Photogrammetry Expert Testimony Admissible: Md Appellate Court
A photogrammetry expert witness' testimony, allowed initially by a Maryland trial court, later found inadmissible by the state's Court of Special Appeals, has now been found admissible by the state's Court of Appeals, which has re-instated the Defendant's initial murder conviction.
In State of Maryland v. Kirk Matthews (Md. 15, 2022), the photogrrammetry expert witness, FBI forensic scientist Kimberly A. Meline, initially conducted a reverse projection photogrammetry analysis which found that the murder subject shown in a video was approximately 5'8” plus or minus two-thirds of an inch. Police measured Defendant Matthews's height as approximately 5'9”.
Prior to Matthews' trial, his defense attorneys moved to exclude the FBI expert's testimony, given the “unknown degree of uncertainty” in the expert's height measurement. The trial court denied the motion.
At trial, the FBI expert stated that “she could not scientifically quantify several variables that might lead to a higher degree of uncertainty than plus or minus two-thirds of an inch.” Matthews' defense counsel cross-examined the FBI expert at length about the variables that could lead to a higher degree of uncertainty, but she persisted in her belief that her height measurement was reasonably accurate. In the expert's opinion, reverse projection photogrammetry, which requires going to the place where the questioned image was created and “duplicating the imaging conditions that captured the original scene in order to make a measurement” was reasonably accurate.
The FBI expert had relied on video footage from a home security camera showing a person carrying a shotgun a few minutes after two neighbors were killed by a 12-gauge shotgun. The suspect's face was “indiscernible” in the video, and the FBI expert admitted she could not could not determine what kind of head covering the subject was wearing, nor what kind of shoes.
This is one of the state's first cases deciding the admissibility of expert testimony since the Maryland Court of Appeals adopted Daubert in In Rochkind v. Stevenson, 471 Md. 1 (2020). At the time of Defendant Matthews's trial, the Frye-Reed standard for admissibility of expert testimony applied in Maryland courts.
The state's Court of Special Appeals had found an “analytical gap” between the underlying data and the FBI expert's opinion:
[The FBI expert] undermined her calculation by acknowledging that there was no scientific way to calculate the actual uncertainty, and that the margin of error could be significantly greater due to the “far from pristine” circumstances of this case…. [She] admitted that she was unable to see the individual's feet, that the individual was wearing a head covering, and that there was “concern” about the subject not being at “full height” in the video she was measuring.
The state's Court of Appeals disagreed, the majority opinion reaffirming that “Rochkind did not change the law in Maryland”, “that it is still the rare case in which a Maryland trail court's exercise of discretion to admit or deny expert testimony will be overturned.”
In her dissenting opinion, Justice Watts agreed with the Court of Special Appeals that the FBI expert's testimony should have been excluded because, as the expert admitted, there were a number of variables or pieces of information missing for use in the analysis. Justice Watts saw the case illustrating problems with the Rochkind decision which assessed that adopting the Daubert factors was not a signficant change. The adoption of Daubert did constitute a significant change, she wrote.
Justice Watts found “[w]ith certainty, there was an insufficient factual basis for the expert's opinion and an analytical gap existed between the available facts and the opinion rendered by the expert.” The missing variables — “the condition of the terrain on which the person stood, the distance of the person from the camera, and the positioning of person's body, and the poor quality of the photograph” — created an analytical gap, an analytical gap that the expert acknowledged. Justice Watts wrote:
There can be no reasonable quarrel with the Court of Special Appeals's determination in this case that it was an abuse of discretion to admit expert testimony where the expert essentially acknowledged that she could not say that her opinion was reliable.
No doubt Maryland's foggy adoption of Daubert will lead to more court challenges.