Maryland’s top court has reinstated a man’s double-murder conviction, saying an expert’s trial testimony regarding the killer’s height based on video surveillance was validly admitted despite unknown variables — such as whether he was standing on level ground — and strict new limits on the admission of expert testimony.
The Court of Appeals decision marked its first on the admissibility of expert testimony since it abandoned in 2020 its long-held “general acceptance” standard of admission in favor of a “reliability” standard in Rochkind v. Stevenson.
In its 6-1 decision, the Court of Appeals said the expert’s method of using video footage to calculate a subject’s height has been held to be a reliable scientific method and thus generally admissible at trial.
Though the accuracy of the expert’s height estimate was questionable, the trial judge validly concluded those questions could be asked by Kirk Matthews’ defense counsel on cross-examination and the jury could determine how much weight to give the expert testimony, the high court said last week.
“Once a trial court is satisfied that an expert has applied a reliable methodology to an adequate supply of data, the court should not exclude the expert’s testimony merely because the court is concerned that the expert’s particular conclusions may be inaccurate,” Judge Jonathan Biran wrote for the majority. “Rather, the trial court should only exclude expert testimony if it finds that it amounts to mere speculation or conjecture.”
The intermediate Court of Special Appeals had applied the Rochkind standard in overturning Matthews’ conviction for the second-degree, shotgun murders of Linda McKenzie and Leslie Smith on June 1, 2017 in Anne Arundel County.
The appellate court said the FBI expert’s testimony that the killer was about 5’8’’ tall should have been deemed inadmissible based on the “analytical gap” between the height estimate and shortcomings in the data, including whether he was standing on level ground.
But the high court reversed, saying “an unknown degree of uncertainty” in an expert’s opinion does not automatically render the testimony unreliable and therefore inadmissible if the method used is found to be reliable.
“Our conclusion respects the trial court’s role as a ‘gatekeeper,’ and does not transform the trial court into an ‘armed guard,’” Biran wrote, quoting from the 1st U.S. Circuit Court of Appeals 1998 decision in Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling Co. “’As long as an expert’s scientific testimony rests on good grounds, based on what is known, it should be tested by the adversary process – competing expert testimony and active cross-examination – rather than excluded from jurors’ scrutiny for fear they will not grasp its complexities or satisfactorily weigh its inadequacies.’”
Attorney Derek M. Stikeleather, a civil appellate attorney who urged the high court to adopt the stricter evidentiary standard two years ago, said the decision indicates that the Rochkind standard “does not exist to wipe out any expert testimony that is less than certain.”
The high court felt comfortable in admitting the expert’s testimony in this case because she was forthcoming about its limitations rather than presenting her opinion to the jury as certain, said Stikeleather, who was not involved in Matthews’ case.
“I think it was the modesty of what the expert was advancing” that rendered it admissible, added Stikeleather, of Goodell, DeVries, Leech & Dann LLP in Baltimore.
Judge Shirley M. Watts, the high court’s sole dissenter, said the analytical gap between the estimate of the killer’s height and the unknown variables, such as the landscape he was standing on, was too great to have rendered the testimony sufficiently reliable to have been admitted.
“The overarching inquiry in admission of expert testimony is a determination that it is reliable,” Watts wrote. “There can be no reasonable quarrel with the Court of Special Appeals’ determination in this case that it was an abuse of discretion to admit expert testimony where the expert essentially acknowledged that she could not say that her opinion was reliable.”
The prosecution sought to introduce at trial testimony from an FBI expert in photogrammetry analysis that the killer was 5’8’’ tall, give or take two-thirds of an inch, based on video footage from a nearby home security camera taken before and after the shootings near Nick and Scott Town roads in Shady Side. The video did not clearly show the person’s face or whether the person was on higher or lower ground, according to the high court’s decision.
Matthews is approximately 5’9” tall, according to court documents.
Then-Anne Arundel County Circuit Judge Laura S. Ripken found the proposed testimony to be sufficiently reliable and permitted its admission at trial subject to cross-examination.
The jury found Matthews guilty in October 2018 of two counts of second-degree murder and related gun charges. He was sentenced to 110 years in prison, with all but 80 years suspended.
The Court of Special Appeals overturned the convictions in a reported opinion in February 2021.
The state then sought review by the Court of Appeals.
Matthews’ appellate attorney, Helki Philipsen, stated via email Monday that she “was surprised and dismayed” by the high court’s decision.
“I do not believe the court got the analysis right and maintain my position that Mr. Matthews was deprived of a fair trial by the admission of this evidence, as recognized by the Court of Special Appeals and Judge Watts in her dissent,” added Philipsen, an assistant Maryland public defender.
The Maryland Attorney General’s Office declined to comment on the high court’s decision.
The Court of Appeals rendered its decision in State of Maryland v. Kirk Matthews, No. 15, September 2021.