Judiciary Law § 510 provides that to be qualified as a juror a person must: (1) be a citizen of the United States, and a resident of the county, (2) be not less than eighteen years of age, (3) not have been convicted of a felony, and (4) be able to understand and communicate in the English language. Under this section, a hearing impaired juror may sit, but only if he or she “is capable of doing what jurors are supposed to do,” including hearing and evaluating the testimony through lip-reading, use of assistive devices, or other means (People v Guay, 72 AD3d 1201, 1202 [3rd Dept 2010], citing People v Guzman, 76 NY2d 1, 5 [1990]; see CPL § 270.20 [1][a]; Judiciary Law § 510).
In Guay, the Third Department affirmed defendant’s conviction after the trial court dismissed a prospective hearing-impaired juror over defense objection, who the court determined would likely be unable to hear the testimony. Affirming the Third Department’s holding, the Court of Appeals held that “this case is not akin to Guzman where the prospective juror confirmed that a sign language interpreter would allow him to follow the proceedings verbatim,” since in Guay, no alternative accommodations were requested or discussed (People v Guay, 18 NY3d 16, 23 [2011]).
Along these lines, the Fourth Department noted that “[i]t is well established that ‘[a] juror who has not heard all the evidence is grossly unqualified to render a verdict’ ” (People v Jean-Philippe, 101 AD3d 1582 [4th Dept 2012], citing People v Hymes, 70 AD3d 1371, 1372 [4th Dept 2010], lv denied 15 NY3d 774 [2010] and People v Williams, 202 AD2d 1004 [4th Dept 1994]).
In Jean-Philippe, the trial court made a valiant but unsuccessful attempt to save the conviction when it quizzed a sleeping juror about whether she “missed any relevant or important . . . parts . . . of the testimony” and “heard everything that [she] need[ed] to know thus far” (while she was sleeping?). The Fourth Department noted that “because there were no alternate jurors at the time, the dismissal of a juror would have required a mistrial” however “it was incumbent upon the court to dismiss that juror, even though that dismissal would have necessitated a mistrial.” Even though it was really, really hard. Even though it meant starting all over. Even though the temptation to press on as if things were OK must have been overwhelming.
A juror who cannot hear the testimony is unable to understand the testimony and is therefore incapable of “doing what jurors are supposed to do.” Such a juror is unqualified to serve under Judiciary Law § 510 and must be excused.
In an interesting aside, defense counsel is not held to this same lofty standard. Not until counsel has been “repeatedly unconscious through not insubstantial portions” of even capital murder trials will prejudice to the defendant be presumed (see, Muniz v Smith, 647 F3d 619 [6th Cir 2011]; Burdine v Johnson, 262 F3d 336, 340-41 [5th Cir 2001]; Tippins v Walker, 77 F3d 682, 685 [2nd Cir 1996]). But one juror taking a little cat nap (it’s warm in those courtrooms, had a big lunch, counsel drones on, 11 others to pick up the slack, what’s the big deal?) requires reversal? Doesn’t seem right.
Wednesday, September 11, 2013
Judiciary Law § 510 provides that to be qualified as a juror a person must: (1) be a citizen of the United States, and a resident of the county, (2) be not less than eighteen years of age, (3) not have been convicted of a felony, and (4) be able to understand and communicate in the English language. Under this section, a hearing impaired juror may sit, but only if he or she “is capable of doing what jurors are supposed to do,” including hearing and evaluating the testimony through lip-reading, use of assistive devices, or other means (People v Guay, 72 AD3d 1201, 1202 [3rd Dept 2010], citing People v Guzman, 76 NY2d 1, 5 [1990]; see CPL § 270.20 [1][a]; Judiciary Law § 510).
In Guay, the Third Department affirmed defendant’s conviction after the trial court dismissed a prospective hearing-impaired juror over defense objection, who the court determined would likely be unable to hear the testimony. Affirming the Third Department’s holding, the Court of Appeals held that “this case is not akin to Guzman where the prospective juror confirmed that a sign language interpreter would allow him to follow the proceedings verbatim,” since in Guay, no alternative accommodations were requested or discussed (People v Guay, 18 NY3d 16, 23 [2011]).
Along these lines, the Fourth Department noted that “[i]t is well established that ‘[a] juror who has not heard all the evidence is grossly unqualified to render a verdict’ ” (People v Jean-Philippe, 101 AD3d 1582 [4th Dept 2012], citing People v Hymes, 70 AD3d 1371, 1372 [4th Dept 2010], lv denied 15 NY3d 774 [2010] and People v Williams, 202 AD2d 1004 [4th Dept 1994]).
In Jean-Philippe, the trial court made a valiant but unsuccessful attempt to save the conviction when it quizzed a sleeping juror about whether she “missed any relevant or important . . . parts . . . of the testimony” and “heard everything that [she] need[ed] to know thus far” (while she was sleeping?). The Fourth Department noted that “because there were no alternate jurors at the time, the dismissal of a juror would have required a mistrial” however “it was incumbent upon the court to dismiss that juror, even though that dismissal would have necessitated a mistrial.” Even though it was really, really hard. Even though it meant starting all over. Even though the temptation to press on as if things were OK must have been overwhelming.
A juror who cannot hear the testimony is unable to understand the testimony and is therefore incapable of “doing what jurors are supposed to do.” Such a juror is unqualified to serve under Judiciary Law § 510 and must be excused.
In an interesting aside, defense counsel is not held to this same lofty standard. Not until counsel has been “repeatedly unconscious through not insubstantial portions” of even capital murder trials will prejudice to the defendant be presumed (see, Muniz v Smith, 647 F3d 619 [6th Cir 2011]; Burdine v Johnson, 262 F3d 336, 340-41 [5th Cir 2001]; Tippins v Walker, 77 F3d 682, 685 [2nd Cir 1996]). But one juror taking a little cat nap (it’s warm in those courtrooms, had a big lunch, counsel drones on, 11 others to pick up the slack, what’s the big deal?) requires reversal? Doesn’t seem right.
In Guay, the Third Department affirmed defendant’s conviction after the trial court dismissed a prospective hearing-impaired juror over defense objection, who the court determined would likely be unable to hear the testimony. Affirming the Third Department’s holding, the Court of Appeals held that “this case is not akin to Guzman where the prospective juror confirmed that a sign language interpreter would allow him to follow the proceedings verbatim,” since in Guay, no alternative accommodations were requested or discussed (People v Guay, 18 NY3d 16, 23 [2011]).
Along these lines, the Fourth Department noted that “[i]t is well established that ‘[a] juror who has not heard all the evidence is grossly unqualified to render a verdict’ ” (People v Jean-Philippe, 101 AD3d 1582 [4th Dept 2012], citing People v Hymes, 70 AD3d 1371, 1372 [4th Dept 2010], lv denied 15 NY3d 774 [2010] and People v Williams, 202 AD2d 1004 [4th Dept 1994]).
In Jean-Philippe, the trial court made a valiant but unsuccessful attempt to save the conviction when it quizzed a sleeping juror about whether she “missed any relevant or important . . . parts . . . of the testimony” and “heard everything that [she] need[ed] to know thus far” (while she was sleeping?). The Fourth Department noted that “because there were no alternate jurors at the time, the dismissal of a juror would have required a mistrial” however “it was incumbent upon the court to dismiss that juror, even though that dismissal would have necessitated a mistrial.” Even though it was really, really hard. Even though it meant starting all over. Even though the temptation to press on as if things were OK must have been overwhelming.
A juror who cannot hear the testimony is unable to understand the testimony and is therefore incapable of “doing what jurors are supposed to do.” Such a juror is unqualified to serve under Judiciary Law § 510 and must be excused.
In an interesting aside, defense counsel is not held to this same lofty standard. Not until counsel has been “repeatedly unconscious through not insubstantial portions” of even capital murder trials will prejudice to the defendant be presumed (see, Muniz v Smith, 647 F3d 619 [6th Cir 2011]; Burdine v Johnson, 262 F3d 336, 340-41 [5th Cir 2001]; Tippins v Walker, 77 F3d 682, 685 [2nd Cir 1996]). But one juror taking a little cat nap (it’s warm in those courtrooms, had a big lunch, counsel drones on, 11 others to pick up the slack, what’s the big deal?) requires reversal? Doesn’t seem right.
And speaking of guns . . . How much is the gun industry worth?
Check out the “The Business of Guns, recently published by Minute MBA at: http://www.onlinemba.com/blog/
And speaking of guns . . . How much is the gun industry worth?
Check out the “The Business of Guns, recently published by Minute MBA at: http://www.onlinemba.com/blog/
Shotspotter - Now you see it, now you don't
By Jill Paperno
Second Assistant Monroe County Public Defender
The NSA is not the only organization that monitors the day to day activities of citizens. But you already knew that. One piece of technology that has sprouted up in our own backyard – the city of Rochester – in the last couple of years is called “Shotspotter.” The company that created this device refers to it as a “gunshot detection system.”
The Shotspotter technology uses sound sensitive devices placed around the city to detect, record and alert to gunshot sounds. Shotspotter was created and is run by a company in California. The website is Shotspotter.com
Although Shotspotter is a fascinating technology, be careful before you depend on getting it in at trial. Conversely, don't let the DAs get it in without a fight if it hurts your case.
Shotspotter technology produces audiorecordings of the alleged shots, reports of the exact times of each shot, and maps that triangulate to within feet of where the shots were supposedly fired. In a recent case I tried (and lost) I obtained the records relating to gunshots fired in the area at the time of the shooting through use of a non-judicial subpoena duces tecum. (The company is not a governmental agency.) Subpoena service was accepted via internet, though the snafu that occurred initially should have sent off alarms (or shotspotter signals) in my head.
After initially being told service would be accepted, I forwarded a subpoena to the company. After months without response, but still months from trial, I contacted the company and was emailed the package, including the recording of the gunshots. The documents and files forwarded included a satellite type map with locations from which the shots were allegedly fired determined through triangulation (within feet), a recording of the gunshots, and the times of the shots. What was not included was sufficient certification for admissibility, or accurate information about who to contact to get the evidence in at trial.
Prior to trial the contact I had made at the company, Ric Smith, informed me that Shotspotter did not own the technology or maintain the reports for Rochester and could not lay a foundation for the admissibility of the recordings and reports at trial – the City of Rochester owned it and had the records. I’m still not clear on whether this was accurate for the time of the shooting in my case since we couldn’t ever get a straight answer. So we subpoenaed someone at the Office of Emergency Communications (as we were initially informed) who represented that he could lay the foundation, and had in the past. However, soon he developed amnesia, forgetting he had represented that and claiming he could not lay the foundation. And yes, the prosecution had been in touch with him before he was stricken with this unfortunate illness. No worries – we were told that members of Rochester Police Department could lay the foundation. Wrong again – as we were now in trial and contacting the city attorney’s office and RPD, we came up against one obstacle after another. Eventually RPD sent someone to respond to the subpoena with a single page less professional appearing report that was not the Shotspotter report we had – and reflected fewer shots!!!!
The prosecutors must have known our efforts would fail, as they represented the number of shots throughout trial as half that reflected by Shotspotter, apparently without fear that the documents would be admitted. (The number of shots might have established the difference between a shootout and what they described as an execution.)
My understanding of how the system presently works in Rochester (and this may differ from the past) is that the sounds activate a signal in California headquarters, and the information is relayed to RPD.
According to the website, “The instant a shot is fired, gunfire analysis experts at the SST Operations Center review and qualify all alerts Within seconds SST delivers those qualified alerts to dispatchers, PSAPs and mobile personnel, enhancing the accuracy and speed of response and increasing the usefulness of the system’s database of incidents for pattern analysis.”
What I was ultimately told after a lot of misdirection by RPD and non-responses from Shotspotter is that RPD does not own the technology, does not maintain the records, and cannot testify as to the accuracy of the information or technology. During my trial the representatives in California said RPD owned it and California cannot certify. And eventually they stopped communicating with me completely. But RPD remains firm that California owns it, and I now believe that is accurate since RPD does not, based on the representations of its own staff during my trial, have the personnel with sufficient technological skills or sophistication to run this program.
So if you have a case with Shotspotter in which you want the Shotspotter information in:
1. Contact Shotspotter in California and ask if they have the records;.
2. Find out who you must subpoena (see if they have a New York liaison);
3. Do the subpoena;
4. Do this all well in advance;
5. If you do not get a response to your subpoena for an individual to testify, consider retaining a witness from shotspotter (again, trying to use a New York representative).
6. Review other states' Frye cases to support your claim of admissibility. You’ll have to ask the company to supply a list of cases because a quick Westlaw search of “shotspotter /p daubert” and “shotspotter /p frye” failed to produce cases that addressed admissibility under Frye/Daubert. One document that was generated but was out of my plan was “Defendant’s Memorandum of Law in Support of Motion for Frye-Mack Hearing” in State of Minnesota v. Christopher James Hayes (District of Minnesota, April 4, 2011)
If you have been unable to get the records in, you might try having the officers testify to their review of the records and listening to the recording. (Yes – they get the records somehow. And they listen to the recordings.) But be aware, the same amnesia suffered by the OEC employee apparently spread to the officer on the stand, who did not recall the number of shots he heard on the audio recording, and couldn’t remember based on a review of his partner’s report.
More often, we're trying to keep the information out. If that's the case, consider whether Shotspotter information should be admitted at any hearing or trial you are handling. Challenge the admissibility of any Shotspotter information and request a Frye hearing. Watch the foundations - who are they bringing in, do they keep records, do they know how the technology works. According to the prosecutors in my case, they'd have to subpoena witnesses from the company in California to have the records, recordings, etc. admissible. Let’s see if that’s still the prosecutors’ position when they’re trying to offer the information. (And if it is not, please let me know!)
Whether or not you want to introduce evidence of Shotspotter activation, you will probably still want to get the records. According to Shotspotter website entry from May 1st, the Rochester Police Department integrates the surveillance cameras with Shotspotter monitoring. (Interesting, since they claim to have no control over the system…) The RPD representative stated, “Integrating the ShotSpotter system with the city's video surveillance camera has enabled them to become even more effective in their response and investigations, and increasing arrests and prosecutions for crimes involving gun violence and illegal use of guns. Immediately, when shots are fired, the camera systems start into play ... You can pick up the bad guys off the streets a lot faster because now you know exactly where you're going." - Julie Gulino, Rochester NY Police Department.
This quote can be found on the website at:
http://www.shotspotter.com/sentinel/article/rochester-ny-police-get-felony-arrest-within-first-48-hours-of-shots
So don't forget to also subpoena camera footage from the city (with a judicial subpoena duces tecum). This should be done as quickly as possible after entering the case - don't wait for responses from Shotspotter. You can determine whether city surveillance cameras were nearby by contacting Corporation Counsel's office. If they were, request that the RPD Corporation Counsel liaison preserve the footage, and get a quick subpoena out.
Second Assistant Monroe County Public Defender
The NSA is not the only organization that monitors the day to day activities of citizens. But you already knew that. One piece of technology that has sprouted up in our own backyard – the city of Rochester – in the last couple of years is called “Shotspotter.” The company that created this device refers to it as a “gunshot detection system.”
The Shotspotter technology uses sound sensitive devices placed around the city to detect, record and alert to gunshot sounds. Shotspotter was created and is run by a company in California. The website is Shotspotter.com
Although Shotspotter is a fascinating technology, be careful before you depend on getting it in at trial. Conversely, don't let the DAs get it in without a fight if it hurts your case.
Shotspotter technology produces audiorecordings of the alleged shots, reports of the exact times of each shot, and maps that triangulate to within feet of where the shots were supposedly fired. In a recent case I tried (and lost) I obtained the records relating to gunshots fired in the area at the time of the shooting through use of a non-judicial subpoena duces tecum. (The company is not a governmental agency.) Subpoena service was accepted via internet, though the snafu that occurred initially should have sent off alarms (or shotspotter signals) in my head.
After initially being told service would be accepted, I forwarded a subpoena to the company. After months without response, but still months from trial, I contacted the company and was emailed the package, including the recording of the gunshots. The documents and files forwarded included a satellite type map with locations from which the shots were allegedly fired determined through triangulation (within feet), a recording of the gunshots, and the times of the shots. What was not included was sufficient certification for admissibility, or accurate information about who to contact to get the evidence in at trial.
Prior to trial the contact I had made at the company, Ric Smith, informed me that Shotspotter did not own the technology or maintain the reports for Rochester and could not lay a foundation for the admissibility of the recordings and reports at trial – the City of Rochester owned it and had the records. I’m still not clear on whether this was accurate for the time of the shooting in my case since we couldn’t ever get a straight answer. So we subpoenaed someone at the Office of Emergency Communications (as we were initially informed) who represented that he could lay the foundation, and had in the past. However, soon he developed amnesia, forgetting he had represented that and claiming he could not lay the foundation. And yes, the prosecution had been in touch with him before he was stricken with this unfortunate illness. No worries – we were told that members of Rochester Police Department could lay the foundation. Wrong again – as we were now in trial and contacting the city attorney’s office and RPD, we came up against one obstacle after another. Eventually RPD sent someone to respond to the subpoena with a single page less professional appearing report that was not the Shotspotter report we had – and reflected fewer shots!!!!
The prosecutors must have known our efforts would fail, as they represented the number of shots throughout trial as half that reflected by Shotspotter, apparently without fear that the documents would be admitted. (The number of shots might have established the difference between a shootout and what they described as an execution.)
My understanding of how the system presently works in Rochester (and this may differ from the past) is that the sounds activate a signal in California headquarters, and the information is relayed to RPD.
According to the website, “The instant a shot is fired, gunfire analysis experts at the SST Operations Center review and qualify all alerts Within seconds SST delivers those qualified alerts to dispatchers, PSAPs and mobile personnel, enhancing the accuracy and speed of response and increasing the usefulness of the system’s database of incidents for pattern analysis.”
What I was ultimately told after a lot of misdirection by RPD and non-responses from Shotspotter is that RPD does not own the technology, does not maintain the records, and cannot testify as to the accuracy of the information or technology. During my trial the representatives in California said RPD owned it and California cannot certify. And eventually they stopped communicating with me completely. But RPD remains firm that California owns it, and I now believe that is accurate since RPD does not, based on the representations of its own staff during my trial, have the personnel with sufficient technological skills or sophistication to run this program.
So if you have a case with Shotspotter in which you want the Shotspotter information in:
1. Contact Shotspotter in California and ask if they have the records;.
2. Find out who you must subpoena (see if they have a New York liaison);
3. Do the subpoena;
4. Do this all well in advance;
5. If you do not get a response to your subpoena for an individual to testify, consider retaining a witness from shotspotter (again, trying to use a New York representative).
6. Review other states' Frye cases to support your claim of admissibility. You’ll have to ask the company to supply a list of cases because a quick Westlaw search of “shotspotter /p daubert” and “shotspotter /p frye” failed to produce cases that addressed admissibility under Frye/Daubert. One document that was generated but was out of my plan was “Defendant’s Memorandum of Law in Support of Motion for Frye-Mack Hearing” in State of Minnesota v. Christopher James Hayes (District of Minnesota, April 4, 2011)
If you have been unable to get the records in, you might try having the officers testify to their review of the records and listening to the recording. (Yes – they get the records somehow. And they listen to the recordings.) But be aware, the same amnesia suffered by the OEC employee apparently spread to the officer on the stand, who did not recall the number of shots he heard on the audio recording, and couldn’t remember based on a review of his partner’s report.
More often, we're trying to keep the information out. If that's the case, consider whether Shotspotter information should be admitted at any hearing or trial you are handling. Challenge the admissibility of any Shotspotter information and request a Frye hearing. Watch the foundations - who are they bringing in, do they keep records, do they know how the technology works. According to the prosecutors in my case, they'd have to subpoena witnesses from the company in California to have the records, recordings, etc. admissible. Let’s see if that’s still the prosecutors’ position when they’re trying to offer the information. (And if it is not, please let me know!)
Whether or not you want to introduce evidence of Shotspotter activation, you will probably still want to get the records. According to Shotspotter website entry from May 1st, the Rochester Police Department integrates the surveillance cameras with Shotspotter monitoring. (Interesting, since they claim to have no control over the system…) The RPD representative stated, “Integrating the ShotSpotter system with the city's video surveillance camera has enabled them to become even more effective in their response and investigations, and increasing arrests and prosecutions for crimes involving gun violence and illegal use of guns. Immediately, when shots are fired, the camera systems start into play ... You can pick up the bad guys off the streets a lot faster because now you know exactly where you're going." - Julie Gulino, Rochester NY Police Department.
This quote can be found on the website at:
http://www.shotspotter.com/sentinel/article/rochester-ny-police-get-felony-arrest-within-first-48-hours-of-shots
So don't forget to also subpoena camera footage from the city (with a judicial subpoena duces tecum). This should be done as quickly as possible after entering the case - don't wait for responses from Shotspotter. You can determine whether city surveillance cameras were nearby by contacting Corporation Counsel's office. If they were, request that the RPD Corporation Counsel liaison preserve the footage, and get a quick subpoena out.
Shotspotter - Now you see it, now you don't
By Jill Paperno
Second Assistant Monroe County Public Defender
The NSA is not the only organization that monitors the day to day activities of citizens. But you already knew that. One piece of technology that has sprouted up in our own backyard – the city of Rochester – in the last couple of years is called “Shotspotter.” The company that created this device refers to it as a “gunshot detection system.”
The Shotspotter technology uses sound sensitive devices placed around the city to detect, record and alert to gunshot sounds. Shotspotter was created and is run by a company in California. The website is Shotspotter.com
Although Shotspotter is a fascinating technology, be careful before you depend on getting it in at trial. Conversely, don't let the DAs get it in without a fight if it hurts your case.
Shotspotter technology produces audiorecordings of the alleged shots, reports of the exact times of each shot, and maps that triangulate to within feet of where the shots were supposedly fired. In a recent case I tried (and lost) I obtained the records relating to gunshots fired in the area at the time of the shooting through use of a non-judicial subpoena duces tecum. (The company is not a governmental agency.) Subpoena service was accepted via internet, though the snafu that occurred initially should have sent off alarms (or shotspotter signals) in my head.
After initially being told service would be accepted, I forwarded a subpoena to the company. After months without response, but still months from trial, I contacted the company and was emailed the package, including the recording of the gunshots. The documents and files forwarded included a satellite type map with locations from which the shots were allegedly fired determined through triangulation (within feet), a recording of the gunshots, and the times of the shots. What was not included was sufficient certification for admissibility, or accurate information about who to contact to get the evidence in at trial.
Prior to trial the contact I had made at the company, Ric Smith, informed me that Shotspotter did not own the technology or maintain the reports for Rochester and could not lay a foundation for the admissibility of the recordings and reports at trial – the City of Rochester owned it and had the records. I’m still not clear on whether this was accurate for the time of the shooting in my case since we couldn’t ever get a straight answer. So we subpoenaed someone at the Office of Emergency Communications (as we were initially informed) who represented that he could lay the foundation, and had in the past. However, soon he developed amnesia, forgetting he had represented that and claiming he could not lay the foundation. And yes, the prosecution had been in touch with him before he was stricken with this unfortunate illness. No worries – we were told that members of Rochester Police Department could lay the foundation. Wrong again – as we were now in trial and contacting the city attorney’s office and RPD, we came up against one obstacle after another. Eventually RPD sent someone to respond to the subpoena with a single page less professional appearing report that was not the Shotspotter report we had – and reflected fewer shots!!!!
The prosecutors must have known our efforts would fail, as they represented the number of shots throughout trial as half that reflected by Shotspotter, apparently without fear that the documents would be admitted. (The number of shots might have established the difference between a shootout and what they described as an execution.)
My understanding of how the system presently works in Rochester (and this may differ from the past) is that the sounds activate a signal in California headquarters, and the information is relayed to RPD.
According to the website, “The instant a shot is fired, gunfire analysis experts at the SST Operations Center review and qualify all alerts Within seconds SST delivers those qualified alerts to dispatchers, PSAPs and mobile personnel, enhancing the accuracy and speed of response and increasing the usefulness of the system’s database of incidents for pattern analysis.”
What I was ultimately told after a lot of misdirection by RPD and non-responses from Shotspotter is that RPD does not own the technology, does not maintain the records, and cannot testify as to the accuracy of the information or technology. During my trial the representatives in California said RPD owned it and California cannot certify. And eventually they stopped communicating with me completely. But RPD remains firm that California owns it, and I now believe that is accurate since RPD does not, based on the representations of its own staff during my trial, have the personnel with sufficient technological skills or sophistication to run this program.
So if you have a case with Shotspotter in which you want the Shotspotter information in:
1. Contact Shotspotter in California and ask if they have the records;.
2. Find out who you must subpoena (see if they have a New York liaison);
3. Do the subpoena;
4. Do this all well in advance;
5. If you do not get a response to your subpoena for an individual to testify, consider retaining a witness from shotspotter (again, trying to use a New York representative).
6. Review other states' Frye cases to support your claim of admissibility. You’ll have to ask the company to supply a list of cases because a quick Westlaw search of “shotspotter /p daubert” and “shotspotter /p frye” failed to produce cases that addressed admissibility under Frye/Daubert. One document that was generated but was out of my plan was “Defendant’s Memorandum of Law in Support of Motion for Frye-Mack Hearing” in State of Minnesota v. Christopher James Hayes (District of Minnesota, April 4, 2011)
If you have been unable to get the records in, you might try having the officers testify to their review of the records and listening to the recording. (Yes – they get the records somehow. And they listen to the recordings.) But be aware, the same amnesia suffered by the OEC employee apparently spread to the officer on the stand, who did not recall the number of shots he heard on the audio recording, and couldn’t remember based on a review of his partner’s report.
More often, we're trying to keep the information out. If that's the case, consider whether Shotspotter information should be admitted at any hearing or trial you are handling. Challenge the admissibility of any Shotspotter information and request a Frye hearing. Watch the foundations - who are they bringing in, do they keep records, do they know how the technology works. According to the prosecutors in my case, they'd have to subpoena witnesses from the company in California to have the records, recordings, etc. admissible. Let’s see if that’s still the prosecutors’ position when they’re trying to offer the information. (And if it is not, please let me know!)
Whether or not you want to introduce evidence of Shotspotter activation, you will probably still want to get the records. According to Shotspotter website entry from May 1st, the Rochester Police Department integrates the surveillance cameras with Shotspotter monitoring. (Interesting, since they claim to have no control over the system…) The RPD representative stated, “Integrating the ShotSpotter system with the city's video surveillance camera has enabled them to become even more effective in their response and investigations, and increasing arrests and prosecutions for crimes involving gun violence and illegal use of guns. Immediately, when shots are fired, the camera systems start into play ... You can pick up the bad guys off the streets a lot faster because now you know exactly where you're going." - Julie Gulino, Rochester NY Police Department.
This quote can be found on the website at:
http://www.shotspotter.com/sentinel/article/rochester-ny-police-get-felony-arrest-within-first-48-hours-of-shots
So don't forget to also subpoena camera footage from the city (with a judicial subpoena duces tecum). This should be done as quickly as possible after entering the case - don't wait for responses from Shotspotter. You can determine whether city surveillance cameras were nearby by contacting Corporation Counsel's office. If they were, request that the RPD Corporation Counsel liaison preserve the footage, and get a quick subpoena out.
Second Assistant Monroe County Public Defender
The NSA is not the only organization that monitors the day to day activities of citizens. But you already knew that. One piece of technology that has sprouted up in our own backyard – the city of Rochester – in the last couple of years is called “Shotspotter.” The company that created this device refers to it as a “gunshot detection system.”
The Shotspotter technology uses sound sensitive devices placed around the city to detect, record and alert to gunshot sounds. Shotspotter was created and is run by a company in California. The website is Shotspotter.com
Although Shotspotter is a fascinating technology, be careful before you depend on getting it in at trial. Conversely, don't let the DAs get it in without a fight if it hurts your case.
Shotspotter technology produces audiorecordings of the alleged shots, reports of the exact times of each shot, and maps that triangulate to within feet of where the shots were supposedly fired. In a recent case I tried (and lost) I obtained the records relating to gunshots fired in the area at the time of the shooting through use of a non-judicial subpoena duces tecum. (The company is not a governmental agency.) Subpoena service was accepted via internet, though the snafu that occurred initially should have sent off alarms (or shotspotter signals) in my head.
After initially being told service would be accepted, I forwarded a subpoena to the company. After months without response, but still months from trial, I contacted the company and was emailed the package, including the recording of the gunshots. The documents and files forwarded included a satellite type map with locations from which the shots were allegedly fired determined through triangulation (within feet), a recording of the gunshots, and the times of the shots. What was not included was sufficient certification for admissibility, or accurate information about who to contact to get the evidence in at trial.
Prior to trial the contact I had made at the company, Ric Smith, informed me that Shotspotter did not own the technology or maintain the reports for Rochester and could not lay a foundation for the admissibility of the recordings and reports at trial – the City of Rochester owned it and had the records. I’m still not clear on whether this was accurate for the time of the shooting in my case since we couldn’t ever get a straight answer. So we subpoenaed someone at the Office of Emergency Communications (as we were initially informed) who represented that he could lay the foundation, and had in the past. However, soon he developed amnesia, forgetting he had represented that and claiming he could not lay the foundation. And yes, the prosecution had been in touch with him before he was stricken with this unfortunate illness. No worries – we were told that members of Rochester Police Department could lay the foundation. Wrong again – as we were now in trial and contacting the city attorney’s office and RPD, we came up against one obstacle after another. Eventually RPD sent someone to respond to the subpoena with a single page less professional appearing report that was not the Shotspotter report we had – and reflected fewer shots!!!!
The prosecutors must have known our efforts would fail, as they represented the number of shots throughout trial as half that reflected by Shotspotter, apparently without fear that the documents would be admitted. (The number of shots might have established the difference between a shootout and what they described as an execution.)
My understanding of how the system presently works in Rochester (and this may differ from the past) is that the sounds activate a signal in California headquarters, and the information is relayed to RPD.
According to the website, “The instant a shot is fired, gunfire analysis experts at the SST Operations Center review and qualify all alerts Within seconds SST delivers those qualified alerts to dispatchers, PSAPs and mobile personnel, enhancing the accuracy and speed of response and increasing the usefulness of the system’s database of incidents for pattern analysis.”
What I was ultimately told after a lot of misdirection by RPD and non-responses from Shotspotter is that RPD does not own the technology, does not maintain the records, and cannot testify as to the accuracy of the information or technology. During my trial the representatives in California said RPD owned it and California cannot certify. And eventually they stopped communicating with me completely. But RPD remains firm that California owns it, and I now believe that is accurate since RPD does not, based on the representations of its own staff during my trial, have the personnel with sufficient technological skills or sophistication to run this program.
So if you have a case with Shotspotter in which you want the Shotspotter information in:
1. Contact Shotspotter in California and ask if they have the records;.
2. Find out who you must subpoena (see if they have a New York liaison);
3. Do the subpoena;
4. Do this all well in advance;
5. If you do not get a response to your subpoena for an individual to testify, consider retaining a witness from shotspotter (again, trying to use a New York representative).
6. Review other states' Frye cases to support your claim of admissibility. You’ll have to ask the company to supply a list of cases because a quick Westlaw search of “shotspotter /p daubert” and “shotspotter /p frye” failed to produce cases that addressed admissibility under Frye/Daubert. One document that was generated but was out of my plan was “Defendant’s Memorandum of Law in Support of Motion for Frye-Mack Hearing” in State of Minnesota v. Christopher James Hayes (District of Minnesota, April 4, 2011)
If you have been unable to get the records in, you might try having the officers testify to their review of the records and listening to the recording. (Yes – they get the records somehow. And they listen to the recordings.) But be aware, the same amnesia suffered by the OEC employee apparently spread to the officer on the stand, who did not recall the number of shots he heard on the audio recording, and couldn’t remember based on a review of his partner’s report.
More often, we're trying to keep the information out. If that's the case, consider whether Shotspotter information should be admitted at any hearing or trial you are handling. Challenge the admissibility of any Shotspotter information and request a Frye hearing. Watch the foundations - who are they bringing in, do they keep records, do they know how the technology works. According to the prosecutors in my case, they'd have to subpoena witnesses from the company in California to have the records, recordings, etc. admissible. Let’s see if that’s still the prosecutors’ position when they’re trying to offer the information. (And if it is not, please let me know!)
Whether or not you want to introduce evidence of Shotspotter activation, you will probably still want to get the records. According to Shotspotter website entry from May 1st, the Rochester Police Department integrates the surveillance cameras with Shotspotter monitoring. (Interesting, since they claim to have no control over the system…) The RPD representative stated, “Integrating the ShotSpotter system with the city's video surveillance camera has enabled them to become even more effective in their response and investigations, and increasing arrests and prosecutions for crimes involving gun violence and illegal use of guns. Immediately, when shots are fired, the camera systems start into play ... You can pick up the bad guys off the streets a lot faster because now you know exactly where you're going." - Julie Gulino, Rochester NY Police Department.
This quote can be found on the website at:
http://www.shotspotter.com/sentinel/article/rochester-ny-police-get-felony-arrest-within-first-48-hours-of-shots
So don't forget to also subpoena camera footage from the city (with a judicial subpoena duces tecum). This should be done as quickly as possible after entering the case - don't wait for responses from Shotspotter. You can determine whether city surveillance cameras were nearby by contacting Corporation Counsel's office. If they were, request that the RPD Corporation Counsel liaison preserve the footage, and get a quick subpoena out.
Tuesday, February 26, 2013
Prosecutorial Misconduct: Naming Names (Again)
As readers of this blog know, I have long and repeatedly advocated that an effective means for reducing the incidence of prosecutorial misconduct, without having to reverse the conviction -- which appellate courts are understandably reluctant to do where there is strong evidence of guilt but improper conduct by the prosecutor -- is to name the prosecutor in its decision condemning the misconduct, but affirming the conviction (see and see). Yet, with exceptions, appellate courts still appear reluctant to do so. For example, this week, in a statement regarding the denial of certiorari in Calhoun v United States (568 US __ [2/25/13]), Justices Sotomayor and Breyer condemned the racial argument of the Assistant United States Attorney, but did not name the attorney:
It is deeply disappointing to see a representative of theUnited States resort to this base tactic more than a decade into the 21st century. Such conduct diminishes the dignity of our criminal justice system and undermines respect for the rule of law. We expect the Government to seek justice, not to fan the flames of fear and prejudice. In discharging the duties of his office in this case, the Assistant United States Attorney for the Western District of Texas missed the mark.
I call your attention to two excellent posts (here and here) regarding the Court's failure to name the offending prosecutor and which rectify this failure by naming him (Samuel L. Ponder).
It is deeply disappointing to see a representative of theUnited States resort to this base tactic more than a decade into the 21st century. Such conduct diminishes the dignity of our criminal justice system and undermines respect for the rule of law. We expect the Government to seek justice, not to fan the flames of fear and prejudice. In discharging the duties of his office in this case, the Assistant United States Attorney for the Western District of Texas missed the mark.
I call your attention to two excellent posts (here and here) regarding the Court's failure to name the offending prosecutor and which rectify this failure by naming him (Samuel L. Ponder).
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