good morning the court is now going to move to its rd case of the morning this is united states versus lance wearily this is appeal number nineteen dash two thousand eight hundred and fifty three and we're going to begin with argument from the  mr young thank your honour's may please the court just record has a gatekeeper obligation imposed by federal of evidence seven o two to ensure that any and all scientific testimony or evidence emitted in a trial is not only relevant but reliable the district judge in this case failed to perform that gatekeeper function and this was an abuse of discretion the judge allowed expert testimony to be presented over objection when the expert was clearly not qualified we know it was expert testimony because the offer servant was repeatedly asked about the plans of analysis of the computers and devices in addition the officer provided testimony concerning the lengthy process of analyzing computer devices and forensic exams right blocking repairing mirror images explaining method data locating addresses the significance of multiple ip addresses and identification numbers from freenet multiple legal conclusions that the images found were child pornography multiple answers that the images depicted lewd exhibition of the genitalia which is the legal definition the testimony was not a witness testimony under federal rule of evidence seven hundred and one dollars as asserted in the government's theory and further this testimony is intimate inadmissible under federal rule of sports testimony here differ from the testimony and evidence technician who is collecting evidence from the scene using her skills and qualifications from her work and explaining what she did in terms of evidence collection that seems to fit what the officer was doing here your honor i would respectfully disagree and i think that's a very good question but that's those those factors that we talked about the forensic analysis and in the the complications with respect to the use of these computer cases i've defended a number of child pornography cases done evidentiary hearings with respect to these cases and the government traditionally will pull in experts from across the country and have them testify and lay the proper foundation and what we have here is is this these issues of right blocking these issues of geolocation all of those issues that she interpreted for the court and then she explained our issues there are beyond the scope you know clearly of a jury but also i would argue for a judge and our position your honor is that the the rules of evidence should apply with respect to morphing of images or are those types of things but but the basis of the investigation is free met investigation which is an online peer to peer investigation those are  complicated issues and i think if you look at the case law some of the case law that we cited that united states versus you there's another case united states is st versus very where those cases talk about complexity of of of this issue in computer forensics in that you case the witnesses and the evidence was excluded the government took the same position that i'm taking in the in our case and we cited that my reply very so your hon don't think this is is a just a technician that's saying this is what i found at the scene or this is this is an analytical process that takes hours and hours and that's what the witness testified about in the property but wasn't really the thrust of the officers testimony not about the complicated computer usage but she testified she plugged in the computer put the images in there and it produced some something that most teenagers address that issue this is not and they were actually in the case of the government side that they were they were cited for what the defense was relying on in that particular case but this isn't just the plug end scenario this is if you're going to  make a mirror image of a of a computer you have to write that you have to do all of these different techniques the other thing that happens in these cases is it always out the images but that's been alice's that the prosecutor asks about is when the officer goes back in and looks at all of those images to determine whether images would meet the definitions of child pornography he would meet would be child erotica so this is not just a plug in and pop out  cell phone data which is what they relied on and i would submit to the court there are no cases that are out there that the government cited that say a forensic examination like this is that they didn't have a case that they cited was similar facts it's a totally different scenario in that case it also talked about the fact that that particular individual just plugged it in and pulled it out he didn't do any interpretation he didn't do any testimony this particular detective our officer bid to interpretation because she testified in the trial court that it was child pornography that these things did meet the definition that it was lewd nexus for a jury maybe that argument would be different but this was a bench trial so judges certainly know how to distinguish between expert testimony and lay testimony and what's the harm or what's the prejudice given on that aspect on that argument that she testified that the images were child pornography that's something that would be obvious to a judge one way or the other what's the harm given that it was a bench trial and not a jury trial on that point your honor i just think it goes back to your other analysis with respect to the the testimony i think it is but that means that from question whether or not she's qualified or testifying to scientific matters that are outside of the province of a lay person is a separate question than her giving an expert opinion about the images being child pornography so i'm focusing on the nd aspect of her given what you have argued is an expert opinion that the images at issue were child pornography my question is while that might have weight in front of a jury or front of a judge here it's a bench trial judges certainly know the difference between accepting layperson testimony and the judge here looked at these images herself and said that they were so obviously child pornography what's the prejudice given that of officer women sp testimony that the images were child pornography i think your honor the interest is that the rules of evidence should require across the board i understand the judge is use in a different position than a jury is but what we have is we have a judge that you know more of this this issue of rule seven hundred and two issue and so i don't know how many cases this judge has tried with respect t and having to be disclosed as an expert under seven o two to give the forensic testimony what's the prejudice you're given the cross examination of the officer the trial court even noted that you made a valiant effort to disqualify her and you extensively cross examined her given again that it's a bench trial why wouldn't any potential prejudice have been cured by that in your opportunity to raise a daubert challenge which is essentially what you were doing discretion if in a bench trial the court addressed a daubert challenge through the course of the trial would be different if it were a jury i understand your argument there because you don't want to do something like that in the presence of the jury but it's a bench trial why couldn't the judge against specifically noted the extensive cross examination in attempt to disqualify her and rejected that so why isn't that perfectly appropriate for a bench trial well basically your honor was what the rules of evidence say is that evidence shouldn't come in if it's if they didn't meet the standards of expert if they didn't qualify the witness as an expert and since the expert was not qualified as a witness then that testimony doesn't come in all of the evidence that was admitted shouldn't come in it come in and that severe prejudice the defendant would have been convicted because this was the key witness in the case just couldn't implicitly qualified an expert by accepting her testimony after you extensively cross examine her and try to to disqualify her if she didn't do that though in the case law that we've cited basically said says if the witness was not offered as an expert and it was not qualified as an expert then expert opinion is and expert evidence and testimony is not admissible so that's our position our position is it's not admissible straightaway in the u k so they excluded the defense expert and they excluded all of the defense evidence unfortunately i wasn't the trial counsel in this case but and didn't cross examine the witness but your honor i think this evidence shouldn't come in and that's that's the issue and the rules are black and white rule basically says if this is expert testimony they don't lay the proper foundation they don't qualify there isn't a rule that's why  i noted the court's obligation as the gatekeeper to to protect rules of evidence and what we're doing here is we're saying in a bench trial all the rules of evidence on a lot of cases that we cited show that evidence is excluded cases are reversed based on expert testimony coming in without proper qualifications the tribunal your into your rebuttal time would you like to reserve the remainder yes your honor will it was primarily testifying to digital images and videos that she luke eight in on the palace digital devices she was testifying as a fact witness and not as an expert witness of course witnesses can testify to the facts in their personal knowledge and officer winters brokers testifying to her searches of the various digital devices that were located in the palace residence and the images and videos that she located during those searches what about  counsels objection that she did that but she went way beyond that by testifying about geo location and other technicalities involved in the forensic examination well i think the testimony regarding the beginning to end kind of storytelling function and how this case initially started was an investigation on a peer to peer network called freenet and she did talk about locating ip addresses in the j detached from her later searching the various digital devices that were located in appellants residence so locating the ip testimony was just more of to provide the court context in the course of a bench trial of how it was that egypt's were able to receive a search warrant for the appellants residence and so we submit that that was not expert testimony it wasn't offered as expert testimony it was merely to provide context of the port and provided a full and complete picture of how it was that agents were able to specify that the appellant was engaging in potential activities they received a search warrant from state court to search his residence and it was during a search of his residence that they located in initial investigation leading up to obtaining a search warrant what a current also argues with respect to the term the use of the term child pornography i would just note for the court and minutely she was responding to questions posed by myself i can to please you but she was asked a number of times when you were searching this particular device did you find items of child pornography and she responded me affirmative she said yes however she also b detail the verbal descriptions of each individual video and file that she located and she described that you know certain photos depicted you know of a minor child engaged in an act of sexually explicit conduct and again gave detailed descriptions so so the concerns that the appellant raises under united states versus knoll are really not at issue here because again the officer did testify to what the images contain additionally it was a bench trial in the court from the outset prior to even starting the bench trial review with counsel of the element that she would have to find that to find that home guilty beyond a reasonable doubt of all of the offenses and so where she clearly knew from the outset what the elements were that she had to find that this is a use of the terms of her feet in the context of the trial that there is no abuse of discretion and also there was not an objection lodged to that phrase actual and so again with respect to that singular point of the use of the term child pornography that would be reviewed for a plane to or as opposed to abuse of discretion the problem my concern is less with the use of that phrase and more with some of the more technical aspects that officer limbers berg was speaking to the mr young goal referred to earlier when we read federal rules of procedure fifty two we don't see different rules of evidence for that trials we do jury trials and that's part of history and those point my question for you goes to this concept of when we're going to drill down into the the testimony that is being offered by this particular witness if it's going to have a certain technical nature and it's going to be a bench trial and the judge is going to allow some cross examination perhaps to balance that out is there a limiting point at which that district judge should have dual qualified that witness we certainly have a lot of case law the talks about  one individual speaking both to the factual circumstances of a case as well as offering opinion testimony when it have been safer here to dual qualify officer winners bird we wouldn't be in this  debate than judge i mean i i suppose that perhaps it could have been safer but of course article three judges are presumed to know the law that's a cue site from a perfect early case and so in this i don't know that it would be necessary to have to do kind of that distinguishing that is asked during jury trials of having an officer testify to what are factual points and then having a clear kind of turn and then having that same officer then kind of specifically talk about that which falls under rule seventy two dollars and again judge i don't i would submit that the testimony here again the bulk of it was officer whimpers per identifying images and photos that were recovered through various digital devices of course she did testify to using two computer programs to conduct those searches but the fact that she used to computer programs to conduct those searches does not then convert what would otherwise  lay testimony or otherwise be fact based testimony into expert testimony and so and again i think judging you kind of hit upon a really good analogy that i had thought about that it's similar to a crime scene investigator going to political process it seems oftentimes when a crime scene investigator testifies a trial and a prosecutor will ask what does it mean to process the scene how do you go about collecting evidence putting on  distinction between expert based testimony and opinion based testimony that the distinction is late term testimony results from a process of reasoning familiar in everyday life an expert testimony results from a process of reasoning which can be mastered only by specialists in the field and so here when his bird was testifying to duplicating the data on a device and then searching that duplicate for photos and videos that falls more under the auspices observed various photos and videos specifically a photo of the defendant engaged in oral sex with a minor boy that was later identified in other photographs depicting the minor boy engages actually explicit conduct  statement where he acknowledged sexually abusing this boy for an act for approximately six months up to a year he acknowledged committing sexual acts on the way he acknowledged taking photographs that sexual actually explicit contact he had knowledge during the interview that he used the boat little orange camera to take some of the photos and that little orange camera it was a fuji phone camera recovered from his residence and then of course within that brown photo album which was government's exhibit fifty seven dollars there was a multitude of child products there were and multitude of photographs depicting sexually explicit conduct and the final photograph that was in that photo album was a printed photograph of the miner identified as a engaged is actually explicit contact specific lee and a list of used to slave his genitals so certainly that printed photograph was completely divorced and completely separate from the officer when refer rules of evidence should apply to cases equally the government shouldn't be given a break because the defendant is a bad guy or charged with despicable fences a criminal defendant has a constitutional right to a trial and a right to rely on the want of evidence the right to make the government prove the case and prove a properly in this case the government broke those rules and introduced he evidence and expert opinion testimony through a witness that was never qualified as an expert our position is that the government knew this witness was not qualified that's why they never offered the witness as an expert witness there was evidence from a grand jury transcript that was used in cross examination that there was a question about this witness's qualifications there was also evidence dealing with no c v or resume and all of that was in advance and so our position would be is that the government didn't provide proper rule sixteen notice and based on that this evidence should have been excluded the prejudice your honor is that this witness introduced all of the the child pornography all of this evidence the government talked about this rapper talked about was introduced through this particular witness so our position is if the court if the judge is going to sentence the defendant to forty years and condemn him for basically the rest of his life that we need to do it right we need to make sure that the rules are followed and i think the case law that we cited sumit that who rules were not follow of our motion to suppress trial there wasn't your honor and i think that will probably be something that will be addressed in future legal proceedings but i wasn't the the attorney that was involved i believe there were some issues with respect to the freenet investigation in this particular case but that was never addressed by his trial counsel we are asking you know what we're asking the court to do is decide on the integrity of the rules of evidence and the mandate set out by the supreme court in my opening line the government wants the court to find the areas harmless there's overwhelming evidence of the evidence was excluded like it should have been there is not overwhelming evidence if bennett has the right to go to trial and play for the fumble if the facts are bad argue the law if the rules of evidence give you a defense  assert that what the government wants this court to do is rubber stamp this case and give them a slap on the wrist a little chiding in the opinion you should have done that on behalf of my client i challenge the court to not give them even more precedent that allows them to disregard the rules tell them you can't take short cuts and do whatever you want you can't take inconsistent possession positions on the issue to save your case which is what they've done in this case compared to the you case that barry hold them to the standard set out the rules of evidence we're going to if we're going to resurrect the criminal trial the defendant and the lawyers must have confidence that the rules of the game are going to be followed in your honour's i would just ask in my last statement that you look at the reply brief that addresses my issues on why i believe this was expects her testimony thank you very much for the thank you ms robert thank you mr young go miss you're going to change your point about the court you go