IN THE CIRCUIT COURT OF THE

____JUDICIAL CIRCUIT, IN AND

FOR ____ COUNTY, FLORIDA

STATE OF FLORIDA, CASE NO.:

Plaintiff, DIVISION:

v

JUDGE: vs.

___________

Defendant.

MOTION TO EXCLUDE UNRELIABLE EVIDENCE/MOTION IN LIMINE

(CHLOROFORM)

Defendant, _______, by and through the undersigned attorney, and respectfully

moves this Honorable Court pursuant to U.S. v. Frye, 293 F.1013 (D.C. Cir. 1923) Sections

90.401, 90.402 and 90.403, Florida Statutes, and the due process clauses of Amendments 5 and

14, Constitution of the United States, and Article I, Section 9, Florida Constitution to exclude

any testimony regarding chloroform, either alleged trace elements of said compound allegedly

found in a motor vehicle used by Defendant or computer searches regarding chloroform and

further moves this Court to Order the parties to instruct any witness called to testify in this cause

to refrain from any mention of chloroform.

As grounds therefore, the defendant would state :

Florida recognizes a test first enunciated in U.S. v. Frye, 293 F. 1013 (D.C. Cir. 1923). This

test is imposed as a threshold for admissibility of a scientific principle or test. Under, it must be

shown that a scientific principle or test is "sufficiently established to have gained general

acceptance in the particular field in which it belongs." Id., 293 F. at 1014. This ensures a jury

will not be mislead by experimental scientific methods that may ultimately prove to be unsound.

See Stokes v. State, 549 So.2d 188 (Fla. 1989). Stokes holds that a "courtroom is not a laboratory,

and as such it is not the place to conduct scientific experiments. If the scientific community

considers a procedure or process unreliable for its own purposes, then the procedure must be

considered less reliable for courtroom use."

1. As outlined by the Florida Supreme Court in Ramirez v. State, 651 So.2d 1164 (Fla. 1995),

the Frye test is a four step process. The steps are: 1) whether such expert testimony will assist

the jury in understanding the evidence or in determining a fact in issue, 2) whether the

expert's testimony is based on a scientific principle or discovery that is sufficiently

established to have gained general acceptance in the particular field in which it belongs, 3)

whether a particular witness is qualified as an expert to present opinion testimony on the

subject in issue, and 4) the jury's determination of the credibility of the expert opinion, which

it may either accept or reject. Under Ramirez, it is up to the proffering party to demonstrate

the requirements of both scientific reliability and general acceptance in the field.

2. "Pure opinion" testimony is not subject to the Frye test. Pure opinion testimony is testimony

which "does not rely upon any study, test, procedure or methodology that constitutes new or

novel scientific evidence." Gelsthorpe v. Weinstein, 897 So.2d 504. at 510-511 (Fla. 2d DCA

2005), quoted with approval in Marsh v. Valyou, Jr. 977 So.2d 543 (Fla. 2007). The evidence

which Defendant seeks to exclude by this motion does not constitute pure opinion testimony

as said testimony is not deduced from a well-recognized or established scientific

methodology and application of said methodology.

3. Introduction of testimony concerning "test" results when the scientific community does not

consider the methodology used to deduce those results to be reliable and which do not meet

the Frye test would result in a denial of due process under both the Florida and Federal

Constitutions because admission of such testimony or evidence would lead to jury confusion

about which evidence is reliable and which is unreliable. Due process of law is a

constitutional guarantee of respect for personal rights that is "so rooted in the traditions and

conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, 291 U.S.

97, 105 (1933). A jury verdict premised upon testimony or evidence which should not have

been admitted because it embraces a scientific principle or methodology which is unreliable

will violate Defendant's due process rights enunciated in Article 1, Section 9 of the Florida

Constitution and the Fifth and Fourteenth Amendments of the United States Constitution.

4. Additionally, introduction of testimony concerning scientific principles or tests that the

scientific community does not consider reliable or testimony deduced from an unreliable

methodology which do not meet the Frye test would violate Sections 90.401 and 90, 402,

Florida Statutes as immaterial to the facts at issue and violate Section 90.403, Florida

Statutes, in that the probative value of such evidence is greatly outweighed by the prejudicial

effect of such evidence. Under the Frye test, the proponent of the evidence—here, the

State—has the burden of proving the general acceptance of both the underlying scientific

theory and the testing procedures used to apply that theory to the facts at hand. Ramirez,

810 So. 2d at 844. This burden must be established by a preponderance of the evidence, and

a trial court’s ruling on a Frye issue is subject to de novo review. Id. Furthermore, the

Florida Supreme Court has stated that “[a]ny doubt as to admissibility under Frye should be

resolved in a manner that minimizes the chance of a wrongful conviction, especially in a

capital case.” Id. at 853. The prosecution has not met this burden. The prosecution seeks to

use an unsubstantiated allegation using a cloak of scientific methodology. The conclusions

of the experts in this case in this motion and also in all other Frye motions filed in this case

are without scientific replication.

As grounds Defendant states:

1. Defendant is charged with ____

2. Defendant believes that the State intends to try to introduce or elicit testimony about an

alleged finding of trace elements of chloroform in an automobile used by M. ____________.

Defendant further believes the State will try to introduce or elicit testimony about alleged

computer searches for chloroform on a computer to which M. ____________ may have had

access.

3. No chloroform can be directly or circumstantially linked to the death of the decedent in

this case. Therefore, the State cannot establish that chloroform is relevant to the prosecution of

Defendant. The state’s own expert, Dr. _____ MD, toxicologist admitted in his analysis of the

remains that no chloroform was found.

4. Additionally, even if said testimony has some marginal relevance, that relevance is

outweighed by the danger of unfair prejudice, confusion of the issues, and misleading

the jury in violation of Section 90.403, Florida Statutes because there are multiple causes for

which chloroform can exist.

5. The prosecution witness fails Frye standards not only in how the samples were collected but

how the tests were conducted, analyzed and conclusions were reached.

6 . . On 7/30/08 the National Center for Forensic Science in Orlando Florida completed an

analysis (bate stamped 25ll-12) The conclusion was that the results did “not conclusively

demonstrate that human decomposition was previously present due to other possible sources of

these materials. (example: Chloroform may be used as a degreaser and may be formed through

the reaction of chlorine bleach with some organic chemicals.”) Unsatisfied with the lab’s

response, the prosecution then requested another opinion from the Oar Ridge National

Laboratory, a research laboratory in Tennessee. (ORNL)

The ORNL used for these purposes fails Frye because

a. The lab admits the two “control” trunks also revealed the presence of chloroform even

though there is no indication the trunks ever contained a decomposing body.

b. The prosecution has provided no evidence that the lab’s methods also include:

1. Peer reviewed published or reproducible protocol on collecting testing and

applying this technique to conclude chloroform as an example which was allegedly in

this trunk for which the FBI or prosecution can conclude chloroform existed in the

trunk due to any reason other than decomposition.

2. The control cars were numbered only two which is an insufficient number of controls

upon which to draw conclusions and only one of the vehicles was the same

year as the vehicle to which the defendant had access.

3. The control cars were subject to different elements (Tennessee, not Florida, trunks

open for longer periods of time thus explaining why there might be a higher graph of

chloroform in the Florida trunk)

4. The state’s witnesses cannot rule out other causes for the Chloroform in the trunk nor

have studies been undertaken to determine such other causes such as Fabric Softener

(which can contain Chloroform) No discussion of this as a possible cause was

mentioned in the report or even investigated by ORNL. The prosecutions witness

regarding this case admitted he was not an expert on carpets and no testing was done

to determine if causes other than decomposition could be responsible for the alleged

existence of chloroform.

5. While GMC has been accepted for certain uses, it fails Frye as applied in this case.

6. The prosecution has provided no peer reviewed documentation that chloroform

obtained in this manner can be used to support such a conclusion (ie decomposition)

7. There is no published error rates , false positive or false negative rate with the

actual machine used by ORNL .

8. The prosecution cannot produce any blind peer reviewed published protocals because

ORNL was a research lab not a forensic laboratory.

9. The prosecution provided quality control procedures by the lab with regard to

Extraction of air/carpet samples, preservation of same, comparison to sample

Vehicles, storage of samples and testing of samples and verification testing of

Samples.

10. The prosecution has no quantification tests on the gas chromatograph to be able to

determine the exact amount of the alleged chloroform in the trunk..

11. The prosecution has provided no published peer reviewed standards for the methods

by which the control samples were obtained.

Introduction of such evidence will violate Defendant's due process right to a fair trial

under Amendments 5 and 14, Constitution of the United States, and Article 1 Section 9

Constitution of the State of Florida and the above referenced arguments. As well as violating the

requirements in Frye, supra.

12. In Sybers v State, 84l so.2d 532 (1st D.C.A. 2003) the court reversed a judgment and

remanded the case for a new trial when the trial court denied the attempt to exclude testimony of

experts wherein “assertions of scientific acceptance of testing procedures by experts who

developed and performed the testing procedures are not, alone, sufficient.” In Sybers, the

prosecution’s expert had been declared an expert in other courts in tandem mass spectrometry.

He used a liquid chromatograph-tandem mass spectrometer. The chromatograph separated the

compound, and the mass spectrometer identified the compound. The prosecution’s expert

testified that the mass spectrometer identified succinylmonocholie ( a metabolite formed by the

decay of succinylcholine) was found in the victim’s body. Just as in the case at bar, the expert

did not perform method validation on the specimen. The prosecution did not test the entire

carpet before concluding the vehicle contained chloroform and thus cannot rule out the fact that

there could be other areas in the vehicle which contain no chloroform.

In Sybers, the chemist who testified for the FBI, while admitting that the technology of

using the spectrometer had been around for a few decades also admitted application to forensic

science was fairly new. This case was decided only seven years ago and in the case at bar, the

use of the technology was not made in a forensic lab with established protocol.

Instead, the use was made with a machine owned by the lab and the lab itself was only a

research lab, not a forensic lab which explained it’s lack of standards. In Sybers, as in this case,

the positive finding of the succinylmonocholine was a qualitative rather than a quantitative

analysis. In the current case, there was also no quantitative assessment of Chloroform. In the car

tested driven by the defendant, the control samples also contained Chloroform, unlike in Sybers,

wherein one of the prosecution’s expert did not ever have a positive result from a specimen

known not to contain the drug.

Therefore, the prosecution’s expert testimony is even weaker. There should be no

testimony permitted to reach the jury that Chloroform exists which some how supports the claim

that it is consistent with decomposition. The prosecution has not provided, nor can it provide,

testimony that the existence of Chloroform is equally or, perhaps even more consistent with the

presence of other compounds such as Fabric Softener or other compounds actually found in the

defendant’s vehicle.

One of the key findings in Sybers was the testimony from the defense experts wherein they

pointed out that the prosecution’s experts were using applying procedures that had not been

validated and the method validation was a prerequisite to acceptance in the scientific community.

The prosecution has failed to provide this validation in the case at bar as well and, therefore,

any claimed testimony regarding this issue should be stricken.

Wherefore, Defendant moves this Court to exclude any testimony regarding chloroform

from any trial of this cause.

Respectfully submitted,