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United States v. Felix

United States District Court, S.D. Ohio, Western Division

July 1, 2019



          Timothy S. Black, United States District Judge.

         This 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. 70).

         I. BACKGROUND

         On 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, 2019.

         At 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.[1] 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 introduced substantial bias by the listeners. (“Opinion 1”).
(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 2”).
(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).

         The 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).

         As 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.


         “A 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, 2015).

         If the 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, 41-42 (1984).

         III. ANALYSIS

         Federal 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).

         For 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); Fed.R.Evid. 702.

         A. Qualification as ...

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