Commonwealth v. Read — Trial ArchiveProcedural - Sidebar (Hyde Daubert Motion)
72 linesJUDGE CANNONE: Thank you. All right. You're all set. Thank you. [unintelligible] All right, we're going to take a break. The lawyers and I have some work that we have to do. So it's a little bit longer break than we normally take, and it's a little bit earlier, but we did get coffee for you. So we'll take a recess now for the next hour. I want counsel to stay. All right.
COURT OFFICER: Please close your notebook. Follow me. [unintelligible]
JUDGE CANNONE: So I want to talk a little bit more about what we talked about at sidebar. And I read the decision from Maryland — just cursorily — while we were waiting for the witness. And that was a March decision. And I can't stress enough that this should have been brought up before today. So I'll hear you about your concerns, Mr. Alessi. I'll hear the Commonwealth's response, then I'll go finish reading everything else she gave me. So what are your concerns about — um — Jessica Hyde? I don't know if she's Dr. Hyde or what, but I remember she testified the last trial, so you have transcripts.
MR. ALESSI: Understood, your honor. Um, I first want to just quickly get the evidentiary basis. This is straightforward judicial notice. There are two separate decisions which require two separate — one — one's a Massachusetts case, so that's easy enough.
JUDGE CANNONE: Okay. So — and that's — is it an SJC case?
MR. ALESSI: So yes. Yes. Okay. So now to the Maryland case. So that's governed by Massachusetts Rule 39A — and that is records of courts of other states or of the United States. The act provision is the records and judicial proceedings. And of course, a court's judicial proceedings — of a court of another state or of the United States — shall be competent evidence in this Commonwealth if authenticated by the attestation of the clerk or other officer who has charge of the records of such court under its seal. So I have with me, your honor, the Stacy Herrera Maryland case. I have the certified copy with me from the clerk.
JUDGE CANNONE: All right. So we can mark that for identification.
MR. ALESSI: Thank you, your honor. May I approach?
JUDGE CANNONE: Yes.
COURT CLERK: Marked CC for ID.
MR. ALESSI: Okay. Thank you. So assuming your honor determines that the seal is the seal — it is mandatory under the rule that it shall be competent evidence. It shall be in evidence. To the extent the Commonwealth seeks to argue relevancy or materiality, that argument is precluded, your honor. And the best evidence of that conclusion is the immediate section below in Rule 39, which is notice of foreign law — which is not this — but it says there, "The court shall upon request take judicial notice of the law of the United States or of any state, territory, or dependency thereof, or of a foreign country whenever it shall be material." So the drafters of this rule knew how to put in a qualification or condition when they introduced materiality in B, but they didn't do it in A.
JUDGE CANNONE: Okay. So focus on what it is you think Jessica Hyde should be prohibited from testifying about.
MR. ALESSI: Oh — your honor, I am not seeking to prohibit her from any testimony under this rule. What I want to do is to have it admitted in evidence, have it published, and question her on what she presented to the court in the Maryland case — what was presented — her report — because it was deemed not reliable. And that is what — in one area, right? One specific area.
JUDGE CANNONE: Well, you can call it a decision. Right?
MR. ALESSI: Right. Oh yeah. Just what's in the decision. But there are two parts to that decision. Two areas. It's FLH — frequent location history. But what the court also got at was Apple source codes — that she didn't have the Apple source code. Nobody in the country has the Apple source codes.
JUDGE CANNONE: Right.
MR. ALESSI: Point exactly, your honor.
JUDGE CANNONE: What is it that — so you want to put in her report and question her about a proceeding in Maryland? I don't — I need to know exactly what you're asking me to allow. Give you —
MR. ALESSI: — the answer, your honor. I will explain it. It's a very short answer. What I want to do is, with regard to her 2:27 timestamp and her anticipated testimony on that — where she uses a tool, Cellebrite, to determine and come to a conclusion about that timestamp — she is not using Apple source code to find out where that's located specifically in the phone and what it means. She is using a surrogate — a surrogate — to do that. And I want to cross-examine her on the topic using this decision to say: in Maryland, you tried to do the same thing with regard to FLH — you tried to use a surrogate approach and make an opinion about whether that is in fact what's in the phone. She can't do it. And that means her testimony on 2:27 is not reliable. I'm not looking to exclude it.
MR. ALESSI: I'm looking to cross her on her reliability for the conclusions I anticipate she's going to make on 2:27.
JUDGE CANNONE: So if she is not asked about that, then what?
MR. ALESSI: Oh, if she's not asked about the 2:27, I — and I want to think about it — but I'm 99% certain I am not going to pursue that at all.
JUDGE CANNONE: Okay. What do you say, Mr. Brennan?
MR. BRENNAN: This is an attempt to try to malign a witness with something that's wholly unrelated and not relevant to what she's going to testify to or the basis for her opinion. It is not a law that is admissible. It's an opinion. It wasn't even about a specific case. It was about a peer review. And so in a Daubert hearing, the court did not allow testimony on significant location. That's not the case here — to conflate the argument saying it has something to do with Apple 2:27. There is absolutely no basis for that argument. They want to say that another court rejected something about you — therefore, the jury should reject you. There is no relationship between what she is going to testify as a basis and that opinion. That opinion did not say she was wrong.
MR. BRENNAN: It said that it was not admissible under Daubert. Unrelated. Nobody has the Apple source code. No expert can testify about Apple source code — it's only owned by Apple. And so using the words like "surrogate" is a way to try to cheapen her testimony in front of the jury. This — here — what — number one, what he said — I really can't follow him. I don't understand, other than he's trying to draw some type of relevance and materiality. There's none. There's none. This is not a denouncement. She hasn't been found incredible. There's nothing about her methodology that has been rejected by a court. This is on significant location. And although she looked at it, that's not part of this opinion whatsoever.
MR. BRENNAN: And so because another court didn't allow something under Daubert has nothing to do with this case. Nothing.
JUDGE CANNONE: And what is it that you expect her to testify to, Mr. Brennan, regarding the 2:27 timestamp? We did not have this issue with Mr. Whiffin, right? This was not raised with Mr. Whiffin.
MR. BRENNAN: Oh, it was the 2:27 timestamp. We — no, that would — that that was raised. But this — what was problematic in Maryland — the same thing that was problematic in Arrington — that's correct, your honor — wasn't raised because Mr. Whiffin has not been advertised with regard to Apple source codes. And if I could, your honor — Mr.
MR. ALESSI: — Brennan — Mr. Brennan has made a relevance argument. He keeps anticipating my cross — which he has incorrect — by saying it's not relevant. That doesn't go to the admissibility in my cross. I'm entitled to cross her on her reliability. And if I could, your honor, in the State Herrera decision — if your honor would look at page three, please, at the bottom — the paragraph says, "In assessing the reliability of an expert's methodology" — I get to do that on cross. It's not limited to a Daubert hearing. Every expert can be crossed on the reliability of their methodology.
MR. ALESSI: And lastly, with regard to the Apple source code, if your honor would please turn to page six, the last paragraph — it says, "The issue raised in this case stems from the fact that Apple's algorithms are proprietary and the expert did not have access." That's exactly the situation here, and what I want to cross her on. So in conclusion, your honor, the fact that — how she tried to get around the Apple source code — her methodology in the Herrera case — she got Daubert-ized on because it wasn't reliable. That's exactly what I want to cross her on — her reliability, how she's trying to get around them. In this case, it's just basic cross-examination. You can see the plan — to dehumanize somebody ### Section 1: Corrected Transcript
MR. BRENNAN: To use a term to suggest some type of conclusion that has no basis in fact as an attempt to just dehumanize her and limit her testimony and credibility without any basis in fact in that case. It did not deal with the search of a tab in a suspended state in Safari. It didn't deal with the timestamp. It was an entirely different issue by their analysis. If an expert goes into court on a motion on anything to do with data forensics and the court says that issue is not admissible, they should be impeached when they go and talk about a totally different issue in forensic data analysis at another case. They have not shown any evidence that this issue has anything to do with her effort in the timestamp. They just used the word methodology.
MR. BRENNAN: Her methodology was questioned in an opinion in a different court. Has nothing to do with her opinions here. What information do they have that her methodology in this analysis has been rejected by any court? What evidence do they have that the methodology used in this case is unreliable or improper? They don't have any. In fact, they called an expert themselves in the last case who tried to provide what he believed to be methodology, and they proffered that evidence as reliable. No different on this subject. The Herrera case is a totally different subject.
MR. ALESSI: Your honor, first of all, as the court has noted, the first trial is the first trial. This is this trial. I wasn't at the first trial. The most important probative aspect, your honor, is I don't want to have to give away my entire cross in this.
JUDGE CANNONE: No one's asking you to. I'm not asking you to.
MR. ALESSI: There are parts of Miss Hyde's slide that go to location. There's a good part of her slide presentation. I want — I don't want to depart from the 2:27 — but the good part of her slide presentation that she's going to present is on location. It is with regard to how — [unintelligible] — steps. So there are certainly aspects directly relevant here. The issue with the 2:27 — in addition, there is, for her methodology, she's claiming a certain conclusion and opinion about the 2:27. There is no peer review, there is no article that she can cite to support her methodology to come to the conclusion that the 2:27 timestamp one, doesn't exist anymore, or two, doesn't mean that the search occurred at 2:27.
MR. ALESSI: That's what she's going to — that's what she's opined on in her reports pre-trial, and that's what I anticipate she's going to opine on when she takes the stand. I'm entitled to cross her on that. We can't be saddled. It's irrelevant what our witness has said in another proceeding. It's what this witness is going to talk about in this matter. And I'm entitled, and my client's entitled, to have me confront this witness on what she's going to testify to and her methodology. So my point is, your honor, this decision — how do you impeach an expert? — but one of the fundamental ways you do it is, and I don't mean to dehumanize her. I won't even use the term "Daubertize" anymore. She's been deemed unreliable.
MR. ALESSI: Attorneys who do experts all the time, that's the verb you use to shortcut it, but I won't use it. I have no intention to dehumanize her. What I intend to do is to impeach her on her reliability. So, in conclusion, your honor, the Herrera case — she was deemed not reliable. That's competency. And any expert that's been deemed unreliable, you get to attack that. If the Commonwealth believes the case is not relevant, if Miss Hyde believes it's not relevant, let Miss Hyde defend that on the stand. Let Mr. Brennan make that point on redirect. But I can't have my client's constitutional right to confront her on the very subject matter she's going to testify on limited by anticipating what I'm going to provide for cross.
MR. ALESSI: I've given it, and I respectfully submit, your honor, this is basic cross of an expert witness, particularly whether methodology on data forensics has been deemed not reliable by a court. In one part is the — uh — location she has in her PowerPoint. She's going to testify.
JUDGE CANNONE: Do you intend to introduce that, Mr. Brennan?
MR. BRENNAN: It's not significant locations — those are locations in the database that develop the opinion that the timestamp for 2:27 is not related to the search. They're conflating the issue. She has not been deemed unreliable. It is the issue of the significant locations by that court that they found insufficient. There's no opinion from a court that she's an unreliable expert, and this is how they're going to distort it. Invoking the Constitution and invoking the client's rights has nothing to do with the analysis that this is a totally separate subject, or an opinion simply wasn't let in in a different court out of this jurisdiction. It wasn't this opinion. It wasn't this methodology for the opinions that she's going to offer in this case.
MR. BRENNAN: And so if you look at the case, it is a totally different, unrelated item. It's as if a reconstruction expert went into a court and attempted to give an opinion about a medical diagnosis and the court wouldn't allow that medical diagnosis in in another court in another jurisdiction. They would not be able to be cross-examined that in some court there was an opinion they offered that was deemed inadmissible, unless they were talking about the very same methodology and the very same point. This has nothing to do with her opinion whatsoever. It's just an attempt to further the defense's attempt to suggest she's not credible by hiding behind the shield of a different judge and distorting the fact that it's two different methodologies. It's two different issues.
JUDGE CANNONE: One last word. Go ahead.
MR. ALESSI: Thank you, your honor. He just said credibility. This isn't a credibility issue. This is a reliability issue. This is the essence of what experts do. You have to show that your methodology is reliable. It's a red herring to bring up credibility.
JUDGE CANNONE: The court opinion — and this is the equivalent of a superior court opinion, right? It's not an appellate decision?
MR. ALESSI: It is, your honor. It is the equivalent. I respectfully don't think that the level of the court is at all relevant — any court. Unless you get it overturned on appeal, then this would be a different matter. But this is a valid case. And even if it wasn't, it shall be in evidence. So there are two issues here, and I think the Commonwealth is conflating that. The question first for the court is: is this admissible? Can it come into evidence? To me, that's a non-issue. Rule 39 says ipso facto, yes, as long as I've got a certified copy. So, it is in evidence. I don't know why we're debating, respectfully, on whether I can question her on something that's going to be in evidence about her. Final point: Mr. Brennan incorrectly says that this wasn't about her.
MR. ALESSI: The final sentence, the decretal section on page seven says, "Accordingly, defendant's motion to exclude expert testimony regarding the significant location data obtained from the forensic cell extraction is granted." That's — she's the only expert, and her name is mentioned throughout this opinion. It's all about Miss Hyde. And I'll conclude my last point, your honor, where I started. And that is Miss Hyde's methodology with regard to her PowerPoint. You heard Mr. Brennan's answer. He has included in her PowerPoint locations, steps, etc. It's exactly what was an issue here — the 2:27 timestamp. She has no — and this will be developed further on cross — she has no peer-reviewed article to say how she is determining that that 2:27 timestamp should not be in the data.
MR. ALESSI: She has nothing to support that, just like she had nothing in this case with regard to data forensics. Final point is if the Commonwealth believes that this is irrelevant to what Miss Hyde did, let them come back on redirect on that. I shouldn't, in anticipation, have my cross-examination struck before I even get to pursue that with the witness. And I believe once I pursue it with the witness, it will become eminently clear that it's a proper basis for cross-examination.
JUDGE CANNONE: All right. And Mr. Alessi, have you thought about — if the Commonwealth does not get into the 2:27 timestamp — whether you think you're still entitled to do this?
MR. ALESSI: Your honor, my answer is: I would be entitled, but I would say this. If they don't get into 2:27, I won't go after it. I won't pursue it. I won't use this opinion. We necessarily would have to on some basis, because in order for the witness to explain to the jury her opinion that Miss McCabe did not delete any Safari browser searches, she would have to identify the search, where it is in the databases, and how she can tell — how she knows — that it wasn't deleted by a user. The same with the second part of the phone calls. But if I could avoid talking about 2:27, I would. But it is necessary for the basis of her opinion. There's just no way around it. And again, this is something that, after a defense expert may or may not testify, could be addressed at that point.
MR. ALESSI: There is no burden on the defendant. I'm not being presumptuous, although there was an offer of proof earlier on similar evidence. But not knowing the court's wisdom on whether I'll be entitled to rebuttal, I do not want to lose the opportunity to address points that were made in the opening that have absolutely no basis in fact and have not been proven in any way to this point in the case.
JUDGE CANNONE: So, I asked earlier whether the defense intended to call Mr. Green, and you believe that you do, right?
MR. ALESSI: Your honor, we have not made a decision on what data forensics expert we're going — to call. But if I could just — 10 seconds.
JUDGE CANNONE: Okay, but then answer my question after your 10 seconds.
MR. ALESSI: I will. Mr. Brennan can't have it both ways. He can't say yes, I need to address the 2:27 timestamp, and then deny me the ability to cross-examine fully on this expert's methodology and to impeach her and to get at her reliability and her competence, which is a key issue of crossing an expert. Her competence has been determined in this decision, and it is her — because it was her report that was the basis for the court to not allow her to testify. They can't have it both ways. You can't say I need to do it in direct, but no, I want to handcuff the defense on cross-examination. Now, to answer your question, Your Honor, we are going to have a witness that is going to address the 2:27 issue. Whether it's Mr. Green or somebody else, we haven't determined.
MR. ALESSI: My point on that, Your Honor, is we shouldn't be limited in our cross-examination of the Commonwealth.
JUDGE CANNONE: No, I'm just thinking in terms of whether this might be appropriate for rebuttal.
MR. ALESSI: That's — yeah. And, Your Honor, my point would be that's obviously going to be Your Honor's decision ultimately, but again, the Commonwealth can't have it both ways. They're the ones who are triggering this issue. And I say triggering in a legal sense. They are putting at issue the 2:27 timestamp with this witness. If they weren't doing that, I wouldn't be having this discussion at all. But they're putting it at issue. I have the right, respectfully, to cross-examine on the issue that they're putting at issue, and they shouldn't get rewarded with sort of having a pre-authorization of rebuttal to deal with it. They should have to meet their burden of rebuttal depending upon when the evidence comes.
MR. ALESSI: But I don't believe just because we may call a witness that should dilute my ability to cross-examine this witness on an issue they're raising. I'm not raising it.
JUDGE CANNONE: You can see why I wish I had more notice on this.
MR. ALESSI: Right, Your Honor, I have no good answer for that.
JUDGE CANNONE: So, I will do what I can in the next half hour. I might need more time on this, frankly, but we'll see.
MR. BRENNAN: She's here.
MR. ALESSI: Your Honor, may I ask? I just want to know — is she here?
MR. BRENNAN: Yes, Your Honor.
JUDGE CANNONE: Can she stay another day if need be?
MR. BRENNAN: I think she'll do what the court directs her to do. UNKNOWN: She would have to leave by Friday. She cannot be here.
MR. ALESSI: Well, may I approach?
COURT OFFICER: Please be seated, court. background audio: video conference system notification
JUDGE CANNONE: All right. I appreciate the time. I appreciate people's patience. So, in reviewing the rules, I look at rule two. So, Mass. Criminal Procedure rule two, purpose and construction. And so upon reflection and consideration, it says, "These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of expense and delay." Also looking to — [unintelligible] — I don't have the cite. I know it's from 2016, 2017. A judge — Robert Kaine was the trial judge.
JUDGE CANNONE: So, because none of the purposes here in rule two are served by the admission of the Maryland trial judge's decision, particularly where offered without notice to the court previously, I'm excluding that decision. Your rights are saved, Mr. Alessi. We've got that decision marked for identification, and you certainly are free to cross-examine Miss Hyde regarding her methodology. So, that's my decision. So bring the jurors in, please. background audio: video conference system notification
UNKNOWN: Chrissy, do you want this under that?
UNKNOWN: Nice. Put it back in session. You need to see it. All right, jurors, I appreciate your patience. So, your next witness, Mr. Brennan.