WEBVTT 2 00:00:05.367 --> 00:00:24.788 Counsel. (Appearances tendered.) CHIEF JUSTICE RABNER: 3 00:00:24.788 --> 00:00:34.357 Good morning, Counsel, and welcome. Mr. Schultz. BENJAMIN M. SHULTZ: Thank 4 00:00:34.357 --> 00:00:38.412 you, Your Honor. I'd like to reserve five minutes for rebuttal. CHIEF 5 00:00:38.412 --> 00:00:43.134 JUSTICE RABNER: Perhaps a little less but we'll gladly have you back. BENJAMIN 6 00:00:43.134 --> 00:00:47.072 M. SHULTZ: Two minutes. The Appellate Division in this case committed four 7 00:00:47.072 --> 00:00:54.474 errs that require reversal. First and most sickle, despite over a century of courts 8 00:00:54.474 --> 00:00:57.069 recognizing that fingerprint evidencion reliable and appropriate to go before 9 00:00:57.069 --> 00:01:03.777 the factfinder, the Appellate Division found reverable err in the trial court's 10 00:01:03.777 --> 00:01:09.056 decision to not hold a hear he go on fingerprint evidence, the a a hearing 11 00:01:09.056 --> 00:01:12.775 that the defendant himself in this case did not request. That err makes month 12 00:01:12.775 --> 00:01:17.034 sense respectfully and we think it make no sense because, first of all the evidence 13 00:01:17.034 --> 00:01:23.857 that was before the trial court was that courts have analyzed this appropriated 14 00:01:23.857 --> 00:01:26.035 and found fingerprinted evidence reliable and then the contrary evidence that 15 00:01:26.035 --> 00:01:31.306 the defendant present was the P cast and the NAS records and those reports 16 00:01:31.306 --> 00:01:35.826 if anything under scored the not reliable of fingerprinted evidence. Indeed the 17 00:01:35.826 --> 00:01:40.213 P cast report studied estimated that this was between ninety 5 percent and ninety 18 00:01:40.213 --> 00:01:47.029 9 percent or even over ninety 9 percent accurate rates that this court and 19 00:01:47.029 --> 00:01:50.442 Olenowski found were highly accurate rates. The Appellate Division further 20 00:01:50.442 --> 00:01:57.258 erred in its analysis of voir dire in concluding that the trial court abused its 21 00:01:57.258 --> 00:02:00.128 discretion in declining to ask questions about jurors used auto fingerprint 22 00:02:00.128 --> 00:02:03.226 evidence and that was err in light of this Court's designs that when something 23 00:02:03.226 --> 00:02:07.478 is the subject of the jury's charge it is rarely an appropriate subject of 24 00:02:07.478 --> 00:02:12.812 voir dire and the fear is that asking such questions may unintentionally prime jurors 25 00:02:12.812 --> 00:02:16.595 and encourage them to focus on particular types of to have had the exclusion 26 00:02:16.595 --> 00:02:23.858 of others or unnecessarily incept? Jurors that certain everted is or Cynthia 27 00:02:23.858 --> 00:02:28.619 reliable on the with the Court's instructions I went there are what cover 28 00:02:28.619 --> 00:02:36.375 that and. And instead relying on its instruction about expert testimony. Third, 29 00:02:36.375 --> 00:02:41.952 the Appellate Division erred in finding error that was not even obtained to 30 00:02:41.952 --> 00:02:46.585 at trial about narration testimony. Here the video narration testimony was 31 00:02:46.585 --> 00:02:53.669 about the kinds of things that this Court itself recognized in state versus Watson 32 00:02:53.669 --> 00:02:56.182 were acceptable, for example, my testimony about undisputed facts or facts at 33 00:02:56.182 --> 00:03:01.479 least that the the parties we aren't disputing which hear it was the same person 34 00:03:01.479 --> 00:03:05.550 who had committed robbery on the 28th and the 30th. If if you look at defense 35 00:03:05.550 --> 00:03:10.462 counsel's argument in this case, defense counsel was never disputed that it 36 00:03:10.462 --> 00:03:14.250 was the same individuality who had admitted both robberies rose. It was only that 37 00:03:14.250 --> 00:03:17.643 this defendant was not the individual on the tape. Finally the Appellate Division 38 00:03:17.643 --> 00:03:26.863 erred in finding that there was anker linger error that was not subject to 39 00:03:26.863 --> 00:03:32.663 harmonious err review and this court's confirmed that review. I'd be happy 40 00:03:32.663 --> 00:03:37.837 had to take questions on I of these issues. But I'll go straight to the the 41 00:03:37.837 --> 00:03:40.024 fingerprint evidence which is probably the most significant in this case. CHIEF 42 00:03:40.024 --> 00:03:43.646 JUSTICE RABNER: Why don't you started toot NAS and the the P cast reports. They 43 00:03:43.646 --> 00:03:50.455 raise various concerns on the reliable of this evidence, the validated of the evidence. 44 00:03:50.455 --> 00:03:55.605 Why isn't that a basis or a one zero four hearing. BENJAMIN M. SHULTZ: 45 00:03:55.605 --> 00:03:59.880 Respectfully I think if you look at the two reportings the two reports are 46 00:03:59.880 --> 00:04:04.408 different. First if you look at the P cast report which was the most recent of the 47 00:04:04.408 --> 00:04:09.321 two that was from 2016 within the P cast report is that a number of key conclusions. 48 00:04:09.321 --> 00:04:14.705 Once that this has foundational evaluated. Another is that it cite to two 49 00:04:14.705 --> 00:04:19.427 studies that tried to estimate error rates and one in three hundred and yada 50 00:04:19.427 --> 00:04:24.955 for a false positive meaning over ninety 9 percent reliable or the other study 51 00:04:24.955 --> 00:04:30.880 said their best of he has was about one in twenty one or over ninety 5 percent 52 00:04:30.880 --> 00:04:40.139 reliability. The P cast report quadrant fides these thins found scientific reliability 53 00:04:40.139 --> 00:04:47.889 and. The NAS report also tended if anything to establish the reliability of 54 00:04:47.889 --> 00:04:54.590 this technique and in particular the NAS report at a minimum said that it found 55 00:04:54.590 --> 00:04:57.745 scientific validated for the idea that these fingerprints don't change over a 56 00:04:57.745 --> 00:05:08.222 person's lifetime and I think so this is at page one four three to one four foursome 57 00:05:08.222 --> 00:05:11.917 scientific evidence supports the its assumption that friction ridge panthersr 58 00:05:11.917 --> 00:05:15.875 partners on his nearby to each person. So tends to supported that this is 59 00:05:15.875 --> 00:05:22.330 a reliable technique is and then to the extent that the it had ogrisms of 60 00:05:22.330 --> 00:05:24.288 fingerprint testimony it was things that that that the started doesn't dispute didn't 61 00:05:24.288 --> 00:05:27.914 happen that there are subjective elements here and we haven't said that this 62 00:05:27.914 --> 00:05:32.570 is a 100 percent objective method but the fact that there is some subjectivity 63 00:05:32.570 --> 00:05:38.645 in the technique doesn't render it inadmissible and pooh that is what this 64 00:05:38.645 --> 00:05:42.701 Court recognized in Olenowski when even though there was some subjectivity in the 65 00:05:42.701 --> 00:05:46.238 technique. JUSTICE WAINER-APTER: What do we make on the of the specific 66 00:05:46.238 --> 00:05:55.800 quote if the NAS report that ace five, the ace VE provides a brawled stated 67 00:05:55.800 --> 00:06:11.481 framework for festivity the P Par reading (reading. For the O for these reasons 68 00:06:11.481 --> 00:06:16.969 merely following the steps of ACEV five does not comply. Q Oning is 69 00:06:16.969 --> 00:06:22.123 proceeding in a scientific manner or producing reliable results? BENJAMIN M. 70 00:06:22.123 --> 00:06:25.548 SHULTZ: I have three points on that. Philosophical, the state has never 71 00:06:25.548 --> 00:06:31.016 disputed that merely following the technique of ace five necessarily means that the 72 00:06:31.016 --> 00:06:35.102 person who is testifying is qualified as an expert. A separate part of the 73 00:06:35.102 --> 00:06:39.822 inquiry and any question of admissibility is whether the particular expert 74 00:06:39.822 --> 00:06:42.864 who is testifying is qualified to plaintiff perform the analysis. In this 75 00:06:42.864 --> 00:06:46.738 particular case, there was no objection from the defendant after a voir dire of the 76 00:06:46.738 --> 00:06:51.039 expert's qualifications that this expert was qualified. We would certainly 77 00:06:51.039 --> 00:06:55.226 recognize that in a case where an unqualified person claimed phone number 78 00:06:55.226 --> 00:06:59.736 following the steps of his ace five, that situation you you might not have 79 00:06:59.736 --> 00:07:04.039 admissible testimony and really all that we think the NAS report is saying there 80 00:07:04.039 --> 00:07:08.455 is that if you have arch unqualified expert that person might get if wrong. 81 00:07:08.455 --> 00:07:10.910 CHIEF JUSTICE RABNER: Is there a standardized training program for these 82 00:07:10.910 --> 00:07:16.241 witnesses? BENJAMIN M. SHULTZ: I'm not sure that there is one standardized 83 00:07:16.241 --> 00:07:26.287 training program across all places that use ACEE. Certainly. CHIEF JUSTICE 84 00:07:26.287 --> 00:07:31.247 RABNER: Is there a standardized protocol to be followed in making a comparison. 85 00:07:31.247 --> 00:07:37.002 BENJAMIN M. SHULTZ: My understanding is that there is -- the different 86 00:07:37.002 --> 00:07:39.928 experts will have different views owe how many points of comparison are needed. 87 00:07:39.928 --> 00:07:44.048 So there isn't, for example, a standard that says you need to have at least 88 00:07:44.048 --> 00:07:54.078 ten points of comparison on a print to make identitiion. CHIEF JUSTICE RABNER: 89 00:07:54.078 --> 00:07:57.395 Is there a minimum number of corresponding points been about an my understanding 90 00:07:57.395 --> 00:08:01.023 from the testimony is that there's some disagreement whether you need ten or 91 00:08:01.023 --> 00:08:05.963 twelve and I think certainly it would be fair share in a cross-examination to ask 92 00:08:05.963 --> 00:08:10.678 an expert how many points of comparison did you have. You know, was it ten, 93 00:08:10.678 --> 00:08:15.835 was it eight in this particular case we had well, well more of that. There 94 00:08:15.835 --> 00:08:18.909 were five different. CHIEF JUSTICE RABNER: Particular cross-examination 95 00:08:18.909 --> 00:08:23.944 corrosion, is there a minimum number that is a required before an expert can 96 00:08:23.944 --> 00:08:28.007 take the stand and testify about the prints matching. BENJAMIN M. SHULTZ: 97 00:08:28.007 --> 00:08:32.395 Your Honor, I'm not aware of any minimum number that is you're certainly agreed 98 00:08:32.395 --> 00:08:36.676 on as saying you need to have at least this many points of comparison and we've 99 00:08:36.676 --> 00:08:41.522 acknowledged that there are elements of subjectivity in this technique and the expert 100 00:08:41.522 --> 00:08:44.780 himself testified in this case that there were elements of subjectivity in 101 00:08:44.780 --> 00:08:49.635 the technique. But that doesn't mean that this evidence is so unreliable that 102 00:08:49.635 --> 00:08:53.253 it could go before the faxed finder. So if there is a dispute if the community 103 00:08:53.253 --> 00:08:57.756 about whether you need eight points or ten points of the comparison that surely 104 00:08:57.756 --> 00:09:01.608 doesn't mean that this evidence is inadmissible with four the expert says 105 00:09:01.608 --> 00:09:04.854 there is eighteen or twenty two. CHIEF JUSTICE RABNER: So the question 106 00:09:04.854 --> 00:09:08.980 before us today is whether there should understands arule one owe four hearing 107 00:09:08.980 --> 00:09:12.725 not whether the evidence should be excluded is that fair been about antic Your 108 00:09:12.725 --> 00:09:16.694 Honor is right. I will pointed out the question of whether there should have 109 00:09:16.694 --> 00:09:22.948 been a rule one owe four hearing is fist and foremost the trial court presented 110 00:09:22.948 --> 00:09:27.173 on the record in this case abused its discretion discretion in declining to 111 00:09:27.173 --> 00:09:30.525 hold a further hearing and here where all that you had from the the defendant 112 00:09:30.525 --> 00:09:35.710 was of the introduction the P cast and the NAS report. What we don't have 113 00:09:35.710 --> 00:09:40.228 the defendant saying you need to hold a hearing about the. JUSTICE WAINER-APTER: 114 00:09:40.228 --> 00:09:43.977 Or anything right, the defendant here so there's the commented from the state 115 00:09:43.977 --> 00:09:49.058 parties did ahave an opportunity to conference this prior to coming out today 116 00:09:49.058 --> 00:09:52.572 and going Ott record and counsel for Mr. Lee and myself we were both 90th position 117 00:09:52.572 --> 00:09:56.888 that this matter considering the nature of this ask this it its obsess Gladys 118 00:09:56.888 --> 00:09:59.826 many times before and what the parties intended to argue there is no 119 00:09:59.826 --> 00:10:04.543 requirement for a if you if you full one zero four hearing or any testimony from 120 00:10:04.543 --> 00:10:10.601 anyone. So image wanted wanted to amplifier the record with that fact should 121 00:10:10.601 --> 00:10:16.313 someone is. And then the Court says image did want to confirm that with counsels 122 00:10:16.313 --> 00:10:24.342 for Mr. Lee. And then counsel for Mr. Lee says absolutely nothing does not say 123 00:10:24.342 --> 00:10:28.104 I disagree we do with want a hearing here's all the the people that we want 124 00:10:28.104 --> 00:10:31.657 to the call at the hearing or one of the people we wanted to at all tea hearing 125 00:10:31.657 --> 00:10:36.270 or anything else. So after anything would this be vied error that it's 126 00:10:36.270 --> 00:10:39.601 specifically on the record, both in the party agree no need for a hearing and then 127 00:10:39.601 --> 00:10:42.722 defense counsel does not say anything? BENJAMIN M. SHULTZ: I think the 128 00:10:42.722 --> 00:10:47.560 Court could go in in vied error. At the very at least we think it was of his 129 00:10:47.560 --> 00:10:50.753 an Bruce he find out discretion and I think there's a reason why you didn't 130 00:10:50.753 --> 00:10:54.260 hear the defendant asking for, for example, or a hearing about what the standard 131 00:10:54.260 --> 00:10:58.096 should be for how many points of comparison whether you should have a minimum 132 00:10:58.096 --> 00:11:09.744 of eight or ten because in this case you had well, well more of that and. 133 00:11:09.744 --> 00:11:13.822 JUSTICE PATTERSON: Leaving aside the specific change here, the defendant saying 134 00:11:13.822 --> 00:11:22.760 no hearing is required, post Olenowski when there is a challenge to a category 135 00:11:22.760 --> 00:11:28.129 of expert evidence under seven zero two and an issue is fully joined is between 136 00:11:28.129 --> 00:11:34.804 the parties, the defendant typically might challenge the state's evidence, the 137 00:11:34.804 --> 00:11:42.632 State is opposing a motion to bar that evidence, should in court generally be 138 00:11:42.632 --> 00:11:49.179 holding hearings on evidence that has not been previously tested in a one zero 139 00:11:49.179 --> 00:11:54.438 four hearing. BENJAMIN M. SHULTZ: I want to be very precise in my Arkansas 140 00:11:54.438 --> 00:11:58.781 because inning the way that. A No, frames is is when you have evidence that 141 00:11:58.781 --> 00:12:04.525 has previously been accepted as reliable including under the fry standard this court 142 00:12:04.525 --> 00:12:08.994 used before Olenowski, then that evidence is at least were you familiar withly admissible 143 00:12:08.994 --> 00:12:12.831 and there is no need for of a hearing unless the defendant makes some further showing 144 00:12:12.831 --> 00:12:17.093 sop so we think at least in situations where U evidence that has previously been understood 145 00:12:17.093 --> 00:12:22.519 as reliable there is some burden on the defendant to show some material change in the 146 00:12:22.519 --> 00:12:25.019 scientific understanding. JUSTICE PATTERSON: That's why I'm sorry that's 147 00:12:25.019 --> 00:12:31.829 why I was limiting the 76 to situations where there truly is the issue is fully 148 00:12:31.829 --> 00:12:37.557 disputed by the two parties. Just thinking of this case going forward, Olenowski 149 00:12:37.557 --> 00:12:45.269 is quite new, it's a new process for the Daubert factors to be relevant in 150 00:12:45.269 --> 00:12:51.429 New Jersey in criminal cases. Should not there be evidentiary hearings on cases 151 00:12:51.429 --> 00:12:56.214 in which there truly is a dispute there's she had to go perhaps on both sides for 152 00:12:56.214 --> 00:13:01.667 courts to actually evaluate the credibility of testifying experts? BENJAMIN 153 00:13:01.667 --> 00:13:05.955 M. SHULTZ: I think if Your Honor is asking about new forensic techniques that 154 00:13:05.955 --> 00:13:10.605 haven't been ruled upon I think Olenowski does recognize that if you have a new technique 155 00:13:10.605 --> 00:13:13.711 and there go a disputes about it and both sides have presentation evidence 156 00:13:13.711 --> 00:13:17.827 and that evidence is in conflict that it mightily well maintenance to to have 157 00:13:17.827 --> 00:13:22.370 a one owe four hearing. JUSTICE PATTERSON: What about an old technique 158 00:13:22.370 --> 00:13:26.492 challenging by a defendant on the basis of potentially new technology leaving 159 00:13:26.492 --> 00:13:31.761 aside the situation here which you've identified with respect to what was 160 00:13:31.761 --> 00:13:37.792 represented to the Court as an agreement. But when there is a genuine challenge 161 00:13:37.792 --> 00:13:43.086 with a showing by the defendant that there may be new evidence indicating a 162 00:13:43.086 --> 00:13:53.762 lack of reliability and it hasn't been tested before in New Jersey should there 163 00:13:53.762 --> 00:13:56.492 be in most cases a hearing. BENJAMIN M. SHULTZ: He think in situations 164 00:13:56.492 --> 00:14:02.184 where testimony might be relevant, for example, if you had completing experts and 165 00:14:02.184 --> 00:14:07.729 they're both offering relevant test and L testimony and there's genuine facts 166 00:14:07.729 --> 00:14:12.101 in dispute a hearing might makes sense. That said if a defendant is just making 167 00:14:12.101 --> 00:14:17.294 arguments based on, hey, I got some studies and the Court says if we had a 168 00:14:17.294 --> 00:14:20.707 hearing would you infusion any evidence and the defendant says no, I think in that 169 00:14:20.707 --> 00:14:25.759 circumstances at a minimum the fact that this happens tock a new technique wouldn't 170 00:14:25.759 --> 00:14:30.400 mean that I had trial court abuses its discretion it if lines to hold a hearing 171 00:14:30.400 --> 00:14:33.979 negotiations scenario. You would have one zero four hearing aids because the 172 00:14:33.979 --> 00:14:39.565 inquiry would 74 resolve. JUSTICE PIERRE-LOUIS: So I want to go back to 173 00:14:39.565 --> 00:14:44.593 Justice Wainer-Apter's questions and forgive my voice. She asked you a question 174 00:14:44.593 --> 00:14:49.652 with regard to the NAS report and read a portion of that report that challenged 175 00:14:49.652 --> 00:14:55.799 that questioned the reliable of the ace V technique and the again the question 176 00:14:55.799 --> 00:15:03.299 here is a hearing should have been held and I think you said you had several 177 00:15:03.299 --> 00:15:08.218 responses to that portion that Justice Wainer-Apter read. So I would liked to 178 00:15:08.218 --> 00:15:15.008 hear the rest of the your responses because I would like to understand why at least 179 00:15:15.008 --> 00:15:20.035 what the NAS report has presented in challenging the framework is this 180 00:15:20.035 --> 00:15:24.856 framework is not specific enough to qualify as an validated in the middle of 181 00:15:24.856 --> 00:15:28.937 the to this type of analysis why wasn't that enough to challenge the reliability 182 00:15:28.937 --> 00:15:32.580 sufficient to get to a hearing? BENJAMIN M. SHULTZ: , 1918, restroom hat 183 00:15:32.580 --> 00:15:40.173 the NAS ro report was that from 2019 2009. And the at it P cast report which 184 00:15:40.173 --> 00:15:44.594 wasn't from 2016. That's important because what the NAS report was talking 185 00:15:44.594 --> 00:15:50.061 about was how it had it actually cited a study in in turn said from the office 186 00:15:50.061 --> 00:15:55.206 was that study we ever reviewed the evidence and as of the time of that study we 187 00:15:55.206 --> 00:15:59.618 didn't find evidence much a particular type. Well, that study was at a particular 188 00:15:59.618 --> 00:16:04.349 point in time. It was before 2009. Since then more scientific research has 189 00:16:04.349 --> 00:16:08.862 been done and indeed the NAS report even said that recently and this is page 190 00:16:08.862 --> 00:16:13.667 one four four of the NAS report. Recently research has begun to build some of that 191 00:16:13.667 --> 00:16:18.283 basis. So even in 2009 the nah AS report was recognizing that more research 192 00:16:18.283 --> 00:16:22.966 was being done it recognized that it that research was started is to bidding 193 00:16:22.966 --> 00:16:26.984 even more scientific foundation. Then when you get on the the 2016 P cast 194 00:16:26.984 --> 00:16:32.291 reports you have even more evidence establishing to the the scientific validated 195 00:16:32.291 --> 00:16:36.196 through those two blacks box studies that estimated the false positive rate 196 00:16:36.196 --> 00:16:42.655 at either one in twenty one or one in three eighteen which are exception Al 197 00:16:42.655 --> 00:16:45.649 accurate and certainly well above the level that would show that this is at 198 00:16:45.649 --> 00:16:48.620 least the kind of evidence that goes before the the fact fired up. Now we're not 199 00:16:48.620 --> 00:16:54.349 staying that this evidence that this technique is a hundred percent in 200 00:16:54.349 --> 00:16:57.738 fallible and indeed at expert in this case even testified that there are subjective 201 00:16:57.738 --> 00:17:03.464 elementses recognized in his testimony that fingerprint experts are giving their 202 00:17:03.464 --> 00:17:09.198 opinion he recognized that mistakes can happen and defense counsel cross-examined 203 00:17:09.198 --> 00:17:14.318 about a high pro-life could I say where there was a mistake. But it's important 204 00:17:14.318 --> 00:17:18.577 to remember that the question here is is this something that's reliable enough 205 00:17:18.577 --> 00:17:22.862 to go before the factfinder insurrections there's very fine briefing on both 206 00:17:22.862 --> 00:17:28.518 sides which emphasis to today's characterization. Have they ever been Tessed 207 00:17:28.518 --> 00:17:32.668 in a New Jersey court? BENJAMIN M. SHULTZ: So I think. CHIEF JUSTICE 208 00:17:32.668 --> 00:17:36.859 RABNER: Trial judge here said it's been admitted for a century so that's 209 00:17:36.859 --> 00:17:43.345 essentially the rationale. Has there been a thoughtful studied of these various 210 00:17:43.345 --> 00:17:46.562 points been if you're. BENJAMIN M. SHULTZ: If urge asking is it any 211 00:17:46.562 --> 00:17:49.957 New Jersey Court the answer is, yes. One of the things we cite gnat Appellate Division 212 00:17:49.957 --> 00:17:57.138 and you can find this this is an unpublished -- state versusn money he will. 213 00:17:57.138 --> 00:18:03.789 2021. PA twenty three to fifty six. There was an unpublished Appellate Division 214 00:18:03.789 --> 00:18:09.726 decision where the trial court held a fry hearing on fingerprint Ed under the 215 00:18:09.726 --> 00:18:13.338 then applicable fry standard admitted testimony and the Appellate Division 216 00:18:13.338 --> 00:18:17.533 sustained that had and this is 2021 so this is after the NAS. CHIEF JUSTICE 217 00:18:17.533 --> 00:18:21.932 RABNER: What was nine extent? . We don't rely on unpurpled decisions of course 218 00:18:21.932 --> 00:18:25.460 what was watt extent of the hearing negotiates case been about an I'd have 219 00:18:25.460 --> 00:18:28.853 on approximate look at the full extent of the hearing. I think the way the Appellate 220 00:18:28.853 --> 00:18:33.913 Division described it was that there was ace citation of the P cast and the 221 00:18:33.913 --> 00:18:40.152 NAS reports. I'm not sure that in that case there was evidence presented. 222 00:18:40.152 --> 00:18:43.488 I'd have to go back. CHIEF JUSTICE RABNER: No testimony? BENJAMIN M. 223 00:18:43.488 --> 00:18:46.084 SHULTZ: I'd -- I don't recall my policy whether there was testimony in that 224 00:18:46.084 --> 00:18:49.373 case. CHIEF JUSTICE RABNER: So are we talking about essentially what happened 225 00:18:49.373 --> 00:18:52.995 here you had a lawyer stand um in this case and while stopping short of asking 226 00:18:52.995 --> 00:18:57.472 for a hearing went through multiple pages of transcripts laying out problems 227 00:18:57.472 --> 00:19:02.728 that were identified by the NAS and the P cast reports and then a ruling by the 228 00:19:02.728 --> 00:19:06.460 Court is that essentially what happened in the case you're referring to been 229 00:19:06.460 --> 00:19:11.855 a been I'd have to go back and check. We would only have what the Appellate 230 00:19:11.855 --> 00:19:17.908 Division said. I haven't gone back and looked at the actual transcripts in 231 00:19:17.908 --> 00:19:22.409 that case. But I can tell you is even I assume for the moment that no New Jersey 232 00:19:22.409 --> 00:19:26.582 Court had done the kind of extensive hearing that you only says played. 233 00:19:26.582 --> 00:19:29.887 JUSTICE PIERRE-LOUIS: Is the case you're rest of the the only one that you can cite 234 00:19:29.887 --> 00:19:34.721 to? BENJAMIN M. SHULTZ: The only one where there was a fry hearing. That 235 00:19:34.721 --> 00:19:40.860 is the one one that I am aware of. Obviously a lot of these would not yield 236 00:19:40.860 --> 00:19:43.674 even reportable Appellate Division decisions. Certainly there are 237 00:19:43.674 --> 00:19:46.862 circumstancessings in which trial courts have these and hearings it's a any transcripts 238 00:19:46.862 --> 00:19:50.391 but those transcripts are, you know, hard to get. I will say that there are 239 00:19:50.391 --> 00:19:53.469 certainly other decisions including decisions Exhibit Number this Court 240 00:19:53.469 --> 00:19:58.431 where the Court has treated fingerprint evidence as reliable and we've cited 241 00:19:58.431 --> 00:20:04.913 in our brief decisions even going on back to 1914 where courts cot the state is 242 00:20:04.913 --> 00:20:09.567 it admitted fingerprint evidence. JUSTICE WAINER-APTER: This even was a 243 00:20:09.567 --> 00:20:15.937 long time ago. Pretrial motion hearing was 2023. Are there curtain cases 244 00:20:15.937 --> 00:20:18.585 pending different cases pending in trial courts where defendants have said I 245 00:20:18.585 --> 00:20:22.104 want a hearing and here the nine evidence that I want to look at to present 246 00:20:22.104 --> 00:20:26.909 at a hearing. It's been three years it can't be a not a single case has involved 247 00:20:26.909 --> 00:20:31.853 fingerprint evidence since February 28th of 2023 been about an I'm not we only 248 00:20:31.853 --> 00:20:37.324 aware of any situation in which a defendant is demanding a evidentiary hearing. 249 00:20:37.324 --> 00:20:41.880 JUSTICE WAINER-APTER: Or requesting been about an or requesting a 250 00:20:41.880 --> 00:20:44.425 evidentiary hearing where they want to put testimony. It's possible that under 251 00:20:44.425 --> 00:20:48.194 which is cases exist. I'm not personally aware of any. I will say that certainly 252 00:20:48.194 --> 00:20:52.268 in the reported decisions throughout the country there are reported decision where 253 00:20:52.268 --> 00:20:58.862 defendants have requested that. And we've cited a lot in our brief where courts 254 00:20:58.862 --> 00:21:03.274 have had no trouble conclusion that such hearings unnecessary. The and the 255 00:21:03.274 --> 00:21:09.757 courts have stitchings he analyzed this and they've had no trouble that could 256 00:21:09.757 --> 00:21:12.135 say this testimony is reliable enough to to the factfinder. CHIEF JUSTICE 257 00:21:12.135 --> 00:21:15.208 RABNER: The Third Circuit or reviewed a very extensive hearing that took place 258 00:21:15.208 --> 00:21:20.561 in the Mitch ol' case and that was before both of these reports. Days of testimony 259 00:21:20.561 --> 00:21:24.623 and multiple witnesses. Is that there been a hearing of that scope since the 260 00:21:24.623 --> 00:21:29.141 Mitchell opinion been about an within the 13th circuit, I'm not specifically 261 00:21:29.141 --> 00:21:32.743 aware of them of any but I can tell you that there have been reported decisions 262 00:21:32.743 --> 00:21:39.329 including in the administrate Massachusetts where the the courts are and these 263 00:21:39.329 --> 00:21:45.107 are courts have had no trouble concluding that could say no. We cited in before 264 00:21:45.107 --> 00:21:50.429 our plaintiff a recent case aided 2025 case from the the Massachusetts supreme 265 00:21:50.429 --> 00:21:52.955 judicial court in which the Court said that there was an established reliability 266 00:21:52.955 --> 00:21:59.702 the of the it's a Vand head it proved courts taking judicial notice of that. 267 00:21:59.702 --> 00:22:03.226 JUSTICE WAINER-APTER: He say that one more time. BENJAMIN M. SHULTZ: 268 00:22:03.226 --> 00:22:08.374 Sure it is automate commonwealth ver is through humble two two six NE third 269 00:22:08.374 --> 00:22:13.244 two eight seven at three zero four to zero if you've that's ace 2024 decision from 270 00:22:13.244 --> 00:22:18.050 the the Massachusetts supreme judicial Court where the Court had no trouble 271 00:22:18.050 --> 00:22:23.754 taking judicial notice about the established reliability Ott ACE-V methods 272 00:22:23.754 --> 00:22:26.266 and again there is very recent and it's well after. JUSTICE WAINER-APTER: 273 00:22:26.266 --> 00:22:30.652 And no Court has ever held that fingerprint testimony says not reliable and 274 00:22:30.652 --> 00:22:34.499 cannot be committed; correct? BENJAMIN M. SHULTZ: We are reef of the two 275 00:22:34.499 --> 00:22:39.013 trial court decisions. One was in Pennsylvania and that judge later 276 00:22:39.013 --> 00:22:42.728 reconsidered his own opinion and vacked the earlier opinion and then there was 277 00:22:42.728 --> 00:22:47.756 a Maryland trial court opinion and that also was later vacated and in fact 278 00:22:47.756 --> 00:22:53.835 there was ace Maryland Appellate Division that later said that this testimony is 279 00:22:53.835 --> 00:22:58.358 properly admitted. JUSTICE WAINER-APTER: So in no courted is 280 00:22:58.358 --> 00:23:01.529 fingerprint evidence currently not admissible. BENJAMIN M. SHULTZ: That's correct. 281 00:23:01.529 --> 00:23:10.181 And we even cited a article from one of the amici in this case about fingerprint 282 00:23:10.181 --> 00:23:13.125 testimony aside fair and accurate two that I just discussed were later either 283 00:23:13.125 --> 00:23:19.893 vacated or otherwise reversed they had found that professor had found literally 284 00:23:19.893 --> 00:23:24.263 no opinion had a declined to admit this testimony and frankly, Your Honor, I think 285 00:23:24.263 --> 00:23:30.814 that extensive and uniform consensussion based on a real reason and that is 286 00:23:30.814 --> 00:23:35.343 the reliability of this method as has been established by studies including 287 00:23:35.343 --> 00:23:39.147 ones cussed is it the P cast report. JUSTICE HOFFMAN: If that's the case what 288 00:23:39.147 --> 00:23:44.913 are you from a afraid of? Why are you so reluctant to put this to a hearing. 289 00:23:44.913 --> 00:23:49.642 BENJAMIN M. SHULTZ: Sure. There's a lot of time and expense involved 290 00:23:49.642 --> 00:23:54.260 in hearings like this and I think lessons from cases like Olenowski and Cunningham 291 00:23:54.260 --> 00:23:59.043 are a very instructive. Cunningham, for example, the Court had ordered that 292 00:23:59.043 --> 00:24:05.870 issues about a particular technique's reliability be evaluated before a 293 00:24:05.870 --> 00:24:08.925 special adjudicator. Took easy months of fighting to the predators for that hearing 294 00:24:08.925 --> 00:24:14.059 and whod to pay for the experts only in thent for the defendant to decide that 295 00:24:14.059 --> 00:24:17.379 they didn't want to have the hearing after all and that was a lot of time and 296 00:24:17.379 --> 00:24:20.380 expense wasted just to them to figure out at the top of this words in my mouth 297 00:24:20.380 --> 00:24:24.758 it. And then in Olenowski you had massive, massive amounts of experts and massive 298 00:24:24.758 --> 00:24:28.759 amounts of time, massive amounts of testimony. JUSTICE HOFFMAN: Don't 299 00:24:28.759 --> 00:24:32.687 you think that was worth it? BENJAMIN M. SHULTZ: Your Honor, I think 300 00:24:32.687 --> 00:24:37.331 there can be a basis for under going extensive hearings when there is a need for 301 00:24:37.331 --> 00:24:45.409 it but the Court also just doesn't wellally. ? P5: Legitimate question 302 00:24:45.409 --> 00:24:50.135 as to whether there techniquion unsufficiently reliable to even go the 303 00:24:50.135 --> 00:24:52.573 didn't the factfinder and we submit that the when the the evidence that a the 304 00:24:52.573 --> 00:24:56.550 defendant is its presenting is just evidence that if anything confirms the basic 305 00:24:56.550 --> 00:25:01.925 reliability on itth technique with the confirms the basic science behind it 306 00:25:01.925 --> 00:25:05.675 at a minimum we don't have to have these extensive hearings that delay 307 00:25:05.675 --> 00:25:09.775 proceedings that have massive amounts of expense. That frankly. JUSTICE 308 00:25:09.775 --> 00:25:12.868 WAINER-APTER: Especially when the the State says trying to introduce evidence 309 00:25:12.868 --> 00:25:17.452 that has been uniformly admitted admitted in he every other court would 13 be sensible 310 00:25:17.452 --> 00:25:22.246 to believe the tothivity requirement that the the 99 and gives some sort of 311 00:25:22.246 --> 00:25:27.103 equation of what would happen at such a hearing been about an I think you're 312 00:25:27.103 --> 00:25:31.716 absolutely right the rule should be that at a when you have a an established 313 00:25:31.716 --> 00:25:34.793 technique the did the defendant himself is not saying that he needs a hearing at 314 00:25:34.793 --> 00:25:37.207 which to challenge that technique. JUSTICE WAINER-APTER: Or wants a hearing 315 00:25:37.207 --> 00:25:41.356 been a been or even wants a hearing to challenge that technique that a Court 316 00:25:41.356 --> 00:25:44.871 does thatting abuse its discretion in declining hold such a hearing. Frankly 317 00:25:44.871 --> 00:25:50.590 though I think the Court can go without could go board in this case and can 318 00:25:50.590 --> 00:25:54.768 recognize that at a minimum the defendant needs to show some sort of material 319 00:25:54.768 --> 00:25:58.172 change this the scientific understanding and go that certainly was not a understanding. 320 00:25:58.172 --> 00:26:02.574 Your. CHIEF JUSTICE RABNER: A change since Wen. BENJAMIN M. SHULTZ: 321 00:26:02.574 --> 00:26:06.524 A change since at the minimum when the the technique shads sustained reliability. 322 00:26:06.524 --> 00:26:11.040 CHIEF JUSTICE RABNER: When was that established in New Jersey. BENJAMIN 323 00:26:11.040 --> 00:26:15.215 M. SHULTZ: I think for these purposes, it was certainly before 2009. And the 324 00:26:15.215 --> 00:26:23.850 earliest piece of he find that the defendant was introducing was 2009. CHIEF 325 00:26:23.850 --> 00:26:28.235 JUSTICE RABNER: You mentioned the opinions holding inhibit of this evidence before. 326 00:26:28.235 --> 00:26:35.374 How many did so by saying it's always been allowed we're allowing it here as well. 327 00:26:35.374 --> 00:26:40.747 BENJAMIN M. SHULTZ: Certainly a decent number of decisions vol coders 328 00:26:40.747 --> 00:26:46.987 roaches that other courts have it done. Certainly there's nothing wrong. 329 00:26:46.987 --> 00:26:49.316 JUSTICE PIERRE-LOUIS: What extensive work are you referring to. BENJAMIN M. 330 00:26:49.316 --> 00:26:53.040 SHULTZ: Sure take the Mitchell case Cass just one exemplary and he isn't the 331 00:26:53.040 --> 00:26:59.141 only one. If you read the Third Circuit's opinion they talk about lots of 332 00:26:59.141 --> 00:27:01.747 different pieces of evidence they talk about the the various Daubert factors they 333 00:27:01.747 --> 00:27:05.933 explain the testimony that was before the the trial court in that indication 334 00:27:05.933 --> 00:27:08.778 and they explain why it was pretty they're this this testimony showed it was 335 00:27:08.778 --> 00:27:15.553 ace reliable technique it had scientific valid that even though there was some 336 00:27:15.553 --> 00:27:19.764 subjectivity elements to it, that was not the kind that showed that it was so 337 00:27:19.764 --> 00:27:21.867 unreliable that it could. CHIEF JUSTICE RABNER: And is that edition was 338 00:27:21.867 --> 00:27:26.165 69 2004. BENJAMIN M. SHULTZ: 2004. CHIEF JUSTICE RABNER: I take?" 339 00:27:26.165 --> 00:27:30.006 The 99 percent nothing in the is the 2009 and 2016 reports that we've been 340 00:27:30.006 --> 00:27:32.undefined discussed changes the landscape at all. BENJAMIN M. SHULTZ: That's right 342 00:27:36.800 --> 00:27:40.759 as well. They have a case that was even earlier that we just cited this was 343 00:27:40.759 --> 00:27:46.010 the familiar with Borah case can which we cried in our briefs that was a case that 344 00:27:46.010 --> 00:27:52.583 after the NAS report before but the P casts report and the parties in that 345 00:27:52.583 --> 00:27:56.337 case said the P the magnificence he wanted super security government of the 346 00:27:56.337 --> 00:28:00.570 analyzed that report and disagreed and concluded that this was admissible 347 00:28:00.570 --> 00:28:05.966 evidence. And if anything needn't we think the P cast report only makes this clear 348 00:28:05.966 --> 00:28:08.896 clear that this kind of evidencion admissible evidence. JUSTICE 349 00:28:08.896 --> 00:28:12.334 NORIEGA: Counsel your argument on this issue is that defense divinity make the proper 350 00:28:12.334 --> 00:28:15.720 request for a hearing didn't provide sufficient evidence opinion the alternative 351 00:28:15.720 --> 00:28:21.244 that it's not necessary because it's reliable. On the next my case, where 352 00:28:21.244 --> 00:28:25.856 they do submit an expert testimony ask to the hearing ahead of time get everything 353 00:28:25.856 --> 00:28:32.426 lined up, if your argument doesn't change why not deal with it now in a chase 354 00:28:32.426 --> 00:28:36.018 procedurally appears to have relatively state guard facts and would allow for this 355 00:28:36.018 --> 00:28:39.333 to be determined and then used in future cases. BENJAMIN M. SHULTZ: To 356 00:28:39.333 --> 00:28:42.933 be clear, our obligation position is that even if the defendant had been 357 00:28:42.933 --> 00:28:48.305 requesting a hearing there hasn't been the identify evidentiary hearing that 358 00:28:48.305 --> 00:28:52.917 would justify a hearing and all of the evidence that we have seen toning establish 359 00:28:52.917 --> 00:28:57.130 that this is a reliable med and itth reports I think are very instructing here. 360 00:28:57.130 --> 00:29:01.504 Particularly the P cast reports in showing that there were two studies black 361 00:29:01.504 --> 00:29:06.638 box studies that tried to quantify the error rates those studies that this 362 00:29:06.638 --> 00:29:11.446 this was real, real reliable president in the Olenowski this Court found that a technique 363 00:29:11.446 --> 00:29:17.032 between ninety one and ninety 5 percent accuracy. The P cast report said it 364 00:29:17.032 --> 00:29:21.958 was every on ninety 5 percent or over nine 9 percent accurate. This is well, 365 00:29:21.958 --> 00:29:27.891 well within the rage of admissible evidence. Now we're not saying that scientific 366 00:29:27.891 --> 00:29:33.370 understanding is immutable and if a defendant in an individual case can make a 367 00:29:33.370 --> 00:29:36.974 showing that there has been a material change in scientific understanding in that 368 00:29:36.974 --> 00:29:43.149 situation a hearing might well be needed but at least record as we had we see 369 00:29:43.149 --> 00:29:48.110 it that showing has not been made and even if this defendant had been requesting 370 00:29:48.110 --> 00:29:51.738 a hearing we don't think it would have been appropriate for the trial court to 371 00:29:51.738 --> 00:29:55.907 hold. CHIEF JUSTICE RABNER: Other questions with respect to the this 372 00:29:55.907 --> 00:30:01.220 issue? Can can we move onto the Watson issue? Did the testimony in this case 373 00:30:01.220 --> 00:30:12.576 go one step too far in this sense? It's up to the gyre jury to decide whether the 374 00:30:12.576 --> 00:30:19.822 intruder wore the same clothing on the both nights, yet we have detective Burke 375 00:30:19.822 --> 00:30:22.548 testifying that the clothing appears to be the same. Wasn't that the error. 376 00:30:22.548 --> 00:30:26.293 BENJAMIN M. SHULTZ: We would disagree. One of the things that goes this 377 00:30:26.293 --> 00:30:31.860 court recognized in Watson is that it is appropriate to talk about distinctive 378 00:30:31.860 --> 00:30:35.577 clothing. In addition it recognized in Watson that it is appropriate for 379 00:30:35.577 --> 00:30:39.552 narration testimony to cover undisputed facts and the whole reason why there's 380 00:30:39.552 --> 00:30:46.755 even such a thing a Watson error or narration Lear is because of concerns about 381 00:30:46.755 --> 00:30:49.719 invading the factfinder's role. CHIEF JUSTICE RABNER: Stop there for a 382 00:30:49.719 --> 00:30:52.347 second expected doesn't Watson stand for the proposition that you can highlight 383 00:30:52.347 --> 00:30:57.846 you can under score evidence like distinctive clothing which might 384 00:30:57.846 --> 00:31:03.998 otherwise go unnoticed by the jury, that you can argue as a defense attorney but 385 00:31:03.998 --> 00:31:06.091 that the you wouldn't be question whether it is exactly the same clothing is 386 00:31:06.091 --> 00:31:12.244 not for a detecting to testify to, that's for the jury. BENJAMIN M. SHULTZ: 387 00:31:12.244 --> 00:31:16.305 I think you can read Watson to say something like that perhaps in situations 388 00:31:16.305 --> 00:31:24.318 where this is a disputed fact. But Watson is was very careful to draw distinctions 389 00:31:24.318 --> 00:31:28.642 between narration testimony about disputed issues and see narration testimony 390 00:31:28.642 --> 00:31:33.801 about undisputed issues. And the here the defense counsel accepted it was 391 00:31:33.801 --> 00:31:37.956 the same individual on both nights their theory was just that whoever that was, 392 00:31:37.956 --> 00:31:42.022 it wasn't this defendant. So the fact that you had narration testimony that tended 393 00:31:42.022 --> 00:31:46.136 to show that it was the same individual on the 28th and 30th, never elevated the 394 00:31:46.136 --> 00:31:49.754 factfinder's role as to an issue that was in dispute n so your reading of Watson 395 00:31:49.754 --> 00:32:00.698 is that if it's awn undisputed fattening free for the law firm on the stand 396 00:32:00.698 --> 00:32:04.630 to provide conjunctions. BENJAMIN M. SHULTZ: I don't think Watson for 397 00:32:04.630 --> 00:32:09.588 closes that and we don't think eighth be vagrant 89th prongs of it of it jury. 398 00:32:09.588 --> 00:32:12.795 CHIEF JUSTICE RABNER: Didn't New Jersey make that determination. BENJAMIN M. 399 00:32:12.795 --> 00:32:17.107 SHULTZ: I think -- you're right the jury has to find facts. But I think what 400 00:32:17.107 --> 00:32:21.519 24 Court has recognized is that the whole rule against narration testimony is about 401 00:32:21.519 --> 00:32:25.693 invading the factfinder's role and when an issue is want actually disputed 402 00:32:25.693 --> 00:32:30.209 between the parties you're not really invading the factfinder's role. 403 00:32:30.209 --> 00:32:35.586 JUSTICE WAINER-APTER: That's because the undisputed fact is itself not the intuited 404 00:32:35.586 --> 00:32:40.304 disputed factual know presidents the fact that is it is undisputed means this 405 00:32:40.304 --> 00:32:45.514 it is not the final. So here, for example of us it continue do you want adds 406 00:32:45.514 --> 00:32:49.893 you pointed out that it was the same or at least counsel for the defendant referred 407 00:32:49.893 --> 00:32:56.745 to to a single intruder. On both nine and a half. And just said that single intruder 408 00:32:56.745 --> 00:33:01.021 was want the defendant. Did not say there was one intruder on a one night 409 00:33:01.021 --> 00:33:05.668 and a different endured on a different night or there were could have been multiple 410 00:33:05.668 --> 00:33:10.014 intruder et cetera. So whether or not it was a single intruder was undisputed. 411 00:33:10.014 --> 00:33:14.952 That was not the ultimate question. The ultimate question was whether defendant 412 00:33:14.952 --> 00:33:18.585 was that single intruder; correct? been about an I think Your Honor is exactly 413 00:33:18.585 --> 00:33:23.250 right. And I'll add to this that because we don't have a contemporaneous objection 414 00:33:23.250 --> 00:33:26.926 to at tile to this to this testimony this Court is of course only review fog 415 00:33:26.926 --> 00:33:31.554 plane error. JUSTICE WAINER-APTER: And the reason is because Watson wasn't 416 00:33:31.554 --> 00:33:37.482 decided until I think eight months later, it was August of the 2023 or five 417 00:33:37.482 --> 00:33:41.991 months later it this was appearing many earlier in 2023 been about an I think Your 418 00:33:41.991 --> 00:33:46.314 Honor is right that Watson had not been decided but sing had been decided at 419 00:33:46.314 --> 00:33:51.893 the time of trial and certainly the evidentiary rules that this Court had 420 00:33:51.893 --> 00:33:56.559 cited in Watson were also certainly in existence at the time. JUSTICE 421 00:33:56.559 --> 00:34:01.163 WAINER-APTER: But, for example, the four Fresno guide the commission of narration 422 00:34:01.163 --> 00:34:08.258 testimony that we set for it in Watson had yet been set forth as those exact four 423 00:34:08.258 --> 00:34:11.511 principles on a going forward basis; correct? been about an I think if your point 424 00:34:11.511 --> 00:34:17.196 is that the articulation adds articulate in Watson had not been decided at 425 00:34:17.196 --> 00:34:20.482 the time of trial I believe that is correct. I don't think that that means 426 00:34:20.482 --> 00:34:25.304 that opposing counsel that defense counts could not have made an objection as 427 00:34:25.304 --> 00:34:29.186 saying that this was improper narration at the top of the because particular because 428 00:34:29.186 --> 00:34:34.149 this Court shoot already decided same in 2021. CHIEF JUSTICE RABNER: Are 429 00:34:34.149 --> 00:34:38.336 there perhaps two conveys to look the one that you've articulated and that 430 00:34:38.336 --> 00:34:41.422 is the officer is prior to to draw the ultimate conclusion about whether the 431 00:34:41.422 --> 00:34:45.147 the closest was of the same because it's notth critical issue in the case. And 432 00:34:45.147 --> 00:34:49.414 the other would be that it was error but it doesn't much matter in this case. 433 00:34:49.414 --> 00:34:55.382 It's of the nature of harmless error because it was not a seminal critical 434 00:34:55.382 --> 00:34:59.635 fact been about an I think if the Court wants to resolve it on plane error it's 435 00:34:59.635 --> 00:35:04.239 certainly free to do so. At least the way that Watson t the test, Watson seemed 436 00:35:04.239 --> 00:35:09.993 to think that it's very important in analyzing whether there's even an error. 437 00:35:09.993 --> 00:35:14.863 A No, and figuring out if the net fact is disputed. But plane error he is singular 438 00:35:14.863 --> 00:35:18.707 an available way of resolve torus harmless error even. JUSTICE HOFFMAN: If 439 00:35:18.707 --> 00:35:24.880 a single or multiple intruder issue was an issued, you would not have much of 440 00:35:24.880 --> 00:35:28.836 a leg to stand on here. BENJAMIN M. SHULTZ: I think if that was an issue 441 00:35:28.836 --> 00:35:35.772 then we would have to engage in a harder error analysis plan error whether this 442 00:35:35.772 --> 00:35:40.385 was counts at plan error. JUSTICE NORIEGA: Counsel, even on stipulated 443 00:35:40.385 --> 00:35:45.100 facts the jury is free to makes whatever determinations at times with regard to 444 00:35:45.100 --> 00:35:47.522 those facts. BENJAMIN M. SHULTZ: I think there are situations where 445 00:35:47.522 --> 00:35:52.725 juries are black objections and we certainly hope that juries don't disregard 446 00:35:52.725 --> 00:35:57.933 stipulated facts but is a practical matter there maybe patriot. JUSTICE 447 00:35:57.933 --> 00:36:00.942 NORIEGA: But nothing further our instructions they're told the parties have 448 00:36:00.942 --> 00:36:09.932 stipulated to these facts. You are the ultimate ashor arbiter of the facts. Top 449 00:36:09.932 --> 00:36:15.177 been about an I'm not sure that the the standard instructions tell them that 450 00:36:15.177 --> 00:36:16.449 they can disregard I want it tactics. JUSTICE NORIEGA: I'm saying they 451 00:36:16.449 --> 00:36:20.298 are the ultimate finder of facts. Whatever they find is what controls even 452 00:36:20.298 --> 00:36:23.733 for the parties have agreed to certain facts been about an I think I would 453 00:36:23.733 --> 00:36:29.123 agree at that time the jury is the ultimate arbiter of fact. I'm not aware of 454 00:36:29.123 --> 00:36:35.154 situations in which courts are structuring juries to started stipulated facts. 455 00:36:35.154 --> 00:36:40.117 Generally courts in court are telling me toot the parties are agreeing to the 456 00:36:40.117 --> 00:36:43.867 and they can at a minimum take it as true and I'm not aware of a standard 457 00:36:43.867 --> 00:36:48.101 instruction that they are free to disregard stipulated facts at least specifically 458 00:36:48.101 --> 00:36:51.604 about stipulated facts. Maybe generic. JUSTICE NORIEGA: Let's go a step 459 00:36:51.604 --> 00:36:59.710 further. There's a difference between stipulated and what you're deeming 460 00:36:59.710 --> 00:37:01.782 undisputed. BENJAMIN M. SHULTZ: Sure. JUSTICE NORIEGA: So there's 461 00:37:01.782 --> 00:37:05.071 no construction there. There's no despise to the juries about how to treat 462 00:37:05.071 --> 00:37:09.406 this. So if a professional witness comes in for the state is testifying about 463 00:37:09.406 --> 00:37:14.894 particular facts and seeming to make them turn them into stipulated facts or true 464 00:37:14.894 --> 00:37:23.208 facts in a may cast a certain burden on the jurors to believe it; right? 465 00:37:23.208 --> 00:37:25.521 BENJAMIN M. SHULTZ: I'm not sure I would agree with that. I think when the 466 00:37:25.521 --> 00:37:30.146 defendant's theory of the case sets up testimony I'm not sure that I wouldize 467 00:37:30.146 --> 00:37:36.868 that as a burden. I would say what the gyre's rule is three-point practical 468 00:37:36.868 --> 00:37:40.920 matter they're going to be focusing on what's in dispute if we are talking about 469 00:37:40.920 --> 00:37:46.402 error and plane error when there isn't even an objection at the time it's really 470 00:37:46.402 --> 00:37:52.568 hard to see how here invading the jury's province in the way that creates reverse 471 00:37:52.568 --> 00:37:55.274 I shall error request bureau talking about the something the fat. JUSTICE 472 00:37:55.274 --> 00:37:59.370 WAINER-APTER: And here the jury was shown on the videos; correct? BENJAMIN M. 473 00:37:59.370 --> 00:38:01.375 SHULTZ: That's correct. CHIEF JUSTICE RABNER: Did the parties agree on 474 00:38:01.375 --> 00:38:05.822 this fact in the correspondence of trial or was it simply not disputed executed 475 00:38:05.822 --> 00:38:09.185 Wen about an I think if you read defense counsel's opening and closing statements 476 00:38:09.185 --> 00:38:12.918 that the the pitch that the defense counsel was making to the jury what was 477 00:38:12.918 --> 00:38:18.376 unin a accepted the premise this this was the same on both at night so he talks 478 00:38:18.376 --> 00:38:24.851 about that man single language that he says man was not this man. JUSTICE 479 00:38:24.851 --> 00:38:30.899 PIERRE-LOUIS: Was defense counsel's opening like three extents or so been about 480 00:38:30.899 --> 00:38:36.071 an I think it was short 2347 but I think the premise was there's a guy on the tapes. 481 00:38:36.071 --> 00:38:39.624 It's the same guy but it's about this guy and they made arguments based on 482 00:38:39.624 --> 00:38:45.684 go to fact that on the tape it looked like this person might have been Hispanic 483 00:38:45.684 --> 00:38:53.546 Caucasian and the defendant was not the. But they never disputed the idea that 484 00:38:53.546 --> 00:38:57.639 telescope the same person on the second and on the 30th. CHIEF JUSTICE 485 00:38:57.639 --> 00:39:17.882 RABNER: Other questions anyone? Anything you'd like to add, Counsel, TAMAR Y. 486 00:39:17.882 --> 00:39:28.446 LERER: I HAVE A LOT OF STUFF TODAY SO I AM SORRY. YOUR HONORS AND MAY IT PLEASE THE. 487 00:39:28.446 --> 00:39:34.740 FRENCH LEE WENT TO TRIAL IN THE CASE ONLY CASE AS IDENTITY AND ONLY EVIDENCE /-GS FINGERPRINT 488 00:39:34.740 --> 00:39:43.011 EXAMINER. TRIED TO ENGAGE TRIAL COURT AS ACT. TO IMPANEL A JURY WITHOUT PRECONCEIVED 489 00:39:43.011 --> 00:39:49.900 NOTIONS OF FINGERPRINT EVIDENCE IS I KNOW FAIL I BELIEVE. TO ENTER EVIDENCE THAT STATE 490 00:39:49.900 --> 00:39:57.004 HASN'T FOUND RELIABLE TO LIMIT MISS STATE IT IS PROBATIVE VALUE INSTRUCT THE JURY AS TO 491 00:39:57.004 --> 00:40:01.752 HOW TO WITH A THAT EVIDENCE. TRIAL COURT DIDN'T DO ANY OF THAT. THIS TRIAL WAS INWEAR. 492 00:40:01.752 --> 00:40:09.493 3 ERRORS THE /AEPDZ /TPOUPBTD IN THIS CASE. ONE THE ADMISSION OF FINGERPRINT OPINION 493 00:40:09.493 --> 00:40:14.006 TESTIMONY WITHOUT ANY LIMITATIONS AND WITHOUT THE STATE MEETING IT IS /PWURDZ /EPB TO 494 00:40:14.006 --> 00:40:18.449 MEET RELIABILITY OF THAT TESTIMONY. TWO THE FAILURE TO VOIR DIRE THE JURY PRECONCEIVED 495 00:40:18.449 --> 00:40:23.228 NOTIONS ABOUT FINGERPRINT EVIDENCE ^ AN ^ AND 3 IMPROPERLY LAY OPINION TESTIMONY THAT THE 496 00:40:23.228 --> 00:40:27.905 TWO PERSON APPROXIMATE OR WERE THE SAME. TAKE EACH IN TURN IN THAT ORDER. FIRST ADD 497 00:40:27.905 --> 00:40:32.538 MY OF FINGERPRINT EVIDENCE WITHOUT THE STATE SAIDING FOR ANY EVIDENCE FOR RELIABILITY. 498 00:40:32.538 --> 00:40:38.506 TO BE CLEAR THAT ISES ERROR. STATE HAS THE BURDEN OF PROVING RELIABLE OF ITS OWN 499 00:40:38.506 --> 00:40:44.779 EVIDENCE. WHEN DEFENSE PUT FORWARD TWO REPORTS FROM RECOGNIZED CREDIBLE /TP*ERD 500 00:40:44.779 --> 00:40:49.317 ORGANIZATIONS THAT CONTAIN /EUFTS THAT IS CONCERNING ABOUT RELIABILITY OF THIS EVIDENCE 501 00:40:49.317 --> 00:40:55.697 ONCE THE DEFENSE DID THAT WASN'T UP TO THE DEFENSE IF THERE WAS GOING TO BE A HEARING 502 00:40:55.697 --> 00:41:01.416 OR NOT. STATE HAD TO PROVE RELIABILITY OF ITS EVIDENT. WHAT THIS COURT SAID IN JR WHEN 503 00:41:01.416 --> 00:41:08.619 EVIDENCE MAKES THIS KIND OF SHOWING THE COURT ACT AS GATEKEEPER AND HAS A HEARING. 504 00:41:08.619 --> 00:41:12.125 JUSTICE WAINER APTER: WANT TO UNDERSTAND. WHENEVER STATE ONES INTRODUCE EVIDENCE EVEN 505 00:41:12.125 --> 00:41:17.787 INTRODUCED FOR MORE THAN ONE HUNDRED YEARS HAS TO AFFIRMATIVELY REQUEST A HEARING FOR 506 00:41:17.787 --> 00:41:22.554 THE DEFENDANT TO TRY TO PROVE THAT THE EVIDENCE IS UNRELIABLE. TAMAR Y. LERER: 507 00:41:22.554 --> 00:41:28.042 SO I AM SAYING IT HAS TO PROVE IT. ONE WITH A TO PROVE THE RELIABILITY WOULD BE TO HAVE A 508 00:41:28.042 --> 00:41:34.332 PRIOR FRY HEARING ON DAUBERT HEARING THAT LOOKED THAN THE HOOD ^ AN ^ AND SESSED RELIABILITY 509 00:41:34.332 --> 00:41:40.001 OF THE EVIDENCE ONE WITH A TO DO IT AND THEN NO HEARING. WHAT COURT SAID IN OLENOWSKI 510 00:41:40.001 --> 00:41:51.468 ONE BUT WANT TO QUOTE IT (READING) THERE HAS NEVER BE A RULING IN NEW JERSEY ABOUT THE 511 00:41:51.468 --> 00:41:57.307 RELIABILITY OF FINGERPRINT EVIDENCE. AND I HAVE 4 REASONS WHY ADMISSION OF THE EVIDENCE 512 00:41:57.307 --> 00:42:02.488 WITHOUT ^ AN ^ AND ASSESSMENT OF IT IS RELIABILITY WITHOUT /PROFG RELIABILITY. 513 00:42:02.488 --> 00:42:07.812 JUSTICE PATTERSON: BEFORE WE GO TO THE MERITS OF THIS. THERE IS QUICKLY PROCEDURAL 514 00:42:07.812 --> 00:42:17.059 HISTORY WHICH IS THIS QUESTION THE COURT GAVE TO BOTH COUNSEL SILENCE WE THINK FROM DEFENSE 515 00:42:17.059 --> 00:42:23.073 COUNSEL THE STATE MAKING A REPRESENTATION THAT SORT OF LOOPS IN DEFENSE COUNSEL. IS IT 516 00:42:23.073 --> 00:42:29.624 REALLY ^ AN ^ AND ABUSIVE DISCRETION FOR A COURT TO GO THROUGH THAT PROCESS ESSENTIALLY 517 00:42:29.624 --> 00:42:38.990 HAVING WHAT I THINK TRIAL COURT MIGHT REASONABLY NEED TO BE PERHAPS BECOME BECAUSE OF 518 00:42:38.990 --> 00:42:45.799 NATURE OF EVIDENCE ^ AN ^ AND EXPECTED BREVITY OF THE TRIAL. LAYERS ARE SAYING NO LAWYERS 519 00:42:45.799 --> 00:42:53.393 NECESSARY. WHAT THE OBLIGATION THE TRIAL COURT IN THAT OBLIGATION IF NO PRIOR RULING 520 00:42:53.393 --> 00:42:59.294 IN THE JURISDICTION. TRIAL COURT SAYS LET'S PLOW AHEAD. LET'S HAVE A HEARING THAT TAKES 521 00:42:59.294 --> 00:43:07.328 TWO WEEKS EVEN THOUGH THIS WILL TAKE TWO HOURS. TAMAR Y. LERER: THE STATE HAS 522 00:43:07.328 --> 00:43:11.832 THE BURDEN OF PROVING THE RELIABILITY OF ITS EVIDENCE SO IN A SITUATION WHERE THE STATE 523 00:43:11.832 --> 00:43:17.358 PUTS FORWARD PRECEDENT ABOUT THE RELIABILITY OF THIS EVIDENCE IN THIS JURISDICTION THAT IS 524 00:43:17.358 --> 00:43:23.849 NOT PRIOR TO A CHANGE IN SCIENCE THAT THE DEFENSE POINTS OUT. WE ARE DONE. IF THAT DOESN'T 525 00:43:23.849 --> 00:43:29.161 HAPPEN. JUSTICE WAINER APTER: SAY THAT ONE MORE TIME IF THE STATE. TAMAR 526 00:43:29.161 --> 00:43:35.010 Y. LERER: FROM THIS JURISDICTION THAT ACTUALLY ANALYZED RELIABILITY OF THE EVIDENCE 527 00:43:35.010 --> 00:43:37.927 SPECIFICALLY. JUSTICE WAINER APTER: SAYING EVEN THOUGH FINGERPRINT EVIDENCE 528 00:43:37.927 --> 00:43:42.401 ADMITTED IN NEW JERSEY TRIALS FOR ONE HUNDRED YEARS THERE IS NOT A SINGLE CASE THAT YOU 529 00:43:42.401 --> 00:43:48.641 WOULD COUNT AS RESIDENT. TAMAR Y. LERER: AND GO THROUGH CASES STATE SITES IN 530 00:43:48.641 --> 00:43:54.778 A SECRETARY. WANT TO FINISH WHICH GOES TO JR ^ AN ^ AND GATEKEEPING IS ALLOW ME TO QUOTE 531 00:43:54.778 --> 00:44:14.583 ONE MINUTE (READING). SO THE DEFENSE ATTORNEY DOESN'T CONTROL EVERYTHING. THE PROSECUTOR 532 00:44:14.583 --> 00:44:21.008 DOESN'T CONTROL EVERYTHING. ONCE AN ISSUE IS RAISED SUBSTANTIALLY ENOUGH CRED BY ENOUGH 533 00:44:21.008 --> 00:44:26.671 THE GATEKEEPER HAS TO DECIDE WHAT EVIDENCE IT NEED WHAT INFORMATION IT NEEDS TO MAKE THAT 534 00:44:26.671 --> 00:44:29.821 DECISION. JUSTICE HOFFMAN: BUT THERE IS A PRACTICALITY TO THIS. I MEAN THIS IS 535 00:44:29.821 --> 00:44:37.548 A HUGE ISSUE OF. RIGHT IT COULD BE A HUGE ^ AN ^ AND COMPLEXION HEARING. DO YOU EVEN 536 00:44:37.548 --> 00:44:44.442 FROM THE DEFENSE PERSPECTIVE REALLY WANT THAT WATER TO BE CARRIED BY DEFENSE COUNSEL WHO 537 00:44:44.442 --> 00:44:49.155 IS SAYING I ONLY I DON'T THINK I NEED A HEARING. TAMAR Y. LERER: I DO, YES. 538 00:44:49.155 --> 00:44:55.498 THIS IS WHY: NOT UP TO DEFENSE ATTORNEY TO DECIDE HOW WE ASSESS THE LEGAL /SUS TESTIMONY 539 00:44:55.498 --> 00:45:00.248 OF NEW JERSEY ASSESSES RELIABILITY OF EVIDENCE. IT IS NOT UP TO THE DEFENSE ATTORNEY 540 00:45:00.248 --> 00:45:08.891 TO SAY THIS LOON HARD SO LET'S DECIDE IT ON PAPERS. ET CETERA UP TO GATEKEEPER TO DECIDE 541 00:45:08.891 --> 00:45:15.786 IF WE NEED A HEARING ^ AN ^ AND GATEKEEPER -- COURT HAS TOOLS AT CALENDAR TO CONTROL IT IS 542 00:45:15.786 --> 00:45:21.223 CALENDAR. JUSTICE HOFFMAN: AREN'T A FRAYED TO END UP WITH DECISION THEN IF 543 00:45:21.223 --> 00:45:26.496 IT WAS DISPENSE COUNSEL THAT TRULY FELT IT WAS A HEARING WORTH THE ISSUE. TAMAR Y. 544 00:45:26.496 --> 00:45:30.990 LERER: SURE. JUSTICE HOFFMAN: YOU ARE AFRAID. TAMAR Y. LERER: A LITTLE 545 00:45:30.990 --> 00:45:36.279 BIT. JUSTICE HOFFMAN: HOW DID THAT HELP YOU IF YOU END UP WITH A DECISION THAT 546 00:45:36.279 --> 00:45:40.763 HAS SIGNIFICANT PRESIDENTIAL BECAUSE RELIED ON DEFENSE COUNSEL THAT ISN'T THINK THIS 547 00:45:40.763 --> 00:45:45.878 CASE WAS HEARING HEALTHY HOW CAN THAT HELP YOU. TAMAR Y. LERER: TWO MORE THINGS. 548 00:45:45.878 --> 00:45:50.703 I'M MUCH MORE FRAYED OF FLOOD OF EVIDENCE THAT COMES IN WITHOUT ANY HEARING WITHOUT ANY 549 00:45:50.703 --> 00:45:55.833 NEW JERSEY PRECEDENT WITHOUT ANY SCRUTINY ABOUT RELIABILITY OF THE EVIDENCE THAT IS WHAT 550 00:45:55.833 --> 00:45:59.701 SQUARED ME. CHIEF JUSTICE RABNER: SHOULDN'T YOU ASK FOR HEARING IN ADVANCE. 551 00:45:59.701 --> 00:46:03.972 TAMAR Y. LERER: SURE /WEUFPLT. CHIEF JUSTICE RABNER: COME WITH WITNESSES. 552 00:46:03.972 --> 00:46:10.347 DID THAT HAPPEN HERE. TAMAR Y. LERER: NO-NO. OBVIOUSLY THIS IS NOT THE BEST 553 00:46:10.347 --> 00:46:18.035 LITIGATION WE'VE EVER SEEN. THINK WE CAN ALL AGREE. AND TO. JUSTICE WAINER 554 00:46:18.035 --> 00:46:23.268 APTER: I AM JUST CONFUSED IF YOU ARE SAYING THERE IS A FLOOD OF EVIDENCE THAT COMES IN 555 00:46:23.268 --> 00:46:28.956 EVERYDAY AND THAT THERE SHOULD BE A HEARING, WHY ARE YOU NOT ASKING A HEARING IN A CASE 556 00:46:28.956 --> 00:46:34.728 THAT HAS JUST BEEN FILED WHERE THERE IS FINGERPRINT EVIDENCE. AS SAID THIS IS 557 00:46:34.728 --> 00:46:42.326 FEBRUARY 2023 IT SEEMS IMPOSSIBLE THAT IN THE PAST YEARS -- NO 3 YEARS I GUESS THERE HAS 558 00:46:42.326 --> 00:46:48.397 NOT /S*BG SINGLE CASE THAT INVOLVED FINGERPRINTS IN NEW JERSEY. WHY HERE INSTEAD OF FIGHT 559 00:46:48.397 --> 00:46:52.692 AND SAY HERE DEFENSE COUNSEL DIDN'T WANT A HEARING BUT TRIAL COURTS JOB ^ AN ^ AND TRIAL 560 00:46:52.692 --> 00:46:57.777 COURT ALWAYS HAS TO HOLD HEARING HE HAVE BEEN IF DEFENSE COUNSEL SAYS NO HEARING NO HEARING. 561 00:46:57.777 --> 00:47:03.497 WHY DO THAT INSTEAD OF JUST IN A CASE REQUESTING A HEARING BECAUSE THERE ARE LOTS OF CASES 562 00:47:03.497 --> 00:47:09.014 AS YOU JUST SAID A FLOOD OF CASES EVERY DAY WHERE THE STATE IS TRYING TO ADMIT FINGERPRINT 563 00:47:09.014 --> 00:47:16.457 EVIDENCE. TAMAR Y. LERER: 3 THINGS BUT ONLY GET TO ONE /P THINGS. THE FRENCH 564 00:47:16.457 --> 00:47:22.113 IS MY CLIENT AND CONVICTED DATE ON FINGERPRINT EVIDENCE. HAVE JOB TO DO HERE AND THIS 565 00:47:22.113 --> 00:47:25.561 IS ONLY EVIDENCE THAT CONVICT THE MY CLIENT. HE MATTERS RIGHT. JUSTICE PATTERSON: 566 00:47:25.561 --> 00:47:30.830 BUT THERE IS ELEMENT STRATEGY HERE. YOU TALK ABOUT PRECEDENCE ^ AN ^ AND ASSUME. ARE YOU 567 00:47:30.830 --> 00:47:40.267 TALKING ABOUT APPELLATE PUBLISHED DECISION BY /AEPDZ OR TRIAL COURT'S DECISION AFTER A 568 00:47:40.267 --> 00:47:46.706 HEARING AS PRESS DEBIT. TAMAR Y. LERER: I AM REFERRING TO BINDSING LAW. 569 00:47:46.706 --> 00:47:52.312 JUSTICE PATTERSON: OKAY. IF IN THIS SITUATION WHERE RESOURCES ARE VERY SIMPLE CASE. 570 00:47:52.312 --> 00:47:59.168 THE FACTS ARE SIMPLE. THERE FRANKLY MAY HAVE BEEN A DETERMINATION OF RESOURCES AS TO 571 00:47:59.168 --> 00:48:03.490 WHETHER OR NOT WE ARE REALLY GOING TO BE HERE FOR TWO WEEKS TO BATTLE OVER FINGERPRINT 572 00:48:03.490 --> 00:48:10.161 EVIDENCE WHEN, IN FACT, THE -- YOU KNOW THE NATURE OF THE CHARGES ARE NOT SEVERE CHARGES 573 00:48:10.161 --> 00:48:15.512 AND IT IS A VERY SIMPLE CASE THAT IS GOING TO BE TRIED IN LESS THAN A DAY. SO IF THAT 574 00:48:15.512 --> 00:48:22.286 GOES AHEAD AND THEN THERE IS BECAUSE THERE A LACK OF EVIDENCE OR HAVEN'T BEEN 5 EXPERTS 575 00:48:22.286 --> 00:48:27.718 /PR-DZ FOR DEFENDANTS AS MIGHT BE IN ONE OF THESE CASES AND THEN THE APPELATE DIVISION 576 00:48:27.718 --> 00:48:37.526 SAYS WE AFFIRM, YOU ARE GETTING PRESIDENTIAL -- AND I STAND YOU HAVE A WITH GREAT RESPECT 577 00:48:37.526 --> 00:48:43.775 YOU HAVE CASE TO DO FOR A PARTICULAR DEFENDANT. IF THAT IS RULE THAT FIRST ONE THAT ENDS 578 00:48:43.775 --> 00:48:50.599 UP BUBBLE UP IS TEST CASE ISN'T IT MORE LIKE ILY YOU WILL END UP WITH PRECEDENT IN QUOTES 579 00:48:50.599 --> 00:48:55.958 THAT IS GOING TO REALLY MATTER FOR FUTURE CASES. TAMAR Y. LERER: YES. OKAY. 580 00:48:55.958 --> 00:49:01.871 LET ME SEE IF I CAN GET BOTH OF THESE SETS OF ANSWERS TOGETHER. HAVE ETHICAL OBLIGATION 581 00:49:01.871 --> 00:49:10.210 FIRST ANSWER. MR. LEE SENT PRISON OR 6 YEAR FOR STEALING 168 DOLLARS CHANGE. RUN FORENSIC 582 00:49:10.210 --> 00:49:23.549 SCIENCE UNIT FOR OPD. THERE WAS NOT IN TWO 23. IN 2023 THERE WAS NOTHING BUT ME HALF 583 00:49:23.549 --> 00:49:30.515 FORENSIC PERSON ^ AN ^ AND /AEPDZ. DO WE HAVE BETTER STRATEGY. I LIKE TO THINK SO. 584 00:49:30.515 --> 00:49:36.249 BUT WE HAVE ETHICAL OBSERVATIONS TO CLIENTS THAT HAVE ALREADY BEEN CONVICTED RIGHT. DO 585 00:49:36.249 --> 00:49:45.102 I -- DO I GET HEARTBURN WHICH HERE ABOUT PEOPLE MOVING FOR OLENOWSKI HEARING FOR ME. 586 00:49:45.102 --> 00:49:51.177 THAT IS BAD. I DON'T LIKE IT. IT STRESSES ME OUT. BUT THAT HAS NOTHING TO DO WITH WHAT 587 00:49:51.177 --> 00:49:59.042 THE GATE KEEP ERRS'S OBLIGATION IN A CASE. BECAUSE AAA REPORT CAME IN FOR LIMITS REPORT 588 00:49:59.042 --> 00:50:03.925 TO FEDERAL ORGANIZATIONS. OTHER COURSE HAVE RELIED ON NEW JERSEY THE APPELATE DIVISION 589 00:50:03.925 --> 00:50:12.695 TALKED ABOUT /AOE CAST AND BRING UP THESE CONCERNS. PART OF WHAT WE ARE CIRCLING HERE 590 00:50:12.695 --> 00:50:19.827 IS WE NEED ONE REALLY WHY ANSWER. IF THIS COURT REMANDS TO SPECIAL AJUDGED OR. HAVE 591 00:50:19.827 --> 00:50:26.294 ONE GOOD HEARING. /WEU BE HERE. I WILL RUN LITIGATION. INNOCENCE PROJECT WILL BE THERE. 592 00:50:26.294 --> 00:50:31.644 WE PROVIDE EXPERT AS WELL. WE CAN DO THIS RIGHT ^ AN ^ AND I'D LIKE TO DO THIS RIGHT. 593 00:50:31.644 --> 00:50:39.928 ONE THING WE TALK ABOUT RESOURCES DOING IT RIGHT ONCE /SKAOPB IS BETTER THAN ALL THE THE 594 00:50:39.928 --> 00:50:43.666 RESOURCES ON APPEALS. JUSTICE PATTERSON: WE HAVE A CONCERN FOR WHAT KIND OF 595 00:50:43.666 --> 00:50:50.027 INSTRUCTION WE GIVE TRIAL COURTS. AND I UNDERSTAND THE TIMING IS IMPORTANT ET CETERA. 596 00:50:50.027 --> 00:50:56.966 BUT WHAT YOU SEEM TO BE SUGGESTING TO US HERE IS THAT IF A TRIAL COURT IS -- DOES WHAT 597 00:50:56.966 --> 00:51:02.344 THIS JUDGE DOES AND SAYS COUNSEL I WANT TO MAKE SURE NOT JUST GOING TO TAKE A REPRESENTATION 598 00:51:02.344 --> 00:51:06.735 FROM THE STATE. I WANT TO MAKE SURE THERE IS NO REQUEST FOR A HEARING HERE ^ AN ^ AND GETS 599 00:51:06.735 --> 00:51:13.796 WHAT IS EITHER SILENCE IS NOT GOLD ER HERE OR GETS AN ANSWER FROM MORE LIKELY FROM BOTH 600 00:51:13.796 --> 00:51:19.914 COUNSEL THAT SAYS IN WHICH THEY SAY NO HEARING NECESSARY, THE INSTRUCTION WOULD YOU HAVE 601 00:51:19.914 --> 00:51:26.025 US GIVE THEM IS PLOW AHEAD, JUDGE BECAUSE THERE WAS A CHALLENGE TO AN EXPERT THERE AND 602 00:51:26.025 --> 00:51:32.003 YOU -- EVEN IF NEITHER ONE OF THEM WANT IT YOU GO AHEAD AND HAVE THAT HEARING. TAMAR 603 00:51:32.003 --> 00:51:36.108 Y. LERER: YES BUT FIRST INSTRUCTION IS OKAY THE STATE HASN'T PROVIDED ANY PESTS ABOUT 604 00:51:36.108 --> 00:51:41.551 RELIABILITY OF IT IS PROPOSED EXPERT TESTIMONY SO IT IS EXCLUDED. JUSTICE PATTERSON: 605 00:51:41.551 --> 00:51:46.862 RIGHT AWAY WITH THAT RULE IF THERE IS ANY SLIGHT CHALLENGE AND HAS TO BE HEARING HE HAVE BEEN 606 00:51:46.862 --> 00:51:52.051 IF NOBODY WANTS IT. STATE GOING TO PRESENT -- IT WOULD HAVE TO DO THAT. TAMAR Y. 607 00:51:52.051 --> 00:51:57.037 LERER: HERE STATE SAID WE ARE RELYING ON IT FOREVER. IF THE STATE PUT FORWARD STUDIES 608 00:51:57.037 --> 00:52:02.983 TALKING ABOUT NOW /P-FPL BRIEFING ORDERED PUT FORWARD STUDIES. DEBATED THE MEANING OF 609 00:52:02.983 --> 00:52:08.210 STUDIES. THAT WAS ANOTHER OPTION FOR TRIAL COURT RITE. STATE JUST SAID WE HAVE BEEN 610 00:52:08.210 --> 00:52:12.200 USING THIS FOREVER SO IT IS FINE. JUSTICE PATTERSON: BUT OUR ISSUE HERE IS 611 00:52:12.200 --> 00:52:19.272 -- ISSUE WE HAVE IS NOT REALLY MERITS OF IT MATE DECISION. ISSUE IS WAS THERE A NECESSITY 612 00:52:19.272 --> 00:52:25.724 FOR A HEARING. AND THE POSITION THAT YOU'VE TAKEN AS I SAID BEFORE GREAT RESPECT TO YOU 613 00:52:25.724 --> 00:52:33.288 COUNSEL, IS THERE IS GOT TO BE HEARING AS SOON AS THERE IS SLIGHT HE IS SHOWING OR /EPB 614 00:52:33.288 --> 00:52:39.382 EVEN CHALLENGE THERE EVEN IF THEY LATER DECIDE TRATEXT MESSAGECALLY FOR SEPARATE REASONS 615 00:52:39.382 --> 00:52:45.021 ONES WE DON'T THINK THERE IS A HEARING. TAMAR Y. LERER: I WILL TRY ONE MORE 616 00:52:45.021 --> 00:52:51.382 TIME. MY POSITION IS THAT WHEN THE DEFENSE PITS FORWARD CREDIBLE INFORMATION TO SUGGEST 617 00:52:51.382 --> 00:52:58.290 THAT THERE IS A CONCERN ABOUT THE RELIABILITY OF EXPERT EVIDENCE CHALLENGING THE RELIABILITY 618 00:52:58.290 --> 00:53:05.116 OF THAT EVIDENCE CRED BY IT IS NOW STATE'S SOMEBODY TO PROVE THEIR RELIABILITY OF THAT 619 00:53:05.116 --> 00:53:12.676 EVIDENCE. SOME CASES DO THAT THROUGH PRIOR DAUBERT HEARING THAT IS PENDING. I DON'T 620 00:53:12.676 --> 00:53:21.151 THINK THE TESTIMONY RELIABILITY. STATE SAYS HAVE YOU READ STATE VERSUS OLENOWSKI. RIGHT 621 00:53:21.151 --> 00:53:26.381 WE ALL SIT DOWN. SO IT IS NOT ANY TIME THE DEFENSE SAYS ANYTHING WE HAVE TO HAVE A 622 00:53:26.381 --> 00:53:32.114 /HAOERLG. THE PROPONENT OF THE EVIDENCE HAS TO BEAR IT IS BURDEN. THAT IS GOING TO LOOK 623 00:53:32.114 --> 00:53:35.656 DIFFERENT WITH DIFFERENT SIGNED OF EVIDENCE. JUSTICE WAINER APTER: DOESN'T 624 00:53:35.656 --> 00:53:42.757 SEEM THAT PRO SURPRISING THAT PROPONENT MIGHT BEAR THE BURDEN BY SAYING EVERY COURT IN 625 00:53:42.757 --> 00:53:47.389 EVERY JURISDICTION IN THE HIGHWAYTORY OF TIME HAS FOUND THIS AD MISS I BELIEVE. THERE 626 00:53:47.389 --> 00:53:53.581 WERE ONLY TWO COURTS THAT TOOK SHORT DETOUR AND BOTH UNDID THEMSELVES. SO FINGERPRINT 627 00:53:53.581 --> 00:53:58.562 EVIDENCE HAS BEEN PROVEN REGARDLESS OF ^ WHETHER ^ WEATHER IT IS I KNOW FAIL I BELIEVE. 628 00:53:58.562 --> 00:54:06.433 IT HAS BEEN PROVEN BEE LIABLE ENOUGH TO GET TO A JURY. I AM NOT SURE WHY THERE HAS TO BE 629 00:54:06.433 --> 00:54:13.839 A HEARING IN NEW JERSEY ON EVERY SINGLE TYPE OF EVIDENCE THE STATE MIGHT WANT TO ADMIT 630 00:54:13.839 --> 00:54:20.808 EVEN IF IT HAS BEEN ADMITTED FOR MANY MANY MANY YEARS AND THERE IS NO KNEW SCIENCE THAT 631 00:54:20.808 --> 00:54:27.292 SAYS DESPITE THE FACT THAT IT IS BE ADMIT /P-D FOR MANY YEARS IT IS NOT RELIABLE. 632 00:54:27.292 --> 00:54:32.710 TAMAR Y. LERER: WILL TRY 3 THINGS AGAIN. ONE JUDICIAL ACCEPTANCE NOT A SUBSTITUTE FOR 633 00:54:32.710 --> 00:54:38.263 RELIABILITY PERIOD. THIS COURT SAID THIS MANY TIMES. I AM GOING TO GIVE TWO OF MY 634 00:54:38.263 --> 00:54:56.415 /KWAEUFRT QUOTES BECAUSE DON'T WANT TO READ TO YOU TOO LONG READ (READING). I WILL PICK 635 00:54:56.415 --> 00:55:20.387 APPELLATE CASE TOO (READING). SO FIRST OF ALL THAT JUDICIAL ACCEPTANCE IS NOT RELIABILITY. 636 00:55:20.387 --> 00:55:25.652 THAT IS NOT BY ^ OPINION ^ PIN. JUSTICE PATTERSON: IT IS DAUBERT FACTORS. 637 00:55:25.652 --> 00:55:29.496 TAMAR Y. LERER: SURE. YES. GENERAL ACCEPTANCE IN THE FIELD IS RIGHT. ONE 638 00:55:29.496 --> 00:55:34.759 THE WAYS WE PROOF. JUSTICE PATTERSON: GENERAL ACCEPTANCE THROUGH JUDICIAL 639 00:55:34.759 --> 00:55:38.240 DECISIONS. TAMAR Y. LERER: BUT ONE THE FACTOR SUBSET OF SUBSET OF ACCEPTANCE 640 00:55:38.240 --> 00:55:44.303 RIGHT. TAMAR Y. LERER: I WILL NOW QUOTE ^ AN ^ AND TRUST ME THIS COURT SAID 641 00:55:44.303 --> 00:55:49.269 SAME THING ABOUT THOSE CASES. THAT IS THE FIRST THING. SECONDS OF ALL LET'S LOOK AT 642 00:55:49.269 --> 00:55:55.965 CASES. REASON WHY THIS IS SO BIG I PRINT EVERYONE OUT. MOST CASES WERE DECIDED BEFORE 643 00:55:55.965 --> 00:56:02.343 ANY STUDIES ABOUT RELIABILITY THE FINGERPRINT EVIDENCE CAME OUT. GAM BOTHER 644 00:56:02.343 --> 00:56:10.543 AMASSACHUSETTS. MICHIGAN THIRD CIRCUIT. CHRIS. /SHER WOOD ONE CIRCUIT. MARCH COUPLE, 645 00:56:10.543 --> 00:56:16.885 /PH*RD HERE PLAZA PENNSYLVANIA. THEY ALSO HAVE A DIFFERENT STANDARD OF REVIEW. ALL FEDERAL 646 00:56:16.885 --> 00:56:23.967 CASES OR APPELLATE OF A DISCRETION OF REVIEW. THEY ARE LOOKING AND SAYING NOT ABUSE OF 647 00:56:23.967 --> 00:56:30.439 DISCRETION TO LET THIS EVIDENCE IN OR NOT HAVE DAUBERT HEARING. JUSTICE WAINER 648 00:56:30.439 --> 00:56:36.625 APTER: I THOUGHT OPPOSING COUNSEL SAID AFTER THE REPORT. TAMAR Y. LERER: BEFORE 649 00:56:36.625 --> 00:56:40.561 SINGLE STUDY CAME OUT ABOUT THE RELIABILITY OF FINGERPRINT EVIDENCE. JUSTICE 650 00:56:40.561 --> 00:56:44.691 WAINER APTER: IF ANYTHING THE NAS REPORT QUESTIONS RELIABILITY OF FINGERPRINT EVIDENCE 651 00:56:44.691 --> 00:56:50.775 MORE AND THE 2016 REPORT THEN CAME BACK AND SAID NO ACTUALLY IT DOES APPEAR TO BE VERY 652 00:56:50.775 --> 00:56:56.313 RELIABILITY. TAMAR Y. LERER: LET ME TAKE A STEP BACK. I DO NOT BELIEVE THAT 653 00:56:56.313 --> 00:57:01.571 THIS COURT WOULD SAY THAT ^ OPINIONS ^ PINS ABOUT THE RELIABILITY OF A FIELD THAT WERE 654 00:57:01.571 --> 00:57:06.992 GENERATED BEFORE SINGLE STUDY ABOUT THE RELIABILITY OF THAT FIELD ARE THE KIND OF 655 00:57:06.992 --> 00:57:13.385 PRECEDENT THAT WE WANT TO RELY ON WHEN WE DECIDE THE FUNCTIONING OF THE CRIMINAL SYSTEM 656 00:57:13.385 --> 00:57:20.063 IN NEW JERSEY. YES AFTER NAS REPORT WHEN NAS REPORT SAYS QUOTED MY FAVORITE PART WE LOOK 657 00:57:20.063 --> 00:57:25.160 FOR EVIDENCE AND THIS IS NONE OF RELIABLE. THESE COURTS ALL SAID OKAY THAT'S FINE BY 658 00:57:25.160 --> 00:57:33.178 US. DON'T THINK THAT IS FINE BY US. CAN'T READ OLENOWSKI TWO READ KNEE /EF AS AND SAY 659 00:57:33.178 --> 00:57:38.556 THAT IS FINE BY US. ABUSE OF DISCRETION MATTER MATTERS BECAUSE THIS COURT SAYS DOING 660 00:57:38.556 --> 00:57:46.745 DE NOVO SO REALLY LOOK UNDER THE HOOD. RIGHT. WE WON'T LET THIS BE RANDOM REALLY BROAD. 661 00:57:46.745 --> 00:57:51.809 WE WILL LOOK AT WHAT HAPPENED MAKE A DECISION. THAT IS IMPORTANT DISTINCTION. SOME OF 662 00:57:51.809 --> 00:57:56.208 THESE ^ OPINIONS ^ PINS SAY THINGS THAT COURT WOULD JUST NOT ACCEPT LIKE STRIKER FROM 663 00:57:56.208 --> 00:58:03.205 DC CIRCUIT IN 2016. THEY BOTH CREDIT A ZERO RATE OF ERROR. IF WE ARE GOING TO SAY GOOD 664 00:58:03.205 --> 00:58:08.549 ENOUGH FOR THEM GOOD ENOUGH FOR US. IT HAS TO BE GOOD, RIGHT. THIS IS NOT THE QUALITY 665 00:58:08.549 --> 00:58:14.902 THAT THIS COURT HAS ACCEPTED AS DEMONSTRATING RELIABILITY. LAST THING I WANT TO SAY ABOUT 666 00:58:14.902 --> 00:58:21.456 THESE CASES IS MANY OF THEM ASSUME LIMITS THAT HAVE NOT BEEN ESTABLISHED. HER ERA. QUOTE 667 00:58:21.456 --> 00:58:28.751 RESPONSIBLE PRINT MATCHING IS RELIABILITY EVIDENCE IN GENERAL IN THIS CASE. WHAT IS 668 00:58:28.751 --> 00:58:34.913 RESPONSIBLE FINGERPRINT MATCHING. FINGERPRINT IDENTIFICATION SIZE TESTIMONY AS PRACTICED 669 00:58:34.913 --> 00:58:39.989 BY FINGERPRINT EXAMINERS IS RELIABLE. WE DON'T HAVE CERTIFIED EXAMINER IN THIS CASE. 670 00:58:39.989 --> 00:58:45.627 DOES THAT APPLY FOR NONE CERTIFIED EXAMINE /ERGS. DISCUSSES MINIMAL NUMBER OF POINT 671 00:58:45.627 --> 00:58:50.901 OF COMPARISON WHICH DOESN'T EXIST. SO YOU CAN'T JUST SAY LOOK AT ALL OF THESE CASES 672 00:58:50.901 --> 00:58:56.063 THEY SAY FINGERPRINTING IS FINE. WHAT HIS FINE? Q. WHAT KIND OF FINGER PRINTING 673 00:58:56.063 --> 00:59:00.910 IS FINE. UNDER WHAT CONDITIONS IS REASON? JUSTICE PIERRE LOUIS: IT IS CLEAR 674 00:59:00.910 --> 00:59:05.991 MANY OF THOSE CASES ^ WHETHER ^ WEATHER I THINK CHIEF JUSTICE VERY ASKED OF THE ATTORNEY 675 00:59:05.991 --> 00:59:11.081 GENERAL. IS IT CLEAR IN MANY CASES WHETHER THERE WERE FOLSOM HEARINGS OR ^ WHETHER ^ WEATHER 676 00:59:11.081 --> 00:59:17.335 IT WAS JUST SIMILAR TO WHAT WAS DONE HERE, THIS HAS BEEN RECEIVED FOR MANY MANY YEARS 677 00:59:17.335 --> 00:59:22.531 IT IS ACCEPTABLE. TAMAR Y. LERER: THE ARTICLES GOES THROUGH IT. NONE HAS HEARINGS. 678 00:59:22.531 --> 00:59:28.931 READ ALL OF THEM. NONE HAVE HEARINGS. MITCHELL IS 2004. IT GATHERS NO RATE OF ERROR. 679 00:59:28.931 --> 00:59:34.417 NO PUBLISHED CASES. IT IS OKAY. THAT IS NOT OKAY. THAT IS NOT WHAT THIS COURT SAYS 680 00:59:34.417 --> 00:59:42.883 IS OKAY. I WANT TO -- SKIPPING BUT I WANT TO TALK ABOUT RELIABILITY FOR A SECOND BECAUSE 681 00:59:42.883 --> 00:59:48.819 WE TALKING ABOUT THIS IN A WAY THAT I THINK IS NOT CLEAR ENOUGH MAYBE. RELIABILITY IS 682 00:59:48.819 --> 00:59:55.561 NOT BY /TPHAEUR I. OLENOWSKI IS SUCH A GOOD EXAMPLE RIGHT. WE TALK ABOUT ONE AND TWO. 683 00:59:55.561 --> 01:00:01.497 THERE WERE 3 OLENOWSKI. FIRST ONE SAYS WE DON'T HAVE TO HAVE A HEARING AND THIS COURT 684 01:00:01.497 --> 01:00:07.644 SAYS YEAH WE ARE GOING TO HAVE TO HAVE A HEARING. WHAT DO WE LEARN AT THAT HEARING? IT IS 685 01:00:07.644 --> 01:00:12.945 /THRAE LIABLE ENOUGH UNDER CERTAIN CONDITIONS UNDER CERTAIN WAYS AND ALSO A JURY 686 01:00:12.945 --> 01:00:19.238 INSTRUCTION. RIGHT. THIS IDEA THAT WE ARE GOING TO GO TO A HEARING ^ AN ^ AND LEARN YES OR NO 687 01:00:19.238 --> 01:00:27.019 IS JUST NOT -- DOESN'T COMPORT WITH WHAT HAPPENED. DOESN'T COMPORT WITH HENDERSON. 688 01:00:27.019 --> 01:00:33.849 THAT IS NOT HOW IT WORKS. SO FOR FINGERPRINTING SPECIFICALLY I SIT IN MY BRIEF AN ARTICLE 689 01:00:33.849 --> 01:00:42.645 BY JOHN MORGAN BEFORE WRONGFUL CONVICTIONS BY SCIENCES INTERNATIONAL. IT TALKS ABOUT 690 01:00:42.645 --> 01:00:49.070 HOW FINGERPRINTS LEAD TO WRONGFUL CONVICTION BECAUSE EVIDENCE OVERSTATED TALKS ABOUT HOW 691 01:00:49.070 --> 01:00:55.020 THEY LEAD UNRELIABILITY TO WRONGFUL /KPWEUBGSS BECAUSE STANDARDS OF DISCIPLINE WEREN'T 692 01:00:55.020 --> 01:01:00.688 CONFORMED WITH. WHAT ARE THE STANDARDS OF DISCIPLINE. HOW DOES GATEKEEPER DECIDE IF 693 01:01:00.688 --> 01:01:07.959 THIS /TPHAOETS THE MEETS AS APPLIED EVEN IF FOUNDATIONLY RELIABLE SITUATION WHICH I AM 694 01:01:07.959 --> 01:01:12.037 NOT CORNER STEADYING WE. JUSTICE WAINER APTER: IN TERMS AS APPLIED CHALLENGE 695 01:01:12.037 --> 01:01:18.702 ^ AN ^ AND IMPORTANCE OF JURY INSTRUCTIONS THERE WAS NO JURY INSTRUCTION REQUESTED HERE. 696 01:01:18.702 --> 01:01:23.943 TAMAR Y. LERER: THERE WAS BUT WASN'T REQUESTED. JUSTICE WAINER APTER: 697 01:01:23.943 --> 01:01:28.571 THAT WASN'T BEFORE US BECAUSE APPELATE DIVISION DIDN'T RULE ON IT. TAMAR Y. LERER: 698 01:01:28.571 --> 01:01:34.964 THE LOTS THAT LEAD TO JURY INSTRUCTION IS PRETTY HIGH. AND SO TALK SPECIFICALLY. 699 01:01:34.964 --> 01:01:41.226 JUSTICE HOFFMAN: THE TESTIMONY IN THIS CASE DO YOU THINK THAT THE TESTIMONY IN THIS CASE 700 01:01:41.226 --> 01:01:53.479 WAS INEQUIVOCAL. WAS ABOVE WHAT WOULD HAVE BEEN APPROPRIATE VIS-A-VIS THE ACADEMIC 701 01:01:53.479 --> 01:01:57.558 LITERATURE. TAMAR Y. LERER: YES I REALLY DO. I AM GOING TO STEAL JUST ONE SECOND 702 01:01:57.558 --> 01:02:04.570 TO FINISH ONE THOUGHT ^ AN ^ AND FINISH YOUR HONOR'S QUESTION IF YOU GIVE ME 20 SECONDS. 703 01:02:04.570 --> 01:02:11.110 TAMAR Y. LERER: FOR FINGERPRINT FINGERPRINT IS NOT A MONO LIT. IF YOU 704 01:02:11.110 --> 01:02:16.857 ACTUALLY READ ALL STUDIES. READ PCAST THE /TPHREBGSTY OF THE FINGERPRINT HOW BIG IT IS 705 01:02:16.857 --> 01:02:24.243 HOW SMALL IT IS. THE COMPLEXITY CARE SON ARE HARDER TO GET RIGHT THAN OTHER KIND OF 706 01:02:24.243 --> 01:02:29.494 COMPARISONS. PROPER PHYSICIANSY OF EXAMINER. HAVE NOTES FOR YOU. THERE IS NOT A 707 01:02:29.494 --> 01:02:34.207 STANDARDIZED CERTIFICATION PROGRAM IN NEW JERSEY. NOT STANDARDIZED TRACH PROGRAM. TWO 708 01:02:34.207 --> 01:02:40.298 CERTIFIED FINGERPRINT EXAMINERS IN NEW JERSEY. THAT MIGHT BE LOWE'S HE IS IN COUNTRY. 709 01:02:40.298 --> 01:02:49.421 NO STANDARD ICED /PROET CALL. HAVE LITIGATED APPLIED CHALLENGES. CERTAIN SECTIONS 710 01:02:49.421 --> 01:02:55.930 DON'T HAVE PROTOCOLS AT ALL AND NO ACCESS TO PROFICIENCY TESTS. ALL STUDIES SAY IT IS 711 01:02:55.930 --> 01:03:03.273 SUBJECTIVE BUT WELL TRAINED FINGERPRINT EXAMINERS DO A GREAT SOMEBODY. I ASKED THEM DID I 712 01:03:03.273 --> 01:03:08.852 GET THEM. I AM TOLD I AM NOT ENTITLED TO THEM. SO THERE IS A LOT OF OF ASSUMPTIONS WHAT 713 01:03:08.852 --> 01:03:14.246 THIS LOON LIKE AT THE TRIAL COURT WHAT FINGERPRINT COMPARISON LIKE HOW WELL DONE IT 714 01:03:14.246 --> 01:03:19.305 IS, HOW REAL IT IS. IT REALLY VARIES ACROSS THE STATE ^ AN ^ AND PLACE WE WOULD LEARN 715 01:03:19.305 --> 01:03:23.279 THAT IF WE HAD A HEARING WHERE WE LEARN THAT. JUSTICE WAINER APTER: DID YOU 716 01:03:23.279 --> 01:03:27.840 SAY THERE IS NO PROFICIENCY TEST OR THAT YOU WEREN'T PROVIDED IT. TAMAR Y. 717 01:03:27.840 --> 01:03:33.111 LERER: BOTH. SOMETIMES YOU HERE NO PROFICIENCY TESTS. SOMETIME YOU HERE THAT THERE WERE 718 01:03:33.111 --> 01:03:39.251 OR WON'T TELL US WHAT WAS IN IT OR WON'T GRIFFITH TO US IN THE STATE. SOME UNITS DON'T 719 01:03:39.251 --> 01:03:46.423 GET TESTED. SOME DO. I MEAN THE VARIETY IS MIND BOGGLING BUT WILL TELL YOU FROM WHERE 720 01:03:46.423 --> 01:03:53.183 I STABBED AS THE PERSON WHO RUNS FORENSIC LITIGATION FOR OFFICE OF PUBLIC DEFENDER IN 721 01:03:53.183 --> 01:03:58.048 THE STATE, WE ARE NOT -- WE SHOULD NOT ASSUME THAT THIS IS A HIGH QUALITY STANDARDIZED 722 01:03:58.048 --> 01:04:04.497 ROBUST UNIFORM PROGRAM. THAT IS NOT WHAT IS HAPPENING AND CAN LEARN MORE ABOUT THAT THE 723 01:04:04.497 --> 01:04:10.140 A HEARING. TO ANSWER YOUR QUESTION JUSTICE HOFFMAN YES I THINK THIS TESTIMONY IS PRETTY 724 01:04:10.140 --> 01:04:17.104 INAPPROPRIATE. SO THERE WERE A FEW MOMENTS WHERE YOU KNOW NOT ONLY DID HE SAY THE DETECTIVE 725 01:04:17.104 --> 01:04:22.361 OVER AND OVER AGAIN THIS IS THE SOURCE, THIS IS THE SCORES, THIS IS THE COURSE SOURCE. 726 01:04:22.361 --> 01:04:29.197 THINK MOST EGREGIOUS ONES ONE 54 PICTURE ASKS GOOD FRIEND LEE MAKE LATE /EPB IMPRESSION, 727 01:04:29.197 --> 01:04:36.954 YES. PAGE 56 DID DEFENDANT FRIEND LEE MAKE THE IMPRESSION, YES. THAT'S -- HE WENT ^ AN ^ 728 01:04:36.954 --> 01:04:43.712 AND DID IT. THAT IS ACTIVITY LEVEL NOT SOURCE LEVEL TESTIMONY. PAGE ONE ONE ONE WHEN 729 01:04:43.712 --> 01:04:54.727 TALKING ABOUT VERIFICATION HE IS IMPLYING ZERO ERROR RATE (READING) SO IT IS ONE EXAMINER 730 01:04:54.727 --> 01:05:00.647 COMPLETING YOU KNOW RESEARCH BASE FROM STIMULI WITH OR WITHOUT THE VERIFICATION STUDIES 731 01:05:00.647 --> 01:05:17.870 (READING). SOUNDS LIKE A ZERO PERCENT ERROR RATE TO ME AND LOOK AT /PHA*RS WHICH SUPPOSEDLY 732 01:05:17.870 --> 01:05:23.535 HELPS THE STATE. THEY HAVE LIMITS YOU CAN SAY CERTAINTY. YOU HAVE TO SAY SUBJECTIVE. 733 01:05:23.535 --> 01:05:29.834 CAN'T SAY ZERO PERCENT ERROR RATE ^ AN ^ AND STATE IS SUPPOSED TO GET THOSE THINGS OUT 734 01:05:29.834 --> 01:05:35.838 THE EXAMINER. NOT SUPPOSED TO WAIT FOR DEFENSE ATTORNEY TO ELICIT THAT. THAT IS GAM 735 01:05:35.838 --> 01:05:40.881 BOTHER A. THERE IS A DIFFERENCE BETWEEN LIKE FOUNDATIONAL RELIABILITY ^ AN ^ AND 736 01:05:40.881 --> 01:05:46.860 ADMISSIBILITY OF THE FIELD IS AN FREE-FOR-ALL. WHAT WE HAVE NOW IS FREE-FOR-ALL. ALL 737 01:05:46.860 --> 01:05:51.762 GOES TO WEIGHT AND NOT ADMISSIBLE BUILT. JUSTICE PATTERSON: WHEN YOU SAY UNITS 738 01:05:51.762 --> 01:05:57.454 DON'T HAVE STANDARD. WHAT ARE YOU TALKING UNITS. TAMAR Y. LERER: SHERIFF'S 739 01:05:57.454 --> 01:06:01.923 OFFICE OR LAW ENFORCEMENT OF ANY KIND. JUSTICE PIERRE LOUIS: YOU RECEIVED VARIOUS 740 01:06:01.923 --> 01:06:06.808 DIFFERENT RESPONSES FROM DIFFERENT COUNTIES. TAMAR Y. LERER: OH, YES. DIFFERENT 741 01:06:06.808 --> 01:06:12.773 COUNTIES AND CITIES WITHIN COUNT TEASE. CHIEF JUSTICE RABNER: CAN YOU EXPLAIN 742 01:06:12.773 --> 01:06:17.256 CONFIRMATION BIAS. TAMAR Y. LERER: IT IS SOMETHING WE ALL EXPERIENCE. RIGHT 743 01:06:17.256 --> 01:06:22.850 WHEN WE ALREADY HAVE PRECONCEIVED NOTION ABOUT SOMETHING WE SEEK OUT INFORMATION OR ONLY 744 01:06:22.850 --> 01:06:27.620 SEE INFORMATION THAT CONFIRMS THAT. YOU ALREADY DON'T LIKE YOUR FRIEND'S KNEW WIFE ^ AN ^ AND 745 01:06:27.620 --> 01:06:33.461 COMES TO DINNER AND SAID SOMETHING YOU THINK I KNEW I DIDN'T LIKE HER. THAT IS CONFIRMATION 746 01:06:33.461 --> 01:06:40.275 BIAS. WE DO IT A LOT. WHAT HAPPENS IN FUGE PRINTING IS THAT IN GENERAL MUCH INFORMATION 747 01:06:40.275 --> 01:06:47.385 IS RECEIVED USUALLY BY ^ AN ^ AND EXAMINER BEFORE THEY UNDER TAKE THEIR ANALYSIS. SO 748 01:06:47.385 --> 01:06:52.326 I KNOW IN THIS CASE WILTSLY SAID I DIDN'T KNOW ANYTHING ABOUT THE CRIME. THAT IS UNUSUAL. 749 01:06:52.326 --> 01:06:58.556 USUALLY THEY KNOW QUITE A BIT ABOUT THE CRIME AND ABOUT THE SUSPECT. BUT ONE THING HE 750 01:06:58.556 --> 01:07:07.662 DID KNOW IS THAT AFIS SAID THAT FRENCH LEE WAS THE MATCH AND ACTUALLY AFIS PROCESSES 751 01:07:07.662 --> 01:07:13.077 CANDIDATES LISTS AND I DON'T KNOW WHO ELSE WAS ON THAT LIFT AND WHAT THOSE /-P PRINTS 752 01:07:13.077 --> 01:07:19.184 LOOKED LIKE BUT HE KNEW THAT THIS WAS THE MATCH FROM AFIS NOW YOU DO IT. IT IS CALL 753 01:07:19.184 --> 01:07:24.805 CONFIRMATION AND ALSO AUTOMATION BIAS. PEOPLE TEND TO THINK NA MACHINES ARE GOOD AT WHAT 754 01:07:24.805 --> 01:07:29.649 THEY DO. CHIEF JUSTICE RABNER: IN SITUATIONS WHERE THERE IS A SECOND EXAMINER 755 01:07:29.649 --> 01:07:35.277 WHO CONDUCTS A REVIEW IS IT PRESENTED AS I WAS CHECK ON FIRST EXAMINERS WORK OR PRESENTED 756 01:07:35.277 --> 01:07:39.379 AS ^ AN ^ AND INDEPENDENT CONCLUSION. TAMAR Y. LERER: MAN IT REALLY VARIOUS. 757 01:07:39.379 --> 01:07:45.221 THINK TWO THINGS THAT ARE IMPORTANT TO KNOW ABOUT THAT. THE FIRST IS -- WELL MAYBE 3. 758 01:07:45.221 --> 01:07:50.051 KEEP SAYING /P I AM SORRY. THERE IS BEHIND NOT BEHIND REVIEW DISTINCTION. SO SOME OF 759 01:07:50.051 --> 01:07:56.027 THEM ARE BEHIND AND SOME ARE NOT BEHIND. IT IS CLAIMED THAT BEHIND REVIEWS TAKE A LOT 760 01:07:56.027 --> 01:08:01.331 /R-F RESOURCES AND SO THEREFORE THE SECOND THING I WILL SAY IS THAT MANY UNITS ONLY VERIFY 761 01:08:01.331 --> 01:08:07.261 IDENTIFICATIONS. SO YOU ALREADY KNOW OUTCOME IF YOU ARE ASKED TO VERIFY SOMETHING THAT 762 01:08:07.261 --> 01:08:12.216 SOMEONE ELSE THOUGHT WAS IDENTIFICATION. SO THAT MIGHT BE BEHIND BUT EXTREMELY BIASSING. 763 01:08:12.216 --> 01:08:18.003 THE THIRD THING IS THAT WE ALMOST NEVER RECEIVE ANY INFORMATION ABOUT THE VERIFICATION 764 01:08:18.003 --> 01:08:24.726 JUST GET A SIGNATURE THAT SAYS IT WAS REVIEWED. SO IT'S SUPPOSED TO BE COMPLETELY NEW. 765 01:08:24.726 --> 01:08:31.901 ACT SUPPOSED TO BE TWO DIFFERENT ACE HE IS, ACE ^ AN ^ AND SECOND ACE IS THE V. IN PRACTICE 766 01:08:31.901 --> 01:08:37.706 WE DON'T RECEIVE ANY INFORMATION ABOUT THAT WHEN WE GET DISCOVERY. CHIEF JUSTICE 767 01:08:37.706 --> 01:08:43.728 RABNER: THE WITNESSES /KPEUR EXAMINER NOT REVIEWER. TAMAR Y. LERER: YES. 768 01:08:43.728 --> 01:08:48.027 THIS IS INTERESTING ONE BECAUSE WHEN READ THAT FIRST MOTION ABOUT THERE WAS SOMEONE ELSE 769 01:08:48.027 --> 01:08:53.854 FOUND ONE FINGERPRINT UNSUITABLE. WE DON'T KNOW MUCH ABOUT HIM. IT IS LIT AMBIGUOUS. 770 01:08:53.854 --> 01:09:01.082 I WILL SAY THAT NOW WHEN WE REQUEST DISCOVERY OR FILE AS /PHRAOEUD CHALLENGES SUDDEN 771 01:09:01.082 --> 01:09:09.239 OFTEN ANOTHER EXAMINER IS ASKED TO REVIEW THE EVIDENCE SO THERE IS A LOT OF STUFF GOING 772 01:09:09.239 --> 01:09:15.262 ON ^ AN ^ AND LEARNING WHAT THE BEST PRACTICES ARE AND THEN HAVING A YARD STICK TO MEASURE 773 01:09:15.262 --> 01:09:21.602 THEM AGAINST AS ESTABLISHED AT A HEARING WOULD BE TO THE BENEFIT OF THE CRIMINAL LEGAL 774 01:09:21.602 --> 01:09:28.571 SYSTEM AND I THINK WE SHOULD ALL WANT TO KNOW HAD THAT GENERALLY. JUSTICE WAINER 775 01:09:28.571 --> 01:09:34.218 APTER: IN THIGHS CASES THAT HAVE PROCEEDED SINCE FEBRUARY 2023 HAVE THERE BEEN ANY REQUESTS 776 01:09:34.218 --> 01:09:41.256 ON HEARING. TAMAR Y. LERER: NO. JUSTICE WAINER APTER: WHY IS THAT. 777 01:09:41.256 --> 01:09:45.546 TAMAR Y. LERER: WAITING FOR THIS CASE TO COME OUT. ABOUT A YEAR AND SECOND 778 01:09:45.546 --> 01:09:51.280 THING IS THAT YOU LOOK AT WHAT HAPPENS EVERY TIME YOU GET A HEARING ^ AN ^ AND DON'T GET 779 01:09:51.280 --> 01:09:55.064 ONE. JUSTICE WAINER APTER: THERE WAS NO REQUEST FOR A HEARING SO REALLY UNFAIR 780 01:09:55.064 --> 01:10:00.533 TO SAY OF COURSE WE WOULDN'T ASK FOR A HEARING BUT EVERY TIME WE GET ONE WE KEEP GETTING 781 01:10:00.533 --> 01:10:08.749 KNOCKED DOWN. TAMAR Y. LERER: LOOK AT ALL UNPUBLISHED CASES THEY SAY WE'VE 782 01:10:08.749 --> 01:10:13.834 BEEN HEARING THIS FOR ONE HUNDRED YEARS PLEASE SIT DOWN. JUSTICE PATTERSON: 783 01:10:13.834 --> 01:10:20.704 IN FAIRNESS TO THIS TRIAL JUDGE THAT WASN'T THE RESPONSE. IT SOUNDED TO JUST IN READING 784 01:10:20.704 --> 01:10:27.266 TRANSCRIPT NOT PRESENT IN THE ROOM IT SEEMED LIKE THE TRIAL JUDGE HAD THERE BEEN A REQUEST 785 01:10:27.266 --> 01:10:33.198 FOR HEARING ^ AN ^ AND HAD IT BE MAINTAINED WAS PREPARED TO HAVE A HEARING. DON'T KNOW 786 01:10:33.198 --> 01:10:38.038 THAT IT IS FAIR TO SAY THAT PEOPLE HAVE KNEE JERK REACTION THAT THIS HAS BEEN AROUND 787 01:10:38.038 --> 01:10:41.778 FOR ONE HUNDRED YEARS AND THAT IS THE END OF IT. TAMAR Y. LERER: YOU KNOW, WE 788 01:10:41.778 --> 01:10:47.377 DON'T HAVE ANYTHING IN THE RECORD BUT THIS CASE. I CAN TELL YOU THAT THE /SRAOE HEALTH 789 01:10:47.377 --> 01:10:52.986 RESPONSE WE HAVE BEEN DOING IT FOR ONE HUNDRED YEARS IS WHAT WE HERE USUALLY. THERE IS 790 01:10:52.986 --> 01:11:00.068 PRECEDENT. IS THERE A COMBINEDING CASE ON THIS, NO. IS THERE PRECEDENT IS WHAT WE HERE. 791 01:11:00.068 --> 01:11:04.545 JUSTICE WAINER APTER: I AM STILL NOT CLEAR WHY THAT WOULD PLEA CLUDE THE DEFENDANT 792 01:11:04.545 --> 01:11:09.965 FROM REQUESTING A HEARING. OBJECTIONS ARE MADE AND SO THAT ALL THE REQUESTS ARE MADE 793 01:11:09.965 --> 01:11:14.671 AND HERE IT LOOKS LIKE THE ONLY PARTY THAT IS I WANTED TO AMPLIFY THE RECORD WITH THAT 794 01:11:14.671 --> 01:11:20.181 FACT SHOULD SOMEONE BE REVIEWING THIS IN THE FUTURE IS STATE SAYING DEFENDANT DOES NOT 795 01:11:20.181 --> 01:11:24.809 WANT A HEARING AND THEN COURT SAYING I JUST DID WANT TO CONFIRM THAT WITH COUNSEL FOR 796 01:11:24.809 --> 01:11:30.997 MR. LEE. SO IT DOESN'T SEEM LIKE THERE WAS -- I AM NOT CLEAR WHY EVEN IF YOU THINK THE 797 01:11:30.997 --> 01:11:38.479 REQUEST FOR A HEARING WOULD BE DENIED THAT PRECLUDES YOU FROM REQUESTING A HEARING. 798 01:11:38.479 --> 01:11:42.662 TAMAR Y. LERER: NOTHING PRECLUDES US FROM DOING ANYTHING WE WANT. I RUN FORENSIC 799 01:11:42.662 --> 01:11:47.815 SIGNS UNIT. HAVE TO DECIDE HOW WE ARE SPENDING TIME ^ AN ^ AND ENERGY. RIGHT NOW HOW 800 01:11:47.815 --> 01:11:55.611 BEEN SPENDING TIME ^ AN ^ AND ENERGY AS APPLIED CHALLENGES TO DATE /EPB FINGERPRINT. 801 01:11:55.611 --> 01:11:58.711 JUSTICE PIERRE LOUIS: WHAT SHOULD WE MAKE THE REQUEST NOT TO HAVE A HEARING 802 01:11:58.711 --> 01:12:06.178 BECAUSE HERE THERE IS DEFENDANT DOES NOT WANT A HEARING, GOES FORWARD. THE MOTION TO -- 803 01:12:06.178 --> 01:12:11.645 THE MOWING TO PRECLUDE THE FINGERPRINT EVIDENCE IS DENIED. GOES TO TRIAL. GETS CONVICTED 804 01:12:11.645 --> 01:12:17.167 AND THEN ON APPEAL MAKES THIS ARGUMENT THAT THERE SHOULDLY SHOULD HAVE BEEN A HEARING 805 01:12:17.167 --> 01:12:22.503 AND NOW DOES /EPBS MORALS DOZENS MORE -- TONS OF INFORMATION WITH REGARD TO THE CHALLENGE 806 01:12:22.503 --> 01:12:29.582 TO THE FINGERPRINT EVIDENCE. HOW SHOULD WE ASSESS THAT BECAUSE DOESN'T THAT GIVE -- IF 807 01:12:29.582 --> 01:12:34.276 WE SAY OKAY THIS IS FIND THE DEFENDANT SPECIFICALLY DID NOT ASK FOR A HEARING ISN'T 808 01:12:34.276 --> 01:12:39.798 THAT I KNOW /SEBTIVE FOR FUTURE CASES FUTURE PARTIES TO SAY OKAY I DON'T WANT A HEARING 809 01:12:39.798 --> 01:12:45.447 BUT THEN LATER MAKE THE HEARING DOESN'T MATTER WHAT I SAID THE TRIAL JUDGE THAT IS THEIR 810 01:12:45.447 --> 01:12:51.577 GATEKEEPING RULE. WHAT WEIGHT -- HOW SHOULD WE ASSESS THIS? I DON'T THINK WE CAN COMPLETELY 811 01:12:51.577 --> 01:12:58.186 IGNORE THE FACT THAT DEFENDANT SPECIFICALLY AFFIRMATIVE SAID I DON'T WANT A HEARING. 812 01:12:58.186 --> 01:13:02.547 TAMAR Y. LERER: DID I SAY TWO 3 THINGS AGAIN. JUSTICE PATTERSON: 813 01:13:02.547 --> 01:13:09.803 DISAPPOINTED WITH ANY NUMBER WITH 3F. TAMAR Y. LERER: THE FIRST IS THAT THE HEARING 814 01:13:09.803 --> 01:13:15.342 IS ALTERNATIVE ARGUMENT. MY PRIMARY ARGUMENT IS THAT ERROR IN THIS CASE WAS THAT THE 815 01:13:15.342 --> 01:13:21.376 STATE FAILED TO ESTABLISH THE RELIABILITY OF IT IS EVIDENCE. HEARING AT THE VERY LEAST 816 01:13:21.376 --> 01:13:26.908 IN THE ALTERNATIVE IF THE TRIAL COURT BELIEVED THAT IT WOULD NEED MORE INFORMATION ABOUT 817 01:13:26.908 --> 01:13:31.993 THIS TO MAKE DECISION IT SHOULD HAVE HAD BRIEFING SHOULD HAVE HEARING AND SHOULD HAVE 818 01:13:31.993 --> 01:13:37.266 DONE SOMETHING. BUT IT IS THE STATES BURDEN TO PROVE RELIABILITY OF IT IS EVIDENCE. 819 01:13:37.266 --> 01:13:40.536 JUSTICE PATTERSON: REVIEWING APPELATE DIVISION DECISION WHERE HOLDING WAS COURT 820 01:13:40.536 --> 01:13:46.348 UNDER THESE CIRCUMSTANCES ABUSED IT IS DISCRETION BY NOT HAVING A HEARING SO IT IS NOT 821 01:13:46.348 --> 01:13:52.083 A SECONDARY ARGUMENT IN THIS APPEAL. TAMAR Y. LERER: ADMITTING IT WITHOUT A 822 01:13:52.083 --> 01:13:57.839 HEARING WAS ERROR APPELATE DIVISION FOUNDER OPTION -- ANOTHER ALTERNATE INSTEAD OF 823 01:13:57.839 --> 01:14:03.798 ADMITTING IT WITHOUT A HEARING IS EXCLUDING IT. IF YOU READ THE DECISION THEY ARE CONCERNED 824 01:14:03.798 --> 01:14:08.611 ABOUT ADMISSION OF THIS EVIDENCE WITHOUT EVIDENCE OF IT IS RELIABILITY. JUSTICE 825 01:14:08.611 --> 01:14:12.231 WAINER APTER: JUST TO MAKE SURE I UNDER IS THAT YOUR PRIMARY ARGUMENT IS THAT THE EVIDENCE 826 01:14:12.231 --> 01:14:18.213 SHOULD NEVER HAVE BEEN ADMIT ^ AN ^ AND HOLD NO IF I CAN PRINT EVIDENCE THERE CAN BE RETRIAL 827 01:14:18.213 --> 01:14:23.907 AND NO FINGERPRINT EVIDENCE CAN COME IN. TAMAR Y. LERER: IF THIS COURSE REVERSE 828 01:14:23.907 --> 01:14:30.463 HE IS AND SAYS I BELIEVE IT SHOULD. JUSTICE WAINER APTER: YOU WANT US TO AFFIRM. 829 01:14:30.463 --> 01:14:35.796 TAMAR Y. LERER: AFFIRMS REVERSAL AND SAYS THE ADMISSION OF EVIDENCE FINGERPRINT 830 01:14:35.796 --> 01:14:41.053 EVIDENCE WITHOUT THE STATE PUTTING FORWARD ANY EVIDENCE TO SUPPORTS IT IS RELIABILITY 831 01:14:41.053 --> 01:14:49.295 WAS RE/SRER I BELIEVE ERROR ON REMAND IF THEY DECIDE TO RETRY THIS THIRD-DEGREE BURGLARY 832 01:14:49.295 --> 01:14:58.888 CASE WHICH THEY MAY OR MAY NOT DO. THIS THREAD'S LIKE TO PUT FINGERPRINT EVIDENCE A HEARING 833 01:14:58.888 --> 01:15:05.233 HAS TO BE HAD IS APPROPRIATE TO HANDLE IT NOW THAT WE'VE BEEN IN THIS ^ AN ^ AND TRYING 834 01:15:05.233 --> 01:15:09.001 TO FIGURE OUT HOW TO DETERMINE THE ADMISSIBILITY. CHIEF JUSTICE RABNER: HAS 835 01:15:09.001 --> 01:15:15.372 THE COURT TAKEN THAT APPROACH BEFORE. TAMAR Y. LERER: MAYBE OLENOWSKI BECAUSE 836 01:15:15.372 --> 01:15:20.233 EVERYONE. CHIEF JUSTICE RABNER: WHAT ABOUT HENDERSON. TAMAR Y. LERER: 837 01:15:20.233 --> 01:15:24.728 I THINK HENDERSON -- BARELY IDENTIFICATION CASE RIGHT. CHIEF JUSTICE RABNER: 838 01:15:24.728 --> 01:15:32.188 HEN SON SAID WE WON'T HAVE A HEARING BUT DIDN'T REVERSE THE HEARING BEFORE CONVICTED. 839 01:15:32.188 --> 01:15:35.396 TAMAR Y. LERER: MISS UNDERSTOOD YOUR QUESTION. CHIEF JUSTICE RABNER: 840 01:15:35.396 --> 01:15:40.795 YOUR POSITION IT MUST GO AWAY BECAUSE THERE WAS NO HEARING. TAMAR Y. LERER: 841 01:15:40.795 --> 01:15:47.780 3 THINGS. FIRST BURDEN ISN'T ON STATE TO PROVE ADMISSIBILITY OF IDENTIFICATION EVIDENCE 842 01:15:47.780 --> 01:15:54.721 THE SAME WAY PROPONENT OF /EFS HAS BURDEN. SO THAT IS DIFFERENT. THE SECOND THING IS THAT 843 01:15:54.721 --> 01:16:02.374 THERE ARE OTHER ISSUES IN THIS CASE THAT REQUIRE REVERSAL. AND THE THIRD THING DON'T 844 01:16:02.374 --> 01:16:09.313 REMEMBER THE FACTS OF HEN SON AS WELL BUT REASON I SAID IT WASN'T HENDERSON OR IDENTIFICATION 845 01:16:09.313 --> 01:16:13.244 CASE DIDN'T RICE ^ AN ^ AND FAULT ON ADMISSIBILITY OF THE IDENTIFICATION IN THE 846 01:16:13.244 --> 01:16:18.344 CAN A THAT THIS CASE RISES ^ AN ^ AND FALLS ON ADMISSIBILITY OF THE FINGERPRINT AND HAVE 847 01:16:18.344 --> 01:16:23.774 THE STATE PUT FORWARD NO EVIDENCE TO SUPPORT RELIABILITY. CHIEF JUSTICE RABNER: 848 01:16:23.774 --> 01:16:29.589 IN THEORY IF THIS COURT WERE TO /TPRAPBT A HEARING TOMORROW AND FULL /TPHREPBL HEARING 849 01:16:29.589 --> 01:16:34.125 ENSUED WHICH CONCLUDED THAT THIS EVIDENCE WAS RELIABILITY ^ AN ^ AND VALID WOULD THAT 850 01:16:34.125 --> 01:16:39.380 BE A BASIS FOR REVERSAL OF DEFENDANT'S CONVICTION. TAMAR Y. LERER: TWO 851 01:16:39.380 --> 01:16:44.003 THINGS. FIRST IS THINK BURDENS ARE IMPORTANT ^ AN ^ AND STOP SAYING BURDEN IN MINUTE. 852 01:16:44.003 --> 01:16:49.095 BUT LOOKING AT THIS TRIAL AND I THINK THE MOST APPROPRIATE THING TO DO IS SAY THE COURT 853 01:16:49.095 --> 01:16:54.057 EVIDENCE IN THIS CASE, THE DEFENSE PUT FORWARD A CHALLENGE TO ITS ADMISSIBILITY. STATE 854 01:16:54.057 --> 01:16:59.121 DID NOT MEET IT IS BURDEN. DID NOT PUT IN ANY EVIDENCE AND THAT IS REVERSIBLE ERROR. 855 01:16:59.121 --> 01:17:04.397 THINK OUR DESIRE TO LEARN AND KNOW IS WHY WE ARE TALKING ABOUT THIS HEARING. THINK LEARNING 856 01:17:04.397 --> 01:17:09.258 AND KNOWING IS GOOD. I DON'T UNDERSTAND RESISTANCE TO LEARNING AND KNOWING. THINK 857 01:17:09.258 --> 01:17:16.082 THE WISE EVIDENT COURSE OF ACTION WOULD BE ASSIGN SPECIAL AJUDGED OR TO LEARN AND KNOW. 858 01:17:16.082 --> 01:17:23.952 BUT BURDENS ARE REAL. STATE COULD HAVE SAID FINE, NEED BRIEFING SCHEDULE. I NEED TO 859 01:17:23.952 --> 01:17:31.555 BRING MY EXPERT. THERE ARE TWO PARTIES HERE AND ONE BEARING THE BURDEN TO BEAR ADD /PWHEULT 860 01:17:31.555 --> 01:17:35.830 OF THE EVIDENCE. JUSTICE WAINER APTER: I AM UNCLEAR WHY STATE PRECLUDED FROM 861 01:17:35.830 --> 01:17:42.092 SAYING EVERY OTHER COURT IN THE HISTORY OF THE UNIVERSE HAS -- WHY CAN'T THAT BE AT LEAST 862 01:17:42.092 --> 01:17:47.712 PART OF WHAT THEY ARE INTRODUCING TO MEET THEIR BURDEN AND THEN THE DEFENDANT HAS TO COME 863 01:17:47.712 --> 01:17:52.160 FORWARD WITH SOMETHING THAT SAYS EVERY OTHER COURT IN THE HISTORY UNIVERSE IS WRONG ^ AN ^ 864 01:17:52.160 --> 01:17:56.519 AND HERE IS WHY WE WANT TO PUT-ON TO EXPLAIN THAT. TAMAR Y. LERER: BECAUSE THIS 865 01:17:56.519 --> 01:18:03.702 COURT HAS MADE CLEAR THAT JUDICIAL ACCEPTANCE DOESN'T MAKE RELIABILITY WE ARE DAUBERT 866 01:18:03.702 --> 01:18:12.281 JURISDICTION. SO SAYING IS PART OF EVIDENCE ABOUT ONE FACTOR IS NOT GOOD ENOUGH. IF YOU 867 01:18:12.281 --> 01:18:17.495 LOOK AT THESE CASES AND LOOK UNDER THE HOOD IT IS JUDICIAL HOUSE OF CARDS AND NOT GOOD 868 01:18:17.495 --> 01:18:23.257 ENOUGH ^ AN ^ AND UNFORTUNATELY THE HISTORY OF FORENSIC SCIENCE IS LITTERED WITH THINGS 869 01:18:23.257 --> 01:18:27.878 THAT WE USED FOR A LONG TIME THAT WE THOUGHT WAS GOOD AND NOT GOOD. WE DON'T CALL THE 870 01:18:27.878 --> 01:18:36.853 CSAS EXPERTS IN MORE. JUSTICE WAINER APTER: THE WAY WE LEARN IT WAS NOT GOODBYE 871 01:18:36.853 --> 01:18:41.959 THE STATE NOT SAYING HEARING I /-P WANT TO SHOW YOU THAT THIS EVIDENCE THAT ALL THE COURTS 872 01:18:41.959 --> 01:18:46.797 HAVE ACCEPTED IS NOT GOOD. IT IS BY DEFENDANT SAYING WE NEED A HEARING BECAUSE HERE IS 873 01:18:46.797 --> 01:18:51.630 WHO WE WANT TO TESTIFY TO SHOW THIS IS NOT GOOD ANYMORE. TAMAR Y. LERER: I DON'T 874 01:18:51.630 --> 01:18:57.020 THINK OLENOWSKI OR IN /HEPBDZ SON THE INITIAL REQUEST WAS ONE FOR A HEARING AND THIS COURT 875 01:18:57.020 --> 01:19:01.847 FOR BOTH CASES SAID NO ALL OTHER STATES ARE USING THEM. JUSTICE PATTERSON: 876 01:19:01.847 --> 01:19:09.498 THAT IS WHERE WE ARE NOW IN THIS CASE BECAUSE OF /AEPDZ DIVISION REVERSAL IN PART BECAUSE OF 877 01:19:09.498 --> 01:19:14.119 OF IT IS VIEW THAT UNDER THE CIRCUMSTANCES HERE THE TRIAL COURT ABUSED IT IS DISCRETION 878 01:19:14.119 --> 01:19:20.541 BY NOT HOLDING A HEARING. THAT IS WHAT CHRIS LIES HE IS -- UNDERSTAND YOU HAVE BIGGER 879 01:19:20.541 --> 01:19:26.207 PICTURE IN THIS CASE AND OTHER CASES TO CONSIDER BUT WE HAVE A CASE HERE WHERE THE PROCEDURAL 880 01:19:26.207 --> 01:19:32.815 HISTORY GOT A REVERSAL. TAMAR Y. LERER: RIGHT. JUSTICE PATTERSON: 881 01:19:32.815 --> 01:19:39.092 AND THAT IS WHERE WE ARE IN THIS PARTICULAR CASE. DON'T WANT TO KEEP REPEATING MYSELF. 882 01:19:39.092 --> 01:19:45.960 ACTUALLY HAVE NARROW FOCUS IN THIS CASE WHICH IS FRENCH LEE. HE SAID THIS IS EVIDENCE 883 01:19:45.960 --> 01:19:54.674 IS NOT RELIABLE. HERE IS THE NAS REPORT AND PCAST REPORT. HERE IS /TREUPBL S REPORT 884 01:19:54.674 --> 01:20:00.124 TO SAY IT IS I KNOW DEFENSE I BELIEVE FOR IDENTIFICATION ^ AN ^ AND HELP TO GO TO TRIAL 885 01:20:00.124 --> 01:20:05.097 ANYWAY AND CONVICTED AT TRIAL WHERE FINGERPRINTS EVIDENCE IS ONLY EVIDENCE IN THIS CASE. 886 01:20:05.097 --> 01:20:13.478 THIS COURT IS FREE TO SAY /AEPDZ IS WRONG ABOUT A HEARING. IT SHOULD BE REVERSED ON 887 01:20:13.478 --> 01:20:20.097 THAT BASIS. THIS COURT IS NOT BOUND TO DO WHAT APPELATE DIVISION DID. I WANT TO TALK 888 01:20:20.097 --> 01:20:27.810 REALLY BRIEFLY BEFORE WE HAVE TO MOVE ON ABOUT WEIGHT AND NOT ADMISSIBILITY BECAUSE I 889 01:20:27.810 --> 01:20:34.803 HEARD A LOT OF THAT HERE AND THE IDEA THAT CONCERNS WITH ANY SCIENTIFIC DISCIPLINE GOES 890 01:20:34.803 --> 01:20:40.984 TO WEIGHT AND NOT ADMISSIBILITY IS MOST COMMON REFRAIN FROM PROSECUTORS ^ AN ^ AND COURTS 891 01:20:40.984 --> 01:20:45.795 WHEN WE DEAL WITH THESE ISSUES. WANT TO SAY TWO THINGS WHY THAT IS NOT ALTERNATIVE TO 892 01:20:45.795 --> 01:20:51.772 ACTUALLY SESSING RELIABILITY. FIRST OF COURSE TO SAY THE TRIAL COURT IS GATEKEEPER. 893 01:20:51.772 --> 01:20:58.376 NOT EVERYTHING CAN GO TO WEIGHT ^ AN ^ AND ADMIT BUILT. THAT IS THE POINT. DON'T LEFT 894 01:20:58.376 --> 01:21:03.812 FRIEND /OLGS IN EVERYBODY THOUGH USED FOR LONG TIME ^ AN ^ AND DON'T LET PSYCH /EUBGS 895 01:21:03.812 --> 01:21:15.238 IN. THIS COURT JUST RECOGNIZED IN /TPHEF NIEVES HOW /KPWELG EXPERTS ARE. BUT SOMETHING 896 01:21:15.238 --> 01:21:22.494 AND THIS MILLION DATES TOWARDS HAVING A HERE AND IN SOME WAYS TALKING OVER HAVING A HERE. 897 01:21:22.494 --> 01:21:27.884 THERE SHOULD BE A HEARING. WE SHOULD LEARN. WE SHOULD LEARN. THAT IS NOT THE SAME 898 01:21:27.884 --> 01:21:35.850 THING AS MY POSITION FOR PRY CLIENT. BUT WHEN THE IDEA THAT THE WEIGHT ASSIGN /TEUFBG 899 01:21:35.850 --> 01:21:42.376 -- THAT A JURY GIVES A SCIENTIFIC DISCIPLINE WHEN OBJECTIVE TRUTH IN THE WORSE ABOUT IT 900 01:21:42.376 --> 01:21:47.384 IS RELIABILITY. NOT A LAY WITNESS RIGHT WHERE CREDIBILITY IS ALL SUBJECTIVE WEIGHT. 901 01:21:47.384 --> 01:21:52.584 THAT THE JURY GIVES THE SCIENTIFIC DISCIPLINE HAS TO BE BASED ON SKILL OF THE DEFENSE 902 01:21:52.584 --> 01:21:59.394 ATTORNEY, THE TRANSPARENCY OF THE EXAMINER AND THE ATTITUDE OF THE PROSECUTOR THAT IS 903 01:21:59.394 --> 01:22:07.158 CONTRARY TO JUSTICE. SO IN THIS CROSS LOOK AT THIS CROSS, THE FINGERPRINT EXAMINER WALKED 904 01:22:07.158 --> 01:22:13.926 ALL OVER THE DEFENSE ATTORNEY AND GOOD FOR HIM. DID HE A GOOD JOB. RIGHT HE'S TRAINED 905 01:22:13.926 --> 01:22:22.029 EXPERT. PICTURE /OBSD AT EVERY TURN. FINE. HEARSAY. WHAT IS THE JURY LEARNING. HOW 906 01:22:22.029 --> 01:22:28.770 DOES THE JURY UNDER STAND WHAT WEIGHT TO GIVE THIS EVIDENCE. IT COULDN'T POSSIBLY -- 907 01:22:28.770 --> 01:22:34.778 IT DOESN'T DIVINE THOSE TOOLS AND THAT HENDERSON SAYS IN PART. THAT IS WHY WE HAVE JURY 908 01:22:34.778 --> 01:22:39.413 INSTRUCTIONS IN HENDERSON STANDING UP HERE ^ AN ^ AND SAYING WELL THERE IS 20 POINTS, 909 01:22:39.413 --> 01:22:45.680 30 POINTS THAT IS GOOD ENOUGH. THE JURY DIDN'T ACTUALLY GET TO LEARN ANYTHING ABOUT THE 910 01:22:45.680 --> 01:22:52.021 CIRCUMSTANCES UNDER WHICH FINGERPRINT COMPARISON EVIDENCE IS MORE ^ AN ^ AND LESS RELIABILITY. 911 01:22:52.021 --> 01:22:57.364 SO IF WE ARE GOING TO SAY THIS IS ALL GOING TO BE CURED AT TRIAL, READ THIS TRANSCRIPT. 912 01:22:57.364 --> 01:23:03.789 IT WAS NOT CURED AT TRIAL. THEY ARE NOT GETTING THE INFORMATION THEY NEED AT TRIAL. 913 01:23:03.789 --> 01:23:09.634 CHIEF JUSTICE RABNER: ARE THERE QUESTIONS WITH RESPECT TO THIS IRON YOU. 914 01:23:09.634 --> 01:23:12.797 CHIEF JUSTICE RABNER: WOULD LIKE TO ASK YOU ABOUT WATSON AS WELL. DID YOU DISPUTE 915 01:23:12.797 --> 01:23:22.233 SAME PERSON COMMITTED BOTH BURGLARIES. DID THE DEFENSE DISPUTE THAT IT WAS SAME INDIVIDUAL 916 01:23:22.233 --> 01:23:27.554 WHO SUBMITTED BOTH BREAK IN ^ AN ^ AND BURGLARIES IN THIS CASE. TAMAR Y. LERER: 917 01:23:27.554 --> 01:23:34.171 NO HE SAID HE DIDN'T DO EITHER THING. I FIND IT ODD YOU SAID I DIDN'T DO THAT AND TWO 918 01:23:34.171 --> 01:23:38.761 DIFFERENT PEOPLE DID THAT. IF YOU HAD'S BEEN IN TRIAL COURT PUT-UP DEFENSE WOULD BE ^ AN ^ 919 01:23:38.761 --> 01:23:43.740 AND ODD WITH A TO HANDLE BLACK ET DENIAL. CHIEF JUSTICE RABNER: YOU HEARD SUMMARY 920 01:23:43.740 --> 01:23:50.078 REFERENCE TO WHAT WAS SAID IN THE OPENING WHICH SOUNDED LIKE NOT DISPUTED. DO YOU DISAGREE. 921 01:23:50.078 --> 01:23:54.205 TAMAR Y. LERER: YES. THERE IS A FEW THINGS MEAD TO SAY. THINK THE IS ANSWER 922 01:23:54.205 --> 01:24:00.527 IS YES BUT LET'S GO THROUGH IT. ONE IS BLANKET DENIAL INCLUDES DENIAL AS TO BOTH. TO 923 01:24:00.527 --> 01:24:10.757 ANSWER JUSTICE NS QUESTION THE STIPULATION SAYS WITH ALL EVIDENCE UNREJECTED BY JURY. 924 01:24:10.757 --> 01:24:16.006 JUSTICE WAINER APTER: WANT TO MAKE SURE DID DEFENSE COUNSEL DISPUTE THAT THE 925 01:24:16.006 --> 01:24:21.494 SAME INDIVIDUAL SUBMITTED BOTH BURGLARIES. WAS THAT A YES OR NO. TAMAR Y. LERER: 926 01:24:21.494 --> 01:24:28.781 I THOUGHT THE QUESTION WAS DID THE DEFENSE ATTORNEY -- NOW I ALREADY LOST IT. NO 927 01:24:28.781 --> 01:24:32.869 /SPHR*EUS IT DISAGREEMENT BY DEFENSE ATTORNEY ABOUT ^ WHETHER ^ WEATHER THESE PEOPLE WERE 928 01:24:32.869 --> 01:24:37.494 THE SAME /PE PEOPLE. JUSTICE WAINER APTER: AND DEFENSE ATTORNEY REFERRED TO 929 01:24:37.494 --> 01:24:40.952 THEM IN SINGULAR. TAMAR Y. LERER: FROM WHAT ELSE HAPPENED IN THE TRANSCRIPT. 930 01:24:40.952 --> 01:24:47.684 BEFORE THE TRIAL THERE WAS CONVERSATION ABOUT WHETHER THE DEFENSE CAN CROSS ABOUT THE 931 01:24:47.684 --> 01:24:56.199 RAISE OF THE PERSON IN THE VIDEOS, PEOPLE IN THE VIDEOS. THE STATE AT 3T EXPLAINS HAVE 932 01:24:56.199 --> 01:25:02.415 CLEARLY WHY THERE CAN'T BE ^ OPINION ^ PIN EVIDENCE IN THIS VIDEOS. HE THE OFFICER 933 01:25:02.415 --> 01:25:25.097 DOESN'T HAVE SOME POUR OR (READING). SO EVERYONE UNDERSTOOD THIS WAS INAPPROPRIATE. THE 934 01:25:25.097 --> 01:25:30.580 STATE UNDERSTOOD THAT ^ AN ^ AND OPINION THAT IT WAS THE SAME PERSON WOULD BE INAPPROPRIATE 935 01:25:30.580 --> 01:25:36.214 AND THEN WANT TO DIRECT THE STATE THIS COURT I AM SORRY TO THE STATES CLOSING. THE STATE 936 01:25:36.214 --> 01:25:42.232 SPENDS ALL OF IT IS CLOSING ON ONLY TWO THINGS THE FINGERPRINT AND THAT IT IS THE SAME 937 01:25:42.232 --> 01:25:49.007 GUY IN THE TWO VIDEOS. LOOK AT 15. THE VOLUME PAGE 15. WHAT DOES COMMON SENSE TELL 938 01:25:49.007 --> 01:26:16.072 YOU TWO BURG LAST 48 HOURS APART (READING) /*FPLT I DON'T KNOW HOW WE CAN SAY IT NOT 939 01:26:16.072 --> 01:26:19.991 DISPUTED. JUSTICE HOFFMAN: DID DID DEFENSE COUNSEL DISPUTE THAT. TAMAR 940 01:26:19.991 --> 01:26:23.145 Y. LERER: HE SAID NONE OF THIS IS ME. CHIEF JUSTICE RABNER: THAT IS NOT FOCUS 941 01:26:23.145 --> 01:26:28.945 ON THE QUESTION WE ARE ALL TRYING TO ASK. YES HE SAID IT IS NOT ME. I DIDN'T COMMIT 942 01:26:28.945 --> 01:26:37.833 THIS CRIME. DID THE DEFENSE DURING THIS TRIAL SAY IT WAS TWO DIFFERENT PEOPLE OR DISPUTE 943 01:26:37.833 --> 01:26:41.888 THAT IT WAS ONE PERSON OTHER THAN THE DEFENDANT. TAMAR Y. LERER: NO AND /KPWR 944 01:26:41.888 --> 01:26:48.005 WOULD HE DO THAT. WHEN ISSUE A BLANKET DENIAL THIS IS NOT ME. NONE OF THIS IS ME TO 945 01:26:48.005 --> 01:26:54.545 SAY ALSO THESE TWO PEOPLE ARE NOT THE SAME PERSON -- TO. JUSTICE PIERRE LOUIS: 946 01:26:54.545 --> 01:26:59.164 I DON'T HAVE THE OPENING IN FRONT OF ME BUT IF I RECALL CORRECTLY IT WAS SOMETHING LIKE 947 01:26:59.164 --> 01:27:06.219 THAT MAN IN THE VIDEO IS NOT FRENCH LEE. YOU DON'T NEED AN EXPERT TO STEAL YOU THAT AND 948 01:27:06.219 --> 01:27:09.877 DONE. TAMAR Y. LERER: YES, THE WHOLE OPENING. JUSTICE PIERRE LOUIS: 949 01:27:09.877 --> 01:27:13.867 I DON'T KNOW HOW MUCH WE CAN GREEN FROM THE OPENING BECAUSE MAYBE HE IS TALKING ABOUT 950 01:27:13.867 --> 01:27:18.999 ONE VIDEO MAYBE TALKING ABOUT BOTH BUT WERE THERE ANY OTHER PLACES IN THE TRANSCRIPT WHERE 951 01:27:18.999 --> 01:27:23.512 THERE WAS -- DON'T THINK YOU CAN TELL MUCH FROM THE OPENING BUT ANY OTHER PLACES IN THE 952 01:27:23.512 --> 01:27:31.780 TRANSCRIPT WHERE DEFENSE COUNSEL REFERRED TO THAT PERSON, ONE PERSON. TAMAR Y. LERER: 953 01:27:31.780 --> 01:27:36.948 NO, I DON'T THINK SO. AND AGAIN. CHIEF JUSTICE RABNER: BUT IF IT'S THAT MAN 954 01:27:36.948 --> 01:27:42.481 DOESN'T THAT MAKE THIS -- ASSUME IT IS ERROR. DOESN'T THAT MAKE IT LESS OF A SIGNIFICANT 955 01:27:42.481 --> 01:27:46.997 ERROR? TAMAR Y. LERER: I WOULD ASKING THAT THIS COURT LOOK AT THE VIDEOS IF 956 01:27:46.997 --> 01:27:53.038 IT HAS /-PBLT LOOKED AT VIDEOS YET WHICH WERE IN THE STATES /AEPDZ APPENDIX AND I HOPE 957 01:27:53.038 --> 01:27:59.976 WERE SUBMITTED TO THE COURT. I BROUGHT MY COPIES IF NOT. I HAVE 3. IT IS NOT OBVIOUS 958 01:27:59.976 --> 01:28:06.334 THAT IT IS THE /SAEUP MAN AND THAT IS WHY THE PROSECUTOR SPEND TIME TALKING ABOUT IT. 959 01:28:06.334 --> 01:28:13.449 ALSO IMPORTANT TO REMEMBER ONE THUMB PRINT ON SEPTEMBER 28. THAT IS PRINT AFIS FOUND 960 01:28:13.449 --> 01:28:19.665 UNSUITABLE. THERE IS STIPULATION ABOUT THAT. UNSUITABLE. 4 FINGERPRINTS ON SEPTEMBER 961 01:28:19.665 --> 01:28:26.327 30 THAT AFIS RETURNS TO FRENCH LEE. SO THERE IS A DIFFERENCE IN WEIGHT FOR THESE TWO 962 01:28:26.327 --> 01:28:32.977 DATES. ONLY ONE OF THEM FIRST ONE WITH UNSUITABLE COMPARISON THUMB PRINT WAS WHEN 963 01:28:32.977 --> 01:28:40.554 THE MONEY WAS TAKEN. THE DEFENSE ATTORNEY SAYS THIS ISN'T HIM. DOES THAT BY IMPLICATION 964 01:28:40.554 --> 01:28:47.652 SAY BOTH THESE PEOPLE ARE NOT HIM AND THEY ARE SAME PERSON, MAYBE. BUT WITH BLANKET DENIAL 965 01:28:47.652 --> 01:28:53.349 THE STATE HAD TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT COMMITTED BOTH OFFENSES 966 01:28:53.349 --> 01:28:58.776 AND THE WEIGHT OF THE ONLY EVIDENCE IN THIS CASE THE FINGERPRINT EVIDENCE, THE WEIGHT 967 01:28:58.776 --> 01:29:06.419 OF THIS EVIDENCE WAS DIFFERENT ON EACH OF THOSE DATES. SO THE DEFENSE -- SHOULD THE DEFENSE 968 01:29:06.419 --> 01:29:11.997 HAVE OBJECTED MAYBE. BUT STRATEGY WAS BLANKET DENIAL. I DON'T KNOW THAT SAYING YOU ALSO 969 01:29:11.997 --> 01:29:19.752 HAVE TO OBJECT TO EVERYTHING THAT THE STATE IS BRINGING OUT THAT IS INAPPROPRIATE THAT 970 01:29:19.752 --> 01:29:25.935 DOESN'T NECESSARILY CURRENTLY EVICT YOUR THEORY OF DEFENSE BUT DOES TO THE ELEMENTS. 971 01:29:25.935 --> 01:29:28.856 JUSTICE WAINER APTER: DO YOU AGREE NO OBJECTION TO ANY CONVICTION TESTIMONY 972 01:29:28.856 --> 01:29:34.571 AT ALL. TAMAR Y. LERER: NOT DURING THE TESTIMONY. THERE IS A LOT OF DISCUSSION 973 01:29:34.571 --> 01:29:42.329 IN 3T ABOUT WHAT COULD BE SAID. I DON'T KNOW WHY EVERYONE GAVE UP ON PARAMETERS HERE. 974 01:29:42.329 --> 01:29:48.128 IT WAS ON EVERY ONCE RADAR. CHIEF JUSTICE RABNER: NO OBJECTION TO DEBTS I WAS 975 01:29:48.128 --> 01:29:54.518 TESTIMONY. TAMAR Y. LERER: I DON'T THINK IT IS. GOES TO THE PROPRIETY QUESTION 976 01:29:54.518 --> 01:29:59.393 RIGHT. IS THIS APPROPRIATE TESTIMONY. WHEN YOU LOOK REQUIREMENT. JUSTICE WAINER 977 01:29:59.393 --> 01:30:05.381 APTER: I THOUGHT WE WERE IN THE PLAIN ERROR UNIVERSE TO SAY CLEARLY POSSIBLE TO PRODUCE 978 01:30:05.381 --> 01:30:10.136 RESULTS ^ AN ^ AND STATE ARGUES NO BECAUSE DEFENDANT CONCEDED SAME PERSON. HE JUST SAID 979 01:30:10.136 --> 01:30:14.934 THAT IS NOT ME. TAMAR Y. LERER: I THOUGHT MAYBE TWO WAYS TO LOOK AT IT. I 980 01:30:14.934 --> 01:30:21.644 THINK DOES WATSON ALLOW IT BECAUSE IT IS DISPUTED AND IF IT DOES NICE IT IS NOT REVERSIBLE 981 01:30:21.644 --> 01:30:26.526 BECAUSE IT IS NOT DISPUTED. TAMAR Y. LERER: NOW COMPLETELY LOST MY TRAIN OF 982 01:30:26.526 --> 01:30:32.090 THOUGHT. BUT THE VIDEO IS JUST NOT THAT STRAIGHTFORWARD. IT IS WHY THE STATE SPENT A 983 01:30:32.090 --> 01:30:38.179 LOT OF TIME IN CLOSING DEALING WITH THIS, THE VIDEOS THERE IS 4 OF THEM. AND THEY ALSO 984 01:30:38.179 --> 01:30:43.556 SAY COMES IN FROM SAME WINDOW. YOU CAN'T SEE WHERE THE PERSON COMES IN. YOU CAN'T SEE 985 01:30:43.556 --> 01:30:49.529 ALMOST ANYTHING IN THESE VIDEOS ^ AN ^ AND DEFENSE SAID THIS ISN'T ME. BUT THAT'S NOT 986 01:30:49.529 --> 01:30:54.491 THE SAME THING SO SAY I CONCEDE THESE ARE THE SAME PERSON THAT YOU CAN GIVE ^ OPINION ^ PIN 987 01:30:54.491 --> 01:30:59.352 ON ELEMENT OF THE OFFENSE THAT REQUIRES INTERPRETATION AN INFERENCE AS LEAD DETECTIVE 988 01:30:59.352 --> 01:31:04.197 IN THIS. JUSTICE HOFFMAN: YOU ARE SAYING THE STATE SPENT ALL OF THIS TIME ON 989 01:31:04.197 --> 01:31:10.055 FACT THAT IT WAS THE SAME PERSON. WHERE DID THE DEFENSE COUNSEL IN THEIR RESPONSE DURING 990 01:31:10.055 --> 01:31:16.618 CLOSING SPEND ANY TIME ON THE FACT THAT IT WASN'T THE SAME PERSON? TAMAR Y. LERER: 991 01:31:16.618 --> 01:31:22.040 HE DIDN'T. HE DIDN'T. DEFENSE COUNSEL SAID THIS ISN'T HIM, RIGHT. THIS ISN'T HIM. 992 01:31:22.040 --> 01:31:28.135 HE IS INNOCENT OF BOTH OFFENSES, IT HAS NOTHING TO DO WITH HIM. THAT IS DEFENSE STRATEGY 993 01:31:28.135 --> 01:31:34.698 HE CHOSE WAS BLANKET DENIAL. BUT THERE WAS NO -- THIS IS NOT A SITUATION WHERE LIKE THE 994 01:31:34.698 --> 01:31:40.017 DEFENDANT CONCEDES THE ^ PRESENCE ^ PRESENTS AT SCREEN AND ONLY QUESTION IS CONSENT OTHER 995 01:31:40.017 --> 01:31:45.585 THAN INTENT. IT WAS I WASN'T THERE. I WASN'T THERE AT ALL. THIS IS NOT ME. THEN STATE 996 01:31:45.585 --> 01:31:50.922 HAS TO PROVE HE WAS THERE ^ AN ^ AND COMMIT OFFENSES ON BOTH DATES. ^ AN ^ AND TO ME 997 01:31:50.922 --> 01:31:57.261 THAT KEEPS IT FIRMLY WITHIN THE REALM WHAT FACT FINDER HAS TO DECIDE. I UNDERSTAND YOU 998 01:31:57.261 --> 01:32:03.779 DIDN'T ASK ANYONE ABOUT THIS BUT WILL LOOK AT YOU AND SAY THIS AND YOU CAN TELL ME TO 999 01:32:03.779 --> 01:32:09.849 SIT DO YOU KNOW IF NECESSARY CHIEF JUSTICE. BUT WOULD JUST LIKE TO ASK IF THERE IS ANY 1000 01:32:09.849 --> 01:32:15.483 NEED TO DISCUSS THE LITTLE ISSUE THE JURY VOIR DIRE ISSUE BECAUSE I DO THINK IT IS IMPORTANT 1001 01:32:15.483 --> 01:32:20.345 ISSUE. CHIEF JUSTICE RABNER: PICK THE FAVORITE NUMBER OF THE MORNING AND SAY 1002 01:32:20.345 --> 01:32:25.506 TAKE 3 MINUTES ^ AN ^ AND REST YOUR ARGUMENT. TAMAR Y. LERER: OKAY. SO VOIR 1003 01:32:25.506 --> 01:32:30.934 DIRE. ASKING THE JURY IF IT HAS PRECONCEIVED NOTIONS THAT MAKE IT UNABLE TO SES THE ONLY 1004 01:32:30.934 --> 01:32:37.871 EVIDENCE IN THIS CASE IMPARTIALLY IS NOT ADVOCACY OR I KNOW DOCTRINE NATION IS ONLY WAY 1005 01:32:37.871 --> 01:32:43.698 TO IMPAIR A FAIR /SKWRUPBL /*R JURY. TRIAL COURT SHOULD HAVE ASKED SOME QUESTION TO /SUS 1006 01:32:43.698 --> 01:32:48.678 OUT ^ WHETHER ^ WEATHER JURORS HAD PRECONCEIVED NOTIONS ABOUT INFALLIBILITY OF FINGERPRINT 1007 01:32:48.678 --> 01:32:53.915 EVIDENCE. JUSTICE PATTERSON: IT WASN'T ABOUT A TYPE OF CATEGORY I OF CHALLENGED 1008 01:32:53.915 --> 01:33:01.534 EVIDENCE. IT WAS ABOUT AN ELEMENT NOT BEING THERE FOR THAT WEAPONS CHARGE. 1009 01:33:01.534 --> 01:33:06.963 TAMAR Y. LERER: SURE BUT LITTLE IS ABOUT. TAMAR Y. LERER: YOU WROTE IT. YOU 1010 01:33:06.963 --> 01:33:12.055 WOULD KNOW, YES. JUSTICE PATTERSON: I DID. WHERE DOES IT END. THAT IS REACTION 1011 01:33:12.055 --> 01:33:18.160 AS I WAS READING THIS WHERE DOES IT END? EVERY SINGLE CATEGORY I OF THE EVIDENCE THAT IS 1012 01:33:18.160 --> 01:33:23.402 GOING TO BE ADMITTED NEEDS TO BE VETTED ON VOIR DIRE. TAMAR Y. LERER: I THINK 1013 01:33:23.402 --> 01:33:28.978 IN A SITUATION WHERE THE COURT EVIDENCE IN THE CASE, THE OWN EVIDENCE IN THE CASE THE 1014 01:33:28.978 --> 01:33:34.736 DEFENSE ATTORNEY IS ASKING TO FIND OUT IF SOMEONE CANNOT BELIEVE THAT IT MIGHT BE INCORRECT 1015 01:33:34.736 --> 01:33:39.393 THAT QUESTION HAS TO BE ASKED. JUSTICE PIERRE LOUIS: SO IF THERE IS CASE THAT 1016 01:33:39.393 --> 01:33:46.737 INVOLVES BALLISTICS EVIDENCE, DNA EVIDENCE DRUG TESTING ANALYSIS THE JURY HAS TO BE ASKED 1017 01:33:46.737 --> 01:33:51.249 ALL OF THOSE QUESTIONS ABOUT EVERY PIECE OF EVIDENCE. TAMAR Y. LERER: I THINK 1018 01:33:51.249 --> 01:33:56.480 IF THE COURT IS LOOKING TO DRAW A LINE THERE IS A DIFFERENCE BETWEEN THE ONLY EVIDENCE 1019 01:33:56.480 --> 01:34:00.891 IN THE CASE ^ AN ^ AND MANY FORMS OF EVIDENCE IN THE CASE. THAT IS WHAT MAKES THIS MORE 1020 01:34:00.891 --> 01:34:06.938 LIKE LITTLE. THIS IS THE COURT PROBLEM. LITTLE DIDN'T HAVE A ^ GUN ^ BEGUN. IF SOMEONE 1021 01:34:06.938 --> 01:34:12.149 SAYS THEY CAN'T THEY HAVE TO GO. JUSTICE PIERRE LOUIS: BUT COULD HAVE A CASE 1022 01:34:12.149 --> 01:34:17.067 WHERE THERE IS MULTIPLE PIECES OF EVIDENCE THAT ARE THE COURT EVIDENCE. HAVE CASE INVOLVING 1023 01:34:17.067 --> 01:34:22.064 BALLISTICS EVIDENCE ^ AN ^ AND DNA TESTING AND THAT IS THE COURT EVIDENCE THAT THE STATE 1024 01:34:22.064 --> 01:34:27.715 IS PRESENTING TO MAKE THEIR CASE. SO THE JURY NEEDS TO BE ASKED MULTIPLE QUESTIONS ON 1025 01:34:27.715 --> 01:34:32.670 WHAT THEY THINK OF BALLISTICS WHAT THEY THINK OF DNA EVIDENCE WHAT THEY BELIEVE. I MEAN 1026 01:34:32.670 --> 01:34:38.341 WHERE DOES THE LINE GET DRAWN TO I KNOW DOCTRINE NATION. AN ARGUMENT ABOUT WHAT PARTIES 1027 01:34:38.341 --> 01:34:42.682 THING. TAMAR Y. LERER: THERE IS FORM OF QUESTION. TRIAL COURT HERE WHEN USED 1028 01:34:42.682 --> 01:34:47.953 IT IS DISCRETION IT DIDN'T SAY THIS IS MY PROBLEM WITH IT. THEY DIDN'T ORDER IT. RIGHT. 1029 01:34:47.953 --> 01:34:53.246 SO WE DON'T KNOW. THERE IS NOTHING TO REVIEW USE OF DISCRETION WHICH WE KNOW IS NOT BEST 1030 01:34:53.246 --> 01:34:58.945 PRACTICE. WE DON'T KNOW WHY THE TRIAL COURT USED DISCRETION THE WAY IT DID. IF THE CONCERN 1031 01:34:58.945 --> 01:35:05.976 WAS INDOCTRINE NATION ANGLE -- I INCH HEARD FROM ANYONE WHAT IS WRONG WITH THIS QUESTION 1032 01:35:05.976 --> 01:35:11.764 IN PARTICULAR. LITTLE SAYS YOU CAN REFORMULATE IT SO THAT COULD BE DISCUSSED. THAT IS 1033 01:35:11.764 --> 01:35:17.816 FIRST THING. THE SECOND THING IS THIS HAPPENS EVERY DAY. INJURIES /*R BEING ASKED ABOUT 1034 01:35:17.816 --> 01:35:23.544 ABILITY TO IMPARTIALLY WITH AN EVIDENCE AND I AM PART EVIDENCE EVERY DAY. ASKED ABOUT 1035 01:35:23.544 --> 01:35:29.204 TOMB STICK VIOLENCE AND ASKED ABOUT FEELINGS ABOUT POLICE OFFICERS AND ASKED ABOUT 1036 01:35:29.204 --> 01:35:35.152 FORENSIC EVIDENCE FROM WHAT I SEE AND FROM THE PEOPLE I TALK TO. THIS HAPPENS EVERY DAY. 1037 01:35:35.152 --> 01:35:43.918 CERTAINLY HAPPENS IN AC VD BECAUSE NO TOPIC IS OFF LIMITS. LET'S SPIN OUT. YES, I DID 1038 01:35:43.918 --> 01:35:51.632 RISK THE GOODWILL OF THIS COURT TO SURFACE THIS ISSUE. YOU SAID DO YOU BELIEVE INJUNCTION 1039 01:35:51.632 --> 01:35:57.875 /-P PRINT ANALYSIS ARE RELIABLE YES OR NO. EVERYONE SAYS YES FINE, PROBABILITIES. YOU 1040 01:35:57.875 --> 01:36:07.104 ASKED FOLLOW-UP QUESTION. SOMEONE SAYS -- LIKE ONE IN 5 BILL RIGHT. MR. /TPHROEPL NO, SIR 1041 01:36:07.104 --> 01:36:13.220 STUDIES OFF THE TOP OF HIS. THEY THINK ERROR RATE IS NOTHING ^ AN ^ AND TRIAL COURT WILL 1042 01:36:13.220 --> 01:36:20.180 ASK THE WAY IT AILS ASKS WHEN TRIAL INJURIES ABILITY TO WITH AN EVIDENCE. IF YOU HEARD 1043 01:36:20.180 --> 01:36:25.875 THAT EVIDENCE THAT FINGERPRINT EXAMINE EXAMINATION HAS HIRE ER /RAEUGT OF THAT WOULD 1044 01:36:25.875 --> 01:36:31.906 YOU BE ABLE TO WITH AN IT. JURY SAYS NO, I KNOW IT IS GOOD LIKE DNA RIGHT. EITHER THAT 1045 01:36:31.906 --> 01:36:36.748 PERSON HAS TO BE STRUCK NOR CAUSE OR THAT IS THE INFORMATION THAT THE DEFENSE HE ATTORNEY 1046 01:36:36.748 --> 01:36:42.288 NEEDS TO USE IT IS PREEM /TREUS BECAUSE THIS IS A CASE WHERE IF YOU COULDN'T CONVINCE 1047 01:36:42.288 --> 01:36:50.422 A JUROR ON CROSS-EXAMINATION THAT THE STATEMENT FRENCH LEE LEFT THE FINGERPRINT ON THE 1048 01:36:50.422 --> 01:36:57.647 SCREEN FROM THE MOUTH OF ^ AN ^ AND EXAMINER UNFET ERRED, RIGHT WHO SUGGEST THERE IS ZERO 1049 01:36:57.647 --> 01:37:04.974 PERCENT ERROR RATE. OH, MY GOT THERE IS 30, 29 MY /TPHAOUGS /KWRA. IF WE HAVE JURORS 1050 01:37:04.974 --> 01:37:11.294 SITTING WHO CANNOT COMPREHEND CANNOT ACCEPT THE IDEA THAT THAT EXPERT MIGHT BE WRONG BECAUSE 1051 01:37:11.294 --> 01:37:16.483 PRE-EXISTING NOTIONS NOW BECAUSE OF HOW GOOD CROSS IS BECAUSE OF PRE-EXISTING NOTIONS 1052 01:37:16.483 --> 01:37:22.907 ABOUT I KNOW /TPALTY OF THE INJUNCTION /-P PRINT EVIDENCE HOW DID THAT BE FAIR TRIAL? 1053 01:37:22.907 --> 01:37:30.052 TAMAR Y. LERER: WILL SIT MYSELF DOWN. THANK YOU VERY MUCH REQUIREMENT LIMIT 1054 01:37:30.052 --> 01:37:36.657 MR. /SHA HOME. ALEXANDER SHALOM: MAY IT PLEASE THE COURT. I INTEND TO COME 1055 01:37:36.657 --> 01:37:41.481 WITH GOOD NEWS AND WILL GET TO IT BUT LET ME FIRST ANSWER A COUPLE OF QUESTIONS THAT HAVE 1056 01:37:41.481 --> 01:37:47.085 COME UP AND START WITH THE ONE THAT JUSTICE WAYNE ER APARTMENT TER FIRST ASKED ABOUT THERE 1057 01:37:47.085 --> 01:37:55.489 WAS NO REQUEST FOR HEARING WHAT DO WE DO ABOUT THAT? I KNOW HIS LETTER ER MENTIONED IT 1058 01:37:55.489 --> 01:38:04.029 BUT GO BACK TO STATE VERSUS OLENOWSKI. MR. OLENOWSKI REPRESENTED BY PRIVATE DEFENSE 1059 01:38:04.029 --> 01:38:11.947 COUNSEL WHO IS POSITION WAS THAT DRE EXPERTS WERE SO UNRELIABLE THEY SHOULD BE BARRED AS 1060 01:38:11.947 --> 01:38:19.018 MATTER OF FACT. THE STATE SAID DRE EXPERTS ARE SO RELIABLE THEY SHOULD BE ADMITTED A 1061 01:38:19.018 --> 01:38:24.496 MATTER OF FACT AND BOTH TOOK THE POSITION THAT NO HEARING WAS NECESSARY. IT WAS ONLY AC 1062 01:38:24.496 --> 01:38:31.678 LU ^ AN ^ AND OFFICE OF PUBLIC DEFENDS ERRS AGREED WITH SEVEN MEMBERS THE COURT THAT IF 1063 01:38:31.678 --> 01:38:38.710 YOU HAVE ONE SIDE THAT SAYS SO RELIABLE AND OTHER SAYS IT SO UNRELIABILITY THAT YOU NEED 1064 01:38:38.710 --> 01:38:42.317 A HEARING. THAT MIGHT /P-B GOOD REASON TO FIGURE OUT ^ WHETHER ^ WEATHER IT IS RELIABLE. 1065 01:38:42.317 --> 01:38:46.267 THINK WE HAVE THE SAME SITUATION HERE. JUSTICE PATTERSON: I DON'T KNOW WHERE 1066 01:38:46.267 --> 01:38:53.014 THE CLARITY IS ON THAT THOUGH HERE. IT'S VERY QUICK CONVERSATION. ALEXANDER 1067 01:38:53.014 --> 01:38:58.802 SHALOM: INCREDIBLY QUICK CONVERSATION. LET ME BE CLEAR. INVITED ERROR WOULD BE A DEFENSE 1068 01:38:58.802 --> 01:39:03.045 ATTORNEY STANDING UP ^ AN ^ AND SAYING FINGERPRINTS ARE SUFFICIENTLY RELIABLE. 1069 01:39:03.045 --> 01:39:07.561 OBVIOUSLY THERE IS NO OBLIGATION ON COURT TO THEN DEVELOP INTO RELIABILITY WHEN THERE IS 1070 01:39:07.561 --> 01:39:12.878 CONCESSION OF RELIABILITY. BUT THAT WASN'T POSITION THAT IS DEFENSE ATTORNEY TOOK. 1071 01:39:12.878 --> 01:39:18.016 JUSTICE HOFFMAN: INVITED ERROR IS ALSO ACQUIESCE /EPBS I'M NOT ENTIRELY SURE TO SAY 1072 01:39:18.016 --> 01:39:27.201 AFFIRMATIVE STATEMENT IS NECESSARY WHICH LAW SAYS ACQUIESCE /EPBS IS SATISFACTORY. LEX 1073 01:39:27.201 --> 01:39:33.623 /HR-BGS I DON'T THINK HE SAID I DON'T WANT A HEARING BECAUSE DON'T WANT IT ADMITTED ALL. 1074 01:39:33.623 --> 01:39:39.758 JUSTICE PATTERSON: HOW IMPORTANT IS THAT WHEN WHAT WE ARE REVIEWING IS APPELATE 1075 01:39:39.758 --> 01:39:45.418 COURT'S DECISION SAYING REACH NEW MERITS. FACT THAT THERE IS NO HEARING UNDER THESE 1076 01:39:45.418 --> 01:39:49.998 CIRCUMSTANCES I GUESS ABUSE OF DISCRETION. ALEXANDER SHALOM: FIRST OF ALL THERE HAS 1077 01:39:49.998 --> 01:39:54.100 BEEN A LOT OF TALK ABOUT STUDIES AND THINGS ^ AN ^ AND APPELATE DIVISION DIDN'T REACH 1078 01:39:54.100 --> 01:40:01.071 THE MERITS OF ANY OF IT AS YOU JUST SAID AND YOU SHOULDN'T EITHER BECAUSE YOU ARE APPELLATE. 1079 01:40:01.071 --> 01:40:06.751 THE COURT: OF REVIEW. NOT COURT OF FIRST REVIEW. NOT BEST DONE BY /AEPDZ. 1080 01:40:06.751 --> 01:40:18.927 THIS IS BEST DONE BY SPECIAL AJUDGED OR. I WW WHY INSTEAD OF DEFENDANT AT A TRIAL 1081 01:40:18.927 --> 01:40:23.580 REQUESTING A HEARING ^ AN ^ AND HEARING HAPPENING. SEEMS LIKE PER VERSE INCENTIVE TO SAY 1082 01:40:23.580 --> 01:40:30.673 NO HEARING, NO HEARING, NO HEARING ^ AN ^ AND RELY ON SUPREME COURT TO HEARING ^ AN ^ AND 1083 01:40:30.673 --> 01:40:39.280 APPOINT LEX /HR-BGS IT IS BEST DONE BY TRIAL COURT. AT THIS POINT BEST DONE BY SPECIAL 1084 01:40:39.280 --> 01:40:48.487 /SKWR-T OR BECAUSE SHIP HAS SAILED ON FRENCH LEASE'S CASE AT THE TIME. IT GETS ME TO 1085 01:40:48.487 --> 01:40:53.189 SECOND QUESTION TO ADDRESS JUSTICE WHO HAVE MAN'S QUESTION LET'S PRACTICALLY TALK ABOUT 1086 01:40:53.189 --> 01:40:59.544 THIS. DO WE WANT SOME NOPE OF DEFENSE ATTORNEY WHO DOESN'T -- HASN'T REALLY READ ALL 1087 01:40:59.544 --> 01:41:05.239 STUDIES INSTEAD OF EXPERT TO ADJUDICATE THESE HEARINGS. OF COURSE WE DON'T WANT THAT. 1088 01:41:05.239 --> 01:41:10.076 WE DON'T HAVE TO WORRY ABOUT IT. BECAUSE IF WE TAKE THE RULE REQUESTED BY THE DEFENDANT 1089 01:41:10.076 --> 01:41:15.152 WHICH IS I THINK WHAT RULE IS WHICH IS WHEN A DEFENDANT CALLS INTO QUESTION THE RELIABILITY 1090 01:41:15.152 --> 01:41:21.172 OF SOMETHING THAT HAS NOT PREVIOUSLY BEEN ESTABLISHED UNDER ACCEPTABLE PROCEDURES IN 1091 01:41:21.172 --> 01:41:25.942 NEW JERSEY A HEARING IS NECESSARY. NOW, LET'S SAY IT IS A PRIVATE COUNSEL CASE. IT IS 1092 01:41:25.942 --> 01:41:30.481 UNDER RESOURCED CASE. JUSTICE PATTERSON: LAST PART OF THAT SENTENCE 1093 01:41:30.481 --> 01:41:35.304 HEARING IS NECESSARY EVEN IF DEFENDANT SAYS IT IS NOT IN THE END AND YOU WITH MANY MANY 1094 01:41:35.304 --> 01:41:40.880 TRIAL THAT YOU'VE HANDLED KNOW THAT TRIALS CAN BE -- PRETRIAL PERIOD ^ AN ^ AND TRIAL 1095 01:41:40.880 --> 01:41:46.813 CAN BE A FLUID PROCESS WHERE SOMETHING IS REQUESTED BUT THEN LAWYERS SAY WE DON'T NEED 1096 01:41:46.813 --> 01:41:52.505 THAT. WE WILL GO AHEAD. ALEXANDER SHALOM: TO BE CLEAR THE DEFENSE ATTORNEY 1097 01:41:52.505 --> 01:41:57.404 NEVER SAID I CONSENT TO ADMISSION OF THIS EVIDENCE WITHOUT A HEARING. HE SAID EXCLUDE 1098 01:41:57.404 --> 01:42:02.050 THE EVIDENCE ^ AN ^ AND STOOD BY THAT POSITION THROUGHOUT. IF I COULD JUST GET BACK TO 1099 01:42:02.050 --> 01:42:07.776 JUSTICE HOFFMAN. IN A SITUATION YOU ARE TRIAL JUDGE SITTING THERE BEEN A REQUEST YOU 1100 01:42:07.776 --> 01:42:14.699 THINK TRIAL JUDGE IS OUT MATCHED. MIGHT THINK ASSISTANT PROSECUTOR IS OUT MATCHED. THAT IS 1101 01:42:14.699 --> 01:42:21.551 WHEN YOU ASK AMICUS CURE RETO COME IN ^ AN ^ AND CALL OFFICE OF PUBLIC DEFENDER. CALL 1102 01:42:21.551 --> 01:42:29.618 FORENSIC SCIENCES SAYING WE ARE HOLDING HEARING IN GLOUCESTER COUNTY ON MAY 14 OR DON'T. 1103 01:42:29.618 --> 01:42:35.901 COURT DO THAT ALL THE TIME. THIS COURT ASKED INNOCENCE PROJECT TO PARTICIPATE IN 1104 01:42:35.901 --> 01:42:44.169 HENDERSON. AC LU PARTICIPATED IN JLG. SO ASKING AMEANING I TO PARTICIPATE IN RULE IS 1105 01:42:44.169 --> 01:42:50.661 ZERO 4 HEARINGS TO RELY ON EVIDENCE I GUESS SOMETHING THAT COURT DID. INDEED IN 1106 01:42:50.661 --> 01:42:57.761 OLENOWSKI WHEN CASE GOT REMANNED MR. OLENOWSKI WAS REPRESENTED BY PRIVATE COUNSEL AND LEAD 1107 01:42:57.761 --> 01:43:04.089 LAWYERS IN TRYING TO ESTABLISH RELIABILITY OF THE DRE EVIDENCE WAS BECAUSE OF PRACTICAL 1108 01:43:04.089 --> 01:43:11.265 CONCERNS THAT YOU RAISED. LAST QUESTION AND THEN GET TO MY GOOD NEWS AND THIS IS ON 1109 01:43:11.265 --> 01:43:17.954 SOMETHING WHERE MY CLIENTS HAVE NO STAKE IN IT. BUT JUSTICE HOFFMAN YOU ASKED WHAT WAS 1110 01:43:17.954 --> 01:43:24.767 REBUTTAL -- SO STATE RAISES ISSUE SAME PERSON, SAME PERSON AND THEN DEFENDANT DIDN'T SAY 1111 01:43:24.767 --> 01:43:30.976 ANYTHING. THEY RAISED IT IN CLOSING STATEMENT. LAST WORD THERE. DEFENDANT HAD NO 1112 01:43:30.976 --> 01:43:36.139 OPPORTUNITY THEREAFTER TO REBUT IT BECAUSE OF ORDER OF CLOSING STATEMENTS. GOOD NEWS. 1113 01:43:36.139 --> 01:43:41.114 WE'VE IDENTIFIED THAT THERE ARE SOME REALLY COMPLICATED ISSUES ^ AN ^ AND LOT OF THESE 1114 01:43:41.114 --> 01:43:47.325 ISSUES STEM FROM THE FACT THAT THERE IS A DISCONNECT BETWEEN WHAT JURORS THINK THEY 1115 01:43:47.325 --> 01:43:52.454 KNOW ABOUT FORENSIC AND WHAT IS TRUE ABOUT FORENSICS. THAT IS DAUNTING AND THAT SEEMS 1116 01:43:52.454 --> 01:43:58.736 SCARE I. BUT WE HAVE -- GOOD NEWS WE HAVE TOOLS AT OUR DISPOSAL AND MY CLIENTS IDENTIFIED 1117 01:43:58.736 --> 01:44:06.003 SOME OF THEM. CHIEF JUSTICE SHOULD POINT YOU TO PAGE 5 AND 6 IN OUR BRIEF WHERE WE TALK 1118 01:44:06.003 --> 01:44:12.118 ABOUT CONFIRMATION BIAS AS RELATES TO JURORS. NOT JUST THE FORENSIC EXAMINERS WHO COME 1119 01:44:12.118 --> 01:44:17.998 IN PRECONCEIVED NOTION BUT JURORS ^ AN ^ AND FACT FINDERS IN GENERAL HAVE PRECONCEIVED 1120 01:44:17.998 --> 01:44:23.964 NOTIONS THAT WE HOPE WE CAN CHANGE AND GET TO THE GROUND TRUTH. BUT THERE MIGHT BE PEOPLE 1121 01:44:23.964 --> 01:44:29.736 FOR WHOM THAT IS NOT POSSIBLE. I KNOW THAT LITTLE ISSUE THE VOIR DIRE ISSUE IS TREATED 1122 01:44:29.736 --> 01:44:34.933 SEPARATE FROM THE HEARING ISSUE. I ACTUALLY THINK THEY ARE DEEPLY RELATED AND MAYBE EVEN 1123 01:44:34.933 --> 01:44:40.705 INNER CONNECTED BECAUSE RULE ONE ZERO 4 HEARINGS ARE NOT JUST A BY /TPHAEUR I YES, IT IS 1124 01:44:40.705 --> 01:44:46.548 ADMISSIBLE NO, IT IS NOT. WE SOMETIMES SET LIMITS ON HOW THAT EVIDENCE CAN BE USED. 1125 01:44:46.548 --> 01:44:54.356 WHAT CAN BE SAID. WE SAW THAT IN OLENOWSKI TWO. SOMETIMES SAY SO UNRELIABLE IT CAN COME 1126 01:44:54.356 --> 01:44:59.875 IN. SOMETIMES WE CRAFT JURY INSTRUCTIONS AS HAPPENED AFTER HEN SON. ALL OF THOSE THINGS 1127 01:44:59.875 --> 01:45:09.004 CAN COME FROM A REBUST HEARING. SO MY CLIENT'S TALK JUSTICE PATTERSON, ABOUT GENTLEMAN 1128 01:45:09.004 --> 01:45:15.305 DEAR ^ AN ^ AND SOMEHOW A POORLY DONE VOIR DIRE HAS THE RISK OF TAINTING THE JURY KIND 1129 01:45:15.305 --> 01:45:20.050 OF PUSHING THEM IN ONE DIRECTION AND THESE ARE SAME CONCERNS THAT YOU ADDRESSED IN LITTLE, 1130 01:45:20.050 --> 01:45:26.103 BUT A WELL DONE VOIR DIRE ONE GROUNDED IN SCIENCE AND NO WITH A WE ARE GOING TO KNOW 1131 01:45:26.103 --> 01:45:30.134 HOW TO CONDUCT THAT VOIR DIRE WELL IN THE ^ ABSENT ^ ABSENCE OF A HEARING THAT GETS TO 1132 01:45:30.134 --> 01:45:37.444 SOME OF THESE THINGS. SO WE HAVE THE ABILITY TO NOT TOTALLY CORRECT THE DISCONNECT BETWEEN 1133 01:45:37.444 --> 01:45:43.703 JURORS PERCEPTIONS ^ AN ^ AND RELATE BUT WE CAN USE FRONT EVENT TOOLS, HEARINGS, JURY 1134 01:45:43.703 --> 01:45:49.057 INSTRUCTION ANSWER VOIR DIRE TO GET US CLOSER BUT WE CAN'T DO ANY OF THAT UNLESS WE MEANING 1135 01:45:49.057 --> 01:45:54.827 FLU ENGAGED IN THIS CONVERSATION RATHER THAN JUST SAYING WELL IT'S BEEN DONE FOR ONE HUNDRED 1136 01:45:54.827 --> 01:45:59.995 YEARS. ALEXANDER SHALOM: UNLESS THE COURT HAS ANY QUESTIONS. CHIEF 1137 01:45:59.995 --> 01:46:07.455 JUSTICE RABNER: THANK YOU. CHIEF JUSTICE RABNER: MR. /SHULS. 1138 01:46:07.455 --> 01:46:15.733 BENJAMIN M. SHULTZ: THANK YOU, YOUR HONOR. TO START OUT I JUST WANT TO PICK UP ON ONE 1139 01:46:15.733 --> 01:46:20.655 THE THEMES OF OWE MOSTING DOWNSTAIRS ELSE PRESENTATION WHICH IS THAT THEY KEPT SAYING 1140 01:46:20.655 --> 01:46:26.913 THAT THE STATE NEEDS TO MEET IT IS INITIAL BURDEN. THINK JUSTICE WAYNE ER APARTMENT ER 1141 01:46:26.913 --> 01:46:32.461 PUT IT CORRECTLY WHEN SHE SAID ONE STATE CAN ME BURDEN AND DID SO IN THIS CASES TO POINT 1142 01:46:32.461 --> 01:46:40.195 TO OTHER JUDICIAL DECISIONS INCLUDING SOME OF WHICH RATHER EXTENSIVELY UNDERLYING /ERTS. 1143 01:46:40.195 --> 01:46:46.970 IF YOU GO THROUGH THIRD CIRCUIT DECISION IN MITCHELL LATE PERSUASIVE CASE FOR WHY IT IS 1144 01:46:46.970 --> 01:46:51.832 RELIABILITY. JUSTICE PATTERSON: CAN THAT BE EXCLUSIVE PROOF. BENJAMIN 1145 01:46:51.832 --> 01:46:57.293 M. SHULTZ: WE THINK IT CAN BE THE PROOF. IN COURT ANALYZED THIS IN DEPTH AND SAID THIS IS 1146 01:46:57.293 --> 01:47:01.708 ALL THE EVIDENCE WHY THIS IS ADMISSIBLE RELIABLE TESTIMONY ^ AN ^ AND TRIAL COURT ON THIS 1147 01:47:01.708 --> 01:47:06.738 DATE WHAT IS TO LOOK AT THAT THAT IS ABSOLUTELY SOMETHING THAT TRIAL COURT IN THIS STATE 1148 01:47:06.738 --> 01:47:14.947 CAN DO. EVEN IN OLENOWSKI THIS COURT /PRET DENT FROM THIS JURISDICTION CAN BE PER /SWAEUF 1149 01:47:14.947 --> 01:47:21.988 IS: I WOULD ADD THOUGH THAT WASN'T ALL THAT YOU HERE BECAUSE YOU ALSO HAD DEFENSE COUNSEL 1150 01:47:21.988 --> 01:47:29.585 INTRODUCING NAS REPORT ^ AN ^ AND PCAST REPORT ^ AN ^ AND PCAST REPORT FURTHER ESTABLISHES 1151 01:47:29.585 --> 01:47:33.269 THE RELIABILITY OF THIS EVIDENCE. SO ON THE RECORD BEFORE THE TRIAL COURT ABSOLUTELY 1152 01:47:33.269 --> 01:47:38.146 THE STATE MET IT IS /PW*URD /EPB HERE. DON'T THINK THERE IS REALLY ANY QUESTION OTHER 1153 01:47:38.146 --> 01:47:43.818 BUYS. BE HAPPY SPEND MORE TIME TALKING ABOUT FINGERPRINT ANALYSIS P. JUSTICE 1154 01:47:43.818 --> 01:47:49.251 PATTERSON: TWO IS MORE QUESTION. OBVIOUSLY SEVERAL DAUBERT FACTORS PART THE OLENOWSKI 1155 01:47:49.251 --> 01:47:55.542 TEST. ARE YOU SAYING THAT THE COURT CAN RELY ON PRIOR COURTS GOING THROUGH THOSE VARIOUS 1156 01:47:55.542 --> 01:48:04.141 FACTORS AND FINDING THOSE FACTORS TO BE MET IN LIEU THE COURT MAKING THAT DETERMINATION 1157 01:48:04.141 --> 01:48:10.626 AS ANOTHER JUDGE IN A DIFFERENT JURISDICTION ON POTENTIALLY A DIFFERENT RECORD. SEE 1158 01:48:10.626 --> 01:48:16.220 WHAT I AM SAYING. CERTAINLY JUDICIAL DECISIONS HAS RULE AND ONE THE FACTORS IT IS IDENTIFIED 1159 01:48:16.220 --> 01:48:24.533 AS PART THE ACCEPTANCE QUESTION. BUT AS TO THE OTHER FACT STORES, HOW CAN THAT BE A /SAOUB 1160 01:48:24.533 --> 01:48:31.517 STATE FOR COURT'S INDEPENDENT ANALYSIS OF THOSE FACTORS IN THE SETTING OF THIS CASE? 1161 01:48:31.517 --> 01:48:35.614 BENJAMIN M. SHULTZ: AT A MINIMUM WHAT COURT CAN DO IS IN A SITUATION WHERE YOU 1162 01:48:35.614 --> 01:48:41.174 HAVE A TECHNIQUES THAT HAS BEEN ESTABLISHED AS RELIABLE IN A MASSIVE NUMBER OF JUDICIAL 1163 01:48:41.174 --> 01:48:46.020 DECISIONS, IN THE ^ ABSENT ^ ABSENCE OF CONTRARY EVIDENCE A COURT CAN ABSOLUTELY TAKE 1164 01:48:46.020 --> 01:48:50.986 THOSE DECISION AS PERSUASIVE. MAYBE THERE IS A DIFFERENT ANSWER IF YOU HAVE CONFLICTING 1165 01:48:50.986 --> 01:48:56.670 EVIDENCE AND WE'VE ACKNOWLEDGED THROUGHOUT THIS CASE THAT HAD THE DEFENDANT PRESENTED 1166 01:48:56.670 --> 01:49:01.132 EVIDENCE THAT SHOWED A MATERIAL CHANGE IN THE SCIENTIFIC UNDERSTANDING IN THAT SITUATION 1167 01:49:01.132 --> 01:49:05.829 A HEARING MIGHT WELL HAVE BEEN REQUIRED BUT EVIDENCE BEFORE THE TRIAL COURT IN THIS CASE 1168 01:49:05.829 --> 01:49:09.875 DID NOT SHOW MATERIAL CHANGE IN THE SCIENTIFIC UNDERSTANDING OF RELIABILITY. IF ANYTHING 1169 01:49:09.875 --> 01:49:16.478 IT TENDED TO REESTABLISH THAT THIS WAS A SUFFICIENTLY RELIABLE TECHNIQUE. 1170 01:49:16.478 --> 01:49:21.213 JUSTICE PATTERSON: DID THOSE DECISIONS HAVE TO BE GOING THROUGH A DAUBERT ANALYSIS. SEE 1171 01:49:21.213 --> 01:49:29.331 WHAT I AM SAYING? OBVIOUSLY OLENOWSKI THE FRY TEST THAT'S BEEN THE STANDARD FOR SO MANY 1172 01:49:29.331 --> 01:49:35.454 YEARS FOCUS /OPBD GENERAL ACCEPTANCE NOW HAVE DAUBERT FACTORS. ARE YOU SAYING THAT CASES 1173 01:49:35.454 --> 01:49:43.508 GENERALLY FINDING -- FINDING A PARTICULAR TYPE OF EVIDENCE ADMISSIBLE ARE SUBSTITUTE FOR 1174 01:49:43.508 --> 01:49:49.633 COURT APPLYING THOSE DAUBERT FACTORS TO THE SPECIFIC EVIDENCE BEFORE IT. 1175 01:49:49.633 --> 01:49:54.384 BENJAMIN M. SHULTZ: TO BE CLEAR WHAT WE ARE LYING ON IS PORTION OF OLENOWSKI THAT SAYS 1176 01:49:54.384 --> 01:49:59.520 PREVIOUSLY ACCEPTED TESTIMONY. WHEN HAVE SOMETHING WITH HISTORICAL PEDIGREE THAT 1177 01:49:59.520 --> 01:50:05.210 TESTIMONY LIKE THIS HAS AT LEAST IN THAT SITUATION A COURT CAN RELY ON AUTHORITY ^ AN ^ AND 1178 01:50:05.210 --> 01:50:25.262 FINDINGS OF OTHER COURTS. JUSTICE WAINER APTER: SPECIFICALLY (READING) BEN 1179 01:50:25.262 --> 01:50:29.877 /PW-PB THAT'S EXACTLY RIGHT. JUSTICE PATTERSON: NOT TALKING ABOUT A FRESH 1180 01:50:29.877 --> 01:50:35.229 LOOK AT SOME NEW EVIDENCE WE LYING ON JUDICIAL DECISION IN OTHER /SKPWRAOURS DICTIONS IN 1181 01:50:35.229 --> 01:50:39.362 ORDER TO MEET THE BURDEN. BENJAMIN M. SHULTZ: NOT BRINGING THAT ARGUMENT THE 1182 01:50:39.362 --> 01:50:44.910 STATE. ARGUMENT IN THIS CASES ABOUT FINGERPRINT TESTIMONY PRIOR TO OLENOWSKI HAD BEEN 1183 01:50:44.910 --> 01:50:51.874 UNIFORMLY RECOGNIZED AS RELIABLE. IN THAT SITUATION A TRIAL COURT CAN PROPERLY LOOK TO 1184 01:50:51.874 --> 01:50:56.044 THAT BODY OF ANALYSIS. JUSTICE WAINER APTER: THINK OPPOSING COUNSEL IS ARGUING 1185 01:50:56.044 --> 01:51:01.332 THAT IT HAS NEVER BEEN RECOGNIZED IN NEW JERSEY AND THERE IS NO PRIOR PRECEDENT SAYING 1186 01:51:01.332 --> 01:51:07.132 THAT /-P FINGERPRINT ANALYSIS IS RELIABLE UNDER ANY STANDARD IN NEW JERSEY. 1187 01:51:07.132 --> 01:51:10.977 BENJAMIN M. SHULTZ: WE SITE UNPUBLISHED APPELATE DIVISION WHERE THE COURT FIRM THE TRIAL 1188 01:51:10.977 --> 01:51:16.234 COURT'S DECISION TO SPECIFICALLY RADIO ADMIT UNDER FRY STANDARD. WOULDN'T SAY LITERALLY 1189 01:51:16.234 --> 01:51:22.611 NO COURT IN NEW JERSEY HAS DONE ANY ANALYSIS. WE CITED AS WELL SIGNIFICANT DISCUSSION 1190 01:51:22.611 --> 01:51:29.147 IN THIS CASE INCLUDING FROM THIS COURT WHERE THE COURT HAS TREATED IT RELIABLE. 1191 01:51:29.147 --> 01:51:33.074 CHIEF JUSTICE RABNER: WE LYING ON MITCHELL AND OTHER COURTS. BENJAMIN M. SHULTZ: 1192 01:51:33.074 --> 01:51:41.812 THINK FAIR TO SAY OTHER JUDICIAL DECISIONS THAN IN THIS STATE. BUT IF YOU LOOK AT THOSE 1193 01:51:41.812 --> 01:51:47.470 DECISIONS THEY ARE VERY EXTENSIVE AND VERY PERSUASIVE ^ AN ^ AND TRIAL COURT IN THIS 1194 01:51:47.470 --> 01:51:52.906 STATE CAN FIND THEM PERSUASIVE. CHIEF JUSTICE RABNER: LET'S GO THROUGH WHAT 1195 01:51:52.906 --> 01:51:56.412 YOU HAVE REMAINING. BENJAMIN M. SHULTZ: THE ONLY OTHER POINT I WANTED TO MAKE 1196 01:51:56.412 --> 01:52:01.284 ABOUT VOIR DIRE. KNOW THE COURT DIDN'T HAVE ANY QUESTIONS DURING MY OPENING ARGUMENTS 1197 01:52:01.284 --> 01:52:10.332 ON IT WANTED TO MAKE SURE THERE WASN'T ANYTHING ELSE THE COURT WANTED TO ASK ABOUT IT. 1198 01:52:10.332 --> 01:52:13.846 CHIEF JUSTICE RABNER: THANK YOU COUNSEL. CHIEF JUSTICE RABNER: 1199 01:52:13.846 --> 01:52:16.846 THANK YOU COUNSEL FOR VERY FINE ARGUMENTS TODAY.