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SJC 13499,
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Commonwealth v. Victor Arrington.
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Okay, attorney McLean.
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Thank you, good morning, may it please the court,
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Ian McLean on behalf of the Commonwealth,
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and along with me at Council table is Edmund Zaban,
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who is actually the lead prosecutor in the case,
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I'm second seat at the trial level.
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Your honors, the first question before the court
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is whether this issue falls within Rule 15A2
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or it's a 2113.
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Respectfully, it is a rule 15A2.
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That question is measured by
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whether what we're dealing with is a motion to suppress
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or the functional equivalent of a motion to suppress.
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Where is the legal authority for that last test?
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I'm sorry, your Honor.
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The functional equivalent test,
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where is the legal authority for that?
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Well, I'd say this court has over a series of cases
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starting in '86 with Beausoleil then, to 2009 Arrington,
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then 2013 Spencer,
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and then in footnote, one of (indistinct) in 2019.
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All of those were motions in limine,
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not motions to suppress,
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and this court allowed them to proceed under rule 15
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as opposed to 2113.
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So really the point is whether the thing
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is the functional equivalent of a motion to suppress or not.
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So what are the hallmarks of a motion to suppress?
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They're all seen here.
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A motion, a memorandum in law,
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an evidentiary hearing, a written decision
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with factual findings and conclusions of law.
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All of those things happened here.
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That decision being a final decision
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as opposed to a traditional motion in limine,
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which could be revisited.
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So how about if we go back to kind of the 15A's
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textual roots.
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Those other cases, there seems to be a situation where
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there really isn't much left for the Commonwealth.
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If that motion in limine or however you say,
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it's functional equivalent of a motion to suppress.
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If it's allowed, there really isn't much left.
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That's really not the case here.
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Right?
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I mean, there's a lot of evidence
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for attorneys Aben to work with here
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when it comes to Mr. Arrington,
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you've got a cooperating witness that can make an idea,
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you've got other kinds of video surveillance
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of the car that's alleged,
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that Mr. Arrington's alleged to have come to the scene in,
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other phone record evidence.
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So this isn't the case where the Commonwealth
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would be really hamstrung in proceeding
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without this particular location evidence.
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Your Honor, I point you to two cases,
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I respectfully disagree with you about the impact
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of the evidence, and I'd point you to two cases in response.
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The first being Beausoleil.
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Beausoleil was a paternity case,
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basically a criminal paternity case,
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and the evidence in question was blood group typing.
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While that's very power,
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that would be potentially
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a very powerful way to establish parentage,
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it's not the only way.
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I mean, the other parent can testify.
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So it's very important, maybe critical,
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but it's not determinative,
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like the case wouldn't have to be dismissed
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without that blood group type testing.
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It's corroborative of that parent.
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Just as here,
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the evidence that we're talking about
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that's gonna place the defendant
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closer to the crime scene at the time
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is corroborative of our cooperating witness,
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who will clearly
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be open to a very serious credibility attack.
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Well, not that it's a numbers thing,
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but when you talk about that other case,
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when you look at how much is left in order to proceed,
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there's certainly,
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again, far more here than there was in that other case
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to make that potentially a differentiator.
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Potentially, your Honor,
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but then I'd point you to the Lucian Arrington case in 2009
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where what we're talking about,
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there was a domestic violence case
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and the victim's sworn testimony at a detention hearing,
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I believe it was.
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And then they passed away before trial.
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So there are other ways
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to proceed in a domestic violence case
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than just the firsthand account, the firsthand account,
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incredibly powerful evidence,
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but you can proceed on the basis of a 911 call
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and the officers who responded
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and their observations at the time.
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So if we're going by text to the rule
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and then the expansion of that through our court over time,
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what's left as far as the motion limine goes?
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What wouldn't satisfy rule 15?
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Well, traditional motion limine, your Honor.
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So prior bad acts
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or is gang evidence admissible or something?
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These things that are subject to revision
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during the trial.
A hearsay exception.
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Sure, subject.
Cited utterance.
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Oh, those are all traditional motions in limb ruling
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that will be subject to revision
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based on how the evidence comes in at trial.
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The real distinction is,
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are we talking about excluding a piece of evidence,
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a final ruling, excluding a piece of evidence?
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So any motion limine that excludes a piece of evidence
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is subject to Rule 15 under your rule?
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Under interpretation of the rule.
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The real crux is whether it's a final ruling or not.
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So the essential hallmark of a motion to suppress
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is a final ruling excluding evidence from trial,
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it's not gonna be revisited.
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So here, this will not be revisited
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depending on how the evidence comes into trial.
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So if it's a hearsay objection, judge, I need,
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you know, it's denied subject to further testimony.
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I get that, but anything that's a final rule
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and that excludes evidence, rule 15.
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Your Honor, I wouldn't wanna go so far
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as to create a blanket rule that said anything that was,
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but the crux of it is
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what makes it the functional equivalent
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of a motion to suppress is the finality of the ruling.
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Wouldn't you just bring everything
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as a motion to eliminate then?
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No, your Honor, I don't understand why
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somebody would engage in that level of gamesmanship.
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The caption is not what controls,
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it's the functionality that controls.
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I mean, you see that in the post-conviction context
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all the time where things are moved back and forth
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between 30, 29, 25 based on the substance, not the caption.
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So functionality, functionally what's happening,
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this was the functional equivalent,
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even if this court was to determine
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that it wasn't within 15A2, and this is a 2113,
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then we've still cleared that initial threshold burden
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of this court
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needing to invoke its extraordinary supervisory powers here
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because this type
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of evidence will be excluded from this trial
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and potentially in other trials
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on the basis of the ruling we're looking at here.
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So this type of evidence
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might not ever get into trials when it should.
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So that's enough to clear the initial threshold
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under 2113 to reach the merits.
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So based on that, why don't we talk about
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frequent location history, methodology
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and the issue here is the application of the methodology.
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And it may well be that the right witness, I don't know,
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an Apple engineer for instance, right witness,
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might get you through to gatekeeper reliability.
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But here we have very little
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to be able to understand how we apply testing error rates,
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peer review publication standards,
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or even general acceptance into the scientific community
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through the witness that you chose.
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Well, your Honor,
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I'd start with regarding the witness that we chose.
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Of course we would love to have an Apple engineer
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come in and testify, but it's proprietary material
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and they're not willing to share
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that sort of information with us.
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And you've looked for non Apple engineers
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to testify as to what happens in what clearly is a black box
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based on the evidence presented?
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Your honor, the correct.
You don't think
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that you could find an engineer to reverse engineer
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what the Apple engineers have done?
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I'm sure Apple's competitors would be, loath
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to know that we could find somebody
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that was capable of reverse engineering their code.
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That doesn't answer my question, you have looked?
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We had a person in-house that tested the device
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and we felt that was sufficient to meet the standard.
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And I point you to, as an example,
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think about a shaken baby case.
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A medical doctor could testify
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and be a qualified expert to offer an opinion
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and get you through a diagnosis process.
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Just a regular MD, a pediatrician might be a better expert.
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But wouldn't that be up to the trial judge at that point?
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Sure.
If I'm a trial judge
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and I have a pediatrician discussing shaken baby syndrome
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and I said, "You know what?
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Not good enough
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based upon the qualifications of this expert."
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You do this at your peril.
Right.
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Sure, your honor, sure, your honor, yes.
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And you called this witness at your peril
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with this technology?
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Yes, the pediatric neurologist
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might be the best choice in the shaken baby case.
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But here, the reason the judge got it wrong
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and his first and most essential error here
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was in misidentifying the relevant field of expertise.
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He misunderstood the evidence we were talking about,
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and he believed the relevant field of expertise
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was cellular technology.
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Don't you need somebody to explain
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the algorithm that achieves the results?
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To explain the algorithm?
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No, your Honor, all that we're needing to establish here
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is that what comes out of this black box
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as we're describing it,
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is a reliable estimate of where the phone is.
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So the testing that this digital forensics person did,
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Mr. Kinding did,
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who is a qualified expert in the appropriate field
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of digital forensics.
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By the way, none of the three amici disagree
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with digital forensics being the correct field,
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and it also points to the Moseley's case out Rhode Island.
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I'm not qualified, I'm not talking about qualifications,
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we're talking about Governor Lannigan,
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or general acceptance put aside qualifications,
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that hill's much less steep.
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Gotta understand
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through the non-exclusive Bert Lannigan factors,
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how it is that you apply a known methodology
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to this technology?
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Your Honor, what we have in the testing
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that was done is a jailbroken phone
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so that we could see all of the data points
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that were created from where the phone was
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and then we that corroborate,
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and then we can see the frequent location
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that comes out as a result and see.
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Yes, and that corroborates
Correct, your Honor.
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That corroborates doesn't explain.
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We don't have to explain how the code itself works,
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although we have to show is that what comes out of it
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is a reliable estimate of where the phone was.
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That's all that we have to show.
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I guess I'm wondering why are 10 locations
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that are accurately identified enough,
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why is it an abusive discretion to say 10 to 12 locations?
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Not enough.
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Well, first off it wasn't 10, so that's.
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Oh 12.
And it's not just
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12 frequent locations or 12 locations visited,
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it's the 1000s of individual data points
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that he looked at in the process.
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So all of those data points have come.
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So your expert in that field went to 12 locations
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and out of an iPhone, which is a different model
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using a different operating system,
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accurately identified those locations?
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And you think it was an abuse of discretion
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for the trial judge to exclude that evidence?
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Yes, your Honor.
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00:10:14.130 --> 00:10:16.230
First, because he got the relevant field
267
00:10:16.230 --> 00:10:17.280
of expertise incorrect,
268
00:10:17.280 --> 00:10:18.120
so he discounted
269
00:10:18.120 --> 00:10:20.130
whether it's generally accepted in the field or not,
270
00:10:20.130 --> 00:10:21.270
there was no testimony
271
00:10:21.270 --> 00:10:23.109
that contradicted the expert witness's testimony
272
00:10:23.109 --> 00:10:24.840
that is generally accepted
273
00:10:24.840 --> 00:10:26.220
and that's the single most important
274
00:10:26.220 --> 00:10:27.600
of the Del Bear Lannigan factors
275
00:10:27.600 --> 00:10:29.064
as the Supreme Court said in Davis.
276
00:10:29.064 --> 00:10:31.050
So that factor was satisfied.
277
00:10:31.050 --> 00:10:33.480
So he had to believe the expert
278
00:10:33.480 --> 00:10:34.723
whom he didn't think was qualified
279
00:10:34.723 --> 00:10:36.930
to tell him what was in the black box,
280
00:10:36.930 --> 00:10:38.430
that it was generally accepted
281
00:10:38.430 --> 00:10:41.752
in the field of what he thought was the wrong field?
282
00:10:41.752 --> 00:10:43.290
Your Honor, it's almost
283
00:10:43.290 --> 00:10:45.630
as though he said the correct field here is zoology
284
00:10:45.630 --> 00:10:46.980
and because you're not a zoologist,
285
00:10:46.980 --> 00:10:47.940
I'm not gonna listen to you.
286
00:10:47.940 --> 00:10:49.470
The correct field is digital forensics.
287
00:10:49.470 --> 00:10:51.420
The correct field is digital forensics
288
00:10:51.420 --> 00:10:53.158
and not cellular technology?
289
00:10:53.158 --> 00:10:54.900
Because what we're talking about here
290
00:10:54.900 --> 00:10:56.640
is a process that uses cellular,
291
00:10:56.640 --> 00:10:58.455
a result from cellular technology,
292
00:10:58.455 --> 00:11:01.230
a result from GPS, a result from Bluetooth,
293
00:11:01.230 --> 00:11:03.540
a result from wifi, does an amalgamation
294
00:11:03.540 --> 00:11:05.540
of those into a single location data point
295
00:11:05.540 --> 00:11:07.800
and then says when there's a cluster
296
00:11:07.800 --> 00:11:09.360
of these data points in the same area,
297
00:11:09.360 --> 00:11:11.880
I'm gonna create something
298
00:11:11.880 --> 00:11:14.967
to represent that cluster of data points.
299
00:11:14.967 --> 00:11:16.920
Right, and everything about that last part,
300
00:11:16.920 --> 00:11:20.100
right, other than the GPS and the wifi,
301
00:11:20.100 --> 00:11:22.620
everything about that, as Justice Lloyd was saying,
302
00:11:22.620 --> 00:11:24.300
that algorithm, that process,
303
00:11:24.300 --> 00:11:26.940
that methodology is a complete black box
304
00:11:26.940 --> 00:11:29.262
to this particular expert, right?
305
00:11:29.262 --> 00:11:30.095
Correct.
306
00:11:30.095 --> 00:11:31.290
To anyone outside of Apple.
307
00:11:31.290 --> 00:11:33.540
Right, so, well,
308
00:11:33.540 --> 00:11:35.793
where's your evidence of that?
309
00:11:37.200 --> 00:11:38.359
Maybe I misspoke then.
310
00:11:38.359 --> 00:11:40.110
It's a proprietary type
311
00:11:40.110 --> 00:11:41.140
expert.
Your expert.
312
00:11:41.140 --> 00:11:43.470
The only testimony that we have in this case
313
00:11:43.470 --> 00:11:47.283
is that your expert has no idea why this works.
314
00:11:49.932 --> 00:11:51.900
He does not know the algorithm
315
00:11:51.900 --> 00:11:52.950
and he testified on the stand
316
00:11:52.950 --> 00:11:54.480
that it was proprietary to Apple.
317
00:11:54.480 --> 00:11:56.070
He does not know the algorithm.
318
00:11:56.070 --> 00:11:58.076
What he had was a test device
319
00:11:58.076 --> 00:12:01.260
where he could see the data inputs and see the data outputs,
320
00:12:01.260 --> 00:12:03.870
and he knew where the phone was at all of those times.
321
00:12:03.870 --> 00:12:06.570
So he can establish that what's happening in the algorithm
322
00:12:06.570 --> 00:12:07.980
is creating a reliable estimate
323
00:12:07.980 --> 00:12:09.240
of where the phone actually was.
324
00:12:09.240 --> 00:12:10.200
That's all that we're talking about.
325
00:12:10.200 --> 00:12:13.601
12 times.
1000s of data points,
326
00:12:13.601 --> 00:12:15.810
12 locations.
Right.
327
00:12:15.810 --> 00:12:18.373
So for the 12 locations,
328
00:12:18.373 --> 00:12:21.600
it correctly identified those locations
329
00:12:21.600 --> 00:12:23.814
using a different model iPhone
330
00:12:23.814 --> 00:12:26.790
with a different operating system.
331
00:12:26.790 --> 00:12:27.870
And the only testimony was
332
00:12:27.870 --> 00:12:30.030
there was no significant changes to the operating system's
333
00:12:30.030 --> 00:12:31.290
location services function.
334
00:12:31.290 --> 00:12:33.600
The model of the phone is completely irrelevant.
335
00:12:33.600 --> 00:12:35.670
Why do you say that?
336
00:12:35.670 --> 00:12:38.130
How could it be.
This is a software product,
337
00:12:38.130 --> 00:12:38.970
not a hardware product.
338
00:12:38.970 --> 00:12:41.364
And where does the software reside?
339
00:12:41.364 --> 00:12:42.690
On the phone.
340
00:12:42.690 --> 00:12:45.509
Yes, on the hardware of the phone.
341
00:12:45.509 --> 00:12:48.109
The operating system is what controls the functionality.
342
00:12:48.109 --> 00:12:51.330
On the hardware of the phone where it's burned in.
343
00:12:51.330 --> 00:12:53.100
Isn't that right?
That's correct.
344
00:12:53.100 --> 00:12:54.119
Okay, so the model
345
00:12:54.119 --> 00:12:57.210
which has a different hardware necessarily
346
00:12:57.210 --> 00:13:00.836
might affect the operation of the software.
347
00:13:00.836 --> 00:13:03.450
Well, I respectfully disagree with you about that,
348
00:13:03.450 --> 00:13:04.283
your Honor.
349
00:13:04.283 --> 00:13:05.440
Where is the evidence of that?
350
00:13:06.480 --> 00:13:09.030
The testimony was that there was no significant change
351
00:13:09.030 --> 00:13:12.180
in the operating systems between 8.1 and 8.41.
352
00:13:12.180 --> 00:13:15.450
But the testimony I think also was that your expert
353
00:13:15.450 --> 00:13:20.280
had no idea in terms of the algorithm what it was.
354
00:13:20.280 --> 00:13:22.663
So how could he say that there was no difference
355
00:13:22.663 --> 00:13:25.710
in the algorithm on each of the operating systems.
356
00:13:25.710 --> 00:13:26.543
Then, your honor,
357
00:13:26.543 --> 00:13:28.530
what I'm gonna do is point you to a category of evidence
358
00:13:28.530 --> 00:13:30.745
that the motion judge completely omitted from his analysis
359
00:13:30.745 --> 00:13:34.557
entirely, corroboration on the actual evidence phone itself
360
00:13:34.557 --> 00:13:37.050
of frequent locations that were both before
361
00:13:37.050 --> 00:13:37.883
and after the murder.
362
00:13:37.883 --> 00:13:39.450
The one before at Newton District Courthouse,
363
00:13:39.450 --> 00:13:40.980
the day before the murder.
364
00:13:40.980 --> 00:13:42.210
And if you look at other components
365
00:13:42.210 --> 00:13:44.070
of evidence on the phone, it corroborates that the phone
366
00:13:44.070 --> 00:13:45.780
was in that Newton District Courthouse
367
00:13:45.780 --> 00:13:47.933
at the time the frequent location said it was.
368
00:13:47.933 --> 00:13:51.300
A text message at eight 15 saying I'm on my way to court.
369
00:13:51.300 --> 00:13:54.060
And then a photo taken of the daily case list
370
00:13:54.060 --> 00:13:55.980
in Newton District Court at about 08:50.
371
00:13:55.980 --> 00:13:58.017
Well, we've read through that
372
00:13:58.017 --> 00:13:59.940
and I don't disagree with you on that,
373
00:13:59.940 --> 00:14:02.070
I still go back to Justice Gaziano's point
374
00:14:02.070 --> 00:14:04.181
because I don't know that I've gotten an answer to this.
375
00:14:04.181 --> 00:14:05.940
Assume for the sake of argument
376
00:14:05.940 --> 00:14:10.940
that it was a 100% unchallenged what your expert said
377
00:14:10.942 --> 00:14:14.670
and why is it that when Judge Dolan says,
378
00:14:14.670 --> 00:14:16.698
this still doesn't convince me,
379
00:14:16.698 --> 00:14:19.125
and in his discretion says
380
00:14:19.125 --> 00:14:22.325
that this doesn't meet the Delbert Lannigan standard,
381
00:14:22.325 --> 00:14:24.780
assuming for the sake of argument
382
00:14:24.780 --> 00:14:27.090
that you said he sits the wrong field,
383
00:14:27.090 --> 00:14:29.407
but that he comes to that conclusion and says,
384
00:14:29.407 --> 00:14:31.320
"No, I don't think that this comes in."
385
00:14:31.320 --> 00:14:33.480
And why is that an abuse of discretion
386
00:14:33.480 --> 00:14:35.881
with all of the things that justice pointed to
387
00:14:35.881 --> 00:14:38.960
or the infirmities with what was in front of him?
388
00:14:38.960 --> 00:14:41.340
You have to apply the law correctly.
389
00:14:41.340 --> 00:14:43.830
An error of law is automatically an abuse of discretion
390
00:14:43.830 --> 00:14:45.960
by misidentifying the relevant field of expertise,
391
00:14:45.960 --> 00:14:47.430
he failed to even evaluate the first
392
00:14:47.430 --> 00:14:48.600
and most important factor
393
00:14:48.600 --> 00:14:50.790
generally accepted in the relevant scientific field.
394
00:14:50.790 --> 00:14:51.960
That's your first error.
395
00:14:51.960 --> 00:14:53.160
Your second error is the failure
396
00:14:53.160 --> 00:14:55.252
to make any factual findings about the corroboration
397
00:14:55.252 --> 00:14:58.162
found in the evidence phone itself.
398
00:14:58.162 --> 00:15:01.050
Meaning those five frequent locations that were both before
399
00:15:01.050 --> 00:15:02.190
and after the murder,
400
00:15:02.190 --> 00:15:04.170
made no factual findings about that at all.
401
00:15:04.170 --> 00:15:06.743
That's failure to make findings about a critical component.
402
00:15:06.743 --> 00:15:09.450
So you could remand that under Jones Pinal
403
00:15:09.450 --> 00:15:10.800
for the necessary factual findings,
404
00:15:10.800 --> 00:15:12.120
but it's all documentary evidence
405
00:15:12.120 --> 00:15:13.560
so you could make those findings yourself.
406
00:15:13.560 --> 00:15:16.713
So I'm hearing you on testing.
407
00:15:17.843 --> 00:15:21.525
Where are you getting generally accepted?
408
00:15:21.525 --> 00:15:24.480
We've never addressed this issue
409
00:15:24.480 --> 00:15:26.550
as I recall from the brief.
410
00:15:26.550 --> 00:15:29.907
There's no court that's addressed
411
00:15:29.907 --> 00:15:32.758
the application of this methodology.
412
00:15:32.758 --> 00:15:36.345
I expect just like in Davis with speed,
413
00:15:36.345 --> 00:15:41.345
that the right expert would achieve gatekeeper reliability.
414
00:15:41.880 --> 00:15:45.270
But where are you getting generally accepted
415
00:15:45.270 --> 00:15:47.773
in the scientific community here?
416
00:15:47.773 --> 00:15:49.080
Well, it comes from the testimony of the witness,
417
00:15:49.080 --> 00:15:50.610
and it was the only witness that testified,
418
00:15:50.610 --> 00:15:52.950
so the only evidence that was before the motion judge
419
00:15:52.950 --> 00:15:54.240
was that it's generally accepted.
420
00:15:54.240 --> 00:15:56.276
But he doesn't know this technology.
421
00:15:56.276 --> 00:15:57.870
I mean,
422
00:15:57.870 --> 00:16:01.260
so if you have this expert's a CSOI type person, right,
423
00:16:01.260 --> 00:16:03.634
and if we're not requiring
424
00:16:03.634 --> 00:16:07.530
someone from Verizon to show up in court,
425
00:16:07.530 --> 00:16:09.360
actually back in the good old days, they used to
426
00:16:09.360 --> 00:16:11.640
but we're past that with CSLI
427
00:16:11.640 --> 00:16:13.406
because of where it's been.
428
00:16:13.406 --> 00:16:17.160
So now you can have these kind of work a day experts
429
00:16:17.160 --> 00:16:19.110
come in and say I did the CSLI map
430
00:16:19.110 --> 00:16:20.220
and here here's what we got.
431
00:16:20.220 --> 00:16:24.099
And that's what this particular witness does a lot of.
432
00:16:24.099 --> 00:16:27.060
But here we're not dealing with something
433
00:16:27.060 --> 00:16:30.090
that's been around for a long time that's been tested,
434
00:16:30.090 --> 00:16:31.628
we're dealing with something new.
435
00:16:31.628 --> 00:16:35.730
And I think the point that we're trying to ask you about is
436
00:16:35.730 --> 00:16:38.160
how is it that he's a reliable reporter
437
00:16:38.160 --> 00:16:42.390
that's generally accepted where there's no court cases,
438
00:16:42.390 --> 00:16:44.640
there's nothing that says it's generally accepted?
439
00:16:44.640 --> 00:16:47.430
Well, so I would point you to to Mosley's and to Pierce,
440
00:16:47.430 --> 00:16:48.660
but Mosley's was,
441
00:16:48.660 --> 00:16:50.520
granted it was Google on the Android operating system,
442
00:16:50.520 --> 00:16:52.497
but it's the exact same function basically.
443
00:16:52.497 --> 00:16:54.900
And we have testimony to that effect?
444
00:16:54.900 --> 00:16:57.535
No, but we have the case that was provided to you.
445
00:16:57.535 --> 00:16:59.783
I mean as a matter of law it has that concept.
446
00:16:59.783 --> 00:17:04.080
We have testimony that the iPhone using this technology
447
00:17:04.080 --> 00:17:07.150
is equivalent to Google Android?
448
00:17:07.150 --> 00:17:09.347
No, one of the papers
449
00:17:09.347 --> 00:17:12.152
that was introduced as an exhibit
450
00:17:12.152 --> 00:17:15.720
one of the articles from 2009 was a comparison between
451
00:17:15.720 --> 00:17:18.900
Apple's iOS system and Android's OS system
452
00:17:18.900 --> 00:17:20.333
saying that they were doing.
453
00:17:20.333 --> 00:17:21.660
Can I ask you a slightly different question?
454
00:17:21.660 --> 00:17:26.067
What effect does
455
00:17:26.067 --> 00:17:30.600
the intended use of this technology
456
00:17:30.600 --> 00:17:34.627
have on the Daubert Lannigan test?
457
00:17:36.392 --> 00:17:38.580
That is, as I understand it,
458
00:17:38.580 --> 00:17:39.930
and you correct me if I'm wrong,
459
00:17:39.930 --> 00:17:41.945
'cause you know the record better than I do,
460
00:17:41.945 --> 00:17:45.862
this technology was developed by Apple
461
00:17:45.862 --> 00:17:50.862
in order to help target advertisements to users.
462
00:17:52.830 --> 00:17:57.830
And that may, as far as we know affect the algorithm
463
00:17:58.499 --> 00:18:01.680
that Apple has developed.
464
00:18:01.680 --> 00:18:03.960
Do you have any understanding
465
00:18:03.960 --> 00:18:06.873
as to how the intended use of the original,
466
00:18:08.580 --> 00:18:10.870
what is it frequent location history
467
00:18:12.155 --> 00:18:14.880
affects Bert Lannigan?
468
00:18:14.880 --> 00:18:17.070
I think I understand your question and I think so,
469
00:18:17.070 --> 00:18:19.410
so I would start with the Canavan's case
470
00:18:19.410 --> 00:18:20.370
recognizing that depending
471
00:18:20.370 --> 00:18:22.200
on the methodology you're talking about,
472
00:18:22.200 --> 00:18:24.349
these five factors have to be applied flexibly
473
00:18:24.349 --> 00:18:26.820
and there are other things that could be used.
474
00:18:26.820 --> 00:18:29.779
'cause really the goal is just about determining
475
00:18:29.779 --> 00:18:31.345
whether this thing is reliable or not,
476
00:18:31.345 --> 00:18:32.764
sufficiently reliable to get in front of a jury.
477
00:18:32.764 --> 00:18:35.370
But I guess, yeah, my so, sorry to interrupt you,
478
00:18:35.370 --> 00:18:36.900
but you're running outta time,
479
00:18:36.900 --> 00:18:41.900
I'm wondering is it reliable to use a technology
480
00:18:42.840 --> 00:18:46.436
developed for an entirely different application
481
00:18:46.436 --> 00:18:50.733
to identify precisely where this defendant is?
482
00:18:52.380 --> 00:18:53.460
Yes.
483
00:18:53.460 --> 00:18:56.400
The original Fry test was about scientific reliability
484
00:18:56.400 --> 00:18:58.380
and then the court shifted to Delbert Lannigan
485
00:18:58.380 --> 00:19:00.810
in an effort to allow more actual valid science
486
00:19:00.810 --> 00:19:01.650
to get into courts
487
00:19:01.650 --> 00:19:03.865
because there hadn't yet been enough time for academics
488
00:19:03.865 --> 00:19:06.870
to do the sort of peer review testing sort of process.
489
00:19:06.870 --> 00:19:08.640
And that's why Dalbert Lanigan came into existence
490
00:19:08.640 --> 00:19:11.280
with its multiple factors to look at instead of Fry,
491
00:19:11.280 --> 00:19:13.290
which was just general acceptance.
492
00:19:13.290 --> 00:19:14.850
Are you aware of a case
493
00:19:14.850 --> 00:19:18.240
where the technology is developed for a particular use
494
00:19:18.240 --> 00:19:21.480
and then applied differently
495
00:19:21.480 --> 00:19:25.170
and said to be reliable for that different application?
496
00:19:25.170 --> 00:19:28.082
Well, but the core point here is where the phone is,
497
00:19:28.082 --> 00:19:29.884
it's only valuable to Apple
498
00:19:29.884 --> 00:19:32.790
if it's correctly placing the phone in the correct location
499
00:19:32.790 --> 00:19:34.461
so that the targeted location based advertising
500
00:19:34.461 --> 00:19:36.360
is of value to them.
501
00:19:36.360 --> 00:19:38.030
All that we're looking for here is the same concept
502
00:19:38.030 --> 00:19:39.930
and it's not a precise spot,
503
00:19:39.930 --> 00:19:42.630
the phone is right here, it's an estimate.
504
00:19:42.630 --> 00:19:45.178
So it's like CSLI in that we do a map
505
00:19:45.178 --> 00:19:48.853
that shows what a cell tower's coverage area is,
506
00:19:48.853 --> 00:19:51.210
and that is always subject to cross-examination
507
00:19:51.210 --> 00:19:54.300
because there's bleed beyond the traditional pie wedge
508
00:19:54.300 --> 00:19:56.100
and it's influenced by a series of things.
509
00:19:56.100 --> 00:19:57.180
Here what we're talking about
510
00:19:57.180 --> 00:19:59.700
is an amalgamation of technology, GPS, wifi
511
00:19:59.700 --> 00:20:02.130
and it creates an estimate of exactly where the phone is,
512
00:20:02.130 --> 00:20:04.560
it's subject to the same kind of cross-examination.
513
00:20:04.560 --> 00:20:05.910
This is not the junk science
514
00:20:05.910 --> 00:20:08.430
that's meant to be excluded from a jury's consideration.
515
00:20:08.430 --> 00:20:12.510
It just seems to me that if, you know for CLSI,
516
00:20:12.510 --> 00:20:13.343
is that right?
517
00:20:13.343 --> 00:20:14.504
CLSI.
518
00:20:14.504 --> 00:20:15.553
CSLI.
519
00:20:15.553 --> 00:20:16.602
CSLI.
520
00:20:16.602 --> 00:20:18.044
Location information.
It's important to identify
521
00:20:18.044 --> 00:20:19.770
where the phone is
522
00:20:19.770 --> 00:20:21.859
because for its functionality
523
00:20:21.859 --> 00:20:25.800
to pinging off the right tower,
524
00:20:25.800 --> 00:20:28.168
it's important that you know where the phone is.
525
00:20:28.168 --> 00:20:31.050
Whereas if I'm trying to say, you know,
526
00:20:31.050 --> 00:20:35.370
what's Ann Taylor's latest sale, it's not so important
527
00:20:35.370 --> 00:20:39.600
that I know exactly where the phone is in the same way.
528
00:20:39.600 --> 00:20:41.169
Do you understand my question?
529
00:20:41.169 --> 00:20:42.097
I do, your honor.
530
00:20:42.097 --> 00:20:43.020
Okay.
If you ask your phone,
531
00:20:43.020 --> 00:20:43.853
"Where's a good coffee shop?"
532
00:20:43.853 --> 00:20:45.420
If the recommendations it's gonna come back to you
533
00:20:45.420 --> 00:20:46.650
are based on where you are,
534
00:20:46.650 --> 00:20:48.835
that's why the location services are of value,
535
00:20:48.835 --> 00:20:50.610
or the frequent location function,
536
00:20:50.610 --> 00:20:52.470
meaning your phone is aware that you're roughly driving
537
00:20:52.470 --> 00:20:54.150
to the court for work this morning
538
00:20:54.150 --> 00:20:56.910
and your phone may have advised you there's a traffic jam
539
00:20:56.910 --> 00:20:59.081
on Cambridge Street, use an alternative route
540
00:20:59.081 --> 00:21:01.860
because that's why it's of value to the user,
541
00:21:01.860 --> 00:21:03.570
why it's of value to Apple.
542
00:21:03.570 --> 00:21:05.250
Because it knows roughly where you're gonna be,
543
00:21:05.250 --> 00:21:06.810
not exactly where the phone is,
544
00:21:06.810 --> 00:21:08.280
but an estimate of where the phone is.
545
00:21:08.280 --> 00:21:10.500
And that's all that we're looking for here is an estimate,
546
00:21:10.500 --> 00:21:12.676
more precise than CSLI, less precise than GPS.
547
00:21:12.676 --> 00:21:13.830
One more question.
548
00:21:13.830 --> 00:21:15.315
Yes.
Thank you.
549
00:21:15.315 --> 00:21:20.315
Are you suggesting that there's not a better expert?
550
00:21:20.520 --> 00:21:24.720
Are you suggesting because of the proprietary issues,
551
00:21:24.720 --> 00:21:28.900
that is not somebody who could take the witness stand,
552
00:21:28.900 --> 00:21:32.552
explain the application of this methodology,
553
00:21:32.552 --> 00:21:37.552
and be able to teach us the algorithm
554
00:21:37.770 --> 00:21:41.670
and how it all applies and that you did the best you could
555
00:21:41.670 --> 00:21:43.740
and this is the best any court's going to do
556
00:21:43.740 --> 00:21:45.330
for an expert in this area?
557
00:21:45.330 --> 00:21:47.964
I can't speak to that hypothetically.
558
00:21:47.964 --> 00:21:49.080
There could be an academic or a researcher somewhere
559
00:21:49.080 --> 00:21:51.090
that would be capable of providing more information.
560
00:21:51.090 --> 00:21:52.980
But as far as I know, as far as we know,
561
00:21:52.980 --> 00:21:54.210
as far as the record is,
562
00:21:54.210 --> 00:21:58.140
the algorithm itself is proprietary to Apple,
563
00:21:58.140 --> 00:22:01.035
meaning it's not known by anyone outside of Apple itself.
564
00:22:01.035 --> 00:22:04.950
So just to sum up, you are saying that
565
00:22:04.950 --> 00:22:07.012
your expert was good enough,
566
00:22:07.012 --> 00:22:12.012
and the judge said your expert was not good enough,
567
00:22:12.250 --> 00:22:17.250
and the standard is abuse of discretion?
568
00:22:17.676 --> 00:22:19.290
And so that's what we have to decide.
569
00:22:19.290 --> 00:22:20.730
And I understand that you're saying that,
570
00:22:20.730 --> 00:22:23.760
no, he made an error of law, but we can look at it
571
00:22:23.760 --> 00:22:27.600
and see whether or not the expert was good enough.
572
00:22:27.600 --> 00:22:28.433
Is that correct?
573
00:22:29.820 --> 00:22:31.472
Correct, your honor.
574
00:22:31.472 --> 00:22:34.650
But it is an error of law to misidentify the relevant field
575
00:22:34.650 --> 00:22:36.450
because then he didn't evaluate the correct criteria.
576
00:22:36.450 --> 00:22:37.680
And we can look at that?
577
00:22:37.680 --> 00:22:38.513
Correct, your Honor.
578
00:22:38.513 --> 00:22:39.434
Okay.
579
00:22:39.434 --> 00:22:40.725
And you can make factual findings on the corroboration
580
00:22:40.725 --> 00:22:42.780
because it's all documentary evidence.
581
00:22:42.780 --> 00:22:44.190
Very good.
Thank you very much.
582
00:22:44.190 --> 00:22:45.023
Thank you.
583
00:22:46.497 --> 00:22:47.990
Attorney Mankin.
584
00:22:47.990 --> 00:22:50.490
Good morning, may I please the court attorney,
585
00:22:50.490 --> 00:22:53.070
Michelle Mankin on behalf of Victor Arrington
586
00:22:53.070 --> 00:22:54.810
that's seated with me at Counsel table,
587
00:22:54.810 --> 00:22:56.220
his attorney Peter Parker,
588
00:22:56.220 --> 00:22:59.173
who is lead trial counsel on this case.
589
00:22:59.173 --> 00:23:03.300
Excuse me, I'll pick up where this discussion
590
00:23:03.300 --> 00:23:06.820
where Justice left off this discussion
591
00:23:08.018 --> 00:23:12.007
with the intended use of the FLH app.
592
00:23:12.960 --> 00:23:17.430
And it's meant to be a predictive tool.
593
00:23:17.430 --> 00:23:20.250
The incomplete patent information
594
00:23:20.250 --> 00:23:23.760
that's in the Commonwealth's appendix at 114
595
00:23:23.760 --> 00:23:26.520
talks about it being a predictive tool.
596
00:23:26.520 --> 00:23:29.430
And I think that we all have experience
597
00:23:29.430 --> 00:23:31.980
with our phones not knowing where we are.
598
00:23:31.980 --> 00:23:33.660
Hey, where's the nearest Starbucks?
599
00:23:33.660 --> 00:23:35.250
Well, it's in Albuquerque,
600
00:23:35.250 --> 00:23:37.800
and those things can sometimes get flummoxed
601
00:23:37.800 --> 00:23:41.667
because of the location settings that we have on our phone.
602
00:23:41.667 --> 00:23:43.968
The last thing that we were Google searching.
603
00:23:43.968 --> 00:23:48.090
So I think it's important when you look at
604
00:23:48.090 --> 00:23:51.126
the testing that was conducted in this case,
605
00:23:51.126 --> 00:23:56.126
and I wanna clarify that it was actually five locations
606
00:23:56.160 --> 00:23:59.580
that were tested, not 12, there were 12 visits.
607
00:23:59.580 --> 00:24:02.850
So there were repeat visits to these same locations.
608
00:24:02.850 --> 00:24:05.280
And in terms of the thousands of data points,
609
00:24:05.280 --> 00:24:07.260
those data points were all associated
610
00:24:07.260 --> 00:24:08.947
with those particular visits.
611
00:24:08.947 --> 00:24:10.773
But we don't know,
612
00:24:12.002 --> 00:24:16.260
the expert was able to look at those test sites
613
00:24:16.260 --> 00:24:18.390
and say, "Well, this looks pretty accurate to me,
614
00:24:18.390 --> 00:24:20.070
but we don't know that the settings
615
00:24:20.070 --> 00:24:21.601
on the phone were the same.
616
00:24:21.601 --> 00:24:24.510
We know that Christopher Kindig
617
00:24:24.510 --> 00:24:27.690
had every single option turned on
618
00:24:27.690 --> 00:24:31.110
to enhance accuracy on his phone and we have no idea
619
00:24:31.110 --> 00:24:33.570
what the settings were on Arrington's phone.
620
00:24:33.570 --> 00:24:35.057
We don't.
621
00:24:35.057 --> 00:24:37.860
But to attorney McLean's point though,
622
00:24:37.860 --> 00:24:39.030
one of the concerns,
623
00:24:39.030 --> 00:24:41.212
and I don't know how much of a concern it is,
624
00:24:41.212 --> 00:24:44.130
is the fact that Judge Doolan
625
00:24:44.130 --> 00:24:47.497
had information from Mr. Arrington's phone,
626
00:24:47.497 --> 00:24:50.610
that at least, maybe not directly,
627
00:24:50.610 --> 00:24:54.050
but certainly circumstantially suggests that
628
00:24:54.050 --> 00:24:57.540
whatever his settings were, were pretty accurate
629
00:24:57.540 --> 00:24:59.820
because he had information about
630
00:24:59.820 --> 00:25:00.720
where the phone was
631
00:25:00.720 --> 00:25:03.390
versus where Mr. Arrington was supposed to be,
632
00:25:03.390 --> 00:25:05.619
and they were one and the same.
633
00:25:05.619 --> 00:25:08.670
So pretty accurate won't cut it here.
634
00:25:08.670 --> 00:25:10.489
And that's because the question
635
00:25:10.489 --> 00:25:12.745
framed in the motion in limine
636
00:25:12.745 --> 00:25:17.745
is whether this expert could opine on the distance.
637
00:25:18.458 --> 00:25:19.980
What was the radius again?
638
00:25:19.980 --> 00:25:24.980
43 meters, from a set of coordinates
639
00:25:25.440 --> 00:25:29.160
that were assigned via an unknown mysterious process
640
00:25:29.160 --> 00:25:30.810
to a particular location.
641
00:25:30.810 --> 00:25:33.457
They want to say, they want their expert to be able to say
642
00:25:33.457 --> 00:25:36.435
that the phone was within 43 meters
643
00:25:36.435 --> 00:25:38.460
of that set of coordinates
644
00:25:38.460 --> 00:25:41.478
from a specific time to a specific time.
645
00:25:41.478 --> 00:25:43.620
So that's the question,
646
00:25:43.620 --> 00:25:46.932
did this expert have the kind of expertise
647
00:25:46.932 --> 00:25:49.367
that would enable him to testify
648
00:25:49.367 --> 00:25:52.200
to the reliability of those measures?
649
00:25:52.200 --> 00:25:54.690
Now he may have expertise
650
00:25:54.690 --> 00:25:56.879
and it appears he knows how to look at the
651
00:25:56.879 --> 00:25:59.250
the 1000s of location data points,
652
00:25:59.250 --> 00:26:00.780
I wouldn't know how to do that.
653
00:26:00.780 --> 00:26:02.200
That requires some expertise,
654
00:26:02.200 --> 00:26:07.020
but it didn't tell him what these measures mean.
655
00:26:07.020 --> 00:26:09.960
For example, again, back to the patent information,
656
00:26:09.960 --> 00:26:13.710
that information indicates that the entry time
657
00:26:13.710 --> 00:26:18.283
is the time that the phone's location was determined,
658
00:26:18.283 --> 00:26:22.170
not the time that it got within a particular radius
659
00:26:22.170 --> 00:26:24.090
of a particular set of coordinates.
660
00:26:24.090 --> 00:26:24.923
And with respect
661
00:26:24.923 --> 00:26:27.476
to those other previous visits on the phone,
662
00:26:27.476 --> 00:26:31.500
there was no testimony or evidence that the entry
663
00:26:31.500 --> 00:26:33.302
or exit times were accurate
664
00:26:33.302 --> 00:26:37.110
or that the radius in those cases was accurate,
665
00:26:37.110 --> 00:26:38.970
that the phone was within that radius
666
00:26:38.970 --> 00:26:40.770
from that time to that time.
667
00:26:40.770 --> 00:26:42.450
And it really matters here
668
00:26:42.450 --> 00:26:44.400
because if the Commonwealth
669
00:26:44.400 --> 00:26:48.600
is saying that Arrington's phone arrived at 10:38
670
00:26:48.600 --> 00:26:52.717
within 43 meters of the crime scene
671
00:26:52.717 --> 00:26:54.889
or near to the crime scene,
672
00:26:54.889 --> 00:26:59.889
but they also have evidence, the selfie photograph,
673
00:27:00.330 --> 00:27:03.221
which was taken within that timeframe
674
00:27:03.221 --> 00:27:06.507
from a location that they will try to prove
675
00:27:06.507 --> 00:27:10.230
was at the corner of Paxton Street in Blue Hill Ave,
676
00:27:10.230 --> 00:27:11.730
which was established at the hearing
677
00:27:11.730 --> 00:27:13.670
that was beyond the 43 meters.
678
00:27:13.670 --> 00:27:15.390
So we know that the phone
679
00:27:15.390 --> 00:27:18.597
was beyond the 43 meters within the timeframe.
680
00:27:18.597 --> 00:27:23.597
So as to where the inaccuracy is, it's just a guess.
681
00:27:23.850 --> 00:27:26.977
And Mr Kindig himself said repeatedly,
682
00:27:26.977 --> 00:27:28.650
"This is a hypothesis.
683
00:27:28.650 --> 00:27:29.940
It's kind of sort of like this,
684
00:27:29.940 --> 00:27:31.520
it looks like it's kind of doing that."
685
00:27:31.520 --> 00:27:33.503
So what do we make of that,
686
00:27:33.503 --> 00:27:36.223
what is the trier of fact make of that,
687
00:27:36.223 --> 00:27:39.931
was the arrival time inaccurate?
688
00:27:39.931 --> 00:27:43.200
Do we assume that he arrived at a time
689
00:27:43.200 --> 00:27:46.410
and then subsequently got within 43 meters,
690
00:27:46.410 --> 00:27:50.377
or was he consistently for that entire period of time
691
00:27:50.377 --> 00:27:52.482
beyond that 43 meters?
692
00:27:52.482 --> 00:27:56.003
For example, did he stay in his car the whole time?
693
00:27:56.003 --> 00:28:00.570
This evidence can't answer those questions.
694
00:28:00.570 --> 00:28:02.346
We don't have that basis.
695
00:28:02.346 --> 00:28:05.929
The other way that I think it's important
696
00:28:05.929 --> 00:28:10.929
that this FLH app was not designed as a forensic tool
697
00:28:11.790 --> 00:28:15.222
to pinpoint a phone's location in the past,
698
00:28:15.222 --> 00:28:18.273
is that there's this law about an expert.
699
00:28:18.273 --> 00:28:20.310
It's important to look at
700
00:28:20.310 --> 00:28:23.010
whether their testimony grows naturally
701
00:28:23.010 --> 00:28:25.020
out of the type of work that they do,
702
00:28:25.020 --> 00:28:27.870
or whether they were forming this opinion
703
00:28:27.870 --> 00:28:29.940
for the purpose of litigation.
704
00:28:29.940 --> 00:28:33.625
And that latter scenario was what happened here.
705
00:28:33.625 --> 00:28:35.850
This had not been tested.
706
00:28:35.850 --> 00:28:39.093
This witness had never looked at FLH before.
707
00:28:40.276 --> 00:28:42.570
He jail broke the phone
708
00:28:42.570 --> 00:28:45.300
and created this model for the purpose
709
00:28:45.300 --> 00:28:50.300
of trying to suss out what was happening with this app.
710
00:28:51.570 --> 00:28:55.020
In that respect, the lot like the paint drying expert,
711
00:28:55.020 --> 00:28:58.860
Edmund Tull who had some expertise with paint,
712
00:28:58.860 --> 00:29:03.860
but his theorizing about
713
00:29:04.350 --> 00:29:06.960
whether the paint was poured intentionally
714
00:29:06.960 --> 00:29:09.450
or how long it had been drying and things,
715
00:29:09.450 --> 00:29:11.520
this was something that he tried to explore
716
00:29:11.520 --> 00:29:13.140
for the purposes of that case
717
00:29:13.140 --> 00:29:17.669
and just didn't have a sufficient background experience,
718
00:29:17.669 --> 00:29:20.259
anything to draw from.
719
00:29:20.259 --> 00:29:21.660
Can I interrupt you for a minute
720
00:29:21.660 --> 00:29:23.190
because I'll go
721
00:29:23.190 --> 00:29:25.677
with the two points you make in reverse order.
722
00:29:25.677 --> 00:29:28.744
Your point that an expert's on the witness stand
723
00:29:28.744 --> 00:29:31.770
talking about something that he or she doesn't do
724
00:29:31.770 --> 00:29:33.689
outside of the litigation area
725
00:29:33.689 --> 00:29:38.689
is certainly a reasonable gatekeeper reliability factor.
726
00:29:39.900 --> 00:29:44.880
But many methodologies get through gatekeeper reliability
727
00:29:44.880 --> 00:29:47.250
when the person on the witness stand
728
00:29:47.250 --> 00:29:50.640
is applying the methodology for litigation purposes.
729
00:29:50.640 --> 00:29:53.891
So in other words, that's not dispositive, it's important,
730
00:29:53.891 --> 00:29:56.220
and then it's to your first points
731
00:29:56.220 --> 00:29:58.630
when you methodically went through
732
00:29:58.630 --> 00:30:03.630
some of the infirmities that can be demonstrated here.
733
00:30:04.399 --> 00:30:07.657
That sounds like the basis for an opinion
734
00:30:07.657 --> 00:30:10.170
and cross-examination.
735
00:30:10.170 --> 00:30:13.020
What we are trying to get at here
736
00:30:13.020 --> 00:30:16.650
is not which methodology the jury will believe
737
00:30:16.650 --> 00:30:18.690
or how much they'll credit the expert,
738
00:30:18.690 --> 00:30:22.290
but when the methodology is enough,
739
00:30:22.290 --> 00:30:23.790
as a preliminary question of fact
740
00:30:23.790 --> 00:30:24.810
upon which admissibility
741
00:30:24.810 --> 00:30:26.910
depends on the preponderance of the evidence
742
00:30:26.910 --> 00:30:30.450
to satisfy gatekeeper reliability.
743
00:30:30.450 --> 00:30:31.590
Can you address that issue?
744
00:30:31.590 --> 00:30:33.920
'Cause those other points are important,
745
00:30:33.920 --> 00:30:36.000
but it just doesn't go to the core issue.
746
00:30:36.000 --> 00:30:37.290
Absolutely.
747
00:30:37.290 --> 00:30:42.230
So first I wanna challenge my brother's representation
748
00:30:42.230 --> 00:30:47.230
that the trial judge here misunderstood the relevant area.
749
00:30:47.332 --> 00:30:50.010
It is quite clear that the judge was focused
750
00:30:50.010 --> 00:30:51.540
on the subject of the motion
751
00:30:51.540 --> 00:30:55.710
and whether his words were the right words is irrelevant.
752
00:30:55.710 --> 00:30:58.770
We know that the deficiencies that he found
753
00:30:58.770 --> 00:31:00.180
with this expert's ability
754
00:31:00.180 --> 00:31:03.168
to talk about the methodology are that
755
00:31:03.168 --> 00:31:08.168
he couldn't testify about the algorithm at all.
756
00:31:08.874 --> 00:31:13.500
He couldn't explain the meaning of the confidence reading,
757
00:31:13.500 --> 00:31:15.780
which certainly sounds like it's important,
758
00:31:15.780 --> 00:31:18.600
and I will say that when my brother who's talking about,
759
00:31:18.600 --> 00:31:22.350
we're just saying this is an estimate, they're not really,
760
00:31:22.350 --> 00:31:24.570
I mean, the witness used the word approximate,
761
00:31:24.570 --> 00:31:25.980
but he did not talk about
762
00:31:25.980 --> 00:31:28.221
a margin of error or an error rate.
763
00:31:28.221 --> 00:31:33.210
So when you say approximation, like approximately to what,
764
00:31:33.210 --> 00:31:35.130
what's the trier of facts supposed to do with that?
765
00:31:35.130 --> 00:31:37.412
And this witness couldn't give us that.
766
00:31:37.412 --> 00:31:41.460
He also couldn't explain why this uncertainty reading
767
00:31:41.460 --> 00:31:44.010
would vary from visit to visit to visit.
768
00:31:44.010 --> 00:31:47.220
He just knew nothing about the reliability
769
00:31:47.220 --> 00:31:52.220
or accuracy of the FLH app's readouts on these measures,
770
00:31:54.090 --> 00:31:55.705
which are the thing
771
00:31:55.705 --> 00:31:58.876
that the commonwealth wants to use this evidence for.
772
00:31:58.876 --> 00:32:01.830
Not only does it have all of the other evidence
773
00:32:01.830 --> 00:32:03.517
that Justice Georges summarized,
774
00:32:03.517 --> 00:32:08.126
but it also has pictures, it has evidence pictures
775
00:32:08.126 --> 00:32:12.090
that it will say put Arrington's phone
776
00:32:12.090 --> 00:32:15.527
or Arrington himself in the place where they want him to be
777
00:32:15.527 --> 00:32:17.503
at the time that they want him to be.
778
00:32:17.503 --> 00:32:22.050
What they like about this evidence is how precise it looks.
779
00:32:22.050 --> 00:32:23.760
And that's the question is
780
00:32:23.760 --> 00:32:27.090
whether this witness could speak to that and he couldn't.
781
00:32:27.090 --> 00:32:31.830
His testimony that this was well, generally accepted
782
00:32:31.830 --> 00:32:33.881
as reliable is Ipse Dixit,
783
00:32:33.881 --> 00:32:36.522
there was no support for that whatsoever.
784
00:32:36.522 --> 00:32:38.940
He tried to say these articles supported it,
785
00:32:38.940 --> 00:32:40.050
but they didn't.
786
00:32:40.050 --> 00:32:44.250
The cases and the articles don't concern FLH,
787
00:32:44.250 --> 00:32:47.538
they concern the core location services,
788
00:32:47.538 --> 00:32:51.784
GPS, wifi access points.
789
00:32:51.784 --> 00:32:55.920
So that's the underlying technology.
790
00:32:55.920 --> 00:32:58.590
But this court's cases are clear that just,
791
00:32:58.590 --> 00:33:00.780
for example in Davis they weren't,
792
00:33:00.780 --> 00:33:03.300
the court was like GPS is fine with us.
793
00:33:03.300 --> 00:33:04.859
The question is this device
794
00:33:04.859 --> 00:33:09.859
that is starting from the GPS and then calculating speed.
795
00:33:10.233 --> 00:33:12.870
And that's what we have here.
796
00:33:12.870 --> 00:33:14.970
We have these location data things,
797
00:33:14.970 --> 00:33:17.664
which by the way, were gone on the subject phone,
798
00:33:17.664 --> 00:33:20.160
we don't have the underlying data,
799
00:33:20.160 --> 00:33:21.630
so we can't actually
800
00:33:21.630 --> 00:33:23.624
look at the reliability of these measures.
801
00:33:23.624 --> 00:33:27.690
We're trying to reverse engineer like a natural phenomenon.
802
00:33:27.690 --> 00:33:29.490
What is going on here?
803
00:33:29.490 --> 00:33:31.260
This question is not your problem,
804
00:33:31.260 --> 00:33:33.299
but is there an expert
805
00:33:33.299 --> 00:33:37.620
that could attempt to be able to do this?
806
00:33:37.620 --> 00:33:40.771
Or is it, well, Apple's proprietary, so this,
807
00:33:40.771 --> 00:33:43.905
we can never find out whether or not
808
00:33:43.905 --> 00:33:48.360
this could satisfy gatekeeper reliability.
809
00:33:48.360 --> 00:33:49.890
I recognize it's not your problem,
810
00:33:49.890 --> 00:33:51.630
but what's your thought on that?
811
00:33:51.630 --> 00:33:54.600
Well, I agree that I don't think you have
812
00:33:54.600 --> 00:33:57.570
to have an Apple engineer disclose the source code,
813
00:33:57.570 --> 00:33:59.202
certainly that would be helpful.
814
00:33:59.202 --> 00:34:03.407
But we have seen cases where extensive testing
815
00:34:04.325 --> 00:34:07.200
by the scientific method
816
00:34:07.200 --> 00:34:11.350
that is rigorous and peer reviewed over time can reveal
817
00:34:11.350 --> 00:34:14.274
with sufficient reliability
818
00:34:14.274 --> 00:34:17.632
the way that the mechanism is operating.
819
00:34:17.632 --> 00:34:21.090
And that we just don't have here.
820
00:34:21.090 --> 00:34:24.450
Also, it's awkward that the amicus briefs
821
00:34:24.450 --> 00:34:25.320
that sort of speak
822
00:34:25.320 --> 00:34:27.780
to the subject of frequent location history.
823
00:34:27.780 --> 00:34:29.762
I mean, we're not here on de novo review,
824
00:34:29.762 --> 00:34:31.422
but I would say at the least
825
00:34:31.422 --> 00:34:36.422
what you can glean from the two forensic amici
826
00:34:36.720 --> 00:34:38.010
that submitted briefs
827
00:34:38.010 --> 00:34:42.720
is that there is more knowledge known to those experts,
828
00:34:42.720 --> 00:34:45.120
those experts sort of spoke confidently about
829
00:34:45.120 --> 00:34:48.300
what you can rely on and what you can't rely on.
830
00:34:48.300 --> 00:34:51.041
And I'd say that I think that both of those briefs
831
00:34:51.041 --> 00:34:53.556
supported Arrington's position.
832
00:34:53.556 --> 00:34:57.780
And I'll just touch briefly upon the procedural question,
833
00:34:57.780 --> 00:35:00.250
although we do sort of argue that
834
00:35:00.250 --> 00:35:03.150
it appears that the appeal is here
835
00:35:03.150 --> 00:35:05.100
and it is going to be decided by this court,
836
00:35:05.100 --> 00:35:08.443
so it doesn't really matter to Arrington at this juncture,
837
00:35:08.443 --> 00:35:12.137
but let's say that this court
838
00:35:12.137 --> 00:35:17.137
overturned the exclusion of this FLH evidence
839
00:35:18.570 --> 00:35:20.017
and we went back down and said,
840
00:35:20.017 --> 00:35:23.523
"Judge, it's still more prejudicial than probative,
841
00:35:23.523 --> 00:35:26.390
and or its cumulative."
842
00:35:26.390 --> 00:35:30.330
Let's say that the judge found another reason
843
00:35:30.330 --> 00:35:32.250
to exclude this evidence.
844
00:35:32.250 --> 00:35:34.612
Do we then come back here?
845
00:35:34.612 --> 00:35:39.600
Because that's a decision excluding the evidence
846
00:35:39.600 --> 00:35:42.720
that is as final as the decision before the court.
847
00:35:42.720 --> 00:35:44.333
You know, it isn't inconceivable
848
00:35:44.333 --> 00:35:47.601
that the way that the evidence develops at trial,
849
00:35:47.601 --> 00:35:52.530
the Commonwealth wishes to reapproach this FLH evidence
850
00:35:52.530 --> 00:35:54.810
in a more narrow sort of altered,
851
00:35:54.810 --> 00:35:56.190
you know, I keep emphasizing
852
00:35:56.190 --> 00:35:57.900
it's the way that it's the opinion
853
00:35:57.900 --> 00:36:01.650
that they're trying to admit that has been excluded.
854
00:36:01.650 --> 00:36:04.740
But this expert does have some knowledge in some areas
855
00:36:04.740 --> 00:36:08.261
that perhaps could be become relevant later.
856
00:36:08.261 --> 00:36:11.140
This is not necessarily the kind of final decision,
857
00:36:11.140 --> 00:36:14.910
like a motion to suppress that is collateral.
858
00:36:14.910 --> 00:36:17.580
It is done well in advance of trial
859
00:36:17.580 --> 00:36:21.240
so that the automatic stay that happens with Rule 15
860
00:36:21.240 --> 00:36:24.843
doesn't mess up the entire trial schedule.
861
00:36:26.557 --> 00:36:28.200
These are distinctions
862
00:36:28.200 --> 00:36:30.570
between this kind of evidentiary ruling,
863
00:36:30.570 --> 00:36:32.580
which is subject to change,
864
00:36:32.580 --> 00:36:35.827
which happens in the course of a sort of a busy trial.
865
00:36:35.827 --> 00:36:37.131
That might be true.
866
00:36:37.131 --> 00:36:42.049
But when you do a not so slow walkthrough our jurisprudence,
867
00:36:42.049 --> 00:36:45.180
it does seem as if there've been instances
868
00:36:45.180 --> 00:36:49.470
where we've kind of stretched the parameters of 15
869
00:36:49.470 --> 00:36:53.100
to subsume some things that arguably could be,
870
00:36:53.100 --> 00:36:55.353
should have been 2113 issues.
871
00:36:56.296 --> 00:37:00.390
What do you think about all of the other stuff when you say,
872
00:37:00.390 --> 00:37:03.630
even though we have this other evidence that this still,
873
00:37:03.630 --> 00:37:07.560
if it operated the way that attorney McLean is saying,
874
00:37:07.560 --> 00:37:10.440
that it's over and done with this issue,
875
00:37:10.440 --> 00:37:15.440
and so therefore it is ripe for 15 review?
876
00:37:15.930 --> 00:37:17.400
Well, as I just sort of argued,
877
00:37:17.400 --> 00:37:20.424
it's over and done with, with this opinion.
878
00:37:20.424 --> 00:37:22.736
Sure.
But the FLH
879
00:37:22.736 --> 00:37:25.788
perhaps could be re-approached later.
880
00:37:25.788 --> 00:37:30.717
With respect to the other cases where these rule 15.
881
00:37:30.717 --> 00:37:33.930
But let me just focus on that before you move on.
882
00:37:33.930 --> 00:37:34.763
How?
883
00:37:34.763 --> 00:37:36.535
How could this FLH data
884
00:37:36.535 --> 00:37:41.040
be revisited in another way that might be relevant
885
00:37:41.040 --> 00:37:43.983
and admissible with this same witness?
886
00:37:45.662 --> 00:37:47.430
Well, I honestly,
887
00:37:47.430 --> 00:37:49.610
I'm not prepared to answer that question.
888
00:37:49.610 --> 00:37:52.379
But doesn't that go to his point,
889
00:37:52.379 --> 00:37:55.380
that it couldn't come in any other way
890
00:37:55.380 --> 00:37:57.942
and that even though there might be other evidence
891
00:37:57.942 --> 00:38:00.120
that might be supportive
892
00:38:00.120 --> 00:38:02.184
of the government's position and burden,
893
00:38:02.184 --> 00:38:06.510
that this is the type of decision
894
00:38:06.510 --> 00:38:10.652
that we've shoehorned into 15 over the years?
895
00:38:10.652 --> 00:38:13.530
Well, I disagree that it is the type of decision
896
00:38:13.530 --> 00:38:15.060
that has been shoehorned in
897
00:38:15.060 --> 00:38:20.060
because I think that as the amicus CPCS brief points out,
898
00:38:20.250 --> 00:38:23.694
and I hereby move to expressly adopt
899
00:38:23.694 --> 00:38:27.777
all of their arguments in our position.
900
00:38:27.777 --> 00:38:32.777
But they point out that in each of those cases
901
00:38:33.534 --> 00:38:38.534
the issue was just positive, or it just wasn't challenged
902
00:38:38.730 --> 00:38:39.870
and it wasn't really looked at,
903
00:38:39.870 --> 00:38:41.400
and it's being looked at now
904
00:38:41.400 --> 00:38:43.590
in this case for the first time.
905
00:38:43.590 --> 00:38:47.460
But there are myriad evidentiary rulings
906
00:38:47.460 --> 00:38:50.850
that similarly could be characterized as final,
907
00:38:50.850 --> 00:38:52.920
they're not going to be revisited.
908
00:38:52.920 --> 00:38:54.750
And it's impossible to sort of sit back
909
00:38:54.750 --> 00:38:56.820
and imagine how the evidence might,
910
00:38:56.820 --> 00:38:59.632
I mean, unexpected things happen at trial all the time,
911
00:38:59.632 --> 00:39:02.790
which is why I'm not prepared to sort of brainstorm
912
00:39:02.790 --> 00:39:05.490
all the potential things that could happen here.
913
00:39:05.490 --> 00:39:10.490
But it's really the minority motion
914
00:39:10.811 --> 00:39:14.850
that isn't looking final
915
00:39:14.850 --> 00:39:16.560
from the moment that you get that ruling.
916
00:39:16.560 --> 00:39:18.810
Well, we're stuck without that evidence
917
00:39:18.810 --> 00:39:20.390
or we're stuck with that evidence.
918
00:39:20.390 --> 00:39:22.380
We could sort of always come,
919
00:39:22.380 --> 00:39:24.540
and there's a tremendous imbalance,
920
00:39:24.540 --> 00:39:26.279
as I think I pointed out in my brief,
921
00:39:26.279 --> 00:39:30.385
the Commonwealth would have a much greater opportunity
922
00:39:30.385 --> 00:39:33.090
to stall the process of the trial
923
00:39:33.090 --> 00:39:37.411
because defendants don't get rule 15 appeals very rarely.
924
00:39:37.411 --> 00:39:39.900
So I hope that you would take that
925
00:39:39.900 --> 00:39:42.240
into consideration as well.
926
00:39:42.240 --> 00:39:43.470
And as we've pointed out,
927
00:39:43.470 --> 00:39:48.470
we do have these other Daubert issues sort of lined up,
928
00:39:48.905 --> 00:39:53.905
and if the process were altered in the way
929
00:39:55.530 --> 00:39:57.804
that the Commonwealth is asking this court to do,
930
00:39:57.804 --> 00:40:02.804
this esteemed bench would find itself
931
00:40:04.175 --> 00:40:09.175
entangled in pretrial evidentiary process in superior court
932
00:40:10.680 --> 00:40:14.643
in a way that typically it has been loathed to do.
933
00:40:16.229 --> 00:40:19.263
If there are no further questions, I'll rest on my brief.