-: SJC 13499,
Commonwealth v. Victor Arrington.
-: Okay, attorney McLean.
-: Thank you, good morning, may it please the court,
Ian McLean on behalf of the Commonwealth,
and along with me at Council table is Edmund Zaban,
who is actually the lead prosecutor in the case,
I'm second seat at the trial level.
Your honors, the first question before the court
is whether this issue falls within Rule 15A2
or it's a 2113.
Respectfully, it is a rule 15A2.
That question is measured by
whether what we're dealing with is a motion to suppress
or the functional equivalent of a motion to suppress.
-: Where is the legal authority for that last test?
-: I'm sorry, your Honor.
-: The functional equivalent test,
where is the legal authority for that?
-: Well, I'd say this court has over a series of cases
starting in '86 with Beausoleil then, to 2009 Arrington,
then 2013 Spencer,
and then in footnote, one of (indistinct) in 2019.
All of those were motions in limine,
not motions to suppress,
and this court allowed them to proceed under rule 15
as opposed to 2113.
So really the point is whether the thing
is the functional equivalent of a motion to suppress or not.
So what are the hallmarks of a motion to suppress?
They're all seen here.
A motion, a memorandum in law,
an evidentiary hearing, a written decision
with factual findings and conclusions of law.
All of those things happened here.
That decision being a final decision
as opposed to a traditional motion in limine,
which could be revisited.
-: So how about if we go back to kind of the 15A's
textual roots.
Those other cases, there seems to be a situation where
there really isn't much left for the Commonwealth.
If that motion in limine or however you say,
it's functional equivalent of a motion to suppress.
If it's allowed, there really isn't much left.
That's really not the case here.
Right?
I mean, there's a lot of evidence
for attorneys Aben to work with here
when it comes to Mr. Arrington,
you've got a cooperating witness that can make an idea,
you've got other kinds of video surveillance
of the car that's alleged,
that Mr. Arrington's alleged to have come to the scene in,
other phone record evidence.
So this isn't the case where the Commonwealth
would be really hamstrung in proceeding
without this particular location evidence.
-: Your Honor, I point you to two cases,
I respectfully disagree with you about the impact
of the evidence, and I'd point you to two cases in response.
The first being Beausoleil.
Beausoleil was a paternity case,
basically a criminal paternity case,
and the evidence in question was blood group typing.
While that's very power,
that would be potentially
a very powerful way to establish parentage,
it's not the only way.
I mean, the other parent can testify.
So it's very important, maybe critical,
but it's not determinative,
like the case wouldn't have to be dismissed
without that blood group type testing.
It's corroborative of that parent.
Just as here,
the evidence that we're talking about
that's gonna place the defendant
closer to the crime scene at the time
is corroborative of our cooperating witness,
who will clearly
be open to a very serious credibility attack.
-: Well, not that it's a numbers thing,
but when you talk about that other case,
when you look at how much is left in order to proceed,
there's certainly,
again, far more here than there was in that other case
to make that potentially a differentiator.
-: Potentially, your Honor,
but then I'd point you to the Lucian Arrington case in 2009
where what we're talking about,
there was a domestic violence case
and the victim's sworn testimony at a detention hearing,
I believe it was.
And then they passed away before trial.
So there are other ways
to proceed in a domestic violence case
than just the firsthand account, the firsthand account,
incredibly powerful evidence,
but you can proceed on the basis of a 911 call
and the officers who responded
and their observations at the time.
-: So if we're going by text to the rule
and then the expansion of that through our court over time,
what's left as far as the motion limine goes?
What wouldn't satisfy rule 15?
-: Well, traditional motion limine, your Honor.
So prior bad acts
or is gang evidence admissible or something?
These things that are subject to revision
during the trial. -: A hearsay exception.
-: Sure, subject. -: Cited utterance.
-: Oh, those are all traditional motions in limb ruling
that will be subject to revision
based on how the evidence comes in at trial.
The real distinction is,
are we talking about excluding a piece of evidence,
a final ruling, excluding a piece of evidence?
-: So any motion limine that excludes a piece of evidence
is subject to Rule 15 under your rule?
Under interpretation of the rule.
-: The real crux is whether it's a final ruling or not.
So the essential hallmark of a motion to suppress
is a final ruling excluding evidence from trial,
it's not gonna be revisited.
So here, this will not be revisited
depending on how the evidence comes into trial.
-: So if it's a hearsay objection, judge, I need,
you know, it's denied subject to further testimony.
I get that, but anything that's a final rule
and that excludes evidence, rule 15.
-: Your Honor, I wouldn't wanna go so far
as to create a blanket rule that said anything that was,
but the crux of it is
what makes it the functional equivalent
of a motion to suppress is the finality of the ruling.
-: Wouldn't you just bring everything
as a motion to eliminate then?
-: No, your Honor, I don't understand why
somebody would engage in that level of gamesmanship.
The caption is not what controls,
it's the functionality that controls.
I mean, you see that in the post-conviction context
all the time where things are moved back and forth
between 30, 29, 25 based on the substance, not the caption.
So functionality, functionally what's happening,
this was the functional equivalent,
even if this court was to determine
that it wasn't within 15A2, and this is a 2113,
then we've still cleared that initial threshold burden
of this court
needing to invoke its extraordinary supervisory powers here
because this type
of evidence will be excluded from this trial
and potentially in other trials
on the basis of the ruling we're looking at here.
So this type of evidence
might not ever get into trials when it should.
So that's enough to clear the initial threshold
under 2113 to reach the merits.
-: So based on that, why don't we talk about
frequent location history, methodology
and the issue here is the application of the methodology.
And it may well be that the right witness, I don't know,
an Apple engineer for instance, right witness,
might get you through to gatekeeper reliability.
But here we have very little
to be able to understand how we apply testing error rates,
peer review publication standards,
or even general acceptance into the scientific community
through the witness that you chose.
-: Well, your Honor,
I'd start with regarding the witness that we chose.
Of course we would love to have an Apple engineer
come in and testify, but it's proprietary material
and they're not willing to share
that sort of information with us.
-: And you've looked for non Apple engineers
to testify as to what happens in what clearly is a black box
based on the evidence presented?
-: Your honor, the correct. -: You don't think
that you could find an engineer to reverse engineer
what the Apple engineers have done?
-: I'm sure Apple's competitors would be, loath
to know that we could find somebody
that was capable of reverse engineering their code.
-: That doesn't answer my question, you have looked?
-: We had a person in-house that tested the device
and we felt that was sufficient to meet the standard.
And I point you to, as an example,
think about a shaken baby case.
A medical doctor could testify
and be a qualified expert to offer an opinion
and get you through a diagnosis process.
Just a regular MD, a pediatrician might be a better expert.
-: But wouldn't that be up to the trial judge at that point?
-: Sure. -: If I'm a trial judge
and I have a pediatrician discussing shaken baby syndrome
and I said, "You know what?
Not good enough
based upon the qualifications of this expert."
You do this at your peril. -: Right.
-: Sure, your honor, sure, your honor, yes.
-: And you called this witness at your peril
with this technology?
-: Yes, the pediatric neurologist
might be the best choice in the shaken baby case.
But here, the reason the judge got it wrong
and his first and most essential error here
was in misidentifying the relevant field of expertise.
He misunderstood the evidence we were talking about,
and he believed the relevant field of expertise
was cellular technology.
-: Don't you need somebody to explain
the algorithm that achieves the results?
-: To explain the algorithm?
No, your Honor, all that we're needing to establish here
is that what comes out of this black box
as we're describing it,
is a reliable estimate of where the phone is.
So the testing that this digital forensics person did,
Mr. Kinding did,
who is a qualified expert in the appropriate field
of digital forensics.
By the way, none of the three amici disagree
with digital forensics being the correct field,
and it also points to the Moseley's case out Rhode Island.
-: I'm not qualified, I'm not talking about qualifications,
we're talking about Governor Lannigan,
or general acceptance put aside qualifications,
that hill's much less steep.
Gotta understand
through the non-exclusive Bert Lannigan factors,
how it is that you apply a known methodology
to this technology?
-: Your Honor, what we have in the testing
that was done is a jailbroken phone
so that we could see all of the data points
that were created from where the phone was
and then we that corroborate,
and then we can see the frequent location
that comes out as a result and see.
-: Yes, and that corroborates -: Correct, your Honor.
-: That corroborates doesn't explain.
-: We don't have to explain how the code itself works,
although we have to show is that what comes out of it
is a reliable estimate of where the phone was.
That's all that we have to show.
-: I guess I'm wondering why are 10 locations
that are accurately identified enough,
why is it an abusive discretion to say 10 to 12 locations?
Not enough.
-: Well, first off it wasn't 10, so that's.
-: Oh 12. -: And it's not just
12 frequent locations or 12 locations visited,
it's the 1000s of individual data points
that he looked at in the process.
So all of those data points have come.
-: So your expert in that field went to 12 locations
and out of an iPhone, which is a different model
using a different operating system,
accurately identified those locations?
And you think it was an abuse of discretion
for the trial judge to exclude that evidence?
-: Yes, your Honor.
First, because he got the relevant field
of expertise incorrect,
so he discounted
whether it's generally accepted in the field or not,
there was no testimony
that contradicted the expert witness's testimony
that is generally accepted
and that's the single most important
of the Del Bear Lannigan factors
as the Supreme Court said in Davis.
So that factor was satisfied.
-: So he had to believe the expert
whom he didn't think was qualified
to tell him what was in the black box,
that it was generally accepted
in the field of what he thought was the wrong field?
-: Your Honor, it's almost
as though he said the correct field here is zoology
and because you're not a zoologist,
I'm not gonna listen to you.
The correct field is digital forensics.
-: The correct field is digital forensics
and not cellular technology?
-: Because what we're talking about here
is a process that uses cellular,
a result from cellular technology,
a result from GPS, a result from Bluetooth,
a result from wifi, does an amalgamation
of those into a single location data point
and then says when there's a cluster
of these data points in the same area,
I'm gonna create something
to represent that cluster of data points.
-: Right, and everything about that last part,
right, other than the GPS and the wifi,
everything about that, as Justice Lloyd was saying,
that algorithm, that process,
that methodology is a complete black box
to this particular expert, right?
-: Correct.
To anyone outside of Apple.
-: Right, so, well,
where's your evidence of that?
-: Maybe I misspoke then.
It's a proprietary type
expert. -: Your expert.
The only testimony that we have in this case
is that your expert has no idea why this works.
-: He does not know the algorithm
and he testified on the stand
that it was proprietary to Apple.
He does not know the algorithm.
What he had was a test device
where he could see the data inputs and see the data outputs,
and he knew where the phone was at all of those times.
So he can establish that what's happening in the algorithm
is creating a reliable estimate
of where the phone actually was.
That's all that we're talking about.
-: 12 times. -: 1000s of data points,
12 locations. -: Right.
So for the 12 locations,
it correctly identified those locations
using a different model iPhone
with a different operating system.
-: And the only testimony was
there was no significant changes to the operating system's
location services function.
The model of the phone is completely irrelevant.
-: Why do you say that?
How could it be. -: This is a software product,
not a hardware product.
-: And where does the software reside?
-: On the phone.
-: Yes, on the hardware of the phone.
-: The operating system is what controls the functionality.
-: On the hardware of the phone where it's burned in.
Isn't that right? -: That's correct.
-: Okay, so the model
which has a different hardware necessarily
might affect the operation of the software.
-: Well, I respectfully disagree with you about that,
your Honor.
-: Where is the evidence of that?
-: The testimony was that there was no significant change
in the operating systems between 8.1 and 8.41.
-: But the testimony I think also was that your expert
had no idea in terms of the algorithm what it was.
So how could he say that there was no difference
in the algorithm on each of the operating systems.
-: Then, your honor,
what I'm gonna do is point you to a category of evidence
that the motion judge completely omitted from his analysis
entirely, corroboration on the actual evidence phone itself
of frequent locations that were both before
and after the murder.
The one before at Newton District Courthouse,
the day before the murder.
And if you look at other components
of evidence on the phone, it corroborates that the phone
was in that Newton District Courthouse
at the time the frequent location said it was.
A text message at eight 15 saying I'm on my way to court.
And then a photo taken of the daily case list
in Newton District Court at about 08:50.
-: Well, we've read through that
and I don't disagree with you on that,
I still go back to Justice Gaziano's point
because I don't know that I've gotten an answer to this.
Assume for the sake of argument
that it was a 100% unchallenged what your expert said
and why is it that when Judge Dolan says,
this still doesn't convince me,
and in his discretion says
that this doesn't meet the Delbert Lannigan standard,
assuming for the sake of argument
that you said he sits the wrong field,
but that he comes to that conclusion and says,
"No, I don't think that this comes in."
And why is that an abuse of discretion
with all of the things that justice pointed to
or the infirmities with what was in front of him?
-: You have to apply the law correctly.
An error of law is automatically an abuse of discretion
by misidentifying the relevant field of expertise,
he failed to even evaluate the first
and most important factor
generally accepted in the relevant scientific field.
That's your first error.
Your second error is the failure
to make any factual findings about the corroboration
found in the evidence phone itself.
Meaning those five frequent locations that were both before
and after the murder,
made no factual findings about that at all.
That's failure to make findings about a critical component.
So you could remand that under Jones Pinal
for the necessary factual findings,
but it's all documentary evidence
so you could make those findings yourself.
-: So I'm hearing you on testing.
Where are you getting generally accepted?
We've never addressed this issue
as I recall from the brief.
There's no court that's addressed
the application of this methodology.
I expect just like in Davis with speed,
that the right expert would achieve gatekeeper reliability.
But where are you getting generally accepted
in the scientific community here?
-: Well, it comes from the testimony of the witness,
and it was the only witness that testified,
so the only evidence that was before the motion judge
was that it's generally accepted.
-: But he doesn't know this technology.
I mean,
so if you have this expert's a CSOI type person, right,
and if we're not requiring
someone from Verizon to show up in court,
actually back in the good old days, they used to
but we're past that with CSLI
because of where it's been.
So now you can have these kind of work a day experts
come in and say I did the CSLI map
and here here's what we got.
And that's what this particular witness does a lot of.
But here we're not dealing with something
that's been around for a long time that's been tested,
we're dealing with something new.
And I think the point that we're trying to ask you about is
how is it that he's a reliable reporter
that's generally accepted where there's no court cases,
there's nothing that says it's generally accepted?
-: Well, so I would point you to to Mosley's and to Pierce,
but Mosley's was,
granted it was Google on the Android operating system,
but it's the exact same function basically.
-: And we have testimony to that effect?
-: No, but we have the case that was provided to you.
I mean as a matter of law it has that concept.
-: We have testimony that the iPhone using this technology
is equivalent to Google Android?
-: No, one of the papers
that was introduced as an exhibit
one of the articles from 2009 was a comparison between
Apple's iOS system and Android's OS system
saying that they were doing.
-: Can I ask you a slightly different question?
What effect does
the intended use of this technology
have on the Daubert Lannigan test?
That is, as I understand it,
and you correct me if I'm wrong,
'cause you know the record better than I do,
this technology was developed by Apple
in order to help target advertisements to users.
And that may, as far as we know affect the algorithm
that Apple has developed.
Do you have any understanding
as to how the intended use of the original,
what is it frequent location history
affects Bert Lannigan?
-: I think I understand your question and I think so,
so I would start with the Canavan's case
recognizing that depending
on the methodology you're talking about,
these five factors have to be applied flexibly
and there are other things that could be used.
'cause really the goal is just about determining
whether this thing is reliable or not,
sufficiently reliable to get in front of a jury.
-: But I guess, yeah, my so, sorry to interrupt you,
but you're running outta time,
I'm wondering is it reliable to use a technology
developed for an entirely different application
to identify precisely where this defendant is?
-: Yes.
The original Fry test was about scientific reliability
and then the court shifted to Delbert Lannigan
in an effort to allow more actual valid science
to get into courts
because there hadn't yet been enough time for academics
to do the sort of peer review testing sort of process.
And that's why Dalbert Lanigan came into existence
with its multiple factors to look at instead of Fry,
which was just general acceptance.
-: Are you aware of a case
where the technology is developed for a particular use
and then applied differently
and said to be reliable for that different application?
-: Well, but the core point here is where the phone is,
it's only valuable to Apple
if it's correctly placing the phone in the correct location
so that the targeted location based advertising
is of value to them.
All that we're looking for here is the same concept
and it's not a precise spot,
the phone is right here, it's an estimate.
So it's like CSLI in that we do a map
that shows what a cell tower's coverage area is,
and that is always subject to cross-examination
because there's bleed beyond the traditional pie wedge
and it's influenced by a series of things.
Here what we're talking about
is an amalgamation of technology, GPS, wifi
and it creates an estimate of exactly where the phone is,
it's subject to the same kind of cross-examination.
This is not the junk science
that's meant to be excluded from a jury's consideration.
-: It just seems to me that if, you know for CLSI,
is that right?
CLSI.
-: CSLI.
-: Location information. -: It's important to identify
where the phone is
because for its functionality
to pinging off the right tower,
it's important that you know where the phone is.
Whereas if I'm trying to say, you know,
what's Ann Taylor's latest sale, it's not so important
that I know exactly where the phone is in the same way.
Do you understand my question?
-: I do, your honor.
-: Okay. -: If you ask your phone,
"Where's a good coffee shop?"
If the recommendations it's gonna come back to you
are based on where you are,
that's why the location services are of value,
or the frequent location function,
meaning your phone is aware that you're roughly driving
to the court for work this morning
and your phone may have advised you there's a traffic jam
on Cambridge Street, use an alternative route
because that's why it's of value to the user,
why it's of value to Apple.
Because it knows roughly where you're gonna be,
not exactly where the phone is,
but an estimate of where the phone is.
And that's all that we're looking for here is an estimate,
more precise than CSLI, less precise than GPS.
-: One more question.
-: Yes. -: Thank you.
Are you suggesting that there's not a better expert?
Are you suggesting because of the proprietary issues,
that is not somebody who could take the witness stand,
explain the application of this methodology,
and be able to teach us the algorithm
and how it all applies and that you did the best you could
and this is the best any court's going to do
for an expert in this area?
-: I can't speak to that hypothetically.
There could be an academic or a researcher somewhere
that would be capable of providing more information.
But as far as I know, as far as we know,
as far as the record is,
the algorithm itself is proprietary to Apple,
meaning it's not known by anyone outside of Apple itself.
-: So just to sum up, you are saying that
your expert was good enough,
and the judge said your expert was not good enough,
and the standard is abuse of discretion?
And so that's what we have to decide.
And I understand that you're saying that,
no, he made an error of law, but we can look at it
and see whether or not the expert was good enough.
Is that correct?
-: Correct, your honor.
But it is an error of law to misidentify the relevant field
because then he didn't evaluate the correct criteria.
-: And we can look at that?
-: Correct, your Honor.
-: Okay.
-: And you can make factual findings on the corroboration
because it's all documentary evidence.
-: Very good. -: Thank you very much.
-: Thank you.
-: Attorney Mankin.
-: Good morning, may I please the court attorney,
Michelle Mankin on behalf of Victor Arrington
that's seated with me at Counsel table,
his attorney Peter Parker,
who is lead trial counsel on this case.
Excuse me, I'll pick up where this discussion
where Justice left off this discussion
with the intended use of the FLH app.
And it's meant to be a predictive tool.
The incomplete patent information
that's in the Commonwealth's appendix at 114
talks about it being a predictive tool.
And I think that we all have experience
with our phones not knowing where we are.
Hey, where's the nearest Starbucks?
Well, it's in Albuquerque,
and those things can sometimes get flummoxed
because of the location settings that we have on our phone.
The last thing that we were Google searching.
So I think it's important when you look at
the testing that was conducted in this case,
and I wanna clarify that it was actually five locations
that were tested, not 12, there were 12 visits.
So there were repeat visits to these same locations.
And in terms of the thousands of data points,
those data points were all associated
with those particular visits.
But we don't know,
the expert was able to look at those test sites
and say, "Well, this looks pretty accurate to me,
but we don't know that the settings
on the phone were the same.
We know that Christopher Kindig
had every single option turned on
to enhance accuracy on his phone and we have no idea
what the settings were on Arrington's phone.
-: We don't.
But to attorney McLean's point though,
one of the concerns,
and I don't know how much of a concern it is,
is the fact that Judge Doolan
had information from Mr. Arrington's phone,
that at least, maybe not directly,
but certainly circumstantially suggests that
whatever his settings were, were pretty accurate
because he had information about
where the phone was
versus where Mr. Arrington was supposed to be,
and they were one and the same.
-: So pretty accurate won't cut it here.
And that's because the question
framed in the motion in limine
is whether this expert could opine on the distance.
-: What was the radius again?
-: 43 meters, from a set of coordinates
that were assigned via an unknown mysterious process
to a particular location.
They want to say, they want their expert to be able to say
that the phone was within 43 meters
of that set of coordinates
from a specific time to a specific time.
So that's the question,
did this expert have the kind of expertise
that would enable him to testify
to the reliability of those measures?
Now he may have expertise
and it appears he knows how to look at the
the 1000s of location data points,
I wouldn't know how to do that.
That requires some expertise,
but it didn't tell him what these measures mean.
For example, again, back to the patent information,
that information indicates that the entry time
is the time that the phone's location was determined,
not the time that it got within a particular radius
of a particular set of coordinates.
And with respect
to those other previous visits on the phone,
there was no testimony or evidence that the entry
or exit times were accurate
or that the radius in those cases was accurate,
that the phone was within that radius
from that time to that time.
And it really matters here
because if the Commonwealth
is saying that Arrington's phone arrived at 10:38
within 43 meters of the crime scene
or near to the crime scene,
but they also have evidence, the selfie photograph,
which was taken within that timeframe
from a location that they will try to prove
was at the corner of Paxton Street in Blue Hill Ave,
which was established at the hearing
that was beyond the 43 meters.
So we know that the phone
was beyond the 43 meters within the timeframe.
So as to where the inaccuracy is, it's just a guess.
And Mr Kindig himself said repeatedly,
"This is a hypothesis.
It's kind of sort of like this,
it looks like it's kind of doing that."
So what do we make of that,
what is the trier of fact make of that,
was the arrival time inaccurate?
Do we assume that he arrived at a time
and then subsequently got within 43 meters,
or was he consistently for that entire period of time
beyond that 43 meters?
For example, did he stay in his car the whole time?
This evidence can't answer those questions.
We don't have that basis.
The other way that I think it's important
that this FLH app was not designed as a forensic tool
to pinpoint a phone's location in the past,
is that there's this law about an expert.
It's important to look at
whether their testimony grows naturally
out of the type of work that they do,
or whether they were forming this opinion
for the purpose of litigation.
And that latter scenario was what happened here.
This had not been tested.
This witness had never looked at FLH before.
He jail broke the phone
and created this model for the purpose
of trying to suss out what was happening with this app.
In that respect, the lot like the paint drying expert,
Edmund Tull who had some expertise with paint,
but his theorizing about
whether the paint was poured intentionally
or how long it had been drying and things,
this was something that he tried to explore
for the purposes of that case
and just didn't have a sufficient background experience,
anything to draw from.
-: Can I interrupt you for a minute
because I'll go
with the two points you make in reverse order.
Your point that an expert's on the witness stand
talking about something that he or she doesn't do
outside of the litigation area
is certainly a reasonable gatekeeper reliability factor.
But many methodologies get through gatekeeper reliability
when the person on the witness stand
is applying the methodology for litigation purposes.
So in other words, that's not dispositive, it's important,
and then it's to your first points
when you methodically went through
some of the infirmities that can be demonstrated here.
That sounds like the basis for an opinion
and cross-examination.
What we are trying to get at here
is not which methodology the jury will believe
or how much they'll credit the expert,
but when the methodology is enough,
as a preliminary question of fact
upon which admissibility
depends on the preponderance of the evidence
to satisfy gatekeeper reliability.
Can you address that issue?
'Cause those other points are important,
but it just doesn't go to the core issue.
-: Absolutely.
So first I wanna challenge my brother's representation
that the trial judge here misunderstood the relevant area.
It is quite clear that the judge was focused
on the subject of the motion
and whether his words were the right words is irrelevant.
We know that the deficiencies that he found
with this expert's ability
to talk about the methodology are that
he couldn't testify about the algorithm at all.
He couldn't explain the meaning of the confidence reading,
which certainly sounds like it's important,
and I will say that when my brother who's talking about,
we're just saying this is an estimate, they're not really,
I mean, the witness used the word approximate,
but he did not talk about
a margin of error or an error rate.
So when you say approximation, like approximately to what,
what's the trier of facts supposed to do with that?
And this witness couldn't give us that.
He also couldn't explain why this uncertainty reading
would vary from visit to visit to visit.
He just knew nothing about the reliability
or accuracy of the FLH app's readouts on these measures,
which are the thing
that the commonwealth wants to use this evidence for.
Not only does it have all of the other evidence
that Justice Georges summarized,
but it also has pictures, it has evidence pictures
that it will say put Arrington's phone
or Arrington himself in the place where they want him to be
at the time that they want him to be.
What they like about this evidence is how precise it looks.
And that's the question is
whether this witness could speak to that and he couldn't.
His testimony that this was well, generally accepted
as reliable is Ipse Dixit,
there was no support for that whatsoever.
He tried to say these articles supported it,
but they didn't.
The cases and the articles don't concern FLH,
they concern the core location services,
GPS, wifi access points.
So that's the underlying technology.
But this court's cases are clear that just,
for example in Davis they weren't,
the court was like GPS is fine with us.
The question is this device
that is starting from the GPS and then calculating speed.
And that's what we have here.
We have these location data things,
which by the way, were gone on the subject phone,
we don't have the underlying data,
so we can't actually
look at the reliability of these measures.
We're trying to reverse engineer like a natural phenomenon.
What is going on here?
-: This question is not your problem,
but is there an expert
that could attempt to be able to do this?
Or is it, well, Apple's proprietary, so this,
we can never find out whether or not
this could satisfy gatekeeper reliability.
I recognize it's not your problem,
but what's your thought on that?
-: Well, I agree that I don't think you have
to have an Apple engineer disclose the source code,
certainly that would be helpful.
But we have seen cases where extensive testing
by the scientific method
that is rigorous and peer reviewed over time can reveal
with sufficient reliability
the way that the mechanism is operating.
And that we just don't have here.
Also, it's awkward that the amicus briefs
that sort of speak
to the subject of frequent location history.
I mean, we're not here on de novo review,
but I would say at the least
what you can glean from the two forensic amici
that submitted briefs
is that there is more knowledge known to those experts,
those experts sort of spoke confidently about
what you can rely on and what you can't rely on.
And I'd say that I think that both of those briefs
supported Arrington's position.
And I'll just touch briefly upon the procedural question,
although we do sort of argue that
it appears that the appeal is here
and it is going to be decided by this court,
so it doesn't really matter to Arrington at this juncture,
but let's say that this court
overturned the exclusion of this FLH evidence
and we went back down and said,
"Judge, it's still more prejudicial than probative,
and or its cumulative."
Let's say that the judge found another reason
to exclude this evidence.
Do we then come back here?
Because that's a decision excluding the evidence
that is as final as the decision before the court.
You know, it isn't inconceivable
that the way that the evidence develops at trial,
the Commonwealth wishes to reapproach this FLH evidence
in a more narrow sort of altered,
you know, I keep emphasizing
it's the way that it's the opinion
that they're trying to admit that has been excluded.
But this expert does have some knowledge in some areas
that perhaps could be become relevant later.
This is not necessarily the kind of final decision,
like a motion to suppress that is collateral.
It is done well in advance of trial
so that the automatic stay that happens with Rule 15
doesn't mess up the entire trial schedule.
These are distinctions
between this kind of evidentiary ruling,
which is subject to change,
which happens in the course of a sort of a busy trial.
-: That might be true.
But when you do a not so slow walkthrough our jurisprudence,
it does seem as if there've been instances
where we've kind of stretched the parameters of 15
to subsume some things that arguably could be,
should have been 2113 issues.
What do you think about all of the other stuff when you say,
even though we have this other evidence that this still,
if it operated the way that attorney McLean is saying,
that it's over and done with this issue,
and so therefore it is ripe for 15 review?
-: Well, as I just sort of argued,
it's over and done with, with this opinion.
-: Sure. -: But the FLH
perhaps could be re-approached later.
With respect to the other cases where these rule 15.
-: But let me just focus on that before you move on.
How?
How could this FLH data
be revisited in another way that might be relevant
and admissible with this same witness?
-: Well, I honestly,
I'm not prepared to answer that question.
-: But doesn't that go to his point,
that it couldn't come in any other way
and that even though there might be other evidence
that might be supportive
of the government's position and burden,
that this is the type of decision
that we've shoehorned into 15 over the years?
-: Well, I disagree that it is the type of decision
that has been shoehorned in
because I think that as the amicus CPCS brief points out,
and I hereby move to expressly adopt
all of their arguments in our position.
But they point out that in each of those cases
the issue was just positive, or it just wasn't challenged
and it wasn't really looked at,
and it's being looked at now
in this case for the first time.
But there are myriad evidentiary rulings
that similarly could be characterized as final,
they're not going to be revisited.
And it's impossible to sort of sit back
and imagine how the evidence might,
I mean, unexpected things happen at trial all the time,
which is why I'm not prepared to sort of brainstorm
all the potential things that could happen here.
But it's really the minority motion
that isn't looking final
from the moment that you get that ruling.
Well, we're stuck without that evidence
or we're stuck with that evidence.
We could sort of always come,
and there's a tremendous imbalance,
as I think I pointed out in my brief,
the Commonwealth would have a much greater opportunity
to stall the process of the trial
because defendants don't get rule 15 appeals very rarely.
So I hope that you would take that
into consideration as well.
And as we've pointed out,
we do have these other Daubert issues sort of lined up,
and if the process were altered in the way
that the Commonwealth is asking this court to do,
this esteemed bench would find itself
entangled in pretrial evidentiary process in superior court
in a way that typically it has been loathed to do.
If there are no further questions, I'll rest on my brief.