The Zimmerman homicide trial in Florida is an important bellwether on many levels. My colleague David Papke has already remarked on the jury’s composition and its possible effect on the outcome. The evidence too is controversial and contested. The notorious 911 call recording is deemed critical, yet the trial judge excluded expert testimony on voice identification as unreliable. Her ruling rippled across the country and may even hold lessons here in Wisconsin.
The 911 call recorded a man’s voice “screaming” for help. The screamer’s identity is disputed. George Zimmerman has claimed self-defense. Prosecution experts asserted, however, that the plea came from the victim, Trayvon Martin, moments before he was shot dead. A bevy of defense witnesses, including specialists with the FBI and the NSA, attacked the methods used by the State’s experts.
The judge ruled that those techniques were not “generally accepted” by competent experts in the field. Put differently, she found the State’s expert testimony unreliable. The jury thus will be on its own in divining whether Martin or Zimmerman screamed for help moments before the shooting.
By happenstance, the judge’s ruling coincided with Florida’s adoption of the Daubert “reliability” standard for expert testimony just several weeks earlier. Tort reform motivated the change. The new rule, which takes effect in July, replaces the “general acceptance” standard that governed her ruling on voice identification. Does the standard applied – “general acceptance” or Daubert – make any difference? Probably not.
Although Wisconsin too adopted the Daubert standard as part of tort reform in January 2011, it is remarkable that nearly two-and-a-half years later we have yet to see a published case on this issue despite the ubiquity of expert testimony in civil and criminal cases. Why the dearth?
First, evidence law is not algebra. Admissibility rulings are quintessentially discretionary; the choice of standard is rarely outcome determinative and appellate courts defer to trial courts. The Zimmerman trial judge would have almost certainly excluded the evidence under either test. And to speculate what a Wisconsin judge would have done is no more revealing than asking what a different Florida judge might have done.
Second, since January 2011, Wisconsin lawyers and judges have tried cases in the same competent manner as before the switch. Daubert has made little or no difference here because there was no “junk science” problem to begin with. Rulings have been restyled to accord with the new rule’s language, but the end result – in or out – is likely the same.
Finally, Florida and Wisconsin both exemplify that Daubert is more about the politics of tort reform than the imperative of assuring reliable evidence. Florida’s venerable Frye test (general acceptance) worked just fine here. Time and money is better spent on improving forensic sciences and the quality of expert testimony in court, especially in under-resourced criminal cases, than on bromides masquerading as evidence rules.