Thursday, February 25, 2021

People v. Hardy (Cal. Ct. App. - Feb. 24, 2021)

Lots of big cities have "Shotspotter" systems.  It's basically an automated system that listens for gunshots and sends out a notification to police once it hears them.

The Court of Appeal holds that in this case, the trial court should have conducted a Kelly/Frye hearing to determine whether the Shotspotter technology was scientifically reliable.  And, to be sure, that certainly wouldn't have hurt.  (I also suspect that the trial court would have easily found it to satisfy the relevant standards.)

But I wonder whether the failure to conduct that inquiry here was really all that prejudicial.  This was a case in which the police officers were already staking out the relevant location when the shots were fired and an officer testified that he personally saw the shooter fire the weapon.  That testimony -- plus the spent shell casings -- makes it seem pretty darn obvious that there was indeed a shooting.

Justice Stewart is right when she says that the evidence wasn't entirely clear about whether there were six or seven shots fired, which in turn reflects whether the gun was a revolver (which only holds six rounds) or a semiautomatic (which expels casings like the ones recovered at the scene).  And, yes, on that point, the evidence about Shotspotter was indeed fairly important, because that was by far the clearest evidence that there were seven shots fired, not six.

But it seemed to me that what was relevant there was simply the recording of the shooting that was stored in the system and played for the jury.  It was nothing more than a fancy tape recording; as to which, last I checked, there isn't really much of a Kelly/Frye dispute.  The prosecution didn't use the Shotspotter data to "prove" the sounds were gunfire.  It just essentially used the tape to confirm that, yep, those sound a lot like shots, and there were seven of them.

Could the defense have claimed that the recording was from another data set or altered or what have you?  I guess.  But it didn't, and there's absolutely no reason to believe that it was.  Given that fact, I'm not at all sure that we need to go down the whole Kelly/Frye path just to establish that, yes, we have the technology to record things, and here's the recording of the sounds recorded by the system on the night of the alleged shooting.  Any more than we need a Kelly/Frye hearing to admit surveillance videos, photographs, or any of the other recording systems that we daily submit to jurors for their review.

It'd be one thing if the defense said "These are just car backfires" and the prosecution said "No they're not, the Shotspotter system screens out that stuff."  But nothing at all like that went down here.  Given the facts here, I'm inclined to think that reversing the conviction here might go a bit overboard.  Since what really mattered was the officer's testimony -- and, yes, the recording helped, but it was simply the recording, not any "authentication" by the Shotspotter technology, that seems to me made the difference here.