Cell Site Analysis and Identification Testimony (Part 4)

by | Dec 2, 2023 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

The New Jersey Supreme Court continued with the following in relevant part: Under New Jersey case law, when an expert grounds testimony in personal views, rather than objective facts, the net opinion rule requires the exclusion of such unsupported views. In circumstances similar to this case, the Northern District of Illinois held that the testifying expert’s estimates of the ranges of different cell towers were unreliable because they were based solely on the expert’s training and experience. United States v. Evans, 892 F. Supp. 2d 949, 956 (N.D. Ill. 2012).

Special Agent David testified that a one-mile radius was a “good approximation” as to the coverage area for the relevant cell tower. He did not testify that such approximation is common practice in cell tower analysis. And he candidly admitted that he did not consider any of the factors that can affect coverage listed in the Court’s opinion. By Special Agent David’s own admission, he determined the tower range “just based on his training and experience.” And the State offered no outside evidence to support the range. That “rule of thumb” testimony constitutes an improper net opinion because it was unsupported by any factual evidence or other data. The Court does not suggest that, to be admissible, expert testimony must consider all of the factors listed. However, the testimony here was based on nothing more than personal experience, and the trial court erred in allowing it.

The admissibility of Rosette Martinez’s first-time in-court identification is controlled by the Court’s holding today in State v. Watson, ___ N.J. ___ (2023). Although the dictates of Watson were not in effect at the time of the present trial, “with or without the benefit” of the ruling in Watson, “the nature of the identification in this case raises concerns.” The identification procedure here was highly suggestive. By telling Martinez defendant’s name, informing her that he had been arrested for the robbery, and showing her pictures of the watch found on his phone, the detective impermissibly influenced and tainted any future identification by her. Additionally, the layout of the courtroom, as Martinez admitted, tipped her off as to where defendant was seated. Furthermore, there was no “good reason” to allow the first-time in-court identification here. Martinez did not know defendant well prior to the robbery, and she was unable to identify defendant — and indeed identified a different person in a filler photograph with 90 percent certainty — when she viewed the photo arrays. There was no basis for an in-court identification under the circumstances. In Watson, the Court directed that prosecutors must disclose “anything discussed with a witness during trial preparation that relates to an upcoming in-court identification” under Rule 3:11.

Here, defense counsel did a good job making a record for appellate review. Had she or he not noted the layout of the courtroom during cross-examination, it would not have been disclosed by the trial transcripts.