In Ex parte George, the Alabama Supreme Court considered whether witness testimony regarding historical cell tower data constitutes lay opinion or expert opinion subject to Alabama Rule of Evidence 702. At the petitioners’ murder trial, the State proffered an ALEA intelligence analyst as a witness to discuss collected historical cell tower records and to further opine that the records indicated petitioners were in close proximity to the victim’s body and various, related crime scenes at relevant times. The Tuscaloosa County Circuit Court admitted the State’s witness as a lay witness, not as an expert. Following a guilty verdict, petitioners appealed the case arguing the State’s ALEA witness was an expert required to be found qualified under Rule 702 of the Alabama Rules of Evidence. The Alabama Court of Criminal Appeals disagreed with petitioners and held that the State’s witness was properly admitted as a lay witness and that her testimony was properly considered lay opinion. The Alabama Supreme Court granted certiorari, reversed, and remanded.

The Court analysis looked beyond Alabama to the numerous state and federal court decisions analyzing the issue. A “vast majority” of them had found testimony pertaining to historical cell tower data, how it functions, its reliability, et cetera was expert testimony subject to Rule 702. The Court, in reaching a similar conclusion, found that the State’s ALEA witness at trial went beyond merely presenting historical cell tower data; she drew conclusions from the data and conveyed those conclusions to the jury. The State’s witness, as such, was an expert and subject to the qualification requirements mandated by Rule 702(a).

The Court went on to address whether said testimony was a “scientific” opinion, as opposed to a “nonscientific” opinion. Under the Court’s precedent set out in Mazda Motor Corp. v. Hurst, 261 So. 3d 167 (Ala. 2017), “scientific” opinion (reached by applying scientific principles) is subject to Alabama Rule of Evidence 702(b)’s reliability standard, while “nonscientific” expert opinion is not. The State argued that its ALEA witness neither held herself out as a scientist nor did she claim that her opinion was based on the scientific method.  The State asserted, rather, that her opinion was based on technical knowledge and/ or experience. The Court disagreed. It noted that the State’s witness had described to the jury the “scientific process” of how cell phones connect to cell towers and the various factors that can affect that connection. The Court further explained that the State’s witness had to, “at least in part,” apply “scientific principles” to interpret the cell tower data and extrapolate the petitioners’ approximate location at the relevant times. That witness’s opinion was, as a result, a “scientific” one.

The Court also distinguished a previous Court of Criminal Appeals decision on the subject. In Woodward v. State, 123 So. 3d 989 (Ala. Crim. App. 2011), it was held that witnesses proffered lay testimony when merely presenting historical cell tower records and identifying the routing towers and their location. The appellate court below in the instant case relied heavily on Woodward’sprecedent. Rather than overruling Woodward, the Supreme Court distinguished it. The Court held, unlike in Woodward, the State’s ALEA witness went beyond conveying such factual information. Although the discussion and distinction could be classified as dicta, it currently remains true under Woodward that cell tower records, identifying cell towers, and their location are all admissible through a lay witness.

HELD: Witness testimony regarding the function of cell towers and conclusion based upon historical cell tower data is expert opinion scientific in nature and is subject to Alabama Rule of Evidence 702(b)’s reliability standard.…