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Is ShotSpotter Evidence Admissible in Trial?
An Alameda County jury convicted Kawan Hasimrashid Hardy of five counts of firing a semi-automatic pistol in the direction of an occupied vehicle while standing on the street on 90th Avenue in Oakland. The judge, Thomas C. Rogers, sentenced Mr. Hardy to state prison for nineteen years and eight months.
An Oakland Police Department undercover officer observed Hardy firing the handgun, which was corroborated by a liquor store’s surveillance video from Booker’s Liquor at the corner of 90th Avenue and Olive Street, where about 20 people had gathered to make a music video.
The Gist of this Article: ShotSpotter evidence, “an acoustic gunfire detection and location system of GPS-enabled microphones placed at various areas of a municipal area,” is subject to a hearing on its reliability as scientific evidence under Kelley-Frye before it is admissible at trial.
The strongest, and only unambiguous, evidence that the firearm he fired was semi-automatic was an audio recording that had been sent to the Oakland Police Department by a third-party service called “ShotSpotter.”
At trial, Hardy’s counsel had made a motion in limine to exclude ShotSpotter evidence, or at least to conduct a “Kelly – Frye” hearing to assess its scientific reliability. People v. Kelly (1976) 17 Cal.3d 24 (which relied upon Frye v. United States (D.C. Cir. 1923) 293 F. 1013). As the reader may be aware, “the trial court acts as a gatekeeper to ensure the evidentiary relevance and reliability of an expert’s opinion to ensure that the courtroom door remains closed to junk science that might unduly influence the jury, while admitting reliable expert testimony that will assist the trier of fact.” State v. Hill (2014) 288 Neb. 767, at 792, citing Daubert v. Merrell Down Pharmaceuticals, Inc. (1993) 509 U.S. 579.
ShotSpotter is a service used by the Oakland Police Department that sends officers notifications and audio recordings of sounds the service has identified as gunshots detected in certain areas of Oakland. It is “an acoustic gunfire detection and location system of GPS-enabled microphones placed in various locations of a municipal area.”
If a sound meets the preprogrammed criteria for a possible gunshot, the system transmits the information to a central location server, which then uses triangulation to pinpoint the latitude and longitude of the sound an uses a process called geolocation to place that location on a map. An incident review team at SST, the manufacturer of ShotSpotter, will review the information to rule out a false positive before reporting it to law enforcement.
The trial court judge denied Hardy’s motion in limine without conducting an evidentiary hearing to determine if ShotSpotter’s technology meets the standard of reliability required under Kelly/Frye. The judge did so because at the hearing, the prosecutor represented that he would not introduce the ShotSpotter evidence for the truth of what it contained, but only to explain why certain police officer responded to the scene of the incident.
However, at trial, the prosecutor did not do what he said he would. Instead, he introduced the ShotSpotter evidence for location of the firearm discharge and Judge Rogers did not instruct the jurors that there were any limits on the purposes for which they could use the evidence. In fact, the judge summarily overruled the objections from Hardy’s counsel to the evidence being introduced for an improper purpose.
After Hardy was convicted, perhaps (or no doubt) due to the ShotSpotter evidence, Judge Rogers denied the motion for new trial filed by Hardy’s attorney.
Court of Appeal First Appellate District San FranciscoAppellate counsel for Hardy filed an appeal of these rulings in trial and of the motion for new trial with the First Appellate District, which concluded Judge Rogers erred in admitting the ShotSpotter evidence without first conducting an evidentiary hearing to assesses its scientific reliability under Kelly – Frye.
The appellate court further found that the error was prejudicial so it reversed Mr. Hardy’s conviction for the five counts of assault with a semi-automatic firearm in the direction of an occupied vehicle (Penal Code § 246). It merits mention on this issue that the appellate court was deliberate in concluding the error was prejudicial “by any standard,” including the Watson “reasonable probability” standard for state law error that the People argued the appellate court should apply. People v. Watson (1956) 46 Cal.2d 818, 836 (there is a prejudicial error if there is a “reasonable chance, more than an abstract possibility” that defendant would have received a better outcome but for the error). This means there was enough of an error to undermine confidence in the outcome. College Hospital v. Superior Court (1994) 8 Cal.4th 704, 715.
Mr. Hardy remained convicted on the counts alleging possession of a firearm by a felon (Penal Code § 29800(a)(1)), carrying a loaded firearm in a city (Penal Code § 25850(a)) and possession of ammunition by a prohibited person (Penal Code § 30305(a)(1)).
We offer this summary because it nicely shows how a judge often will defer on a ruling for a motion in limine after a prosecution promise to limit the scope of questioning, only to be burned at trial when the prosecutor disregards that promise.
The citation for the First Appellate District Court ruling discussed above is People v. Kawan Hasimrashid Hardy (1st App. Dist., 2021) 61 Cal. App. 5th 1092, 275 Cal. Rptr. 3d 566.
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