwealth neglected to submit articles by these authors in evidence. Accordingly, it was noted on appeal that the trial judge did not abuse his discretion in concluding that the Commonwealth failed to meet its burden of showing by a preponderance of the evidence that FLH data had been generally accepted as reliable by the scientific community.
When Commonwealth argued that because the FLH algorithm used as its inputs location data sources generally regarded as reliable (such as GPS, CSLI, and Wi-Fi location data), it meant that the FLH data output by the algorithm consequently was also generally regarded as reliable. The Court, however, held that even if the inputs used by the FLH algorithm were generally deemed reliable, the FLH data outputs were not ipso facto reliable, especially given the lack of scientific literature or adequate testing to support reliability.
As for the second Daubert-Lanigan factor, whether the technology can be or has been tested, it was held that the trial judge did not abuse his discretion in holding that there was not sufficient testing to establish the reliability of FLH data. The trial judge found that the analyst’s experiments with FLH data had a small sample size. The analyst conducted tests of FLH data reliability using a “jailbroken”iPhone (test iPhone) that was similar, but not identical, to the iPhone associated with the Defendant. In other words, to test the reliability of FLH data, the analyst jailbroke an iPhone 5C, which allowed him access to information that is ordinarily encrypted and inaccessible to an iPhone user. He brought the jailbroken iPhone to five different locations, examined the underlying location data points gathered by the iPhone at those locations from sources such as CSLI, Wi-Fi, and GPS, and compared these underlying location data points to the FLH data outputs produced on those locations. The analyst visited each of the five locations two or three times, for a total of twelve experiments. Despite his testing, the analyst did not know the algorithm used in creating FLH data and did not know how various factors were weighed to create FLH data outputs. The analyst also could not explain how the uncertainty radius for a frequent location was determined. He was able to identify that the uncertainty radius and center coordinate point for a frequent location could change with each visit to that location, but he was unable to explain why the uncertainty radius for a frequent location changed or whether data from previous visits contributed to how FLH data changed after a subsequent visit to the location. Moreover, while the FLH data for some locations included a “confidence level,” the analyst could not explain what the confidence level meant, why some locations had a confidence level and others did not, or how the confidence level was calculated.
The Commonwealth also argued that the trial judge abused his discretion by failing to make findings regarding evidence that certain frequent location visits identified on the Defendant’s cell phone were corroborated by other data on the phone. The Commonwealth asserted that the data corroborating the frequent location data bolstered the analyst’s testing as evidence that FLH data are reliable. For example, the analyst testified that frequent location no. 73 on the Defendant’s cell phone corresponded to a location at a mall in Newton. The FLH data suggested that the cell phone was at frequent location no. 73 from 7:26 P.M. to 7:32 P.M. on March 29, 2015, two days before the murder. The uncertainty radius for frequent location no. 73 was ninety-one meters, meaning the FLH data represented that the cell phone was likely within a ninety-one meter radius of the determined center point for location no. 73. Two images recovered from the Defendant’s cell phone were taken at 7:31 P.M. and 7:32 P.M. on March 29, and appeared to have been taken in the northwest corner of the mall parking garage. The Commonwealth suggested that the pictures corroborated the reliability of frequent location no. 73 because they placed the Defendant near the location during the relevant time. The analyst testified regarding four other frequent locations extracted from the Defendant’s cell phone that were corroborated either by pictures taken on the phone indicating it was in the area of the frequent location during the relevant time period, or by data showing the phone connected to Wi-Fi networks associated with a location while the FLH data indicated the phone was at the location.
It was held on appeal that even if evidence of the five corroborated locations were considered alongside the twelve experiments conducted by the analyst, it was well within the trial judge’s discretion to hold that the Commonwealth had not met its burden of showing that FLH data had been sufficiently tested to show its reliability. To sum it up, judges were not required to make explicit findings on all the evidence presented at a hearing.
As for whether the trial judge abused his discretion in his discussion of the other Daubert-Lanigan factors of whether FLH data evidence (3) had been subjected to peer review and publication; (4) had an unacceptably high known or potential rate of error; and (5) was governed by recognized standards, it was observed that the testing of FLH data performed by the analyst was neither peer-reviewed nor published. In terms of other publications, the trial judge found that the articles and materials submitted by the Commonwealth discussing the underlying technology (GPS, Wi-Fi, and CSLI) were not “particularly instructive.” He also noted that there were “very few references to FLH in any of the papers submitted into evidence.”
The trial judge held that the fifth prong of Daubert-Lanigan, recognized standards, was satisfied by the existence and admission in evidence of Federal regulations setting standards for analyzing cell phone location information generally. The Commonwealth argued on appeal that because Federal regulations existed for cell phone location information and were in effect at the time of the murder, the fourth prong, known or potential rate of error was sufficiently met. The Commonwealth did not otherwise provide any evidence or argument as to why the trial judge erred in holding that it had failed to meet its burden on the fourth prong. No abuse of discretion was observed by the trial judge on appeal when it was held that the fourth prong had not been met, particularly because of the various characteristics of FLH data that the analyst could not explain, including the uncertainty radius and confidence level.
Held
Because the challenged evidentiary ruling involved neither the determination of a motion to suppress nor the pretrial exclusion pursuant to a motion in limine of evidence that, as a practical matter, would terminate the Commonwealth’s prosecution of the Defendant, it was held on appeal that the Commonwealth’s avenue for interlocutory review of the ruling was a petition for extraordinary relief under G. L. c. 211, § 3, rather than an interlocutory appeal under Rule 15 (a) (2). Moreover, having considered the merits of the Commonwealth’s petition, it was concluded that the trial judge did not abuse his discretion in denying the Commonwealth’s motion in limine to admit the proffered expert testimony regarding the FLH data. Accordingly, the case was remanded to the county court for entry of a judgment affirming the trial court judge’s order and remanding the matter to the trial court for further proceedings consistent with this opinion.
Key Takeaways:
The trial judge found that the Commonwealth did not adequately demonstrate the general acceptance of FLH (frequent location history) data as reliable by the scientific community. Despite arguments from the Commonwealth, including testimony from an analyst, the evidence presented was deemed insufficient to establish widespread acceptance of FLH data’s reliability. Additionally, the Court held that there was not enough testing to establish the reliability of FLH data outputs. The analyst’s experiments were criticized for their small sample size and lack of understanding of the algorithm used to generate FLH data. The Commonwealth also argued that certain frequent location visits identified on the Defendant’s cell phone were corroborated by other data, such as pictures taken on the phone or data showing the phone connecting to Wi-Fi networks associated with a location. However, the Court determined that this evidence, when considered alongside the analyst’s experiments, did not sufficiently demonstrate the reliability of FLH data. The Court assessed the case against the Daubert-Lanigan factors, including peer review, potential rate of error, and recognized standards. Lack of peer review and publication, as well as unanswered questions regarding the reliability of FLH data, contributed to the court’s decision. While Federal regulations existed for analyzing cell phone location information, the Court held that the Commonwealth failed to meet its burden in demonstrating that FLH data met recognized standards. Overall, this case underscores the importance of rigorous testing, peer review, and adherence to recognized standards in establishing the reliability of expert testimony, particularly in cases involving complex technological evidence.
The case examines the admission of polygraph evidence in criminal and civil cases. Banks pled guilty to first-degree manslaughter and prior to his sentencing hearing sought to introduce polygraph analysis as evidence to prove that he was not the shooter. The Circuit Court decided to preclude the polygraph examination from the evidence, which subsequently led to Bank’s appeal, where he pursued the issue of whether the Circuit Court erred in excluding the polygraph evidence in its sentencing consideration. This case basically examines the Court’s stance in examining the use of and admission of polygraph evidence.
Facts
On 26th February 2020, Casey Bonhorst succumbed to his death from a gunshot wound, when he was out delivering a pizza to a home in Sioux Falls. Raymond Banks and Jahennessy Bryant were charged as co-defendants on August 12, 2020, in a five-count superseding indictment that included two counts of first-degree murder, one count of second-degree murder, one count of first-degree manslaughter, and one count of attempted first-degree robbery based on the subsequent investigation by the law enforcement.
Both Raymond Banks and Jahennessy Bryant stuck to varied accounts of the events leading to Bonhorst’s death throughout the proceedings. Byrant claimed that he was on the lookout and Banks was the shooter, whereas Banks made opposite claims in his version of events. During the change of plea hearing of Banks, the State demonstrated its support for Bryant’s version of events while describing the factual basis for the plea and held Banks to be the shooter. The factual basis for the plea provided by the Court was initially contested by Banks, but he eventually agreed to aiding and abetting the situation after the Court interrogated him.
Banks’s guilty plea was accepted by the Circuit Court before sentencing Banks to eighty years in prison, with twenty years suspended. When Banks urged the Circuit Court to admit the results of the polygraph examination, the Circuit Court refused, and the Appellate Court upheld the Circuit Court’s refusal.
Discussion by the court
Banks appealed against the ruling of the Circuit Court regarding the admission of polygraph evidence. The Appellate Court held that Banks failed to demonstrate error on the Circuit Court’s part when it precluded the results from the polygraph examination as evidence. Before going through with the sentencing hearing, Banks established the results of a polygraph examination as evidence from an examiner named Mike Webb (W. Michael Webb). Webb was a trained and licensed polygraph examiner with over 25 years of investigation and interview experience.
The polygraph result showed that there was “no significant reaction that indicates deception” when he answered “no” to questions regarding whether he had shot Bonhorst on the date in question. However, the State was opposed to admitting any testimony regarding the polygraph examination as evidence, stating that polygraph examination results cannot be admitted in the absence of an agreement between both parties, citing State of South Dakota V. Janice Stevenson.
The Circuit Court upheld the State’s argument because of reliability concerns which were exacerbated in the absence of an agreement between both parties and because the polygraph here was commissioned by Banks alone and the State did not find out about it until after it had been administered. The Circuit Court cited significant state and federal Appellate Court decisions which refused to weigh in polygraph evidence because of reliability concerns associated with the accuracy of polygraph examinations. Moreover, Banks has failed to show how the Circuit Court’s ruling would be “clearly against reason and evidence,” or “outside the range of permissible choices.” Based on these grounds that the Appellate Court affirmed the decision of the Circuit Court.
Held
The Appellate Court affirmed the Circuit Court’s ruling. It was held that the Circuit Court did not abuse its discretion by excluding the polygraph examination.
Key Takeaways
This case debated the grounds for the Court to preclude the admission of the results of a polygraph examination.
Banks was tried for and subsequently pleaded guilty to first-degree manslaughter. Prior to his sentencing hearing, Banks insisted on admitting the results of a polygraph examination as evidence from an examiner named W. Michael Webb regarding his role in the crime. Despite the Court admitting to having relied on police reports, prior testimony, forensic evidence reports, and the additional information contained in the presentence investigation reports due to the lack factual clarity regarding the events of the case, the Court noted the absence of an agreement or stipulation between the parties as to the use of polygraph evidence to be a part of its admissibility criteria.
Moreover, considering the polygraph here was commissioned by Banks alone and the State did not find out about it until after it had been administered, the Court cited precedent setting cases to state that polygraph evidence have not been admitted by the Courts especially if the reliability is called into question before precluding the results of the polygraph examination.
The Court sentenced Banks to eighty years in the penitentiary with twenty years suspended and the Appellate court held that the Circuit Court did not commit an error by precluding the admission of the results of the polygraph examination before affirming the Circuit Court’s sentence.
Despite W. Michael Webb’s investigation and interview experience of over 25 years,had there been an agreement or stipulation between the parties as to the use of polygraph evidence, the Court would have been likelier to consider the results of the polygraph examination and if it confirmed anything substantial about Banks’ version of events, he might have been awarded a reduced sentence.
