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Brad Cooper: Commentators in National Law Journal article say the North Carolina Court of Appeals sent a "stinging" message to Wake County prosecutors: "Victories won by suppressing relevant and admissible evidence may be fleeting." (The commentators (Amanda Ray and Christopher Jones) do an excellent job of explaining the Google Maps search evidentiary issue which lies at the heart of the case. HL);
STORY: "Brad Cooper: The latest reminder that Howerton - not Daubert controls expert testimony in North Carolina, by Amanda G. Ray and Christopher W. Jones, published by the National law Journal on September 25, 2013.
GIST: "It is not often that a homicide case yields important lessons for
civil litigators, but the Brad Cooper case does just that. The Cary,
North Carolina resident’s trial and first degree murder conviction for
killing his wife and dumping her body at a nearby construction site
resulted in national attention, discussion, and debate. In its last
round of published opinions, the North Carolina Court of Appeals overturned the jury’s verdict and
ordered a new trial for Cooper. As scintillating as the underlying
story may be, the Court of Appeals’ decision also has significant
implications for the admission of expert testimony and,
specifically, technology-related testimony. The focus of the
appeal was expert opinion testimony related to
temporary internet files from Cooper’s laptop that, the State argued,
showed that Cooper performed a Google Maps search the day before his
wife’s murder and zoomed in on the exact area where her body was found.
The evidence was critical to the prosecution’s case. In fact, the
Court of Appeals noted that that it was “the sole direct evidence
linking Defendant to the murder.” The
State presented testimony from two witnesses that were qualified
as experts in forensic computer analysis. They opined that the
temporary internet files recovered from the laptop revealed that someone
conducted a Google Map search on Cooper’s computer the day before Ms.
Cooper was murdered. They concluded that this search was done by
someone using the laptop while it was at the Cisco office where Cooper
worked, and was initiated by entering the zip code associated with the
Cooper house. Cooper proffered Jay Ward as his expert technology
witness. Ward had
more than fifteen years of experience in the information technology
field, during which he specialized in network security and analyzed
“intrusion attempts from the internet.” To investigate and identify
such intrusions, he had analyzed temporary internet files like the
Google Map files at issue “hundreds of times.” Ward explained in voir
dire that, if allowed to testify, he would have offered his opinion that
the Google Map files could not have been obtained through internet
searches and had, in fact, been purposefully planted on Cooper’s laptop.
The State sought to exclude Ward’s testimony on the basis that he was
not a “forensic computer analyst,” a requirement and designation
introduced by the State. Cooper argued that Ward would not be
testifying “as a forensic examiner,” but as a “computer security
professional,” based on his years of experience determining whether a
computer had been tampered with. The trial court applied a Daubert-like
analysis and ruled that because Ward was not a “forensic analyst,” he
could not opine regarding the alleged planting of the Google Map files.
The Court of Appeals reversed, holding that the trial court abused
its discretion in excluding Ward. The published opinion provides that
“the State did not seriously challenge Ward’s ability to understand and
interpret the actual data retrieved [from the laptop by the State], and
the voir dire testimony indicated that Ward had been examining precisely
the kind of files at issue ‒ temporary internet files ‒ on a regular
basis throughout his long career as a digital data security
professional.” In a firm reminder to the trial court that North
Carolina follows the standard set out in Howerton and not Daubert,
the Court noted that “it is enough that the expert witness because of
his expertise is in a better position to have an opinion on the subject
than is the trier of fact,” overruling the trial court’s apparent belief
that because the laptop data was recovered using forensic tools and
methods, only an expert forensic computer analyst was qualified to
interpret and form opinions based on the data recovered. Where Ward is
concerned, the trial court’s analysis went awry because
it set the bar for qualification to testify too high. .........Here,
the Court’s reminder is likely stinging to the Wake County
D.A.’s office, because the result is a new trial for an individual
convicted of committing a terrible crime. However, it also serves as a
reminder that victories won by suppressing relevant and admissible
evidence may be fleeting. So, when considering motions to exclude
expert testimony, remember, the key word search starts with the word
“Howerton,” not “Daubert.”"
The entire commentary can be found at:
http://www.natlawreview.com/article/brad-cooper-latest-reminder-howerton-not-daubert-controls-expert-testimony-north-car
PUBLISHER'S NOTE:
Dear Reader. Keep your eye on the Charles Smith Blog. We are following this case.
I have added a search box for content in this blog which now encompasses
several thousand posts. The search box is located near the bottom of
the screen just above the list of links. I am confident that this
powerful search tool provided by "Blogger" will help our readers and
myself get more out of the site.
The
Toronto Star, my previous employer for more than twenty
incredible years, has put considerable effort into exposing the
harm caused by Dr. Charles Smith and his protectors - and into
pushing for reform of Ontario's forensic pediatric pathology
system. The Star has a "topic" section which focuses on recent
stories related to Dr. Charles Smith. It can be found at:
http://www.thestar.com/topic/charlessmith
Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:
http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html
Please
send any comments or information on other cases and issues of
interest to the readers of this blog to: hlevy15@gmail.com
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