GPS Evidence

Pre-Trial Evidentiary Hearings

February 17, 2004

JUDGE: Okay. Is that all the evidence you are going to present on the Kelly-Frye issue?

DISTASO: It is, your Honor, on the methodology, the science. I don't know if the Court wants me to, I have a witness I had, I could put on who would, going to testify that those tracks are the ones that were being used in this particular case. I don't know if that's really an issue.

JUDGE: Any dispute, Mr. Geragos?

GERAGOS: No, your Honor.

JUDGE: Okay. I don't think that, well, Mr. Geragos.

GERAGOS: There has been no showing through either of these witnesses of general acceptance in the scientific community. I would reiterate once again, and I know the Court ruled originally on the voir dire; but the problem is, is that you have two gentlemen, both of whom have had or currently have a financial stake in the outcome. I do not believe that that can constitute in a technology a death penalty case an admission of a Kelly-Frye foundation, nor the general acceptance in the scientific community. And if you listen closely, and I know your Honor kept trying to redirect both of them back to that central question, but I don't think that either of them qualified in order to talk about what was going on in terms of general acceptance in the scientific community. Mr. Roddis claims to have testified three times, once outside of the country. When you ask him what was the results of that testimony, just saying somebody was convicted or somebody was found guilty, obviously he has no comprehension of what it is to testify as to the foundation on a Kelly-Frye proceeding. All he's looking for is, did, somebody was, were they found guilty, or were they acquitted. So he doesn't answer your question. That's all he seems to be fixated on. Mr. Loomis I think fairly tried to convey to the Court what some of the issues were. But Mr. Roddis' expertise, as he admitted, is linked to the computer card, or the GPS card that is provided to the end user. Unless they bring in somebody who can testify to the totality of the technology as used in the device, it's not enough to come in and say GPS is used here and GPS is used there. Mr. Roddis candidly admitted today the FAA does not approve GPS, and he says for safety reasons. Well, this is a capital case. It is a capital case. I'm not trying to be flip or facetious. But if the FAA will not approve the use of GPS for the landing of airliners, then how is it in a court of law for forensic purposes that we're going to find that a Kelly-Frye foundation was laid? I have also heard a number of people make the unsubstantiated claim that other jurisdictions have used it. I have not seen, maybe I missed it, one single judgment, one single order, or one single opinion that has substantiated the admission of GPS technology in this current application. I know the Court did not handle the mitochondrial DNA hearing. In the mitochondrial DNA hearing, they supplied the Court with a number of opinions from out of, opinions from out of state where the mitochondrial DNA was used specifically in typing hairs in a forensic context. They produced experts who testified that they had qualified in numerous locations in other jurisdictions regarding the specific use of mitochondrial DNA hair analysis. Here we have somebody coming in, told you about GPS technology. Then the guy comes in and talks about how he does receivers. Nobody knows where they were placed. I still maintain, absent them disclosing the placement, that we have been deprived of a material.

JUDGE: Nobody made an motion to get that. I have heard this, to disclose.

GERAGOS:: I making that motion.

JUDGE: You making it now?

GERAGOS: I thought I had made it.

JUDGE: Waiting for somebody to come up with it. Haven't heard it. Nobody an asserted the privilege here yet. That's what I thought we were waiting for. That's, you mentioned that.

GERAGOS:: And then nobody asserted the privilege. Both these people at the point don't know where the,

JUDGE: They don't know where it was.

GERAGOS: Absent somebody who comes on here and says, I put it on, this is where I put it on, they can't meet their burden in any way, shape, or form. And we don't have anybody who has testified, that has knowledge of GPS application to a covert placement in an automobile. Nobody has evidence that we have got somebody with GPS. We have somebody who's talked about in general terms what the device does. In terms of reading the data set. But nobody has testified, met the burden of what the Kelly-Frye issue is. So until they put somebody on who is going to try to unify that together, I don't believe this court can find that they had made a Kelly-Frye issue.

JUDGE: Okay.

DISTASO: Your Honor, I just completely disagree with that. The Kelly-Frye is not any big magical thing. I don't know what counsel is trying to make everybody , it's two things. Qualified expert testified in this case. The Court has accepted both experts' testimony. Secondly, is the science accepted in the scientific communities to which it belongs. In this case we're talking about GPS, which is the scientific community. And the experts testified, basically repeatedly, and I could run off the list of things that they said that's used for that purpose. I don't really know what else needs to be said in that regard. They both said it's accepted in aviation, maritime, automobile, which is the issue here. BMW is a big purchaser of those things. They use it to track animals. They use it to plow fields. They use it to produce maps which are introduced in court. They use it pretty much everywhere. So to say that there is no showing in that regard is just incorrect. Regarding the issue of whether or not the location of the antenna has to be disclosed, there has been no showing at all that the location of the antenna had anything to do with these two specific minute problems that resulted in these particular tracks. The only one that could have even contributed to the problem was the five-minute Fresno dip. That would only be material here if the people were trying to introduce that particular evidence as accurate. And the people are conceding that that five-minute Fresno dip is not accurate. In fact, the experts have testified that that particular information they wouldn't rely on. Since that's the only issue that can be at all linked, not caused by, of course, but only contributed to the GPS antenna placement, the actual placement of the device cannot be considered material in this case. Both experts testified they reviewed the tracks that are at issue both said that tracks, all of the information is valid, under hours of the attack by Mr. Geragos regarding all of the issues that could go wrong here. They also said they didn't see any issue of that, other than the one degree of offset and potential radar interference. So with that being said, I think the people have more than met their burden for Kelly-Frye, as well as for keeping this information secret. If the Court does want, just for the record purpose, a witness to come and testify regarding to assert the privilege, I have a police officer who is available to do that.

JUDGE: You want to claim, he asserts the privilege. You are being asked to discover the location of the device, just for the record.

GERAGOS: Yes.

JUDGE: Okay. All right, that's it?

DISTASO: That's all, your Honor.

JUDGE: First of all, let's take up the issue of the Kelly-Frye. My understanding of Kelly-Frye is that the proponent need only show the generic methodology is generally accepted in scientific community. I think there has been enough testimony in this case to show that the general methodology is generally accepted. We have it for all kinds of uses. Navigation. You can buy a car with it in it, and so forth. So I think the generic methodology is generally accepted, fundamentally valid. Doctor Loomis testified that the technology has been generally accepted in the scientific community, and he was of the opinion that the correct scientific procedure was used in this case. Kelly-Frye tests the fundamental validity of the methodology and not the degree of professionalism in which it is applied. So there is a lot of issues here that Mr. Geragos has explored with respect to the introduction. However, the Court is satisfied that there is a foundation for the admission of GPS evidence according to Kelly-Frye. On the other hand, on the 1040 issue, I don't agree with the District Attorney. I think my tentative ruling would be that you have to disclose the location of the antenna. I'll give you some reasons. First of all, we had a lot of discussion today about the multipath, and so forth. The positioning of the antenna can affect multipath. If we're going to accept this data as being accurate, as being accurate with respect to the other anomalies that were testified to, we have to have these issues. These are problems with GPS. You have the, you have issues that the direct reflective materials the pseudorange, all of these can be affected by the positioning of the antenna. And I would be willing to have an in camera hearing to determine why I shouldn't let that information be disclosed to the defense. But based upon what I have heard, and in order to guarantee the defendant a fair trial, I think there is, Mr. Geragos would be entitled to know the location of the particular device that was used in each one of these vehicles. That's the Court's opinion.

DISTASO: That's fine, your Honor.

JUDGE: Prepared to disclose that information to Mr. Geragos?

DISTASO: I would like to do that in private, not,

JUDGE: You don't have to do it on the record. You can tell him in private. You can pursue it from there. Okay?

GERAGOS: Thank you.

JUDGE: That's the Court's ruling with respect to the Kelly-Frye issue with respect to GPS.