Monday, December 19, 2005

Out of the Frye-ing Pan

In the case excerpted below and just decided by the Florida Third District Court of Appeal, digital evidence in the form a GPS reading was deemed admissible by the trial Court and affirmed on appeal. What is noteworthy here is *not* that the GPS data on the car's location (via Onstar) was admissible, but that the Court appears to have taken pains to provide a substantial amount of "in any event" justification for ascertaining a defendant's whereabouts at a time and place. It almost appears that the Court doesn't want to stick it's neck out too far, and finds other ample an convincing evidence to affirm.

From Still v. State of Florida, (Fla. 3rd DCA December 14, 2005) Case No. 3DO3-2970

An interesting note. The NY citation following the phrase "generally accepted" on page 3 and the word "used" at the beginning of page 4 do *not* appear on the viewable pdf at that location. That cite does appear on the next page. So, an obvious error of some sort, but this is a published opinion, and other "errors" might not be so obvious. Or as admissible under a Frye analysis.


We turn next to Still’s second point on appeal that the trial court erred in failing to conduct a Frye hearing regarding the testimony of OnStar Computer Service, the operator of an in-vehicle telecommunication system. We find that the trial court correctly found that it was not necessary to conduct a Frye hearing to determine the reliability of OnStar’s evidence. Novel scientific evidence is inadmissible unless it meets the test set out in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Courts only use the Frye test in cases of new or novel scientific evidence. See Brim v. State, 695 So. 2d 268, 271-72 (Fla. 1997). The evidence involved in this case is nothing more than commonplace global positioning satellite (GPS) technology, a technology which has been generally accepted and
, 695 N.Y.S.2d 244 (1999). used for years. The OnStar system is not new or novel scientific evidence; it is basically a tracking system that uses GPS technology. Florida courts have allowed evidence obtained from GPS systems. See Hicks v. State, 852 So. 2d 954, 957 (Fla. 5th DCA 2003). Other jurisdictions have held such tracking technology admissible without conducting a Frye hearing. See State v. Vermillion, 51 P.3d 188 (Wash. 2002); People v. Cortorreal
Furthermore, even if the trial court erred in admitting the OnStar evidence, it was harmless error because Still was not prejudiced by not having a Frye hearing. The evidence indicated that the subject vehicle had Still’s fingerprints on it, Still told his uncle the subject vehicle belonged to him, and the subject vehicle was found at Still’s aunt’s house. Moreover, an eyewitness made a positive identification of Still and saw Still leave the subject car. No expert in this case was necessary because of the overwhelming evidence tying Still to the vehicle.

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