Judge Susan Garsh, who is presiding over the high profile murder trial of NFL star Aaron Hernandez, made a very shocking and controversial ruling on Wednesday.  The former New England Patriot tight end is charged with first-degree murder in the shooting death of Odin Lloyd, a semi-pro football player who was dating the sister of Hernandez’s fiancee.  The case is largely circumstantial and lacks a clear motive or a murder weapon.  Security footage from inside Hernandez’s home shows him holding what appears to be a gun in the hours leading up to the murder and after the shooting of Lloyd.  The footage is grainy and distant.

The gun which was used in the murder was identified as a Glock 21.  Kyle Aspinwall, a former New Hampshire police chief who now works for Glock, was allowed to testify as a “lay witness” as opposed to an “expert witness”.  He was called to the stand to show the jury what a Glock firearm looks like and compare it to the vague stills taken from the Hernandez’s home security system.  Defense attorneys have told the jury that the black object could be anything, including a TV remote.  Prosecutors insist it is a gun.

As Aspinwall testified, prosecutor Patrick Bomberg played clips from the home surveillance system and asked the firearms manufacturer employee to identify the black object.  Judge Garsh overruled objections from the defense that the opinion was impermissible since he wasn’t an expert.

Aspinwall was allowed to tell the jury, “In my opinion, the firearm shown in the video stills is a Glock pistol.”

This was the “smoking gun” of the prosecution’s case so far.  Aspinwall’s testimony paired with the surveillance videos was presented to the jury by prosecution as an identification of the murder weapon being in the hands of Hernandez before he left the house and then after he returned to the house after Lloyd’s presumed time of death.

The controversy comes from the fact that the judge allowed a “lay witness” to tell the jury that the grainy surveillance photo not only shows the shape of a gun, but is positively a Glock 21.

A lay witness testifies to observations and facts, but their opinion testimony is limited.  These people include character witnesses or eyewitnesses.  Expert witnesses testify to their professional opinions about facts of the case. Under Massachusetts rules, a lay witness can only testify to the following opinions:

  • Those rationally based upon the perception of the witness.
  • Those that are helpful to a clear understanding of their own testimony or the determination of a fact at issue.
  • Opinions that are not based upon scientific, technical, or specialized knowledge.

In other words, a lay witness can testify to “everyday opinions” that is the age of someone, speed of something, etc.  Expert witnesses testify to everything else.

“While an expert opinion is admissible only where it will help jurors interpret evidence that lies outside of common experience, a lay opinion is admissible only where it lies within the realm of common experience,” ruled a Massachusetts court in 2013.

While Aspinwall works for Glock and is a former Police Chief in New Hampshire, he was not qualified before the court as an expert.  His opinions were never vetted in a Daubert hearing, which is a hearing used to determine whether expert testimony is relevant and reliable. A WildAboutTrial reporter said that a Massachusetts attorney, not related to the case, told him outside of court that the judge’s decision was similar to asking a Chiquita banana salesman if a grainy surveillance photo was of a banana, specifically a Chiquita banana, and he says, “Ya that’s definitely a Chiquita banana.”

Reporters noted that Judge Garsh always accompanied her legal decisions with a lengthy oral explanation and well-reasoned legal analysis and support.  But Wednesday’s decision was different.  She briefly stated that he had “experience and training” in the area before allowing him to tell the jury that it was not only a gun, which possibly could be a “lay opinion”, but that it was exactly a Glock 21 and not some other firearm.

“[Aspinwall] testified as an expert,” a prosecutor consulted by WildAboutTrial said, “It sounds identical to expert testimony and should have been treated as such. This man was a former cop and works for Glock…Sounds like the defense has a decent argument on appeal.”

Criminal Defense attorney Robert Sheahen, said, “This ruling is outrageous, it is patently absurd. This decision undermines the entire premise of expert testimony.”

But the issue didn’t end there.  The next day, Thursday, Judge Garsh seemed to have realized her mistake and admonished the jury to forget Aspinwall’s testimony.  The judge told the jurors to disregard Aspinwall’s opinion that Hernandez was carrying a Glock 21.  She told the jury they can still consider his testimony that the object is a gun based upon certain characteristics.

But, is it too late to undo what the jury heard?

As Ryan Kearns from WildAboutTrial said, “the cat is out of the bag…”


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