-: SJC-13014, Commonwealth V Matthew Davis.
-: Um, Mr.Rangaviz
-: Good morning, Madam Chief Justice
and may I please the court,
David Rangaviz for Matthew Davis.
Uh, thank you very much for having us here today.
This case has a number of issues in it with my time today,
I'd like to focus most specifically if I could,
on the admissibility of the GPS measurements,
because I believe that's the clearest ground
for reversal here
and, on that score, this court really need to only apply,
old law to a new technology.
When a party is putting forward a measurement,
the party has a burden to show that the device
from which the measurement is taken is accurate.
This court has repeatedly applied that principle
to technologies that we know to be beyond reproach.
The reliability of the metric system doesn't make
every yardstick accurate,
the reliability of breathalyzer technology
doesn't make every breathalyzer device accurate.
So, this is just a new application of a settled issue.
The reliability of GPS technology,
does not make every GPS device accurate
and we know, from the proprietor of this device,
that this is proprietary-
-: Counsel may I interrupt you for a minute,
I'm your voice behind you, so this will be difficult,
but you can stand still, you don't have to look at me.
My question goes to just what you're raising,
which is an that old technology, new technology
and the way we did things before
but, in this instance,
the defense counsel seemed pretty well able
to cross-examine the witness on this and the judge found
that this kind of measurement was more a question
of admissibility uh, not weight, not admissibility
but weight, can you address that?
Why cross examination wasn't enough to bring this out?
-: Well, I think the Daubert/Lanigan line of cases
made clear that, the judge has a powerful gate keeping role,
in this situation, that there's a lot that actually goes
to admissibility and not just the weight
and I think the Amicus brief, lays out sort of
how fallible this technology can be
and we've seen that, also in cases before this court
like the police case, which showed sort of hundreds
of alerts from these sorts of devices,
even though there's no actual violations by the probationer
in that case, but, this court has already issued
that holding in cases like Hagosky with a scale,
you have to show the scale is accurate,
in case Tores, you have to show
the measure master is accurate.
'Cause I think the most on-point case,
is actually the Whynaught case
which is cited in a footnote in my reply.
Which is actually also about speed measurements,
it's about using a radar device to estimate the rate
of speed-
-: Would counsel would this have to be done for,
excuse me, again, would this have to be done
for every device that is built by this manufacturer?
It would have to, would each device
have to be calibrated, so to speak, every time?
-: I think fidelity to the precedent,
the answer to that would be yes,
but I don't think this court needs to go that far
in this case, because there's actually...
-: Go ahead
-: The testimony from Mr. Buck is,
that there's never been any testing of this model
of the device.
He hasn't formulated a way to test the speed,
quote reliably and repeatedly.
So, if the speed measurements can't be tested reliably
then they can't be deemed reliable,
I think that's a fairly sort of straightforward uh, uh-
-: I understand and now you said that you want to, you know
we don't have to go that far in this case,
but I do have to think about the other cases
and one of the things I'm concerned about,
is all of the other models of GPS,
does every single model have to go through this,
before we can settle and say, this exact model,
this exact device actually works.
Wouldn't you have to test the defendant's exact bracelet?
-: Well, like I said, I think fidelity to the case law
would actually suggest the answer is yes
and, I mean,
that's sort of a straightforward established principle
but, one thing that I think is, I think worth,
at least pointing out, is that devices at least when,
when models increase, tend to improve.
So I think, one thing that would sort of mitigate
what I think you're concerned about Justice Cypher,
is, I'm sorry, I can't really look at you-
-: You don't have to, you can look, I can see you,
if you look at the camera
-: Thank you- -: You look at them,
I can see you, that's fine.
-: One thing that sort of mitigates that,
is models tend to improve.
So I think once one model is shown to be accurate,
I think as long as the manufacturer comes in and says,
we just made tweak, cosmetic tweaks or tweaks
that would make the device more accurate,
that would be more than sufficient to I think satisfy
the burden that you're concerned about.
-: Can I, can I raise a question,
another voice from your back,
isn't it, I understand your point
about the speed has never been tested,
but isn't that a math problem?
If we know that the device plots location and time,
can't we, figure out the speed by just doing the math?
-: No, and that's because Mr. Buck said so,
on volume two, page 42, he specifically says,
that the speed measurements work on a different frequency,
he said it's actually independent
of the location GPS measurements, how the speed works.
So he, he sort of drew a very stark line
between the location measurements and the speed,
again volume two, page 42.
But there is also a problem as I wrote in my brief
about the location testing, you know,
I sort of can see that, that BI incorporated sort of
profit motive, can't really peaceably co-exist
with some of the Daubert/Lanigan factors
-: Before you move away from the speed,
I just have a follow up question.
I understand your point about it's a different frequency,
but say we just use the location data and the time data
and then we just compare the different places he's in,
can't you figure, I mean,
I was terrible at those math problems when I was a kid
but isn't, can't you just do the math and figure out, okay,
here's the time he was there, here's the time was there.
This is the distance between those two points,
so he was going this quickly.
-: Well, that's actually, that would be impossible
and the reason it's impossible is because
as I explained in my brief, Mr. Buck explained,
that, a measurement for a specific time could be
any 15 second interval for 45 seconds
that precedes that time and we don't know
which of those measurements it is.
So it would actually be impossible
to actually do that calculation yourself
but I also think it's important to point out
that Mr. Buck himself said,
speed and location are independent of one another
and the speed works on a different frequency
So, uh, sort of, as I was saying, I think,
sort of BIs profit motive.
You can't really peaceably co-exist with some
of the Daubert/Lanigan factors um-
-: Mr.Rangiviz but um, here, we don't necessarily
have to dig in into all of this because of the testimony,
of this particular witness.
Didn't this particular witness say
that they haven't really been able to test speed?
-: Yes, he specifically said that-
-: So as it relates to, the application,
of GPS, as to speed as to this device.
That's all we need to do here.
-: Yes, I think that's right.
The point I was making is, sort of, this is a situation
where I don't think peer review and peer testing
is really gonna be able to happen because it's proprietary
but that puts the onus squarely on a company like BI
to do the testing itself.
And you're exactly right, Justice Lowy,
he specifically said,
this device has never been tested before,
it's a little bit strange as a lay person
as I wrote in my reply,
I don't understand why he can't test the speed measurements
but, he said, I haven't formulated a way
to test the speed measurements reliably and repeatedly
and if something can't be tested reliably,
it can't be deemed reliable
and admissible in a court of law and the Amicus brief
also I think points out really nicely,
how this device had to be accurate and it had to be accurate
because of the way the Commonwealth used it.
The Commonwealth used it to create this sort of,
drive, run, drive narrative of the defendant's conduct
and this also goes to prejudice and the Commonwealth
in its closing argument, which is volume four,
pages 52 to 64, they, they referred
to the speed 12 different times.
They made the speed measurements important
because it was the speed measurements
that allowed the Commonwealth to sort of try
to match Mr. Davis' conduct to the conduct of the shooter.
So, sort of, the appeals courts decision saying
the case didn't depend on the speed measurements,
A, that's not the standard,
that's not the (indistinct) standard and B that's not true.
This case really did depend on the accuracy
of the speed measurements.
So when the Commonwealth is gonna use,
those speed measurements in such a precise way,
they have to show that those are accurate!
And that just wasn't done in this case-
-: Do you think the depend really was just a,
an art for word, or do you think that's really,
what was the point.
You referenced depend, in the appeals court decision
Mr. Rangaviz: Yes.
-: Do you think, which is, it doesn't have to depend,
do you think that was maybe inadvertent though
and they did have the correct standard of review?
-: I don't think so, I think that was,
I think that was just an error,
I don't know if it was inadvertent or intentional,
I obviously wouldn't assign any sort of intent or purpose
but I do think it was incorrect, even by its terms,
I mean, the case genuinely did
depend on the speed of measurements.
This is a case where there really wasn't a lot of evidence
and, and when something is so specifically preserved
as this is sort of, preserved on the exact, you know
I'm not very creative, I'm making the exact argument
that was made in the trial court
and so this issue was perfectly preserved by trial counsel,
the case did depend on those speed measurements,
but again that's not, that's not the standard as you said.
So, if the court has no further questions
on the GPS evidence, I do wanna spend,
a bit of my time on, uh, sufficiency as well,
because I do think this is actually a case
where the evidence was insufficient.
-: Counsel, I do have one question on that before you move,
are you also attacking the positioning,
evidence of the GPS?
-: The location measurements?-
-: Yeah. -: Yes I am!
-: Can you speak about why, so, can you parse that out?
If we were to find that the speed measurements
should not have come in, that the positioning
doesn't implicate the issues when it comes
to the positioning
-: Well if the speed measurements can't come in,
I do think this is a reversal,
given everything that I've said,
but I would argue the location measurements
also can't come in and it's because of sort of
how different the testing environment is,
to the environment in which it's being used
in this case, it's being tested on the rooftops
of Boulder, Colorado in a stationary position,
in a town where Mr. Buck said,
there's basically an ordinance that means,
no taller buildings, flat as a pancake he said,
under prime conditions with no clouds
and then, it's being used, in motion on the streets,
at the street level, in a dense urban environment of Boston.
So it's just, it's being tested in a way
and this sort of goes to the profit motive
I was saying earlier, in a way that makes BI able to report
to its customers, the lowest error rate possible,
but not in a way that's actually testing the accuracy
of the device, in the exact way in which it's being used
in this case and it doesn't have to be exact,
but it has to more closely approximate,
real-world conditions than,
the rooftops on cloudless days of Boulder, Colorado
where there's no other buildings
that are higher than three stories.
So that's why I would submit that the location measurements
are also not admissible under Daubert/Lanigan,
-: Thank you -: Um, but,
I think this sufficiency problem, your honor
is also really significant because it's sort of,
the classic piling up of inferences
that this court has repeatedly disavowed.
The fundamental problem with the case on sufficiency grounds
is, we do not know when the shooting happened.
This evidence is precise, at 10:27, it's incriminating
and any other minute that morning, it's exonerated.
Now, the Commonwealth as a result,
sort of has a corresponding burden to show exactly
when the crime happened and they haven't made any attempts
to satisfy that burden.
I think the only side that's, excuse me, I'm sorry.
The only side that's made, sort of an effort
to try to put together and reverse engineer
when the crime happened is the defense,
and the chop on page 22 of my brief,
sort of, shows our attempt to put the 911 call,
which is at 10:28, 24, side by side with the video
and try to at least figure out
about when the shooting happened
and that suggests that the shooting is actually,
a minute after the time where Mr. Davis is at that corner
and the Commonwealth's argument on that is just,
you could infer that someone would call 911,
a minute or two after a shooting like this happened
and that's just not enough, this sort of,
could've, should've, would've,
you know, the difference between a minute or two
in this case, is everything!
If the shooting's at, at 10:25,
he's many blocks away driving in a car.
So this is not a case where we know when the crime happened,
so they want us to make inferences about the crime,
make inferences about Mr. Davis
and then sort of interlock them together,
in a way that, that sort of, we've gone so far beyond
what the evidence will actually support by that point.
So I would submit that the evidence is just not,
not nearly sufficient.
Now, I would just, I would just close I think,
with a note about prejudice,
because I do think that's critical in this case,
the speed was extremely important to this case.
If this court thinks that the speed measurements
were inadmissible, then this is a clear reversal
given the preservation of this error.
There's 12 different references to the speed
in the prosecutor's closing argument.
If you read it, I think you could fairly call the phrase,
look at the speed, the theme.
I mean, they, over and over again, the prosecutor says
look at the speed, look at the speed.
If you look at the location points and the speed
it tells a quote, bigger story.
So there's just, there's no support for the idea
that the, these speed measurements coming in,
they shouldn't have, is somehow harmless error.
The Commonwealth made the speed important,
what matters is the case, as it was tried to this jury
and I would submit that that
the conviction should be reversed.
I see my time is winding down,
if the court has no further questions,
I'll rest on my brief.
-: Okay, thank you, counsel.
-: Thank you
Um, Mr. Doherty.
-: Uh, good morning and may it please the court,
Andrew Doherty for the Commonwealth.
I'm asking that the court affirm the defendant's conviction
in this case and, and like my brother,
I'd like to spend most, if not all of my time talking about,
how it is that GPS evidence should be introduced,
after and whether a Daubert/Lanigan hearing,
or a higher level of showing is necessary
when a particular devices used.
The Whynaught case is attractive,
in a lot of respects here, right?
Because, in Whynaught, they used radar technology,
which was a, well-proven something
that everybody understood, worked and then added
an additional said, we don't need a Daubert/Lanigan hearing
in order to introduce this,
but we do need to have some measure of accuracy
or some foundational evidence that establishes
that the device is working,
that is producing accurate results.
My brother says that's a Daubert/Lanigan hearing,
you need to have peer review,
you need to have the kind of certainty that you have
when proving a brand new,
technology, every time you use a device in every case.
That is not what the Whynaught hearing and it's progeny,
Whynaught case and its progeny stand for,
rather it stands for, a far lower level of scrutiny
and you see that expressed in various cases,
you see it in cases where, you calibrate,
there's evidence that the device is calibrated,
in when there's a way weight involved.
In the Whynaught case, the court looked to a comparison test
saying, was this device tested against a car,
that was traveling at 77 miles per hour
and did it read 77 miles per hour?
And even though those two individual devices,
weren't accurate,
weren't individually tested themselves
to the level of scrutiny of Daubert,
we were comfortable with that corroborating evidence
that, this device was measuring-
-: Your position, is that,
it's a conditional rather than authentication issue?
-: That it's that, to some extent, yes!
I mean, I think if we're talking about,
does there need to be some showing about,
this, a device doing something accurately
when it is, using a proven technology to determine velocity
and location, that, a Daubert hearing is not necessary.
If the court is going to impose some additional level
of scrutiny or separate level of scrutiny,
on a device by device basis,
that to some extent the Whynaught,
the theory behind Whynaught would apply.
However, I have concerns about,
a direct application of Whynaught to a GPS device,
in large part based off of nature of most GPS technology,
which is, it isn't an instrument that is in the possession
of a police officer or somebody that is able
and willing and capable of doing the kinds of calibration
that one might expect from a scientific instrument.
-: Counsel, let me interrupt you on that one point,
assuming Justice Lowy's position or the defense's position
that it's subject to Daubert/Lanigan
or that it's a conditional relevance issue,
is the fact that, in this case, the product manager says,
on the speed issue, we haven't tested it,
we have no way of testing it,
so we can't tell you whether it's accurate or not,
so, whether it's a 104, or whether it's a Daubert/Lanigan,
there's no testimony that the speed calculations
were accurate.
-: So I'd like to answer that question in a couple of ways.
First, I would say, that, with the fact that,
the device manufacturer didn't test the velocity,
is a separate question about,
whether using a GPS device, generally to determine velocity,
is something that is a reliable technology
and, nobody's contesting and the defense isn't contesting
that the technology behind GPS devices,
isn't a reliable science and so this device
is incorporating a reliable science
when it is measuring velocity,
the courts have used radar technology,
radio wave technology, microwave technology,
to, use the Doppler shift, to measure velocity since 1979,
when the Whynaught decision was made
and the theory behind the measurement of velocity
using a GPS device with the satellite signals,
is no different than that, in many respects,
I guess, in all substantial respects.
So, if that's true and we're not questioning
the science behind the velocity calculation,
then the question becomes, okay then,
how do we know that this device,
was accurately doing what it's doing?
I suppose you could do it through a testimony,
if they had tested this through the,
a person who designed it, to say, yes!
We tested this device, we know having manufactured,
the 50,000 devices that are used,
that you can rely on this, this thing,
that's one way I would suggest you can do that
and satisfy the Whynaught standard.
The other way I suggest that you can do that,
is also expressed in the evidence here,
which is what, I believe Justice Kafker was pointing to,
which is, comparing the individual data points
with the amount of time that it took to travel
those data points and I did the math
and I calculated the distance
between, the longitude and latitude of one point
and another point and it was approximately a half mile
and it took, anywhere from, I believe it was,
whether it took one minute, or 45 seconds or 15 seconds
that was, at a rate of speed that was higher than,
a person would typically walk
and in fact would need to be running.
I think there is evidence that that's the kind of evidence-
-: But isn't that, that level of approximation
you're talking about is troubling,
I know when I get on my bike,
I get a GPS reading of how fast I'm going, but, you know,
you're talking about a level of specificity
and given what Justice George just pointed out,
you know we have sort of a concession
that we don't have anything on this particular device.
I just don't know how we do that jumping around,
particularly, if defense counsel is correct
that they're like, you know, approximation of time,
it can be 15 seconds difference or something like that,
I mean, I just...
-: You reminded me that I had a backup argument
(people laughing)
and I do wanna answer that question,
I do wanna answer that, get to that point
because I think that's a valid criticism
of this triangulation slash time differential way
of showing that the readings are accurate.
Given that the analysis here is,
is sort of the much lower standard of the,
what I'm suggesting is, it's the lower standard
of the Whynaught, are these devices working accurately?
The fact that this, the expert came in,
testified, we didn't do scientific tests on this,
but what he did tell you is he has never seen any,
they have observed whether or not the speed is accurate,
when he's driving to work, they've never had a complaint
or seen an issue with the speed readings on this device
and that is part of the testimony.
So if you're subjecting it,
would that pass the Daubert/Lanigan scrutiny?
No!
Does it give the court some indication of the accuracy
of this device enough that it would,
they could then present this evidence to the jury?
Yes!
And so, I don't wanna abandon my, (chuckles)
you know, I think that is, but one way that you can test it
and then the other way, the other sort of way,
the court could be satisfied that this device
is doing what it's doing is expressed in the way that the,
is corroborated by the maps themselves
and you heard testimony and you saw the exhibit where,
the device ended up at the defendant's home.
There was testimony that he lived at,
in the area of one (indistinct) in place.
The last, the last one of these map reading showed
that he was, at that location
traveling at one mile per hour and, then it turned over
to this radio frequency thing,
which only happens when you're in that particular device.
That's the kind of, that is an example,
of the kind of calibration that the evidence-
-: I don't think, I think the easier point for you,
is establishing the GPS identifies location.
We don't really, I mean, I get your point on that,
we've got a lot of, otherwise we're about
to throw out 10,000 cases
but, speed seems to be a different matter,
particularly if it's done on a different frequency
and you can't point to any cases
where we've shown speed, right?
I mean, it's just, I mean, a radar gun is a little different
than what you're doing here,
which is using the GPS bracelet to establish speed.
-: I'd say the underlying science behind it,
is still the same, in that it's math
and it's calculating the differences in Doppler values
from using a radio for example, I don't wanna,
I don't wanna, quibble too much about that.
I think that, that, I guess I'll say this,
to the extent that it relies on a different frequency,
the only way he can really mean that, is that,
it is, it isn't triangulating positions
using the data inside of these, the packets of information
that are being, being from the satellites,
rather, it's an, it's a independent analysis
of the radio frequencies that are being emitted by these-
-: Counsel, is this similar to the fingerprint cases,
with the simultaneous fingerprint cases,
Patterson I think it is, where sure,
fingerprints have always been admissible,
there's no quibble about that but then when it went to,
a theory of simultaneous fingerprints, that was untested.
How was your case different from that?
-: Even in terms of velocity?
-: Yeah, well, so GPS sure, swell, great, right?
But then we have speed, if you compare it
to the fingerprint cases,
it's similar, so how do you distinguish
the fingerprint cases?
-: So, I hate to admit that I'm not familiar with those
but, I think what I would turn to, the, is-
-: The case was reversed where the theory was that,
fingerprints found on a vehicle,
I believe it's Patterson.
The theory was that they were made at the same time,
in the science on fingerprints goes way, way back
and, and that was fine, but the court said,
it was a bridge too far scientifically,
to say that they were made at the same time.
So it's using established technology
for a different purpose and that's why I wonder,
how your case is different from that?
-: I do think it's different because,
maybe the best way to say it is this?
I think we are, we are one case away or one,
this is not a case where I'm gonna be able to say,
that we established, you know, the Daubert/Lanigan standard
for, using Doppler to calculate velocity using GPS.
So to that extent, I, you know, I would ask that, you know,
I think, you know, the next time we introduce this,
if we put together the you know the gps.gov website
that says this is reliable within
I think it's several centimeters per second,
and we'll needs to demonstrate the extraordinary reliability
of this calculation, we'll get there.
If that then triggers a question of sufficiency of evidence,
I disagree with my brother
that speed was the fundamental component of this, this case.
As usual, I turned to the trial prosecutor's closing
and (indistinct) doesn't lean heavily
on any one piece of evidence, but rather,
turns to all of it, turns to the similarity
between the shooter and the defendant, turns to-
-: But counsel, considering that this
was a circumstantial case, in that all of these dominoes
had to fit together, in order for the jury
to find beyond a reasonable doubt,
that the defendant was the perpetrator.
Considering all of those things, if you take out speed,
isn't that an important component of the math,
to a verdict of guilty?
-: I don't believe that it is, not when you have
the other evidence that, that established that.
It certainly, wasn't the first part of his, his closing,
look to the speed and then look to how closely similar
the shooter was to the defendant at the time,
look to the fact that his GPS puts him
no less than 30 feet from the shooting when it occurred
and then tracks him at a location
where the shooter is then seen
and then tracks the defendant back to his home.
That's far more compelling evidence
than how fast he was traveling
and to some extent it's irrelevant,
we know where he traveled,
the fact that it seems like
it's more of a garnish than the main course.
And so I,
I guess when I was reading the closing,
I was admiring how careful he was about saying
you can't look to one thing and I think that's right.
You can't look to the sweatshirt
as being the reason why he's guilty
that doesn't make it a house of cards
-: But how can we say it didn't have a prejudicial effect,
or that it had but slight effect on the jury?
-: I think by, by comparing the strength
of the other evidence that was, that established
the defendant's guilt here, which was compelling.
I don't wanna leave before I just asked you
to, to do what you can.
I strongly encourage you to watch the video in this case,
I disagree with the characterization of this video
as adding no value, I think it's a very strong evidence,
especially given, just how distinguishing,
the hair characteristics are.
It's dreads that are essentially not as long
as (indistinct), but they're at least down to the
the end of his back.
Other than that, I suppose I rest on my brief.
-: Okay, thank you.
-: Thank you. -: Thank you.