New Mexico v. Tollardo,–4 N.M. 430, 77 P.3d 1023 

Court of Appeals of New Mexico

2003

Chapter

10

Title

Authentication

Page

453

Topic

Must Meet the Alberico Standard

Quick Notes

Miera and Kisto got into an argument over the drug deal proceeds.  Kisto told her brother Manuel Tollardo that Miera beat and raped her.  Manual and a 3rd person went to Miera place and kill both Miera and Trujillo.

Before the trial, New Mexico contracted the FBI.  Carl Adrian used computer programs to determine that a person standing in one place could have fire all three shots.

Defendant argued that the evidence was insufficient to support the convictions, and that the trial court erred in admitting the exhibit into evidence and allowing the images to be shown to the jury. Defendant argued that the computer generated images were not demonstrative evidence but real evidence used to prove his guilt.

Alberico Standard - Evidence used in court is generally broken into three broad categories

1.     Testimonial evidence,

2.     Documentary evidence,

3.     Demonstrative evidence.

o    Real evidence or evidence by inspection.

o    as "such evidence as is addressed directly to the senses of the court or jury without the intervention of the testimony of witnesses, as where various things are exhibited in open court."

Court - Computer Evidence Generated by Expert for Illustration

o    Used to illustrate an expert opinion.

o    Expert can be cross-examined.

Court - Computer Evidence Generated by Expert to develop opinion

o    The opinion is based on the computer generated evidence.

o    The proponent must be prepared to show scientific validity.

Court - Holding

o    The computer was used to supply missing information based on the physical evidence available.

o    The images were not visual aids used to illustrate an opinion developed by other means.

o    The images were used to develop the opinion to which the witness, a visual information specialist, testified.

o    The witness was qualified as an expert in the use of both computer programs involved as well as an expert in three-dimensional analysis of bullet trajectories using a computer.

o    The methods used to generate the images were valid uses of computer technology.

o    The people who created the information used by the witness testified at trial and were subject to cross-examination concerning the accuracy of their information.

o    Substantial evidence supported the convictions.

Book Name

Evidence: A Contemporary Approach.  Sydney Beckman, Susan Crump, Fred Galves.  ISBN:  978-0-314-19105-2.

Issue

o         Whether the computer generated evidence was sufficient to support the conviction?  Yes

Procedure

Trial

o         District Court of Taos County, New Mexico, convicted defendant of voluntary manslaughter for the killing of one victim and murder in the second degree for the killing of another victim.

Appellant

o         Affirmed

Facts/Cases

Discussion

Key Phrases

Rules/Laws

Pl - New Mexico

Df - Tollardo

Description

o         Miera and Kisto got into an argument over the drug deal proceeds.

o         Kisto told her brother Manuel Tollardo that Miera beat and raped her.

o         Manual and a 3rd person went to Miera place and kill both Miera and Trujillo.

FBI Visual Information Program

o         Adrian use a program to determine if the physical evidence found at the scene matched up with wounds and the trajectory of the bullets from a shooter standing in a fixed location.

o         Adrian determined that a person standing in one place could have fired all three shots.

Tollardo - File Motion in Limine

o         Asked Trial Court to excluded images.

State Argued - Images were demonstrative evidence

o         Used as visual aides to assist the jury in understanding the evidence.

Trial Court

o         Adrians testimony was sufficient to establish the validity of the program used to generate the images.

o         The exhibit could be admitted into evidence.

o         The State would need to lay a proper foundation for the admission of evidence.

Police Agent Joe Shiel - Testimony

o         Testified to what he saw when he first arrived at the scene.

o         Photographs taken and admitted.

o         Made video of the scene.

Pathologist

o         Autopsies reports

Adrian - Reverse Engineering

o         Reverse engineering of crime scenes involves using known information, such as the locations of objects at the scene or the trajectory of a bullet as described in an autopsy report, to determine unknown information.

o         Adrian was also recognized as an expert in Computer Assisted Design (CAD) programs, a program referred to as MAYA, and in three-dimensional bullet trajectory analysis in computer systems.

Defendant - did not object

o         Defendant did not object below and does not challenge Adrian's expertise on appeal.

Jury Conviction

o         Voluntary Manslaughter and secondary degree murder.

Defendant Appeals and Argues

o         1) Evidence is not sufficient to support a conviction.

o         2) Trial court erred in admitting the exhibit and allowing jury to see images.

o         3) Images were NOT demonstrative evidence, but real evidence use to prove guilt.

State Arg - Images were demonstrative evidence.

The Computer-Generated Exhibit Must Meet the Alberico Standard.

Alberico Standard - Evidence used in court is generally broken into three broad categories

1.     Testimonial evidence,

2.     Documentary evidence,

3.     Demonstrative evidence.

o    Real evidence or evidence by inspection.

o    as "such evidence as is addressed directly to the senses of the court or jury without the intervention of the testimony of witnesses, as where various things are exhibited in open court."

Defendant Argues - The images were used as substantive evidence.

State Contends - The images were simply visual aids used to illustrate Adrians opinion.

o    The State points out that visual aids are often used to illustrate the trajectory of a bullet fired into the human body.

o    Courts have affirmed the use of mannequins and dowel rods as visual aids to illustrate the trajectory of a bullet.

Animation vs. Simulation

Animation

o    An "animation" is a computer-generated exhibit that is used as a visual aid to illustrate an opinion that has been developed without using the computer.

o    No data is analyzed by the computer.

Simulation

o    A "simulation" is a computer-generated exhibit created when information is fed into a computer that is programmed to analyze the data and draw a conclusion from it.

o    Data is feed into the computer.

Courts Ask

o    Whether the visual aide fairly and accurately represents the evidence or some version of the evidence.

Admitted Evidence - Where Computer Simulates (data feed into computer)

o    Courts require proof of the validity of the scientific principles and data.

State Assert - Computer generated evidence

o    Merely to illustrate Adrians opinion.

o    Should be treated as an animation.

Court - Computer Evidence Generated by Expert for Illustration

o    Used to illustrate an expert opinion.

o    Expert can be cross-examined.

Court - Computer Evidence Generated by Expert to develop opinion

o    The opinion is based on the computer generated evidence.

o    The proponent must be prepared to show scientific validity.

Court - Consistent with Alberico.

Court - In this case

o    Images were not visual aids to illustrate opinion.

o    Used to develop the opinion to which Adrian testified.

o    Alberico standard applies to the images.

The Trial Court Did Not Abuse its Discretion in Determining That the Computer Programs Used Were Valid

Daubert (Old Method)

o    Opinions based on scientific evidence were admissible only if the science was generally accepted in the relevant scientific community.

Alberico

o    Alberico rejected that standard in favor of a more flexible inquiry in which the general acceptance of the theory or technique was considered but was not controlling.

Alberico - Shift from general acceptance to soundness of method

o    The focus of the inquiry shifted from general acceptance in a particular field to "the validity and the soundness of the scientific method used to generate the evidence.

Examine relationship

o    The courts should examine the relationship between the technique used to generate the evidence and established scientific techniques and the availability of specialized literature addressing the validity of the technique.

Validity (Def)

o    Alberico defined validity as "the measure of determining whether the testimony is grounded in or a function of established scientific methods or principles, that is, scientific knowledge."

Valid

o    A technique grounded in traditional principles of psychology would be considered valid.

Not Valid

o    While a technique grounded in principles of astrology would not.

In Alberico

o    The Court held that psychological testimony concerning post-traumatic stress disorder was grounded in valid scientific principle because it was grounded in basic behavioral psychology.

o    "Reliability is akin to relevancy in considering whether the expert opinion testimony will assist the trier of fact."

o    The Court held that testimony that the alleged victim suffers from post-traumatic stress disorder was reliable in this sense because it had a tendency to show that the victim might have been sexually abused.

Identifying Scientific Field involved.

Court - Determination if images use principles of technology or something else

Defendant Arg - Computer applied the laws of physics to the data entered into it.

State Arg - Adrian this was not the case

o    Used three dimensional analysis of bullet trajectories using a computer.

Defendant Arg - Adrian was not competent to establish validity of the computer program he used to create the images

Court - We Disagree

o    Adrian used CAD and MAYA for many years.

o    CAD is accurate within 1/100,000 of an inch.

o    He used CAN to cross-check MAYA.

Court - Trial Court did not abuse its discretion

o    In determining that the methods used to generate the images were valid uses of computer technology.

Defendant Arg - Accuracy of images

o    Adrian was not present at the crime scene or the autopsy but used information recorded by others in their reports.

Court - Creators of information were in court room available for cross-examination

o    The people who created the information used by Adrian testified at trial and were subject to cross-examination concerning the accuracy of their information.

Defendant contends -  Adrian interpreted raw data,  thus increasing the margin of error

o    Adrian interpreted the raw data, thus increasing the margin of error.

Court - This contention is not supported by the record.

o    Adrian testified that the process he used did not involve any scientific calculations or procedures.

o    He fed the information into the computer and the computer created images that could have been created by hand-drafting techniques.

Affirmed

Rules

Class Notes