United States District Court, S.D. Ohio, Western Division
ORDER GRANTING IN PART AND DENYING IN PART THE
GOVERNMENT'S MOTION IN LIMINE TO EXCLUDE THE
TESTIMONY OF DEFENDANT'S EARWITNESS EXPERT (DOC.
Timothy S. Black, United States District Judge.
criminal case is before the Court on the Government's
motion to exclude the testimony of Defendant's proposed
earwitness expert (Doc. 61) and Defendant's response in
opposition (Doc. 65). The Court also has before it
Defendant's proposed expert's written report. (Doc.
January 18, 2017, Defendant Bruce Lee Felix was charged by
way of a three-count indictment with the following offenses:
bank robbery, in violation of 18 U.S.C. § 2113(a) (Count
1); armed bank robbery, in violation of 18 U.S.C. §
2113(a), (d) (Count 2); and using, carrying, and brandishing
a firearm during and in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(A) (Count 3). (Doc.
1). The case is scheduled for jury trial starting on July 1,
trial, Defendant intends to introduce the testimony of a
proposed earwitness expert, Al Yonovitz, Ph.D., to testify
regarding the propriety and reliability of the voice
identification procedures conducted during the investigation
of this case. As stated in his written report (Doc. 70),
Dr. Yonovitz opines:
(1) [Contrary to the] proper procedure for an earwitness
procedure [as adapted from the Department of Justice's
visual identification guidelines] … [i]n this
particular case a novel, untested and unreliable method
was used to obtain the opinions of six ear witnesses. It was
an inappropriate procedure that
bias by the listeners. (“Opinion
(2) The voice of [Defendant] Mr. Bruce Felix was analyzed for
any anomalies, disfluencies, or any feature that would draw
attention to the voice. None were found. (“Opinion
(3) The research related to memory for voices is relevant to
the results obtained by the police investigator. …
Memory for voice decays rapidly and identification accuracy
is greatly reduced. (“Opinion 3”).
(4) The audio of the recorded traffic stop was extracted from
the video. It was of poor quality recorded with traffic
noise. The signal was enhanced and clarified for analysis.
Very poor acoustics would be realized with the use of laptop
sound system. Also the hearing acuity of the listeners could
be a factor. (“Opinion 4”).
(Id. at 14) (emphasis in original).
Government objects to the proposed expert testimony, arguing
that it fails to meet the reliability and relevancy
requirements of Fed.R.Evid. 702 and Daubert. (Doc.
61). Specifically, the Government's primary argument is
that the proposed testimony is “unnecessary and largely
irrelevant, ” that it “would invade the province
of the jury, ” and that it “would confuse the
jury rather than aid the jury's understanding of the
issues.” (Id. at 2-5). The Government also
questions the scientific reliability of earwitness expertise
and the research upon which Dr. Yonovitz's opinions are
based. (Id. at 5-6). Finally, the Government argues
that Dr. Yonovitz's opinions regarding the voice
identification procedure used in the instant case are
contrary to his own assertions regarding the inherent
unreliability of voice identifications in general and,
accordingly, his opinions would only serve to confuse the
jurors. (Id. at 6-7).
stated fully below, the Court finds that Dr. Yonovitz's
Opinions 2 and 4 are appropriate and admissible to assist the
jury's consideration of the victim's voice
identifications. However, the Court declines to permit
testimony regarding the propriety of the procedures, as
articulated in Opinion 1, or the decay of voice memory
articulated in Opinion 3.
STANDARD OF REVIEW
ruling on a motion in limine is no more than a preliminary,
or advisory, opinion that falls entirely within the
discretion of the district court.” United States v.
Yannott, 42 F.3d 999, 1007 (6th Cir. 1994) (citations
omitted). “Motions in limine are generally used to
ensure evenhanded and expeditious management of trials by
eliminating evidence that is clearly inadmissible for any
purpose.” Ind. Ins. Co. v. Gen. Elec. Co., 326
F.Supp.2d 844, 846 (N.D. Ohio 2004) (citing Jonasson v.
Lutheran Child and Family Serv., 115 F.3d 436, 440 (7th
Cir. 1997)). However, “[o]rders in limine
which exclude broad categories of evidence should rarely be
employed.” Sperberg v. Goodyear Tire & Rubber
Co., 519 F.2d 708, 712 (6th Cir. 1975). Rather, motions
in limine are “generally confined to
very specific evidentiary issues of an extremely prejudicial
nature.” Brown v. Oakland Cnty., No.
14-CV-13159, 2015 WL 5317194, at *2 (E.D. Mich. Sept. 10,
evidence is not plainly inadmissible on all potential
grounds, the Court's “evidentiary rulings should be
deferred until trial so that questions of foundation,
relevancy and potential prejudice may be resolved in proper
context.” Ind. Ins. Co., 326 F.Supp.2d at 846.
Moreover, “[d]enial [or granting] of a motion in limine
does not necessarily mean that all evidence contemplated by
the motion [will or] will not be admitted at trial
….” Id. The Court may change its ruling
at any point prior to or during the trial, as “facts
may … come to the district court's attention which
it did not anticipate at the time of its initial
ruling.” Yannott, 42 F.3d at 1007.
“Indeed even if nothing unexpected happens at trial,
the district judge is free, in the exercise of sound judicial
discretion, to alter a previous in limine
ruling.” Luce v. United States, 469 U.S. 38,
Rule of Evidence 702 governs the admissibility of expert
testimony. The trial judge must serve a “gatekeeping
role, ” to “ensur[e] that an expert's
testimony both rests on a reliable foundation and is relevant
to the task at hand.” Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 597 (1993).
expert testimony to be admissible, the Court must find that:
(A) the expert is qualified; (B) the expert's testimony
is reliable; and (C) the expert's testimony is relevant.
United States v. LaVictor, 848 F.3d 428, 441 (6th
Cir. 2017) (citing Daubert, 509 U.S. at 589);
Qualification as ...