The following criminal case was recently decided on appeal pertaining to the State’s failure to produce an expert witness from a GPS manufacturer. The State sought to introduce evidence from the defendant’s GPS despite the absence of expert testimony. Summary by Mark Friedman.
State v. Eric Pittman, unpublished opinion, App. Div. Docket No. A-2569-08T4 (November 4, 2009) – Order denying admission of evidence from Global Positioning System (GPS), State’s motion for reconsideration, and State’s motion to reopen affirmed.
“Specifically, the State sought to introduce evidence of the location of defendant’s Yukon motor vehicle, on which a GPS unit had been installed pursuant to court order, to show that the Yukon traveled to the vicinity of an apartment in Edison where guns, drugs, and drug paraphernalia were later seized pursuant to a search warrant.
No independent surveillance corroborated defendant’s location and travel on the day in question…. [T]he State [argued] that an expert from Orion was not necessary for admission of the GPS evidence, because the device’s technology has been generally accepted as scientifically reliable…. [The trial court concluded] that while it was satisfied the GPS system was an appropriate technology in general, ‘the question came down to this particular system, the Orion system … that was installed by the county prosecutor’s office in the defendant’s vehicle.
Whether or not this system was an appropriate method of calculating one’s position in the world.’… Here, the trial judge decided that expert testimony, beyond that of McDonald, who attested only to the acceptance of GPS technology in general, was essential to determining the accuracy and trustworthiness, and therefore admissibility, of the particular GPS device used in this case.
We agree…. The State’s belated effort to reopen the N.J.R.E. 104 hearing nine months after commencement of the proceeding and seventeen months after the issue was raised is simply too little, too late. The State declined many requests and opportunities to present the expert proof deemed necessary by the court to close the gaps identified in McDonald’s and Palfy’s testimonies. Moreover, when the State finally relented after the close of evidence and resolution of the issue, it failed to make an offer of proof to assure the court that its expressed concerns would be satisfied by the proposed testimony.” (Joshua D. Altman; Steven D. Altman, on the brief).