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Expert Blog

Expert Witnesses in the Media – Part 2 (Undisclosed)


Following the success of Serial, a follow up podcast, Undisclosed, was released in early 2015. Undisclosed was presented by three lawyers, one of whom was personally connected to the Syed family. The podcast takes a more legalistic approach to the case and uncovers some additional findings overlooked by the Serial team in particular in relation to the cell phone evidence.

Cell Phone Evidence

Serial gave considerable weight to the two incoming calls received by Syed’s cell phone at the time of the alleged burial and which “pinged” a cell tower servicing the park where Lee’s body was eventually recovered. However, further investigation by the Undisclosed team revealed a cover sheet unmentioned at trial and provided by AT&T, who provided the cell records.

This cover sheet established that “outgoing calls only are reliable for location status. Any incoming calls will NOT be considered reliable information for location”. Reasons for this disclaimer included the fact that due to technical issues experienced by AT&T at the time, incoming calls would “ping” the tower near the person making, rather than receiving, the call.

The Undisclosed team also uncovered further information about how the prosecution-appointed expert conducted the testing to obtain the location of the “pings”. Rather than allowing the expert to conduct the testing and provide a report which would then need to be provided to the defence, a representative from the prosecution accompanied the expert during the testing and recorded the results they chose to record (this being fourteen out of thousands of tests). The Undisclosed team alleged that this “cherry picking” of evidence should have been ruled inadmissible as the expert failed to use reliable techniques or technologies and also failed to reliably apply such techniques to the case.

Undisclosed also raised another significant issue with the use of cell phone evidence, this being that the tests conducted by the State-appointed expert were conducted 10 months after the night Lee was murdered. A cell phone evidence expert from Cherry Biometrics, a firm who has given cell phone expert evidence in approximately 50 trials across the US, confirmed that it is impossible to recreate the conditions existing on a particular day. This is because the load on each individual tower changes constantly, thus impacting which tower a phone will “ping” when a call is made or received. The expert noted that the probability of obtaining identical or close to identical conditions of what occurred at a different time and on a different day are very slim.

Recent case developments

In early 2016, Syed’s legal team brought a claim that the discovery of the AT&T cover page, amongst other things, warranted a retrial of Syed. The State’s expert witness who testified at the original trial also gave evidence at this most recent hearing, noting that he “consider[s] the existence of the disclaimer about incoming calls to have been critical information for [him] to address” and that had he been aware of the cover page he “would have inquired further within [his] organization and attempted to learn why this disclaimer was issued .” This raises serious questions about the level of expertise of this expert, given he was unaware of a company wide position which rendered an entire class of data unreliable for the precise purpose for which he was using it. A verdict is yet to be made on whether a retrial will be granted.

Lividity Evidence

Another key area of expert evidence which was not raised at the trial of Syed was “lividity evidence”. This evidence relates to the pooling of blood in the lowest part of the deceased due to gravitational pull. Lividity depends on the position of the corpse immediately after death, taking effect a few hours post-mortem and becoming fully fixed in the 8 to 12 hours following.

It was the prosecution’s theory that following Lee’s murder she was placed on her side in the trunk of a car for approximately 4 to 5 hours and buried on her side at approximately 7pm (corroborating the cell records placing Syed in the park where Lee was discovered.) If this had occurred, Lee should have displayed blood pooling on her side, as this would have been the lowest portion of her body when she was in the trunk.

According to Lee’s autopsy report, her lividity was “present and fixed on the anterior surface of the body, except in the areas exposed to pressure . The Undisclosed team provided this report to several medical experts who unanimously concluded that Lee’s blood pooling patterns indicated that she was stretched out face down for at least 8 to 12 hours before burial. Had Lee in fact been buried within 4 to 5 hours of her death, the blood in her body would have shown pooling on the side on which she was laid, and would have not have pooled in the manner in which it did.

This medical evidence poses serious issues for the State’s timeline and reliance on the foregoing cell phone evidence, warranting speculation over the validity and usefulness of the cell phone evidence given that the version of events corroborated by the cell phone evidence is undermined, if not disproved, by alternative expert evidence. This situation highlights the importance of obtaining a diverse range of expert witnesses to allow for corroboration.

Conclusion

While the events leading to the death of Hae Min Lee may never be known, it is clear that expert evidence may hinder the uncovering of the truth by placing unnecessary emphasis on unreliable and invalid technology. The case of Adnan Syed highlights the need to maintain vigilant when new technologies are being utilised in the court room and be cautious when using emerging technologies which have not been properly tested.