This month, we feature trial court successes in Livington and Oakland Counties.

In Livingston County, Assistant Public Defender Kristina Dunne won a motion to quash a second-degree murder charge against her client. The client was alleged to have hit another car while intoxicated, killing the driver of the other car and injuring its passenger. In her motion, Ms. Dunne argued that the state had not demonstrated the necessary malice. Judge Hatty agreed, finding that evidence of malice was “non-existent” and that the district court abused its discretion in binding over the case on the murder charge. Judge Hatty also observed that the state’s argument – that the client’s act of speeding on roads he was familiar with, while intoxicated –sought to “chang[e] the state of the law to create a ‘malice per se’ method of establishing the elements of second-degree murder in drink driving cases.”

In Oakland County – and in an issue of first impression nationally – Jordan Zuppke and the Zupac Law Team won a motion to exclude photographic evidence after conducting a 2-day Daubert hearing.

At issue was the use of a computerized “negative invert” filter to take photographs with a Secure Digital Forensic Imaging (SDFI) camera; filter purportedly “alters the tonal values of color in the photographs to help the human eye better see” specific areas in the photos.

Applying the Daubert factors, Judge Rowe found that the software and filter had never been subjected to peer review and publication, had no known error rate, and no evidence had been presented to explain how the software works. Instead, the filter’s software had been purchased from a third party and the camera’s manufacturer “appear[ed] to rely on the word of this third party . . . concerning how the code works.” Judge Rowe also found that – despite testimony about the technology’s widespread use – the “process of changing color positive imagery to color negative imagery remain[ed] somewhat of a mystery.” Thus, Judge Rowe concluded that there was “insufficient evidence or data to verify SDFI’s claims with even a minimal degree of confidence,” and held that the digital images could not be admitted at trial.

Congratulations to all! 

Kathy Swedlow

CDRC Manager and Editor