7.Polymer and Tape Comparisons — Exclusion Motion Denied
5 linesTHE COURT: Why don't you remain standing and address, if you're the one, the polymer motion.
MR. WATKINS: The polymer is somewhat similar but it presents different kinds of issues. I may -- I put this motion under a somewhat broad heading because it encompasses different kinds of evidence, but at the core they are all much the same. What the government seeks to do here is to take detritus from Boylston Street polymers -- caulking, for want of a better word, from -- that was found at the marathon bombing site, also, pieces of tape, clear tape, gray tape and black tape, and match those in some fashion to the items that were found in the home at 410 Norfolk.
But these are not -- these are not -- unlike DNA, these are not anything you could call a conclusive match. As the government's expert is going to admit, it's what they're calling a Level 3 association; in other words, they can't say for sure that it is this roll or this caulking that was found inside of this -- that was found on Boylston Street, but rather, it matches something that is similar to that or manufactured in some kind of a similar way.
So even on the government's theory taking it in, you know, the light most favorable to it, a Level 3 association tells the jury almost nothing. Unlike the DNA context, there is no statistical analysis that could be done about how likely it is that it is this roll or how likely it is this manufacturing of any of that stuff. There's simply no clear standards by which an analyst can conclude that these two things are similar enough that one can conclude that they're somehow a match.
The only times this -- well, the vast majority of times that the government cites in its brief are when there are much more definite matches, when, for example, the end of a tape in connection with all of the other chemical properties of it can be matched up. Those are the kinds of cases where courts are inclined to allow this kind of evidence in. But here that's not what they're trying to do; they're simply trying to say it's pretty much like the stuff that was found at 410 Norfolk.
And that is where the main issue is. Even if they were going to be allowed to do that, there are serious questions. And we've gone into it in some detail in the briefs. I don't want to hit every point. But there are still significant questions about whether they can even say that, whether on a scientific basis as to the polymers and to the tapes, that they can say that their tests are conclusive. Even on that level to say it's scientifically or chemically consistent with what was found at 410 Norfolk. And that -- that, again, is something that can only be resolved at a Daubert hearing if the Court were inclined to let the government have it in.
But again, much like the DNA issue, the question is what is the probative value. The government is going to put into evidence items that were found at 410 Norfolk Street. They're going to put in rolls of clear tape, rolls of silver tape, rolls of black tape. They are going to put in caulking that they found, a caulking gun.
Again, it's difficult to see that there's going to be any kind of relevance basis to exclude that there, so they're going to get, to the extent that they need it, some kind of corroboration there. To then add some kind of scientific patina on all of it is simply unwarranted. It's particularly unwarranted where the science does not conclude what it is that the government seeks to argue at the end of the day: that they made this -- that these items here were used to build these pressure cooker bombs. It simply does not support that kind of conclusion. There's a grave danger that the jury's going to misuse it as such and conclude that, in fact, those were the rolls that were used to build the bombs.
Given all that, it simply should not come in. It should not be allowed to be used in a very prejudicial way that is not supported by science.
MR. CHAKRAVARTY: Your Honor, again, the issue of Daubert reliability versus 403 or the probative value of the testimony appears to be conflated here. And, in fact, the type of source-specific matching of the polymer evidence has been the only circumstance in which Daubert has really been an issue throughout the case law. And of course, as the government says in its pleadings, source-specific matching was not done in this case.
To the contrary, the analysts reviewed the characteristics of the polymers found, particularly tapes and sealants, both at the Boylston Street detritus, as Mr. Watkins calls it, as well as 410 Norfolk Street, and determined using a series of objective and widely accepted criteria, both in the industry -- the polymer adhesives' industry as well as in forensic science, in order to determine the class characteristics. And so short -- this is not the circumstance that could be unfairly prejudicial where an analyst says that this particular piece of tape was taken off of this particular roll in the defendant's residence. Instead, that witness is going to say, I have examined this tape. This is -- it's more than just a visual inspection. I've run this series of tests on this tape. These are the tests that are used in the industry and in forensic science in order to determine what the class characteristics are of the tape. And I identified that the class characteristics of the tapes and the polymers that were found in -- at defendant's residence were consistent with those same characteristics.
It does not mean -- the "consistent with" language notwithstanding, it does not mean that the expert is going to say that the tape was from 410 Norfolk Street. That would be something abundantly clear, as Mr. Watkins has already indicated, it's a Level 3 association at best. And what that means is the fact that the tape could not be excluded -- first, it's a natural question by the jurors. You're going to see duct tape found in the street, you're going to see duct tape seized in the residence. They're going to wonder: Is this the same duct tape? The government has the right to say we did an analysis to determine that. We found they are both of the same class characteristics but we could not make a stronger conclusion than that. It's that kind of candor which demonstrates this is not prejudicial testimony; however, it's another -- as Mr. Weinreb says, it's another brick in the wall.
But it also emphasizes that this goes to the weight of this evidence, not the admissibility. The government is not going to argue simply from that type of correlation, those class characteristics, that this evidence means that the defendant made the pressure cooker bombs; rather, it's going to say that items in the household in which he had resided were consistent with the items -- with some of the construction materials of the device itself.
The government has to explain what these devices were to the jury because that's going to be -- it's not just curiosity, it's the very mechanism of the crimes. And so it's important evidence for the jury -- for the government to introduce. It goes to weight, not admissibility, and there's no prejudice coming from the fact that tape is tape. That's essentially what the witness is going to be saying. And they're going to say of the varieties of tape, some of the samples are consistent with some of the samples that were found on the street.
A final point: The government has -- you know, this testimony, if it's going to come in, it's going to come in weeks into trial. To the extent that the testimony is necessary, given what the lay of the land is at the time that the witnesses are expected to testify, it's possible that the government doesn't even elicit the evidence. But to say under Daubert grounds or 403 grounds that testimony about actual physical evidence found at the scene that is consistent with and could give rise to an inference that people in Norfolk Street constructed the devices I think is an important one that the government should be allowed to make.
THE COURT: All right. This motion is denied for the simple reason that the government, as I hear it, doesn't propose to offer the possible testimony that might implicate a Daubert question. The "consistent with" is different from the source specific, and I think the "consistent with" is really -- I think it's really a relevance issue and not a Daubert issue at all. So anyway, that motion is denied.
MR. WATKINS: Just for the record, I raised Daubert issues there that, in fact, there are no standards by which even a Level 3 association could be made that there are not -- that that's not a scientifically supportable ground. So I think at a minimum, even if the Court under 403 purposes is going to allow it, you would still need to have a hearing in order to admit it at trial.