Admit or Exclude? State v. Matthews Explains a Post-Rochkind Maryland
(July 14, 2022) Benito Felice, Summer Associate.
For more information, contact Paul N. Farquharson.
Before 2020, Maryland applied the Fyre-Reed standard to expert witness testimony regarding scientific evidence. Recently, in Rochkind v. Stevenson, 471 Md. 1 (2020), the Maryland Court of Appeals announced the adoption of the standard set forth in Daubert. In State v. Matthews, No. 15, Sept. 2021, 2022 WL 2236139 (Md. June 22, 2022) (hereinafter “Matthews” or “State v. Matthews”) the Court of Appeals addressed the Daubert analysis in a post-Rochkind Maryland.
Maryland made it clear in Rochkind that Daubert would replace Fyre-Reed, because the Daubert standard factors are “persuasive in interpreting Maryland Rule 5-702” (Rochkind, 471 Md. at 38-9). Fyre-Reed is not completely gone; it remains a factor to consider in the Daubert analysis. The decision in Rochkind generated “substantial comment from the Maryland bar…[and] it was unclear to some commentators how trial courts would interpret Rochkind and how…Rochkind would change the dynamics of litigation in Maryland” (Matthews, 2022 WL 2236139, at * 1). State v. Matthews provided the first opportunity for the Maryland Court of Appeals to address whether a trial court erred in deciding the admissibility of expert testimony in a double homicide case after Rochkind.
In 2017 police responded to a 911 call and found two bodies. Ballistics evidence indicated that the shooter used a 12-gauge shotgun, but the murder weapon was never recovered. According to the State, Kirk Matthews (hereinafter “Defendant”) got into an argument with the two victims and the controversy led to their deaths. Video footage from two security cameras showed one of the victims chasing the other victim. Shortly after the shooting, one camera recorded an individual walking across a yard, a “significant” distance from where the camera was situated. That individual appeared to be carrying a shotgun, but his facial features and race were indiscernible.
The police sought to determine the height of the person pictured in this video and submitted the video to the Forensic Audio, Video, and Image Analysis Unit of the FBI’s Digital Evidence Laboratory. A report written by Kimberly Meline (hereinafter “Meline”), a forensic scientist in that unit, stated that through “reverse projection photogrammetry analysis” the individual was determined to be approximately 5’8”, +/- .67”. This methodology of determining the height of individuals in photos is not uncommon, nor was it contested at trial. Meline’s report was created, in part, by visiting the site where the camera took footage, and mimicking the photo by taking a picture of herself at the same distance and in the same spot.
The issue for the trial court and the Maryland Court of Special Appeals came down to the error rate of the approximate height. Defendant argued that because the error rate could not be accurately ascertained, the expert testimony should have been excluded. On cross-examination, Defense counsel asked Meline about her statements in her report claiming that the “degree of uncertainty in this measurement could be significantly greater” based on several variables including: the subject to camera distance, the resolution of the imagery, the unevenness of the landscape, and the body position of the subject. Meline testified: “I don’t have a scientific way of quantifying how those dimensions had an effect on my measurement and consequently I wanted in an abundance of caution to mention them” (Id. at * 6.) The following exchange occurred shortly after:
Defense Counsel: Okay, which means ultimately we don’t know how uncertain this result is?
Meline: I would say that I have some indication based on the overlay of my own, myself in that similar position with the image of questioned individual and knowing that the questioned individual appeared to be slightly shorter than I, myself, am that I have some indication as to the uncertainty with the method. However, there are factors in here that I cannot calculate.
Defense Counsel: [A]s here where the conditions are far from pristine, [the] margin of error is going to become greater it stands to reason, right?
Meline: It does.
Meline contended that, despite these unquantifiable variables, she considered her height measurement to be accurate within a reasonable degree of scientific certainty. Meline’s testimony, coupled with the other aspects of the State’s case, resulted in a guilty jury verdict for the Defendant. On appeal, the Maryland Court of Special Appeals reversed the verdict holding that the trial court abused its discretion by admitting Meline’s testimony. The Court of Special Appeals reasoned that there was an “analytical gap” between the underlying data and Meline’s opinion, specifically pointing out that there was no scientific way to calculate the actual uncertainty and, thus, the testimony violated Md. Rule 5-702. The Maryland Court of Appeals granted certiorari and found that the trial court did not abuse its discretion.
First, the Court of Appeals reasoned that the expert’s testimony was not per se inadmissible simply because Meline could not calculate the effect of all potential variables on the degree of uncertainty. The reliability factors from Rochkind (i.e., the factors from Daubert)—including “whether a particular scientific technique has a known or potential rate of error—are neither exhaustive nor mandatory (Id. at *17 citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 153 (1999). The Court of Appeals explained “it is not sufficient to point to an unknown degree of uncertainty/error rate that applies to an expert opinion and claim that a trial court is stripped of discretion to admit that opinion.” Rather, a trial court should consider whether the unknown degree of uncertainty “inheres” in the expert’s methodology or whether the uncertainty applies to the expert’s conclusions.
Second, the Court of Appeals pointed out that there was no dispute that “reverse projection photogrammetry” is a reliable technique and, therefore, the trial court was not required to exclude Meline’s testimony due to the unknown degree of uncertainty that applied to the height measurement. While the Court’s second reason for allowing the expert testimony may seem overtly similar to its first reason, the distinction is primarily in the arguments raised by the Defendant. First, the Defendant argued that expert’s testimony was per se inadmissible because of the unknown degree of uncertainty and, second, that the expert’s conclusions were unreliable because she could not account “for the effect of several variables on the degree of uncertainty that applied to her height measurement.” Matthews, 2022 WL 2236139, at *17 (emphasis added). The Court here made a distinction between uncertainty inherent in an expert’s methodology and uncertainty that applies to an expert’s conclusions following the application of that technique. To that end, the Court of Appeals advised that a court “generally should be most concerned about the reliability of an expert’s methodology.” If a trial court finds a reliable methodology applied to an adequate supply of data, the “court should not exclude the expert’s testimony merely because the court is concerned that the expert’s particular conclusions may be inaccurate.” The Court of Appeals expressed that Rochkind only requires that the expert’s conclusions be excluded if it amounts to “mere speculation or conjecture.”
Third, the Court of Appeals held that there was no analytical gap in Meline’s proffered testimony expressing that they “…failed[ed] to perceive an analytical gap in the absence of a demonstrable flaw in Meline’s logic.” Meline specifically testified that the height of the individual in the photo was 5’8” plus or minus two-thirds of an inch, but the plus or minus value could be greater based on other variables she could not quantify. The Court found that the height estimate was the result of combining “generally accepted methodology” with a “generally accepted analysis” which is permissible under Rochkind.
Finally, the Court of Appeals held that the trial court acted within its discretion when concluding that Meline’s testimony would assist the jury to understand the evidence or determine a fact in issue under Md. Rule 5-702. The Court is mindful that “reliable methods do not always produce reliable conclusions,” however, Daubert (and therefore Rochkind) requires a judge to assess the former. The latter is for the jury to assess. The Maryland Court of Appeals explained that Meline’s testimony could be tested, a factor stated in Rochkind. To that end, a trial court functions as a “gatekeeper” and the Court of Appeals does not want to transform trial courts into “armed guards.” In other words, as long as the expert’s methodology rests on “good grounds” based on the data before them, the trial courts should allow the adversarial system (e.g., cross-examination and competing expert witnesses) to tease out competing conclusions.
If you have questions about this update, contact Paul N. Farquharson.