State v. Leo Paul Pratt II , 200 Vt. 64 ( 2015 )

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@state.vt.us or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be
made before this opinion goes to press.
2015 VT 89
No. 2014-121
State of Vermont Supreme Court
On Appeal from
v. Superior Court, Addison Unit,
Criminal Division
Leo Paul Pratt II March Term, 2015
Robert A. Mello, J.
Dennis M. Wygmans, Addison County Deputy State’s Attorney, Middlebury, for
Plaintiff-Appellee.
Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. DOOLEY, J. Defendant appeals his conviction in Addison Superior Court on
the grounds that the court erred by: (1) admitting the victim’s out-of-court statements under
Vermont Rule of Evidence 804a; (2) admitting expert testimony under Vermont Rule of
Evidence 702; and (3) coercing a jury verdict. We affirm.
¶ 2. Defendant was charged with aggravated sexual assault of a minor under the age of
thirteen in violation of 13 V.S.A. § 3253(a)(8). The victim, T.B., was twelve years old at the
time of the incident that gave rise to this case. Evidence presented at trial demonstrates the
following. On November 14, 2012, T.B. arrived home from school and was alone in the house
with defendant, her uncle, with whom she lived. Defendant followed T.B. into her bedroom and
asked her for a “hand job.” He then asked T.B. to come sit in the living room where he again
asked for a hand job. When she refused, he slapped her across the face and on the back of her
head and forced her hand down his pants. He then told her that he wanted her to watch a video
on his cell phone of a girl giving a man a hand job so that she would know how to do it.
Eventually, defendant told T.B. to go in the bedroom where he forced her onto the bed, fondled
and performed oral sex on her, and forced her to perform oral sex on him. After the incident,
T.B. left the house and waited in the farm store across the street until her aunt came home. Later
that night, T.B. wrote a letter about the incident and about how she no longer felt safe in her
home. The next morning on the bus, she showed the letter to a friend, who encouraged her to tell
the school principal. T.B. showed the letter to the vice principal, and the school officials called
the police and a Department for Children and Families case worker.
¶ 3. Prior to trial, the parties submitted two motions in limine that are the focus of this
appeal.1 The State moved to admit T.B.’s letter under Rule 804a, which allows admission of out-
of-court statements made by a child of age twelve years or under, if several factors are met.
Defendant moved to exclude the testimony of the State’s expert witness regarding the extraction
of data from defendant’s cell phone. The court held motion hearings on October 8 and 9, 2013,
and ruled both the letter and expert testimony admissible. The findings and conclusions of the
court with respect to these motions, as well as the arguments of the parties, are discussed in more
detail in the opinion below.
¶ 4. After a three-day trial, the jury found defendant guilty. Defendant appeals his
conviction and raises three claims of error: (1) the trial court erred in admitting T.B.’s letter
under Rule 804a because the State failed to establish that the time, content, and circumstances of
the statements provided a substantial indicia of trustworthiness; (2) the trial court erred in
1
Defendant also submitted a motion to exclude evidence of his prior bad acts under
Vermont Rule of Evidence 404(b), but the decision on that motion is not part of this appeal.
2
admitting the expert testimony regarding the extraction of data from defendant’s cell phone
because the State failed to establish that the software and methods used are sufficiently reliable
under Rule 702; and (3) the trial court coerced a jury verdict by telling the jury that if they did
not reach a verdict by the end of the day they would have to stop deliberating and return
Monday. We find no error and affirm the judgment of the trial court on all three points.
¶ 5. We turn first to defendant’s Rule 804a claim. We review the trial court’s
evidentiary rulings for abuse of discretion. State v. Breed, 2015 VT 43, ¶ 46, ___ Vt. ___, ___
A.3d ___. “We uphold the trial court’s conclusion that hearsay statements are trustworthy under
Rule 804a(a)(4) if it is supported by the findings, which must be supported by credible evidence
in the record.” State v. Reid, 2012 VT 65, ¶ 20, 192 Vt. 356, 59 A.3d 711.
¶ 6. Vermont Rule of Evidence 804a(a) allows admission of out-of-court statements
made by putative victims of aggravated sexual assault if “the time, content, and circumstances of
the statements provide substantial indicia of trustworthiness.” V.R.E. 804a(a)(4). 2 Essentially,
defendant argues that the court’s conclusion as to the trustworthiness of the letter is not
supported by credible evidence in the record. Specifically, defendant maintains that T.B.
fabricated the entire story and that the letter was the start of that fabrication. He emphasizes that
the “only evidence presented in support of admission of the letter was the letter itself, and the
testimony of [T.B.’s friend and the detective],” and that “[n]o one witnessed T.B. write the
letter.” Defendant’s argument appears to be that the circumstances surrounding T.B.’s disclosure
of the letter are not relevant here for establishing the letter’s trustworthiness, but that the
circumstances surrounding the actual writing of the letter must prove it to be trustworthy. The
State, on the other hand, explains that “it is the disclosure of the note relative to the occurrence of
the assault that provides indicia of trustworthiness.” Defendant relies on one case, State v. Reid,
2
Rule 804a(a) provides other factors that must be met for the testimony to be admitted,
but those factors are not at issue here.
3
2012 VT 65, which provides a nonexclusive list of factors relevant to determining the
trustworthiness of Rule 804a statements.
¶ 7. The factors outlined in Reid provide a starting point for our analysis and help us
establish a framework for reviewing the trial court’s conclusion. As explained in Reid, courts
may consider such factors as: the circumstances of the initial disclosure, including the setting and
person to whom the disclosures were made; internal consistency and detail of disclosures; timing
and conduct of interviews, including whether nonleading questions were asked; freshness and
spontaneity of disclosures; appropriate body language; risk of fabrication; evidence of coercion
or manipulation; accuracy of peripheral detail; the child’s affect, intelligence, memory, and
concern for the truth; and corroboration by medical and other evidence. Id. ¶ 24; see also State
v. Tester, 2006 VT 24, ¶ 17, 179 Vt. 627, 895 A.2d 215 (mem.); State v. LaBounty, 168 Vt. 129,
136-38, 716 A.2d 1, 7 (1998); State v. Fisher, 167 Vt. 36, 40-41, 702 A.2d 41, 44 (1997); State v.
Lawton, 164 Vt. 179, 190, 667 A.2d 50, 59 (1995); In re M.B., 158 Vt. 63, 69, 605 A.2d 515,
518 (1992); State v. Gallagher, 150 Vt. 341, 348, 554 A.2d 221, 225 (1988). As Reid states, and
the cases cited therein make clear, this list is not exhaustive, and the court need not consider all
the factors in finding the testimony admissible. For example, in State v. Lawton, we affirmed the
trial court’s admission of a child’s statements as trustworthy because they were made in response
to the first time the mother asked the child about incidents involving the father and were
therefore not a product of repeated interviewing, coercion, or manipulation. 164 Vt. at 190, 667
A.2d at 59.
¶ 8. Here, the court found T.B.’s letter trustworthy because she wrote the letter to the
vice principal—a trusted adult—expressing her need to tell someone about the incident and her
fear of going back home. The court also found the language, spelling, and writing of the letter
all age appropriate, indicating that T.B. was not coached or prompted by anyone. Furthermore,
the court found that when T.B. and her friend were discussing the letter on the bus—right after
4
the friend read the letter—the statements were made spontaneously at a time when T.B. and her
friend were not otherwise talking about sexual issues or abuse; the statements were made to a
trusted friend in a safe place; T.B.’s body language was consistent with that of someone alleging
sexual abuse; and T.B.’s statements were consistent with those she made to the police. The
court’s findings here reflect many of the factors discussed in Reid, 2012 VT 64, ¶ 24; see supra,
¶ 7.
¶ 9. Defendant maintains, however, that these findings are not sufficient to alleviate
concerns that the contents of the letter were fabricated because, as defendant stresses, “[n]o one
witnessed T.B. write the letter.” We find no case—and defendant cites no case—where such
statements have been held inadmissible merely because the putative victim penned the letter in
private where nobody was around to attest to the circumstances surrounding its creation; in fact,
it is likely that most letters of this nature, particularly those written by children, are written in
private and later disclosed to a trusted peer or adult.
¶ 10. Courts generally consider written statements equally as trustworthy as oral
statements when reviewing such statements under hearsay exceptions like Rule 804a or under
residual hearsay exception rules. See, e.g., State v. John G., 837 A.2d 829, 837 (Conn. App. Ct.
2004) (“[T]he dispositive factor in deciding whether a victim’s statement properly is admissible
as constancy of accusation evidence is not whether such statement is written or oral.”);
Commonwealth v. Lanning, 589 N.E.2d 318, 323 (Mass. App. Ct. 1992) (“[W]e can think of no
reason why the admissibility of [the victim’s statement] should turn on whether the [statement]
was written or oral.”).
¶ 11. In fact, a handful of courts have discussed the trustworthiness of written
statements and admitted the statements for reasons comparable to those given by the trial court
here. The most instructive of these cases is United States v. Morgan, 385 F.3d 196 (2d Cir.
2004). There, the defendant appealed her conviction for conspiracy to import, importation, and
5
possession with the intent to distribute controlled substances. She argued that an inculpatory
letter written by her co-defendant to the co-defendant’s boyfriend was hearsay that the court
erred in admitting at trial. The letter was admitted under Federal Rule of Evidence 807, the
residual hearsay exception, which requires that evidence be “particularly trustworthy.” Id. at 208
(quoting United States v. Bryce, 208 F.3d 346, 350-51 (2d Cir. 1999)).
¶ 12. In affirming the trial court’s admission of the letter, the circuit court looked to
precedent that recognizes an exception to the general prohibition on the admission of an
accomplice’s inculpatory hearsay statement to prove the guilt of the accused when “the statement
is made to a person whom the declarant believes is an ally rather than a law enforcement
official” and the inculpatory portions of the statement are as trustworthy as the portions
incriminating the accomplice. Id. at 208-09 (quoting United States v. Matthews, 20 F.3d 538,
546 (2d Cir. 1994)). The circuit court found the letter sufficiently trustworthy because it “was
not in response to police questioning”; “was not written in a coercive atmosphere”; “was not
addressed to law enforcement authorities”; and was written “to an intimate acquaintance . . . in
the privacy of her hotel room.” Id. at 209.
¶ 13. As noted above, the court found that T.B. wrote this letter to a trusted adult for
help in a matter that concerned and frightened her and that there was no evidence of coercion.
Like the letter in Morgan, the letter here was written in private. While defendant seems to argue
that private letter-writing somehow undermines the trustworthiness of the contents, the circuit
court found the act of writing in private to be an indicator of trustworthiness—likely because it
demonstrates absence of outside influences. We agree with the Morgan court’s analysis and
conclude that the trial court’s finding of trustworthiness is supported by the record and that the
court did not abuse its discretion in admitting T.B.’s letter.
¶ 14. We turn next to defendant’s Rule 702 claim, again keeping in mind our
deferential, abuse-of-discretion review. See USGen New Eng., Inc. v. Town of Rockingham,
6
2004 VT 90, ¶ 21, 177 Vt. 193, 862 A.2d 269 (reviewing trial court’s decision to admit expert
testimony for abuse of discretion); see also Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141-42 (1997)
(holding that, although liberal standard exists for admissibility of expert testimony, appellate
review must remain consistent with that for other evidentiary rulings).
¶ 15. As to this issue, defendant argues that the court erred in admitting the forensic
expert’s testimony regarding his use of the Cellebrite software for retrieving the contents of
defendant’s cell phone.3 Defendant’s primary claim is that, while the forensic expert had a
“general understanding of how the program works[,] . . . he did not have any understanding of
the programming behind the software.” Defendant also challenges the reliability of the
testimony, arguing that the State was unable to satisfy any of the factors outlined in Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Specifically, defendant contends that
the forensic expert’s responses were “conclusory”; that he self-tested the program “using other
software equally under scrutiny”; and that he read some periodicals about the program and is
aware of its capabilities, but has no knowledge of its error rates and believes the program is
reliable merely “because it [is] the most popular program used to examine cell phones and
because he was told it was reliable.”
¶ 16. We start with the law governing the admissibility of expert testimony. Vermont
Rule of Evidence 702 provides:
If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form
of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.
3
The search of defendant’s cell phone revealed URLs from a pornographic website,
including one linking to a video involving a teenage girl.
7
As the Reporter’s Notes explain, Rule 702 is identical to its federal counterpart, as originally
drafted and as amended in response to a trilogy of United States Supreme Court cases, beginning
with Daubert, that expound the limits of admissibility for expert testimony and create workable
standards for use by trial judges in assessing the qualifications of experts and the reliability of the
methods by which they reached their proffered opinions. The Daubert Court held that Federal
Rule of Evidence 702 superseded the traditional “general acceptance” test established in Frye v.
United States, 293 F. 1013 (D.C. Cir. 1923), by removing the barriers to admissibility inherent in
the general acceptance test and instead instituting a flexible standard guided by the dual
principles of relevance and reliability. 985 Assocs. v. Daewoo Elecs. Am., Inc., 2008 VT 14,
¶ 6, 183 Vt. 208, 945 A.2d 381 (citing Daubert, 509 U.S. at 588-89).
¶ 17. To assist trial judges in determining whether an expert’s opinion is sufficiently
rooted in scientific knowledge, the Daubert Court delineated four nonexclusive factors a judge
may consider when assessing admissibility: (1) whether the theory or technique involved is
capable of being tested; (2) whether the theory or technique has been subjected to peer review
and publication; (3) the known or potential error rate associated with the scientific technique; and
(4) whether the theory or technique has been generally accepted in the scientific community.
State v. Streich, 163 Vt. 331, 343, 658 A.2d 38, 47 (1995) (citing Daubert, 509 U.S. at 591-94).
We adopted those factors in State v. Brooks, 162 Vt. 26, 30, 643 A.2d 226, 229 (1993), to
“promote more liberal admission of expert evidence.” State v. Scott, 2013 VT 103, ¶ 12, 195 Vt.
330, 88 A.3d 1173. Following Daubert, trial judges “must now act as gatekeepers who screen
expert testimony ensuring that it is reliable and helpful to the issue at hand before the jury hears
it.” USGen, 2004 VT 90, ¶ 19. Although courts have diverged on how exacting the Daubert
inquiry must be, we have focused on the “liberal thrust” of Rule 702, stating that “the trial
court’s inquiry into expert testimony should primarily focus on excluding ‘junk science’—
because of its potential to confuse or mislead the trier of fact—rather than serving as a
8
preliminary inquiry into the merits of the case.” Daewoo, 2008 VT 14, ¶¶ 8-10 (“We adopted
the Daubert decision precisely because it comported with the ‘liberal thrust’ of the rules of
evidence and broadened the types of evidence that could be considered by the jury at trial.”
(quoting Daubert, 509 U.S. at 588)).
¶ 18. The United States Supreme Court issued a subsequent decision that provides
guidance here. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), expanded the applicability
of Daubert to nonscientific expert testimony—i.e., testimony relying upon “technical” and “other
specialized knowledge,” as termed in the amendments to Rule 702. Prior to Kumho, the question
of Daubert’s reach remained unanswered, with states taking either a liberal or conservative
approach to the admissibility of nonscientific testimony. See 1 K. Broun, McCormick on
Evidence § 13 (7th ed. 2013). The Supreme Court resolved this issue in Kumho, holding that the
trial judge’s gatekeeping obligation applies equally to testimony based on “technical” and “other
specialized knowledge.” 526 U.S. at 141. In so holding, the Court explained that Daubert is not
a one-size-fits-all analysis, but rather the trial judge may consider one or more of the factors
“when doing so will help determine the testimony’s reliability.” Id. It further explained that the
factors are not a “definitive checklist or test” and “neither necessarily nor exclusively appl[y] to
all experts or in every case.” Id. at 141, 150 (quotations omitted). “[T]here are many different
kinds of experts, and many different kinds of expertise,” the Court observed, and in some cases
“the relevant reliability concerns may focus upon personal knowledge or experience.” Id. at 150.
The Court further emphasized that “Rule 702 [does not] create[] a schematism that segregates
expertise by type while mapping certain kinds of questions to certain kinds of experts.” Id. at
151. In light of this expanded view of Rule 702 and the Daubert inquiry, the Court rearticulated
the objective of the gatekeeping requirement as “ensur[ing] the reliability and relevancy of
expert testimony” and “mak[ing] certain that an expert . . . employs in the courtroom the same
9
level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id. at
152.
¶ 19. We have endorsed this approach, stating that the Daubert factors “are not
exhaustive, and a trial court has broad discretion to determine, on a case-by-case basis, whether
some or any of the factors are relevant in evaluating the reliability of expert evidence before it.”
Scott, 2013 VT 103, ¶ 10 (quotation omitted). We further explained in State v. Kinney, 171 Vt.
239, 762 A.2d 833 (2000), that a mechanical application of the Daubert factors to expert
testimony is not necessary where the scientific or technical evidence is not novel and its
reliability otherwise can be established. Id. at 249-50. Notably, we concluded that the State was
not obligated to present independent evidence, nor was the trial court required to make
independent findings, on each of the Daubert factors because the reliability of the expert
testimony could be established through other means, particularly through analogy to comparable
technical evidence we have allowed trial courts the discretion to admit and through evaluation of
the same type of evidence by other courts. Id. at 250.
¶ 20. Having established the flexibility with which we apply Rule 702 and the Daubert
factors to nonscientific expert testimony, we must determine what type of foundation for
reliability is required for the admissibility of the testimony here, particularly keeping in mind
defendant’s argument that the forensic expert’s lack of knowledge about the underlying
programming of the Cellebrite software is fatal to his testimony’s reliability. Although we can
find no case from this Court directly on point, several other courts have taken a liberal approach
in admitting testimony regarding computer software and other technical devices upon reliability
foundations similar to that laid by the State here.4
4
We note that some of these courts still rely on a version of the Frye “general
acceptance” standard, or some hybrid of Frye and their own common law standards. We do not
believe that this alters the applicability or persuasive value of these cases because the analyses
10
¶ 21. Closely on point is United States v. Chiaradio, 684 F.3d 265 (1st Cir. 2012). In
Chiaradio, an FBI agent testified to his investigatory technique of using an enhanced peer-to-peer
(EP2P) file sharing program to identify Internet Protocol addresses where child pornography has
been downloaded. The defendant objected to the court’s admission of the agent’s testimony
under Federal Rule of Evidence 702 because the EP2P technology was “too untested to form an
adequate foundation” for the agent’s testimony. Id. at 277. In affirming the judgment of the trial
court, the circuit court concluded:
Although [the agent] was not a programmer, did not know the
program’s authors, and had never seen the source code, he had
significant specialized experience with both EP2P and the manual
re-creation of EP2P sessions. He testified that the program, with
respect to identifying the source of particular files, had no error
rate. He also demonstrated how the results of an EP2P
investigation could be independently verified and made it clear that
EP2P had never yielded a false positive.
Id. at 278.
¶ 22. Also on point is Krause v. State, 243 S.W.3d 95 (Tex. App. 2007). In Krause, the
court considered the qualifications of a forensic examiner using specialized software called I-
Look to create an exact duplicate of the defendant’s computer hard drive in order to search for
evidence of child pornography. The forensic examiner testified that the hard drive was an exact
copy because the “Hash value”—or “fingerprint”—of the copy matched that of the original. He
conceded that he was “not sure exactly how the formula or algorithm works” and did not know
“from where the mathematical formula for the Hash values came.” Id. at 101. He stated,
however, that the formula had “been approved by our headquarters and it’s the formula that we
use to get that value” and that the program “was industry standard and generally accepted in the
scientific community.” Id. The defendant objected that the testimony was “not sufficiently
reliable” because the forensic examiner did not know how the program reproduced the copies of
conducted by those courts comport with the flexible principles of Daubert as applied by this
Court.
11
the original hard drives. Id. In approving the trial court’s admission of the testimony, the
appellate court discussed the forensic examiner’s qualifications; his experience in data recovery
and analysis and computer investigation; his work with the FBI; his 200 hours of training in
forensic examination, including training in software programs like I-Look; and his experience
conducting around 150 forensic examinations for the FBI, half of which involved I-Look. Id. at
109. With respect to the reliability of the software, the court stated:
Regarding the clarity with which the underlying scientific theory
and technique can be explained to the court, [the expert] explained
that he had used I-Look on computer files taken from [the
defendant’s] external hard drive and computers. I-Look indexed
the files, and [the expert] was able to retrieve files containing child
pornography from [the defendant’s] hard drives. When [the
examiner] took a hard drive from a computer, he used a program
like I-Look to automate the task of searching and finding the files
on it. An image of the drive was taken; the files were copied; and
I-Look validated the copy by a “Hash value,” an algorithm that
verifies the image. [The expert’s] testimony established I-Look’s
reliability.
Id. at 109-10.
¶ 23. In reaching its conclusion, the appellate court relied on an earlier decision that we
also find instructive here. In Williford v. State, 127 S.W.3d 309 (Tex. App. 2004), the court
considered a detective’s testimony regarding a program called EnCase, which copies data from
one computer hard drive to another. The defendant objected to this testimony “on the ground
that [the detective] was not qualified as an expert to testify about the theory or technique in
developing the EnCase software or its reliability.” Id. at 311. In approving the admission of the
testimony, the appellate court concluded the it was reliable because the detective was
knowledgeable about using EnCase and had used it in the past; the software was generally
accepted in the computer forensic community worldwide, had a low potential error rate, and had
been reviewed in publications; and the accuracy of the software had been verified by the
detective and, because of its commercial availability, could be tested. Id. at 312-13; see also
12
Sanders v. State, 191 S.W.3d 272, 277-78 (Tex. App. 2006) (approving admission of expert
testimony on use of EnCase where detective had training and experience using software,
discussed periodicals writing about software, and testified that software was “field standard” for
forensic computer examination).
¶ 24. Forensic investigation increasingly requires the use of computer software or other
technological devices for the extraction of data. While an investigator must have specialized
knowledge in the use of the particular software or device, it is not required—nor is it practical—
for an investigator to have expertise in or knowledge about the underlying programming,
mathematical formulas, or other innerworkings of the software. See, e.g., United States v.
Springstead, 520 F. App’x 168, 169-70 (4th Cir. 2013) (approving trial court’s admission of
computer forensic examination software, against defendant’s objection that agent “lacked the
requisite knowledge and training to explain how the [forensic] software used in this case was
designed and functioned,” because agent testified to his training and experience with software);
State v. Roberts, 2015 UT 24, ¶ 55, 345 P.3d 1226 (approving trial court’s admission of
computer forensic examination software, against objection from defendant that software “relies
on undefined scientific methods,” because software was “readily available” and “fairly common”
and officers were well trained in its use); cf. Moorman v. State, 574 So. 2d 953, 958-59 (Ala.
Crim. App. 1990) (approving admissibility of toxicology technician’s testimony regarding
testing of defendant’s blood sample to determine blood-alcohol content, against defendant’s
objection that technician’s knowledge of how machine worked was not based on her personal
knowledge but on manufacturer’s manual, because evidence demonstrated that blood sample was
“analyzed by an instrument generally accepted in the medical community” and “commonly
employed by hospitals for both ‘legal and medical purposes’ ” and that “instrument was operated
13
by a qualified technician who followed standard operating procedure in performing the test” and
“was in proper operating order at the time of the test”).5
¶ 25. Returning to the testimony presented by the forensic expert, we conclude that the
trial court did not abuse its discretion in admitting the testimony. Our conclusion is supported by
the principles discussed above: our deferential, abuse-of-discretion review; the liberal
admissibility under Rule 702 and Daubert; and the flexible, nonmechanical application of the
Daubert factors, specifically to nonscientific testimony.
¶ 26. As to the forensic expert’s qualifications, he testified that he had over 800 hours
of training in the forensic examination of computer hard drives, digital media, and cell phones
and a week of specific training in Cellebrite with a company that specializes in training and
assistance to law enforcement. He also testified that he has used the program to extract data
from hundreds of phones since 2010. He conceded that someone in his position would not be
able to speak about the underlying programming, stating, “[W]e’re actually trained . . . to be very
careful about how we talk about how the software and hardware works . . . we’re not experts on
5
A handful of courts have considered testimony regarding the use of the Cellebrite
software and have ruled the testimony admissible where the witness had no knowledge of the
programming behind the software. For example, in In re D.H., No. A140779, 2015 WL 514336
(Cal. App. Feb. 6, 2015), the court explained that
[t]he testimony was not for the purpose of explaining how the
Cellebrite technology worked, and [the detective] did not opine
about the technological means by which the transfer occurred.
Instead, he essentially testified to his experience that attaching a
phone to his machine resulted in a display of photographic and
other information that was contained in the phone, and identified
the type of machine he used to download the material from [the
phone].
Id. at *6. Although this case supports our reasoning above, we do not find it entirely applicable
because the court there held that the detective’s testimony was not expert testimony because data
extraction is merely an “investigative technique.” Id. We consider the forensic expert’s
testimony here to be expert testimony because he has “specialized knowledge” about the use of
Cellebrite that is helpful to a jury.
14
that.” He testified, however, that he read about the program, what it can do, what information it
can reveal, and how he can search and sort through the data.
¶ 27. As to the reliability of the program, the forensic expert testified that “numerous
agencies use the software” and that it is “the most popular hardware and software solution for
examining cell phones.” He testified that the program is routinely tested in the forensics
community; the results are tested in his agency by defense experts and through peer review of
data reports; and that because the program is commercially available, it is subject to testing. He
also stated that he self-tests his extraction results by comparing the computerized results to the
results of a manual examination to verify the data that has been extracted and that he compares
the results of his extraction with results from other forensic programs that overlap with
Cellebrite. He further stated that he has learned of the program’s reliability in the forensic
industry through his trainings, correspondence with colleagues, and email lists. He testified that,
although the program’s error rate never was expressly discussed in his training, the program’s
limitations were.
¶ 28. The trial court concluded that the testimony was sufficiently reliable to meet the
requirements of Rule 702. The court focused specifically on the forensic expert’s training and
experience with Cellebrite, the software’s widespread use by law enforcement nationally, and
that the expert verified the accuracy of the data extraction through testing against manual
extraction and other software programs. In response to defendant’s specific concern about the
forensic expert’s lack of knowledge at the “programmatic level,” the court explained that such
programming information is rarely understood by its users because it is “typically highly
proprietary information known only to the manufacturer of the product.”
¶ 29. As the above-cited cases demonstrate, this is precisely the type of inquiry that
establishes the reliability of such technical evidence. A computer program for extracting cell
phone data is hardly novel. While this particular program has not been the subject of many court
15
decisions, its reliability clearly has been established through the forensic expert’s foundational
testimony, and his qualifications to present such testimony, and through evaluation of similar
technical evidence by this Court and others. And as discussed above, the State was not obligated
to present evidence on each Daubert factor. The forensic expert’s testimony is not about basic
scientific principles, and he is not drawing inferences from the facts. He merely is explaining
how he extracted the data from the cell phone and how he read that data—specialized knowledge
that he acquired through his training and experience. Many of the Daubert factors—and the
heightened scrutiny given to scientific evidence—are impractical here and would do little to
draw out the reliability of Cellebrite. See Broun, supra, § 13 (explaining that when testimony
summarizes or describes experience in field, rather than drawing inferences from facts based on
scientific theories or techniques, foundation that demonstrates expert’s experience in field may
be sufficient).
¶ 30. Furthermore, any deficiencies in the program should be drawn out through the
adversarial process, including “vigorous cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof.” Daewoo, 2008 VT 14, ¶ 16 (quoting Daubert,
509 U.S. at 596). “So long as scientific or technical evidence has a sound factual and
methodological basis and is relevant to the issues at hand, it is within the purview of the trier of
fact to assess its credibility and determine the weight to be assigned to it.” Id. As the trial court
here noted, the fact that the Cellebrite software did not extract all the data from defendant’s cell
phone does not affect the admissibility of the testimony but instead goes to the weight of that
testimony. Counsel for defendant had access to the cell phone and had the opportunity to have it
scanned by his own computer experts. The trial court here properly exercised its discretion as
gatekeeper; the software used by the forensic expert hardly can be characterized as “junk
science.” It is left to the fact finder to weigh its credibility.
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¶ 31. Finally, we note that, although the State argued this issue based on Rule 702, and
the trial court conducted its analysis on that basis, defendant’s claim that the forensic expert’s
testimony is unreliable because he lacked a general understanding of the programming behind
the software also can be framed as a Vermont Rule of Evidence 703 issue not requiring Daubert
analysis at this point in the case. Rule 703 permits experts to base their opinions on facts or data
“of a type reasonably relied upon by experts in the particular field in forming opinions or
inferences upon the subject,” V.R.E. 703, and “the facts or data need not be admissible in
evidence in order for the opinion or inference to be admitted.” Id. The Reporter’s Notes to Rule
703 explain that the rule is identical to the federal rule and is intended, in part, to allow
admission of data presented to the expert “outside the trial and not reflecting his personal
experience.” Reporter’s Notes, V.R.E. 703. The Reporter’s Notes to the concomitant federal
rule further explain that “the rule is designed to broaden the basis for expert opinions . . . and to
bring the judicial practice into line with the practice of the experts themselves when not in
court.” Advisory Committee Notes, F.R.E. 703.
¶ 32. For example, in In re Jam Golf, LLC, 2008 VT 110, 185 Vt. 201, 969 A.2d 47, we
permitted a wildlife expert to rely upon topographic features and wildlife movement that he had
not observed firsthand because they are “the type of facts and data with which wildlife experts
are familiar.” Id. ¶ 10. Courts have applied similar reasoning when considering the admissibility
of expert testimony on the use of computer software. See, e.g., McReynolds v. Sodexho Marriott
Servs., Inc., 349 F. Supp. 2d 30, 36-37 (D.D.C. 2004) (admitting expert testimony under Federal
Rule of Evidence 703 where expert was not personally familiar with computer programming but
relied upon assistant’s knowledge of programming). We note the possible application of Rule
703 only to explain that there may be an alternative route to the same holding, but we ultimately
ground our decision on Rule 702.
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¶ 33. Defendant makes one final argument as to the admissibility of the expert
testimony. He contends that the State failed to establish a sufficient chain of custody for
defendant’s cell phone, specifically that the forensic expert could not account for its whereabouts
at all times before it reached his office and acknowledged that the phone was stored improperly
for some period of time. We note that this is not a Rule 702 issue, State v. Tester, 2009 VT 3,
¶ 18, 185 Vt. 241, 968 A.2d 895, but merely one of admissibility and authentication of evidence
generally, State v. Muscari, 174 Vt. 101, 107, 807 A.2d 407, 413 (2002). “[T]he test for
authenticating evidence is not a demanding one, and . . . some questions regarding a piece of
evidence’s origin or chain of custody are permissible.” Id. We do not require absolute certainty
in laying a foundation for admissibility but require that “the evidence be of demonstrable
relevance and of sufficient meaningful substance to be justifiably relied upon” and not “an
insubstantial invitation to conjecture.” Id. (quotation omitted). Furthermore, a chain of custody
need not be established perfectly; imperfections go to the weight, not the admissibility. State v.
Mercier, 138 Vt. 149, 153, 412 A.2d 291, 294 (1980). Rather, the circumstances need to
establish only a “reasonable assurance” that the evidence is authentic and has not been tampered
with. State v. Stevens, 137 Vt. 473, 477, 408 A.2d 622, 625 (1979).
¶ 34. The forensic expert testified that the cell phone was sent from defendant’s home
to the barracks in New Haven and then to his office where it was stored in the evidence room.
He acknowledged that he did not know exactly what happened to the phone between leaving
defendant’s possession and arriving at his office and also acknowledged that it had been stored
improperly (turned on) at some point before reaching his office. He also testified, however, that
the fact that the phone was left on had no effect on the data he subsequently extracted from the
phone. There is no evidence of a break in the chain of custody, and other than the phone being
left on, there is no other evidence to suggest tampering.
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¶ 35. We therefore conclude that the trial court did not abuse its discretion in admitting
the forensic expert’s testimony regarding the extraction of data from defendant’s cell phone.
¶ 36. Lastly, we turn to defendant’s claim that the jury verdict was coerced. Defendant
argues that the trial court improperly coerced a jury verdict when it informed the jury that they
would have two hours that day to deliberate and then added: “but if you don’t have a verdict by
5:30 that’s fine, but we will then suspend and have you back on Monday.” The court also
advised the jury “to take all the time you need.” Defendant’s complaint is that the court should
have given the jury a choice to start deliberations that day or wait until Monday. Defendant
bears the burden of presenting facts sufficient to support his claim that the verdict was coerced.
State v. Hudson, 163 Vt. 316, 324, 658 A.2d 531, 536 (1995).
¶ 37. In support of his argument, defendant cites a litany of cases that stand for the
proposition that a court cannot place time limits on a jury’s deliberations or in any way indicate
that speed is more important than thoughtfulness. None of those cases support a finding of
coercion here. In Hudson, we rejected the defendant’s claim that the court improperly coerced a
jury verdict by informing the jurors that they would be sent to a hotel if they did not reach a
verdict by 10:00 p.m. Id. at 323, 658 A.2d at 535. We explained that the court already had
advised the jurors to be prepared to stay overnight and “made it clear that it did not intend to
suggest that it was imposing a time limit for reaching a verdict.” Id. at 324, 658 A.2d at 536; see
State v. James, 499 So. 2d 721, 727 (La. Ct. App. 1986) (finding no error where jurors were
informed they would spend night in hotel if verdict was not reached because “the jury members
were entitled to know . . . what would happen if they could not reach a verdict that night”).
¶ 38. Here, we see no coercion in the trial court’s statement to the jury. The court never
told the jury that it must reach a decision that night. The court merely was explaining the fact
that it was the end of the week and that deliberations would resume on Monday if necessary—
this is something the jury members were entitled to know. Further, the court stressed that it was
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“fine” if the jurors did not reach a decision by the end of the day and told them to “take all the
time you need.” We also fail to see how explicitly giving the jury a choice of starting
deliberations on Friday or waiting until Monday would make any practical difference in how the
jury approaches deliberations. We therefore find no error in the trial court’s statement to the
jury.
Affirmed.
FOR THE COURT:
Associate Justice
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