In Maryland, Interpreting Cell Phone Records Now Requires Expert Testimony
With apologies to Bob Dylan, you may not need a weatherman to know which way the wind blows1, but you need an expert witness to know which way a cell phone call goes. In State v. Payne & Bond, No. 85, Sept. Term, 2013 (Md. Ct. App. Dec. 11, 2014), the Court of Appeals – in a majority opinion written by Judge Lynne Battaglia and joined by three other judges2 – built on its earlier decisions in Ragland v. State, 385 Md. 706 (2005), and State v. Blackwell, 408 Md. 677 (2009), and held that a detective “needed to be qualified as an expert under Maryland Rule 5-702 before being allowed to testify as to his process for determining the communication path of [the defendants’] cell phones,” as well as his conclusion that two specific cell towers “were the most pertinent to the case.” Slip Op. at 3. Under the Court’s holding and rationale, testimony interpreting technical data that is unfamiliar to a lay person and based on specialized knowledge or experience – and conclusions based on that data – must come from a witness who is proffered and qualified as an expert.
In the early morning of August 27, 2007, the body of a homicide victim was found burning in a wooded area of Baltimore County. A piece of scrap paper found in the victim’s bedroom contained information that eventually led police to obtain records for cell phones used by Joseph Payne and Jason Bond. Payne and Bond were ultimately charged with that homicide and tried together. At trial, Detective Brian Edwards of the Baltimore County Police Department testified that he had interpreted “Payne’s and Bond’s cell phone records subpoenaed from Sprint Nextel for the period from August 26 to August 27, 2007” and “was able to determine the location of cell phone towers through which particular calls were routed and to plot the locations of those towers on a map in relation to the crime scene.” Id. at 1. The detective was not offered or qualified as an expert witness. Both defendants were convicted of first-degree felony murder, kidnapping, and the use of a handgun in the commission of a felony. The Court of Special Appeals reversed those convictions, Payne & Bond v. State, 211 Md. App. 220 (2013), and the Court of Appeals upheld the intermediate court’s decision that the detective’s testimony should not have been admitted.3
During his trial testimony, Detective Edwards explained that he could determine various things, including “the cell tower through which the cell phone communicated, based on the complete records he had received from Sprint Nextel,” and specifically the call detail records. Slip Op. at 5, 4. Payne’s counsel objected to this testimony, arguing that the detective “needed to be qualified as an expert in order to interpret the data.” Id. at 5. The prosecution, on the other hand, asserted “that the actual records contained step-by-step instructions as to the use of the records.” Id. Despite making that contention, the State did not introduce into evidence either the records or the instructions. Id.
Outside the jury’s presence, Detective Edwards explained his procedure for determining cell tower locations. “[T]he process required matching certain data points associated with a cell phone call to a table available on an unnamed ‘secure Web site’ or on ‘an Excel spread sheet that comes with the records,’ to determine the latitude and longitude of the corresponding cell tower.” Id. at 6 (footnote omitted). Yet again, as was the case with the records themselves and the step-by-step directions, “[n]either the ‘Excel spreadsheet that comes with the records’ nor the ‘secure website’ that allegedly maintains cell tower information was admitted into evidence.” Id. In short, Detective Edwards reviewed cell phone records and gleaned information from those records. He then compared that information to another source that served as a guide that allowed him to interpret the information. The trial judge concluded that the detective could give that testimony without being qualified as an expert.
Detective Edwards then testified that, on the night of the crime, Bond’s cell phone first connected to a “cell tower that was between one and a half to two miles from the crime scene” and later connected to a cell tower “located approximately a mile from the crime scene.” Id. at 6, 8 (footnote omitted). He further testified that Payne’s cell phone also registered off one of those towers on the night of the murder. Id. at 9. Maps and aerial photographs depicting the location of the towers, the location where the body was found, and other information were introduced into evidence and Detective Edwards referred to those exhibits during his testimony. Id. at 6-9. During his closing argument, the prosecutor stressed the importance of the detective’s testimony, urging “that Payne’s and Bond’s Call Detail Records ‘point to their guilt’ and the evidence is significant … because it puts them right there.” Id. at 9. The jury obviously agreed.
In her opinion for the Court, Judge Battaglia engaged in a comprehensive discussion of cell phone records and the operation of cell phones and their networks. Id. at 10-17. She explained that mobile-network operators automatically generate call detail reports that contain identification numbers for the cell towers that a cell phone connects to at the start of a call. Once a number is identified, it can be “matched with a list of cell towers provided by the cellular company, where an address or latitude and longitude for the tower in question may be determined.” Id. at 17 (citation omitted).4
The issue before the Court was “whether Detective Edwards, when testifying about the process by which he derived the communication path of Payne’s and Bond’s cell phone calls, as well as his conclusion that [two specific cell towers] were the most pertinent towers utilized by Payne’s and Bond’s cell phones, needed to be qualified as an expert.” Id. at 17-18 (footnotes omitted). After discussing Md. Rule 5-701, which governs the admission of non-expert opinion testimony, and Md. Rule 5-702, which governs expert testimony, the Court turned to its earlier decisions in Ragland v. State, 385 Md. 706 (2005) and State v. Blackwell, 408 Md. 677 (2009).
In Ragland, the Court held that Rules 5-701 and 5-702 preclude the admission of lay opinion testimony that is “‘based upon specialized knowledge, skill, experience, training or education.’” Slip Op. at 20 (quoting Ragland, 385 Md. at 725). Therefore, the police officers who testified in Ragland should not have been allowed to provide opinion testimony without being qualified as experts, because their opinions that the defendant’s actions looked like a drug transaction “were based on their ‘training and experience’ derived from the ‘considerable time [they had devoted] to the study of the drug trade.’” Id. (quoting Ragland, 385 Md. at 726).
The holding in Ragland was expanded four years later in Blackwell, which involved a police officer’s testimony about a horizontal gaze nystagmus test he had performed on a drunk?driving suspect. The test involves observing a suspect’s eye movements and enables the person performing the test to determine whether the suspect is under the influence of alcohol. Id. at 20 n. 33. Although the officer offered no opinion about the suspect’s state of intoxication, his testimony about the suspect’s eye movements would have been useless without his explanation of the scientific correlation between those eye movements and alcohol consumption, and therefore constituted expert testimony. Id. at 21 (citing Blackwell, 408 Md. at 692). As the Blackwell court emphasized, Rule 5-702 is not limited to expert opinion testimony, but extends to all forms of expert testimony. Id. (citing Blackwell, 408 Md. at 693).
Faced with that background, the State argued in Payne & Bond that Ragland and Blackwell could be distinguished “because Detective Edwards did not render an opinion as to the location of Payne’s and Bond’s cell phones,” but “merely read Sprint Nextel’s business records and followed its directions in interpreting the data.” Id. at 21. The Court rejected that argument because the process used by the detective “was beyond the ken of an average person” and “his conclusions regarding the communication path also required that he be qualified as an expert witness.” Id. The Court rejected the State’s contention that a layperson with the same phone records and instructions could have determined the cell towers’ location, first noting “that the jury never received the full records and that the ‘step-by-step’ instructions were developed from another source.” Id. at 21. Moreover, “additional training and experience were required to parlay the process from which Detective Edwards derived the communications path of each call”; much of the data contained in a call detail record is “unfamiliar to a layperson and is not decipherable based on ‘personal experience’”; and jurors could not rely on their personal experience to understand the call detail record entries. Id. at 22 (footnote omitted).
Likewise, “Detective Edwards needed to be qualified as an expert in order to also opine regarding the Menlo Drive and Balmoral Towers cell towers.” Id.at 22. He used data he had “derived from his experience and expertise” to determine “the location of the cell towers through which Payne’s and Bond’s cell phone connected on the night of the murder and their location relative to the crime scene.” Id. at 23. As the majority concluded, that was a determination that “only an expert could derive, based upon the fact that a cell phone may connect to several towers during a call which may not be recorded.” Id.
In his concurrence, Judge McDonald agreed with the State’s argument that Detective Edwards was not providing expert testimony, but was simply explaining the cell phones records. “Detective Edwards essentially applied the telephone company’s key to the cell phone records of the defendants and determined that their cell phones had registered off certain cell phone towers in the vicinity of the crime during its commission and cover-up.” Concurring Slip Op. at 1. Judge McDonald agreed with the trial judge’s assessment that the process used by the detective “‘isn’t record science.’” Id. In the opinion of Judge McDonald (as well as Chief Judge Barbera and Judge Harrell), “Detective Edwards did not provide expert testimony and need not have been qualified as an expert to provide that testimony.” Id. at 2.
Instead, Judge McDonald thought that the convictions should be vacated because “there was a gap in the prosecution’s proof that undermined the probative value of Detective Edwards’ testimony.” Id. Judge McDonald explained that the “location of the cell phone towers associated with particular calls was only probative if it was evidence of where the defendants – or at least their phones – were located at the time of those calls.” Id. But there was no evidence establishing that link; “there was no testimony at trial as to the significance of the location of a cell phone tower in relation to the location of the user of the phone.” Id. Thus, “[a] properly qualified expert – perhaps an electrical engineer or a communications engineer – was needed,” and, lacking “such testimony, the jury was left to speculate – perhaps reaching a correct conclusion, but still speculating – as to the significance of the cell towers location.” Id. at 3.
I think two observations are warranted. The first relates to an issue alluded to by Judge Battaglia: Neither the cell phone records being interpreted nor the documents used to interpret them were introduced into evidence. If Detective Edwards was testifying as a lay witness simply interpreting data for the jury, shouldn’t the data being interpreted have been placed before the jury? As that data was not in evidence, Detective Edwards looked more like an expert witness whose testimony and opinions were based on data not fully disclosed to the jury. See Md. Rule 5-703(b).
The second observation concerns the reach of the opinion and its possible ramifications. The boundary between “lay opinion” testimony – which is permissible under Md. Rule 5-701 – and expert testimony – which must meet the requirements of Rule 5-702 – can sometimes be murky. Indeed, some counsel may occasionally, by design or inadvertence, try to circumvent requirements pertaining to the identification and qualification of expert witnesses by couching testimony as “lay opinion” testimony. The Ragland/Blackwell/Payne & Boyd line of cases makes that practice more difficult and more risky. And does the rationale of Payne & Boyd extend to testimony – of an otherwise purely fact witness – that provides background about a particular line of business, where the witness’s testimony arises from his or her experience in that industry and the information would otherwise not be understood by the jury? If documents cannot be understood by a layperson, but must be interpreted by someone whose experience or training allows that person to interpret the documents, must that person be identified and qualified as an expert witness? In his concurring opinion, Judge McDonald offered the following analogy:
A particular court may denominate a case with a designation like “Civ. No. S-14-0026.” One who has the key knows this means that the particular action is a civil case (Civ. No.) assigned to Judge Smith (S) and was the 26th such case (0026) filed in the court in 2014 (14). One need not be a legal expert (i.e., a lawyer) to decipher the case designation, although perhaps a lawyer would be necessary to explain accurately the claims and defenses in the action.
Concurring Slip Op. at 1.
So, where is the line that, when crossed, requires the testimony of a properly identified and qualified expert witness? When may a lay witness interpret data that would otherwise confuse a jury and when must a witness be qualified as an expert before testifying? These are questions that lawyers must grapple with before trial – and more importantly, before the deadline for designating expert witnesses.
1 As Bob Dylan sang in “Subterranean Homesick Blues.”
2 Judge Battaglia was joined in the majority by Judges Clayton Greene, Sally Adkins, and Irma Raker (retired, specially assigned). Judge Robert McDonald, joined by Chief Judge Mary Ellen Barbera and Judge Glenn Harrell, wrote an opinion that concurred in the result.
3 In addition to granting the State’s petition for writ of certiorari, the Court also granted Payne’s cross-petition. The cross-petition asked whether the Court of Special Appeals erred “in ruling that wiretap statements made by respondent Bond but not respondent Payne were nevertheless admissible against Payne as statements by a party opponent?” Slip Op. at 3. Given the Court of Appeals’ “determination that Detective Edwards was obligated to have been qualified as an expert, a retrial will be required,” and as the issue concerning the wiretap statements could arise again if the case against Payne is pursued and the trial judge does not sever the two cases, id. at 23-24, the Court addressed the issue and came to a different result than had the Court of Special Appeals. The Court of Appeals concluded that Bond’s statements obtained from the “wiretaps could not be admitted against Payne as the statement of a party opponent” and that the evidence supported no finding that Payne was part of a conspiracy to conceal the crime. Id. at 41. So, if the State decides to re-try the two defendants together, the trial court “must consider whether joinder or a cautionary instruction will sufficiently avoid prejudice to Payne under the tenets of Maryland Rule 4-253(c),” which deals with prejudice to a criminal defendant who is tried jointly with another defendant. Id. at 40.
4 The call detail record allows the location of that initial cell tower to be determined, “but not the location of that cell tower relative to the phone, nor, necessarily, any intervening cell towers which may have picked up the communication.” Id. at 17.
Brad McCullough is a commercial and business litigator and appellate attorney at Lerch, Early & Brewer in Bethesda, Maryland. Brad represents businesses and individuals in a wide variety of cases in federal and state trial and appellate courts, as well as before arbitration panels and in mediation proceedings.
This article originally appeared on The Maryland Appellate Blog.