002 Tangan v.
CA (Vargas) from a maximum of prision correccional to a maximum of reclusion
15 January 2002 | Ynares-Santiago, J. | Topic Tags
PETITIONER: Eladio C. Tangan
RESPONDENTS: The Court of Appeals and the People of the Philippines
SUMMARY: The Supreme Court rendered a Decision increasing the
indeterminate penalty imposed on accused Tangan. Tangan filed a MR invoking
the rule that factual findings of the trial court and the CA are binding on the SC.
However, the SC said that when Tangan appealed the decision, he threw open the
whole case for review. It became the duty of the Court to correct any error as may
be found in the appealed judgment. The issue in this case is Whether or not
petitioner Tangan’s version of the incident [he claims accidental shooting] is
supported by evidence – NO. The medical examiner testified that the distance
between the muzzle of the gun and the target was about 2 inches but definitely not
more than 3 inches. Based on the point of exit and trajectory transit of the wound,
the victim and the alleged assailant were facing each other when the shot was made
and the position of the gun was almost perpendicular when fired. These findings
disprove Tangans claim of accidental shooting. A revolver is not prone to accidental
firing because of the nature of its mechanism, unless it were uncocked, then
considerable pressure had to be applied on the trigger to fire the revolver. The
physical evidence is amply corroborated by the eyewitness accounts to the effect
that petitioner Tangan took a gun from his car and suddenly fired it at the deceased.
On the whole, therefore, this Court correctly imposed on petitioner the proper
penalty for Homicide, without the attendance of any mitigating or aggravating
circumstance.
DOCTRINE: Physical evidence is a mute but eloquent manifestation of truth, and
it ranks high in the hierarchy of our trustworthy evidence. For this reason, it is
regarded as evidence of the highest order. It speaks more eloquently than a hundred
witnesses.
FACTS:
1. The Supreme Court rendered a Decision sentencing petitioner Tangan to
suffer an indeterminate penalty of 6 yrs and 1 day of prision mayor, as
minimum, to 14 yrs, 8 months, and 1 day of reclusion temporal, maximum,
with all the accessory penalties. Moreover, petitioner Tangan was ordered to
pay the victims heirs for civil indemnity, funeral, and burial expenses,
attorneys fees, and moral damages.
2. Petitioner Tangan filed a MR invoking the rule that the factual findings of the
trial court and the CA are binding on the SC. Thus, he argues that this Court
erred in disregarding the mitigating circumstances which were appreciated
by the lower courts and in raising the indeterminate penalty imposed on him
temporal.
3. At no time during the trial of the case did petitioner Tangan raise self-
defense. Nevertheless, the trial court and the CA found the attendance of the
mitigating circumstances of incomplete self-defense, sufficient provocation,
and passion and obfuscation.
4. When petitioner Tangan appealed the decision, he threw open the whole case
for review. It became the duty of this Court to correct any error as may be
found in the appealed judgment, whether it was made the subject of
assignment of errors or not.
5. Thus, this Court reviewed the records of the case and found that the evidence
fails to support or substantiate the lower courts findings and
conclusions. Clearly, therefore, this case falls within the recognized
exceptions to the rule that an appellate court will generally not disturb the
assessment of the trial court on factual matters considering that the latter, as
a trier of fact, is in a better position to appreciate the same.
ISSUE/s:
1. Whether or not petitioner Tangan’s version of the incident [he claims
accidental shooting] is supported by evidence – NO. The medical examiner
testified that the distance between the muzzle of the gun and the target was
about 2 inches but definitely not more than 3 inches. Based on the point of
exit and trajectory transit of the wound, the victim and the alleged assailant
were facing each other when the shot was made and the position of the gun
was almost perpendicular when fired. These findings disprove Tangans claim
of accidental shooting.
2.
RULING: WHEREFORE, in view of the foregoing, the Motion for Reconsideration
is DENIED for lack of merit. The Omnibus Motion to Re-Raffle/Transfer and/or to
Recuse is likewise DENIED. This denial is FINAL.
RATIO:
The physical evidence belies petitioner Tangan’s version of the incident.
1. The medical examiner testified that the distance between the muzzle of the
gun and the target was about 2 inches but definitely not more than 3 inches.
2. Based on the point of exit and trajectory transit of the wound, the victim and
the alleged assailant were facing each other when the shot was made and the
position of the gun was almost perpendicular when fired. These findings
disprove Tangans claim of accidental shooting. A revolver is not prone to
accidental firing because of the nature of its mechanism, unless it were
uncocked, then considerable pressure had to be applied on the trigger to fire
the revolver.
3. Physical evidence is a mute but eloquent manifestation of truth, and it ranks
high in the hierarchy of our trustworthy evidence. For this reason, it is
 regarded as evidence of the highest order. It speaks more eloquently than a 12. On the whole, therefore, this Court correctly imposed on petitioner the proper
hundred witnesses. penalty for Homicide, without the attendance of any mitigating or
4. The physical evidence is amply corroborated by the eyewitness accounts to aggravating circumstance.
the effect that petitioner Tangan took a gun from his car and suddenly fired it 13. Petitioner Tangan faults the Court for increasing the penalty five times such
at the deceased. that, despite having served the penalty imposed by the trial court, he now
5. Likewise, this Court found that the mitigating circumstances appreciated by faces the intolerable specter of reincarceration. It should be recalled that
the trial court are not present. The testimony of petitioner Tangan’s witness, petitioner Tangan, by consciously and deliberately firing his gun, snuffed the
on which he heavily relies, suffers from material inconsistencies which life out of a 29-year old optometrist. Suffice it to state that petitioner should
render it unworthy of belief. bear the consequences of his felonious act.
6. It was shown that defense witness was 10 meters away when he saw the
incident, and his line of vision was blocked by petitioner Tangan’s car. From
that distance and vantage point, he could not have heard anything or have had
an unobstructed view of the events. Sure enough, the details of his statement
betray the falsity thereof. He testified that petitioner Tangan was hit on the
eyebrow, while petitioner Tangan said he was hit on the jaw. Defense witness
was also unable to identify the person whom he supposedly saw punch
petitioner.
7. All of these, and the incredibility of petitioner Tangan’s account when
compared with the physical evidence, belie self-defense. It can be plainly
gleaned that there was no unlawful aggression on the part of the deceased.
8. What merely transpired before petitioner Tangan’s gun went off was a heated
exchange of words between the protagonists. This does not qualify as
unlawful aggression. Unlawful aggression presupposes an actual, sudden,
and unexpected attack, or imminent danger thereof.The person defending
himself must have been attacked with actual physical force or with actual use
of weapon.
9. Unlawful aggression is a condition sine qua non for the justifying
circumstance of self-defense. There can be no self-defense, complete or
incomplete, unless the victim has committed an unlawful aggression against
the person defending himself.
10. By the same token, the evidence does not show the attendance of the
mitigating circumstance of sufficient provocation on the part of the offended
party. As stated, the provocation must be sufficient to excite a person to
commit a wrong and must accordingly be proportionate to its gravity. In this
case, all that the deceased did immediately before he was shot was shout
expletives and slap petitioners hand when the latter pointed it to his
face. These acts, while offensive, were grossly disproportionate to petitioners
act of drawing and firing of a gun.
11. Furthermore, there was no sudden and unexpected occurrence that could have
naturally produced a powerful excitement in petitioners mind causing him to
lose his reason and self-control. As shown by the facts, no passion and
obfuscation could have clouded his mind.
 003 PEOPLE v. AMESTUZO (YARTE)
12 July 2001 | Kapunan, J. | Object as Evidence
PETITIONER: People of the Philippines
RESPONDENTS: Valeriano Amestuzo, Federico Ampatin, Albino
Bagas, Diascoro Vias
SUMMARY: Perlita Lacsamana (Perlita) was in her room at her house in
Sacred Heart Village when she heard her maid cry, “aray, aray”. She went
our of her room and 2 armed men pocked a gun at her. At first, Perlita and
her employees were at the second floor where the robbers tied them using
torn electric fan and television wire. Eventually, Perlita was forced to
accompany one of the robbers to her room, where her money, jewelry, and
other valuables were taken. It was also said that two members gang raped
Maria (niece) and Estrella (employee), during the robbery incident. Albino
Bagas (Bagas), the only accused who appealed his conviction for the
complex crime of robbery in band with double rape, presented alibi as his
defense. According to Bagas, He was working at at handicrafts store when
[4 days after the robber] policemen and Ampatin (a co-accused) went to the
factory searching for “Mario”. The police got mad with Ampatin because
there was no Mario in the factory. This prompted the police to shout,
“…Magturo ka ng tao kahit sino,”, Ampatin pointed at Bagas. He was taken
to the police and presented to the complainants for identification. The issues
in the SC are the ff:
First, WoN there was deprivation of his constitutional right to be
represented by counsel during his identification. NO — Police line-up is not
part of custodial investigation hence, the right to counsel guaranteed by the
Constitution cannot yet be invoked at this stage.
Second, WoN the court committed error in giving due weight to the open
court identification of him. YES — There is no law requiring police line-up
as essential to proper identification. The fact that he was brought out of the
detention cell and was made to stand before the accused by himself does not
detract from the validity of the identification process. IHowever, the SC
agrees that the out-of-court identification of Bagas was flawed and is not
admissible because it appears to have been improperly suggestive. Before
he was presented to Perlita, the police already made an announcement that
he was one of the suspects. I
Third (relevant to Evidence), WoN the court committed error in rejecting
his defense of alibi. YES — Generally, alibi is inherently weak as a
defense. However, where an accused sets up alibi as a defense, the
courts should not be too readily disposed to dismiss the same, for, taken
in the light of all the evidence on record, it may be sufficient to reverse
the outcome of the case as found by the trial court and thereby rightly set
the accused free. The defense of alibi or denial assumes significance or
strength when it is amply corroborated by a credible witness. In this case,
the alibi of Bagas is sufficiently corroborated by the testimonies of
impartial credible witnesses, two of his co-employees, who categorically
stated that they were with accused-appellant on the night of the crime, and
his employer.
DOCTRINE: The Court has held that where an accused sets up alibi as a
defense, the courts should not be too readily disposed to dismiss the same,
for, taken in the light of all the evidence on record, it may be sufficient to
reverse the outcome of the case as found by the trial court and thereby
rightly set the accused free.
FACTS:
6. At about 9:30 p.m., a group of armed men wearing masks entered the
house of Perlita Lacsamana (Perlita) at Sacred Heart Village,
Kalookan City.
7. Perlita’s house was robbled and in the course of the robbery, two
members gang raped Maria (niece) and Estrella (employee).
8. These are additional facts as presented in the Solicitor Generals Brief:
The compound had a main house, where Perlita stayed, and another
house which serves as Perlita’s office and quarters for the employees.
While in the master’s bedroom Perlita heard her maid cry “aray, aray”.
She went out but 2 armed men poked guns at her. Perlita and other
occupants of the house were forcibly brought to the second floor of
the main house. Thereafter, Amestuzo and his companions ransacked
the house. Perlita and her employees were even tied using torn electric
fan and television wire. Perlita was forced to accompany one of the
robbers to her room. She noticed that 6 men were inside the house,
while 2 others were outside. The robbers took her money and jewelry
from her room.
Estrella was raped by Amestuzo. Maria was raped by Bagas.
Thereafter, Perlita shouted for help. Sensing that the accused had
already left, they locked the door. Estrella and Maria were taken to
Neopolitan Clinic and from there they proceeded to the St. Lukes
 Hospital where Dr. Brion treated Catanyag and Rolago
9. Albino Bagas, Valeriano Amestuzo, Federico Ampatin, Dioscoro Vias
and four other accused, were charged with the complex crime of
robbery in band with double rape. (please note that only Albino Bagas
filed this appeal with the SC)
10. The defense of Albino Bagas (Bagas):
a. Four days after the alleged incident, a group of policemen
together with accused Federico Ampatin, who was then a
suspect, went to the handicrafts factory in NIA Road where
Bagas was working as a stay-in shell cutter.
b. They were looking for a certain Mario, but failing to find
said Mario, the police hit Ampatin at the back of his neck
with a gun and uttered, “Niloloko lang yata tayo ng taong
ito and Magturo ka ng tao kahit sino”. It was at this juncture
that Ampatin pointed to Bagas.
c. Thereafter, he was arrested and made to board the police
vehicle. They were brought to the Urduja Police Station in
Kalookan City and placed under detention together with the
other two accused, Amestuzo and Vias.
d. The policemen told the complainants that accused-appellant
was one of the suspects. This incited complainants to an
emotional frenzy, kicking and hitting him. They only
stopped when one of the policemen intervened.
11. The RTC convicted Amestuzo and company the complex crime of
robbery in band with double rape and sentences each of them to suffer
imprisonment of double reclusion perpetua.
12. Only Albino Bagas filed this appeal with the SC.
ISSUE/s:
14. WoN there was deprivation of his constitutional right to be represented
by counsel during his identification. NO — Police line-up is not part
of custodial investigation hence, the right to counsel guaranteed
by the Constitution cannot yet be invoked at this stage.
3. WoN the court committed error in giving due weight to the open court
identification of him which was based on a suggestive and irregular
out-of-court identification. YES — The out-of-court identification
of Bagas was flawed and is not admissible because it appears to
have been improperly suggestive.
4. WoN the court committed error in rejecting his defense of alibi. YES
— The defense of alibi or denial assumes significance or strength
when it is amply corroborated by a credible witness.
RULING: the decision of the trial court convicting accused-appellant Albino
Bagas of the crime of robbery with multiple rape is hereby REVERSED and
he is ACQUITTED of the crime charged. His immediate release is hereby
ordered unless he is held for some other valid charges.
RATIO:
The Right of Accused to Counsel
15. Bagas alleges that he was deprived deprived him of his constitutional
right to be represented by a lawyer during his investigation. He had no
counsel when he was presented to Perlita for identification. Since the
identification was a critical stage of prosecution, he was entitled to
counsel.
16. His contention has no merit. Sec. 12 (1), Art. III of the 1987
Constitution may be invoked only by a person while he is under
custodial investigation. Custodial investigation starts when the police
investigation has begun to focus on a particular suspect starts the
interrogation and propounds questions to the person to elicit
incriminating statements.
17. Police line-up is not part of custodial investigation hence, the right to
counsel guaranteed by the Constitution cannot yet be invoked at this
stage.
18. Therefore, Bagas could not yet invoke his right to counsel when he
was presented for identification by the complainants because the same
was not yet part of the investigation process.
Out-of-Court Identification
19. Bagas alleged that the identification was irregular as he was not placed
in a police line-up, but made to stand before the complainants alone.
20. The contention has no merit. There is no law requiring police line-up
as essential to proper identification. The fact that he was brought out
of the detention cell and was made to stand before the accused by
himself does not detract from the validity of the identification process.
21. However, the court agrees that the out-of-court identification of
Bagas was flawed and is not admissible because it appears to have
been improperly suggestive (suggested by the police):
a. Even before complainants had the opportunity to
view Bagas, the police made an announcement that
 he was one of the suspects in the crime and that he was with his stay-in co-workers, went to sleep. Four days later, he was
the one pointed to by accused Ampatin as one of arrested.
culprits. 28. Another significant evidence which the trial court failed to consider is
22. The fact that this information came to the knowledge of Perlita the voluntary confession of accused Federico Ampatin absolving
prior to their identification based on their own recall of the accused-appellant Bagas of the crime.
incident detracts from the spontaneity of their subsequent
identification and therefore, its objectivity.
23. According to People v Teehankee, the totality of circumstances test
should be applied. The following are the factors to be considered:
a. the witness opportunity to view the criminal at the time of the
crime;
b. the witness degree of attention at that time;
c. the accuracy of any prior description given by the witness;
d. the level of certainty demonstrated by the witness at the
identification;
e. the length of time between the crime and the identification;
and,
f. the suggestiveness of the identification process.

Alibi as a Defense
24. Generally, alibi is inherently weak as a defense. However, the Court
has held that where an accused sets up alibi as a defense, the courts
should not be too readily disposed to dismiss the same, for, taken
in the light of all the evidence on record, it may be sufficient to
reverse the outcome of the case as found by the trial court and
thereby rightly set the accused free.
25. The defense of alibi or denial assumes significance or strength
when it is amply corroborated by a credible witness. And to be
given weight, accused must prove not only that he was somewhere
else when the crime was committed but that he was so far away that
it was physically impossible for him to be present at the crime scene
or its immediate vicinity at the time of its commission.
26. In this case, the alibi of Bagas is sufficiently corroborated by the
testimonies of impartial credible witnesses, two of his co-
employees, who categorically stated that they were with accused-
appellant on the night of the crime, and his employer.
27. Bagas clearly and positively testified that at the time of the crime, he
was working as a shell cutter in a factory where he was a stay-in
employee. He rendered overtime work until ten oclock in the evening
that night because they had to rush work. After ten p.m., he, together
 004 MARTURILLAS v. PEOPLE (ADRIAS)
18 April 2006 | Panganiban,CJ | Rule 130, Sec. 1; Parrafin Test & Res Gestae
PETITIONER: Celestino Marturillas (NOTE: this is the correct name!!)
RESPONDENT: People of the Philippines
SUMMARY: In this case, Celestino Marturillas, the captain of the
barangay where Artemio Pantinople lived in, shot the latter. There were
several witnesses, who were called to take the stand. The testimonies of the
witnesses were offered in evidence, as well as affidavits executed by them.
The dying declaration of Artemio was also offered in evidence where he
said “Pre, Binaril ako ni Kapitan” (talking to Lito Santos), and the statement
of his wife, Ernita, saying “Kapitan, bakit mo binaril ang asawa ko?”. There
was also a paraffin test done on Kapitan Marturillas, which show a negative
result, which COULD mean he did not fire a gun. Marturillas claims that he
was asleep in his home, which was 250 meters away from Artemio’s store.
He has just risen from bed when two Barangay Kagawads wanted to see him
because of the shooting incident. Moreover, he relies on the fact that the
failed to present the gun used in the shooting and on the negative paraffin
test result. The issues in this case are:
WoN the paraffin test is sufficient to establish that Marturillas did not fire a
gun, thus killing Artemio? – NO. *See Doctrine 1* Besides, the prosecution
was able to establish the events during the shooting, including the presence
of Marturillas at the scene of the crime.I Hence, all other matters, such as the
negative paraffin test result, are of lesser probative value. I
WoN the words uttered by Artemio can be considered as part of the dying
declaration of the victim and is admissible as res gestae. – YES. The law
does not require the declarant to state explicitly a perception of the
inevitability of death. The fact that the victim’s statement constituted a
dying declaration does not preclude it from being admitted as part of the res
gestae, if the elements of both are present.
WON the statements by Artemio and Ernita is res gestae and admissible –
YES. Ernita’s statement was about the same startling occurrence; it was
uttered spontaneously, right after the shooting, while she had no opportunity
to concoct a story against Marturillas; and it related to the circumstances of
the shooting.
WON the evidence produced are circumstantial and weaker than the direct
evidence produced by Marturillas? Evidence is circumstancial but it is not
necessarily weaker vis-à-vis direct evidence.
DOCTRINE:
(1) A negative paraffin test result is not a conclusive proof that a person has
not fired a gun. It is possible to fire a gun and yet be negative for nitrates.
(2) Res Gestae
- Definition: Statements made by the participants or the victims of, or the
spectators to, a crime immediately before, during, or after its
commission. These spontaneous reaction or utterance inspired by the
excitement of the occasion, without any opportunity for the declarant to
fabricate a false statement.
- Test: Whether there intervened, between the occurrence and the statement,
any circumstance calculated to divert the mind and thus restore the mental
balance of the declarant; and afford an opportunity for deliberation.
- A declaration is deemed part of the res gestae and admissible in
evidence as an exception to the hearsay rule, when the following
requisites concur:
1. The principal act, the res gestae, is a startling occurrence;
2. The statements were made before the declarant had time to
contrive or devise; and
3. The statements concerned the occurrence in question and its
immediately attending circumstances.
FACTS:
1. In this case, Celestino Marturillas, the captain of the barangay where
Artemio Pantinople lived in, shot the latter.
2. There were several witnesses, who were called to take the stand. The
testimonies of the witnesses were offered in evidence, as well as
affidavits executed by them.
3. The dying declaration of Artemio was also offered in evidence where
he said “Pre, Binaril ako ni Kapitan” (talking to Lito Santos), and the
statement of his wife, Ernita, saying “Kapitan, bakit mo binaril ang
asawa ko?”.
4. There was also a paraffin test done on Kapitan Marturillas, which
show a negative result, which COULD mean he did not fire a gun.
5. LITO SANTOS TESTIFIES:
 a. On 04 November 1998, after Lito Santos had served his wife
Cecilia and Artemio Pantinople with lunch, Artemio returned
to his store which was five (5) meters away from Santos’
house. He was then eating supper in their kitchen when he
heard a gunshot. From a distance of about ten (10) meters, he
also noticed smoke and fire coming from the muzzle of a big
gun. He saw Artemio clutching his chest and staggering
backwards to direction of Lito’s Kitchen who said: ‘Tabangi
ko Pre, gipusil ko ni kapitan,’ meaning ‘Help me, Pre, I
was shot by the captain.’
6. ERNITA PANTIOPLE (WIFE):
a. Came running from her house to her husband’s side upon
seeing him sprawled on the ground and bloodied. She had left
her infant lying on the kitchen floor in surprise. Ernita shouted
several times, “Kapitan, ngano nimo gipatay ang akong bana.”
(Captain, why did you shoot my husband?)
b. She saw Marturillas carrying with him a long firearm which
looked like an M-14 rifle. Ernita had a clear view of him at
that time because their place was well-illumined by the full
moon that night and by the two (2) fluorescent lamps in their
store which were switched on at the time of the incident.
7. Barangay Captain Celestino Marturillas was invited by a couple of
police officers to the police station upon informing that he was the
principal suspect in the slaying of Artemio Pantinople. He also took
with him his government-issued M-14 Rifle and one magazine of live
M-14 ammunition, and turned over the same to the Bunawan PNP.
8. MARTURILLAS DEFENSE:
a. He claimed that he was asleep in his home, which was 250
meters away from Artemio’s store. He has just risen from bed
when two Barangay Kagawads wanted to see him because of
the shooting incident. He even tried to approach Artemio’s
family, but he could not do so because they had turned
belligerent at his presence.
9. During the trial of the case:
a. Ernita positively identified Marturillas as her husband’s
assailant.
b. This positive identification is corroborated by Santos’
testimony and
c. Expert witness Dr. Danilo Ledesma, a medico-legal officer
for Davao City, that the gunshot wound in Artemio’s body had
been caused by a bullet that is of the same size as that fired
from an M-14 Rifle. However, the same expert witness
testified that Marturillas’ hands do not contain gunpowder
nitrates.
10. Marturillas was charged with homicide. Armed with a gun, shot one
Artemio Pantinople.
ISSUE/s:
1. WoN the paraffin test is sufficient to establish that Marturillas did not
fire a gun, thus killing Artemio? – NO. A negative paraffin test result
is not a conclusive proof that a person has not fired a gun. It is possible
to fire a gun and yet be negative for nitrates
2. WoN the words uttered by Artemio can be considered as part of the
dying declaration of the victim and is admissible as res gestae. – YES.
The law does not require the declarant to state explicitly a perception
of the inevitability of death. The fact that the victim’s statement
constituted a dying declaration does not preclude it from being
admitted as part of the res gestae, if the elements of both are present.
3. WON the statements by Artemio and Ernita is res gestae and
admissible – YES. Ernita’s statement was about the same startling
occurrence; it was uttered spontaneously, right after the shooting,
while she had no opportunity to concoct a story against Marturillas;
and it related to the circumstances of the shooting.
4. WON the evidence produced are circumstantial and weaker than the
direct evidence produced by Marturillas? Evidence is circumstancial
but it is not necessarily weaker vis-à-vis direct evidence.
RULING: WHEREFORE, the Petition is DENIED and the assailed
Decision and Resolution are AFFIRMED, subject to the modification
in the award of damages set forth here. Costs against petitioner.
RATIO:
Paraffin Test
1. While the test was negative, that fact alone did not ipso facto prove
that he was innocent. Time and time again, this Court has held that a
negative paraffin test result is not a conclusive proof that a person has
not fired a gun.
2. In other words, it is possible to fire a gun and yet be negative for
nitrates, as when culprits wear gloves, wash their hands afterwards, or
are bathed in perspiration. Besides, the prosecution was able to
establish the events during the shooting, including the presence of
 Marturillas at the scene of the crime.
3. Hence, all other matters, such as the negative paraffin test result, are
of lesser probative value.
Dying Declaration
1. Requisites:
a. Refer to the cause and circumstances surrounding the
declarant’s death;
b. Be made under the consciousness of an impending death;
c. Be made freely and voluntarily without coercion or
suggestions of improper influence;
d. Be offered in a criminal case, in which the death of the
declarant is the subject of inquiry; and
e. Have been made by a declarant competent to testify as a
witness, had that person been called upon to testify.
2. The law does not require the declarant to state explicitly a
perception of the inevitability of death. The perception may be
established from surrounding circumstances, such as the nature of the
declarant’s injury and conduct that would justify a conclusion that
there was a consciousness of impending death.
3. Even if the declarant did not make an explicit statement of that
realization, the degree and seriousness of the words and the fact that
death occurred shortly afterwards may be considered as sufficient
evidence that the declaration was made by the victim with full
consciousness of being in a dying condition.
4. The fact that Artemio’s statement constituted a dying declaration does
not preclude it from being admitted as part of the res gestae, if the
elements of both are present.
Res Gestae
1. Definition: Statements made by the participants or the victims of, or
the spectators to, a crime immediately before, during, or after its
commission. These spontaneous reaction or utterance inspired by the
excitement of the occasion, without any opportunity for the declarant
to fabricate a false statement.
2. Test: Whether there intervened, between the occurrence and the
statement, any circumstance calculated to divert the mind and thus
restore the mental balance of the declarant; and afford an opportunity
for deliberation.
3. A declaration is deemed part of the res gestae and admissible in
evidence as an exception to the hearsay rule, when the following
requisites concur:
a. The principal act, the res gestae, is a startling occurrence;
b. The statements were made before the declarant had time to
contrive or devise; and
c. The statements concerned the occurrence in question and its
immediately attending circumstances.
5. The statement of Artemio certainly concerned the cause and
circumstances surrounding his death. He pointed to the person who
had shot him.
6. Artemio was the only person referred to as kapitan in their place.
It was also established that the declarant, at the time he had given the
dying declaration, was under a consciousness of his impending death.
The statement was made freely and voluntarily, without coercion or
suggestion
7. All these requisites are present in this case.
a. The principal act, the shooting, was a startling occurrence.
b. Immediately after, while he was still under the exciting
influence of the startling occurrence, the victim made the
declaration without any prior opportunity to contrive a story
8. Thus, Artemio’s statement is part of the res gestae.
9. Ernita’s testimony may be considered to be res gestae. Her statement
was about the same startling occurrence; it was uttered spontaneously,
right after the shooting, while she had no opportunity to concoct a
story against Marturillas; and it related to the circumstances of the
shooting.
Circumstancial Evidence
1. That some pieces of the above-mentioned evidence are circumstantial
does not diminish the fact that they are of a nature that would lead the
mind intuitively, or by a conscious process of reasoning, toward the
conviction of Marturillas.
2. Circumstantial, vis-à-vis direct evidence is not necessarily weaker.
3. Moreover, the circumstantial evidence described above satisfies the
requirements of the Rules of Court, which we quote: “SEC. 4.
Circumstantial evidence, when sufficient.—Circumstantial evidence
is sufficient for conviction if:
a. There is more than one circumstance;
 b. The facts from which the inferences are derived are proven;
and
c. The combination of all the circumstances is such as to produce
a conviction beyond reasonable doubt”
4. Hence, Corpus Delicti Sufficiently Proven - The prosecution was
able to give sufficient proof of the corpus delicti -- the fact that a crime
had actually been committed.
5. Marturillas depends heavily on its failure to present the gun used in
the shooting and on the negative paraffin test result. Unfortunately for
him, we have previously held that ‘the choice of what evidence to
present, who should testify as a witness is within the discretionary
power of the prosecutor and definitely not of the courts to dictate.’
 005 REYES v. CA (APASAN)
April, 18, 2012 | Bersamin, J. | Chain of Custody
PETITIONER: Rogelio Reyes
RESPONDENTS: Court of Appeals
SUMMARY: A lady confidential informant provided a tip to the Police Station
8 of the Wstern Police District regarding the drug-dealing activities of a certain
alias Boy (Rogelio Reyes). From this information, the police conducted a buy-
bust operation which led to the arrest of Rogelio Reyes. Thereafter, two
informations were filed against Reyes under Sections 5 and 11 of RA 9165 for
illegal sale and possession of shabu. Reyes pleaded not guilty. Trial ensued and
the RTC found him guilty. The lower court hinged its decision on the fact the
testimonies of the prosecution should be given more credence than the alibi
propounded by Reyes. It also ruled that the buy-bust team did not show any sign
of ill-motive against the accused and thus strengthening their testimonies. These
findings of the RTC were affirmed by the CA. Hence this petition. Issue is WoN
the CA erred in affirming the conviction of Reyes. Yes. For offenses under RA
9165, , it is crucial that the Prosecution establishes the identity of the seized
dangerous drugs in a way that the integrity thereof has been well preserved from
the time of seizure or confiscation from the accused until the time of presentation
as evidence in court. In the present case, the Prosecution failed to demonstrate a
faithful compliance by the arresting lawmen of the rule on chain of custody. To
start with, the fact that the dangerous drugs were inventoried and photographed
at the site of arrest upon seizure in the presence of Reyes, a representative of the
media, a representative of the Department of Justice (DOJ), and any elected
public official, was NOT shown. As such, the arresting lawmen did not at all
comply with the further requirement to have the attending representative of the
✓media, representative of thev DOJ, and v elected public official sign the inventory
and be furnished a copy each of the inventory. Instead, the records show that PO2
Payumo placed the markings of RRS-1 on the sachet allegedly received from
petitioner and RRS-2 on the two sachets allegedly seized from Reyes’ hand
already at the police station with only Reyes present. Yet, the Prosecution did not
also present any witness to establish that an inventory of the seized articles at least
signed by Reyes at that point was prepared.
DOCTRINE: The arresting lawmen must strictly at comply with the requirement
to have the attending representative of the media, representative of the DOJ, and
elected public official sign the inventory and be furnished a copy each of the
inventory. Otherwise, the Chain of Custody Rule would be violated and the guilt
of the accused cannot be established beyond reasonable doubt.
FACTS:
1. On February 23, 2005, the Office of the City Prosecutor of Manila filed two
informations charging Rogelio Reyes (Reyes) with illegal sale of shabu and
illegal possession of shabu defined and punished, respectively, by Sections 5
and 11 of R.A. No. 9165.
a. Reyes pleaded not guilty.
Version of Prosecution
2. In the morning of January 20, 2005, a lady confidential informant went to the
Police Station 8 of the Western Police District to report on the drug-dealing
activities of a certain alias Boy (later identified as Rogelio Reyes) on M.
Mapa Street, Sta. Mesa, Manila. A buy-bust team of ten members, including
PO2 Erwin Payumo as designated poseur-buyer, was formed.
3. From the police station, the lady confidential informant called Reyes by
phone. The latter instructed her to wait on M. Mapa Street. Thus, the buy-
bust team proceeded to that area and arrived at around 4:20 p.m. of January
20, 2005.
4. PO2 Payumo and the lady confidential informant arrived together to wait for
Reyes. The rest of the buy-bust team, who had gone to the area on board an
L300 van, took positions nearby. Reyes came by five minutes later, and, after
asking the lady confidential informant whether PO2 Payumo was the buyer,
instructed Payumo to follow him to his house where he told PO2 Payumo to
wait. Two other individuals, later identified as Conchita Carlos and Jeonilo
Flores, were also waiting for Reyes.
5. Upon getting back, Reyes asked PO2 Payumo for the payment, and the latter
complied and handed the marked money consisting of three P50.00 bills all
bearing the initials TF. Reyes then went into a room and returned with a
plastic sachet containing white crystalline substance that he gave to PO2
Payumo. Receiving the plastic sachet, PO2 Payumo placed a missed call to
PO1 Miguelito Gil, a member of the buy-bust team, thereby giving the pre-
arranged signal showing that the transaction was completed.
6. PO2 Payumo then arrested Reyes after identifying himself as an officer. PO2
Payumo recovered another sachet containing white crystalline substance
from Reyes’ right hand, and the marked money from the latter’s right front
pocket. The rest of the buy-bust team meanwhile came around and recovered
two sachets also containing white crystalline substance from the sofa where
Conchita and Jeonilo were sitting. The buy-bust team thus also arrested
Conchita and Jeonilo.
7. Back at the police station, PO2 Payumo placed on the plastic sachet that
Reyes had handed him the marking RRS-1 and on the other sachet
recovered from right hand the marking RRS-2. The seized items were
thereafter turned over to the Western Police District Crime Laboratory for
examination by P/Insp. Judycel Macapagal, who found the items positive for
 methampethamine hydrochloride or shabu.
Version of Defense
8. Reyes denied that there had been a buy-bust operation, and claimed that he
had been framed up.
Ruling of the RTC
9. Finds the accused guilty beyond reasonable doubt, to wit:
a. Unless there is clear and convincing evidence that the members of
the buy-bust team were inspired by any improper motive or were not
properly performing their duty, their testimonies with respect to the
operation deserve full faith and credit.
b. However like alibi, we view the defense of frame up with disfavor
as it can easily be concocted and is commonly used as a standard
line of defense in most prosecution arising from violations of the
Dangerous Drugs Acts.
c. The positive identification of appellants by the prosecution witness
should prevail over the formers denials of the commission of the
crime for which they are charged, since greater weight is generally
accorded to the positive testimony of the prosecution witness than
the accused’s denial. Denial, like alibi, is inherently a weak defense
and cannot prevail over the positive and credible testimony of the
prosecution witness that the accused committed the crime.
Ruling of the CA
10. Affirmed the RTC. The CA gave more weight to the testimony of poseur
buyer PO2 Payumo, and believed the findings of the laboratory examination
conducted by P/Insp. Macapagal. It recognized the validity of the buy-bust
operation.
11. Hence, this petition.
ISSUE:
1. WoN the CA erred affirming the guilt of Reyes beyond reasonable doubt –
Yes, since the series of events in the present case would show that the Chain
of Custody was not strictly followed, thereby warranting the acquittal of the
accused.
RULING: WHEREFORE, the Court REVERSES and SETS ASIDE the decision by
1 Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources
of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or
Laboratory Equipment. xxx:
the Court of Appeals; and ACQUITS accused ROGELIO S. REYES of the crimes
charged in Criminal Case No. 05-234564 and Criminal Case No. 05-234565.
RATIO:
1. In this jurisdiction, we convict the accused only when his guilt is established
beyond reasonable doubt. Conformably with this standard, we are mandated
as an appellate court to sift the records and search for every error, though
unassigned in the appeal, in order to ensure that the conviction is warranted,
and to correct every error that the lower court has committed in finding guilt
against the accused. Guided by the standard, we acquit petitioner.
2. The buy-bust operation mounted against Reyes resulted from the tip of an
unnamed lady confidential informant. Such an operation, according to People
v. Garcia, was susceptible to police abuse, the most notorious of which is
its use as a tool for extortion, and the possibility of that abuse was great.
The susceptibility to abuse of the operation led to the institution of several
procedural safeguards by R.A. No. 9165, mainly to guide the law enforcers.
Thus, the State must show a faithful compliance with such safeguards during
the prosecution of every drug-related offense.
3. The procedural safeguards start with the requirements prescribed by Section
21 of R.A. No. 91651 relating to the custody and disposition of the
confiscated, seized, and surrendered dangerous drugs, plant sources of the
dangerous drugs, controlled precursors and essential chemicals, instruments
and paraphernalia, and laboratory equipment.
4. This appeal involves two distinct drug-related offenses, namely: illegal sale
of dangerous drugs, and illegal possession of dangerous drugs. For both
offenses, it is crucial that the Prosecution establishes the identity of the
seized dangerous drugs in a way that the integrity thereof has been well
preserved from the time of seizure or confiscation from the accused until
the time of presentation as evidence in court. Nothing less than a faithful
compliance with this duty is demanded of all law enforcers arresting
drug pushers and drug possessors and confiscating and seizing the
dangerous drugs and substances from them.
5. This duty of seeing to the integrity of the dangerous drugs and substances is
discharged only when the arresting law enforcer ensures that the chain
of custody is unbroken. This has been the reason for defining chain of
custody under Section 1(b) of the Dangerous Drugs Board Regulation No. 1,
(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same in the presence of the accused or the person/s
from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative
from the media and the Department of Justice (DOJ), and any elected public official who shall be required to
sign the copies of the inventory and be given a copy thereof; xxx (Emphasis supplied)
 Series of 20022.
{
6. In the present case, the Prosecution failed to demonstrate a faithful
compliance by the arresting lawmen of the rule on chain of custody.
a. To start with, the fact that the dangerous drugs were
inventoried and photographed at the site of arrest upon seizure
in the presence of Reyes, a representative of the media, a
representative of the Department of Justice (DOJ), and any
elected public official, was NOT shown. As such, the arresting
lawmen did not at all comply with the further requirement to
have the attending representative of the - media, representative
-
of the DOJ, and elected public official sign the inventory and be
. intact was adduced. In fact, the State did not anymore establish to whom
furnished a copy each of the inventory. Instead, the records
show that PO2 Payumo placed the markings of RRS-1 on the
sachet allegedly received from petitioner and RRS-2 on the two
sachets allegedly seized from Reyes’ hand already at the police
station with only Reyes present. Yet, the Prosecution did not also
present any witness to establish that an inventory of the seized
articles at least signed by Reyes at that point was prepared.
7. People v. Sanchez: in compliance with Section 21 of R.A. No. 9165, supra,
the physical inventory and photographing of the seized articles should be
conducted, if practicable, at the✓ place of seizure or confiscation in cases
of warrantless seizure. BUT that was true only if there were indications
that petitioner tried to escape or resisted arrest, which might provide the
reason why the arresting team was not able to do the inventory or
photographing at petitioners house; OTHERWISE, the physical
inventory and photographing must always be immediately executed at
the place of seizure or confiscation.
8. People v. Pringas: the non-compliance by the buy-bust team with Section
21, supra, was held not to be fatal for as long as there was justifiable
ground for it, and for as long as the integrity and the evidentiary value
of the confiscated or seized articles were properly preserved by the
apprehending officer or team. The Court further pronounced therein that
such non-compliance would not render an accused’s arrest illegal or the items
seized or confiscated from him inadmissible, for what was of utmost
2 (b) Chain of custody means the duly recorded authorized movements and custody of seized drugs or
controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time
of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for
destruction. Such record of movements and custody of seized item shall include the identity and signature of
importance was the preservation of the integrity and the evidentiary value of
the seized or confiscated articles, considering that they were to be utilized in
the determination of the guilt or innocence of the accused.
Lapses in the buy-bust operation
9. To be sure, the buy-bust operation was infected by lapses. Although PO2
Payumo declared that he was the one who had received the sachet
of shabu (RRS-1) from Reyes and who had confiscated the two sachets
of shabu (RRS-2) from the latter, all of which he had then sealed, nothing
more to support the fact that the evidence thus seized had remained
the seized articles had been endorsed after PO2 Payumo had placed the
markings at the station, and with whose custody or safekeeping the
seized articles had remained until their endorsement to P/Insp.
Macapagal for the laboratory examination.
10. Presently, we cannot justifiably presume that the seized articles had remained
in the possession of PO2 Payumo in view of the testimony of P/Insp.
Macapagal to the effect that the party requesting the laboratory examination
had been a certain Police Officer Alano, whom the Prosecution did not at all
particularly identify or present as its witness. In this regard, Laboratory
Report No. D-085-05, the report prepared by P/Insp. Macapagal, also stated
that the party requesting the conduct of the laboratory examination was the
OIC-SAID-SOTU, PS-8, Western Police District.
11. Also, the Prosecution did not show to whom the seized articles had been
turned over following the conduct of the laboratory examination, and
how the seized articles had been kept in a manner that preserved their
integrity until their final presentation in court as evidence of the corpus
delicti.
12. Such lapses of the Prosecution were fatal to its proof of guilt because they
demonstrated that the chain of custody did not stay unbroken, thereby
raising doubt on the integrity and identity of the dangerous drugs as
evidence of the corpus delictiof the crimes charged.
Questionable credibility of the Prosecution witnesses
13. Firstly, PO2 Payumo testified that the lady confidential informant had gone
the person who held temporary custody of the seized item, the date and time when such transfer or custody
were made in the course of safekeeping and used in court as evidence, and the final disposition; (Emphasis
supplied)
 to Police Station 8 to report the alleged drug-selling activities of Reyes for
the first time in the morning of January 20, 2005. That report led to the
forming of the buy-bust team, for purposes of which he prepared the pre-
operation documents. His veracity was suspect, however, considering that
his so-called Pre-Operation/Coordination Sheet appeared to have been
prepared on the day before, as its date January 19, 2005 disclosed. The
date of January 19, 2005 also appeared in the Certification of Coordination
issued by the Philippine Drug Enforcement Agency in reference to the buy-
bust operation against Reyes. Considering that the Prosecution did not
explain the discrepancy, the impression is unavoidable that the buy-bust
operation was already set in motion even before the lady informant
actually made her report against Reyes. Thereby, his defense of frame-up
was bolstered.
14. Secondly, the Pre-Operation/Coordination Sheet indicated that there were
ten members and three (3) others that comprised the buy-bust team. Yet,
the Joint Affidavit submitted by the members of the buy-bust team was
executed and signed by only six officers (excluding even poseur buyer PO2
Payumo himself), namely: PO1 Mijares, PO1 Mark Dave Vicente, PO1
Maurison Ablaza, PO1 Elmer Clemente and PO1 Gil. The Prosecutions
failure to explain why only six members of the buy-bust team actually
executed and signed the Joint Affidavit might indicate that the
incrimination of Reyes through the buy-bust operation was probably not
reliable.
15. And, thirdly, both the Pre-Operation/Coordination Sheet and the
Certification of Coordination revealed that the confidential information
received involved two suspects of illegal drug trade in Bacood, Sta. Mesa
known as alias Boy and alias Totoy Tinga. PO2 Payumo recalled,
however, that the lady confidential informant had tipped the police off only
about alias Boy. It seems from such selectiveness that PO2 Payumo
deliberately omitted the other target and zeroed in only on alias Boy
(Reyes), which might suggest that PO2 Payumo was not as reliable as a
poseur buyer-witness as he presented himself to be.
 006 People v. Constantino (Linds)
Mar. 12, 2014 | Leonardo-de Castro, J. | Chain of Custody
Plaintiff-Appellee: People of the Philippines
Accused-Appellant: Hermanos Constantino, Jr. y Binayug, A.K.A. "Jojit,"
SUMMARY: An information for violation of RA 9165 was charged against
Constantino before the RTC. The version for the prosecution and the defense are
neatly digested and reproduced in the full digest. (Facts 3 and 4, respectively.)
The RTC convicted. CA affirmed. On appeal with the SC on certiorari,
Constantino alleges inconsistency of testimonies of the BBG members, and that
there were lapses in the chain of custody.
The issue is whether Constantino is entitled to an acquittal. Yes. In prosecutions
for illegal sale of shabu, what is material is the proof that the transaction or sale
actually took place, coupled with the presentation in court of the corpus delicti as
evidence." And in the prosecution of these offenses, the primary consideration is
to ensure that the identity and integrity of the seized drugs and other related
articles have been preserved from the time they were confiscated from the
accused until their presentation as evidence in court.
The following links must be established in the chain of custody in a buy-bust
situation: first, the seizure and marking, if practicable, of the illegal drug
recovered from the accused by the apprehending officer; second, the turn over of
the illegal drug seized by the apprehending officer to the investigating officer;
third, the turn over by the investigating officer of the illegal drug to the forensic
chemist for laboratory examination; and fourth, the turn over and submission of
the marked illegal drugs seized from the forensic chemist to the court.
The Court finds glaring inconsistencies affecting the integrity of the shabu
purportedly confiscated from Constantino. PO3 Domingo himself did not put
any markings on the two plastic sachets of shabu. Instead, upon arrival of the buy-
bust team with Constantino at the police station, PO3 Domingo turned over the
two plastic sachets of shabu to the investigator, SPO2 Tamang, who was also a
member of the buy-bust team. PO3 Domingo testified that it was SPO2 Tamang
who put the marking "NBT" on the said sachets of shabu.
the prosecution is completely silent as to why PO3 Domingo, the poseur-
buyer, despite having immediate custody of the two plastic sachets of shabu
purchased from Constantino, failed to immediately mark the seized drugs
before turning over the custody of the same to another police officer. This
lapse in procedure opened the door for confusion and doubt as to the identity
of the drugs actually seized from Constantino during the buy-bust and the ones
presented before the trial court, especially considering that three different people,
during the interval, supposedly received and marked the same.
DOCTRINE: The absence of sufficient explanation as regards procedural lapses
in the chain of custody rule in prosecutions for the sale of a dangerous drug would
entitled the accused to an acquittal.
N.B. I suggest reading the full case, or at least the full digest. Interesting case, easy
read.
FACTS:
1. An information for violation of RA 9165 (Drugs) was charged against
Constantino before the RTC.
2. When arraigned on July 8, 2005, Constantino pleaded not guilty to the crime
charged. Thereafter, pre-trial and trial on the merits ensued.
3. Evidence for the prosecution presented the following version of events:
a. P/Supt. Rodriguez, chief of Tuguegarao City, received a report from
a confidential informant (CI) that Jojit was selling drugs.
b. A buy-bust group (BBG) of certain police officers were formed.
c. Evening of the same day, the BBG were positioned in the place
where the CI told them that Jojit will sell drugs.
d. Constantino arrived, the police asked if he has the “stuff”, and asked
whether he was Jojit, he answered yes on both questions.
e. After the transaction was consummated, the BBG apprehended
Constantino and brought him to the police station.
f. The police asked for a request with the PNP crime lab for the
examination of the sachets and the marked money. The sachets were
positive for being shabu and there was confirmation that
Constantino indeed touched the marked money.
4. Defense; Constantino presented his version, pleading a frame-up, thus:
a. He went on a joy-ride that night with his friend aboard a motorcycle.
b. Tiring, he alighted and started to walk along Reyno Villa Street.
c. He was accosted by police officers who, at the time, he did not know
to be police officers.
d. They took him to the police station and produced the sachets.
e. Next day, while on the way to the Crime Lab, they forced him to
hold marked bills, although he was cuffed.
5. RTC convicted Constantino. CA affirmed.
6. Consequently, Constantino comes before this Court seeking the reversal of
his conviction by the trial court and the Court of Appeals.
7. In his Supplemental Brief, Constantino contests his conviction, averring
 I
inconsistencies in the testimonies of the prosecution witnesses,
particularly, on the circumstances of the marking of the two plastic
sachets containing shabu allegedly confiscated from him. 1Different people
claim to have made the marking "NBT" on the two plastic sachets and gave
various explanations as to what the initials "NBT" stand for.I In short,
Constantino argues that the prosecution failed to establish a crucial link
in the chain of custody of the shabu in this case.
ISSUE/s: Whether Constantino should be acquitted. – YES, the prosecution failed to
explain the procedural lapses of the chain of custody.
RULING: WHEREFORE, the appeal is GRANTED. The Decision dated July 29,
2011 of the Court of Appeals in CA-G.R. CR.-H.C. No. 03353, affirming the Decision
dated April 15, 2008 of the Regional Trial Court, Branch 5 of Tuguegarao City,
Cagayan, in Criminal Case No. 10516, is REVERSED and SET ASIDE. Appellant
Hermanos Constantino, Jr. y Binayug, a.k.a. "Jojit," is ACQUITTED for failure of the
prosecution to prove his guilt beyond reasonable doubt and is ORDERED to be
immediately released from detention unless he is confined for another lawful cause.
RATIO:
1. The appeal is meritorious.
2. Admittedly, denial is an inherently weak defense, consistently viewed with
disfavor by the courts, being a self-serving negative evidence. In view,
however, of the constitutional presumption that an accused is innocent until
the contrary is proven beyond reasonable doubt, the burden lies on the
prosecution to overcome such presumption by presenting the required
quantum of evidence. In so doing, the prosecution must rest on its own merits
and must not rely on the weakness of the defense.
3. In a prosecution for the sale of a dangerous drug, the following elements
must be proven: (1) the identity of the buyer and the seller, the object, and
the consideration; and (2) the delivery of the thing sold and the payment
therefor. Simply put, "[in] prosecutions for illegal sale of shabu, what is
material is the proof that the transaction or sale actually took place,
coupled with the presentation in court of the corpus delicti as evidence."
And in the prosecution of these offenses, the primary consideration is to
ensure that the identity and integrity of the seized drugs and other related
articles have been preserved from the time they were confiscated from the
accused until their presentation as evidence in court.
4. In Mallillin v. People, the Court discussed how the chain of custody of seized
items is established:
a. As a method of authenticating evidence, the chain of custody rule
requires that the admission of an exhibit be preceded by evidence
sufficient to support a finding that the matter in question is what the
proponent claims it to be. It would include testimony about every
link in the chain, from the moment the item was picked up to the
time it is offered into evidence, in such a way that every person who
touched the exhibit would describe how and from whom it was
received, where it was and what happened to it while in the witness’
possession, the condition in which it was received and the condition
in which it was delivered to the next link in the chain. These
witnesses would then describe the precautions taken to ensure that
there had been no change in the condition of the item and no
opportunity for someone not in the chain to have possession of the
same.
5. Thus, the following links must be established in the chain of custody in a
buy-bust situation: first, the seizure and marking, if practicable, of the
illegal drug recovered from the accused by the apprehending officer; second,
the turn over of the illegal drug seized by the apprehending officer to the
investigating officer; third, the turn over by the investigating officer of the
illegal drug to the forensic chemist for laboratory examination; and fourth,
the turn over and submission of the marked illegal drugs seized from the
forensic chemist to the court.
6. After a careful scrutiny of the testimonies of the prosecution witnesses, the
Court finds glaring inconsistencies affecting the integrity of the shabu
purportedly confiscated from Constantino. The inconsistent testimonies of
PO3 Domingo, PO3 Hernandez, and P/SInsp. Tulauan as to who, when, and
where the two plastic sachets of shabu were marked lead the Court to question
whether the two plastic sachets of shabu identified in court were the very
same ones confiscated from Constantino. The doubtful markings already
broke the chain of custody of the seized shabu at a very early stage.
7. To recall, the first crucial link in the chain of custody is seizure and marking
of the illegal drug. In this case, PO3 Domingo, as poseur-buyer, received two
plastic sachets of shabu from Constantino in exchange for ₱1,000. However,
PO3 Domingo himself did not put any markings on the two plastic
sachets of shabu. Instead, upon arrival of the buy-bust team with
Constantino at the police station, PO3 Domingo turned over the two
plastic sachets of shabu to the investigator, SPO2 Tamang, who was also
a member of the buy-bust team. PO3 Domingo testified that it was SPO2
Tamang who put the marking "NBT" on the said sachets of shabu.
8. Crucial in proving the chain of custody is the marking of the seized dangerous
drugs or other related items immediately after they are seized from the
accused, for the marking upon seizure is the starting point in the custodial
link that succeeding handlers of the evidence will use as reference point.
Moreover, the value of marking of the evidence is to separate the marked
evidence from the corpus of all other similar or related evidence from the
time of seizure from the accused until disposition at the end of criminal
proceedings, obviating switching, "planting" or contamination of evidence.
A failure to mark at the time of taking of initial custody imperils the integrity
 of the chain of custody that the law requires.
9. Herein, the prosecution is completely silent as to why PO3 Domingo, the
poseur-buyer, despite having immediate custody of the two plastic
sachets of shabu purchased from Constantino, failed to immediately
mark the seized drugs before turning over the custody of the same to
another police officer. This lapse in procedure opened the door for
confusion and doubt as to the identity of the drugs actually seized from
Constantino during the buy-bust and the ones presented before the trial court,
especially considering that three different people, during the interval,
supposedly received and marked the same. To clarify the matter, the
prosecution could have presented as witness either SPO2 Tamang or SPO2
Taguiam to directly validate the marking in court, but unfortunately, the
prosecution chose to dispense with the testimonies of both officers. This
omission diminished the importance of the markings as the reference point
for the subsequent handling of the evidence. As a consequence, an objective
person could now justifiably suspect the shabu ultimately presented as
evidence in court to be planted or contaminated.
10. The failure of the prosecution to establish the evidence’s chain of custody
is fatal to its case as the Court can no longer consider or even safely
assume that the integrity and evidentiary value of the confiscated
dangerous drug were properly preserved.
 007 PEOPLE v. AMARO (BALISONG)
1 June 2016 | Peralta, J. | Chain of custody; Burden of proof
PETITIONER: People of the Philippines
RESPONDENTS: Raul Amaro y Catubay alias “Lalaks”
SUMMARY: Amaro was arrested during a buy-bust operation. He was charged
with illegal possession of dangerous drugs and illegal sale of dangerous drugs. He
was acquitted in the illegal possession case, but convicted in the illegal sale case.
He questions his conviction on the ground that the RTC’s reasons for acquitting
him in the illegal possession case shows that PO3 Abella palnted evidence against
him, that the amount of shabu found was not commensurate to the P200 payment
allegedly received by him, and the fact that the buy-bust operation was done prior
to the execution of the warrant. "The Court held that the RTC’s decision in the illegal
possession case did not furnish the necessary evidence to establish ill motive on the
part of PO3 Abella.I Amaro had the burden of proving that PO3 Abella did not
discharge of his duties with regularity. He failed to do so.IThe Court also held that
the amount paid for the shabu and the sequence of events did not militate against
the finding of guilt as these are not elements of the crime of illegal sale of dangerous
drugs. Finally, the prosecution was able to establish the chain of custody and Amaro
was not able to present evidence to show that the integrity and evidentiary value of
the shabu presented at the trial had been compromised at some point.
DOCTRINE: In the crime of illegal sale of dangerous drugs, the delivery of the
illicit drug to the poseur-buyer and the receipt by the seller of the marked money
consummate the illegal transaction. What matters is the proof that the transaction
or sale actually took place, coupled with the presentation in court of the prohibited
drug, the corpus delicti, as evidence.
The links that must be established in the chain of custody in a buy-bust situation
are as follows: (1) the seizure and marking, if practicable, of the illegal drug
recovered from the accused by the apprehending officer; (2) the turnover of the
illegal drug seized by the apprehending officer to the investigating officer; (3) the
turnover by the investigating officer of the illegal drug to the forensic chemist for
laboratory examination; and (4) the turnover and submission of the seized and
marked illegal drug from the forensic chemist to the court.
FACTS:
1. PNP Operatives conducted surveillance and test-buy and determined that
there is cause to believe that Amaro was selling drugs. They secured a search
warrant. They decided to conduct a buy-bust operation prior to the execution
of the search warrant.
2. PO3 Abella was the poseur-buyer. He was handed two P100 bills marked
with “RA” referring to Amaro’s initials. PO3 Abella approached Amaro and
gave him the P100 bills. Amaro went inside the house and came out with a
heat-sealed sachet containing white crystalline substance. Upon examination,
PO3 Abella introduced himself as a police officer. Amaro ran inside the
house. PO3 Abella ran after him and arrested him. The buy-bust team
followed to implement the search warrant along with a Barangay Councilor
and a representative from the media. After the search, the sachet containing
the white crystalline substance was marked. The sachet and the money
recovered were inventoried and the receipt was signed by the team members
and witnesses. A photgraph was also taken. The next day, PO3 Abella
brought the sachet of the substance to the PNP Provincial Crime Laboratory
Office for qualitative test. The specimen tested positive for
methamphetamine hydrochloride.
3. Amaro was charged with illegal possession of dangerous drugs and illegal
sale of dangerous drugs. The RTC acquitted him from the illegal possession
charge saying that the testimonies of Elloren and PO3 Abella both failed to
establish the element of free and conscious possession of dangerous drugs as
the drugs were not found on the person of the accused, nor was it established
that the drugs were found in the accused’s house. However, Amaro was found
guilty of illegal sale of dangerous drugs.
ISSUE/s:
{
1. Whether the RTC’s reasons in the illegal possession case serves to furnish
the finding of ill motive against PO3 Abella, enough to overcome the
presumption of regularity in the performance of his duties. NO — Amaro
failed to discharge his burden of proof, no bad faith was actually shown.
2. Whether Amaro was guilty of illegal sale of dangerous drugs. YES — All the
elements for a successful prosecution of illegal sale of dangerous drugs has
been established.
3. Whether the prosecution was able to establish the unbroken chain of custody
of the seized item. YES — Amaro did not present any evidence to show that
the integrity and evidentiary value of the shabu presented at the trial had been
compromised at some point.
RULING: WHEREFORE appeal is DISMISSED. Decision is AFFIRMED.
RATIO:
Ill motive
1. The dismissal of the illegal possession case did not carry with it a finding of
ill motive against PO3 Abella or that he planted evidence against Amaro.
Amaro had the burden of proof to overcome the presumption that the police
officers handled the seized drugs with regularity, and that they properly
performed their official duties. He did not ascribe any improper motive on
the part of the police officers as to why they would choose to falsely implicate
him in a very serious crime that would cause his incarceration for life.
Illegal Sale of Dangerous Drugs
 2. For a successful prosecution of illegal sale of dangerous drugs the following
elements must be satisfied: (1) the identity of the buyer and the seller, the
object of the sale, and the consideration; and (2) the delivery of the thing sold
and the payment therefor. In the crime of illegal sale of dangerous drugs, the
delivery of the illicit drug to the poseur-buyer and the receipt by the seller of
the marked money consummate the illegal transaction. What matters is the
proof that the transaction or sale actually took place, coupled with the
presentation in court of the prohibited drug, the corpus delicti, as evidence.
3. The identities of the buyer, the seller, the prohibited drug, and the marked
money, have all been proven by the required quantum of evidence. The chain
of custody did not suffer any flaws.
Chain of custody

I
1. The links that must be established in the chain of custody in a buy-bust
situation are as follows: (1) the seizure and marking, if practicable, of the
illegal drug recovered from the accused by the apprehending officer; (2) the
turnover of the illegal drug seized by the apprehending officer to the
investigating officer; (3) the turnover by the investigating officer of the illegal
drug to the forensic chemist for laboratory examination; and (4) the turnover
and submission of the seized and marked illegal drug from the forensic
chemist to the court.
2. The records indicate that the illegal drug con scated in the buy-bust was
segregated, marked, inventoried, kept, and delivered to the forensic chemist
by the same police of cer who received them from Amaro. The poseur-
buyer, PO3 Abella, immediately marked the seized plastic sachet and made
an inventory receipt at the scene of the crime. Aside from the presence of the
representatives from the media, DOJ, PDEA, and barangay, a photograph was
also taken in order to document the arrest and seizure that transpired. The day
after, PO3 Abella personally delivered the illegal drug, apart from the other
items confiscated pursuant to the search warrant, to the provincial crime

"
laboratory office. The specimen was received intact by PSI Dagasdas, who
thereafter conducted the qualitative examination and found the same to be
positive of shabu. When the prosecution presented the marked evidence in
court, PO3 Abella and PSI Dagasdas positively identified them to be the same

i
illegal drugs seized from Amaro. Further, the marked money was presented
and identi ed in open court. All these support the conclusion that the
prosecution submitted evidence proving beyond reasonable doubt the crucial
links in the chain of custody of the shabu, starting from its seizure and
confiscation until its presentation as proof of the corpus delicti before the
RTC.
 008 PEOPLE v. FREDDIE LADIP (Arcenas)
March 12, 2014 | Perez, J. | Rules of Admissibility – Chain of Custody Rule
PLAINTIFF-APPELLEE: PEOPLE OF THE PHILIPPINES
ACCUSED-APPELLANT: FREDDIE LADIP y RUBIO
SUMMARY: Freddie Ladip (Ladip) was charged for illegal sale of dangerous drugs.
According to the prosection’s version, PO 1 Sibal and PO 2 Tayag were approached
by a male confidential information with information that Ladip was selling illegal
drugs in QC. lA buy-bust operation was conducted and Ladip was arrested.l PO 2
Sibal, acting as the buyer, paid Ladip marked money consisting of three (3) Php 100
bills. ,Subsequently, an inventory of the seized items was made in the presence of the
police operatives and the arrested persons.l Photographs of the arrested persons, the
marked money, and the seized items were likewise taken, followed by various
requests for laboratory examination of said specimens, and for drug dependency
examination of the arrested persons. RTC found Ladip guilty beyond reasonable
doubt of violation of Section 5, Article II of R.A. No. 9165 (illegal sale). Also, the
marking of the subject sachets made only in the police station was reasonable
considering that during the arrest, there was a commotion which resulted to a crowd
build-up, thereby giving rise to the probability of risk to the life and limb of the
police, had they stayed there much longer. Hence, such belated marking was
therefore deemed justified. On appeal, Ladip contended that the police violated
Section 21 of R.A. No. 9165 since the confiscated drugs were not marked
immediately at the time and place of its seizure, and that the subsequent physical
inventory was not made in the presence of representatives from the Department of
Justice (DOJ), the media, and any elected public official. CA, however, affirmed his
conviction. Hence, this petition.
The issue is W/N the RTC and the CA erred in finding that the evidence of the
prosecution was sufficient to convict the accused of the alleged sale of
methamphetamine hydrochloride or shabu, in violation of Section 5 of R.A. No.
9165. Petition has no merit and SC affirmed his conviction. PO1 Sibal himself
testified that there was an actual exchange of the marked money and the prohibited
drug. Certainly, accused was fully aware that what he was selling was illegal and
prohibited. Thereafter, the corpus delicti or the subject drug was seized, marked, and
subsequently identified as a prohibited drug. Hence, prosecution successfully proved
the offense of illegal sale of drugs with the credible recount of the buy-bust operation
conducted by police. SC ruled that credence should be given to the narration of the
incident by the prosecution witnesses especially when they are police officers who
are presumed to have performed their duties in a regular manner, unless there is
evidence to the contrary (which ill motive of police was not proven by defense).
3 That on or about 7th day of December, 2006, in Quezon City, accused without lawful authority did then
and there willfully and unlawfully sell, trade, administer, dispense, deliver, give away to another,
distribute, dispatch in transit or transport, or act as broker in the said transaction, a dangerous drug, to wit:
Under Section 3 of Rule 128 of the Rules of Court, evidence is admissible when it is
relevant to the issue and is not excluded by the law or these rules. For evidence to be
inadmissible, there should be a law or rule which forbids its reception. If there is no
such law or rule, the evidence must be admitted subject only to the evidentiary weight
that will [be] accorded it by the courts. We do not find any provision or statement in
said law or in any rule that will bring about the non- admissibility of the confiscated
and/or seized drugs due to non-compliance with Section 21 of Republic Act No.
9165. The issue therefore, if there is non-compliance with said section, is not of
admissibility, but of weight — evidentiary merit or probative value — to be given
the evidence. The weight to be given by the courts on said evidence depends on the
circumstances obtaining in each case.
*By way of reiteration, although this Court finds that the police officers did not
strictly comply with the requirements of Section 21, Article II of the IRR
implementing R.A. No. 9165, the noncompliance did not affect the evidentiary
weight of the drugs seized from the accused, because the chain of custody of the
evidence was shown to be unbroken under the circumstances of the case. As correctly
found by the appellate court, the drugs confiscated from the accused were properly
accounted for and forthrightly submitted to the Crime Laboratory for its extensive
examination. The CA further ruled that nothing invited the suspicion that the integrity
and evidentiary value of the seized articles were jeopardized.
DOCTRINE: Chain of Custody Rule is a method of authenticating evidence which
requires that the admission of an exhibit be preceded by evidence sufficient to
support a finding that the matter in question is what the proponent claims it to be.
As often as there are occasions to apply the chain of custody rule, the Court has
pronounced that the requirements under R.A. No. 9165 and its IRR are not inflexible.
What is essential is the preservation of the integrity and the evidentiary value of the
seized items, as the same would be utilized in the determination of the guilt or
innocence of the accused
FACTS:
1. Freddie Ladip (Ladip) was charged under the Information docketed as Criminal
Case No. Q-06-144482 for violation of Section 5, Article II of R.A. No. 9165
(illegal sale of dangerous drugs/drug pushing)3
a. Upon arraignment, Ladip pleaded not guilty to said charge. Thereafter, a
full-blown trial ensued.
2. The Prosecution’s Version of Facts
a. The prosecution presented Police Officer (PO) 1 Marcelino Sibal (PO1
Sibal) and PO1 Romeo Tayag (PO2 Tayag), who both testified that while
zero point thirteen (0.13) gram of white crystalline substance containing [methamphetamine]
hydrochloride.
 on duty in the morning of 12/07/06,4 a male confidential informant came
to the station and provided them with the information that a certain
Freddie Ladip was selling illegal drugs in Area 1, Barangay Batasan,
Quezon City.
b. Consequently, a buy-bust operation was conducted on the same day
where Ladip was arrested for selling methamphetamine
hydrochloride or shabu.
c. PO1 Sibal, who acted as poseur-buyer, and the informant went to a house
around 1 o’clock in the afternoon of 12/07/06, wherein Ladip was
already waiting for them outside the said house.
d. The informant introduced PO1 Sibal to Ladip as a buyer of shabu. He
immediately inquired as to the quantity of shabu that he intends to
purchase by asking, "magkano?" PO1 Sibal replied that he wanted to buy
P300.00 worth of shabu.
e. Ladip then asked for the payment, for which PO1 Sibal readily gave him
the marked money consisting of three 100-peso bills.
f. In return, Ladip handed to PO1 Sibal a transparent heat-sealed plastic
sachet containing white crystalline granules. Upon the exchange and
conveyance of shabu and the marked money having been completed,
PO1 Sibal gave the pre-arranged signal by removing his cap to signify to
his back-up team, strategically stationed near the scene of the crime, that
the transaction was consummated. Afterwards, the accused was arrested
by the team.
g. While Ladip was being apprehended, a certain Perlyn Urbano y Dela
Cruz (Perlyn) suddenly emerged before them, hysterically shouting and
asking why her husband was being arrested, and even attempted to
prevent the police operatives from consummating said arrest.
h. Simultaneously, PO1 Tayag, being one of the back-up team, approached
them and recovered another heat-sealed plastic sachet on the ground near
Perlyn. Thereafter, both Ladip and Perlyn were brought to the police
station where they were detained and investigated.
i. prior to the turnover of the evidence to the investigator-on-duty in said
station, PO1 Sibal and PO1 Tayag revealed that they placed their
respective markings on the two (2) small heat sealed transparent plastic
sachets, denominated as MS-FL-12-07- 06 and RT-PU-12-07-06.
j. Subsequently, an inventory of the seized items was made in the presence
of the police operatives and the arrested persons. Photographs of the
4 Ma. Shirleen Ballete examined the specimen and prepared Chemistry Report No. D- 525-2006 dated
together with other police operatives namely: PO2 Zamora, PO1 Almario, and PO2 Salas, at the Station
Anti-Illegal Drugs (SAID) - Station Operation Task Group, Quirino Police Station (PS-09), Anonas Road,
Project 2, Quezon City,
5 Likewise, said report has been properly subscribed and sworn to before the Administering Officer; and (6)
(1) That P/Insp. Ma. Shirleen Ballete is the Forensic Chemist who examined the specimen, subject
matter of this case;(2) That there was a request made for an examination on the specimen;(3) That
attached to the request are the two specimens, with the marking on each of the transparent plastic sachets,
namely: MS-FL-12-07-06 and RT-PU-12-07-06; (4) That in view of the said request, Forensic Chemist
arrested persons, the marked money, and the seized items were likewise
taken, followed by various requests for laboratory examination of said
specimens, and for drug dependency examination of the arrested persons.
k. Later on, the subject sachets were brought to the Quezon City Police
District (QCPD) Crime Laboratory.
l. Lastly, it was agreed upon by both parties to dispense with the testimony
of the other prosecution’s witness, Police Inspector (P/Insp.) Ma.
Shirleen Ballete, and to enter instead the following stipulations5
3. The Defense’s Version of the Facts – alleges different version and presented
Lerma Cui (Cui) as witness.
a. Ladip testified that at around 1 o’clock in the afternoon of 7 December
2006, he was engaged in a drinking session inside the house of his live-
in partner’s i.e. Perlyn’s friend, Wilma at Barangay Botocan, Quezon
City.
b. Suddenly, three men in civilian clothes arrived and searched the house
but found nothing illegal. Nevertheless, the three men grabbed and
handcuffed him and Perlyn, boarded them in a vehicle and brought them
to a police station to show them the shabu without explaining where it
came from.
c. This was corroborated by Cui who testified that she was in the house of
her friend Wilma having a drinking spree with them when the accused
was unexpectedly and swiftly arrested by a group of three male
individuals clad in civilian clothes for no apparent reason.
d. She recalled that a member of said group informed them that they are
looking for somebody, while the other began to search the house, and the
third member of the group placed handcuffs on the accused and Perlyn.
Shocked, Cui gave witness that she and Wilma were not able to do
anything to prevent such unlawful search and warrantless arrest.
4. RTC RULING: finding Ladip guilty beyond reasonable doubt of violation of
Section 5, Article II of R.A. No. 9165 (for drug pushing)
a. Only the sachet sold to PO[1] Sibal covers the case against the accused.
The other sachet picked up by PO[1] Tayag cannot be held beyond
reasonable doubt as having come from Ladip. Nonetheless, the statutory
penalty is still as stated above as per RA 9165.
b. The two (2) sachets of shabu involved in this case are ordered
transmitted to PDEA thru DDB for disposal as per RA 9165.
December 7, 2006 with the finding that said specimen, after qualitative examination conducted on the said
specimen, gave positive result for the test of [methamphetamine] hydrochloride, a dangerous drug; (5)
That Forensic Chemist Ma. Shirleen Ballete merely conducted the examination on the specimens, but has
no personal knowledge on how said specimens were recovered from the possession of the accused.
 c. RTC ruled that the testimonies of the police operatives are credible and
reliable.
d. On the other hand, the denials of the accused were found to be negative,
weak, and self-serving.
e. (Important) Also, the marking of the subject sachets made only in the
police station was reasonable considering that during the arrest, there
was a commotion which resulted to a crowd build-up, thereby giving rise
to the probability of risk to the life and limb of the police, had they stayed
there much longer. Hence, such belated marking was therefore deemed
justified.
f. On appeal, Ladip contended that the confiscated drugs were not marked
immediately at the time and place of its seizure, and that the subsequent
physical inventory was not made in the presence of representatives from
the Department of Justice (DOJ), the media, and any elected public
official, in violation of Section 21 of R.A. No. 9165, thus, destroying the
identity and integrity of the evidence against him; that there were
inconsistencies in the testimonial evidence presented by the prosecution;
and that ultimately, the prosecution miserably failed to prove the
accused’s guilt beyond reasonable doubt.
5. CA RULING: The CA affirmed in toto the decision of the RTC and dismissed the
appeal.
a. CA ruled that the prosecution’s evidence established the essential
elements of the crime.
b. It held that failure to comply with Section 21 of R.A. No. 9165 will not
render the arrest of Ladip illegal, nor will it result to the inadmissibility
in evidence of the illegal drugs seized in the course of the entrapment
operation.
c. More so, the CA emphasized that in the prosecution of offenses relating
to illegal sale, peddling and conveyance of prohibited drugs, what is of
material and pivotal importance is proof that the sale of drugs actually
took place, coupled with the presentation of the corpus delicti as
evidence, and furthermore, that there is no showing of any indicia of ill
or improper motive on the part of the police operatives to impute such
serious crime against accused as manifested by their witnesses’
spontaneous and categorical declarations and account of the incident.
These were all established and proven beyond reasonable doubt in the
instant case.
6. Hence, this petition to the SC. In his Appellant’s Brief, accused raised the
following assignment of errors:
a. CA gravely erred in convicting Ladip notwithstanding the prosecution’s
failure to establish the chain of custody and integrity of the alleged seized
illegal drugs;
b. CA gravely erred in convicting Ladip notwithstanding the prosecution
witnesses’ incredible and highly inconsistent testimonies; and
c. CA gravely erred in convicting Ladip despite the prosecution’s failure to
prove his guilt beyond reasonable doubt.
ISSUE/s:
W/N the RTC and the CA erred in finding that the evidence of the prosecution was
sufficient to convict the accused of the alleged sale of methamphetamine
hydrochloride or shabu, in violation of Section 5 of R.A. No. 9165 – NO. Court a
quo was correct. Prosecution successfully proved the offense of illegal sale of drugs
with the credible recount of the buy-bust operation conducted by police. SC ruled
that credence should be given to the narration of the incident by the prosecution
witnesses especially when they are police officers who are presumed to have
performed their duties in a regular manner, unless there is evidence to the contrary
(which ill motive of police was not proven by defense).
RULING: WHEREFORE, the appeal is DENIED. The Court of Appeals Decision in
CA-G.R. CR-H.C. No. 03635 dated 22 September 2010, is AFFIRMED in all
respects.
RATIO:
ADMISSIBLITY OF EVIDENCE
1. It has been consistently ruled that for the successful prosecution of offenses
involving the illegal sale of drugs under Section 5, Article II of R.A. No. 9165
(illegal sale of drugs), the following elements must be proven:
a. the identity of the buyer and seller, object and consideration;
b. the delivery of the thing sold and the payment therefor.
2. In other words, there is a need to establish beyond reasonable doubt that the
accused actually sold and delivered a prohibited drug to another, and that the
former indeed knew that what he had sold and delivered to the latter was a
prohibited drug.
3. To reiterate, what is material to the prosecution for illegal sale of dangerous drugs
is the proof that the transaction or sale actually took place, plus the presentation
in court of corpus delicti as evidence.
4. Contrary to the claim of Ladip, the prosecution was able to clearly recount how
the buy-bust operation was conducted, and the eventual submission of the subject
sachet of shabu as part of its evidence.
a. We note that during the direct examination of the prosecution’s witness,
PO1 Sibal, he categorically testified on the factual antecedents (see end
of digest).
b. Hence, the prosecution indeed established that there was a buy-bust
operation conducted, showing that accused sold and delivered
the shabu for P300.00 to PO1 Sibal, the poseur- buyer.
c. PO1 Sibal himself testified that there was an actual exchange of the
marked money and the prohibited drug. Certainly, accused was fully
aware that what he was selling was illegal and prohibited. Thereafter,
 the corpus delicti or the subject drug was seized, marked, and
subsequently identified as a prohibited drug.
5. It cannot be overemphasized that in cases involving violations of Dangerous
Drugs Act, credence should be given to the narration of the incident by the
prosecution witnesses especially when they are police officers who are
presumed to have performed their duties in a regular manner, unless there
is evidence to the contrary.
a. In this regard, the defense failed to show any ill motive or odious intent
on the part of the police operatives to impute such a serious crime that
would put in jeopardy the life and liberty of an innocent person, such as
in the case of accused.
b. Incidentally, if these were simply trumped-up charges against him, it
remains a question why no administrative charges were brought against
the police operatives.
c. Moreover, in weighing the testimonies of the prosecution witnesses vis-
à-vis those of the defense, it is a well-settled rule that in the absence of
palpable error or grave abuse of discretion on the part of the trial
judge, the trial court’s evaluation of the credibility of witnesses will
not be disturbed on appeal.
CHAIN OF CUSTODY (RELEVANT)
6. With the illegal sale of dangerous drugs established beyond reasonable doubt, the
handling of the evidence, or the observance of the proper chain of custody, which
is also an indispensable factor in prosecution for illegal sale of dangerous drugs,
is the next matter to be resolved.
7. The point, understandably, of the accused is noncompliance by the arresting
officers with Section 21, Article II of the Implementing Rules and Regulations
(IRR) of R.A. No. 9165 regarding the chain of custody of seized drugs,
particularly as to the following:
a. that no copy of the inventory was given to the accused or his
representative;
b. that no photographs were taken in the presence of a representative from
the media or the DOJ or any elected public officer; and
c. that there was no explanation of how the alleged sachets of shabu were
handled and disposed of from the time these were turned-over to the
crime laboratory, up to their presentation in court, is fatal to the
prosecution’s case against him.
8. Resolving this matter is of utmost importance because if proven, substantial gaps
in the chain of custody of the seized drugs would cast serious doubts on the
authenticity of the evidence presented in court and would then entitle the accused
to an acquittal.
9. This Court has time and again spoken on the chain of custody rule, a method of
authenticating evidence which requires that the admission of an exhibit be
preceded by evidence sufficient to support a finding that the matter in
question is what the proponent claims it to be.
a. This would include testimony about every link in the chain, from the
moment the item was picked up to the time it is offered in evidence,
in such a way that every person who touched the exhibit would
describe how and from whom it was received, where it was and what
happened to it while in the witness’ possession, the condition in
which it was received and the condition in which it was delivered to
the next link in the chain.
b. These witnesses would then describe the precautions taken to ensure that
there had been no change in the condition of the item and no opportunity
for someone not in the chain to have possession of the same.
10. In People v. Salonga, we held that it is essential for the prosecution to prove
that the prohibited drug confiscated or recovered from the suspect is the very
same substance offered in court as exhibit.
a. Its identity must be established with unwavering exactitude for it to lead
to a finding of guilt. Thus, drug enforcement agents and police officers
involved in a buy-bust operation are required under R.A. No. 9165 and
its implementing rules to mark all seized evidence AT the buy-bust
scene. Section 21 (a), Article II of the IRR (see end of digest)
11. As often as there are occasions to apply the chain of custody rule, the Court has
pronounced that the requirements under R.A. No. 9165 and its IRR are not
inflexible. What is essential is "the preservation of the integrity and the
evidentiary value of the seized items, as the same would be utilized in the
determination of the guilt or innocence of the accused."
a. From the point of view of jurisprudence, we are not beating any new path
by holding that the failure to undertake the required photography and
immediate marking of seized items may be excused by the unique
circumstances of a case.
b. In People v. Resurreccion, we already stated that "marking upon
immediate confiscation" does not exclude the possibility that marking
can be at the police station or office of the apprehending team.
c. In the cases of People v. Rusiana, People v. Hernandez, and People v.
Gum-Oyen, the apprehending team marked the confiscated items at
the police station and not at the place of seizure. Nevertheless, we
sustained the conviction because the evidence showed that the integrity
and evidentiary value of the items seized had been preserved.
d. To reiterate what we have held in past cases, we are not always looking
for the strict step-by-step adherence to the procedural requirements; what
is important is to ensure the preservation of the integrity and the
evidentiary value of the seized items, as these would determine the
guilt or innocence of the accused.
e. People v. Del Monte when we held: Under Section 3 of Rule 128 of the
Rules of Court, evidence is admissible when it is relevant to the issue
 and is not excluded by the law or these rules. For evidence to be in
admissible, there should be a law or rule which forbids its reception.
If there is no such law or rule, the evidence must be admitted subject
only to the evidentiary weight that will [be] accorded it by the courts.
12. We do not find any provision or statement in said law or in any rule that will bring
about the non- admissibility of the confiscated and/or seized drugs due to non-
compliance with Section 21 of Republic Act No. 9165. The issue therefore, if
there is non-compliance with said section, is not of admissibility, but of
weight — evidentiary merit or probative value — to be given the
evidence. The weight to be given by the courts on said evidence depends on the
circumstances obtaining in each case.
a. APPLICATION (link in the chain): From the testimonies of the police
officers in the case at bench, the prosecution established that they had
custody of the drugs seized from the accused from the moment he was
arrested, during the time he was transported to the police station, and up
to the time the drugs were submitted to the crime laboratory for
examination. The same witnesses also identified the seized drugs with
certainty when these were presented in court.
b. About the handling of the seized drugs, there are no conflicting
testimonies or glaring inconsistencies that would cast doubt on the
integrity thereof as evidence presented and scrutinized in court.
c. In short, there is no question as to the integrity of the evidence against
the accused.
13. Also, it is a well-entrenched principle that findings of fact of the trial court as to
the credibility of witnesses are accorded great weight and respect when no glaring
errors, gross misapprehension of facts, and speculative, arbitrary and unsupported
conclusions can be gathered from such findings.
a. The rationale behind this rule is that the trial court is in a better
position to decide the credibility of witnesses, having heard their
testimonies and observed their deportment and manner of testifying
during trial.
b. This rule finds an even more stringent application where said findings
are sustained by the Court of Appeals. This Court does not find any
convincing reason to depart from the ruling of the trial court, which was
affirmed by the appellate court. Thus, we affirm the assailed Decision of
the appellate court and uphold the conviction of the accused.
RELEVANT PROVISION
SECTION 21. Custody and Disposition of Confiscated, Seized and/or Surrendered
Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and
Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. x x x
(a) The apprehending officer/team having initial custody and control of the drugs
shall, immediately after seizure and confiscation, physically inventory and
photograph the same in the presence of the accused or the person/s from whom such
items were confiscated and/or seized, or his/her representative or counsel, a
representative from the media and the Department of Justice (DOJ), and any elected
public official who shall be required to sign the copies of the inventory and be given
a copy thereof: Provided, that the physical inventory and photograph shall be
conducted at the place where the search warrant is served; or at the nearest police
station or at the nearest office of the apprehending officer/team, whichever is
practicable, in case of warrantless seizures; Provided, further, that non-compliance
with these requirements under justifiable grounds, as long as the integrity and the
evidentiary value of the seized items are properly preserved by the apprehending
officer/team, shall not render void and invalid such seizures of and custody over said
items;
TESTIMONY OF PO 1 SIBAL
Q:On December 7, 2006 in what police station you were assigned?
A:Station 9 Anti Illegal Drug.
Q:Do you remember having reported for duty on said date?
A:Yes, sir.
Q:Who were with you at the time when you reported for duty?
A:PO1 Romeo Tayag, PO1 Almario, PO2 Zamora and PO2 Salas.
Q:While you were on the said station, what happened if you still recall?
A:There was an informant who arrived in our station.
Q:When this informant arrived in your station, what happened?
A: He told us that a certain Freddie Ladip in Area 1 is selling shabu.
xxxx
Q:After that information was given by the said informant, what did your team do, if
any?
A:We made the pre-operation report, the buy bust money was also prepared.
Q:Was there a briefing conducted?
A:Yes, sir.
Q:In this briefing that was conducted by your chief, what was taken?
A:I will be the poseur buyer.
Q:As a poseur buyer, what will you do?
A:I was tasked to buy shabu.
Q:And what will you use to buy shabu?
A:Marked money P300.00.
Q:Was it already marked when it was given to you?
A:Not yet I was the one who marked the money.
Q:From whom did you receive the money?
A:Chief of SAID Balmaseda.
Q:In what denomination you used?
A:3 pieces of P100.00.
Q:After you received the money, what did you do?
A:We placed marking on the upper left (sic).
Q:What marking did you place? Q:After you were introduced by the informant that you will buy shabu, what
A:My initial MS. happened next?
Q:Why do you have to mark the money? A:Freddie said how much.
A:That this will be the money we will use.28 Q:And how much your answer?
xxxx A:P300.00.
Q:After this pre-operation report was prepared, what else were discussed during the Q:And when you answered P300.00, what did he do?
briefing? A:He asked for the money.
A:I was tasked as a poseur buyer. After the money was given we went to the Q:After he asked for the money, what did you do?
location. A:After he got the money he gave me the small transparent sachet.
Q:Who was your back up? Q:And what did you do after you received the sachet?
A:Romeo Tayag. The other are back ups but on viewing distance. A:I executed the pre-arranged signal and I arrested Freddie.
Q:You said you were tasked to buy shabu, how could (sic) the back up knew that the Q:You said you recovered the sachet and P300.00 worth of shabu, did you examine
sale was already consummated? it?
A:We have the pre-arranged signal. A:Yes, sir.
Q:And what was the pre-arranged signal? Q:What is the content?
A:Taking of my cap. A:White crystalline substance.
Q:Which signify what? Q:You said you executed a pre-arranged signal, what happened after that?
A:That the buy bust was already consummated. A:After I removed my cap I arrested Freddie and my back ups went towards us.
Q:What time did you proceed to the area? Q:Why did you arrest Freddie?
A:Around 12:30 pm. A:Because I was able to buy shabu from Freddie.
Q:At around 12:30 p.m. you were dispatched, what mode of transportation did you Q:What else did you tell Freddie?
use? A:I introduced myself as police officer.
A:Two cars. Q:After introducing yourself as police officer, what else did you do?
Q:Were you able to reach the area of your operation? A:I informed him of his constitutional rights.
A:Yes, sir. Q:What else did you do?
Q:What exact place were you (sic) dispatched? A:I was able to recover P300.00 which I used to buy shabu.
A:Area 1, Bgy. Botocan, Quezon City. Q:From where did you recover it?
Q:Where was the informant when you reached the said place? A:Still on his hand.29
A:He was with me. xxxx
Q:When you reached the said place, what happened? Q:Before reaching the station who was in custody of the sachet you purchased from
A:I together with the informant we went to the house of the suspect. the accused?
Q:How did you go there? A:I was the one.
A:We were walking. Q:How about the 3 pieces of P100.00.
Q:How far is their vehicle from you? A: I was the one.
A:The vehicle was parked on the street and the place where the supposed pusher is xxxx
located in the looban. Q:When you reached the station, what did you do with the evidence?
Q:What about your back up? A:Before we turn over to the investigator we placed the initial.
A:Strategic position. Q:What initial you placed?
Q:You said you were able to reach the house of the suspect, what happened when A:MSFL 12-07-09 (sic).
you reached the house of the suspect? Q:What does MSFL stand for?
A:The informant introduced me to Freddie as the one who will buy shabu. A: MS Marcelino Sibal and FL Freddie Ladip.
Q:You said you reached the house of Freddie and you were introduced by the xxxx
informant, how were you introduced by the informant to Freddie? Q:How about the 3 pieces of marked money?
A:Buyer of shabu. A:Turned over to the investigator.
Q:Were you able to identify the plastic sachet you purchased from the accused?
A:Yes, sir.
Q:Showing to you the plastic sachet, what can you say to this?
A:This is the one.
Q:Witness identified the plastic sachet marked as Exhibit B and the signature as B-1
and B-2.
Q:You said you were able to turn over to the investigator the money, where is the
money now?
A:I have it but I was not able to bring it.
Q:Before you present it to the inquest, what did you do with the P300.00
A:We took pictures of the money.
Q:Would you be able to identify the money?
A:Yes, sir.
Q:Showing to you the xerox copy, what can you say to that?
A:This is the buy bust money.
Q:We request that the 3 pieces of P100.00 be marked as EXHIBIT F, G and H.
Point to us the marking you placed before the operation?
Witness pointing to the initial MS which we request to be marked as EXHIBITS F-1,
G-1 and H-1.
 009 People v. Havana (Buenaventura)
Jan. 11, 2016 | Del Castillo, J. | Chain of Custody
PETITIONER: People of the Philippines
RESPONDENTS: Fernando Havana aka Fernando Abana
SUMMARY:
A civilian informant named “Droga” went to the Police Station to report that
Fernando Havana was involved in the drug trade. SPO1 Espenido then allegedly
coordinated with PDEA and planned a buy-bust operation.
Fernando Havana allegedly sold shabu to a poseur-buyer and was caught during
a buy-bust operation. SPO1 Espenido recovered the P100.00 marked money from
the appellant while the plastic pack was given by the "civilian informant" to SPO1
Espenido.
Fernando was taken to the police station for investigation. The P100.00 marked
money and the plastic pack containing the suspected shabu were turned over to
SPO2 Nuñez who marked the plastic pack with "FA" the initials of herein
appellant. He then prepared a letter requesting for examination of the item seized
from the appellant addressed to the PNP Crime Laboratory. PCI Salinas, a
forensic chemist of the PNP Crime Laboratory of Brgy. Apas, Cebu City, testified
that he conducted a laboratory examination of the recovered specimen that
yielded "positive result for the presence of methylamphetamine hydrochloride, a
dangerous drug."
RTC found him guilty, CA affirmed RTC ruling and stated that the police officers
regularly performed their functions.
Fernando now questions: (1) the lack of pre-coordination with the PDEA
regarding the buy-bust operation, (2) the non-presentation in court of the
unnamed "civilian informant" as poseur-buyer, (3) the non-compliance by the
police officers with the prescribed procedure under Section 21, Article II of RA
9165 and lastly, the dubious chain of custody of the subject shabu.
lThe issue is WoN appellant Fernando Havana did in fact sell or deliver to an
alleged poseur-buyer "shabu”. SC held NO, his guilt is not proven beyond
reasonable doubt since there are lapses in the chain of custody of the evidence.l
For the first two contentions of Fernando, SC held that lack of pre-coordination
and non-presentation of witness is not necessary in drug cases.
As to the chain of custody, there were conflicting information from the
testimonies of the witnesses. One witness said that SPO1 Nunez was the one who
carried the shabu, while SPO1 Espenido said it was him who carried the shabu.
Both Espenido and Nunez were not asked by the prosecution to testify in Court.
There was also no direct testimony from the crime lab that it was the same bag of
shabu that was tested.
Further, the team never ever made a physical inventory of the shabu, nor did it
ever photograph the same in the presence of the appellant from whom the alleged
item was confiscated. There was no physical inventory and photograph of the
item allegedly seized from appellant. Neither was there any explanation offered
for such failure.
SC held that serious uncertainty is generated on the identity of the item in
view of the broken linkages in the chain of custody. In this light, the
presumption of regularity in the performance of official duty accorded the
buy-bust team by the courts below cannot arise.
DOCTRINE:
While the testimony about a perfect chain is not always the standard because it is
almost always impossible to obtain, I an unbroken chain of custody becomes
indispensable and essential when the item of real evidence is not distinctive and
is not readily identifiable, or when its condition at the time of testing or trial is
critical, or when a witness has failed to observe its uniquenessl
FACTS:
1. In an Information dated November 18, 2005, Fernando Ranche Havana was
charged with illegal sale of dangerous drugs.
2. On or about the 4th day of November, 2005, at about 6:30 p.m., in the City
of Cebu, Philippines, the said accused, with deliberate intent and without
authority of law, did then and there sell, deliver or give away to a poseur[-
]buyer the following:
3. One (1) heat-sealed transparent plastic packet containing 0.03 gram of white
crystalline substance containing Methylamphetamine Hydrochloride, locally
known as "SHABU", a dangerous drug. CONTRARY TO LAW.
4. Fernando put in a negative plea. Trial then followed.
5. The prosecution’s case is essentially erected upon the testimonies of PO2
Miguel R. Enriquez (PO2 Enriquez), SPO1 Rogelio J. Cañete, Jr. (SPO1
Cañete), and Police Chief Inspector Mutchit G. Salinas (PCI Salinas), all
members of the Philippine National Police (PNP), Police Station 10, Punta
Princesa, Cebu City and documentary exhibits pertaining to the buy-bust
operation. The combined testimonies and the documentary exhibits tended to
establish these facts:
6. A civilian informant, one "Droga", went to Police Station 10, Punta Princesa,
Cebu City and reported to the duty officer SPO1 Espenido that the Fernando
was actively engaged in the illegal drug trade. SPO1 Espenido immediately
assembled a buy-bust team, with him as the team leader, the civilian asset and
with PO2 Enriquez, SPO1 Cañete, and SPO1 Jasper C. Nuñez (PO2 Nuñez)
as back-up. The police team designated the unnamed "civilian informant" as
poseur-buyer and provided him with a P100.00 marked money bill, with its
serial number (SN003332) noted in the police blotter, to be used for the
purpose of buying shabu from Fernando.
7. The buy-bust operation was allegedly coordinated with the Office of the
Philippine Drug Enforcement Agency (PDEA). When the police team
reached the target area, the "civilian informant" went to the house of
 Fernando and called the latter. Hidden from view, some 15 meters away from
the house, the back-up operatives, PO2 Enriquez and SPO1 Cañete, saw the
civilian informant talking with the Fernando. Not long after, they saw the
"civilian informant" handling over the marked P100.00 bill to the Fernando,
who in exchange gave to the former a plastic pack containing 0.03 gram white
crystalline substance which these two suspected as shabu. The "civilian
informant" then placed a face towel on his left shoulder to signal that the sale
had been consummated. SPO1 Espenido and his two companions rushed
towards the "civilian informant" and the Fernando and arrested the latter after
apprising him of his constitutional rights. SPO1 Espenido recovered the
P100.00 marked money from the Fernando while the plastic pack was given
by the "civilian informant" to SPO1 Espenido.
8. The Fernando was taken to the police station for investigation. The P100.00
marked money and the plastic pack containing the suspected shabu were
turned over to SPO2 Nuñez who marked the plastic pack with "FA" the
initials of herein Fernando. He then prepared a letter requesting for
examination of the item seized from the Fernando addressed to the PNP
Crime Laboratory. PCI Salinas, a forensic chemist of the PNP Crime
Laboratory of Brgy. Apas, Cebu City, testified that he conducted a laboratory
examination of the recovered specimen that yielded "positive result for the
presence of methylamphetamine hydrochloride, a dangerous drug."
9. Fernando denied that he was a shabu-seller; he also denied that he was
arrested in a buy-bust operation.1âwphi1 He claimed that on that evening
of November 4, 2005 he was eating bread when SPO2 Nuñez barged inside
his house, handcuffed him and brought him to the police precinct. He claimed
that he was mistaken for his neighbor "Narding" the real shabu-seller. His
daughter, Maria Theresa, corroborated him.
10. The RTC found Fernando guilty as charged and sentenced him to suffer the
penalty of life imprisonment and to pay a fine of P500,000.00.
11. From this judgment, Fernando appealed to the CA.
12. On appeal, the CA upheld the RTC ruling. The appellate court held that
the non-submission of the pre-operation report to the PDEA did not at
all render the buy-bust operation irregular. What it held as important is
that the police officers were able to call the PDEA prior to the operation.
The CA was convinced that all the elements of the offense charged were
established by the prosecution. The CA held that the integrity and
evidentiary value of the confiscated item had been preserved, despite the
fact that the police officers did not strictly adhere to the procedure
outlined in Section 21 of RA 9165 which governs the so-called "buy-
bust" operations.
13. It held that the police officers regularly performed their functions.
14. Aggrieved, Fernando is now before us seeking the reversal of his conviction
faulting the courts below for convicting him of the crime charged. He
questions in his Supplemental Brief: (1) the lack of pre-coordination with the
PDEA regarding the buy-bust operation, (2) the non-presentation in court of
the unnamed "civilian informant" as poseur-buyer, (3) the non-compliance
by the police officers with the prescribed procedure under Section 21, Article
II of RA 9165 and lastly, the dubious chain of custody of the subject shabu.
15. The Office of the Solicitor General (OSG) prays for the affirmance of the
appealed Decision arguing that the essential elements of the offense charged
had been adequately established and that the Fernando’s bare denial cannot
prevail over the positive and straightforward testimonies of the police
operatives who are presumed to have performed their duties regularly.
ISSUES:
1. WoN appellant Fernando Havana did in fact sell or deliver to an alleged
poseur-buyer "shabu”. -NO, his guilt is not proven beyond reasonable doubt
since there are lapses in the chain of custody of the evidence.
RULING: WHEREFORE, premises considered, the Decision of the Court of
Appeals in CA-G.R CR-HC No. 00688 dated May 31, 2010 is REVERSED and SET
ASIDE. Appellant Fernando Ranche Havana a.k.a. Fernando Ranche Abana is
hereby ACQUITTED of the charge, his guilt not having been established beyond
reasonable doubt.
The Director of the Bureau of Corrections is hereby ORDERED to
immediately RELEASE the accused from custody, unless he is held for another
lawful cause. SO ORDERED.
RATIO:
1. The appellant contends that the belated submission of the pre-operation report
to the PDEA after the buy-bust operation violates RA 9165; and that the non-
presentation of the unnamed "civilian informant" who allegedly brokered the
transaction with him casts serious doubts on the factuality of the buy-bust
operation. There is no merit in this contention.
2. We held in People v. Abedin that coordination with the PDEA is not an
indispensable requirement before police authorities may carry out a
buy-bust operation; that in fact, even the absence of coordination with the
PDEA will not invalidate a buy-bust operation. Neither is the presentation of
the informant indispensable to the success in prosecuting drug-related cases.
3. In this ultimate recourse, Fernando focuses his principal argument on the
alleged failure of the prosecution to establish a continuous and unbroken
chain of custody of the seized illegal drug and the lack of integrity of the
evidence in view of the police officers’ non-compliance with Section 21,
Article II of RA 9165.
4. "In a prosecution for illegal sale of dangerous drugs, the following
elements must be duly established: (1) proof that the transaction or sale
took place; and (2) the presentation in court of the corpus delicti or the
illicit drug as evidence."
5. The Dangerous Drugs Board Regulation No. 1, Series of 2002, defines chain
of custody as "duly recorded authorized movements and custody of
seized drugs or controlled chemicals or plant sources of dangerous drugs
or laboratory equipment of each stage, from the time of
seizure/confiscation to receipt in the forensic laboratory to safekeeping,
to presentation in court for destruction."
6. As a method of authenticating evidence, the chain of custody rule requires
that the admission of an exhibit be preceded by evidence sufficient to support
a finding that the matter in question is what the proponent claims it to be. It
would include testimony about every link in the chain, from the moment
the item was picked up to the time it is offered in evidence, in such a way
that every person who touched the exhibit would describe how and from
whom it was received, where it was and what happened to it while in the
witness’ possession, the condition in which it was received and the
condition in which it was delivered to the next link in the chain. These
witnesses would then describe the precautions taken to ensure that there had
been no change in the condition of the item and no opportunity for someone
not in the chain to have possession of the same.
7. While the testimony about a perfect chain is not always the standard because
it is almost always impossible to obtain, an unbroken chain of custody
becomes indispensable and essential when the item of real evidence is not
distinctive and is not readily identifiable, or when its condition at the
time of testing or trial is critical, or when a witness has failed to observe
its uniqueness. The same standard obtains in case the evidence is susceptible
of alteration, tampering, contamination and even substitution and exchange.
8. Measured by the foregoing yardstick, we find that the prosecution utterly
failed to establish convincingly the chain of custody of the alleged seized
plastic pack subject matter.
9. While both witnesses testified that after the sale and apprehension of the
Fernando, the poseur-buyer turned over the subject pack of shabu to their
team leader SPO1 Espenido, there is no record as to what happened after the
turn-over. SPO1 Espenido to whom the specimen was allegedly
surrendered by the poseur-buyer was not presented in court to identify
the person to whom it was given thereafter and the condition thereof
while it was in his possession and control. The prosecution did not bother
to offer any explanation for his non-presentation as a witness. This is a
significant gap in the chain of custody of the illegal stuff.
10. By PO2 Enriquez’s account, it was SPO2 Nuñez who was in possession of
the same – an account which is at loggerheads with the claim of SPO1 Cañete
that he was in custody and possession thereof and that he personally brought
the same to the police station.
11. We also take note that the testimonies of the prosecution witnesses failed to
identify the person to whom the specimen was given at the police station. All
that has been said is that the investigator, SPO2 Nuñez, marked the specimen.
But this statement did not necessarily mean that he was the same officer who
received the same from either PO2 Enriquez or SPO1 Cañete. In fact, there
is a total want of evidence tending to prove that fact. It must be recalled that
SPO2 Nuñez did not take the witness stand to identify the specific marking
on the alleged specimen.
12. True, PO2 Enriquez claimed that he personally delivered to the crime
laboratory the specimen attached to the letter-request; nonetheless, he did not
categorically testify that the substance presented in court was the very same
substance delivered to the crime laboratory for analysis.
13. PCI Salinas did not at all categorically and straightforwardly assert that the
alleged chemical substance that was submitted for laboratory examination
and thereafter presented in court was the very same substance allegedly
recovered from the appellant.
14. "[W]hile the chain of custody should ideally be perfect [and unbroken], in
reality it is not, ‘as it is almost always impossible to obtain an unbroken
chain.’" As such, what is of utmost importance "is the preservation of the
integrity and the evidentiary value of the seized items as they will be used to
determine the guilt or innocence of the accused." In the case at bench, this
{
Court finds it exceedingly difficult to believe that the integrity and
evidentiary value of the drug have been properly preserved by the
apprehending officers. The inexplicable failure of the police officers to testify
as to what they did with the alleged drug while in their respective possession
resulted in a breach or break in the chain of custody of the drug. In some
cases, the Court declared that the failure of the prosecution to offer the
testimony of key witnesses to establish a sufficiently complete chain of
custody of the shabu plus the irregular manner which plagued the handling
of the evidence before the same was offered in court, whittles down the
chances of the government to obtain a successful prosecution in a drug-
related case.
15. Here, apart from the utter failure of the prosecution to establish an unbroken
chain of custody, yet another procedural lapse casts further uncertainty about
the identity and integrity of the subject shabu. We refer to the non-
compliance by the buy-bust team with the most rudimentary procedural
safeguards relative to the custody and disposition of the seized item under
Section 21(1), Article II of RA 9165. Here, the alleged apprehending team
after the alleged initial custody and control of the drug, and after immediately
seizing and confiscating the same, never ever made a physical inventory of
the same, nor did it ever photograph the same in the presence of the
appellant from whom the alleged item was confiscated. There was no
physical inventory and photograph of the item allegedly seized from
appellant. Neither was there any explanation offered for such failure.
16. While this Court in certain cases has tempered the mandate of strict
compliance with the requisite under Section 21 of RA 9165, such liberality,
as stated in the Implementing Rules and Regulations can be applied only
when the evidentiary value and integrity of the illegal drug are properly
preserved as we stressed in People v. Guru. In the case at bar, the
evidentiary value and integrity of the alleged illegal drug had been
thoroughly compromised. Serious uncertainty is generated on the
identity of the item in view of the broken linkages in the chain of custody.
In this light, the presumption of regularity in the performance of official
duty accorded the buy-bust team by the courts below cannot arise.
 011 BALIAN v. GENERAL MOTORS (CHIQUI)
Rehearing Denied October 20, 1972 | Carton, J.A.D. | Motion Pictures
PETITIONER: Arthur Balian
RESPONDENT: General Motors, etc and Gary Allen Chevrolet, etc., and Lou
Weishupt
SUMMARY: Three days before the accident and prior to a planned trip to Montreal,
Arthur Balian had the automobile's brakes relined, the car tuned up and greased, and
a tire replaced. When Louise Balian was using the car, she and her passengers heard
a loud bang coming from under the front of the car thereby causing an accident. The
police declared that the rivet of the car was missing from the steering coupler and
the fibrous wafer separating the two parts of the coupler was torn.IThe Balians filed
a case against General Motors, claiming that the accident resulted from
displacement of a rivet in the steering coupler, which in turn tore the fibrous wafer,
making the car unsteerable and causing the driver to lose control. The jury ruled
against the Balians. Subsequently, the Balians appealed to the Superior Court of
New Jersey that the trial court improperly admitted into evidence motion pictures
taken during the course of the trial (Fact #13 and #14). W/N the motion pictures
should be admitted – NO, General Motors failed to give notice and opportunity to
examine the experiment and filming to the Balians. General Motors knew from the
-
outset that Balian claimed the accident resulted from a malfunction in the steering
mechanism. With such knowledge we see no reason why it could not have prepared
the movie before trial and offered the Balians an opportunity to see it. By waiting
until the eleventh hour it was thus able to prepare the movie without the knowledge
of its adversaries and without giving them any opportunity to prepare a rebuttal.
Even if it be assumed that emergency preparation during the course of the trial was
unavoidable, the Balians should have been given notice and an opportunity for their
expert to monitor the preparation of the movie. Viewing the movie on the following
trial day hardly provided a sufficient opportunity to prepare a rebuttal. In this case
General Motors significantly gave no notice to the Balians of its intention to conduct
the first experiment and to take moving pictures of it, nor of its subsequent plan to
conduct another test in order to remedy deficiencies in the first one and to exhibit
motion pictures of that test in conjunction with Spalding's already completed direct
testimony.
DOCTRINE: Authentication of motion pictures ordinarily includes (1) evidence as
to the circumstances surrounding the taking of the film; (2) the manner and
circumstances surrounding the development of the film; (3) evidence in regard to
the projection of the film; and (4) testimony by a person present at the time the
motion pictures were taken that the pictures accurately depict the events as he saw
them when they occurred.
Fundamental fairness dictates that the party proposing to offer such evidence give
notice thereof and an opportunity to his adversary to monitor the experiment and the
taking of the film.
FACTS:
1. Louise Balian and other members of her family sustained injuries when a
1965 Chevrolet Impala she was driving on the New York Thruway veered
off the side of the road and struck a pole.
2. Arthur Balian purchased the 1965 Chevrolet Impala new on December 4,
1964. At various times between that date and the occurrence of the accident
the car was serviced by the dealer, who also made repairs and adjustments
pursuant to the driver's manual supplied by the manufacturer. Three days
before the accident and prior to a planned trip to Montreal, the owner had the
automobile's brakes relined, the car tuned up and greased and a tire replaced.
3. The Balians left their home in Teaneck, New Jersey, picked up another
passenger in New Milford, drove to Route 17, and then proceeded to the New
York State Thruway. Louise, who had received her New Jersey driver's
license about two months before, was driving.
4. They had traveled about ten miles on the Thruway when the accident
occurred. According to the their proofs, at that time the car was going about
50-55 miles per hour. The occupants of the car heard a "bang", "clang" or
some other noise coming from under the front of the car. It was described as
sounding like metal was striking metal.
5. At this point the driver lost her ability to control the car. Despite her attempt
to turn the steering wheel and direct the car in another direction, it headed
towards the shoulder of the road, striking a metal pole supporting an overhead
sign.
6. Immediately after the accident Trooper McDonnell of the New York State
Police arrived on the scene. After questioning Louise, he lifted the hood and
examined the steering mechanism. His examination revealed that a rivet was
missing from the steering coupler and the fibrous wafer separating the two
parts of the coupler was torn.
a. The steering coupler connects two sections of the steering column.
It consists of metal flanges located on the ends of the steering
column sections which face each other. The flanges are separated by
a fibrous wafer. One of the metal flanges is attached to the wafer by
two metal nuts and bolts. The corresponding flange attached to the
opposite section of the column is connected to the same wafer by
two rivets. The function of the coupler is to hold the two parts of the
steering column together while allowing sufficient flexibility to
absorb road shock.
7. The Balians brought this action against General Motors Corporation and
others, claiming that the accident resulted from displacement of a rivet in the
 steering coupler, which in turn tore the fibrous wafer, making the car
unsteerable and causing the driver to lose control.
8. The jury returned a verdict in favor of General Motors.
9. The Superior Court of New Jersey, Appelleate Division is concerned here
only with Balian’s appeal from the judgment in favor of General Motors, the
manufacturer of the automobile.
a. The trial, although a lengthy one, was limited as to liability only and
devoted largely to technical testimony of expert witnesses
concerning the design and function of the coupler and related parts
of the automobile steering mechanism, whether it was defectively
designed, and whether the defective condition resulted from the
accident.
10. Balian’s expert expressed the opinion that the coupler was improperly
designed. General Motors’ expert denied this. In the latter's opinion, the
damage to the coupler was attributable to the impact of the accident.
Furthermore, he contended that the accident could not have happened in the
manner indicated by Balian’s expert.
11. The main basis of Balian’s appeal is that the trial court, over objection,
improperly admitted into evidence motion pictures taken during the course
of the trial.IThese pictures showed the operation of a 1965 Impala in a test at
General Motors’ proving grounds. pThe film was made at the direction of
General Motors’ expert for the purpose of confirming his contention
a. At Balian’s request, a Mr. Daniel Fivehouse, an automotive and
front-end expert, examined the car. He testified that the rivet
described by Trooper McDonnell was missing at that time and that
the fibrous wafer was torn. He said that the two parts of the steering
coupler were no longer symmetrical. He was of the opinion that
when the fibrous wafer was torn and the rivet missing there would
be no steering control.
b. Balian also produced Huxley Madeheim, an expert in mechanical
engineering and in the design and function of the steering coupler.
He expressed the opinion that a rivet holding the steering coupler
came out, causing the flanges to lose contact and symmetry. The car
then became unsteerable, resulting in the driver losing control. It
was his opinion that this condition had existed prior to and not as a
result of the force of the car striking the pole. This witness, a full
professor of engineering at City University of New York, was also
of the opinion that the coupler was improperly designed for the
reason that it should have been made with four nuts and bolts rather
than two nuts and bolts and two rivets, and that had the coupler been
so constructed the accident would not have occurred.
12. General Motors introduced:
a. Charles Spalding, an expert engineer in the field of steering
apparatus and employed in a division of General Motors which
manufactures steering gear and other accessories for automobiles,
was the only witness called by General Motors. He described in
considerable detail the function and operation of the coupler in the
automobile, using numerous drawings and designs for this purpose.
i. He believed that the damage found by Trooper McDonnell
and the witness Fivehouse resulted solely from the force of
the impact. He stated that such a condition did not cause
and could not cause the car to go out of control and that the
automobile would be steerable without the missing rivet
and with the wafer torn. He also described the first of the
two tests conducted at General Motors’ proving grounds
during the course of the trial.
b. For inspection by the court and jury, a replica of the steering coupler
said to be the type used in 1965 Impalas. The actual coupler involved
in the accident was not produced in court.
13. The judge and counsel viewed the movie in chambers. The court ultimately
ruled that such motion pictures were inadmissible because General Motors
had failed to establish that the conditions were comparable. The court then
instructed the jury to disregard all testimony concerning the preparation of
the experiment and the motion picture taken of it.
14. Spalding and their counsel conducted another test of a 1965 Impala. Ruling
that General Motors had remedied the deficiencies present in the previous
test, the court decided that the conditions were comparable. Therefore the
court held that the second set of motion pictures could properly be shown to
the jury for consideration in determining the issue of defendant's liability. The
motion pictures of that test were then exhibited to the jury.
ISSUE/s:
1. W/N the motion pictures should be admitted – NO, General Motors failed to
give notice and opportunity to examine the experiment and filming to the
Balians.
RULING: The judgment in favor of defendant General Motors Corporation and
against plaintiffs is reversed. The judgment in favor of Gary Allen Chevrolet is
affirmed since on oral argument plaintiffs abandoned any claim against that defendant.
Petition for rehearing and recall of judgment denied.
RATIO:
{
1. It is well settled that relevant motion pictures are generally admissible if
properly authenticated.
2. New Jersey case has articulated the basis or requirements for their
admissibility, the courts of this State have on numerous occasions permitted
their use apparently on the same rationale. For example, in a personal injury
case motion pictures depicting a claimant engaged in various physical
activities have been received in evidence to show on the one hand the extent
 of disability and on the other to demonstrate that the injuries are neither
permanent nor as extensive as claimed.
3. Authentication of motion pictures ordinarily includes (1) evidence as to
the circumstances surrounding the taking of the film; (2) the manner and
circumstances surrounding the development of the film; (3) evidence in
regard to the projection of the film; and (4) testimony by a person
present at the time the motion pictures were taken that the pictures
accurately depict the events as he saw them when they occurred.
4. Here the court made a finding that the film was properly authenticated and
although not all the points above mentioned are clearly manifested in the
record, technical objections to the film appear to have been waived. General
Motor’s expert was present in court. The record indicates he was in charge of
the making of the film and that he was cross-examined by Balian’s counsel
concerning the making of the film.
5. So far as experiments or tests are concerned, admissibility of evidence
concerning them would appear to be within the area of judicial
discretion and turns on whether the experiment was conducted under
conditions and circumstances similar to those actually existing in the
case.
6. Such evidence is usually held competent * if there is a substantial
similarity between the conditions existing at the time of the occurrence
complained of and when the experiments are made.
7. Thel existence of identical conditions is not necessary;ldissimilarity, when not
so marked as to confuse and mislead the jury, going to the weight rather than
the admissibility of the evidence. In the very nature of things, much must
be left to the discretion of the trial judge, and when such discretion has
not been abused reviewing courts will not interfere.
8. We perceive no inherent objection to the admissibility of motion pictures of
an experiment. Such evidence, in our opinion, is entirely proper when
relevant and its probative value is not offset by undue prejudice, unfair
surprise, undue consumption of trial time, or possible confusion of issues
due to the introduction of collateral matters.
9. The film in question was generally relevant inasmuch as it tended to negate
Balian’s contention and to support that of General Motors. Its relevance was
to be tested by its probative value with respect to the points in issue.
Proximate cause was clearly an issue.
10. Here the degree of relevancy of the motion pictures presents a more difficult
{ problem. There is support in the record for the trial court's finding that the
experiment was substantially similar to the actual facts surrounding the
accident. That finding does not negate the fact that a motion picture of an
artificial reconstruction of an occurrence may be very weak evidence.
{
11. In this case the motion picture did not portray the actual automobile
involved in the accident; nor did it show Balian’s actual operation.
Indeed, it may be virtually impossible to recreate a particular
automobile which has suffered a variety of different and unknown
stresses and strains or perhaps enjoyed meticulous care.
12. Hence, its reliability, as identical with the original scene, is decreased and
may be minimized to the point of worthlessness.
13. Thus any movie is a manufactured, self-serving piece of evidence. It is true,
of course, that all evidence may be said in one sense to be self-serving.
However, not all evidence is a staged production whose finale is not only
hoped for but very much a part of the script.
14. The danger of undue prejudice as a result of the jury's placing inordinate
weight on the moving pictures is always present in light of the
tremendous dramatic impact of motion pictures.
15. The requirement for authentication inevitably adds some degree of
cumulative impact on the fact-finder. That impact is considerably increased
in this case since the moving pictures were not only concededly designed to
lend strength and support to General Motor’s version of how the accident
happened. They were also cumulative to General Motors expert's expressed
opinion as to the cause of the accident and his description of the two sets of
tests which had been filmed.
16. We also consider that the jury might have been confused by collateral issues
presented in the film. The theme of General Motor’s offer of the proof was
that it tended to demonstrate the correctness of General Motor’s expert's
contention that the automobile was operable notwithstanding the loss of the
rivet and the existence of a torn wafer.
a. The offer thereby tended to refute the hypothesis expounded by
Balian’s expert. The film seems to go beyond this. The first
sequence showed a 1965 Impala being operated with a rivet missing
from a steering coupler and its wafer torn. The third showed a 1965
Impala operating with a steering coupler whose rivet and wafer were
missing. The first did not embrace both elements of the alleged
defect. The third went beyond the conditions upon which plaintiffs'
expert's hypothesis was founded. As such, the motion pictures
tended to present collateral issues which might have confused the
jury.
17. The Balians had no prior knowledge of the first experiment or of the motion
picture taken of it. It is evident that they had no suspicion that during the
weekend, after the results of the first test had been held inadmissible, General
Motor’s expert, along with their lawyer, would journey to General Motors
proving grounds in order to repeat the experiment.
a. The Balians can hardly be criticized for assuming that this issue was
at rest. One would normally not expect an adversary to be able to
present such evidence in an effort to reopen the question, or if able
to do so, to proceed with its preparation without apprising his
adversaries that such was his intention.
18. Significantly, in the case at bar the Balians procured an order requiring
General Motors to submit to the former a copy of their expert's reports.
General Motor’s position at the trial and here is that the movies were not
reports and not therefore covered by the order. Such an interpretation appears
extremely narrow. The movie reflected the expert's opinion in refutation of
the Balian’s theory of the case.
a. The rules should probably be clarified in this respect. Since use of
motion picture equipment is becoming commonplace, consideration
should also be given to the desirability of adopting rules of wider
application in discovery and relating to use and admissibility of
motion pictures of reconstructed or simulated events such as those
involved in the present case.
b. We are not impressed with General Motor’s further argument that
even if the films were considered experts reports, the order could
not literally be complied with because the film was not in existence
before the trial, nor with its assertion that it could not make the
movie before trial because it was not aware of the precise theory
upon which plaintiffs were proceeding until their expert, Madeheim,
testified.
c. These arguments ignore the spirit of the order which was entered
just before the trial and place a premium on technicalities. General
Motors knew or could readily have known the Balian’s theory of the
accident through available discovery proceedings. Indeed, it is
inconceivable to us that in a case of this magnitude General Motors
would not be fully aware of the basis of Balian’s claim.
d. General Motors knew from the outset that Balian claimed the
accident resulted from a malfunction in the steering mechanism. It
had in its possession a copy of Trooper McDonnell's report of the
accident which contained a statement that the "operator lost control
due to malfunction of the steering mechanism." It had also received
a copy of the report of plaintiffs' witness Fivehouse in which
reference was made to the steering coupler.
e. With such knowledge we see no reason why it could not have
prepared the movie before trial and offered the Balians an
opportunity to see it. By waiting until the eleventh hour it was thus
able to prepare the movie without the knowledge of its adversaries
and without giving them any opportunity to prepare a rebuttal.
19. A motion picture in the eyes of the jury is one of most spectacular forms
of evidence. It is cumulative in nature. There are inherent dangers in its
preparation and presentation. Effective rebuttal can only be had if
opposing counsel and his expert are given an adequate opportunity to
meet such evidence. We do not consider that cross-examination alone would
ordinarily provide a sufficient avenue of rebuttal to the adverse party.
20. Fundamental fairness dictates that the party proposing to offer such
evidence give notice thereof and an opportunity to his adversary to
monitor the experiment and the taking of the film.
21. This is especially true in this case. Even if it be assumed that emergency
preparation during the course of the trial was unavoidable, the Balians should
have been given notice and an opportunity for their expert to monitor the
preparation of the movie. Viewing the movie on the following trial day hardly
provided a sufficient opportunity to prepare a rebuttal.
22. In this case General Motors significantly gave no notice to the Balians of its
intention to conduct the first experiment and to take moving pictures of it,
nor of its subsequent plan to conduct another test in order to remedy
deficiencies in the first one and to exhibit motion pictures of that test in
conjunction with Spalding's already completed direct testimony.
23. In light of all the circumstances, we conclude that the motion pictures should
have been excluded from exhibition to the jury and from admission into
evidence, and that the failure to do so requires a reversal. In the event of any
retrial of this case, the admissibility of any motion pictures of experiments
should be determined in accordance with the principles expressed in this
opinion.
In the petition for rehearing:
1. General Motors claims that there was no factual support for the Appellate
Division's conclusion that General Motors neither gave the Balians notice of
its intention to conduct an experiment nor an opportunity to monitor the
filming thereof. The asserted basis of this application was General Motors’
counsel had in fact "irrevocably indicated to all concerned his intention to
once again film the experiment * * * in order to cure the deficiencies found
by the court to exist in the first film," and in fact had "invited plaintiff's
counsel to observe the conduct and film of these tests."
2. The trial judge testified that he believed no such offer had been made. The
remand judge concluded that, although some conversations took place, he
was unable to find that an understanding was arrived at by the respective
counsel which would indicate that General Motors’ counsel had "informed
the Balians of his intention to conduct a certain experiment and to take motion
pictures thereof for the purpose of introducing said films into evidence." He
added: "Nor can I find that defendant, General Motors, afforded the Balians
an opportunity to monitor such experiment and the making of the film."
3. We have carefully reviewed the evidence taken on the remand and the
findings and conclusions of the court thereon. We are satisfied that they are
fully supported by the record. We are not persuaded by General Motors’
argument that the court's conclusions are against the weight of the evidence
or inconsistent with its findings.
 012 Jose v. CA (VALLE)
18 Jan 2000 | Mendoza, J. | Rules of Admissibility - Photographs
PETITIONER: Armandao Jose y Paz and Manila Central Bus Lines (MCL)
represented by its General Manager Mr. Danilo T. De. Dios
RESPONDENTS: Court of Appeals, Rommel Abraham represented by his father
Felixberto Abraham, Jose Macarubo and Mercedes Macarubo
SUMMARY:
Bus 203 and a Ford Escort collided with each other one night.' Bus 203 was driven
by Jose Iwhile the Ford was driven by Macarubo with Abraham as the passenger.l
The Ford sustained serious damagel while Macarubo died, and Abraham became
blind in the left eye with fractures on his forehead.l
Pictures taken of the two vehicles show that the MCL bus was at its proper lane
while the Ford was positioned diagonally and crossed the line of MCL. The TC
ruled in against Juanita Macarubo. lOn Appeal, the CA said that the TC erred in
relying on the pictures which were taken an hour after the collision as within that
time, the positions could have been changed, that the photos do not show that the
Ford was overtaking and that John was negligent.l
The issue is WoN the pictures can be considered as sufficient evidence.
The SC held that it is considered as sufficient evidence.
In this case, the positions of the vehicles, as shown in the photos taken by the bus
company line inspector about 1h 15m after the collision disputes Abraham’s self-
serving testimony that the 2 vehicles collided because the bus invaded the lane of
the Ford. It clearly shows that the case is exactly the opposite of what he claimed
happened. The photographs show clearly that the bus was in its proper lane and
the Ford was the one which usurped a portion of the opposite lane.
The Supreme Court also noted that the bus could not have been overtaking when
the collision happened. It was filled with passenger and it was considerably
heavier and larger than the Ford. lIf it was overtaking, it necessarily had to
accelerate. The acceleration of its speed and its heavy load would have greatly
increased its momentum so that the impact of the collision would have thrown the
smaller and lighter Ford Escort to a considerable distance from the point of impact.
But the photos however, shows that the Ford Escorts smashed hood was only about
one or two meters from Bus’s damaged left front.
DOCTRINE:
Phsycial evidence is a mute but an eloquent manifestation of truth, and it ranks
high in our hierarchy of trustworthy evidence. In criminal cases such as murder or
rape where the accused stands to lose his liberty if found guilty, the Supreme Court
has, in many occasions, relied principally upon physical evidence in ascertaining
the truth.
In People v. Vasquez, where the physical evidence on record ran counter to the
testimonial evidence of the prosecution witnesses, the court ruled that the physical
evidence should prevail.
FACTS:
13. Manila Centrak Bus Lines (MCL) is the operator lessee of a public utility bus
(Bus 203) with plate number NVR-III-TB-IL and body number 203. Bus 203
is owned by the Metro Manila Transit Corporation and insured with the GSIS.
14. At around 6am, Bus 203 driven by Armandao Jose collided with a red Ford
Escort driven by Macarubo on MacArthur highway. Buz 203 was bound for
Muntinlupa while the Ford was headed towards Malanday, Valenzuela.
15. The left side of the of the Ford’s hood was severely damaged while John
Macarubo, the driver and its passenger, Rommel Abraham, were injured. The
driver and conductress of Bus 203 rushed MAcarubo and Abraham to Fatima
Hospital where Macarubo lapsed into a coma.
16. Despite surgery, Macarubo failed to recover and died 5 days later. Abraham
survived but became blind on the left eye which had to be removed. He also
sustained a fracture on the forehead and multiple lacerations on the face. He
was hospitalized for a week.
17. Abraham, represented by his father, Felixberto, filed a case for damages
against MCL and Jose in the RTC of Valenzuela.
18. Parents of the deceased, Macarubo, Spouses Macarubo filed their own suit
for damages in the same trial court against MCL alone. MCl filed a third-
party complaint against Juanita MAcarubo, the registered owner of the Ford,
on the theory that John Macarubo (the one who died) was negligent and that
he was the authorized driver of Juanita. Juanita filed a counterclaim for
damages against MCL for the damage to her car.
19. The cases were consolidated and tried jointly.
20. The trial court found these facts:
21. Abraham and Macarubo were at a party during the night previous the
accident. There was no sleep for them and the service of drinks cannot be
discounted. After the party at 11pm, the car encountered mechanical trouble
and had to be repaired since its cross-joint was detached. The defect is not
minor and repair lasted up to early dawn and the car started to run only after
5am. With lack of sleep, the strains of a party still on their bodies, and the
attention to the repair coupled with the wait until the car was ready to run, are
potentials in a driver for possible accident.
22. The accident was at 6.15 am when the mental and physical condition of
Macarubo was not fit for driving. The desire to be home quick could have
prompted him to overtake the preceeding vehicle.
23. Pictures taken of the two vehicles show that the MCL bus was at its proper
 lane while the Ford was positioned diagonally and crossed the line of MCL.
The trial court is convinced of the supervision and control of MCL and its
exercise of due diligence. The court noted the damages of the vehicles and
from the damages in the pictures, it can be deduced which vehicle did the
bumping. It was the Ford car.
24. The Trial court ruled against Juanita Macarubo and ordered her to pay MCL
54, 232.12 as actual damages, 24K for lost income, and 10K for atty’s fees.
25. Abraham, Spouses Macarubo and Juanita Macarubo appelaed to the CA. The
CA reversed the TC decision and held that the TC erred in disregarding
Abaraham’s uncontroverted testimony that the collision was because of the
driver of Bus 203, that the TC erred in relying on the pictures which were
taken an hour after the collision as within that time, the positions could have
been changed, that the photos do not show that the Ford was overtaking and
that john was negligent, and finally that MCL failed to make a satisfactory
showing that it exercised due diligence.
26. MCl and Armando Jose filed a petition for review on certiorari.
ISSUE/s:
5. WoN the pictures are sufficient evidence – YES, because Abraham’s self-
serving testimony that the 2 vehicles collided because the bus invaded the
lane of the Ford. It clearly shows that the case is exactly the opposite of what
he claimed happened. The photographs show clearly that the bus was in its
proper lane and the Ford was the one which usurped a portion of the opposite
lane.
RULING: WHEREFORE, the decision of the Court of Appeals is REVERSED and
the complaints filed in Civil Cases Nos. 2206-V-85 and 24428-V-86 against Manila
Central Bus Lines and Armando Jose, as well as the third-party complaint filed in
Civil Case No. 2206-V-85 against Juanita Macarubo, are hereby DISMISSED.
SO ORDERED.
RATIO:
29. The TC was justified in relying on the photos rather than Abraham’s
testimony which is obviously biased and unsupported by other evidence.
Phsycial evidence is a mute but an eloquent manifestation of truth, and
it ranks high in our hierarchy of trustworthy evidence. In criminal cases
such as murder or rape where the accused stands to lose his liberty if found
guilty, the Supreme Court has, in many occasions, relied principally upon
physical evidence in ascertaining the truth. In People v. Vasquez, where the
physical evidence on record ran counter to the testimonial evidence of the
prosecution witnesses, the court ruled that the physical evidence should
prevail.
30. Here, the positions of the two vehicles as shown in the phoros taken by MCL
line inspector Custodio about an hour and fifteen minutes from the collision
disputes Abraham’s self-serving testimony that it was Bus 203 who invaded
the lane. ontrary to Abrahams testimony, the photographs show quite clearly
that Bus 203 was in its proper lane and that it was the Ford Escort which
usurped a portion of the opposite lane.
31. The three photographs show the Ford Escort positioned diagonally on the
highway, with its two front wheels occupying Bus 203s lane. As shown by
the photograph, the portion of MacArthur Highway where the collision took
place is marked by a groove which serves as the center line separating the
right from the left lanes.
32. The photograph shows that the left side of Bus 203 is about a few feet from
the center line and that the bus i positioned parallel thereto. This negates the
claim that Bus 203 was overtaking another vehicle and, in so doing,
encroached on the opposite lane occupied by the Ford Escort
33. Bus 203 could not have been overtaking another vehicle when the collision
happened. It was filled with passengers, and it was considerably heavier and
larger than the Ford Escort. If it was overtaking another vehicle, it necessarily
had to accelerate. The acceleration of its speed and its heavy load would have
greatly increased its momentum so that the impact of the collision would have
thrown the smaller and lighter Ford Escort to a considerable distance from
the point of impact.
34. The photo, however, shows that the Ford Escorts smashed hood was only
about one or two meters from Bus 203s damaged left front. If there had been
a great impact, such as would be the case if Bus 203 had been running at a
high speed, the two vehicles should have ended up far from each other.
35. The SC agreed with the CA when the Ca said that it found it inconceivable
that the car, occupying the lane without any traffic, would overtake and
traverse a heavy traffic lane.
36. Abraham also testified that the night before the accident, he and John went to
a friend’s house where they stayed until 11pm. Abraham’s explanation as to
why they did not reach Valenzuela until six oclock in the morning of the next
day when the accident happened indicates that the Ford Escort careened and
slammed against Bus 203 because of a mechanical defect. (see end of digest
for the whole testimony of Abraham).
37. Abraham himself admitted that the Ford’s rear-cross joint was cut. This
mechanism controls the rear tires. Since trouble in the cross-joint affects the
maneuverability, it should have been treated as a serious mechanical problem.
38. In this case, Abraham said that “Ginawaan ng paraan, ma’am” when asked
if they were able to repair the cross-joint. It was simply welded so they could
reach home. This testimony indicates that it was hastily repaired and the
repairs were merely temporary; just enough for them to reach home. Given
such fact, there is a likelihood that while the Ford might not have been
overtaking, it actually strayed into the bus lane because of the defective cross-
joint.
 39. The CA refused to give credence to the physical evidence on the ground that
the photographs were taken an hour after the collision and that within such
span of time the bus could have been moved because there was no showing
that the driver left the scene of the accident. This is not correct. Constancia
Gerolada, Bus 203’s conductress, testified that, immediately after the
collision, she and the bus driver took the injured driver and passenger of the
Ford Escort to the Fatima Hospital. This is not disputed.
40. Abraham mentioned in his appellant’s brief a sketch of the scene which
shows Bus 203 to be occupying the Ford’s lane. This was not presented in
evididence in the trial court or that the Patrolman who prepared this was ever
presented as witness. Under Rule 132, 3 of the Rules on Evidence, courts
cannot consider any evidence unless formally offered by a party.

issue on due diligence and presumption of negligence of MCL

1. Under the circumstances of the case, proof of due diligence in the selection
and supervision of employees is not required. The responsibility of employers
is premised upon the presumption of negligence of their employees.
2. In Poblete v. Fabros, the negligence of the employee gives rise to the
presumption of negligence on the part of the employer. This is the presumed
negligence in the selection and supervision of the employee.
3. In this case, private respondents failed to prove their allegation of negligence
against driver Armando Jose who, in fact, was acquitted in the case for
criminal negligence arising from the same incident.
 013 STATE v. TATUM (VICENCIO)
April 6, 1961 | Donworth, J. | Rule 130, Sec. 1
PETITIONER: State of Washington
RESPONDENTS: Ralph Tatum
SUMMARY: William Tousin received monthly welfate checks from the state of
Washington. In Feb. 1960, he did not receive his check, which was generally mailed
in a rooming house in Pasco where Tousin resided. It was discovered that Tousin’s
February check for $28.90 was endorsed and cashed at a food store by someone other
than him, the supposed payee.I An employee of that store, Caroline Pentecost,
testified about the regiscope process in the store: when a check is presented to her,
she inserts it into a Regiscope machine which photographs both the check and the
person facing the machine. When the regiscope film was developed, the processed
film shows the person of Ralph Tatum, a person who also resides in the rooming
house with Tousin. l Tatum was charged and found guilty of first-degree forgery.
Tatum contests the admission in evidence of the negative and print Regiscope films.
l (from his waist up) with the food store in the background.
Issues: Were the Regiscope films (the negative and the print) authenticated
sufficiently to warrant their admission into evidence? YES. The testimonies of both
witnesses Pentecost and Phillip Dale on the Regiscope process is sufficient. (See
-
Doctrine No. 1)
Did Phillip Dale, the Regiscope distributor, qualify as an expert witness with respect
to the filming process despite the fact that he was not a photographer by profession?
YES. Dale’s testimony that he personally developed four to five hundred thousand
films makes him qualified. The fact that he was not a professional photographer did
not disqualify him as an expert witness. (See Doctrine No. 2)
DOCTRINES: 1. What quantum of authentication do courts require before a
photograph may be admissible in evidence? It is simply this that some witness (not
necessarily the photographer) be able to✓give some indication as to when,lwhere,land
under what circumstances the photograph was taken, and that the photograph
✓ accurately portray the subject or subjects illustrated.
2. The question of whether or not a witness is qualified to express an expert opinion
lies within the sound discretion of the trial court.
FACTS:
1. One William Tousin, of Pasco (where he lives), received monthly welfare
checks from the state of Washington.
2. In February, 1960, Tousin did not receive his check (the checks were
generally mailed to a rooming house in Pasco where Tousin resided.) The
mail was normally left on a window ledge in the hallway of the rooming
house.
3. Appellant Ralph Tatum resided at the same place. Tousin's February check
for $28.90 was endorsed and cashed at Sherman's Food Store in Pasco by
someone other than the payee, Tousin.
4. An employee of the store, Caroline Pentecost, testified that although she
could not specifically recall the above-mentioned transaction, the initials
appearing on the face of the check were hers.
5. She also testified that whenever a check was presented to her for payment at
the store, the store manager had instructed her to initial it and then insert it
into a "Regiscope" machine. This machine is designed to simultaneously
photograph, through two separate lenses, both the check and the person
facing the machine.
6. When it was discovered that the endorsement of the payee was a forgery, the
Regiscope film of the transaction was sent to the Regiscope distributor in
Portland to be developed.
7. The processed film shows both the check and the person of Ralph Tatum
8. Upon the trial, both the negative and the print therefrom were admitted in
{ evidence, over Tatum’s objection.
9. Ralph Tatum was convicted of the crime of first-degree forgery and was
sentenced to life imprisonment as an habitual criminal.
10. Tatum appealed to the Supre Court of Washington. (Note: this is the whole
case.)
ISSUE/s (as stated in the case itself):
1. Were the Regiscope films (the negative and the print) authenticated
sufficiently to warrant their admission into evidence? YES. The testimonies
of both witnesses Pentecost and Phillip Dale on the Regiscope process is
sufficient.
2. Did Phillip Dale, the Regiscope distributor, qualify as an expert witness with
respect to the filming process despite the fact that he was not a photographer
by profession? YES. Dale’s testimony that he personally developed four to
500 thousand films makes him qualified.
RULING: The judgment of the trial court is affirmed.
RATIO:
1. At the outset, with respect to the question of the admissibility of the
Regiscope films, it should be noted that this court has for many years
encouraged the admission and use of demonstrative evidence, including
photographs.
2. There is equally well-established precedent for the proposition that the
admission or rejection of photographs as evidence lies within the sound
 discretion of the trial court.
3. We have also held that the trial court's discretion extends to the sufficiency
of identification.
4. What quantum of authentication do courts require before a photograph

I
may be admissible in evidence? It is simply this that some witness (not
necessarily the photographer) be able to give some indication as to when,
where, and under what circumstances the photograph was taken, and
that the photograph accurately portray the subject or subjects
illustrated.
5. The photograph need only be sufficiently accurate to be helpful to the court
and the jury.
6. Witness Pentecost testified that she recognized the background shown in the
picture as that of the food store, and, as mentioned previously, she also
testified as to the store's standard procedure of "regiscoping" each individual
who cashed a check at the store. Phillip Dale testified at length concerning
the Regiscope process.
7. The testimony of these two witnesses taken together amounted to a
sufficient authentication to warrant the admission of the photograph
(both the print and the negative) into evidence.
8. The authentication supplied by the testimony summarized above, of course,
did not preclude Tatum from attempting to prove that the individual portrayed
was someone other than appellant (Tatum), that the photograph was
inaccurate in one or more respects, that Tatum was somewhere else at the
moment the photograph was taken, or any other such defense.
9. But these arguments go to the weight rather than to the admissibility of the
exhibits in question.
10. In our opinion, the Regiscope exhibits, coupled with the other evidence
produced by the state, sufficed to establish a prima facie case of first-degree
forgery.
11. The second question (whether or not witness Dale properly qualified as an
expert witness respecting the Regiscope process) presents less difficulty.

{
12. The fact that Dale was not a professional photographer and may have
not understood all of the technical details of the process, did not, from
an evidentiary standpoint, disqualify him from expressing an opinion in
his testimony as to the possibility of altering a given Regiscope print.
13. This court has many times held that the question of whether or not a witness
is qualified to express an expert opinion lies within the sound discretion of
the trial court.
14. In view of witness Dale’s testimony that he personally had developed
“four to five hundred thousand” individual Regiscope films, we hardly
think that the trial court abused its discretion in this regard.
 014 SISON v. PEOPLE (YAP)
16 November 1995 | Puno, J. | Rules of Admissibility
G.R. NOS. 108280-83
PETITIONER: Romeo Sison, Nilo Pacadar, Joel Tan, Richard De Los Santos, and
Joselito Tamayo
RESPONDENTS: People of the Philippines and CA
G.R. NO. 114931-33
PETITIONER: People of the Philippines
RESPONDENTS: Annie Ferrer, Romeo Sison, Nilo Pacadar, Joel Tan, Richard
De Los Santos, and Joselito Tamayo
SUMMARY: The newly-installed government of Cory Aquino was being
challenged by rallies, demonstrations and other public fora by Marcos loyalists. A
rally was scheduled at Luneta, but the Marcos loyalists were denied a permit
therefor. When policemen arrived at the rally, a commotion ensued which led to the
arrest of Annie Ferrer (a popular starlet and Marcos loyalist) and the alleged murder
of Salcedo (he was mauled and declared dead on arrival at PGH after refusal in
Manila Medical Center), who was wearing a yellow shirt at that time. Several
information were filed against herein accused-appellants. l The prosecution
submitted testimonies of Ranulfo Sumilang and Renato Banculo, along with
photographs taken during the incident, there being bystanders and several press
people, both local and foreign. This incident prompted an investigation for which a
PHP10,000 was announced for people who would give leads to the assailants.
Herein accused-appellants were convicted of murder in the trial court and the CA.
In this appeal, they mainly claim that the CA erred in sustaining the testimonies of
Sumilang and Banculo because they are unreliable, doubtful and do not deserve any
credence. According to tem, the testimonies of these 2 are suspect because they
surfaced only after a reward was announced by the General On the witness stand,
Banculo mistakenly identified a detention prisoner in another case as accused
Rolando Fernandez. Sumiling, on the other hand, was evasive and unresponsive
prompting the trial court to reprimand him several times.
The pertinent issue is whether the pieces of evidence presented by the prosecution
(testimonies and photographs) are credible/admissible.
The SC ruled in the affirmative. First, evidence shows that Sumilang already
reported the incident to the police and offered his help within just 2 hours after the
incident, way before announcement of the PHP10,000 reward. Second, Sumilang’s
evasiveness on the witness stand does not render his whole testimony incredible,
there being instances when he properly testified, and which the Court duly admitted
in evidence. (Doctrine 1). Third, Banculo’s mistake in identifying another person
as one of the accused does not make him an entirely untrustworthy witness.
(Doctrine 2).lFourth, the use of these photographs by some of the accused to show
their alleged non-participation in the crime is an admission of the exactness and
accuracy thereof. The photographs are faithful representations of the mauling
incident. This was affirmed when appellants identified themselves therein and gave
reasons for their presence thereat. The absence of the 2 appellants in the
photographs does not exculpate them. lThe photographs did not capture the entire
sequence of the killing of Salcedo but only segments thereof.l (Doctrine 3).
DOCTRINE 1: Except for compelling reasons, the SC cannot disturb the way trial
courts calibrate the credence of witnesses considering their visual view of the
demeanor of witnesses when on the witness stand. As trial courts, they can best
appreciate the verbal and non-verbal dimensions of a witness’s testimony.
DOCTRINE 2: Perfect testimonies cannot be expected from persons with
imperfect senses. In the court’s discretion, the testimony of a witness can be
believed as to some facts but disbelieved with respect to the others.
DOCTRINE 3: Photographs can be identified by the photographer or by any other
competent witness who can testify to its exactness and accuracy.
FACTS:
1. This was the time when the newly-installed government of Cory Aquino was
being openly challenged in rallies, demonstrations and other public fora by
Marcos loyalists, supporters of deposed Ferdinand Marcos.
2. Several information were filed in court against 11 persons identified as
Marcos loyalists, charging them with the murder of Salcedo.
a. A rally was scheduled to be held at Luneta by Marcos loyalists, but
they were not issued a permit therefor. When policemen came and
asked for their permit, Atty. Lozano and Atty. Nuega shouted
“Gulpihin ninyo ang lahat ng mga Cory infiltrators” and “Sige, sige
gulpihin niyo!”
b. Annie Ferrer, a popular movie starlet and Marcos supporter was
jogging in the area and later shouted “Marcos pa rin, Marcos pa rin,
pabalikin si Marcos, pabalikin si Marcos, bugbuging ang mga
nakadilaw!”
c. When Annie Ferrer was arrested by the police. This enraged the
Marcos loyalists and a commotion ensued.
d. A man wearing a yellow t-shirt, Salcedo, was then being chased by
the accused Marcos loyalists. They pursued him, boxed him, and
kicked him. He was brought to Medical Center Manila but he was
refused admission. He died upon arrival at the Philippine General
Hospital.
 3. The mauling of Salcedo was witnessed by bystanders and several press
people, both local and foreign. They took pictures and a video of the event
which became front-page news the following day, caputirng national and
international attention. Cory Aquino tasked the Western Police district to
investigage the incident, and a PHP10,000 reward was put up for persons who
could give information leading to the arrest of the killers.
a. Several persons, including Ranulfo Sumilang and Renato Banculo
cooperated with the police, and on the basis of their identification,
several persons, including the accused, were apprehended and
investigated.
4. The accused were convicted in the lower court and this was affirmed by the
CA.
5. Hence, this appeal.
a. The appellants mainly claim that the CA erred in sustaining the
testimonies of Sumilang and Banculo because they are unreliable,
doubtful and do not deserve any credence.
b. According to tem, the testimonies of these 2 are suspect because
they surfaced only after a reward was announced by the General.
c. On the witness stand, Banculo mistakenly identified a detention
prisoner in another case as accused Rolando Fernandez. Sumiling,
on the other hand, was evasive and unresponsive prompting the trial
court to reprimand him several times.
ISSUE/s:
Use of Photographs
1. Whether the testimonies of Sumilang and Banculo are credible and
corroborated. YES — One sentence explanation
RULING: WHEREFORE, accused found GUILTY beyond reasonable doubt of
murder without any aggravating or mitigating circumstance.
RATIO:
Credibility of Sumilang and Banculo
1. Evidence shows that Sumilang reported the incident to the police and
submitted his sworn statement immediately 2 hours after the mailing, even
before the announcement of any reward. He informed the police that he would
cooperate with them and identify Salcedo’s assailants if he saw them again.
2. The fact that Banculo executed 3 sworn statements does not make them and
his testimony incredible. These sworn statements were made to identify more
suspects who were apprehended during the investigation of Salcedo’s death.
3. Sumilang was admonished several times by the trial court for being
argumentative and evasive on the witness stand.
a. This is not enough reason to reject his testimony for he did not
exhibit this undesirable conduct all throughout his testimony.
b. On the whole, his testimony was correctly given credence by the
trial court despite his evasiveness at some instances.
c. Except for compelling reasons, the SC cannot disturb the way trial
courts calibrate the credence of witnesses considering their visual
view of the demeanor of witnesses when on the witness stand. As
trial courts, they can best appreciate the verbal and non-verbal
dimensions of a witness’s testimony.
4. Banculo’s mistake in identifying another person as one of the accused does
not make him an entirely untrustworthy witness.
a. It does not make his whole testimony a falsity. An honest mistake is
not inconsistent with a truthful testimony.
b. Perfect testimonies cannot be expected from persons with imperfect
senses.
c. In the court’s discretion, the testimony of a witness can be believed
as to some facts but disbelieved with respect to the others.
5. Hence, the SC sustained the appellate and trial courts’ findings that the
witnesses’ testimonies corroborate each other on all important and relevant
details of the principal occurrence.
6. Furthermore, appellants do not deny that Salcedo was mauled, kicked and
punched. Sumilang in fact testified that Salcedo was pummeled by his
assailants with stones in their hands.
7. The rule in this jurisdiction is that photographs, when presented in evidence,
must be identified by the photographer as to its production and testified as to
the circumstances under which they were produced.
a. The photographer, however, is not the only witness who can identify
the pictures he has taken. The correctness of the photograph as a
faithful representation of the object portrayed can be proved prima
facie, either by the testimony of the person who made it or by other
competent witnesses, after which the court can admit it subject to
impeachment as to its accuracy.
8. The Court was mindful of the fact that when the prosecution offered the
photographs as part of its evidence, herein appellants (accused), objected to
their admissibility for lack of proper identification.
a. However, the counsel of some accused used the same photos to
prove that his clients were not in any of the pictures and therefore
could not have participated in the mauling of the victim. Here, no
objection was made by counsel for any of the accused, not until one
counsel appeared at the third hearing and interposed a continuing
objection to their admissibility.
 b. The objection is anchored on the fact that the person who took the
same was not presented to identify them. Conspiracy Committed
9. The use of these photographs by some of the accused to show their alleged

{ non-participation in the crime is an admission of the exactness and accuracy

thereof.
10. The photographs are faithful representations of the mauling incident. This
20. At the time they were committing the crime, their actions impliedly showed
a unity of purpose among them, a concerted effort to bring about the death of
Salcedo.
was affirmed when appellants identified themselves therein and gave reasons 21. Where a conspiracy existed and is proved, a showing as to who among the
for their presence thereat. conspirators inflicted the fatal wound is not required to sustain a conviction.
11. Analysis of the photographs vis-à-vis the accused’s testimonies: 22. Each of the conspirators is liable for all acts of the others regardless of the
a. Only 3 of the appellants, namely De Los Santos, Pacadar and Tan intent and character of their participation, because the act of one is the act of
could be readily seen in various belligerent poses lunging or all.
hovering behind or over the victim.
b. Sison appears only once and he, although afflicted with hernia, is
shown merely running after the victim.
c. Tamayo was not identified in any of the pictures.
12. The absence of the 2 appellants in the photographs does not exculpate them.
The photographs did not capture the entire sequence of the killing of Salcedo
but only segments thereof.
13. While the pictures did not record Sison and Tamayo hitting Salcedo, they
*were unequivocally identified by Sumilang and Banculo.
14. Appellants’ denials and alibis cannot overcome their eyeball identification.

No Treachery

15. Treachery as a qualifying circumstance cannot be appreciated in the instant

case. There is no proof that the attack on Salcedo was deliberately and
consciously chosen to ensure the assailants' safety from any defense the
victim could have made.
16. True, the attack on Salcedo was sudden and unexpected but it was apparently
because of the fact that he was wearing a yellow t-shirt or because he
allegedly flashed the "Laban" sign against the rallyists, taunting them into
mauling him.
17. As the appellate court well found, Salcedo had the opportunity to sense the
temper of the rallyists and run away from them but he, unfortunately, was
overtaken by them.
18. The essence of treachery is the sudden and unexpected attack without the
slightest provocation on the part of the person being attacked.

No Evident Premeditation

19. Evident premeditation cannot be appreciated in this case because the attack
against Salcedo was sudden and spontaneous, spurred by the raging
animosity against the so-called "Coryistas." It was not preceded by cool
thought and reflection.
 015 TORRALBA V. PEOPLE (Lim)
August 22, 2005 | J., Chico-Nazario | Admissibility of Tape Recordings
PETITIONER: CIRSE FRANCISCO "CHOY" TORRALBA
RESPONDENTS: PEOPLE OF THE PHILIPPINES
SUMMARY: Torralba was accused of the crime of libel. The trial court, which was
also affirmed by the Court of Appeals, found the accused guilty of the crime
evidenced by a tape recording taken by the adopted daughter of Lim, one of the
witnesses. However, During his testimony, Lim admitted that he did not know how
to operate a tape recorder and that he asked either his adopted daughter, Shirly Lim,
or his housemaid to record petitioner Torralba’s radio program. He maintained,
however, that he was near the radio whenever the recording took place and had
actually heard petitioner Torralba’s radio program while it was being taped. ISSUE:
W/N the tape recording can be admitted as evidence? NO. In order to be admitted as
evidence, tape recording must satisfy certain requirements which was not made in
this case. Shirley, the adopted daughter, was not even presented to as witness. Having
no sufficient evidence to support the accusation of libel, Torralba cannot be convicted
of the crime of libel, which requires proof beyond reasonable doubt.
DOCTRINE: It is generally held that sound recording is not inadmissible because
of its form24 where a proper foundation has been laid to guarantee the genuineness
of the recording.25 In our jurisdiction, it is a rudimentary rule of evidence that before
a tape recording is admissible in evidence and given probative value, the following
requisites must first be established, to wit:
(1) a showing that the recording device was capable of taking testimony;
(2) a showing that the operator of the device was competent;
(3) establishment of the authenticity and correctness of the recording;
(4) a showing that changes, additions, or deletions have not been made;
(5) a showing of the manner of the preservation of the recording;
(6) identification of the speakers; and
(7) a showing that the testimony elicited was voluntarily made without any kind of
inducement.
FACTS:
1. Petitioner Torralba was the host of a radio program called "Tug-Ani ang
Lungsod" which was aired over the radio station DYFX in Cebu City.
2. An information for libel (Article 353 of the RPC) was filed before the
Regional Trial Court (RTC) of Tagbilaran City against petitioner Torralba.
a. That, on or about the 11th day of April, 1994, in the City of
Tagbilaran, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there
willfully, unlawfully and feloniously, with deliberate and malicious
intent of maligning, impeaching and discrediting the honesty,
integrity, reputation, prestige and honor of late CFI Judge Agapito
Y. Hontanosas, who was during his [lifetime] a CFI Judge of Cebu
and a man of good reputation and social standing in the community
and for the purpose of exposing him to public hatred, contempt,
disrespect and ridicule, in his radio program "TUG-ANI AND
LUNGSOD" (TELL THE PEOPLE) over radio station DYFX,
openly, publicly and repeatedly announce[d] the
following: "KINING MGA HONTANOSAS, AGAPITO
HONTANOSAS UG CASTOR HONTANOSAS, MGA
COLLABORATOR SA PANAHON SA GUERRA. SA ATO PA,
TRAYDOR SA YUTANG NATAWHAN." X X X. "DUNAY
DUGO NGA PAGKATRAYDOR ANG AMAHAN NI
MANOLING HONTANOSAS," which in English means: "THESE
HONTANOSAS, AGAPITO HONTANOSAS AND CASTOR
HONTANOSAS, ARE COLLABORATORS DURING THE
WAR. IN OTHER WORDS, THEY ARE TRAITORS TO THE
LAND OF THEIR BIRTH." X X X. "THE FATHER OF
MANOLING HONTANOSAS HAD TREACHEROUS BLOOD,"
and other words of similar import, thereby maliciously exposing the
family of the late Judge Agapito Hontanosas including Atty. Manuel
L. Hontanosas,3 one of the legitimate children of [the] late CFI
Judge Agapito Y. Hontanosas to public hatred, dishonor, discredit,
contempt and ridicule causing the latter to suffer social humiliation,
embarrassment, wounded feelings and mental anguish, to the
damage and prejudice of said Atty. Manuel L. Hontanosas in the
amount to be proved during the trial of the case.
3. Petitioner Torralba filed for a motion for consolidationalleging therein that
private complainant Atty. Manuel Hontanosas (Atty. Hontanosas) filed a total
of four (4) criminal cases for libel (Crim. Cases No. 8956, No. 8957, No.
8958, and No. 9107) against petitioner Torralba; granted
4. During the trial on the merits of the consolidated cases, the prosecution
presented as witnesses Segundo Lim (one of the incorporators of the
Tagbilaran Maritime Services, Inc. (TMSI)), private complainant Atty.
Hontanosas, and Gabriel Sarmiento.
5. Torralba sought TMSI’s sponsorship of his radio program. This request was
approved by private complainant Atty. Hontanosas who was then the
president of TMSI. During the existence of said sponsorship agreement, the
management of TMSI noticed that petitioner Torralba was persistently
attacking former Bureau of Internal Revenue Deputy Director Tomas Toledo
and his brother Boy Toledo who was a customs collector. Fearing that the
Toledos would think that TMSI was behind the incessant criticisms hurled at
them, the management of TMSI decided to cease sponsoringTorralba’s radio
show. In effect, the TMSI sponsored "Tug-Ani ang Lungsod" for only a
 month at the cost of ₱500.00.
6. Lim testified that petitioner Torralba accused TMSI of not observing the
minimum wage law and that said corporation was charging higher handling
rates than what it was supposed to collect.
7. Atty. Hontanosas went on-air in petitioner Torralba’s radio program to
explain the side of TMSI. The day after said incident, however, petitioner
Torralba resumed his assault on TMSI and its management. It was petitioner
Torralba’s relentless badgering of TMSI which allegedly prompted Lim to
tape record petitioner Torralba’s radio broadcasts.
8. Three of the tape recordings were introduced in evidence by the prosecution.
9. During his testimony, Lim admitted that he did not know how to operate a
tape recorder and that he asked either his adopted daughter, Shirly Lim, or
his housemaid to record petitioner Torralba’s radio program. He maintained,
however, that he was near the radio whenever the recording took place and
had actually heard petitioner Torralba’s radio program while it was being
taped. This prompted petitioner Torralba to pose a continuing objection to the
admission of the said tape recordings for lack of proper authentication by the
person who actually made the recordings. In the case of the subject tape
recordings, Lim admitted that they were recorded by Shirly Lim.
10. The trial court provisionally admitted the tape recordings subject to the
presentation by the prosecution of Shirly Lim for the proper authentication of
said pieces of evidence. Despite petitioner Torralba’s objection to the formal
offer of these pieces of evidence, the court a quo eventually admitted the
three tape recordings into evidence.
a. It was revealed during Lim’s cross-examination that petitioner
Torralba previously instituted a criminal action for libel against the
former arising from an article published in the Sunday Post, a
newspaper of general circulation in the provinces of Cebu and
Bohol. In said case, Lim was found guilty there.
11. For his part, Atty. Hontanosas testified that he was at that time the chairman
and manager of TMSI; Lim presented to him a tape recording of petitioner
Torralba’s radio program which petitioner Torralba allegedly criticized him
and stated that he was a person who could not be trusted; that in his radio
show Torralba also mentioned that "he was now [wary] to interview any one
because he had a sad experience with someone who betrayed him and this
‘someone’ was like his father who was a collaborator"; Lim again brought to
his office a tape recording of Torralba’s radio program which Torralba
averred that the Hontanosas were traitors to the land of their birth; that Judge
Agapito Hontanosas and Castor Hontanosas were collaborators during the
Japanese occupation; and that after he informed his siblings regarding this,
they asked him to institute a case against petitioner Torralba.
a. During his cross-examination, Atty. Hontanosas disclosed that he
did not actually hear petitioner Torralba’s radio broadcasts and he
merely relied on the tape recordings presented to him by Lim as he
believed them to be genuine.
12. The trial court rendered an omnibus decision acquitting petitioner Torralba
in Crim. Cases No. 8956, No. 8957, and No. 8958 but holding him guilty of
the crime of libel in Crim. Case No. 9107.
13. Appealed to CA but denied.
ISSUE:
1. WoN the tape recording were properly admitted as evidence? NO.
2. WoN Torralba is guilty of liber? NO.
RULING: WHEREFORE, the petition is GRANTED. The Decision promulgated on
22 May 2002 of the Court of Appeals, affirming the omnibus decision dated 24 August
2000 of the Regional Trial Court, Branch 3, Tagbilaran City, is
hereby REVERSED and SET ASIDE. Instead, a new one is
entered ACQUITTING petitioner Cirse Francisco "Choy" Torralba of the crime of
libel. The cash bond posted by said petitioner is ordered released to him subject to the
usual auditing and accounting procedures. No costs.
RATIO:
First Issue
1. It is generally held that sound recording is not inadmissible because of its
form where a proper foundation has been laid to guarantee the genuineness
of the recording. In our jurisdiction, it is a rudimentary rule of evidence that
before a tape recording is admissible in evidence and given probative value,
the following requisites must first be established, to wit:
(1) a showing that the recording device was capable of taking
testimony;
(2) a showing that the operator of the device was competent;
(3) establishment of the authenticity and correctness of the
recording;
(4) a showing that changes, additions, or deletions have not been
made;
(5) a showing of the manner of the preservation of the recording;
(6) identification of the speakers; and
(7) a showing that the testimony elicited was voluntarily made
without any kind of inducement.
2. These requisites were laid down precisely to address the criticism of
susceptibility to tampering of tape recordings.
3. The party seeking the introduction in evidence of a tape recording bears
the burden of going forth with sufficient evidence to show that the
recording is an accurate reproduction of the conversation recorded.
4. It was held that the testimony of the operator of the recording device as
regards its operation, his method of operating it, the accuracy of the
recordings, and the identities of the persons speaking laid a sufficient
foundation for the admission of the recordings.
 5. Likewise, a witness’ declaration that the sound recording represents a true standard, there is need for the most careful scrutiny of the testimony
portrayal of the voices contained therein satisfies the requirement of of the State, both oral and documentary, independently of whatever
authentication. defense is offered by the accused.
6. the proper foundation for the admissibility of the tape recording was not
adhered to
7. Lim categorically admitted in the witness stand that he was not familiar at all
with the process of tape recording and that he had to instruct his adopted
daughter to record petitioner Torralba’s radio broadcasts. Shirly Lim, the
person who actually recorded petitioner Torralba’s radio show on 11 April
1994, should have been presented by the prosecution in order to lay the proper
foundation for the admission of the purported tape recording for said date.

Second Issue:

8. The records of this case are bereft of any proof that a witness saw petitioner
Torralba broadcast the alleged libelous remarks
9. Justice Ricardo Francisco, wrote that "[e]vidence of a message or a speech
by means of radio broadcast is admissible as evidence when the identity of
the speaker is established either by the testimony of a witness who saw him
broadcast his message or speech, or by the witness’ recognition of the voice
of the speaker."
10. The bare assertion (while Torralba’s radio program on that date was being
tape recorded by his adopted daughter, he was so near the radio that he could
even touch the same-- implying that he was listening to "Tug-Ani ang
Lungsod" at that time) on the part of Lim, uncorroborated as it was by any
other evidence, fails to meet the standard that a witness must be able to
"recognize the voice of the speaker." Being near the radio is one thing;
actually listening to the radio broadcast and recognizing the voice of the
speaker is another. Indeed, a person may be in close proximity to said device
without necessarily listening to the contents of a radio broadcast or to what a
radio commentator is saying over the airwaves.
11. … What further undermines the credibility of Lim’s testimony is the fact that
he had an ax to grind against petitioner Torralba as he was previously accused
by the latter with the crime of libel and for which he was found guilty as
charged by the court. Surely then, Lim could not present himself as an
"uninterested witness" whose testimony merits significance from this Court.
12. Time and again, this Court has faithfully observed and given effect to the
constitutional presumption of innocence which can only be overcome by
contrary proof beyond reasonable doubt -- one which requires moral
certainty, a certainty that convinces and satisfies the reason and conscience
of those who are to act upon it.
a. Accusation is not, according to the fundamental law, synonymous
with guilt, the prosecution must overthrow the presumption of
innocence with proof of guilt beyond reasonable doubt. To meet this
 015 MCC Industrial v. Ssangyong (STA. MARIA edited by
CALLUENG)
October 17, 2007 | Nachura, J. | Rule on Electronic Evidence
PETITIONER: MCC Industrial Sales Corporation
RESPONDENTS: Ssangyong Corporation
SUMMARY: MCC is a domestic corporation is engaged in the business of
importing and wholesaling stainless steel products. Ssangyong, a supplier, is
an international trading company. The two corporations conducted business
through telephone calls and facsimile or telecopy transmissions. Ssangyong
would send the pro forma invoices containing the details of the steel product
order to MCC; lif MCC conforms thereto, its representative affixes his
signature on the faxed copy and sends it back to Ssangyong, again by fax.l
Ssangyong Manila Office sent, by fax, a letter addressed to Gregory Chan,
MCC Manager to confirm MCC's and Sanyo Seiki's order of 220 metric tons
(MT) of stainless steel. Ssangyong forwarded to MCC Pro Forma Invoice
containing the terms and conditions of the transaction. MCC sent back by fax
to Ssangyong the invoice bearing the conformity signature of Chan. As stated
in the invoice, payment would be made through a letter of credit (L/C).
Following their usual practice, delivery of the goods was to be made after the
L/C had been opened. lBecause MCC could open only a partial letter of
credit, the order for 220MT of steel was split into two, one for 110MT and
another for 110MT. l After series of communication through fax and letters
were made and issuance of Pro Forma Invoices with slightly varied terms
sent via fax to MCC, it finally was able to open an L/C with PCI bank
covering first 100MT. lThese were shipped and received by the MCC. MCC
then faxed to Ssangyong a letter signed by Chan, requesting for a price
adjustment of the order.l Ssangyong rejected the request and instead sent a
demand letter to Chan for the opening of the second L/C with a warning that
the contract would be cancelled and MCC would be held liable if they fail to
open L/C. Chan did not reply. Exasperated, Ssangyong through counsel
wrote a letter to MCC, on canceling the sales contract and demanding
payment representing losses, warehousing expenses, interests and charges.
Ssangyong then filed a civil action for damages due to breach of contract. It
alleged that MCC breached their contract when they refused to open the L/C
for the remaining 100MT. MCC filed a Demurrer to Evidence alleging that
Ssangyong failed to present the original copies of the pro forma invoices on
which the civil action was based. The RTC denied the demurrer and found
the pro forma invoices admissible in evidence. The CA Affirmed the RTC.
The issue is WON the print-out and/or photocopies of facsimile
transmissions are electronic evidence and admissible as such? NO. The
Electronic Commerce Act of 2000 considers an electronic data message or an
electronic document as the functional equivalent of a written document for
evidentiary purposes and thus, it does not include a facsimile transmission. It
is not the functional equivalent of an original under the Best Evidence Rule
and is not admissible as electronic evidence. Since a facsimile transmission is
not an X"electronic data message" or an X
"electronic document," and cannot be
considered asxelectronic evidence by the Court, with greater reason is a
photocopy of such a fax transmission not electronic evidence. The pro forma
invoices are not admissible in evidence.d Nevertheless, despite the pro forma
invoices not being electronic evidence, the SC found that Ssangyong has
proven by preponderance of evidence (other documentary evidence and
testimonies of witnesses) the existence of a perfected contract of sale to
which MCC breached its obligation by its refusal to open a L/C.
DOCTRINE: The terms "electronic data message" and "electronic
document," as defined under the Electronic Commerce Act of 2000, do not
include a facsimile transmission. Accordingly, a facsimile transmission
cannot be considered as electronic evidence.
FACTS:
1.! MCC Industrial Sales (MCC), a domestic corporation with office at
Binondo, Manila, is engaged in the business of importing and
wholesaling stainless steel products. One of its suppliers is the
Ssangyong Corporation (Ssangyong) an international trading
company with head office in Seoul, South Korea.
2.! The two corporations conducted business through telephone calls
and facsimile or telecopy transmissions. Ssangyong would send the
pro forma invoices containing the details of the steel product order to
MCC; if the latter conforms thereto, its representative affixes his
signature on the faxed copy and sends it back to Ssangyong, again by
fax.
3.! Ssangyong Manila Office sent, by fax, a letter addressed to Gregory
Chan, MCC Manager to confirm MCC's and Sanyo Seiki's order of
220 metric tons (MT) of hot rolled stainless steel under a
preferential rate of US$1,860.00 per MT. Chan, on behalf of the
corporations, assented and affixed his signature on the conforme
portion of the letter.
4.! Ssangyong forwarded to MCC Pro Forma Invoice No. ST2-
POSTSO401 containing the terms and conditions of the transaction.
MCC sent back by fax to Ssangyong the invoice bearing the
conformity signatur of Chan. As stated in the pro forma invoice,
 payment for the ordered steel products would be made through an
irrevocable letter of credit (L/C) at sight in favor of Ssangyong.
Following their usual practice, delivery of the goods was to be made
after the L/C had been opened.
5.! In the meantime, because of its confirmed transaction with MCC,
Ssangyong placed the order with its steel manufacturer, Pohang Iron
and Steel Corporation (POSCO), in South Korea and paid the same
in full.
6.! Because MCC could open only a partial letter of credit, the order for
220MT of steel was split into two, one for 110MT covered by Pro
Forma Invoice No. ST2-POSTS0401-1 and another for 110MT
covered by ST2- POSTS0401-2
7.! After series of communication through fax and letters were made and
issuance of Pro Forma Invoices sent via fax to MCC, it finally was
able to open an L/C with PCI bank covering first 100MT. These
were shipped and received by the MCC.
8.! MCC then faxed to Ssangyong a letter signed by Chan, requesting
for a price adjustment of the order. Ssangyong rejected the request
and instead sent a demand letter to Chan for the opening of the
second L/C with a warning that the contract would be cancelled and
MCC would be held liable if they fail to open L/C. Chan did not
reply.
9.! Exasperated, Ssangyong through counsel wrote a letter to MCC, on
canceling the sales contract and demanding payment representing
losses, warehousing expenses, interests and charges.
10.! Ssangyong then filed a civil action for damages due to breach of
contract against defendants MCC, Sanyo Seiki and Gregory Chan
before the Regional Trial Court of Makati City. In its complaint,39
11.! Ssangyong alleged that defendants breached their contract when they
refused to open the L/C in the amount of US$170,000.00 for the
remaining 100MT of steel.
12.! After Ssangyong rested its case, defendants filed a Demurrer to
Evidence alleging that Ssangyong failed to present the original
copies of the pro forma invoices on which the civil action was based.
13.! the court denied the demurrer, ruling that the documentary evidence
presented had already been admitted in the December 16, 2002 Order
and their admissibility finds support in Republic Act (R.A.) No.
8792, otherwise known as the Electronic Commerce Act of 2000.
Considering that both testimonial and documentary evidence tended
to substantiate the material allegations in the complaint, Ssangyong's
evidence sufficed for purposes of a prima facie case.
14.! The RTC ruled in favor of Ssangyong. The trial court ruled that
when Ssangyong agreed to sell and MCC agreed to buy the 220MT
of steel products for the price of US$1,860 per MT, the contract was
perfected. The subject transaction was evidenced by Pro Forma
Invoices, which were later amended only in terms of reduction of
volume as well as the price per MT. The RTC, however, excluded
Sanyo Seiki from liability for lack of competent evidence.
15.! CA affirmed the ruling but absolving Chan of any liability. It ruled,
among others, that Pro Forma Invoice were admissible in evidence,
although they were mere facsimile printouts of MCC's steel orders.
ISSUES:
1.! (IMPORTANT) WON the print-out and/or photocopies of facsimili
transmissions are electronic evidence and admissible as such?- No.
NO. The Electronic Commerce Act of 2000 considers an electronic
data message or an electronic document as the functional equivalent
of a written document for evidentiary purposes and thus, it does not
include a facsimile transmission and as such, with greater reason is a
photocopy of the fax transmission not an electronic evidence. The
pro forma invoices are not admissible in evidence.
2.! WON there was a perfected contract of sale between MCC and
Ssangyong, and, if in the affirmative, whether MCC breached the
said contract – Yes. Despite the pro forma invoices not being
electronic evidence, Ssangyong has proven by preponderance of
evidence the existence of a perfected contract of sale through the
introduction of other documents together with the testimonies of its
witnesses. Despite numerous demands from Ssangyong, MCC
breached its contractual obligation.
3.! WON the award of actual damages fees in favor of Ssangyong is
proper and justified? – No. The claim for actual damages was not
proven. However, MCC is liable for nominal damages because of its
insensitivity and inattention in complying with its obligation.
4.! WON the award of attorney's fees in favor of Ssangyong is proper
and justified? – Yes considering that MCC's unjustified refusal to
pay has compelled Ssangyong to litigate and to incur expenses to
protect its rights.
RULING: WHEREFORE, PREMISES CONSIDERED, the appeal is
PARTIALLY GRANTED. The Decision of the Court of Appeals in CA-G.R.
CV No. 82983 is MODIFIED in that the award of actual damages is
DELETED. However, petitioner is ORDERED to pay respondent
NOMINAL DAMAGES in the amount of P200,000.00, and the
ATTORNEY'S FEES as awarded by the trial court.
RATIO:
The print-out and/or photocopies of facsimili transmissions are NOT
electronic evidence thus NOT admissible as evidence.
1.! Although the parties did not raise the question whether the original
facsimile transmissions are "electronic data messages" or "electronic
documents" within the context of the Electronic Commerce Act (the
MCC merely assails as inadmissible evidence the photocopies of the
said facsimile transmissions), we deem it appropriate to determine
first whether the said fax transmissions are indeed within the
coverage of the Electronic Commerce Act of 2000 (R.A. No. 8792)
before ruling on whether the photocopies thereof are covered by the
law.
2.! MCC contends that the photocopies of the pro forma invoices
presented by Ssangyong to prove the perfection of their supposed
contract of sale are inadmissible in evidence and do not fall within
the ambit of R.A. No. 8792, because the law merely admits as the
best evidence the original fax transmittal. On the other hand,
Ssangyong posits that, from a reading of the law and the Rules on
Electronic Evidence, the original facsimile transmittal of the pro
forma invoice is admissible in evidence since it is an electronic
document and, therefore, the best evidence under the law and the
Rules. Ssangyong further claims that the photocopies of these fax
transmittals are admissible under the Rules on Evidence because the
Ssangyong sufficiently explained the non-production of the original
fax transmittals.
3.! In resolving this issue, CA ruled as that the copies of the said pro-
forma invoices submitted by Ssangyon are admissible in evidence,
although they are mere electronic facsimile printouts of MCC's
orders.
4.! The ruling of the CA is incorrect. R.A. No. 8792 considers an
electronic data message or an electronic document as the
functional equivalent of a written document for evidentiary
purposes.
5.! The Rules on Electronic Evidence regards an electronic document as
admissible in evidence if it complies with the rules on admissibility
prescribed by the Rules of Court and related laws, and is
authenticated in the manner prescribed by the said Rules. An
electronic document is also the equivalent of an original document
under the Best Evidence Rule, if it is a printout or output readable by
sight or other means, shown to reflect the data accurately.
6.! Thus, to be admissible in evidence as an electronic data message
or to be considered as the functional equivalent of an original
document under the Best Evidence Rule, the writing must
foremost be an "electronic data message" or an "electronic
document."
7.! The Electronic Commerce Act of 2000 defines electronic data
message and electronic document as follows: c. "Electronic Data
Message" refers to information generated, sent, received or stored by
electronic, optical or similar means. Xxx f. "Electronic Document"
refers to information or the representation of information, data,
figures, symbols or other modes of written expression, described or
however represented, by which a right is established or an obligation
extinguished, or by which a fact may be proved and affirmed, which
is received, recorded, transmitted, stored, processed, retrieved or
produced electronically.
8.! The IRR of R.A. No. 8792 (e) "Electronic Data Message" refers to
information generated, sent, received or stored by electronic, optical
or similar means, but not limited to, electronic data interchange
(EDI), electronic mail, telegram, telex or telecopy. Throughout these
Rules, the term "electronic data message" shall be equivalent to and
be used interchangeably with "electronic document." xxxx (h)
"Electronic Document" refers to information or the representation of
information, data, figures, symbols or other modes of written
expression, described or however represented, by which a right is
established or an obligation extinguished, or by which a fact may be
proved and affirmed, which is received, recorded, transmitted,
stored, processed, retrieved or produced electronically. Throughout
these Rules, the term "electronic document" shall be equivalent to
and be used interchangeably with "electronic data message."
9.! The phrase "but not limited to, electronic data interchange (EDI),
electronic mail, telegram, telex or telecopy" in the IRR's definition of
"electronic data message" is copied from the Model Law on
Electronic Commerce adopted by the United Nations Commission on
International Trade Law (UNCITRAL),from which majority of the
provisions of R.A. No. 8792 were taken. While Congress deleted
this phrase in the Electronic Commerce Act of 2000, the drafters
of the IRR reinstated it. The deletion by Congress of the said
phrase is significant and pivotal.
10.! Interestingly, when Senator Ramon B. Magsaysay, Jr., the principal
author of Senate Bill 1902 sponsored the bill on second reading, he
 proposed to adopt the term "data message" as formulated and defined
in the UNCITRAL Model Law. During the period of amendments,
however, the term evolved into "electronic data message," and the
phrase "but not limited to, electronic data interchange (EDI),
electronic mail, telegram, telex or telecopy" in the UNCITRAL
Model Law was deleted.
11.! Thus, when the Senate consequently voted to adopt the term
"electronic data message," it was consonant with the explanation
of Senator Miriam Defensor-Santiago that it would not apply "to
telexes or faxes, except computer- generated faxes, unlike the
United Nations model law on electronic commerce." In explaining
the term "electronic record" patterned after the E-Commerce Law of
Canada, Senator Defensor-Santiago had in mind the term "electronic
data message."
12.! Noteworthy is that the Uniform Law Conference of Canada, explains
the term "electronic record," as drafted in the Uniform Electronic
Evidence Act, in a manner strikingly similar to Sen. Santiago's
explanation during the Senate deliberations: In short, not all data
recorded or stored in "digital" form is covered. A computer or
similar device has to be involved in its creation or storage. The term
"similar device" does not extend to all devices that create or store
data in digital form. Although things that are not recorded or
preserved by or in a computer system are omitted from this Act, they
may well be admissible under other rules of law.
13.! There is no question then that when Congress formulated the term
"electronic data message," it intended the same meaning as the term
"electronic record" in the Canada law. This construction of the
term "electronic data message," which excludes telexes or faxes,
except computer-generated faxes, is in harmony with the
Electronic Commerce Law's focus on "paperless"
communications and the "functional equivalent approach" that
it espouses.
14.! Facsimile transmissions are not, in this sense, "paperless," but
verily are paper-based. x x x A facsimile is not a genuine and
authentic pleading. It is, at best, an exact copy preserving all the
marks of an original. Without the original, there is no way of
determining on its face whether the facsimile pleading is genuine and
authentic and was originally signed by the party and his counsel. It
may, in fact, be a sham pleading.
15.! Clearly then, the IRR went beyond the parameters of the law
when it adopted verbatim the UNCITRAL Model Law's definition of
"data message," without considering the intention of Congress when
the latter deleted the phrase "but not limited to, electronic data
interchange (EDI), electronic mail, telegram, telex or telecopy."
16.! The inclusion of this phrase in the IRR offends a basic tenet in
the exercise of the rule-making power of administrative agencies.
The implementing rules and regulations of a law cannot extend
the law or expand its coverage, as the power to amend or repeal
a statute is vested in the Legislature.
17.! The terms "electronic data message" and "electronic document,"
as defined under the Electronic Commerce Act of 2000, do not
include a facsimile transmission. Accordingly, a facsimile
transmission cannot be considered as electronic evidence. It is not
the functional equivalent of an original under the Best Evidence Rule
and is not admissible as electronic evidence.
18.! Since a facsimile transmission is not an "electronic data
message" or an "electronic document," and cannot be
considered as electronic evidence by the Court, with greater
reason is a photocopy of such a fax transmission not electronic
evidence.
19.! In the present case, therefore, Pro Forma Invoice Nos. ST2-
POSTS0401-1 and ST2- POSTS0401-2 (Exhibits "E" and "F"),
which are mere photocopies of the original fax transmittals, are not
electronic evidence, contrary to the position of both the trial and the
appellate courts.
There was a perfected contract of sale and MCC breached its obligation.
1.! Despite the pro forma invoices not being electronic evidence, this
Court finds that Ssangyong has proven by preponderance of evidence
the existence of a perfected contract of sale. Ssangyong did not rely
merely on pro forma invoices to prove the perfected contract. It also
introduced in evidence a variety of other documents together with
the testimonies of its witnesses.
2.! This Court also finds merit in the following observations of the trial
court: With our finding that there is a valid contract, it is crystal-clear
that when MCC did not open the L/C for the first half of the
transaction (100MT), despite numerous demands from Ssangyong,
MCC breached its contractual obligation. It is a well-entrenched rule
that the failure of a buyer to furnish an agreed letter of credit is a
breach of the contract between buyer and seller.
The award of actual damages is not proper.
1.! The award of actual damages is not in accord with the evidence on
record. It is axiomatic that actual or compensatory damages cannot
be presumed, but must be proven with a reasonable degree of
 certainty. The statement of account and the details of the losses
sustained by Ssangyong due to the said breach are, at best, self-
serving. It was Ssangyong itself which prepared the said documents.
The items therein are not even substantiated by official receipts. In
the absence of corroborative evidence, the said statement of account
is not sufficient basis to award actual damages.
2.! Nonetheless, the Court finds that MCC knowingly breached its
contractual obligation and obstinately refused to pay despite repeated
demands from Ssangyong. MCC even asked for several extensions
of time for it to make good its obligation. But in spite of Ssangyong
's continuous accommodation, MCC completely reneged on its
contractual duty. For such inattention and insensitivity, MCC must
be held liable for nominal damages of P200,000.00.
The award of attorney’s fees is proper.
1.! MCC's unjustified refusal to pay has compelled Ssangyong to litigate
and to incur expenses to protect its rights.
 049 NAPOCOR v. CODILLA (CASTILLO)
04 April 2007 | Chico-Nazario, J. | Electronic Evidence
PETITIONER: National Power Corportation
RESPONDENTS: Hon. Ramon G. Codilla, Jr. Judge RTC Cebu Br. 19, Bangpai
Shipping Company, and Wallem Shipping, Inc.
SUMMARY: Bangpai Shipping, Co., allegedly bumped and damaged petitioner’s
Power Barge 209. Petitioner filed before the Cebu RTC a complaint for damages
Thereafter, petitioner filed an Amended Complaint dated 8 July 1996 impleading
herein private respondent Wallem Shipping, Inc., as additional defendant,
contending that the latter is a ship agent of Bangpai Shipping Co. Petitioner, after
adducing evidence during the trial of the case, filed a formal offer of evidence.
Judge issued the assailed order denying the admission and excluding from the
records of some evidences (photox of letters and list of costs of damage) on the
ground that plaintiff never produced the originals. AThe plaintiff attempted to justify
the admission of the photocopies by contending that “the photocopies offered are
equivalent to the original of the document” on the basis of the Electronic Evidence
:
Rule. Issue is WON the evidence ordered to be excluded by the judge are equivalent
to the original document based on Electronic Evidence Rule. The Court ruled in the
negative saying that electronic document includes digitally signed documents and
any printout, readable by sight or other means which accurately reflects the
electronic data message or electronic document. The information in those Xerox or
photocopies was not received, recorded, retrieved or produced electronically. The
rules use the word “information” to define an electronic document received,
recorded, transmitted, stored, processed, retrieved or produced electronically. A
perusal of the information contained in the photocopies submitted by petitioner will
reveal that not all of the contents therein, such as the signatures of the persons who
purportedly signed the documents, may be recorded or produced electronically.The
offeror of secondary evidence is burdened to prove the predicates thereof: (a) the
loss or destruction of the original without bad faith on the part of the
proponent/offeror which can be shown by circumstantial evidence of routine
practices of destruction of documents; (b) the proponent must prove by a fair
preponderance of evidence as to raise a reasonable inference of the loss or
destruction of the original copy; and (c) it must be shown that a diligent and bona
fide but unsuccessful search has been made for the document in the proper place or
places.
DOCTRINE: An electronic document refers to information or the representation of
information, data, figures, symbols or other models of written expression, described
or however represented, by which a right is established or an obligation
extinguished, or by which a fact may be proved and affirmed, which is received,
recorded, transmitted, stored, processed, retrieved or produced electronically;When
the original document has been lost or destroyed, or cannot be produced in court,
the offer or, upon proof of its execution or existence and the cause of its
unavailability without bad faith on his part,]may prove its contents by a copy, or by
a recital of its contents in some authentic document, or by the testimony of
witnesses in the order stated.
FACTS:
1.! Petition for Review on Certiorari under Rule 45 of the Rules of Civil
Procedure, assailing the Decision1 of the Court of Appeals in CA-
G.R. CEB-SP No. 00848, dated 9 November 2005, which dismissed
the Petition for Certiorari filed by NAPOCOR seeking to set aside
the Order issued by RTC Cebu, Br. 19 dated November 16, 2004
denying admission and excluding from the records plaintiff’s (herein
petitioner) Exhibits.
2.! M/V Dibena Win, a vessel of foreign registry owned and operated by
private respondent Bangpai Shipping, Co., allegedly bumped and
damaged petitioner NAPOCOR's Power Barge 209 which was then
moored at the Cebu International Port.
a.! Petitioner NAPOCOR filed before the Cebu RTC a
complaint for damages against private respondent Bangpai
Shipping Co., for the alleged damages caused on petitioner’s
power barges.
3.! NAPOCOR filed an Amended Complaint impleading herein private
respondent Wallem Shipping, Inc., as additional defendant,
contending that the latter is a ship agent of Bangpai Shipping Co.
Wallem Shipping, Inc. filed a Motion to Dismiss which was
subsequently denied by public respondent Judge. Bangpai Shipping
Co. also filed a MTD which was likewise denied by respondent
judge.
4.! NAPOCOR filed a formal offer of evidence before the lower court
consisting of Exhibits “A” to “V” together with the sub-marked
portions. Consequently, private respondents Bangpai Shipping and
Wallem Shipping Inc filed their respective objections to petitioner’s
formal offer of evidence.
5.! The public respondent judge issued the assailed order denying the
admission and excluding from the records NAPOCOR’s Exhibits
“A,” “C,” “D,” “E,” “H” and its sub-markings, “I,” “J” and its sub-
markings, “K,” “L,” “M” and its sub- markings, “N” and its sub-
markings, “O,” “P” and its sub-markings, “Q” and its sub- markings,
“R” and “S” and its sub-markings.
RTC decision
6.! The record shows that the plaintiff has been given every opportunity
 to present the originals of the Xerox or photocopies of the documents
it offered. It never produced the originals.
a.! The plaintiff attempted to justify the admission of the
photocopies by contending that “the photocopies offered are
equivalent to the original of the document” on the basis of
the Electronic Evidence.I Xerox copies do not constitute the
electronic evidence defined in Sec. 1 of Rule 2 of the Rules
on Electronic Evidence47I
7.! The information in those Xerox or photocopies was not received,
recorded, retrieved or produced electronically. Moreover, such
electronic evidence must be authenticated (Sections 1 and 2, Rule 5,
Rules on Electronic Evidence), which the plaintiff failed to do.
a.! The required Affidavit to prove the admissibility and
evidentiary weight of the alleged electronic evidence was not
executed, much less presented in evidence.
8.! The Xerox or photocopies offered should, therefore, be stricken off
the record. Aside from their being not properly identified by any
competent witness, the loss of the principals thereof was not
established by any competent proof.
9.! After MR was denied, NAPOCOR filed a Petition for Certiorari
under Rule 65 of the Rules of Civil Procedure before the Court of
Appeals maintaining that public respondent Judge acted with grave
abuse of discretion amounting to lack or excess of jurisdiction in
denying the admission of its Exhibits.
CA decision
10.! CA dismissed NAPOCOR’s petition for certiorari.
11.! It appears that there is no sufficient showing by the petitioner that the
respondent judge acted with grave abuse of discretion in issuing the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
47
(h) “Electronic document” refers to information or the representation of information, data,
figures, symbols or other models of written expression, described or however represented, by
which a right is established or an obligation extinguished, or by which a fact may be proved
and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or
produced electronically. It includes digitally signed documents and any printout, readable by
sight or other means which accurately reflects the electronic data message or electronic
document. For the purpose of these Rules, the term electronic document” may be used
interchangeably with “electronic data message.
assailed orders in Civil Case No. CEB-18662. As what our
jurisprudence tells us, grave abuse of discretion is meant such
capricious and whimsical exercise of judgment as would be
equivalent to lack of jurisdiction.
12.! Indeed, it appears that the pieces of petitioner’s documentary
evidence which were denied admission by the respondent judge were
not properly identified by any competent witness.
13.! There was lack of proper identification of said pieces of
documentary evidence on the part of witnesses Atty. Marianito De
Los Santos, Engr. Nestor Enriquez, Jr. and Mr. Rodulfo I. Pagaling.
14.! Another ground for denying NAPOCOR’s Exhibits is that said
pieces of documentary evidence were merely photocopies of
purported documents or papers.
a.! Section 3 of Rule 130 of the Rules of Court of the
Philippines is very explicit in providing that, when the
subject of inquiry are the contents of documents, no
evidence shall be admissible other than the original
documents themselves, except in certain cases specifically so
enumerated therein, and the petitioner has not shown that the
nonpresentation or non- production of its original
documentary pieces of evidence falls under such exceptions.
15.! The pieces of documentary evidence offered by the petitioner in
Civil Case CEB-18662 which were denied admission by the
respondent judge do not actually constitute as electronic evidence as
defined in the Rules on Electronic Evidence.
ISSUE/s:
1.! Whether or not the evidence ordered to be excluded by the judge are
equivalent to the original document based on Electronic Evidence
Rule NO — Electronic document includes digitally signed
documents and any printout, readable by sight or other means which
✓ accurately reflects the electronic data message or electronic
document, hence the information in those Xerox or photocopies was
not received, recorded, retrieved or produced electronically.
RULING: WHEREFORE, premises considered, the instant petition is
hereby DENIED. The Decision of the Court of Appeals in CA-G.R. CEB-SP
No. 00848, dated 9 November 2005 is hereby AFFIRMED. Costs against
petitioner.
RATIO:
1.! The rules use the word “information” to define an electronic
document received, recorded, transmitted, stored, processed,
retrieved or produced electronically. This would suggest that an
electronic document is relevant only in terms of the information
contained therein, similar to any other document which is presented
in evidence as proof of its contents.
2.! However, what differentiates an electronic document from a paper-
based document is the manner by which the information is
processed; clearly, the information contained in an electronic
document is received, recorded, transmitted, stored, processed,
retrieved or produced electronically.
3.! A perusal of the information contained in the photocopies submitted
by petitioner will reveal that not all of the contents therein, such as
the signatures of the persons who purportedly signed the documents,
may be recorded or produced electronically.
4.! Having thus declared that the offered photocopies are not tantamount
to electronic documents, it is consequential that the same may not be
considered as the functional equivalent of their original as decreed in
the law.
5.! The trial court was correct in rejecting these photocopies as they
violate the best evidence rule and are therefore of no probative value
being incompetent pieces of evidence.
6.! Before the onset of liberal rules of discovery, and modern technique
of electronic copying, the best evidence rule was designed to guard
against incomplete or fraudulent proof and the introduction of altered
copies and the withholding of the originals.
circumstantial evidence of routine practices of destruction of
documents; (b) the proponent must prove by a fair preponderance of
evidence as to raise a reasonable inference of the loss or destruction
of the original copy; and (c) it must be shown that a diligent and
bona fide but unsuccessful search has been made for the document in
the proper place or places.
9.! However, in the case at bar, though petitioner insisted in offering the
photocopies as documentary evidence, it failed to establish that such
offer was made in accordance with the exceptions as enumerated
under the abovequoted rule. Accordingly, we find no error in the
Order of the court a quo denying admissibility of the photocopies
offered by petitioner as documentary evidence.
Provision mentioned:
Section 2, Rule 130 of the Rules of Court:
“SECTION 2. Original writing must be produced; exceptions.—There can be no
evidence of a writing the contents of which is the subject of inquiry, other than the
original writing itself, except in the following cases:
(a) When the original has been lost, destroyed, or cannot be produced in court;
(b) When the original is in the possession of the party against whom the evidence is
offered, and the latter fails to produce it after reasonable notice;
(c) When the original is a record or other document in the custody of a public officer;
(d) When the original has been recorded in an existing record a certified copy of
which is made evidence by law;
(e) When the original consists of numerous accounts or other documents which
cannot be examined in court without great loss of time and the fact sought to be
established from them is only the general result of the whole.”

7.! When the original document has been lost or destroyed, or cannot be
produced in court, the offeror, upon proof of its execution or
existence and the cause of its unavailability without bad faith on his
part, may prove its contents by a copy, or by a recital of its contents
in some authentic document, or by the testimony of witnesses in the
order stated.

8.! The offeror of secondary evidence is burdened to prove the

predicates thereof: (a) the loss or destruction of the original without
bad faith on the part of the proponent/offeror which can be shown by
 051 Aznar v. Citibank (CELAJE)
G.R. No. 164273 | March 28, 2007 | Austria-Martinez, J. | Electronic Evidence
PETITIONER: Emmanuel B. Aznar
RESPONDENTS: Citibank, N.A., (Philippines)
SUMMARY: Petitioner Aznar, while vacationing in Malaysia, tried to use his
Citybank issued Mastercard. However, some establishments declined his card.
Petitioner Aznar claims that Citibank negligentlyblacklisted his card. Upon
returning to the Philippines, petitioner Aznar sued Citibank. To prove that his
card was blacklisted by respondent Citibank, petitioner Aznar presented a
computer print-out, denominated as ON-LINE AUTHORIZATIONS FOREIGN
ACCOUNT ACTIVITY REPORT, issued to him by Ingtan Agency (Exh. "G")
with the signature of one Victrina Elnado Nubi (Nubi) which shows that his
card in question was "DECL OVERLIMIT" or declared over the limit. Issue:
W/N Exh. G is admissible under the Rules on Electronic Evidence. No.
Pertinent sections of Rule 5 read: Section 2. Manner of authentication. – Before any private
electronic document offered as authentic is received in evidence, its authenticity must be proved by
any of the following means: xxx (c) by other evidence showing its integrity and reliability to the
satisfaction of the judge.
Aznar claims that his testimony complies with par. (c), i.e., it constitutes the
"other evidence showing integrity and reliability of Exh. "G" to the satisfaction
of the judge." SC was not convinced. Aznar’s testimony that the person from
Ingtan Agency merely handed him the computer print-out and that he thereafter
asked said person to sign the same cannot be considered as sufficient to show
said print-out’s integrity and reliability. As correctly pointed out by Judge
Marcos in his May 29, 1998 Decision, Exh. "G" does not show on its face that it
was issued by Ingtan Agency as Aznar merely mentioned in passing how he was
able to secure the print-out from the agency; Aznar also failed to show the
specific business address of the source of the computer print-out because while
the name of Ingtan Agency was mentioned by Aznar, its business address was
not reflected in the print-out.
DOCTRINE: To prove an electronic document under Rule 5, Sec, 2(c) of the
Rules on Electronic Evidence, mere allegations are not sufficient. Actual
evidence has to be shown regarding the integrity and reliability of the document.
FACTS:
1.! Emmanuel B. Aznar (Aznar), a known businessman2 in Cebu, is a holder of
a Preferred Master Credit Card (Mastercard) bearing number 5423-3920-
0786-7012 issued by Citibank with a credit limit of ₱150,000.00. As he and
his wife, Zoraida, planned to take their two grandchildren, Melissa and
Richard Beane, on an Asian tour, Aznar made a total advance deposit of
₱485,000.00 with Citibank with the intention of increasing his credit limit
to ₱635,000.00.3
2.! With the use of his Mastercard, Aznar purchased plane tickets to Kuala
Lumpur for his group worth ₱237,000.00. On July 17, 1994, Aznar, his wife
and grandchildren left Cebu for the said destination.4
3.! Aznar claims that when he presented his Mastercard in some establishments
in Malaysia, Singapore and Indonesia, the same was not honored.5 And
when he tried to use the same in Ingtan Tour and Travel Agency (Ingtan
Agency) in Indonesia to purchase plane tickets to Bali, it was again
dishonored for the reason that his card was blacklisted by Citibank. Such
dishonor forced him to buy the tickets in cash.6 He further claims that his
humiliation caused by the denial of his card was aggravated when Ingtan
Agency spoke of swindlers trying to use blacklisted cards.7 Aznar and his
group returned to the Philippines on August 10, 1994.8
4.! On August 26, 1994, Aznar filed a complaint for damages against Citibank,
docketed as Civil Case No. CEB-16474 and raffled to RTC Branch 20,
Cebu City, claiming that Citibank fraudulently or with gross negligence
blacklisted his Mastercard which forced him, his wife and grandchildren to
abort important tour destinations and prevented them from buying certain
items in their tour.9 10
5.! To prove that Citibank blacklisted his Mastercard, Aznar presented a
computer print-out, denominated as ON-LINE AUTHORIZATIONS
FOREIGN ACCOUNT ACTIVITY REPORT, issued to him by Ingtan
Agency (Exh. "G") with the signature of one Victrina Elnado Nubi
(Nubi)11 which shows that his card in question was "DECL OVERLIMIT"
or declared over the limit.12
6.! Citibank denied the allegation that it blacklisted Aznar’s card. To prove that
they did not blacklist Aznar’s card, Citibank’s Credit Card Department
Head, Dennis Flores, presented Warning Cancellation Bulletins which
contained the list of its canceled cards covering the period of Aznar’s trip.14
ISSUES:
1.! W/N Exh. "G" is admissible under the Rules on Electronic Evidence. No
because Aznar failed to demonstrate how the information reflected on the
print-out was generated and how the said information could be relied upon
as true.
RULING: WHEREFORE, the petition is denied for lack of merit.
RATIO:
1.! The answer is no. As correctly found by the RTC in its May 29, 1998
Decision, Aznar failed to prove with a preponderance of evidence that
Citibank blacklisted his Mastercard or placed the same on the "hot list."
2.! The dishonor of Aznar’s Mastercard is not sufficient to support a conclusion
that said credit card was blacklisted by Citibank, especially in view of
Aznar’s own admission that in other merchant establishments in Kuala
Lumpur and Singapore, his Mastercard was accepted and honored.
3.! Aznar puts much weight on the ON-LINE AUTHORIZATION FOREIGN
ACCOUNT ACTIVITY REPORT, a computer print-out handed to Aznar
by Ingtan Agency, marked as Exh. "G", to prove that his Mastercard was
dishonored for being blacklisted. On said print-out appears the words
"DECL OVERLIMIT" opposite Account No. 5423-3920-0786-7012.
4.! As correctly pointed out by the RTC and the CA, however, such exhibit
cannot be considered admissible as its authenticity and due execution were
not sufficiently established by petitioner.
5.! The prevailing rule at the time of the promulgation of the RTC Decision is
Section 20 of Rule 132 of the Rules of Court. It provides that whenever any
private document offered as authentic is received in evidence, its due
execution and authenticity must be proved either by (a) anyone who saw the
document executed or written; or (b) by evidence of the genuineness of the
signature or handwriting of the maker.
6.! Aznar, who testified on the authenticity of Exh. "G," did not actually see the
document executed or written, neither was he able to provide evidence on
the genuineness of the signature or handwriting of Nubi, who handed to him
said computer print-out.
show said print-out’s integrity and reliability.
11.! As correctly pointed out by Judge Marcos in his May 29, 1998 Decision,
Exh. "G" does not show on its face that it was issued by Ingtan Agency as
Aznar merely mentioned in passing how he was able to secure the print-out
from the agency; Aznar also failed to show the specific business address of
the source of the computer print-out because while the name of Ingtan
Agency was mentioned by Aznar, its business address was not reflected in
the print-out.45
12.! Indeed, Aznar failed to demonstrate how the information reflected on the
print-out was generated and how the said information could be relied upon
as true.
13.! Aznar next invokes Section 43 of Rule 130 of the Rules of Court, which pertains to entries in
the course of business, to support Exh. "G".
14.! As correctly pointed out by the RTC in its May 29, 1998 Decision, there appears on the
computer print-out the name of a certain "Victrina Elnado Nubi" and a signature purportedly
belonging to her, and at the left dorsal side were handwritten the words "Sorry for the delay
since the records had to be retrieved. Regards. Darryl Mario."
15.! It is not clear therefore if it was Nubi who encoded the information stated in the print-out and
was the one who printed the same. The handwritten annotation signed by a certain Darryl
Mario even suggests that it was Mario who printed the same and only handed the print-out to
Nubi. The identity of the entrant, required by the provision above mentioned, was therefore not
established. Neither did petitioner establish in what professional capacity did Mario or Nubi
make the entries, or whether the entries were made in the performance of their duty in the
ordinary or regular course of business or duty.

7.! Even if examined under the Rules on Electronic Evidence, which took 16.! And even if Exh. "G" is admitted as evidence, it only shows that the use of the credit card of
petitioner was denied because it was already over the limit. There is no allegation in the
effect on August 1, 2001, and which is being invoked by Aznar in this case, Complaint or evidence to show that there was gross negligence on the part of Citibank in
the authentication of Exh. "G" would still be found wanting. declaring that the credit card has been used over the limit.
8.! Pertinent sections of Rule 5 read: 17.! The claim of petitioner that Citibank blacklisted his card through fraud or gross negligence is
likewise effectively negated by the evidence of Citibank which was correctly upheld by the
a.! Section 2. Manner of authentication. – Before any private electronic document RTC and the CA.
offered as authentic is received in evidence, its authenticity must be proved by any
of the following means:
b.! (a) by evidence that it had been digitally signed by the person purported to have
signed the same;
c.! (b) by evidence that other appropriate security procedures or devices as may be
authorized by the Supreme Court or by law for authentication of electronic
documents were applied to the document; or
d.! (c) by other evidence showing its integrity and reliability to the satisfaction of
the judge.

9.! Aznar claims that his testimony complies with par. (c), i.e., it constitutes the
"other evidence showing integrity and reliability of Exh. "G" to the
satisfaction of the judge."
10.! The Court is not convinced. Aznar’s testimony that the person from Ingtan
Agency merely handed him the computer print-out and that he thereafter
asked said person to sign the same cannot be considered as sufficient to
 II. Pedagogical Devices
A. Computer-Generated Pedagogical Devices
Verizon Directories Corp. v. Yellow Book USA, Inc., 331 F. Supp. 2d
136 (E.D.N.Y 2004) The applicable literature identifies four overlapping main categories of computer
generated exhibits: static images, animations, simulations, and computer
District Court, E.D. New York models. See, e.g., Fred Galves, Where the Not-So-Wild Things Are: Computers in
the Courtroom, the Federal Rules of Evidence, and the Need for Institutional Reform
Filed: August 19th, 2004 and More Judicial Acceptance, 13 Harv. J. Law & Tech. 161, 177-81 (2000); Lori G.
Precedential Status: Precedential Baer & Christopher A. Riley, Technology in the Courtroom: Computerized Exhibits
Citations: 331 F. Supp. 2d 136 and How to Present Them, 66 Def. Couns. J. 176 (1999); Timothy W.
Docket Number: 04-CV-0251(JBW) Cerniglia, Computer-Generated Exhibits-Demonstrative, Substantive or
Author: Jack Bertrand Weinstein Pedagogical-Their Place in Evidence, 18 Am. J. Trial Advoc. 1, 4-5 (1994).
Presentations are frequently in a "power point" format with the attorney calling up
331 F. Supp. 2d 136 (2004) data and images as needed from huge files.
The first category "consists of static images that are simply projected onto a large
VERIZON DIRECTORIES CORP., Plaintiff,
screen or computer panel or to individual monitors by a computer display system."
v.
Galves, supra, at 177. These representations are common in courtrooms. They
YELLOW BOOK USA, INC., Defendant.
include tables, graphs, maps and diagrams.
No. 04-CV-0251(JBW).
Animations are, in their simplest terms, moving pictures. The computer allows
United States District Court, E.D. New York.
otherwise static images to be "shown in rapid succession to create the [illusion] of
August 19, 2004. motion." Baer & Riley, supra, at 177. The graphics are often crude or
*137 Charles B. Molster, III, Winston & Strawn, Washington, DC, Dan K. Webb, oversimplified. *138 Animations are not intended "to recreate or simulate an
Winston & Strawn, Chicago, IL, John P. Frantz, John Thorne, Verizon event." See Cerniglia, supra, at 5.
Communications, Arlington, VA, Peter Dykema, Lawrence O. Kamin, Willkie, Farr &
The third category is "simulations" or "recreations." Computer functions allow the
Gallagher, LLP, Richard Henry Dolan, Schlam, Stone & Dolan, LLP, New York, NY,
user to simulate actual events or, more properly, the opinion of the creator as to
James M. Koukios, Steven G. Bradbury, Steven A. Engel, Kirkland & Ellis LLP,
the nature of the events. Most simulations are detailed and realistic. The recreated
Washington, DC, for Plaintiff.
computer image of the event can be manipulated. It can be portrayed from different
Carolyn Lisa Miller, Willkie, Farr & Gallagher, LLP, Matthew A. Leish, Robert D. angles or from the viewpoints of different witnesses. A common use involves the
Balin, Samuel M. Leaf, Sharon Lee Schneier, Victor A. Kovner, Davis Wright recreation of accidents. See, e.g., Datskow v. Teledyne Continental Motors,826 F.
Tremaine LLP, Lawrence O. Kamin, Willkie Farr & Gallagher, LLP, New York, NY, Supp. 677, 685-86 (W.D.N.Y.1993) (noting that defendant objected to the "use of a
for Defendant. videotaped computer-generated animation which illustrated [ ] theory of where the
fire began inside the engine and how it spread.").
MEMORANDUM & ORDER The fourth category, computer models, are "nothing more than a compilation of
WEINSTEIN, Senior District Judge. mathematical formulae and expressions that are integrated into a sophisticated
computer program or series of programs." Cerniglia, supra, at 6. An expert witness
may test multiple hypotheses with the model and form opinions based on the results,
I. Introduction
producing graphics explicating the results.
Verizon Directories Corporation has sued Yellow Book USA, Inc., alleging that the
A fifth category should be admitted. It is "enhanced images," occupying the space
defendant has used false or misleading representations in advertising and in sales
between static images and animations. For the most part, an enhanced image is
and marketing communications. See 15 U.S.C. § 1125(a). The current phase of the
static, but the attorney or witness may manipulate the image through, for example,
litigation is a bench trial to determine preliminary injunctive relief, permanent
highlighting, enlarging particular areas, and presenting side-by-side split screen
injunctive relief and liability (damages issues, if any, to be put off for later jury
presentations or video-taped depositions with printed commentary or transcript
determination).
moving below in tandem with the image and audio of the deponent. Different colors
The parties have presented almost all exhibits in computer-generated formats as can be used to emphasize particular elements of the presentation or to show which
well as by hard copy. They were dubious about the admissibility of the many parts of a deposition are being presented by one side or the other. The parties may
pedagogical devices (often called "demonstratives") used in the trial. For the highlight selected text, enlarge graphics, modify images, or enlist other special
reasons stated below, the court finds that the scores of pedagogical devices used effects to illuminate a relevant point. See, e.g., Galves, supra, at 177 ("The
at trial, except for those stricken for error or lack of utility, are admitted into evidence.
computer technology here, therefore, simply makes those functions easier, quicker,
and more legible and understandable.").
A sixth category, easel writings and diagrams created by an expert or attorney
during the trial and in the presence of the trier, is old-hat. The technique is now
improved by almost instantaneous computer creation of printed versions that can be
projected onto the screen and converted to hard copy for the trier's notebook.
B. Use of Pedagogical Devices in the Instant Trial
Computer-generated exhibits in this trial are predominantly of the "enhanced
images" type. The judge, witness, court reporter, and lawyers have computer
monitors at their respective stations. There is a large screen in the courtroom. The
particular documents relied on by a witness or lawyer are displayed on the personal
monitors and projected onto the large screen as appropriate. Nearly every static
image of a document is enhanced by highlighting in color the portion of the text
believed by counsel to be telling, and by enlarging the selected text in a
superimposed box.
Relevant video deposition testimony is shown on the monitors and large screen. The
image of the deposition is supplemented by subtitles. Questions by plaintiff and
the concomitant responses are displayed in red colored text. Defendant's
questions and responses are shown in blue-colored text. Documents and other data
may be simultaneously shown on split screens. The portions of depositions relied
upon and counter designations are *139 broken up into "themes," explained by what
amount to mini-summations.
The parties use graphics to complement testimony, showing graphs, numerical
collections of raw and analyzed data from surveys, pie and bar charts, and
cartoonish images of persons, stacks of books or other objects, and "thought
bubbles." Although rudimentary, the images are effective in clarifying sometimes
dense expert testimony, statistical surveys and theories. They also utilize easel
writings and diagrams. When showing the television commercials at issue, images
may be "freeze-framed." The information is projected onto the large screen in the
courtroom and individual monitors from the party-operated computers or overhead
projector (referred to by counsel as "the Elmo," a brand of projector not actually used
in this trial).
Tens of thousands of "bates-numbered" pages that are part of comprehensive
collection of documents may be called up by the computer as needed. "Bates"
labeling is commonly used to assign numbers to pages identified during pretrial or
at trial. The term comes from the name of a brand of number stamping machine.
Internal indexes and other controls of documents in litigation often use these
identifying numbers. The numbers are now often automatically affixed during
electronic rapid scanning by litigation support software and services providers.
Computer-generated evidence as shown in the court is largely transient. The
computer technician electronically highlights text only for an instant. The
superimposed text boxes last only as long as the selected text is germane to the
testimony. Thus, preserving some computer generated evidence in its original form
for appellate review requires planning.
The parties provided the court with large numbers of notebooks containing
traditional documents, witness lists, and identifying data in conjunction with the
techniques already discussed, and pedagogicals. Were this a jury trial, including
some of this information in individual juror notebooks with pictures and identifying
data for witnesses would be appropriate.
The possibility of compression of evidence for record-keeping purposes is
substantial. For example, plaintiffs' exhibits filling seventeen large storage boxes
were reduced to two CDROM disks.
It should be noted that while the present phase of the case is a bench trial, should
the court decide there is liability, the damages phase will be tried before a jury. It
would seem sensible to allow a jury determining damages, if this event should come
to pass, to be assisted by the same pedagogical devices the court relied upon in
determining liability.
III. Law
A. General Current Practice Excluding as Evidence
Pedagogical devices or demonstratives have long been recognized in the form of
summaries, charts and other aids used by parties "to organize or aid the jury's
examination of testimony or documents which are themselves admitted into
evidence." See 6 Margaret A. Berger, et al., Federal Evidence, § 1006.04 [2]
(Joseph McLauglin, ed.2000). It is a common view among courts that such
pedagogical devices "are not evidence themselves, but are used merely to aid the
jury in its understanding of the evidence that has already been admitted." United
States v. Janati, 374 F.3d 263, 273 (4th Cir.2004) (citations omitted); see
also Gomez v. Great Lakes Steel Div. Nat'l Steel Corp., 803 F.2d 250, 257 (6th
Cir.1986). The use of such material in court is typically governed by Rule 611(a) of
the Federal Rules of Evidence. See Fed.R.Evid. 611(a) ("The court shall exercise
reasonable control over the mode and order of ... presenting evidence so as
to *140 (1) make the ... presentation effective for the ascertainment of
truth...."); Janati, 374 F.3d at 273 ("But displaying such charts is always under the
supervision of the district court under Rule 611(a), and in the end they are not
admitted as evidence."); Berger, supra, at § 1006.08[4] (citing court's authority
under Rule 611(a)).
Courts have generally declined to treat pedagogical devices as
evidence. See Berger, supra, at § 1006.08[4] ("Pedagogical-device summaries are
used to summarize evidence, but they are not evidence themselves."). Although
courts employ different terms for the aids, most circuits have generally excluded the
devices from evidence. See, e.g., United States v. Sawyer, 85 F.3d 713, 740 (1st
Cir.1996); United States v. Bradley, 869 F.2d 121, 123 (2d Cir.1989); United States
v. Pelullo,964 F.2d 193, 205 (3d Cir.1992); Janati, 374 F.3d at 273; Gomez, 803
F.2d at 257; United States v. Wood, 943 F.2d 1048, 1053 (9th Cir.1991).
In contrast to other decisions of the Court of Appeals for the Ninth Circuit, one panel
of that court has seemingly sanctioned the admission of pedagogical devices under
an abuse of discretion standard. See United States v. Poschwatta, 829 F.2d1477,
1481 (9th Cir.1987) ("Although the better practice may have been for the court to
allow the charts to be used as testimonial aids only, the district court did not abuse
its discretion.... The figures in the government chart already were admitted into
evidence and the defendant did not challenge the figures. Defendant also had a full
opportunity to cross-examine the witness. The charts arguably contributed to the
clarity of the presentation to the jury and were a reasonable method of presenting
evidence.") (citations omitted) (emphasis added). The Court of Appeals for the Sixth
Circuit, in dicta, has recognized instances in which the admission of pedagogical
devices is appropriate:
We note in passing that in appropriate circumstances not only may such pedagogical
device summaries be used as illustrative aids in the presentation of the evidence,
but they may also be admitted into evidence even though not within the specific
scope of Rule 1006. Such circumstances might be instances in which such
pedagogical device is so accurate and reliable a summary illustration or
extrapolation of testimonial or other evidence in the case as to reliably assist the
factfinder in understanding the evidence, although not within the specific
requirements of Rule 1006.
See United States v. Bray, 139 F.3d 1104, 1111-12 (6th Cir.1998).
Pedagogical devices are often unfavorably compared to summaries admitted under
Rule 1006. See Fed.R.Evid. 1006; The Evidence Project: Proposed Revisions to the
Federal Rules of Evidence, 171 F.R.D. 330, 677 (Thomas C. Goldstein, ed. 1997)
("[S]ome courts ... allowed summaries to be used only as nonevidentiary
pedagogical devices."). Summaries, unlike Rule 611(a) aids, are admissible as
proxies for voluminous records "which cannot be examined in court." Fed.R.Evid.
1006. Exclusion of pedagogical devices is grounded in the idea that such aids "are
more akin to argument than evidence since [they] organize[ ] the jury's examination
of testimony and documents already admitted in evidence." Bray, 139 F.3d at 1111.
Nevertheless, the distinction between Rule 1006 summaries and Rule 611(a)
pedagogical devices is often ignored by courts, and many admitted summaries
actually restate previously admitted evidence. One commentator found that in one
hundred percent of a sample of health care fraud cases the courts allowed
pedagogical tools into evidence. See Pamela H. Bucy, The Poor *141 Fit of
Traditional Evidentiary Doctrine and Sophisticated Crime: An Empirical Analysis of
Health Care Fraud Prosecutions, 62 Ford. L.Rev. 383, 416-17 (1994). The evidence
treatises caution that pedagogical devices should be used only in conjunction with
proper limiting instructions, "that jury aids ... are not evidence-in-chief but are only
the proponent's organization of the evidence presented." Berger, supra, at §
1006.08[4].
B. Theory and Practice Supporting Admission in Evidence
The purpose of a trial is to reveal the relevant real-world facts and to draw inferences
leading to proof or disproof of operative elements of a cause of action; it is
essentially a teaching learning process. See, e.g., Tehan v. Shott, 382 U.S. 406,
416, 86 S. Ct. 459, 15 L. Ed. 2d 453 (1966) ("The basic purpose of a trial is the
determination of truth...."). As the eminent professors Jerome Michael and Mortimer
Adler put the matter:
In its logical aspect the trial of an issue of fact can be viewed as a process of
teaching: By their proof and disproof of the contradictory propositions of which the
issue is constituted, the litigants impart to the jury the knowledge which it needs in
order to resolve the issue.... The process which, from the point of view of jurors, is
a passive affair of learning or inference and, from the point of view of litigants, an
active affair of teaching or proof, is a single process.
Jerome Michael & Mortimer J. Adler, Real Proof: 1, 5 Vand. L.Rev. 344, 344-46
(1952).
Forensic courtroom teaching is expected to be grounded in the real world. Evidence
of that world is produced, and from that evidence, using hypotheses, generally
based on knowledge the trier brings to the case, opinions are formed. They are
based upon rational syllogisms, leading to conclusions about statements of fact that
are material propositions (sometimes called operative facts) defined by the
law. See John H. Mansfield, Norman Abrams & Margaret A. Berger, et al., Cases
and Materials on Evidence 11-15 (9th ed.1997).
Michael and Adler describe the "kinds of knowledge involved in a trial:"
(1) Knowledge which the jury has independently of the evidence and proofs of the
litigants, most of which it will possess prior to the trial because in the locality of the
trial such knowledge is common to ordinary men or ordinary experience, but some
of which it may acquire during the trial; (2) knowledge which the jury acquires by
means of its sense in the observation of things and events which the litigants are
permitted to introduce as evidence; (3) knowledge which the jury acquires by means
of its reason in making the inferences involved in the steps and lines of proof which
the litigants are permitted to accomplish; and (4) knowledge which witnesses are
permitted to report or which is contained in documents which the litigants are
permitted to exhibit to the jury.
Without knowledge of the third sort, that obtained inferentially during a trial by its
rational powers, a jury could never decide a material issue; if it could, a trial need
not and would not involve proof.
Michael & Adler, supra, at 348.
The plaintiff's claim in this case is relatively simple: false or misleading advertising
was used by defendant to harm the claimant. The methods of proof, however,
involve complicated statistical data and expert testimony. This intricacy of proof is
increasingly typical of federal trials. Michael and Adler's third type of knowledge,
using the inferential powers of the jury and court, is difficult to acquire in such trials.
Jurors can be authorized to take *142 notes, but if the evidence and case are too
complicated, their on-the-run jottings will do them little good in their jury room
reasoning; ultimately, it is the trier's ability to think clearly in integrating evidence
and arguments and in drawing rational conclusions that is the essence of our system
of trials. Cf. United States v. Casamento, 887 F.2d 1141, 1151 (2d Cir.1989) ("This
court has long approved the use of charts in complex trials, and has allowed the jury
to have the charts in the jury room during its deliberations, so long as the judge
properly instructs the jury that it is not to consider the charts as evidence.") (citations
omitted).
The revolution in communicating that has occurred and is still occurring may
sometimes be distracting, but it can strengthen the ability of courts to seek truth.
Technology in litigation has changed enormously since the adoption of the Federal
Rules of Evidence in 1975. See, e.g., In re Electronic Case Filing, Administrative
Order 2004-08 (E.D.N.Y. June 22, 2004) ("Beginning on August 2, 2004, electronic
case filing will be mandatory for all civil cases other than pro se cases and for all
criminal cases."). In any complex case, computer-generated presentations are the
norm rather than the exception. As one commentator put it, "[d]esktop portable
computers now bedeck courtrooms like dandelions in May and, like dandelions, their
number, use and application continue to grow." Edward A. Hannan, Computer-
Generated Evidence: Testing The Envelope, 63 Def. Counsel J. 353, 362
(1996). Cf. Note, The Case for Disk-Based Litigation: Technology and the Cyber
Courtroom, 8 Harv. J. Law & Tech. 471, 471 (1995) ("[O]pponents blame such high-
technology presentation tools for accelerating the deterioration of the trial system's
integrity.").
Subject to Rule 403, with somewhat more stringent control in jury trials, pedagogical
aids should generally be admitted as evidence. They can be helpful to the court's
understanding of the complex and voluminous amount of evidence presented, as in
this case. The court is not as susceptible to the confusion the admission of such
evidence might induce in juries. But this evidence should also be admitted as
evidence in jury trials if it satisfies the requisites of Rules 402 and 403 of the Federal
Rules of Evidence.
Evidentiary rulings should be guided, as usual, by Rule 403. The district court's
normal discretion can be utilized to mitigate situations in which parties have vastly
different resources, creating an uneven technological playing field. In the instant
case, both parties have the financial wherewithal to present comparable computer-
generated evidence. The suggestion that trials are turning into legal smoke and
mirror laser light shows, lacking real substance, has no merit where the court
exercises appropriate control.
In light of ever-changing technology, wide ownership of personal computers,
expanding use of the internet, and personal digital assistant devices, among other
electronic innovations, the lay person is increasingly immune to confusion by the
encroachment of technology into heretofore primitive communication zones such as
the jury room. See, e.g., Datskow v. Teledyne Continental Motors, 826 F.
Supp. 677, 685 (W.D.N.Y.1993) ("Jurors, exposed as they are to television, the
movies, and picture magazines, are fairly sophisticated. With proper instruction, the
danger of their overvaluing such proof is slight.") (quoting 1 J. Margaret A. Berger,
et al., Federal Evidence ¶ 403[5] at 403-88 (1992 ed.) (footnotes omitted)).
The day may soon come when jurors routinely have individual computers or
computer monitors in the jury room. Most testimony in federal trials is
already *143 recorded electronically. It is the usual practice for parties to maintain
backups of computer-generated evidence in the event of computer
malfunction. See, e.g., Federal Judicial Center, Effective Use of Courtroom
Technology: A Judge's Guide to Pretrial and Trial at 56 (2001) ("Another common
occurrence is an occasional computer crash. A backup of all the files on an external
disk assures that the lawyer will be able to recover quickly."). Disks can be easily
scrubbed to eliminate extraneous portions and "corrected" new disks fed into the
jury room as needed, eliminating endless readbacks and enabling the court to get
onto the next case without delay.
Modern juries take notes, have notebooks containing key evidence and can ask
questions through the court. In the near future, they may have notebook computers.
They need not be treated as illiterates as under the old English practice.
Federal courts have sought to exclude outside influences from the courtroom. See,
e.g., Fed.R.Crim.P. 53 (provision against the photographing or broadcasting of
criminal proceedings). But the use of technology is not inconsistent with calm
deliberations based on material properly vetted for the courtroom. See, e.g., J.
Owen Forrester, The History of the Federal Judiciary's Automation Program, 44 Am.
U.L.Rev. 1483, 1490 (1995) ("One does not have to be a futurist to predict correctly
that automation tools will overtake and rapidly change traditional methods used by
lawyers, judges, and court managers. Whether automation within the courts
changes as rapidly as it is capable depends on budget restrictions, the rate at which
judges and managers become comfortable with automation, and the rate at which
technical support staff can adapt to new technologies.").
There are now relatively few trials in the district courts, but when they do take place,
substantial technological and other effort is often expended to present a case. See,
e.g., Blue Cross and Blue Shield of New Jersey, Inc. v. Philip Morris, Inc.,190 F.
Supp. 2d 407, 425 (E.D.N.Y.2002) (awarding attorney's fees of
$37,841,054.22); Cefalu v. Village of Elk Grove, 211F.3d 416, 429 (7th Cir.2000)
("[W]e believe that prevailing parties can, under appropriate circumstances, be
reimbursed for the cost [in excess of $27,000] of computer generated, multimedia
presentations even to the degree that such presentations are used not to produce
exhibits but rather to display them to the court."); Colleen Debaise, Courtroom-
Technology Firms Give Evidence State-of-the-Art Look, Wall St. J., May 26, 2004
("[T]he firm typically charges about $5,000 a week for trial technology, plus an
additional $6,000 to $10,000 a week for the use of a staff technician.").
Presenting an appellate court with only a print transcript would drain much of the
color and depth from the presentation that occurred in the courtroom. See In re
Sentencing, 219 F.R.D. 262 (E.D.N.Y.2004) (use of video cameras in sentencing so
appellate court can see the defendant and family). There is no reason appellate
judges should deny themselves the same learning advantages available to trial
judges, juries and the world at large. Cf. McDonough Power Equip., Inc. v.
Greenwood, 464 U.S. 548, 551 n. 3, 104 S. Ct. 845, 78 L. Ed. 2d 663 (1984)
("Appellate tribunals are poor substitutes for trial courts for developing a record or
resolving factual controversies.").
Yet, since the courts of appeal are already over-burdened, they may not have the
time to fully review computer-generated and other pedagogical evidence. See,
e.g., Dunton v. Suffolk County, 748 F.2d 69, 70 (2d Cir.1984) (referring to
"unnecessarily swollen appellate dockets"). The *144 Court of Appeals for the
Second Circuit has, for example, sometimes taken a narrow view of the admissibility
of audio-visual evidence. See, e.g., Rotolo v. Digital Equipment
Corp., 150 F.3d 223(2d Cir.1998) (vacating judgment based on films characterized
as inadmissible hearsay evidence), rev'g in part Geressy v. Digital Equipment
Corp., 980 F. Supp. 640 (E.D.N.Y.1997) (finding that keyboard caused repetitive
stress injuries, utilizing as evidence training films used in the keyboard industry). But
see Gonzalez v. Digital Equipment Corp., 8 F. Supp. 2d 194(E.D.N.Y.1998) (coming
to a conclusion regarding admissibility different from that of the court of appeals
in Rotolo). In a jury trial, the court must be particularly careful to avoid the
interjection of material that an appellate court may believe to contain unacceptable
hearsay, prejudicial opinions or other material, even though it is easily discountable
by properly instructed jurors.
There may be occasions when the ability of the attorney to utilize computer-
generated evidence to manipulate the viewer's subconscious may escape the
awareness of the court. In the instant case, for example, the choice of red-colored
text for the plaintiff's subtitled video depositions and blue-colored text for the
defendant's selections could be motivated by a reasonable belief that red and blue
text have varying influences on the viewer. See, e.g., Elizabeth L.
Browning, Demonstrative Evidence Created In-House, 34 Houston Lawyer 19
(1998) ("Red is an attention-getter. For an important fact, such as a name, an event,
or a dollar total to a series of numbers, use red. Present your client in cool, pleasing
colors, such as blues and greens.").
Courts should be aware of the heightened power of audio-visual evidence. Showing
the trier deposition testimony in color, for example, revealing vivid body language,
pauses and verbal emphases, sometimes elicits a different reaction from the viewer
than would a reading of a typed transcript. The trial court must exercise appropriate
sensitive control over the proceedings, issuing limiting instructions when
appropriate, to ensure that the results of a trial are not tainted by misunderstanding
and prejudice. See United States v. Tin Yat Chin, 371 F.3d 31, 40 (2d Cir.2004)
(abuse of discretion standard in evidentiary rulings); Fed.R.Evid. 611 Advisory
Committee's Note ("The ultimate responsibility for the effective working of the
adversary system rests with the [trial] judge.").
Increased flexibility in the use of educational devices will probably result in
courtroom findings more consonant with truth and law. Whether designated as
"pedagogical devices" or "demonstratives," this material may be admitted as
evidence when it is accurate, reliable and will "assist the factfinder in understanding
the evidence." Bray, 139 F.3d at 1112. Present highly professional and skilled
counsel agree. They have stipulated to admit in evidence each of the non-stricken
excellent pedagogical devices used in the trial.

IV. Conclusion
All pedagogical devices that the court has seen or heard are admitted as evidence,
except where the court has ruled some such evidence unsatisfactory in conception
or execution, and it has been stricken. They clarified relevant evidence and issues
and are accurate and reliable. Their probative value is not "substantially outweighed
by the danger of unfair prejudice or confusion of the issues, ... or by considerations
of undue delay, waste of time, or needless presentation of cumulative evidence."
Fed.R.Evid. 403.
SO ORDERED.
 768 N.W.2d 250 (2009)
2009 WI App 78
STATE of Wisconsin, Plaintiff-Respondent,
v.
Jeremy C. DENTON, Defendant-Appellant.
State of Wisconsin, Plaintiff-Respondent,
v.
Aubrey W. Dahl, Defendant-Appellant.
Nos. 2007AP2825-CR, 2007AP2826-CR.
Court of Appeals of Wisconsin.
Submitted on Briefs January 14, 2009.
Opinion Filed May 13, 2009.
*252 On behalf of the defendants-appellants, the cause was submitted on the briefs
of Steven P. Weiss, assistant state public defender of Madison and Paul G.
Bonneson of Law Offices of Paul G. Bonneson, Wauwatosa. There was oral
argument by Patrick Donnelly and Paul Bonneson.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of and
oral argument of Jeffrey J. Kassel, assistant attorney general, and J.B. Van Hollen,
attorney general.
Before BROWN, C.J., SNYDER and NEUBAUER, JJ.
¶ 1 NEUBAUER, J.
Jeremy C. Denton and Aubrey W. Dahl (the defendants) appeal from judgments of
conviction for attempted kidnapping, attempted false imprisonment, and party to the
crime of attempted armed robbery. The defendants appeal from the trial court orders
denying their motions for postconviction relief. They challenge (1) the trial court's
admission of a computer generated animation, (2) the propriety of a kidnapping
charge in addition to a robbery charge, and (3) the sufficiency of the evidence to
support their convictions. We conclude that the trial court erroneously exercised its
discretion when it admitted a computer-generated exhibit created and presented by
a police officer who was not an expert, and who possessed no firsthand knowledge
of the facts depicted in the animation which purportedly illustrated the State's key
witnesses' combined testimony *253 of "what people did" during the alleged crime.
We further conclude that the State has failed to carry its burden of proving that the
trial court's error was harmless. We therefore reverse the judgments of conviction
and the orders denying postconviction relief. We remand for further proceedings.
BACKGROUND
¶ 2 On August 26, 2005, the State charged the defendants with one count of
attempted armed robbery arising out of an incident which occurred on August 21,
2005. Following a preliminary hearing on November 23, 2005, the State filed an
information charging the defendants with attempted armed robbery, attempted
kidnapping with a weapon enhancer, and attempted false imprisonment with a
weapon enhancer. The defendants were tried together on July 10 and 11, 2006.
¶ 3 The facts underlying the charges, as testified to at trial, are as follows. On August
21, 2005, at approximately 7:15 a.m., Walworth county dispatch advised officers of
a 911 call of what appeared to be an attempted abduction. According to the victim,
Judy Giovannoni, she was jogging northbound on Highway 67 on the west side of
the road when a car, also heading north, pulled off on the east side of the road. A
male (later identified as Dahl) exited the car and began running towards her saying
something that she could not understand. Giovannoni then turned around and began
running south when a second man (later identified as Denton) got out of the car and
yelled words at her to the effect of "[G]et on the ground I have a f[uck]ing gun."
Giovannoni then ran out on to the highway and a second vehicle stopped and let
her enter the vehicle. They then turned around and followed the first vehicle. The
driver of the second vehicle, Dennis Hohisel, called 911. They found the first vehicle
in a ditch near Theater Road and Highway 67.
¶ 4 Hohisel testified that he was driving southbound on Highway 67 when he and
his passenger observed a man in blue jeans and a white tank top (Denton) "chasing
a woman down the side of the road on the west side of the road heading south. The
woman was running frantically from the gentleman." Hohisel drove around him and
observed the woman, later identified as Giovannoni, trying to flag them down.
Hohisel let her get into the vehicle. When he looked in his rearview mirror, he
observed the same individual they had previously seen approaching their vehicle,
and he appeared to hold a firearm in his hand. Hohisel's passenger, Leah Biever,
also stated that she observed this individual with what appeared to be a handgun in
his hand.
¶ 5 Neither defendant testified at trial. Detective Roger Clapper testified that the
police implemented a search but were unable to find a gun. Clapper testified that
the defendants had been in Williams Bay panhandling for money and that they were
turned down without incident.
¶ 6 Following a two-day trial, the jury found the defendants guilty on all counts;
however, the jury did not find that a weapon was used. The defendants were
sentenced on September 20, 2006, and sought postconviction relief on June 15,
2007. Following a hearing on November 19, 2007, the trial court denied the
defendants' postconviction motions. Additional facts relevant to the issues on appeal
will be provided in the discussion.
DISCUSSION
Computer-Generated Animation
¶ 7 The defendants contend that the trial court erred in admitting a computer-
generated animation introduced by *254 the State to illustrate the testimony of the
State's witnesses.[1] The facts underlying the defendants' challenges are as follows.
On the morning of the second and final day of trial, the State disclosed its intent to
introduce a computer-generated animation to assist the jury in determining "who
was where [and] when." The defendants objected due to lack of sufficient notice to
permit them to rebut the evidence, including retaining their own expert, and lack of
accuracy. The defendants argued that it was "unduly prejudicial." After viewing the
animation, the trial court commented:
[T]he demonstration the Court has just now seen certainly is sophisticated. It. . .
doesn't rise to the level of video games, but it certainly is a sophisticated diagram. .
. . I think that the defense is obviously wounded by this because it's pretty
sophisticated and quite convincing.. . . Obviously it is prejudicial to the defense
because it's quite clear how . . . Giovannoni's testimony is illustrated but it is not
unfair.
The animation was presented by Officer Anthony Ambach, who first presented a
computer-generated diagram reflecting the measurements he relied on in making
the animation. The measurements had been taken by Clapper during a visit to the
scene with Giovannoni. Ambach had not personally observed the scene, although
he was familiar with the general area. The animation, which was based on "people's
memories," was presented to the jury to "assist the jury in understanding directions,
what people did, that sort of thing." Ambach, who was sequestered during the trial,
based the animation upon his review of officers' reports and out-of-court discussions
with Giovannoni, Hohisel, and Biever.[2] He acknowledged that he *255 had no
personal knowledge of what was depicted in the animation.
¶ 8 At trial, Ambach played several versions of the animation, showing "all the key
players" and the scene from different angles, including an overhead view and views
from the vantage of both Giovannoni and Hohisel if they had been looking straight
ahead. On cross-examination, Ambach acknowledged that if the animation differed
from testimony given at trial, the animation would be an inaccurate depiction.
Ambach agreed on cross that if Biever testified that Dahl was walking slowly, and
the animation showed him running or jogging, that would not be accurate.
¶ 9 No record was made of exactly what the jury saw.[3] While the animation was
being presented, the district attorney provided a running "narration," albeit in
question form.[4] The disc provided on appeal does not contain an exact copy of
everything that was played for the jury, nor can it be manipulated as it was at trial.
¶ 10 On appeal, the defendants raise numerous challenges to the State's
introduction of the computer-generated animation: (1) the State failed to disclose
the computer-generated animation until the morning of the second and final day of
trial; (2) the trial court failed to give any limiting or cautionary instruction to the jury
explaining that the computer-generated animation was not evidence but only
demonstrative of witness testimony; (3) the prosecutor essentially narrated the
animation, thereby presenting unsworn, uncross-examined testimony to the jury;
and (4) the State and trial court failed to preserve a copy of the animation used at
trial. The defendants additionally argue that the particular facts of this case further
warranted the exclusion of the animation: (1) the State failed to lay a proper
foundation for the animation, (2) the animation presented improper hearsay and only
depicted certain versions of the incident, and (3) Ambach failed to use proper
methods and procedures in creating the animation. The State correctly points out
that the objections preserved before the trial court were lack of notice, inaccuracy,
undue prejudice *256 and, arguably, lack of foundation.[5] Therefore, we will limit our
discussion to these grounds.
¶ 11 The State submits that the computer-generated animation was intended as a
demonstrative exhibit. The decision to admit or exclude demonstrative evidence is
committed to the trial court's discretion.[6]State v. Gribble, 2001 WI App 227, ¶
55, 248 Wis. 2d 409, 636 N.W.2d 488. As long as the trial court demonstrates a
reasonable basis for its determination, this court must defer to the trial court's
ruling. Id. In exercising its discretion, the trial court must determine whether the
demonstrative evidence is relevant, WIS. STAT. §§ 904.01 and 904.02, and whether
its probative value is substantially outweighed by the danger of unfair prejudice
under WIS. STAT. § 904.03.[7]Gribble, 248 Wis. 2d 409, ¶ 55, 636 N.W.2d488; State
v. Peterson, 222 Wis. 2d 449, 454, 588 N.W.2d 84 (Ct. App.1998). We conclude
that the trial court erred in its determination permitting admissibility of the exhibit.
¶ 12 The defendants did not have notice regarding the use of the computer-
generated animation. While "surprise" is not a basis for exclusion under WIS. STAT.
§ 904.03, "testimony which results in surprise may be excluded if the surprise would
require a continuance causing undue delay or if surprise is coupled with the danger
of prejudice and confusion of issues." Roy v. St. Lukes Med. Ctr., 2007 WI App 218,
¶ 12, 305 Wis. 2d 658, 741 N.W.2d 256, review denied, 2008 WI 19, 307 Wis.
2d 293, 746 N.W.2d 810 (2008) (citation omitted). For several reasons, the surprise
in this case was coupled with the danger of prejudice and confusion.
¶ 13 In examining unfair surprise in relation to undue prejudice, the State urges us
to follow the standard set forth in Roy, a medical malpractice case. The issue in Roy
was whether the trial court erred in allowing the defendant-physician to play two
video animations for the jury which purported to depict both parties' theories of the
events that transpired during an angiogram procedure. Roy, 305 Wis. 2d 658, ¶
1, 741 N.W.2d 256. The plaintiff's attorneys were not made aware of the animations
until the fifth day of an eight-day trial. Id., ¶ 5. The trial court's decision to admit the
animation was upheld on appeal. Id., ¶ 1.
¶ 14 However, the nature of the computer animation in this case differs significantly
from that presented in Roy. There, the animations, characterized as "illustrative,"
were introduced during the defendants' liability expert's testimony and *257sought
to depict the expert's theory of the case, as well as the plaintiff's theory of the
case. Id., ¶ 5. The court concluded that the "video animation was `a graphic
illustration of [the expert's] previously disclosed opinions.'" Id., ¶ 18. "[T]he
animations do not purport to show `in a step-by-step fashion' what happened to [the
plaintiff]." Id., ¶ 17. Moreover, the Roy court rejected the plaintiff's reliance on a case
in which the animation depicted only the plaintiff's theory of causation, noting that in
Roy, "an animation was also provided to depict [the plaintiff's] theory; thus, the one-
sided animation at issue in Spyrka [v. County of Cook, 366 Ill.App.3d 156, 303 Ill.
Dec. 613, 851 N.E.2d 800 (2006),] is wholly distinguishable." Roy, 305 Wis. 2d 658,
¶ 17, 741 N.W.2d 256.
¶ 15 The State's reliance on Roy illuminates the confusion as to Ambach's role at
trial and the nature of the computer-generated animation. The animation in Roy was
introduced via expert testimony and served to illustrate that expert's opinion and the
plaintiff's expert's opinion regarding competing theories of causation. Here,
however, Ambach was not introduced as an expert witness, the animation was not
intended to illustrate his expert opinion, and it was not represented to illustrate
possibilities.
¶ 16 As a lay witness, Ambach's testimony should have been limited to matters of
which he had personal knowledge. SeeWIS. STAT. § 906.02. Section 906.02
provides:
Lack of personal knowledge. A witness may not testify to a matter unless evidence
is introduced sufficient to support a finding that the witness has personal knowledge
of the matter. Evidence to prove personal knowledge may, but need not, consist of
the testimony of the witness. This rule is subject to the provisions of s. 907.03
relating to opinion testimony by expert witnesses.
Contrary to the State's assertions, the computer-generated animation was not
simply a demonstrative exhibit like a rough drawing on a chalkboard used to
illustrate a testifying lay witness's testimony. See Anderson v. State, 66 Wis.
2d 233, 248, 223 N.W.2d 879 (1974). Rather, as Ambach testified at trial, it was
intended to depict the State's three key witnesses' "memories" and show "what
people did." Thus, the animation combined elements from the testimony of
Giovannoni, Hohisel, and Biever with measurements provided by Clapper to
produce an animation which summarized the State's version of what occurred. As a
lay witness lacking personal knowledge, Ambach's testimony to that effect was
inadmissible.
¶ 17 Turning to probative value, we examine the State's failure to lay a foundation
for the admission of the animation. See, e.g., Gribble, 248 Wis. 2d 409, ¶
57, 636 N.W.2d 488 (in determining probative value, the court considered the
foundation laid and the credentials of the testifying witness). Again, the State relies
on Roy in support of its contention that computer-generated animation may be
admitted without witness testimony that the animation fairly and accurately depicts
what it purports to depict. The State contends, based on Roy, that it is not required
to lay a foundation for a computer-generated animation in the same way that one is
laid for a photograph or video. See Peterson, 222 Wis.2d at 452-56, 588 N.W.2d 84.
Specifically, the State cites to the Roy court's observation:
[A] defense expert is allowed to produce evidence of possibilities. . . . "Although the
party with the burden of proof must produce testimony based upon reasonable
medical probabilities, the opposing party is not restricted to *258 this requirement
and may attempt to weaken the claim for injuries with medical proof couched in
terms of possibilities."
See Roy, 305 Wis. 2d 658, ¶ 20, 741 N.W.2d 256 (citations omitted). However,
the Roy court's determination was not based on the fact that the evidence sought to
be admitted was an animation, as opposed to photograph or video. Rather,
the Roycourt was addressing an expert's ability to use an animation to illustrate his
or her opinion. Here, Ambach was not illustrating an expert opinion on possible
scenarios, his animation showed distances, where the defendants, the victim and
witnesses were, and "what people did." We reject the State's argument that
computer-generated animation used as a demonstrative exhibit to show the scene
and events of the alleged crime is exempt from longstanding foundation
requirements.[8]
¶ 18 A determination of relevance demands that evidence offered at trial be
connected to the subject matter at issue. Authentication is a special aspect of
relevancy and is preliminary and precedent to a question of
admissibility. See Judicial Council Committee Note, 1974, WIS. STAT. § 909.01
Here, there was no authentication by any of the witnesses that the animation fairly
and accurately represented their testimony and no single witness had firsthand
knowledge as to what was depicted in the animation. See WIS. STAT. §§ 909.01
and 909.015[9]; see also 2 KENNETH S. BROUN, McCORMICK ON EVIDENCE §
214 (6th ed. 2006) ("The authenticating testimony from a witness would establish
that the animated CGE is a fair and accurate representation of what the witness is
trying to describe, and admission of the animation would be within the discretion of
the trial judge."). The computer-generated animation was introduced to clarify
Giovannoni's testimony; however, Giovannoni never testified that the animation
fairly and accurately represented her recollection of the events.[10]Although *259 the
animation was not expressly introduced to clarify Hohisel's testimony, it incorporated
aspects of his testimony and, like Giovannoni, Hohisel never testified to his belief
that the animation captured his recollection of events. Neither did Biever. The
confusion resulting from this compilation of testimony is evidenced in the trial court's
observation that the animation "illustrated" Giovannoni's testimony when, in reality,
it illustrated much more than that.
¶ 19 In the end, Ambach's role as a witness was to combine the testimony of the
State's witnesses and present an animation reflecting a singular version of the
facts the events of August 21, 2005. Ambach was not an expert witness or an
evidentiary witness.[11] He lacked personal knowledge of the facts underlying the
animation and he provided no new testimony. While the trial court correctly
determined that a party may use computer-generated animations to clarify a
witness's testimony, the trial court erred in admitting the computer-generated
animation as it was presented in this case.
¶ 20 Demonstrative computer-generated animation should be introduced in
conjunction with the witness's testimony it seeks to clarify just as any diagram or
photo intended to clarify a lay witness's testimony would be
introduced. See Anderson,66 Wis.2d at 248, 223 N.W.2d 879 ("Demonstrative
evidence, whether a model, a chart, a photograph . . . is used simply to lend clarity
and interest to oral testimony [and] is merely incorporated by reference into a
witness' testimony."); see also 7 DANIEL D. BLINKA, WISCONSIN PRACTICE:
WISCONSIN EVIDENCE § 401.6 (3d ed. May 2008) ("Wisconsin law permits
demonstrations by the witnesses of relevant events that are within their personal
knowledge, including the commission of the crime or wrong" if the demonstration
may make the testimony more understandable.).
¶ 21 Here, the State effectively presented its version of the substantive facts about
what happened in animated form during the evidentiary phase of the trial. Because
Ambach was neither expert nor lay witness, and the video animation was not
testified to as being either a fair and accurate representation or illustrative of any
one witness's testimony, it had little probative value as a demonstrative exhibit,
presented a very real danger of confusing and misleading the jury, and was unduly
prejudicial to the defendants.
¶ 22 Far from being an exhibit which merely illustrated a lay witness's testimony or
an expert's opinion, this exhibit was nothing more than a collage of
information *260 bits and pieces from each of the State's witnesses when, mixed
together, effectively represented the police officer's own version of what occurred at
the time and place in question. But the animator was not an eyewitness to the crime.
His assessment about how the crime actually unfolded was just that, his collage, his
assessment. By bringing this nonevidentiary perspective of the evidence to life by
means of the computer-generated animation, and advising the jury that this was a
representation of what happened, the jury was invited to view the collage as fact. A
pasting of differing and sometimes conflicting facts from a mixture of witnesses, in
an order that made most sense to the State, thus became the final, conclusive
historical factual presentation of the crime. This is why it was unduly prejudicial. The
animation superceded the sifting and winnowing that a jury normally does when fact
witnesses describe the same event in varying and sometimes contradictory ways.
¶ 23 The trial court determined that the probative value of the computer-generated
animation evidence outweighed its prejudicial effect. For the reasons set forth
above, we reverse that determination. The trial court erroneously exercised its
discretion in admitting the evidence. It weighed the elements of prejudicial effect
and probative value, and came to a conclusion which cannot be reasonably
supported by the law or the facts of record.
Harmless Error
¶ 24 Due to our conclusion that the trial court erred in admitting the evidence, we
must determine whether the error was harmless. An error will be deemed harmless
if it does not affect the defendant's substantial rights. WIS. STAT. § 805.18(2). To
make this determination, "the test [is] whether there is a reasonable possibility that
the error contributed to the conviction. If it did, reversal and a new trial must
result." State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222 (1985). The State,
as the beneficiary of the error, has the burden "to establish that there is no
reasonable possibility that the error contributed to the conviction." Id. Our "focus [is]
on whether the error undermines our confidence in the case's outcome." State v.
Thoms, 228 Wis. 2d 868, 873, 599 N.W.2d 84 (Ct.App.1999). In this case, we
conclude that it does.
¶ 25 Ambach was the final witness at trial. He was neither an expert nor an
evidentiary witness. He testified that he was a police officer and that he had
developed the computer-generated animation presented. The illustration, played
repeatedly from several different angles, presented the State's three key witnesses'
testimony as one story as though they all recalled exactly the same facts about
"what people did." Given the absence of pretrial notice, lack of probative value, and
the risk of prejudice and confusion about the role both of Ambach and the purpose
of the animation, we simply cannot conclude that there is no reasonable possibility
that the animation contributed to the conviction, and our confidence in the outcome
has been undermined.
The State Was Entitled to Charge Kidnapping and Robbery.
¶ 26 The defendants additionally contend that the State cannot prove an attempted
kidnapping charge based on the events underlying the attempted robbery charge.
The defendants contend that, under the State's theory, every robbery would
automatically include a kidnapping under WIS. STAT. § 940.31(1)(b) because a
person is stopped (seized) and ordered to turn over money (held to service against
one's will). The defendants posit that the "held to service" language in the kidnapping
statute "must be limited to situations *261 of forced labor, or involuntary servitude."
Although we have already concluded that the defendants are entitled to a new trial,
we nevertheless address this issue because it is likely to recur on
remand. See State ex rel. Jackson v. Coffey, 18 Wis. 2d 529,
533, 118 N.W.2d 939 (1963) (issues briefed may be considered if they are likely to
recur on remand even though other issues are dispositive of appeal).
¶ 27 We reject the defendants' argument for two reasons. First, Wisconsin law
recognizes that a defendant may be prosecuted for kidnapping even when the
kidnapping is incidental to another charged crime. See Harris v. State, 78 Wis.
2d357, 254 N.W.2d 291 (1977), criticized on other grounds by Wilson v.
State, 82 Wis. 2d 657, 264 N.W.2d 234 (1978). In Harris, our supreme court
recognized that it "is the law of this state that the same criminal act may constitute
different crimes with similar but not identical elements." Id. at 365, 254 N.W.2d 291.
Therefore, the State may attempt to produce sufficient evidence to prove both the
elements of kidnapping and robbery. See WIS. STAT. § 939.65 ("[I]f an act forms
the basis for a crime punishable under more than one statutory provision,
prosecution may proceed under any or all such provisions.").
¶ 28 Second, the defendants' attempt to narrow the definition of the "held to service"
element of kidnapping to "forced labor, or involuntary servitude" ignores prior case
law. The defendants acknowledge that in State v. Clement, 153 Wis. 2d287,
293, 450 N.W.2d 789 (Ct.App.1989), we held that "[t]he word `service,' as it is used
in [WIS. STAT. § ] 940.31, includes acts done at the command of another."
Although Clement set forth that definition while rejecting a defendant's contention
that a kidnapping charge could not "be fulfilled by sexual assault alone," the
definition of "service" remains the same. See Clement, 153 Wis.2d at
292, 450 N.W.2d 789. We therefore conclude that the State was entitled to charge
kidnapping in this case, and we reject the defendants' contention that the kidnapping
conviction must be reversed regardless of the sufficiency of the evidence.
CONCLUSION
¶ 29 We conclude that the trial court erred in its admission of the State's computer-
generated animation and that the error was not harmless. We further conclude that
the State was permitted to charge both attempted kidnapping and attempted armed
robbery. We reverse the judgments and orders and remand for further proceedings.
Judgments and orders reversed and cause remanded with directions.
NOTES
[1] The use of computer-generated animations as demonstrative aids at trial is a
relatively recent development in the law. At the postconviction hearing, the district
attorney in this case testified that this was the first time he had ever used a
computer-generated animation at trial. However, the use of animations is recognized
and described as follows in 2 KENNETH S. BROUN, MCCORMICK ON EVIDENCE
§ 214 (6th ed.2006):
Animations. Computer-generated animations present a series of static images
which the computer can show in rapid succession. This creates the illusion of
motion, like a cartoon. Many simple animations are offered to illustrate the factual
testimony of a witness. For example, an animated CGE [computer-generated
exhibit] might portray the simple motion of a person walking; or, the images can
move in rotation to show an object from different perspectives; gradual enlargement
can show an object or scene from different distances. These simple animations are
not used for the purpose of recreating or simulating an event. The authenticating
testimony from a witness would establish that the animated CGE is a fair and
accurate representation of what the witness is trying to describe, and admission of
the animation would be within the discretion of the trial judge. . . .
To the extent that CGEs represent simply a new type of illustrative evidence, their
admissibility is controlled by the basic principles applied to all demonstrative
aids. Id., § 218. Computer-generated simulations and models, on the other hand,
are not just illustrative evidence as they re-create disputed events. Id. Their creation
requires the use of scientific data, principles and methods to formulate a computer-
generated conclusion about the events at issue. Id. The conclusion is then sought
to be introduced directly through the CGE or to be used by an expert to form an
opinion. Id.
[2] At the postconviction motion hearing, Ambach testified that he met with
Giovannoni on the Friday before the trial began on Monday. At that point, he had a
"raw animation already created" and then made changes based on Giovannoni's
input. On Monday, the morning of trial, Ambach showed the animation to Hohisel
and Biever and again made changes to the animation. He testified: "[O]n Monday
morning I met with everybody in the conference room, showed them the animation,
and then the two witnesses [Hohisel and Biever] fine tuned what they did as far as
the vehicle and pulling off the road, stopping, turning around, and proceeding after
the two suspects." The animation was not provided to the defense until the next
morning, and there were no recesses prior to its presentation at trial later that
morning. Ambach was sequestered during the trial and the final changes to the
animation took place prior to the witnesses actually testifying at trial. When asked
whether he knew at the time he testified "whether the animation actually tracked
[Giovannoni's] actual testimony on the witness stand," Ambach answered that he
did not, "because [he] was sequestered."
[3] At trial, Ambach played the animation from the hard drive of his computer but
agreed to put the animation on a disc for the record. The parties agree that the
animation submitted to this court on disc is not an exact copy of what was viewed
by the jury.
[4] We cite the following portion of the trial transcript as an example of this "narrative"
questioning:
[State] So it shows her jogging on the left-hand side?
[Ambach] Correct. Which would be the west side of the road.
[State] The vehicle stops in front of her?
[Ambach] That's correct.
[State] And people get out of the car?
[Ambach] That's correct.
....
[State] So we see a vehicle now, a green vehicle stopped on the right-hand side
continuing. I'll try and narrate it and correct me if I'm wrong. Two people get out, one
by the left fender, and one stops closer to the car, the black clothing person. The
white clothing person is now crossing the road southwest, [Giovannoni] is heading
southeast, a vehicle comes depicting the Hohisel vehicle, correct?
[5] The State argues that those objections raised on appeal, but not raised before
the trial court, should be addressed in the context of ineffective assistance of trial
counsel. Based on our determination that the trial court erred in admitting the
evidence on the objections that were made at trial, we need not address this
argument further. See Gross v. Hoffman, 227Wis. 296, 300, 277 N.W. 663 (1938)
(if decision on one point disposes of appeal, appellate court will not decide other
issues raised).
[6] Demonstrative evidence is used simply to lend clarity and interest to oral
testimony. Anderson v. State, 66 Wis. 2d 233, 248, 223 N.W.2d 879 (1974).
[7] WISCONSIN STAT. § 904.03 (2007-08) provides:
Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time.
Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise
noted.
[8] The State argues that the exhibit is an illustration, not intended to be like a photo
or video, yet at the same time, the State contends that it was needed to clarify
Giovannoni's testimony because she was completely unable to provide any accurate
estimates of the distances between her, the defendants, and their car. The State
argued to the trial court that it was "not trying to recreate the crime," and yet on
appeal the State compares Ambach's role to a crime scene reconstructionist. The
State's repeated reliance on Roy v. St. Lukes Medical Center, 2007 WI
App 218, 305 Wis. 2d 658, 741 N.W.2d 256, and inconsistent characterizations as
to Ambach's role (expert or lay witness) and the animation's intended purpose
(substantive evidence versus demonstrative evidence, i.e., a simulation clarifying
distances and showing "what people did" versus a rough illustration) underscores
the multiple problems with its relevance, probative value and risk of undue prejudice.
[9] WISCONSIN STAT. § 909.01 provides: "The requirements of authentication or
identification as a condition precedent to admissibility are satisfied by evidence
sufficient to support a finding that the matter in question is what its proponent
claims."
[10] For example, Giovannoni had testified that she was not aware whether Denton,
who had the gun, ever left the back fender of the vehicle or "approached [her] closer"
because after she turned around, she did not look back. However, the computer-
generated animation represents Denton as leaving that area and pursuing, or
running after, Giovannoni down the road. This would presumably be based on
Hohisel's testimony that he observed a man following Giovannoni.
The defendants' counsel objected on this basis while the animation was being shown
to the jury, stating:
[T]his depiction does not reflect what any of the witnesses testified to in that it is not
being shown from the perspective of the vision of a witness. . . . [T]o now depict the
whole thing as though [Giovannoni, Hohisel or Biever] have a view of exactly what
happened, when nobody testified that they were in a position to see this whole
overall thing unfold . . . is not an accurate depiction of what any of the witness'
testimony was from their perspective.
[11] We note that Ambach's lack of personal knowledge as to the facts underlying
the animation, all of which were gathered outside the confines of the trial, also
serves to undermine the State's contention that any inaccuracy in the animation
could be addressed through cross-examination. While the defense attempted to
cross-examine Ambach based on certain discrepancies between witness testimony
and details in the animation, Ambach lacked the ability to respond meaningfully. If,
as in Roy, the animation was intended to depict Ambach's opinion, cross-
examination could be an effective means of discrediting the witness and the content
of the animation. See Roy, 305 Wis. 2d 658, ¶¶ 24-25, 741 N.W.2d 256 (cross-
examination with respect to a demonstrative aid in an effort to impeach credibility of
an expert witness can cure and eliminate prejudice). However, here, Ambach was
not an expert who previously tendered his opinion and the bases for his opinion, nor
did he have personal knowledge. We reject the State's contention that cross-
examination provided an adequate means of addressing the admission of the
animation in this case.
 No. 13-803-cr
United States Court of Appeals, Second Circuit.

United States v. Vayner

769 F.3d 125 (2d Cir. 2014)
Decided Oct 3, 2014

No. 13–803–cr.

2014-10-3

UNITED STATES of America, Appellee, v. Semyon VAYNER, aka Sam Vayner, aka Semen, Defendant,
Aliaksandr Zhyltsou, Defendant–Appellant.

Tali Farhadian (Jo Ann M. Navickas, on the brief), Assistant United States Attorneys, for Loretta E. Lynch,
United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee. Yuanchung Lee,
Assistant Federal Public Defender, Federal Defenders of New York, Inc., New York, NY, for Defendant–
Appellant.

DEBRA ANN LIVINGSTON

126 *126
Tali Farhadian (Jo Ann M. Navickas, on the brief), Assistant United States Attorneys, for Loretta E. Lynch,
United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee. Yuanchung Lee,
Assistant Federal Public Defender, Federal Defenders of New York, Inc., New York, NY, for Defendant–
127 Appellant.*127
Before WESLEY, LIVINGSTON, and LOHIER, Circuit Judges.

DEBRA ANN LIVINGSTON, Circuit Judge:

In Defendant–Appellant Aliaksandr Zhyltsou's criminal trial on a single charge of transfer of a false

identification document, the government offered into evidence a printed copy of a web page, which it claimed
was Zhyltsou's profile page from a Russian social networking site akin to Facebook. The district court (Glasser,
J.) admitted the printout over Zhyltsou's objection that the page had not been properly authenticated under Rule
901 of the Federal Rules of Evidence. We conclude that the district court erred in admitting the web page
evidence because the government presented insufficient evidence that the page was what the government
claimed it to be—that is, Zhyltsou's profile page, as opposed to a profile page on the Internet that Zhyltsou did
not create or control. Because the district court abused its discretion in admitting the evidence, and because this
error was not harmless, we vacate the conviction and remand for retrial.

BACKGROUND
Aliaksandr Zhyltsou was convicted after trial on a single count of the unlawful transfer of a false identification
document, in violation of 18 U.S.C. § 1028(a)(2) and (b)(1)(A)(ii). At trial, the government's principal evidence
against Zhyltsou was the testimony of Vladyslav Timku, a Ukrainian citizen residing in Brooklyn who testified
pursuant to a cooperation agreement and who had earlier pled guilty to conspiracy to commit wire fraud,

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 United States v. Vayner 769 F.3d 125 (2d Cir. 2014)

aggravated identity theft, and impersonating a diplomat. Timku testified that he was a friend of Zhyltsou's and
was familiar with Zhyltsou's work as a forger because he had previously paid Zhyltsou to create false
diplomatic identification documents in a scheme to avoid taxes on the purchase and resale of luxury
automobiles through a corporation called Martex International. Timku said that in the summer of 2009 he asked
Zhyltsou to create a forged birth certificate that would reflect that Timku was the father of an invented infant
daughter. Timku sought the birth certificate in an attempt to avoid compulsory military service in his native
Ukraine, which permits a deferment of service for the parents of children under three years of age. According
to Timku, Zhyltsou agreed to forge the birth certificate without charge, as a “favor,” and began creating the
fake birth certificate on a computer while the pair chatted in a Brooklyn Internet café. Timku testified that
Zhyltsou sent the completed forgery to Timku via e-mail on August 27, 2009 fromazmadeuz@ gmail. com (the
“Gmail address”), an e-mail address that Timku had often used to correspond with Zhyltsou. After receiving
the document, Timku thanked Zhyltsou and then went on to use the fake document to receive the deferment
from military service that he sought. The government introduced a copy of the e-mail, with the forged birth
certificate as an attachment, which reflected that it was sent to Timku's e-mail address, “timkuvlad@ yahoo.
com,” fromazmadeuz@ gmail. com.

The government presented several other witnesses who corroborated certain aspects of Timku's testimony—
regarding the falsity of the birth certificate, the Ukrainian military deferment for parents of young children, and
the path of the e-mail in question through servers in California. There was expert testimony to the effect that
the e-mail originated in New York, but no evidence as to what computer it was sent from, or what IP addresses
128 were linked to it. Thus, near the conclusion of the prosecution's case, only Timku's testimony*128 directly
connected Zhyltsou with the Gmail address that was used to transmit the fake birth certificate to Timku.1
Before the prosecution rested, however, the government indicated to the district court that it planned to call an
unexpected final witness: Robert Cline, a Special Agent with the State Department's Diplomatic Security
Service (“DSS”). The government said that it intended to introduce a printout of a web page that the
government claimed to be Zhyltsou's profile on VK.com (“VK”), which Special Agent Cline described as “the
Russian equivalent of Facebook.” J.A. 36. Zhyltsou objected, contending that the page had not been properly
authenticated and was thus inadmissible under Federal Rule of Evidence 901.2 The district court overruled the
defense objection, concluding that the VK page was “[Zhyltsou's] Facebook page. The information on there, I
think it's fair to assume, is information which was provided by him.” J.A. 32. Moreover, the court ruled,
“There's no question about the authenticity of th[e] document so far as it's coming off the Internet now.” J.A.
32.
1 The government did introduce evidence showing that the azmadeuz @ gmail. com account was closed two days after

Zhyltsou had an encounter with federal agents. In summation, the government argued that the closure circumstantially
supported the theory that Zhyltsou was the owner of the account. However, federal agents were questioning Timku that
day regarding other criminal charges. (Zhyltsou happened to be present and was himself questioned only briefly.) The
defense intimated in its summation that Timku would also have had reason to delete the account at that time.

2 Zhyltsou also objected to the district court's admission of the VK page on the ground that it was not disclosed to him

before trial in violation of Rule 16 of the Federal Rules of Criminal Procedure. Rule 16 provides grounds for reversal if
the “government's untimely disclosure of the evidence” caused the defendant “substantial prejudice.” United States v.
Salameh, 152 F.3d 88, 130 (2d Cir.1998) (per curiam) (internal quotation marks omitted). Zhyltsou argued that the page
was not provided to him before trial and that he was prejudiced due to his inability to conduct forensic analysis in an
attempt to discover the source of the information on the VK page. We incline to agree with Zhyltsou that the late
disclosure may have “adversely affected some aspect of his trial strategy,” United States v. Miller, 116 F.3d 641, 681

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 United States v. Vayner 769 F.3d 125 (2d Cir. 2014)

(2d Cir.1997) (internal quotation mark omitted), because his counsel argued in his opening statement—based on the
evidence provided in discovery by the government at that time—that there was no evidence corroborating Timku's
testimony that the Gmail address belonged to Zhyltsou. Because we vacate Zhyltsou's conviction on other grounds,
however, we need not reach the issue of whether the timing of the disclosure caused him substantial prejudice. For the
same reason, we also need not reach Zhyltsou's additional argument that his conviction must be vacated due to error in
the district court's supplemental instruction in response to a jury question.

During his testimony, Special Agent Cline identified the printout as being from “the Russian equivalent of
Facebook.” He noted to the jury that the page purported to be the profile of “Alexander Zhiltsov” (an alternate
spelling of Zhyltsou's name), and that it contained a photograph of Zhyltsou. Importantly for the government's
case, Special Agent Cline next pointed out that under the heading, “Contact Information,” the profile listed
“Azmadeuz” as “Zhiltsov's” address on Skype (a service that Special Agent Cline described as a “voiceover IP
provider”). The web page also reflected that “Zhiltsov” worked at a company called “Martex International” and
at an Internet café called “Cyber Heaven,” which corresponded with Timku's earlier testimony that Zhyltsou
and Timku had both worked for those entities. On cross-examination, Special Agent Cline admitted that he had
129 only a “cursory familiarity” with VK, had never used the site except to view this single page, and did not *129
know whether any identity verification was required in order for a user to create an account on the site. In its
summation, the government argued that it had proven that Zhyltsou had produced the fake birth certificate and
sent it to Timku using the Gmail address. In the final words of her summation, the Assistant United States
Attorney (“AUSA”) argued that proof of the connection between Zhyltsou and the Gmail address could be
found on Zhyltsou's “own Russian Facebook page”:

It has the defendant's profile picture on it. You'll see that it confirms other facts that you've learned about the
defendant. That he worked at Martex and at Cyber Heaven, for example. He told [a DSS agent] that he's from
Belarus. This page says he's from Minsk, the capital of Belarus. And on that page, you'll see the name he uses
on Skype which, like e-mail, is a way to correspond with people over the Internet.

Azmadeuz. That [is] his online identity, ladies and gentlemen, for Skype and for [G]mail. That is [w]hat the
defendant calls himself. Timku even told you that the defendant sometimes uses azmadeuz@ yahoo. com. That
[is] his own name on the Internet. Timku didn't make it up for him. The defendant made it up for himself.

Aliaksandr Zhyltsou made a fake birth certificate and he sent it through e-mail. Those are the facts. The
defendant is guilty. Find him so. Thank you.
G.A. 65–66.

After deliberating for approximately a day and a half, the jury found Zhyltsou guilty on the single charge
contained in the indictment. Subsequently, the district court sentenced Zhyltsou principally to time served and
one year of post-release supervision.3 Judgment was entered in March 2013, and Zhyltsou brought this timely
appeal.
3 Zhyltsou was denied bail pending trial; all told, he spent approximately one year in detention.

DISCUSSION
The preliminary decision regarding authentication is committed to the district court, United States v. Sliker, 751
F.2d 477, 499 (2d Cir.1984), and we review that decision for abuse of discretion, United States v. Dhinsa, 243
F.3d 635, 658 (2d Cir.2001). “A district court abuses its discretion when it bases its ruling on an erroneous view

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 United States v. Vayner 769 F.3d 125 (2d Cir. 2014)

of the law or on a clearly erroneous assessment of the evidence, or renders a decision that cannot be located
within the range of permissible decisions.” Porter v. Quarantillo, 722 F.3d 94, 97 (2d Cir.2013) (brackets and
internal quotation marks omitted).

I.
“The requirement of authentication is ... a condition precedent to admitting evidence.” Sliker, 751 F.2d at 497;
see also United States v. Maldonado–Rivera, 922 F.2d 934, 957 (2d Cir.1990) (“In general, a document may not
be admitted into evidence unless it is shown to be genuine.”). Rule 901 of the Federal Rules of Evidence
governs the authentication of evidence and provides, in pertinent part: “To satisfy the requirement of
authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a
130 finding that the item is what the proponent claims it is.” Fed.R.Evid. 901(a).4 “This requirement is satisfied*130
if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or
identification.” United States v. Pluta, 176 F.3d 43,49 (2d Cir.1999) (internal quotation marks omitted). The
ultimate determination as to whether the evidence is, in fact, what its proponent claims is thereafter a matter for
the jury. See Sliker, 751 F.2d at 499.
4 We note that Rule 902 provides for several classes of “self-authenticating” evidence—that is, evidence “requir[ing] no

extrinsic evidence of authenticity in order to be admitted.” Fed.R.Evid. 902. None of the categories enumerated in the
rule (which include, inter alia, certain public records, periodicals, or business records) applies to the VK page.

Rule 901 “does not definitively establish the nature or quantum of proof that is required” preliminarily to
authenticate an item of evidence. Id. at 499. “The type and quantum of evidence” required is “related to the
purpose for which the evidence is offered,” id. at 488, and depends upon a context-specific determination
whether the proof advanced is sufficient to support a finding that the item in question is what its proponent
claims it to be. We have said that “[t]he bar for authentication of evidence is not particularly high.” United
States v. Gagliardi, 506 F.3d 140, 151(2d Cir.2007). But even though “[t]he proponent need not rule out all
possibilities inconsistent with authenticity, or ... prove beyond any doubt that the evidence is what it purports to
be,” id. (internal quotation marks omitted), there must nonetheless be at least “sufficient proof ... so that a
reasonable juror could find in favor of authenticity or identification,” Pluta, 176 F.3d at 49 (internal quotation
marks omitted).

The “proof of authentication may be direct or circumstantial.” United States v. Al–Moayad, 545 F.3d 139, 172
(2d Cir.2008). The simplest (and likely most common) form of authentication is through “the testimony of a
‘witness with knowledge’ that ‘a matter is what it is claimed to be.’ ” United States v. Rommy, 506 F.3d 108,
138 (2d Cir.2007) (quoting Fed.R.Evid. 901(b)(1) (pre–2011 amendments)). This is by no means exclusive,
however: Rule 901 provides several examples of proper authentication techniques in different contexts,
seeFed.R.Evid. 901(b), and the advisory committee's note states that these are “not intended as an exclusive
enumeration of allowable methods but are meant to guide and suggest, leaving room for growth and
development in this area of the law,” Fed.R.Evid. 901 advisory committee's note (Note to Subdivision (b)).

Some examples illustrate the point. For instance, we have said that a document can be authenticated by
“distinctive characteristics of the document itself, such as its ‘[a]ppearance, contents, substance, internal
patterns, or other distinctive characteristics, taken in conjunction with the circumstances.’ ” Maldonado–
Rivera, 922 F.2d at 957 (alteration in original) (quoting Fed.R.Evid. 901(b)(4) (pre–2011 amendments)); see
also Sliker, 751 F.2d at 488 (contents of alleged bank records, in conjunction with their seizure at purported
bank office, provided sufficient proof of their connection to allegedly sham bank). Or, where the evidence in

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 United States v. Vayner 769 F.3d 125 (2d Cir. 2014)

question is a recorded call, we have said that “[w]hile a mere assertion of identity by a person talking on the
telephone is not in itself sufficient to authenticate that person's identity, some additional evidence, which need
not fall into any set pattern, may provide the necessary foundation.” Dhinsa, 243 F.3d at 658–59 (brackets and
internal quotation marks omitted); see also Sliker, 751 F.2d at 499 (voice on tape recording was sufficiently
authenticated as defendant's based on comparison of taped voice with defendant's trial testimony). And in a
case where credit card receipts purportedly signed by the defendant would have tended to support his alibi
defense, we ruled that the defendant's copies had been sufficiently authenticated, despite some question as to
131 *131 when these copies had been signed, where the defendant offered testimony from store managers as to how
the receipts were produced, testimony from the defendant's wife (a joint holder of the credit card) that she had
not made the purchases in question, and testimony from a handwriting expert that the defendant's signature was
genuine. United States v. Tin Yat Chin, 371 F.3d 31, 35–38 (2d Cir.2004).5
5 Some courts have suggested applying “greater scrutiny” or particularized methods for the authentication of evidence

derived from the Internet due to a “heightened possibility for manipulation.” Griffin v. State, 419 Md. 343, 19 A.3d
415, 424 (2011) (citing cases). Although we are skeptical that such scrutiny is required, we need not address the issue
as the government's proffered authentication in this case fails under Rule 901's general authentication requirement.

As we have said, “[a]uthentication of course merely renders [evidence] admissible, leaving the issue of [its]
ultimate reliability to the jury.” United States v. Tropeano, 252 F.3d 653, 661(2d Cir.2001). Thus, after the
proponent of the evidence has adduced sufficient evidence to support a finding that the proffered evidence is
what it is claimed to be, the opposing party “remains free to challenge the reliability of the evidence, to
minimize its importance, or to argue alternative interpretations of its meaning, but these and similar other
challenges go to the weight of the evidence—not to its admissibility.” Tin Yat Chin, 371 F.3d at 38.

II.
Based on these principles, we conclude that the district court abused its discretion in admitting the VK web
page, as it did so without proper authentication under Rule 901. The government did not provide a sufficient
basis on which to conclude that the proffered printout was what the government claimed it to be— Zhyltsou's
profile page—and there was thus insufficient evidence to authenticate the VK page and to permit its
consideration by the jury.

In the district court, the government initially advanced the argument that it offered the evidence simply as a
web page that existed on the Internet at the time of trial, not as evidence of Zhyltsou's own statements. The
prosecution first represented to the district court that it was presenting the VK page only as “what [Special
Agent Cline] is observing today on the Internet, just today,” J.A. 26, conceded that “the agent does not know
who created it,” and averred that Special Agent Cline would testify only that “he saw [the VK page] and this is
what it says,” J.A. 30. Consistent with these representations, Special Agent Cline testified only that the page
containing information related to Zhyltsou was presently accessible on the Internet and provided no extrinsic
information showing that Zhyltsou was the page's author or otherwise tying the page to Zhyltsou.6
6 Certain statements by the district court could also support this view of the government's theory of the introduction of

the VK page—notably, the district court's suggestion that the page was properly authenticated solely by the fact that it
was “coming off the Internet now.” J.A. 32. As noted below, however, this rationale for authentication is inconsistent
with the manner in which the evidence was admitted by the district court and the way it was employed by the
government at trial.

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 United States v. Vayner 769 F.3d 125 (2d Cir. 2014)

At other times, however, the government repeatedly made a contrary argument to both the trial court and the
132 jury, and insisted that the page belonged to and was authored by Zhyltsou.7 Nor is this *132 surprising. The VK
profile page was helpful to the government's case only if it belonged to Zhyltsou—if it was his profile page,
created by him or someone acting on his behalf—and thus tended to establish that Zhyltsou used the moniker
“Azmadeuz” on Skype and was likely also to have used it for the Gmail address from which the forged birth
certificate was sent, just as Timku claimed. Moreover, the district court overruled Zhyltsou's hearsay objection
and admitted a printout of the profile page, which stated that “Zhiltsov's” Skype username was “Azmadeuz,”
because it found that the page was created by Zhyltsou, and the statement therefore constituted a party
admission. See J.A. 23 (The Court: “This is a statement made by your client. This is his Facebook record.”);
J.A. 29–30 (describing the government's plan to establish that the Gmail address was Zhyltsou's “by what [the
court] regard[ed] to be perfectly legitimate admissible evidence of what it is, the assumption is quite clear that
what appears on the Facebook page is information which was provided by” Zhyltsou); J.A. 32 (The Court: “It's
his Facebook page. The information on there, I think it's fair to assume, is information which was provided by
him.”); see alsoFed.R.Evid. 801(d)(2)(A) (defining an opposing party's statement as non-hearsay).
7 See J.A. 21(AUSA to the district court: “This is the defendant's Russian Facebook page.... [It] contains his Skype

address which is the same formulation [“]azmadeuz[”] next to his photograph.”); G.A. 66 (AUSA in summation to the
jury: “Azmadeuz. That [is] his online identity, ladies and gentlemen, for Skype and for [G]mail. That is [w]hat the
defendant calls himself. Timku even told you that the defendant sometimes uses azmadeuz@ yahoo. com. That [is] his
own name on the Internet. Timku didn't make it up for him. The defendant made it up for himself.”)

As noted above, Rule 901 requires “evidence sufficient to support a finding that the item is what the proponent
claims it is.” It is uncontroverted that information about Zhyltsou appeared on the VK page: his name,
photograph, and some details about his life consistent with Timku's testimony about him. But there was no
evidence that Zhyltsou himself had created the page or was responsible for its contents. Had the government
sought to introduce, for instance, a flyer found on the street that contained Zhyltsou's Skype address and was
purportedly written or authorized by him, the district court surely would have required some evidence that the
flyer did, in fact, emanate from Zhyltsou. Otherwise, how could the statements in the flyer be attributed to him?
Cf. Dhinsa, 243 F.3d at 658–59 (“[A] mere assertion of identity by a person talking on the telephone is not in
itself sufficient to authenticate that person's identity....”). And contrary to the government's argument, the mere
fact that a page with Zhyltsou's name and photograph happened to exist on the Internet at the time of Special
Agent Cline's testimony does not permit a reasonable conclusion that this page was created by the defendant or
on his behalf.

It is true that the contents or “distinctive characteristics” of a document can sometimes alone provide
circumstantial evidence sufficient for authentication. Fed. R. Evid. 901(b)(4). For example, a writing may be
authenticated by evidence “that the contents of the writing were not a matter of common knowledge.”
Maldonado–Rivera, 922 F.2d at 957 (brackets and internal quotation marks omitted). Here, however, all the
information contained on the VK page allegedly tying the page to Zhyltsou was also known by Timku and
likely others, some of whom may have had reasons to create a profile page falsely attributed to the defendant.
Other than the page itself, moreover, no evidence in the record suggested that Zhyltsou even had a VK profile
133 page, much less that the page *133 in question was that page. Nor was there any evidence that identity
verification is necessary to create such a page with VK, which might also have helped render more than
speculative the conclusion that the page in question belonged to Zhyltsou.

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 United States v. Vayner 769 F.3d 125 (2d Cir. 2014)

We express no view on what kind of evidence would have been sufficient to authenticate the VK page and
warrant its consideration by the jury. Evidence may be authenticated in many ways, and as with any piece of
evidence whose authenticity is in question, the “type and quantum” of evidence necessary to authenticate a web
page will always depend on context. Sliker, 751 F.2d at 488. Given the purpose for which the web page in this
case was introduced, however—to corroborate Timku's testimony that it was Zhyltsou who used the moniker
“azmadeuz” for the Gmail address from which the forged birth certificate was sent—Rule 901 required that
there be some basis beyond Timku's own testimony on which a reasonable juror could conclude that the page in
question was not just any Internet page, but in fact Zhyltsou's profile. No such showing was made and the
evidence should therefore have been excluded.

III.
An erroneous evidentiary decision that has no constitutional dimension is reviewed for harmless error. United
States v. Dukagjini, 326 F.3d 45, 61–62 (2d Cir.2003). “A district court's erroneous admission of evidence is
harmless if the appellate court can conclude with fair assurance that the evidence did not substantially influence
the jury.” Al–Moayad, 545 F.3d at 164 (internal quotation marks omitted). “In order to uphold a verdict in the
face of an evidentiary error, it must be ‘highly probable’ that the error did not affect the verdict.” Dukagjini,
326 F.3d at 61 (quoting United States v. Forrester, 60 F.3d 52, 64 (2d Cir.1995)); see also Kotteakos v. United
States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) (holding that error is not harmless if the court
“cannot say, with fair assurance ... that the judgment was not substantially swayed by the error”); United States
v. Kaplan, 490 F.3d 110, 123 (2d Cir.2007) (stating that an error “is harmless if we can conclude that [the
evidence] was unimportant in relation to everything else the jury considered on the issue in question, as
revealed in the record.” (internal quotation marks omitted)). In conducting the harmlessness analysis, we
consider:

(1) the overall strength of the prosecution's case; (2) the prosecutor's conduct with respect to the improperly
admitted evidence; (3) the importance of the wrongly admitted evidence; and (4) whether such evidence was
cumulative of other properly admitted evidence.
United States v. McCallum, 584 F.3d 471, 478 (2d Cir.2009) (brackets and internal quotation marks omitted).
“We have frequently stated that the strength of the government's case is the most critical factor in assessing
whether error was harmless.” United States v. Ramirez, 609 F.3d 495, 501 (2d Cir.2010).

It was, of course, vital to the government's case to prove that it was in fact Zhyltsou who used the Gmail
address to send the fake birth certificate to Timku. This was the only point truly in contention at trial. Further,
the prosecution's case on this point was far from overwhelming: with the limited exception of the
circumstantial evidence that the Gmail account was closed shortly after Zhyltsou encountered federal agents,
134 the only evidence that connected Zhyltsou to the emailed birth certificate, other than the VK page, *134 was
Timku's testimony.8
8 While the government presented several witnesses to bolster other parts of Timku's testimony, none presented any

evidence that Zhyltsou had sent the birth certificate. Those witnesses testified, respectively, (1) that the invented
infant's birth certificate was in fact a forgery; (2) that Ukraine imposes compulsive military service that permits certain
exemptions, including for those with children under three years of age; (3) that the e-mail with the birth certificate
attached did in fact travel from azmadeuz@ gmail. com to Timku's e-mail address; and (4) that in 2011 Zhyltsou had
been briefly stopped and questioned by federal agents, shortly after which (5) the Gmail account that was used to send
the birth certificate was closed.

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 United States v. Vayner 769 F.3d 125 (2d Cir. 2014)

The jury may well have been reluctant to rely on Timku's testimony alone. Pursuant to his cooperation
agreement, Timku pled guilty to three felonies—aggravated identity theft, impersonating a diplomat, and
conspiracy to commit wire fraud—each of which involved deceit. Timku's business operation, which he said he
carried on with Zhyltsou's help, involved using fake identification papers and shell companies to commit tax
fraud in the course of exporting luxury vehicles for sale in Ukraine and Russia. Timku admitted that he had
destroyed evidence and fled the country after federal agents questioned him concerning this scheme. He also
testified that he paid a United States citizen to enter into a sham marriage with him and opened a joint bank
account in their names with the intention of deceiving immigration authorities into thinking that the marriage
was genuine. All this likely undermined Timku's credibility, and may even have led the jury to believe that
Timku could have used his expertise in fabricating identities and documents to create false evidence to
substantiate his testimony against Zhyltsou.

Moreover, as the government recognized, the VK page provided significant corroboration of Timku's testimony
that the Gmail address belonged to Zhyltsou. As the AUSA argued in urging that the VK page should be
admitted by the district court, the fact that “this particularly unique section of letters that make up his e-mail
address [is] found on [Zhyltsou's] Facebook page with his picture go[es] a long way to proving that he is the
owner of this address.” J.A. 25–26. The district judge agreed that the evidence tended to establish that the
Gmail address was Zhyltsou's. J.A. 29–30. Indeed, the AUSA pressed the significance of the VK profile in the
final words of her summation, arguing to the jury that the defendant's own web page linked him—through the
moniker “Azmadeuz”—to the Gmail account used to send the birth certificate. G.A. 65–66.

In sum, the government's proof on the issue of whether Zhyltsou transferred the fake birth certificate was not
unassailable. As a result, the printout of the VK profile was by no means cumulative, but played an important
role in the government's case, which the AUSA augmented by highlighting the evidence in her summation. See
United States v. Grinage, 390 F.3d 746, 751(2d Cir.2004) ( “Where the erroneously admitted evidence goes to
the heart of the case against the defendant, and the other evidence against the defendant is weak, we cannot
conclude that the evidence was unimportant or was not a substantial factor in the jury's verdict.”). Because the
wrongly admitted evidence was “the sort of evidence that might well sway a jury” confronted with a case
otherwise turning solely on the word of a single witness whose credibility was weak, Kaplan, 490 F.3d at 123;
135 cf. id. (discussing such proof in the context of a “marginal circumstantial case”), we conclude that the *135
district court's error was not harmless and requires vacatur.

CONCLUSION
For the foregoing reasons, the judgment of the district court is VACATED and the case is REMANDED for a
new trial.

8
 No. 14-1798
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

United States v. Browne

834 F.3d 403 (3d Cir. 2016)
Decided Aug 25, 2016

No. 14–1798

08-25-2016

United States of America v. Tony Jefferson Browne, Appellant

Everard E. Potter, Esq. [ARGUED], Ronald Sharpe, Esq., Office of United States Attorney, 5500 Veterans
Building, Suite 260, United States Courthouse, St. Thomas, VI 00802, Counsel for Appellee Omodare Jupiter,
Esq. [ARGUED], Office of Federal Public Defender, 1115 Strand Street, Suite 201, Christiansted, VI 00820,
Counsel for Appellant

Krause, Circuit Judge.

Everard E. Potter, Esq. [ARGUED], Ronald Sharpe, Esq., Office of United States Attorney, 5500 Veterans
Building, Suite 260, United States Courthouse, St. Thomas, VI 00802, Counsel for Appellee

Omodare Jupiter, Esq. [ARGUED], Office of Federal Public Defender, 1115 Strand Street, Suite 201,
Christiansted, VI 00820, Counsel for Appellant

BEFORE: FISHER, KRAUSE, and ROTH, Circuit Judges

OPINION OF THE COURT

Krause, Circuit Judge.

The advent of social media has presented the courts with new challenges in the prosecution of criminal
offenses, including in the way data is authenticated under the Federal Rules of Evidence—a prerequisite to
admissibility at trial. Appellant Tony Jefferson Browne was convicted of child pornography and sexual offenses
with minors based in part on records of “chats” exchanged over Facebook and now contests his conviction on
the ground that these records were not properly authenticated with evidence of his authorship. Although we
disagree with the Government's assertion that, pursuant to Rule 902(11), the contents of these communications
were “self-authenticating” as business records accompanied by a certificate from the website's records
custodian, we will nonetheless affirm because the trial record reflects more than sufficient extrinsic evidence to
link Browne to the chats and thereby satisfy the Government's authentication burden under a conventional Rule
901 analysis.

I. Background
A. Facts

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 United States v. Browne 834 F.3d 403 (3d Cir. 2016)

Facebook is a social networking website that requires users to provide a name and email address to establish an
account. Account holders can, among other things, add other users to their “friends” list and communicate with
them through Facebook chats, or messages.

Under the Facebook account name “Billy Button,” Browne began exchanging messages with 18–year–old
Nicole Dalmida in November 2011. They met in person a few months later and then exchanged sexually
explicit photographs of themselves through Facebook chats. Browne then threatened to publish Dalmida's
photos online unless Dalmida engaged in oral sex and promised to delete the photos only if she provided him
the password to her Facebook account.

Using Dalmida's account, Browne made contact with four of Dalmida's “Facebook friends,” all minors—T.P.
(12 years old), A.M. (15 years old), J.B. (15 years old) and J.S. (17 years old)—and solicited explicit photos
from them by a variety of means. Once he had the minors' photos, he repeated the pattern he had established
406 with Dalmida, threatening all of them with the *406 public exposure of their images unless they agreed to
engage in various sexual acts and sent additional explicit photos of themselves to his Button Facebook account
or to his phone number (“the 998 number”). He arranged to meet with three of the minors and sexually
assaulted one.

On receiving information from the Virgin Islands Police Department, agents from the Department of Homeland
Security (DHS) interviewed Dalmida and three of the minors. In June 2013, DHS arrested Browne and
executed a search warrant on his residence. Among the items seized was a cell phone that matched the 998
number and from which text messages and photos of the minors were recovered. During questioning and at
trial, Browne admitted the 998 number and phone belonged to him. DHS executed a search warrant on the
Button Facebook account, which Browne also admitted belonged to him, and Facebook provided five sets of
chats and a certificate of authenticity executed by its records custodian.

B. Proceedings
At trial, over defense counsel's objections, the District Court admitted the five Facebook chat logs and
certificate of authenticity into evidence. Four of the chats involved communications between the Billy Button
account and, respectively, Dalmida, J.B., J.S. and T.P.1 The fifth chat did not involve Button's account and took
place between Dalmida and J.B., on the subject of Browne's sexual assault of J.B. The certificate stated, in
accordance with Rule 902(11) of the Federal Rules of Evidence, that the records that Facebook had produced
for the named accounts met the business records requirements of Rule 803(6)(A)–(C). Tracking the language of
Rule 803(6), the custodian certified that the records “were made and kept by the automated systems of
Facebook in the course of regularly conducted activity as a regular practice of Facebook ... [and] were made at
or near the time the information was transmitted by the Facebook user.” App. 403; see Fed. R. Evid. 803(6).
1 The Government did not seek to admit into evidence any Facebook messages sent from the Button account to the

remaining minor victim, A.M., but photos of A.M. were among those recovered from the phone seized from Browne's
home and admitted into evidence.

Relevant to this appeal, seven witnesses testified for the Government: Dalmida and the four minors, and two
Special Agents from DHS. Dalmida and the four minors provided extensive testimony about their
communications with Button. According to that testimony, using Dalmida's Facebook account, Browne sent
explicit photos of Dalmida to T.P. and A.M. and requested photos in return, and using his own Facebook

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 United States v. Browne 834 F.3d 403 (3d Cir. 2016)

account, he contacted J.S. and offered to pay her for sexually explicit photos of herself. The testimony and chat
logs also established that Browne used Dalmida's account to instruct J.B. to add him as a friend on Facebook,
after which he used his own account to send her explicit photos of himself and asked her to do the same.

All four minors testified that after receiving requests for explicit photos, they complied by sending Facebook
messages to the Button account or by texting images to the 998 number, and that they subsequently received
threats that their photos would be published online if they did not comply with the sender's sexual demands.
And on the stand, Dalmida and each of the four minors identified various Government exhibits as photos they
took of themselves and sent to the Button account or the 998 number.

Dalmida and three of the minors (all but T.P.) also testified to meeting Browne in person and identified Browne
in open court as the man they had met after making meeting arrangements through messages to the Button
407 account or the 998 *407 number. Two of the minors who met Browne in person testified that they were forced to
do more than send additional explicit photographs. A.M. explained that after receiving instructions to text her
photos to the 998 number, she received messages from the Button account demanding sexual intercourse and
threatening her with the exposure of her images if she refused. After sending her the images, presumably to
prove they were in his possession, the individual using the 998 number repeated his threat and instructed her to
“play with [her]self” on a video chat site so he could watch. Fearful he would follow through on his threat, she
complied. Another minor, J.B., testified that after she arranged to meet Browne through the Button account,
Browne sexually assaulted her and recorded the encounter. She also confirmed that she exchanged Facebook
messages with Dalmida describing the incident shortly after it occurred.

Special Agents Blyden and Carter testified to details of Browne's arrest and the forensics examination of the
items seized from Browne's residence. Special Agent Blyden recounted Browne's post-arrest statements that he
knew and had exchanged “nude photos” with Dalmida, that he admitted to knowing three of the minors (all but
A.M.), and that he had paid minor J.S. for nude photos of herself. Special Agent Blyden also identified the
Facebook chat conversations as records she had received from Facebook and testified that Facebook had
provided the accompanying certificate. Special Agent Carter, the forensics agent, testified to the items
recovered from Browne's home, including the phone associated with the 998 number, and identified sexually
explicit photos of Dalmida and three of the minors (all but J.B.) as images that were recovered from the phone.2
2 At trial, however, J.B. identified several Government exhibits as photos she had sent to Button's Facebook account or

the 998 number.

The defense put only Browne on the stand. Browne testified that his Facebook name was Billy Button, and that
he knew Dalmida and minors J.S. and J.B. and had corresponded with them on Facebook. He denied knowing
or communicating with minor T.P., contradicting Special Agent Blyden's testimony that he had admitted to this
after his arrest, and did not state whether he knew A.M. Browne also denied sending any photos to the victims
or requesting photos from them. As to the incriminating data discovered on the phone with the 998 number, he
testified that he loaned the phone to Dalmida in December of 2012 and intermittently between January and
March 2013, and that he also loaned the phone to a cousin at an unspecified time.3 At one point during his
testimony, he confirmed he owned a second phone and number (“the 344 number”).
3 Dalmida testified that she never had Browne's phone in her possession, and Special Agent Blyden testified that during

the investigation Dalmida denied ever receiving a phone from Browne.

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 United States v. Browne 834 F.3d 403 (3d Cir. 2016)

408 Browne was convicted by a jury after a two-day trial.4 He now appeals his conviction *408 on the ground that
the Facebook records were not properly authenticated and should not have been admitted into evidence.
4 The jury convicted Browne on twelve counts, including the production of child pornography in violation of 18 U.S.C. §

2251(a) (Counts 1–4); the coercion and enticement of a minor to engage in sexual activity in violation of 18 U.S.C. §
2422(b) (Count 8); the receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2) (Counts 9–12); and the
transfer of obscene material to minors under age 16, in violation of 18 U.S.C. § 1470 (Count 17, 19–20). The jury
acquitted Browne on three counts for coercion and enticement, in violation of 18 U.S.C. § 2422(b) (Counts 5–7), and
on the count of aggravated first degree rape in violation of 14 V.I.C. § 1700(c) (Count 22). Before the jury rendered its
verdict, the defense successfully moved to dismiss a charge of extortion using interstate commerce, in violation of 18
U.S.C. 875(d) (Count 21), and the Government successfully moved to dismiss one of the counts for the transfer of
obscene material to minors under age 16 (Count 18) and all charges for possession of child pornography under 18
U.S.C. 2252(a)(4)(B) (Counts 13–16) in light of the fact that possessing child pornography is a lesser-included offense
of the receipt of child pornography, United States v. Miller , 527 F.3d 54, 71–72 (3d Cir. 2008).

II. Jurisdiction
The District Court had jurisdiction under 18 U.S.C. § 3231 and 48 U.S.C. § 1612(c), and we have jurisdiction
under 28 U.S.C. § 1291. We review the District Court's decision regarding the authentication of evidence for
abuse of discretion, United States v. Turner , 718 F.3d 226, 232 (3d Cir. 2013), and exercise plenary review
over its interpretation of the Federal Rules of Evidence, United States v. Console , 13 F.3d 641, 656 (3d Cir.
1993).

III. Discussion
Browne argues that the Facebook records were not properly authenticated because the Government failed to
establish that he was the person who authored the communications. More specifically, Browne contends that no
witness identified the Facebook chat logs on the stand; nothing in the contents of the messages was uniquely
known to Browne; and Browne was not the only individual with access to the Button account or the 998
number. The Government, for its part, argues the Facebook records are business records that were properly
authenticated pursuant to Rule 902(11) of the Federal Rules of Evidence by way of a certificate from
Facebook's records custodian.

The proper authentication of social media records is an issue of first impression in this Court. In view of
Browne's challenge to the authentication and admissibility of the chat logs, our analysis proceeds in three steps.
First, as with non-digital records, we assess whether the communications at issue are, in their entirety, business
records that may be “self-authenticated” by way of a certificate from a records custodian under Rule 902(11) of
the Federal Rules of Evidence. Second, because we conclude that they are not, we consider whether the
Government nonetheless provided sufficient extrinsic evidence to authenticate the records under a traditional
Rule 901 analysis. And, finally, we address whether the chat logs, although properly authenticated, should have
been excluded as inadmissible hearsay, as well as whether their admission was harmless.

A. Self-authentication
To satisfy the requirement under Rule 901(a) of the Federal Rules of Evidence that all evidence be
authenticated or identified prior to admission, the proponent of the evidence must offer “evidence sufficient to
support a finding that the item is what the proponent claims it is.” Rule 901(b), in turn, sets forth a non-
exhaustive list of appropriate methods of authentication, including not only “[t]estimony that an item is what it
is claimed to be,” Fed. R. Evid. 901(b)(1), but also “appearance, contents, substance, internal patterns, or other

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 United States v. Browne 834 F.3d 403 (3d Cir. 2016)

distinctive characteristics of the item, taken together with all the circumstances,” Fed. R. Evid. 901(b)(4), and
“[e]vidence describing a process or system and showing that it produces an accurate result,” Fed. R. Evid.
901(b)(9).

The central dispute in this case is complicated, however, by the Government's contention that it authenticated
409 the Facebook chat logs by way of Rule 902, under which extrinsic evidence is not required for *409 certain
documents that bear sufficient indicia of reliability as to be “self-authenticating.” Specifically, the Government
relies on Rule 902(11), which provides that “records of a regularly conducted activity” that fall into the hearsay
exception under Rule 803(6) —more commonly known as the “business records exception”—may be
authenticated by way of a certificate from the records custodian, as long as the proponent of the evidence gives
the adverse party reasonable notice and makes the record and certificate available for inspection in advance of
trial. Fed. R. Evid. 902(11).5
5 Rule 803(6) allows for the admission of “[a] record of an act, event, condition, opinion, or diagnosis” containing

hearsay if: “(A) the record was made at or near the time by—or from information transmitted by—someone with
knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization,
occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all
these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that
complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) the opponent does not show that
the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.” Fed. R.
Evid. 803(6). Rule 902(11), in turn, was adopted by amendment in 2000 to allow records of regularly conducted
activity to be authenticated by certificate rather than by live testimony and provides that the proponent of a business
record who meets certain notice requirements need not provide extrinsic evidence of authentication if the record meets
the requirements of Rule 803(6)(A) through (C) “as shown by a certification of the custodian or another qualified
person,” Fed. R. Evid. 902(11) ; see Fed. R. Evid. 902 advisory committee's note (2000).

The viability of the Government's position turns on whether Facebook chat logs are the kinds of documents that
are properly understood as records of a regularly conducted activity under Rule 803(6), such that they qualify
for self-authentication under Rule 902(11). We conclude that they are not, and that any argument to the contrary
misconceives the relationship between authentication and relevance, as well as the purpose of the business
records exception to the hearsay rule.

First, to be admissible, evidence must be relevant, which means “its existence simply has some ‘tendency to
make the existence of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.’ ” United States v. Jones , 566 F.3d 353, 364 (3d Cir. 2009)
(quoting Fed. R. Evid. 401 ). Because evidence can have this tendency only if it is what the proponent claims it
is, i.e., if it is authentic, United States v. Rawlins , 606 F.3d 73, 82 (3d Cir. 2010), “Rule 901(a) treats
preliminary questions of authentication and identification as matters of conditional relevance according to the
standards of Rule 104(b),” United States v. Reilly , 33 F.3d 1396, 1404 (3d Cir. 1994) (quoting Jack B.
Weinstein & Margaret A. Berger, 5 Weinstein's Evidence ¶ 901(a)[01] at 901–15 (1993)).6 Rule 104(b), in turn,
provides that “[w]hen the relevance of evidence depends on whether a fact exists, proof must be introduced
sufficient to support a finding that the fact does exist.” Fed. R. Evid. 104(b). We have determined that to meet
the Rule 104(b) standard of sufficiency, the proponent of the evidence must show that “the jury could
reasonably find th[ose] facts ... by a preponderance of the evidence.” United States v. Bergrin , 682 F.3d 261,
410 278 (3d Cir. 2012) (quoting *410 Huddle ston v. United States , 485 U.S. 681, 690, 108 S.Ct. 1496, 99 L.Ed.2d

5
 United States v. Browne 834 F.3d 403 (3d Cir. 2016)

771 (1998) ) (alterations in original); see also United States v. Khorozian , 333 F.3d 498, 506 (3d Cir. 2003)
(“Authentication does not conclusively establish the genuineness of an item; it is a foundation that a jury may
reject.”).
6 Put differently, “[a]uthenticity is elemental to relevance.” Rawlins , 606 F.3d at 82 ; see Fed. R. Evid. 901(a) advisory

committee's note (1972) (“This requirement of showing authenticity or identity [under Rule 901(a) ] falls in the
category of relevancy dependent upon fulfillment of a condition of fact and is governed by the procedure set forth in
Rule 104(b).”).

Here, the relevance of the Facebook records hinges on the fact of authorship. To authenticate the messages, the
Government was therefore required to introduce enough evidence such that the jury could reasonably find, by a
preponderance of the evidence, that Browne and the victims authored the Facebook messages at issue. The
records custodian here, however, attested only that the communications took place as alleged between the
named Facebook accounts. Thus, accepting the Government's contention that it fulfilled its authentication
obligation simply by submitting such an attestation would amount to holding that social media evidence need
not be subjected to a “relevance” assessment prior to admission. Our sister Circuits have rejected this
proposition in both the digital and non-digital contexts, as do we. See United States v. Vayner , 769 F.3d 125,
132 (2d Cir. 2014) (holding that a social media profile page was not properly authenticated where the
government offered evidence only that the webpage existed and not that it belonged to the defendant); United
States v. Southard , 700 F.2d 1, 23 (1st Cir. 1983) (observing that self-authentication “does not eliminate the
requirement of relevancy” and requiring testimony linking the codefendant, who had a common name, to the
driver's license and work permit issued under that name).

The Government's theory of self-authentication also fails for a second reason: it is predicated on a
misunderstanding of the business records exception itself. Rule 803(6) is designed to capture records that are
likely accurate and reliable in content, as demonstrated by the trustworthiness of the underlying sources of
information and the process by which and purposes for which that information is recorded.7 See E.C. Ernst, Inc.
v. Koppers Co. , 626 F.2d 324, 330–31 (3d Cir. 1980) (holding that pricing sheets satisfied Rule 803(6) because,
among other things, “the sheets were checked for accuracy”); see also United States v. Gurr , 471 F.3d 144, 152
(D.C. Cir. 2006) (“Because the regularity of making the record is evidence of its accuracy, statements by
‘outsiders' are not admissible for their truth under Fed. R. Evid. 803(6).”); Fed. R. Evid. 803 advisory
committee's note (1972) (“The element of unusual reliability of business records is said variously to be
supplied by systematic checking, by regularity and continuity which produce habits of precision, by actual
experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job
or occupation.”).
7 When we stated in United States v. Console that “Rule 803(6) does not require that the person transmitting the recorded

information be under a business duty to provide accurate information,” 13 F.3d 641, 657 (3d Cir. 1993), we were
observing that accuracy need not be guaranteed, but in no way suggested that accuracy is irrelevant. On the contrary,
we went on to state: “[I]t is sufficient if it is shown that ... [the] standard practice was to verify the information provided
, or that the information transmitted met the requirements of another hearsay exception.” Id. at 657–58 (citations
omitted) (alterations in original) (emphasis added).

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 United States v. Browne 834 F.3d 403 (3d Cir. 2016)

Here, Facebook does not purport to verify or rely on the substantive contents of the communications in the
course of its business. At most, the records custodian employed by the social media platform can attest to the
411 accuracy of only certain aspects of the communications exchanged *411 over that platform, that is, confirmation
that the depicted communications took place between certain Facebook accounts, on particular dates, or at
particular times. This is no more sufficient to confirm the accuracy or reliability of the contents of the
Facebook chats than a postal receipt would be to attest to the accuracy or reliability of the contents of the
enclosed mailed letter. See United States v. Jackson , 208 F.3d 633, 637–38 (7th Cir. 2000) (holding that
Internet Service Providers' ability to retrieve information that their customers posted online did not turn the
posts that appeared on the website of a white supremacist group into the ISP's business records under Rule
803(6) ); cf. In re U.S. for Historical Cell Site Data , 724 F.3d 600, 611 (5th Cir. 2013) (for Fourth Amendment
purposes, defining business records as “records of transactions to which the record-keeper is a party,” in
contradistinction to “[c]ommunications content, such as the contents of letters, phone calls, and emails, which
are not directed to a business, but simply sent via that business”).

We have made a similar determination in the banking context. In United States v. Furst , 886 F.2d 558 (3d Cir.
1989), we held that the district court erred in admitting bank records as business records under Rule 803(6),
even though the records verified the dates and amounts of certain deposits and receipts, because “significant”
other portions of these documents had not been independently verified, and the records custodians lacked
“knowledge as to the accuracy of the information on which the [bank] documents was based or as to the
knowledge of the persons who prepared the records.” Id. at 572.

If the Government here had sought to authenticate only the timestamps on the Facebook chats, the fact that the
chats took place between particular Facebook accounts, and similarly technical information verified by
Facebook “in the course of a regularly conducted activity,” the records might be more readily analogized to
bank records or phone records conventionally authenticated and admitted under Rules 902(11) and 803(6). See
id. at 573 (concluding that the district court erred in admitting bank statements in the bank's possession under
Rule 803(6) “to the extent the statements contained any data other than confirmations of transactions” with the
bank). We need not address the tenability of this narrow proposition here, however, as the Government's
interest lies in establishing the admissibility of the chat logs in full. It suffices for us to conclude that,
considered in their entirety, the Facebook records are not business records under Rule 803(6) and thus cannot
be authenticated by way of Rule 902(11). In fact, the Government's position would mean that all electronic
information whose storage or transmission could be verified by a third-party service provider would be exempt
from the hearsay rules—a novel proposition indeed, and one we are unwilling to espouse.

B. Authentication by way of extrinsic evidence

Our conclusion that the Facebook chat logs were not properly authenticated under Rule 902(11) does not end
our inquiry, for we may consider whether the Government has presented sufficient extrinsic evidence to
authenticate the chat logs under Rule 901(a). See Vatyan v. Mukasey , 508 F.3d 1179, 1184 (9th Cir. 2007) ;
United States v. Dockins , 986 F.2d 888, 895 (5th Cir. 1993). To answer this question, we look to what the rule
means in the social media context and how it applies to the facts here.

Conventionally, authorship may be established for authentication purposes by way of a wide range of extrinsic
412 evidence. *412 See Fed. R. Evid. 901(b). In United States v. McGlory , 968 F.2d 309 (3d Cir. 1992), for
example, we rejected a defendant's challenge to the authentication of notes that he had allegedly handwritten
because, despite being unable to fully establish authorship through a handwriting expert, the prosecution had
provided “sufficient evidence from which the jury could find that [the defendant] authored the notes.” Id. at
329. The notes had been seized from the trash outside the defendant's known residences; some of the notes

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 United States v. Browne 834 F.3d 403 (3d Cir. 2016)

were torn from a notebook found inside his residences; some notes were found in the same garbage bag as
other identifying information; and certain notes were written on note paper from hotels where the defendant
stayed during the alleged conspiracy. Id. at 328–29.

Similarly, in United States v. Reilly , 33 F.3d 1396 (3d Cir. 1994), when considering whether the government's
evidence “support[ed] the conclusion that the radiotelegrams are what the government claims they are, namely
radiotelegrams to and from the Khian Sea , many of which were sent or received by [the defendant],” we
determined that the government had met its authentication burden by way of not only direct testimony from
individuals who identified the radiotelegrams but also “multiple pieces of circumstantial evidence.” Id. at
1405–06. This included testimony explaining how the witness who produced the radiotelegrams had come to
possess them, the physical appearance of the radiotelegrams, and evidence that the radiotelegrams were sent to
the defendant's office or telex number. Id. at 1406.

We hold today that it is no less proper to consider a wide range of evidence for the authentication of social
media records than it is for more traditional documentary evidence. The authentication of electronically stored
information in general requires consideration of the ways in which such data can be manipulated or corrupted,
see generally Lorraine v. Markel Am. Ins. Co. , 241 F.R.D. 534 (D. Md. 2007), and the authentication of social
media evidence in particular presents some special challenges because of the great ease with which a social
media account may be falsified or a legitimate account may be accessed by an imposter, cf. Griffin v. State , 419
Md. 343, 19 A.3d 415, 424 (2011) (analyzing state analogue to Rule 901 ). But the authentication rules do not
lose their logical and legal force as a result. See Tienda v. State , 358 S.W.3d 633, 638–39 (Tex. Crim. App.
2012) (describing the legal consensus as to the applicability of traditional evidentiary rules to electronic
communications and identifying the many forms of circumstantial evidence that have been used to authenticate
email printouts, internet chat room conversations, and cellular text messages); see also Parker v. State , 85 A.3d
682, 687 (Del. 2014) (analyzing state evidentiary rules and concluding that “[a]lthough we are mindful of the
concern that social media evidence could be falsified, the existing [rules] provide an appropriate framework for
determining admissibility.”); Burgess v. State , 292 Ga. 821, 742 S.E.2d 464, 467 (2013) (“Documents from
electronic sources such as the printouts from a website like MySpace are subject to the same [state] rules of
authentication as other more traditional documentary evidence and may be authenticated through circumstantial
evidence.”). Depending on the circumstances of the case, a variety of factors could help support or diminish the
proponent's claims as to the authenticity of a document allegedly derived from a social media website, and the
Rules of Evidence provide the courts with the appropriate framework within which to conduct that analysis.

413 Those Courts of Appeals that have considered the issue have reached the *413 same conclusion. In United States
v. Barnes , 803 F.3d 209 (5th Cir. 2015), the Fifth Circuit held that the government laid a sufficient foundation
to support the admission of the defendant's Facebook messages under Rule 901 where a witness testified that
she had seen the defendant using Facebook and that she recognized his Facebook account as well as his style of
communicating as reflected in the disputed messages. Id. at 217. In United States v. Hassan , 742 F.3d 104 (4th
Cir. 2014), the Fourth Circuit held that the government properly linked the Facebook pages at issue to the
defendants by using internet protocol addresses to trace the Facebook pages and accounts to the defendants'
mailing and email addresses.8 Id. at 133. And in Vayner, the Second Circuit held that the government failed to
adequately authenticate what it alleged was a printout of the defendant's profile page from a Russian social
networking site where it offered no evidence to show that the defendant had created the page. 769 F.3d at 131.
In all of these cases, the courts considered a variety of extrinsic evidence to determine whether the government
had met its authentication burden under Rule 901—each reiterating, in the course of that analysis, that

8
 United States v. Browne 834 F.3d 403 (3d Cir. 2016)

conclusive proof of authenticity is not required and that the jury, not the court, is the ultimate arbiter of whether
an item of evidence is what its proponent claims it to be. Barnes , 803 F.3d at 217 ; Vayner , 769 F.3d at 131 ;
Hassan , 742 F.3d at 133.
8 The Fourth Circuit also ruled that those Facebook pages were properly authenticated under Rule 902(11). Hassan , 742

F.3d at 133–34. For the reasons already stated above, we do not agree with this portion of the court's authentication
holding.

Applying the same approach here, we conclude the Government provided more than adequate extrinsic
evidence to support that the disputed Facebook records reflected online conversations that took place between
Browne, Dalmida, and three of the four minors, such that “the jury could reasonably find” the authenticity of
the records “by a preponderance of the evidence.” Bergrin , 682 F.3d at 278.

First, although the four witnesses who participated in the Facebook chats at issue—Dalmida and three of the
minors—did not directly identify the records at trial, each offered detailed testimony about the exchanges that
she had over Facebook. This testimony was consistent with the content of the four chat logs that the
Government introduced into evidence. Dalmida and two of the minors whose chat logs are at issue further
testified that after conversing with the Button Facebook account or the 998 number that they received through
communications with Button, they met in person with Button—whom they were able to identify in open court
as Browne. This constitutes powerful evidence not only establishing the accuracy of the chat logs but also
linking them to Browne. See United States v. Tank , 200 F.3d 627, 630–31 (9th Cir. 2000) (holding government
made a prima face showing of authenticity under Rule 901(a) in part because several co-conspirators testified
that the defendant was the person who showed up to a meeting that they had arranged with the person who used
that screen name).

Second, as reflected in the trial testimony of both Browne and Special Agent Blyden, Browne made significant
concessions that served to link him to the Facebook conversations. Most notably, Browne testified that he
owned the “Billy Button” Facebook account on which the search warrant had been executed and that he knew
and had conversed on Facebook with Dalmida and two of the minors. See, e.g. , Tank , 200 F.3d at 630–31
414 (holding government met authentication burden where, among other things, defendant admitted *414 that
screenname used in disputed text messages belonged to him). Browne also testified that he owned the phone
that was seized from his residence—the same phone from which DHS recovered certain images that the victims
identified on the stand as those they sent in response to commands from either the Button or Dalmida Facebook
account or the 998 number. Cf. United States v. Simpson , 152 F.3d 1241, 1249–50 (10th Cir. 1998) (rejecting
the defendant's claim that the trial court erred in admitting a printout of an alleged chat room discussion
between the defendant and an undercover officer where, among other things, the pages seized from the
defendant's home contained identifying information that the undercover officer had given the individual in the
chat room). And Browne admitted that he owned a second phone with the 344 number, which is significant
because, although Browne attempted to distance himself from the incriminating phone with the 998 number
with the unsupported contention that he loaned it to other individuals at various points in the relevant time
period, one of the challenged Facebook conversations shows that “Button” also provided the 344 number to
minor J.S. on two occasions while trying to elicit sexual acts and photos. In addition, in Browne's post-arrest
statements, which were introduced at trial, he provided the passwords to the Button Facebook account and to
the phone with the 998 number and admitted to exchanging nude photos with Dalmida, paying J.S. for nude
photos, going to J.B.'s home, and knowing a third minor, T.P., whom he referenced by Facebook account name.

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 United States v. Browne 834 F.3d 403 (3d Cir. 2016)

Third, contrary to Browne's contention that “there is no biographical information in the [Facebook] records that
links [him] to the documents,” Appellant's Br. at 17, the personal information that Browne confirmed on the
stand was consistent with the personal details that “Button” interspersed throughout his Facebook
conversations with Dalmida and three of the minors. For example, Browne testified that his address was 2031
Estate Lovenlund, that he was a plumber, and that he had a fiancée. The Facebook messages sent by “Button”
are, in turn, replete with references to the fact that the sender was located or resided at Lovenlund. “Button”
also stated to one minor, “I'm a plumber.” App. 503. The chats reflect that somewhere on his Facebook profile,
Button represented himself as being engaged. And in one of the disputed Facebook chats, Button informed a
minor that his name was “Tony ... Browne.”9 App. 519.
9 Browne argues that none of these biographical details constituted “information that only [he] could be expected to

know,” Appellant's Br. at 19, but we need not determine that, by itself, the information could suffice to authenticate the
chat logs to conclude that they have some authentication value when considered in combination with all of the other
available evidence. See Simpson , 152 F.3d at 1244 (computer printout of alleged chat room discussions properly
authenticated not only by physical evidence recovered from defendant's home but also in light of the fact that the
individual participating in the chat gave the undercover officer the defendant's first initial and last name and street
address); Bloom v. Com. , 262 Va. 814, 554 S.E.2d 84, 86–87 (2001) (defendant was sufficiently identified as individual
who made statements over instant message where detailed biographical information provided online matched that of
the defendant).

Lastly, the Government not only provided ample evidence linking Browne to the Button Facebook account but
also supported the accuracy of the chat logs by obtaining them directly from Facebook and introducing a
certificate attesting to their maintenance by the company's automated systems. To the extent that certified
records straight from the third-party service provider are less likely to be subject to manipulation or inadvertent
415 distortion than, for instance, printouts of website *415 screenshots, the method by which the Government
procured the records in this case constitutes yet more circumstantial evidence that the records are what the
Government claims.

In short, this is not a case where the records proponent has put forth tenuous evidence attributing to an
individual social media or online activity that very well could have been conducted or fabricated by a third
party. See, e.g. , Vayner , 769 F.3d at 131 ; see also Smith v. State , 136 So.3d 424, 433 (Miss. 2014) (holding
that name and photo on Facebook printout were not sufficient to link communication to alleged author); Griffin
, 19 A.3d at 423 (holding that the trial court abused its discretion in admitting MySpace website evidence
because the state both failed to explain how it had obtained the challenged records and failed to adequately link
the records to the defendant's girlfriend). Far from it. This record reflects abundant evidence linking Browne
and the testifying victims to the chats conducted through the Button Facebook account and reflected in the logs
procured from Facebook. The Facebook records were thus duly authenticated.

Browne makes much of the fact that the Government failed to ask the testifying witnesses point-blank to
identify the disputed Facebook chats. As we explained, however, in McQueeney v. Wilmington Trust Co. , 779
F.2d 916 (3d Cir. 1985), where we reversed the district court's determination that certain records could not be
admitted into evidence unless they were introduced by a testifying witness, circumstantial evidence can suffice
to authenticate a document. Id. at 928 ; see also Fed. R. Evid. 903 (“A subscribing witness's testimony is
necessary to authenticate a writing only if required by the law of the jurisdiction that governs its validity.”).
Although a witness with personal knowledge may authenticate a document by testifying that the document is
what the evidence proponent claims it to be, this is merely one possible means of authentication and not, as

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 United States v. Browne 834 F.3d 403 (3d Cir. 2016)

Browne would have it, an exclusive requirement. See Fed. R. Evid. 901(b)(1) ; Simpson , 152 F.3d at 1249–50
(rejecting the defendant's contention that statements from a chat room discussion could not be attributed to him
where the government could not identify that they “were in his handwriting, his writing style, or his voice,” as
“[t]he specific examples of authentication referred to by [the defendant] ... are not intended as an exclusive
enumeration of allowable methods of authentication”).

In sum, Browne's authentication challenge collapses under the veritable mountain of evidence linking Browne
to Billy Button and the incriminating chats.

C. Admissibility
Having concluded that the Facebook records were properly authenticated by way of extrinsic evidence, we turn
to Browne's more general argument that the records were inadmissible. Evidence that is properly authenticated
may nonetheless be inadmissible hearsay if it contains out-of-court statements, written or oral, that are offered
for the truth of the matter asserted and do not fall under any exception enumerated under Federal Rule of
Evidence 802. McGlory , 968 F.2d at 331.

Here, the Government offered more than sufficient evidence to authenticate four of the five Facebook records
as chats that Browne himself participated in by way of the Button account, and these four records were
properly admitted as admissions by a party opponent under Rule 801(d)(2)(A). See id. at 334 & n.17 (observing
that handwritten notes were admissible as admissions by a party opponent if the prosecution established
416 defendant's authorship by a preponderance of the evidence); *416 see also United States v. Brinson , 772 F.3d
1314, 1320 (10th Cir. 2014) (same conclusion regarding Facebook messages); United States v. Siddiqui , 235
F.3d 1318, 1323 (11th Cir. 2000) (same conclusion regarding authenticated email).10 Not so for the fifth.
10 As for the statements in the chat logs that the victims made to Browne, under our precedent they were not hearsay

because they were not offered into evidence to prove the truth of the matter asserted; rather, they were introduced to put
Browne's statements “into perspective and make them intelligible to the jury and recognizable as admissions.” United
States v. Hendricks , 395 F.3d 173, 184 (3d Cir. 2005) (quoting United States v. McDowell, 918 F.2d 1004, 1007 (1st
Cir. 1990) ); see also McDowell , 918 F.2d at 1007–08 (“[The defendant's] part of the conversations was plainly not
hearsay. Nor can a defendant, having made admissions, keep from the jury other segments of the discussion reasonably
required to place those admissions into context.... Moreover, because [the informant's] statements were introduced only
to establish that they were uttered and to give context to what [the defendant] was saying, they were not hearsay at
all.”).

We agree with Browne that the single chat in which Browne did not participate and which took place between
Dalmida and J.B. regarding Button's “almost rape[ ]” of J.B. was inadmissible hearsay. App. 483.
Notwithstanding the other reasons the Government may have sought to admit it, the record functioned at least
in part to prove the truth of the matter asserted, that is, that Browne sexually assaulted J.B. and subsequently
threatened her with video evidence of the assault. See McGlory , 968 F.2d at 332 (“This Court ... has disfavored
the admission of statements which are not technically admitted for the truth of the matter asserted, whenever
the matter asserted, without regard to its truth value, implies that the defendant is guilty of the crime
charged.”).11
11 As with authentication, we do not foreclose the possibility that the chat log might have warranted a different hearsay

analysis had the Government sought the admission of only limited portions of it. In United States v. Turner , 718 F.3d
226 (3d Cir. 2013), for example, where we assessed the admissibility of certain bank records, we held that the district
court did not clearly err in applying the residual hearsay exception, which permits a district court to admit an out-of-

11
 United States v. Browne 834 F.3d 403 (3d Cir. 2016)

court statement not covered by Rules 803 or 804 where, among other things, “the statement has equivalent
circumstantial guarantees of trustworthiness.” Id. at 233 (quoting Fed. R. Evid. 807 ). But the Government here does
not contend that this hearsay exception or any others enumerated in Rule 803 are applicable to this chat log. And with
good reason. For instance, although the log reflects that the chat participants made a number of emotionally charged
statements, it purports to describe an event that occurred the previous day and thus was not admissible under the
present sense impression or excited utterance exception to the hearsay rule. Fed. R. Evid. 803(1)–(2) ; see United States
v. Green , 556 F.3d 151, 156 (3d Cir. 2009) ; United States v. Brown , 254 F.3d 454, 458 (3d Cir. 2001). And nothing in
the record or the Government's brief suggests the chat log was introduced to show Dalmida or J.B.'s “then-existing state
of mind,” Fed. R. Evid. 803(3). See United States v. Donley , 878 F.2d 735, 737 (3d Cir. 1989).

Although we conclude that the District Court erred in admitting this chat log, we do not perceive grounds for
reversal. Reversal is not warranted if it is “highly probable that the error did not contribute to the judgment.”
United States v. Brown , 765 F.3d 278, 295 (3d Cir. 2014) (quoting United States v. Cunningham, 694 F.3d 372,
391–92 (3d Cir. 2012) ). This “high probability” standard for non-constitutional harmless error determinations
“requires that the court possess a sure conviction that the error did not prejudice the defendant.” United States
v. Franz , 772 F.3d 134, 151 (3d Cir. 2014) (quoting Cunningham , 694 F.3d at 392 ).

417 We are confident there was no prejudice here. As detailed above, the Government *417 set forth abundant
evidence that not only served to tie Browne and the victims to the chat logs but also supported Browne's guilt
on all of the counts for which he was convicted irrespective of those records. Indeed, the two individuals who
made the hearsay statements reflected in the fifth chat log, Dalmida and J.B., testified at length to the very
details included in that Facebook chat log. Because there was overwhelming, properly admitted evidence
supporting Browne's conviction on every count, and the sole improperly admitted Facebook record was “at
most, duplicative of [the witnesses'] admissible testimony,” United States v. Kapp , 781 F.2d 1008, 1014 (3d
Cir. 1986), the erroneous admission was harmless and Browne's convictions must be sustained. See Barnes ,
803 F.3d at 218 (concluding that any potential error in admitting disputed Facebook messages was harmless, as
“the content of the messages was largely duplicative” of witness testimony and “given the overwhelming
evidence of [the defendant's] guilt”).

***

For the foregoing reasons, we will affirm the judgment of the District Court.

12
 Criminal No. 3:15-cr-14-GFVT-REW
United States District Court, E.D. Kentucky, Central Division. Frankfort.

United States v. Bertram

259 F. Supp. 3d 638 (E.D. Ky. 2017)
Decided Apr 14, 2017

Criminal No. 3:15–cr–14–GFVT–REW

04-14-2017

UNITED STATES of America, Plaintiff, v. Robert L. BERTRAM, M.D., et al., Defendants.

Kate K. Smith, AUSA, Andrew Louis Sparks, Paul C. McCaffrey, U.S. Attorney's Office, Lexington, KY, for
Plaintiff. Brent L. Caldwell, Caldwell Law Firm, PLLC, Mark A. Wohlander, Wohlander Law Office, Mary
Lauren Melton, Golden Law Office, PLLC, Jarrod James Beck, Robert Michael Murphy, Law Office of R.
Michael Murphy, PLLC, Lexington, KY, Dean A. Pisacano, Hellings & Pisacano, P.S.C., Harry P. Hellings, Jr.,
Covington, KY, Thomas E. Clay, Clay Daniel Walton & Adams, PLC, J. Kent Wicker, Dressman Benzinger
LaVelle PSC, Louisville, KY, Anita Margot Moss, Pro Hac Vice, David Oscar Markus, Pro Hac Vice,
Markus/Moss PLLC, Miami, FL, Kelleene Ann Holden, Dressman Benzinger LaVelle, Cincinnati, OH, for
Defendants.

Gregory F. Van Tatenhove, United States District Judge

639 *639

Kate K. Smith, AUSA, Andrew Louis Sparks, Paul C. McCaffrey, U.S. Attorney's Office, Lexington, KY, for
Plaintiff.

Brent L. Caldwell, Caldwell Law Firm, PLLC, Mark A. Wohlander, Wohlander Law Office, Mary Lauren
640 Melton, Golden Law Office, PLLC, Jarrod James Beck, *640 Robert Michael Murphy, Law Office of R.
Michael Murphy, PLLC, Lexington, KY, Dean A. Pisacano, Hellings & Pisacano, P.S.C., Harry P. Hellings, Jr.,
Covington, KY, Thomas E. Clay, Clay Daniel Walton & Adams, PLC, J. Kent Wicker, Dressman Benzinger
LaVelle PSC, Louisville, KY, Anita Margot Moss, Pro Hac Vice, David Oscar Markus, Pro Hac Vice,
Markus/Moss PLLC, Miami, FL, Kelleene Ann Holden, Dressman Benzinger LaVelle, Cincinnati, OH, for
Defendants.

Gregory F. Van Tatenhove, United States District Judge

This case presents a recurring evidentiary concern in an age of advancing technology. Simply put, may emails
be authenticated under the Federal Rules of Evidence by someone other than the sender or recipient? This
Court answered "yes" to that question on several occasions throughout the course of trial. What follows is a
more detailed articulation of the reasons why, as a supplement to the Court's rulings from the bench. Also
addressed is one of the more frequently used substantive grounds for admission—co-conspirator statements.

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 United States v. Bertram 259 F. Supp. 3d 638 (E.D. Ky. 2017)

Federal Rule of Evidence 901 requires records to be properly authenticated before they are admitted into
evidence at trial. To satisfy the requirement of authenticating a certain record, the proponent of the record
"must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Fed. R.
Evid. 901(a). The Sixth Circuit permits authenticity to be established through the introduction of circumstantial
evidence. See United States v. Crosgrove , 637 F.3d 646, 658 (6th Cir. 2011). And Federal Rule of Evidence
901(b) provides a non-exhaustive list of ways in which the requirements of Rule 901(a) may be satisfied.

Despite the prevalence of email communication in this day and age, case law in the Sixth Circuit regarding how
Rule 901 relates to the authentication of emails is sparse. A number of other courts, however, have suggested
the key factor in the Rule 901(b) list when it comes to email authentication is Rule 901(b)(4). That provision
explains that records may be authenticated by the introduction of testimony regarding their unique
characteristics: i.e., the "appearance, contents, substance, internal patterns, or other distinctive characteristics of
the item, taken together with all the circumstances." Fed. R. Evid. 901(b)(4). In fact, Rule 901(b)(4) is "one of
the most frequently used to authenticate email and other electronic records." Lorraine v. Markel Am. Ins. Co. ,
241 F.R.D. 534, 546 (D. Md. 2007).

For example, the Eleventh Circuit found a number of emails to be properly authenticated under Rule 901(b)(4)
in United States v. Siddiqui , 235 F.3d 1318 (11th Cir. 2000). In Siddiqui , the Government sought to introduce
emails purportedly from Siddiqui, the defendant, through the individuals who received those emails. 235 F.3d
at 1322. Siddiqui objected, but the Eleventh Circuit noted the emails' contents, patterns, and distinctive
characteristics satisfied the authentication requirements in Rule 901(b)(4). For example, the emails bore an
email address which included a portion of Siddiqui's name as well as the university at which he was employed.
Id. The emails referred to the author as "Mo," a nickname the Government witnesses could attribute to
Siddiqui. Id. at 1323. Further, the content of the emails bolstered the idea that defendant Siddiqui was, in fact,
the sender, because the content included information about which Siddiqui would know and because the
Government witnesses could testify to related phone conversations with Siddiqui about the email content. Id. at
641 1322–23.*641 The same rationale has been employed by other courts ruling on the authenticity of both emails
and text messages. For example, the D.C. Circuit Court found emails to be properly authenticated under Rule
901(b)(4) where the email addresses at issue contained the name of the person connected to the address; where
the names of the senders or recipients of the emails were frequently included in either the email content or
signature blocks; and where the email content involved "discussions of various identifiable matters." United
States v. Safavian , 435 F.Supp.2d 36 (D.C.C. 2006). And in United States v. Fluker , the Seventh Circuit found
emails to be properly authenticated even though neither the author nor anyone who saw the author write the
emails testified. 698 F.3d 988, 998-1000 (7th Cir. 2012). In that case, there was sufficient circumstantial
evidence to authenticate the emails under Rule 901(b)(4), such as the email addresses at issue and the content
of the communication. See also United States v. Kilpatrick , No. 10-20403, 2012 WL 3236727 (E.D. Mich.
Aug. 7, 2012) (noting the text messages in question had "distinctive characteristics" under Rule 901(b)(4) such
as distinct auto-signatures, nicknames, unique PIN numbers, and distinctive language patterns).

These cases stand in contrast with two cases submitted by the Defendants, where emails were properly found
unauthenticated under various Rules of Evidence, including Rule 901(b)(4). For instance, in Jimena v. UBS AG
Bank, Inc. , an Eastern District of California court excluded emails one party sought to introduce through the
email recipient. See No. 1:07-cv-00367, 2011 WL 2551413 (E.D. Cal. June 27, 2011). The court noted that
there was no evidence the recipient actually knew the purported sender or had prior communication with the
sender. Also, there were no unique characteristics linking the received emails to the purported sender. Id.
Similarly, in In re Second Chance Body Armor, Inc. , the Western District of Michigan Bankruptcy Court

2
 United States v. Bertram 259 F. Supp. 3d 638 (E.D. Ky. 2017)

excluded emails because they were "neither self-authenticating, authenticated by a witness with knowledge, nor
authenticated through any other permissible means." See 434 B.R. 502, 505 (Bankr. W.D. Mich. 2010). In that
case, one party attempted to authenticate certain emails through a witness with no personal knowledge of the
conversation, who had never seen the email before, and who was not present at a meeting described in the
contents of the email. Id. The Defendants emphasize the fact that the witness was not a sender or recipient of
the excluded emails. But a reading of the Bankruptcy Court case in its entirety suggests that the court's decision
did not rest on the witness's lack of participation in the communication but on the fact that the emails could not
be "authenticated through any other permissible means," such as Rule 901(b)(4). Id.

None of these cases specifically speak to whether an email may be authenticated under Rule 901(b)(4) by an
individual that is neither a recipient nor a sender of the communication. But the weight of the case law suggests
participation in a particular email is not a prerequisite to authenticating it. The case law on the whole suggests
that the key consideration in email authentication is not simply whether the witness on the stand was a sender
or recipient of the email, but whether the testifying witness can speak to the email's unique characteristics,
contents, and appearance. After all, Federal Rule of Evidence 901 establishes a seemingly low bar for
authenticating or identifying evidence in the first instance, and the characteristics set out in Rule 901(b)(4) are
particularly useful in demonstrating that an email is, in fact, what it purports to be.

642 The Court's rulings with regard to Government Exhibit 101B clarify these *642 principles. Exhibit 101B
includes a series of emails, the first to which Government witness Kris Kaiser was a party. Ms. Kaiser testified
that she performed billing services on behalf of the Defendants' laboratory PremierTox, and in this role she had
reason to interact with the five Defendants via email correspondence. During its direct examination, the
Government showed Ms. Kaiser a number of emails that she either sent to or received from the Defendants in
the course of her Liberty Billing duties. And the Government elicited testimony from Ms. Kaiser about her
familiarity with the Defendants' email addresses and signature characteristics, particularly those of Brian
Walters and Bryan Wood.

The section of Exhibit 101B including an email message between Ms. Kaiser and Defendant Bertram was
introduced without incident, as Ms. Kaiser was a party to that communication. But the Defendants objected to
the Government's attempt to introduce emails between Defendants Bryan Wood and Brian Walters through Ms.
Kaiser, because Kaiser was not copied on those emails and presumably had never seen them before. After
reviewing the issue over the course of an evening recess and as stated on the record, the Court concluded the
authenticity requirements were satisfied with respect to those emails. Despite Kaiser's lack of personal
participation in the communication, she could speak to the authenticity of the emails under Rule 901(b)(4).

For example, Ms. Kaiser could verify the email addresses of both Defendants as the addresses used by those
men based on her prior communication with them. The email addresses themselves contained some identifying
information, which Ms. Kaiser was able to explain to the jury. The email address used by Brian Walters,
"brian@premierintegrity.com", contains his first name and his workplace. And the email addressed used by
Bryan Wood, "kyerdoc11kids @yahoo.com", makes reference to his professional work as an Emergency
Medicine physician and the fact that he has eleven children. Further, the emails from Dr. Wood contain an auto-
signature, "Bryan S Wood MD", and those emails were also signed "bw." Kaiser testified that she knew Dr.
Wood typically signed his emails with those lowercase initials. Surely these are the kinds of "contents,
substance, internal patterns, or other distinctive characteristics" contemplated under Federal Rule of Evidence
901(b)(4).

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 United States v. Bertram 259 F. Supp. 3d 638 (E.D. Ky. 2017)

The Court notes that neither of those two Defendants ever actually alleged the emails were not authentic. The
Defendants did not claim to have never seen or received the emails, and they did not attempt to argue that
someone else (an administrative assistant, for example) had been using their email addresses. Defense counsel's
argument against admissibility of the emails focused solely on the notion that the Government had not satisfied
Rule 901' s requirements. See Midwest Retailers Ass'n, Ltd. v. City of Toledo , 582 F.Supp.2d 931, 934-35 (N.D.
Ohio 2008) (calling a similar approach to challenging the admissibility of emails "hyper-technical and
abstract," and noting the challenge was "undercut by the lack of any allegation" that the emails were actually
inauthentic).1
1 In addition to eliciting testimony from Ms. Kaiser about her history and familiarity with the Defendants' email

communication tendencies, the Government also presented the Court with an affidavit from Jonathan Robins, the
National Director of E–Discovery Operation for the company responsible for data collection during the course of the
Government's investigation. This affidavit standing alone would have been an insufficient means of authentication,
because Mr. Robins was not an actual custodian of the emails and could speak only to the data collection procedures
used to acquire the emails. Compare Safavian, 435 F.Supp.2d at 39 (allowing the authentication of emails based on an
affidavit of an official records custodian under Rule 902(11)). Nonetheless, the Court notes that this is one additional
factor suggesting the emails the Government introduced were not tampered with or otherwise altered in a way that
would call into question their authenticity.

643 *643 Like the D.C. Circuit Court in United States v. Safavian pointed out, the undersigned need not determine
"that the evidence is necessarily what the proponent claims, but only that there is sufficient evidence that the
jury might ultimately do so." 435 F.Supp.2d at 38 (citing 31 Fed. Prac. & Proc. Evidence § 7102 (1st ed.) )
(emphasis in original). A jury considering the email exchange between Defendants Wood and Walters could
easily recognize and accept it as such. And the Government could properly use Kris Kaiser to authenticate the
emails, as she had a personal history of communicating with the Defendants via email and, thus, could testify
about the various distinctive characteristics of the emails for purposes of Rule 901(b)(4).

But notably, even if an email is properly authenticated, it still must be substantively admissible. For this reason,
the Court has considered various other Rules of Evidence throughout the trial to determine whether each email
is properly admitted. A number of emails, for example, were admitted over hearsay objections as co-
conspirator statements under Rule 801(d)(2)(E). For an out-of-court statement to be admissible under that rule,
the offering party must establish by a preponderance of the evidence that (1) a conspiracy existed; (2) the
defendant was a member of the conspiracy; and (3) the co-conspirator's statement was made during the course
and in furtherance of the conspiracy. United States v. Kelsor , 665 F.3d 684, 693 (6th Cir. 2011) ; see also
United States v. Enright , 579 F.2d 980 (6th Cir. 1978). Sixth Circuit case law notes that a statement is made in
furtherance of a conspiracy simply "if it was intended to promote conspiratorial objectives;" the statement need
not actually further the conspiracy. See United States v. Salgado , 250 F.3d 438, 449 (6th Cir. 2001).
Additionally, "[s]tatements in furtherance of a conspiracy take many forms, including statements that keep a
co-conspirator apprised of another's activities, induce continued participation, or allay his fears." Kelsor , 665
F.3d at 694.

As explained on the record, the Court preliminarily admitted a number of emails as co-conspirator statements
in this case. And the Court found those statements to be properly admitted. The evidence establishes that the
three admissibility requirements were proven by a preponderance of the evidence. Id. at 693.

A number of witnesses, including Allen Sellars, Kris Kaiser, Lisa Johnson, and Eric Duncan, offered testimony
specifically linking the five Defendants together as joint owners of PremierTox. Mr. Duncan, the former Chief
Executive Officer of PremierTox, testified that the five Defendants were frequently involved at the laboratory.

4
 United States v. Bertram 259 F. Supp. 3d 638 (E.D. Ky. 2017)

Duncan testified to attending board meetings with all five Defendants, but he also knew that sometimes the five
Defendants met separately without him. Further, the Government introduced evidence of the PremierTox
Operation Agreement entered into by the five Defendants. And the Government also put on proof of
Defendants' joint purchase of a condominium in Colorado and the Defendants' emails among themselves
regarding their use of that condo.

This evidence, among other facts presented over the course of the trial, establishes the existence of a conspiracy
644 and also places all five Defendants in the *644 conspiracy by a preponderance of the evidence. See id. at 693.
Moreover, the statements in those emails preliminarily admitted as co-conspirator statements all related to the
operation of PremierTox or the relationship between SelfRefind and PremierTox, establishing by a
preponderance of the evidence that those statements were made "during the course and in furtherance of the
conspiracy" or "to promote conspiratorial objectives." Id. ; Salgado , 250 F.3d at 449.2
2 That the jury acquitted all five Defendants of the conspiracy charge does not change the Court's conclusion. Where a

district court is persuaded by a preponderance of the evidence that the statements in question were made in furtherance
of a conspiracy, the statements are admissible even if a jury ultimately finds the evidence insufficient to convict beyond
a reasonable doubt. "Each circuit that has confronted this question has held that the acquittal of the declarant of
conspiracy does not render the statement inadmissible under the co-conspirator exception." United States v. Lacey, 856
F.Supp. 599, 602 (D. Kan. 1994) (collecting cases); see also, e.g., United States v. Peralta, 941 F.2d 1003 (9th Cir.
1991) ; United States v. Carroll, 860 F.2d 500 (1st Cir. 1988) ; United States v. Kincade, 714 F.2d 1064 (11th Cir.
1983).
--------

In the end, the Court emphasizes that the key consideration in an authentication analysis is whether the piece
evidence is, in fact, what the proponent claims it is. After considering the characteristics of the numerous
emails at issue in this case as well as the context and background testimony provided by the authenticating
witnesses, the Court has little doubt that the emails are exactly what they purport to be, and this remains true
regardless of whether the authenticating witness was a sender or recipient. Finally, the Court finds the emails
were also properly admitted on substantive grounds, as set forth in this opinion and consistent with the trial
record.

5
424 S.C. 479 (2018)
818 S.E.2d 735
The STATE, Respondent,
v.
Donte Samar BROWN, Petitioner.
Opinion No. 27836.
Supreme Court of South Carolina.
Heard June 12, 2018.
Filed August 29, 2018.
Appeal from Berkeley County, Appellate Case No. 2017-000094, Roger M.
Young, Sr., Circuit Court Judge.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS.
AFFIRMED IN RESULT.
Chief Appellate Defender Robert M. Dudek, of Columbia, for Petitioner.
482*482 Attorney General Alan Wilson and Senior Assistant Attorney General
David Spencer, both of Columbia; and Solicitor Scarlett A. Wilson, of
Charleston, all for Respondent.
481*481 JUSTICE KITTREDGE:
The central issue before the Court concerns authentication of Global
Positioning System (GPS) monitoring evidence. Specifically, is the
requirement for authentication satisfied by testimony that GPS data is
accurate because "[w]e use it in court all the time"? The answer is an
unqualified "no."
A Zaxby's restaurant in Goose Creek, South Carolina, was robbed by two
males wearing ski masks and gloves while carrying a gun and knife, around
midnight on Christmas Eve. During the robbery, a Zaxby's employee was shot
by one of the robbers. As a result of law enforcement's investigation—
including a traced scent trail, DNA evidence found on a ski mask and gun, an
executed search warrant, and a tip that Petitioner confessed to committing the
crime with Christopher Wilson—Petitioner and Wilson were arrested and
charged with robbery, as well as other crimes stemming from the incident. In
addition, during the course of their investigation, law enforcement discovered
that Wilson was wearing a GPS ankle monitor at the time of the robbery.
Wilson's GPS records reflected that he was at Zaxby's during the robbery.
Wilson pled guilty prior to Petitioner's trial.
At Petitioner's trial, the State connected Wilson to Petitioner, through Wilson's
GPS records and otherwise. As noted, this appeal is centered on Petitioner's
challenge that the State failed to authenticate Wilson's GPS records. We hold
that the State failed to properly authenticate the GPS records, and it was error
to admit this evidence. Nevertheless, due to the overwhelming evidence of
guilt, we affirm the court of appeals in result because this error was harmless
beyond a reasonable doubt.
I.
A Zaxby's restaurant in Goose Creek was robbed around midnight on
December 24, 2011, and an assistant manager was shot during the robbery.
There were several employees present at Zaxby's during the time of the
robbery who testified at 483*483 trial. They testified that, while Zaxby's was in
the process of being closed for the evening, two men wearing dark clothing,
ski masks, and gloves robbed them with a gun and knife. One of the robbers
shot the assistant manager as she lay on the ground. In addition, one victim
testified that the assailants used a knife to rip his pants and take his wallet
from his back pocket.
Within minutes of the robbery, a car narrowly avoided hitting two men dressed
in dark clothing who were exiting the woods near Zaxby's, crossing the road,
and running along a wooded area. The citizen relayed this information to the
law enforcement officers who were gathered at the nearby Zaxby's. Based on
this information, law enforcement utilized a dog from a K-9 unit to track the
scent at the entrance of a subdivision across the street and, along the trail,
found money dropped at various places before the scent was lost. Law
enforcement also discovered a ski mask, which was submitted for DNA
testing. The scent trail ended at Wilson's residence. By the time law
enforcement arrived in the vicinity of Wilson's residence, the suspects had left
the area. The assailants were not apprehended that night.
Marteeka Hamilton—one of Petitioner's on-again, off-again girlfriends—
testified that she received a call from Petitioner on Wilson's cell phone around
midnight on the night of the robbery, asking her to pick them up near Wilson's
residence because they needed a ride.[1] Hamilton testified that she picked up
Petitioner and Wilson near the entrance of the subdivision around 1:00 a.m.
that Christmas Eve. She testified that she overheard Wilson talking on the
phone and stating that he had accidentally shot someone. She also testified
that Petitioner chimed in and chastised Wilson for shooting the victim.
Hamilton dropped them off at the Northwoods Mall a few miles away. Days
later, Hamilton visited Petitioner and Wilson at a Motel Six near the mall and
saw several shopping bags in the room.
Cynthia Garrett was Petitioner's other on-again, off-again girlfriend. Garrett
testified that Petitioner confessed to her that he had robbed Zaxby's with
Wilson and she relayed this 484*484 information to the police. Garrett testified
that, prior to the robbery, she offered to provide transportation so Petitioner
could accept a job offer, but Petitioner told her that he would "rather rob than
work," informed her that he was planning to do a "lick"[2] with Wilson, and
asked to borrow Garrett's car. Garrett refused to let Petitioner borrow her car.
In addition, Garrett knew Petitioner had a gun prior to the robbery and
instructed him to remove it from her house. Approximately one week before
the robbery, Garrett kicked Petitioner out of her home due to an argument.
On the night of the robbery, Petitioner called Garrett from Wilson's cell phone
around midnight asking her to give them a ride.[3] Although Garrett was
unaware at the time why Petitioner and Wilson needed a ride and Petitioner
offered a couple hundred dollars for it, she refused. Garrett testified that
Petitioner became angry and hung up the phone. Petitioner then called
Hamilton, as discussed above, and she gave Petitioner and Wilson a ride.
Regarding Garrett's tip to law enforcement, the assigned investigator sent
officers to the Motel Six where Garrett said Petitioner had stayed after the
robbery and they confirmed that Petitioner had checked in there. In addition,
the dollar amount that Garrett provided as being stolen during the robbery
closely matched the one that law enforcement obtained from management at
Zaxby's.
At that time, the assigned investigator submitted the DNA on the ski mask
found at the scene for comparison with Wilson's DNA. The forensic test results
revealed it was a match. Based upon their advancing investigation—including
Garrett's statement and Wilson's DNA on the ski mask—law enforcement
obtained a search warrant for Wilson's residence.
While executing the search warrant, law enforcement discovered Petitioner
alone in Wilson's house. During their search, officers located the gun used
during the robbery.[4] In 485*485 addition, they found a knife matching the
description of the one used during the crime and a social security card for one
of the victims whose wallet had been stolen during the robbery.
Thereafter, law enforcement requested a DNA analysis on various items,
including the gun recovered at the residence. The State's DNA expert testified
that the test results revealed Petitioner's DNA could not be excluded from the
handle of the gun although approximately 97.8% of the population could be
excluded. As the expert explained,
We can conclude that all of the peaks in [Petitioner's] DNA profile could be
found in the mixture profile from the handle of the gun, so we have to report
that he is a possible contributor. ... If all of his data peaks are there, he is one
of those people—he's either one of those unlucky people that, you know,
came to the attention of the police and just by coincidence all of his data peaks
are there, or he handled the gun. Those are the two possibilities.
The expert concluded, "The most likely explanation for this mixture profile is
that Christopher Wilson and [Petitioner] ... both handled the gun. We could not
exclude Christopher Wilson or [Petitioner]."
While Petitioner was incarcerated and awaiting trial, Lanier Daniels was his
cellmate. During this time, Petitioner confessed to Daniels that he planned and
committed the robbery with Wilson. In particular, Daniels testified that
Petitioner said he was "the one who set up the whole thing" and Petitioner
explained to him "what had happened at Zaxby's that night" and "how they got
away." Daniels testified that Petitioner said he was upset with Wilson because
Wilson shot his uncle's girlfriend—the assistant manager—during the robbery.
Daniels testified that Petitioner disclosed "his baby mother"— Hamilton—
picked Wilson and Petitioner up after the robbery. Petitioner told Daniels that
he was arrested while "he was at a friend's house" and "getting rid of the gun."
In addition, the State entered Wilson's cell phone records at trial, without
objection, which reflected that Wilson's phone was used to call Hamilton and
Garrett during the time periods that they testified Petitioner had called them
and stated that 486*486he needed a ride for himself and Wilson on the night
of the robbery.
Law enforcement also discovered that Wilson was wearing a GPS ankle
monitor and requested the GPS records from the South Carolina Department
of Probation, Pardon, and Parole Services (the "Department"). The GPS
records, which are the focus of this appeal, purportedly placed Wilson at
Zaxby's just prior to and during the time of the robbery. During trial, the State
submitted Wilson's GPS records, to which Petitioner objected on the basis that
the State was unable to authenticate the records or comply with the business
records exception. See Rules 803(6) and 901, SCRE. The trial court overruled
the objections and admitted the GPS records.
II.
The State presented Agent Steward Powell's testimony to authenticate the
GPS records. Agent Powell testified that he is a probation agent with the
Department and explained that his job duties include supervising offenders
after they are sentenced. Part of the supervision involves the use of GPS
monitoring systems. In particular, concerning the matter of authentication, the
following colloquy occurred on direct examination:
Q. And what does [your job duty involving GPS monitoring] entail?
A. There is a GPS monitor affixed to the ankle of the offender, and their
movements are tracked wherever they go.
Q. How do they work?
....
A. The State has a GOC, general operations center, in Columbia. These
offenders are tracked, 24 hours a day, seven days a week so they're always
monitored. Us field agents—and what I mean is someone like me at a local
office, we can log on to our computers and see in realtime where these
offenders are.
Q. Is that information recorded?
487*487 A. It's recorded and it's archived.
Q. How is it recorded?
A. It's recorded by a third party vendor [Omni Link] that supplied the software
and the hardware, the actual ankle monitor, for the system.
Q. Is that information accurate?
A. It is very accurate. We use it in court all the time.
(emphasis added). The GPS records were admitted into evidence.
The jury found Petitioner guilty of criminal conspiracy, burglary second
degree, three counts of armed robbery, and five counts of kidnapping;
however, the jury found Petitioner not guilty of possession of a weapon during
the commission of a violent crime and attempted murder (or the lesser charge
of assault and battery of a high and aggravated nature). Petitioner was
sentenced to prison and he appealed to the court of appeals.
The court of appeals affirmed Petitioner's convictions and sentences in an
unpublished opinion pursuant to Rule 220, SCACR, finding no abuse of
discretion in the admission of the GPS evidence and, in any event, any error
was harmless beyond a reasonable doubt. State v. Brown, Op. No. 2016-UP-
447, 2016 WL 6471970 (S.C. Ct. App. filed Nov. 2, 2016). Petitioner filed a
petition for a writ of certiorari, which we granted.
III.
"The admission or exclusion of evidence is a matter addressed to the sound
discretion of the trial court and its ruling will not be disturbed in the absence of
a manifest abuse of discretion accompanied by probable prejudice." State v.
Douglas, 369 S.C. 424, 429, 632 S.E.2d 845, 847-48 (2006) (citations
omitted). "An abuse of discretion occurs when the conclusions of the trial court
either lack evidentiary support or are controlled by an error of law." Id. at 429-
30, 632 S.E.2d at 848 (citations omitted).
488*488 IV.
The main issue before this Court is whether Agent Powell's testimony was
sufficient to authenticate the GPS records. We hold that the GPS records were
not properly authenticated.[5] We do not doubt that Agent Powell was a proper
witness and likely able to lay the necessary foundation. But in terms of
establishing the accuracy of the GPS records, Agent Powell simply observed
the GPS records are accurate because "[w]e use it in court all the time." Such
a response provides no assistance in assessing the accuracy of the GPS
records. Without this component of authentication satisfied, it was error to
admit this evidence.
It is black letter law that evidence must be authenticated or identified in order
to be admissible. See State v. Rich, 293 S.C. 172, 173, 359 S.E.2d 281, 281
(1987)(noting prior to the adoption of the rules of evidence that an exception
to the hearsay rule does not "absolve the offering party from the usual
requirements of authentication"). Upon adoption of the South Carolina Rules
of Evidence, this common law rule was codified at Rule 901,
SCRE.[6] See State v. Anderson, 386 S.C. 120, 128-132, 687 S.E.2d 35, 39-
41 (2009). This rule specifically provides, "The requirement of authentication
or identification as a condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the matter in question is what its
proponent claims." Rule 901(a), SCRE. In addition, the rule contains
examples[7] of "authentication or identification conforming with the
requirements of this rule." Rule 901(b), SCRE. The method at issue here is:
489*489 (9) Process or System. Evidence describing a process or system
used to produce a result and showing that the process or system produces an
accurate result.
Rule 901(b)(9), SCRE.
The State acknowledges that it is required to authenticate the GPS records,
but argues that this burden is not high. We agree, and moreover, we
acknowledge that the reliability or operation of GPS technology in general is
not genuinely disputed. See, e.g., Commonwealth v. Thissell, 457 Mass. 191,
928 N.E.2d 932, 938 n.15 (2010) (reviewing the origins of GPS technology as
a "U.S.-owned utility that provides users with positioning, navigation, and
timing [PNT] services" and consists of three segments maintained by the
United States Air Force). This general acceptance of GPS technology does
not, however, translate to the State getting a pass from making a minimum
showing that the GPS records it seeks to introduce into evidence are accurate.
Here, the testimony of Agent Powell failed to authenticate because it shed no
light on the accuracy of the GPS records. The State's argument that
authentication was fulfilled through other means fails to appreciate the nature
of GPS records and that these records are generated and result from, at least
in part, the process or system used by a machine.[8]
As recognized by the Fourth Circuit Court of Appeals, "Any concerns about
the reliability of such machine-generated information is addressed through the
process of authentication...." United States v. Washington, 498 F.3d 225, 231
(4th Cir. 2007). "When information provided by machines is mainly a product
of `mechanical measurement or manipulation of data by well-accepted
scientific or mathematical techniques,'" then 490*490 "a foundation must be
established for the information through authentication, which Federal Rule of
Evidence 901(b)(9) allows such proof to be authenticated by evidence
`describing [the] process or system used to produce [the] result' and showing
it `produces an accurate result.'" Id. (citation omitted).[9]
Other persuasive authority supports this approach. See, e.g., Subdivision
(b)(9)—Process or System, 31 Fed. Prac. & Proc. Evid. § 7114 (1st ed. Apr.
2018) (stating "Rule 901(b)(9) governs the authentication of data produced by
a machine purporting to measure or detect something, such as a radar gun, a
breathalyzer, a global positioning system device, and the like" (emphasis
added)); see also Rule 902(13), FRE (allowing "[a] record generated by an
electronic process or system that produces an accurate result" to be certified).
Thus, we hold that the State needed to present "[e]vidence describing [the]
process or system used to produce" the GPS records and "showing that the
process or system produces an accurate result" in accordance with Rule
901(b)(9), SCRE, to authenticate Wilson's GPS records in this case.
We emphasize that "[n]o elaborate showing of the accuracy of the recorded
data is required"; however, the State must make some showing to
authenticate the records. People v. Rodriguez, 16 Cal.App.5th 355, 224
Cal.Rptr.3d 295, 309 (2017). Other jurisdictions have allowed GPS records to
be authenticated by someone who has general knowledge and experience
with the system used, explains how the records are generated, and confirms
the accuracy of the result. See, e.g., United States v. Brooks, 715 F.3d 1069,
1077-79 (8th Cir. 2013)(affirming, as to the specific device's accuracy, that the
GPS records were authenticated because the Government's 491*491 witness
"had been trained by the company, he knew how the device worked, ... he had
demonstrated the device for customers dozens of times," other testimony
confirmed the device's accuracy, and any brief lapse in the device's
transmission was explained); United States v. Espinal-Almeida, 699 F.3d 588,
612-13 (1st Cir. 2012) (stating "[t]he issues surrounding the processes
employed by the GPS and software, and their accuracy, were not so
scientifically or technologically grounded that expert testimony was required
to authenticate the evidence, and thus the testimony of ... someone
knowledgeable, trained, and experienced in analyzing GPS devices, was
sufficient to authenticate the GPS data and software generated evidence"
given the "testimony about the processes employed by both the GPS and the
software"); Rodriguez, 224 Cal.Rptr.3d at 309-10 (holding the GPS data was
properly authenticated through the sergeant's testimony as he "testified about
his familiarity and knowledge of how the ankle monitor transmitted defendant's
location through GPS data, the computer software used to track the ankle
monitor and the GPS data, and how the GPS report was generated" as well
as "testified about the accuracy and reliability of the GPS report generated
from the ankle monitor's signals"); State v. Kandutsch, 336 Wis.2d 478, 799
N.W.2d 865, 875-76 (2011)superseded by statute on different grounds, Wis.
Stat. § 907.02, as recognized in In re Commitment of Jones, 381 Wis.2d 284,
911 N.W.2d 97 (2018) (finding "the State was permitted to authenticate and
lay a foundation for the EMD report by providing testimony describing the
electronic monitoring system and the process by which the daily summary
reports are generated and showing that this process produces an accurate
result" through the department of correction's agents, who were familiar with
its operation and testified regarding the installation of the specific device and
its accuracy).
One jurisdiction, North Carolina, appears to use the same or similar vendor as
the one used in this case—Omni Link—and has found an officer's testimony
sufficient to authenticate GPS records. In State v. Jackson, 229 N.C.App. 644,
748 S.E.2d 50 (2013), an individual, wearing an electronic monitoring device,
was accused of sexually assaulting a victim. At trial, the State introduced
evidence from the defendant's electronic monitoring device in order to place
the defendant at the scene of the 492*492 assault. Id. at 53. On appeal, the
court evaluated whether the GPS tracking evidence was properly
authenticated. 748 S.E.2d 50. The court stated, "Regarding the specific
electronic monitoring device worn by defendant, [a trained sergeant] identified
the device as the Omni-Link 210." Id. at 54. The sergeant "described the
different components of the device" and "testified about how the device
operates using a combination of GPS signals and cell phone triangulations to
track the location of the electronic monitoring device at least every four
minutes." Id. In addition, he explained how the "tracking data is then uploaded
from the device to a secured server where it is stored" and "that the device
primarily uses GPS signals, which are very accurate, usually within four to ten
meters." Id. He also testified that he "never had any issue with the accuracy
of the data." Id. at 54. Moreover, the court noted that the sergeant "described
how he retrieved the data for defendant's electronic monitoring device for [the
specific dates at issue] and produced the event log entered into
evidence." Id. The court held that the evidence was properly authenticated
and admitted. Id. at 55.
Under the circumstances presented in this case and based on the evidence
described in the first section of this opinion, the error did not contribute to the
verdict and was harmless beyond a reasonable doubt.
VI.
In sum, we hold the State failed to authenticate the GPS records because
Agent Powell's testimony—"[w]e use it in court all the time"—failed to
authenticate the GPS evidence concerning its accuracy. However, the error
was harmless beyond a reasonable doubt. The court of appeals is affirmed in
result.
AFFIRMED IN RESULT.

After reviewing various authorities, we require that a witness should have

experience with the electronic monitoring system used and provide testimony
describing the monitoring system, the process of generating or obtaining the
records, and how this process has produced accurate results for the particular
device or data at issue. As noted, the witness need not be an
expert.[10] However, even under the minimally burdensome test we set forth,
Agent Powell failed to properly authenticate the accuracy of the GPS records.
Thus, it was error for the trial court to admit this evidence because the GPS
records were not properly authenticated.

493*493 V.

Despite this error, we hold that the error was harmless beyond a reasonable
doubt due to the overwhelming evidence of guilt presented against Petitioner.

"Generally, appellate courts will not set aside convictions due to insubstantial
errors not affecting the result." State v. Pagan, 369 S.C. 201, 212, 631 S.E.2d
262, 267 (2006). "Where `guilt has been conclusively proven by competent
evidence such that no other rational conclusion can be reached,' an
insubstantial error that does not affect the result of the trial is considered
harmless." State v. Byers, 392 S.C. 438, 447, 710 S.E.2d 55, 60
(2011) (citing Pagan, 369 S.C. at 212, 631 S.E.2d at 267). "A harmless error
analysis is contextual and specific to the circumstances of the case." Id. at
447-48, 710 S.E.2d at 60. "Where a review of the entire record establishes the
error is harmless beyond a reasonable doubt, the conviction should not be
reversed." State v. Price, 368 S.C. 494, 499, 629 S.E.2d 363, 366 (2006).
 Case No. 2:14-cr-20525
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

United States v. Pembrook

119 F. Supp. 3d 577 (E.D. Mich. 2015)
Decided Jul 31, 2015

Case No. 2:14–cr–20525.

07-31-2015

UNITED STATES of America, v. Nathaniel PEMBROOK, David Briley, Shaeed Calhoun, Orlando Johnson,
Defendants.

Christopher Graveline, Daniel L. Lemisch, United States Attorney's Office, Detroit, MI, for United States of
America.

LAURIE J. MICHELSON, District Judge.

578 *578

Christopher Graveline, Daniel L. Lemisch, United States Attorney's Office, Detroit, MI, for United States of
America.

OPINION AND ORDER DENYING MOTION TO SUPPRESS CELL SITE

LOCATION INFORMATION 56 AND GRANTING IN PART MOTION TO
EXCLUDE OR LIMIT EXPERT TESTIMONY 53
LAURIE J. MICHELSON, District Judge.

On April 22, 2014, four men attempted to rob a jewelry store in Grand Rapids, Michigan, but, after one was
579 shot by a store owner, they fled without merchandise. *579 Later that same day, three men stole $1,500,000 in
Rolex watches from a jewelry store in West Bloomfield, Michigan. Defendants Nathaniel Pembrook, David
Briley, Shaeed Calhoun, and Orlando Johnson are charged with multiple criminal offenses arising out of these
robberies (the first might have only been an attempt, but, for convenience, the Court will, as the parties do,
refer to the Grand Rapids and West Bloomfield incidents as robberies). The Government believes Defendants
are responsible for the robberies in part because of what it learned from data it obtained—without a warrant—
from cellular-phone service providers. In particular, logs from the cell towers close by the two jewelry stores
allegedly indicate that a phone used by Johnson was in the area of both stores at the time of the two robberies.
Other cell-site data purportedly shows that Calhoun, Briley, and Pembrook traveled together (at least roughly)
from Philadelphia, Pennsylvania, to Wisconsin, to the location of the two robberies, and then back to
Philadelphia.

Calhoun says that by obtaining the cell-site data without a warrant, the Government conducted a search
prohibited by the Fourth Amendment. So he moves to suppress the cell-site data. (Dkt. 56, Mot. to Suppress
Cell Site Location Information.) (His motion is joined by Pembrook (Dkt. 57), Briley (Dkt. 58), and Johnson

1
 United States v. Pembrook 119 F. Supp. 3d 577 (E.D. Mich. 2015)

(Dkt. 59), but they provide no additional argument so the Court will refer to the motion to suppress as
Calhoun's.) Calhoun also seeks to exclude from trial the testimony of the Government's cell-site data expert.
(Dkt. 53, Mot. to Exclude Expert.) (The motion is again joined by Pembrook (Dkt. 55), Briley (Dkt. 58), and
Johnson (Dkt. 59) without additional argument; so the Court also refers to the motion to exclude as Calhoun's.)
The Court has carefully considered these two motions and listened to oral argument. For the reasons set forth
below, Calhoun's motion to suppress will be DENIED and Calhoun's motion to exclude will be DENIED IN
PART AND GRANTED IN PART.

I.
A.
Some background on how cellular towers communicate with cellular phones helps to understand how the
Government used cell-site data to investigate the two jewelry-store robberies and the associated expert
testimony the Government plans to elicit at trial.

For a cellular phone to receive a call, send a text message, or download a webpage, it must communicate with a
cellular tower. (See Mot. to Suppress Ex. A, Gov't Apr. 28, 2014 App. for Order ¶ 5.) A cellular phone
automatically searches for a signal from nearby towers and “[o]nce the phone locates a tower, it submits a
unique identifier—its ‘registration’ information—to the tower so that any outgoing and incoming calls can be
routed through the correct tower.” United States v. Powell, 943 F.Supp.2d 759, 767 (E.D.Mich.2013) (citing
Timothy Stapleton, Note, The Electronic Communications Privacy Act and Cell Location Data, 73 Brook.
L.Rev. 383, 387 (2007)). “Nearby” is a relative term: it can range from a block (maybe less) to a couple miles
(maybe more) depending on the tower density in the area. See United States v. Davis, 785 F.3d 498, 503 & n. 7
(11th Cir.2015) (en banc); In re Application of U.S., 405 F.Supp.2d 435, 437 (S.D.N.Y.2005). Further, although
a cell phone often registers with its closest tower, “a variety of factors including physical obstructions and
topography can determine which tower services a particular phone.” United States v. Evans, 892 F.Supp.2d 949,
580 952 (N.D.Ill.2012). (See *580 also Gov't Apr. 28, 2014 App. for Order ¶ 5.)

Cellular service providers (e.g., Verizon Wireless) keep track of cell-phone communications with their towers
(Gov't Apr. 28, 2014 App. for Order ¶ 7); courts refer to these logs as “cell-site data” or “cell-site location
information” (“CSLI” for short), see e.g., In re Application of the U.S. for Historical Cell Site Data, 724 F.3d
600 (5th Cir.2013); In the Matter of the Application of the U.S.A. for an Order Authorizing Disclosure of
Historical Cell Site Information, 40 F.Supp.3d 89 (D.D.C.2014). Although, a cell phone “regularly
communicates with cell towers in its network” even in “idle” mode, Evans, 892 F.Supp.2d at 952, the
Government avers that the cell-site data at issue in this case only corresponds to active cell-phone use, for
example, receiving a call or sending a text, (Dkt. 72, Gov't Resp. to Request for Supp. Br. at 1). Cell-site data
might also include the “sector” of a tower to which the phone connected. For example, a tower's 360 degree
coverage area might be partitioned into three 120 degree sectors. (See Gov't Apr. 28, 2014 App. for Order ¶ 7.)
See also United States v. Jones, 908 F.Supp.2d 203, 207 (D.D.C.2012).

This cell-site data permits investigators to determine the location of a cell phone at a particular time. Assume
cell-cite data show that, on June 1, 2015, a cell phone using the phone number (734) xxx–1234 initiated a call
via a tower located at Liberty Street and 1st Street, in Ann Arbor, Michigan at 12:00 p.m. and terminated that
call while connected with a tower located at Liberty and 5th Avenue at 12:04 p.m. With a map showing that
Liberty runs east-west (with 1st Street intersecting Liberty west of 5th Avenue) and with information from the
cellular-service provider that the (734) xxx–1234 account is John Smith's, this cell-site data indicates (but does

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 United States v. Pembrook 119 F. Supp. 3d 577 (E.D. Mich. 2015)

not conclusively prove) that Smith's phone traveled east on Liberty (or a parallel street) in Ann Arbor just after
noon on June 1, 2015. An examination of the sector information might allow further refinement of the phone's
geographic location.

B.
Some legal background is also helpful to understand Calhoun's motions. The Stored Communications Act
provides in relevant part, “A governmental entity may require a provider of electronic communication service
or remote computing service to disclose a record or other information pertaining to a subscriber to or customer
of such service (not including the contents of communications) ... when the governmental entity ... obtains a
court order for such disclosure under subsection (d) of this section.” 18 U.S.C. § 2703(c)(1)(B). In turn,
subsection (d) states in relevant part, “A court order for disclosure under subsection ... (c) ... shall issue only if
the governmental entity offers specific and articulable facts showing that there are reasonable grounds to
believe that the contents of a wire or electronic communication, or the records or other information sought, are
relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703 (emphasis added). Calhoun and
the Government agree that a lesser showing than probable cause satisfies “reasonable grounds to believe.” (See
Mot. to Suppress at 21; Gov't Resp. at 19.) See also Davis, 785 F.3d at 505 (providing that § 2703(d)'s
“standard is less than the probable cause standard for a search warrant”).

C.
In this case, the Government obtained cell-site data without obtaining a warrant upon a showing of probable
581 cause. Instead, it filed Stored Communications Act *581 applications on April 28, May 22, August 5, and
September 17, 2014. The Court details the four § 2703(d) applications and corresponding court orders in turn.

1.
Six days after the robberies, the Government sought an order directing a number of cellular-service providers to
produce the phone numbers of the cellular devices that, around the time of the two robberies, had connected to
cell towers servicing the two jewelry stores. (See Mot. to Suppress Ex. A, Apr. 28, 2014 Order, Attachment A
at 1.)

In support of its request, the Government provided some details of the crime. It informed the reviewing
magistrate judge that on April 22, 2014, around 12:30 p.m., “a jewelry store located at 4518 Plainfield Ave
NW, Grand Rapids, Michigan, was robbed by four males.” (Mot. to Suppress Ex. A, Gov't Apr. 28, 2014 App.
at 2.) “An employee of the business shot at, and possibly hit, one of the suspects,” the Government averred.
(Id.) “After the gunfire[,] all four suspects fled without any merchandise.” (Id.) Further, said the application, “at
approximately, 5:00pm, a jewelry store located at 6637 Orchard Lake Road, West Bloomfield Township,
Michigan, was robbed by three men.... A review of video confirms that the three suspects were also involved in
the robbery earlier that day in Grand Rapids, Michigan.” (Id. at 2–3.) The Government further informed that it
“believe[d] that cell tower information in the two locations may reveal a common number that was active at
each location around the time of the crime. (Id. at 3.) The identification of this number will aid in identifying
potential suspects involved in the robberies.” (Id.) The Government's application also explained (somewhat
briefly) how cell towers communicate with cellular devices. (Id. at 3–4.)

On April 28, 2014, a federal magistrate judge granted the Government's application. She found that, consistent
with 18 U.S.C. § 2703(d), “the United States has offered specific and articulable facts showing that there are
reasonable grounds to believe that the records or other information sought are relevant and material to an
ongoing criminal investigation.” (Mot. to Suppress Ex. A, Apr. 28, 2014 Order at 1.) She thus ordered Metro

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 United States v. Pembrook 119 F. Supp. 3d 577 (E.D. Mich. 2015)

PCS, AT & T, Verizon, Sprint, and T–Mobile to disclose “all records and other information (not including the
contents of communications) about all communications made using” the cell towers providing service to the
Grand Rapids store between 10:00 a.m. and 1:00 p.m. on April 22, 2014 and the towers providing service to the
West Bloomfield store between 4:00 and 5:15 p.m. on April 22, 2014. (Apr. 28, 2014 Order, Attachment A at
1.) Although the magistrate judge's order included the phone numbers of each wireless device that “registered”
with the towers during the two time periods (Apr. 28, 2014 Order, Attachment A at 2), the Government advises
that “[t]he data at issue in this case only includes location information for the cellular device when that device
is in active use, that is, when someone is sending or receiving a call or text,” (Gov't Resp. to Request for Supp.
Br. at 1).

2.
Almost four weeks later, on May 22, 2014, the Government filed a second § 2703(d) application. In addition to
the details of the robberies set out in its first application, the Government added that on April 28, 2014, “a
Court Order was obtained ... authorizing the FBI to obtain data from cell phone towers near the two robberies at
the times the robberies occurred. From that data it was determined that one telephone number was active at
582 both locations during [the] time frame of *582 each robbery, (424)302–1434.” (Mot. to Suppress Ex. B, Gov't
May 21, 2014 App. at 4.) Thus, the Government sought “records and information” associated with the 1434
number. (See Mot. to Suppress Ex. B, May 21, 2014 Order, Attachment A at 1–2.)

On May 22, 2014, a federal magistrate judge found “that the United States has offered specific and articulable
facts showing that there are reasonable grounds to believe that the records or other information sought, which
include the contents of communications and other stored files, are relevant and material to an ongoing criminal
investigation.” (May 21, 2014 Order at 1.) (The Government informs that despite the order's reference to
“contents of communications and other stored files,” it obtained no content in this case. (Gov't Resp. to Request
for Supp. Br. at 1.)) He thus issued an order under § 2703 directing Verizon Wireless to provide the
Government with the information it sought, including “for the time period of sixty (60) days,” the names and
addresses of the customers or subscribers of the “Account” associated with the 1434 number, “user activity for
each connection made to or from the Account,” “[i]nformation about each communication sent or received by
the Account,” and “all data about which ‘cell towers' ... and ‘sectors' ... received a radio signal from each
cellular telephone or device assigned to the Account.” (May 21, 2014 Order, Attachment A at 1–2.)

3.
About a month and a half later, on or around August 5, 2014, the Government filed a third application under 18
U.S.C. § 2703. In addition to the factual proffer set out in the first two applications, the Government explained
what it had learned from the account associated with 1434 number: “[Historical records for the 1434 number]
show that between 4/21/2014 and 4/23/2014 [the 1434 number] had approximately 36 contacts with telephone
number (872)9990033. These records also show that both phones were calling the same two Philadelphia (PA)
telephone numbers on the day of the robberies.” (Mot. to Suppress Ex. C, Gov't Aug. 5, 2014 App. ¶ 4.) The
application further explained, “Investigation to date has identified two men from Philadelphia that were
involved in the robberies. The FBI believes that telephone number (872)999–0033 was involved in the above
described robberies and the cell site locations this phone used will help identify the suspects involved in the
crimes.” (Id.)

On August 5, 2014, a federal magistrate judge entered an order granting the Government the right to obtain
cell-site data associated with the 0033 number. (Mot. to Suppress Ex. C, Aug. 5, 2014 Order.) Consistent with §
2703(d), the judge found that the Government had “offered specific and articulable facts showing that there are

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 United States v. Pembrook 119 F. Supp. 3d 577 (E.D. Mich. 2015)

reasonable grounds to believe that the records or other information sought, which include the contents of
communications and other stored files, are relevant and material to an ongoing criminal investigation.” (Aug. 5,
2014 Order at 1.) She thus ordered that, “for the time period April 21, 2014 through May 21, 2014,” T–Mobile
was to disclose to the Government, among other information, the names and addresses of the customers or
subscribers of the “Account” associated with the 0033 number, “user activity for each connection made to or
from the Account,” “[i]nformation about each communication sent or received by the Account,” and “all data
about which ‘cell towers' ... and ‘sectors' ... received a radio signal from each cellular telephone or device
assigned to the Account.” (Aug. 5, 2014 Order, Attachment A at 1–2.)

4.
583 About six weeks later, on September 17, 2014, the Government filed the fourth *583 § 2703 application at issue
in this case. This application provided an investigation background similar to that set forth in the Government's
prior application, but further explained: “Surveillance video from the two robberies and from a gas station in
Michigan were reviewed by law enforcement. Two men, Shaheed Calhoun and David Briley, were identified
from these videos as being two of the members of the group that conducted the robberies.” (Mot. to Suppress
Ex. D, Gov't Sept. 17, 2014 App. ¶ 5.) The application continued, “Through recorded prison calls it was
discovered that Calhoun was using telephone number 610–427–1641 during the time frame of the robberies.
The FBI believes that telephone number 610–427–1641 was involved in the ... robberies and the cell site
locations this phone used will help identify the suspects involved in the crimes.” (Id.)

On September 17, 2014, a federal magistrate judge entered an order similar to those entered on May 22 and
August 5, 2014. Again applying the § 2703(d) standard, the judge found that the United States had “offered
specific and articulable facts showing that there are reasonable grounds to believe that the records or other
information sought, which include the contents of communications and other stored files, are relevant and
material to an ongoing criminal investigation.” (Mot. to Suppress Ex. D, Sept. 17, 2014 Order at 1.) She thus
ordered T–Mobile to disclose, “for the time period April 15, 2014 through May 30, 2014,” the names and
addresses of the customers or subscribers of the “Account” associated with the 1641 number, “user activity for
each connection made to or from the Account,” “each communication sent or received by the Account,” and
“all data about which ‘cell towers' ... and ‘sectors' ... received a radio signal from each cellular telephone or
device assigned to the Account.” (Sept. 17, 2014 Order, Attachment A at 1–2.)

***

To summarize the Government's use of cell-site data in this case, it first obtained data associated with the
towers around the site of the two robberies and determined that the cell phone with the number (424) 302–1434
connected to towers in the vicinity of the Medawar's jewelry store in Grand Rapids, Michigan around 12:30
p.m. and the Tapper's jewelry store in West Bloomfield, Michigan around 5:00 p.m. The Government then
sought records associated with the 1434 number, which the Government now says was Defendant Johnson's
(Gov't Resp. to Mot. to Suppress at 1 n. 1), and determined that the 1434 number had frequently called (872)
999–0033 around the time of the two robberies and that both those numbers had called two Philadelphia
numbers. So the Government sought cell-site data from April 21 to May 21, 2014 for the 0033 number, which
the Government now believes was used by Calhoun. Then, based on surveillance video, the Government
concluded that Calhoun and Briley were involved in the robberies and, based on recorded prison conversations,
that Calhoun had used the number (610) 427–1641 during the time of the robberies. So the Government sought
cell-site data from April 15 to May 30, 2014 for the 1641 number.

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 United States v. Pembrook 119 F. Supp. 3d 577 (E.D. Mich. 2015)

From this data, it appears that the Government could determine Calhoun's approximate location between April
15 and May 30, 2014, a six-week period, and Johnson's approximate location for an eight-week period.

D.
At trial, the Government intends to call Christopher Hess, a special agent with the FBI, to testify about his
584 analysis of the *584 cell-site data obtained during the Government's investigation.

Pursuant to Federal Rule of Criminal Procedure 16, on April 6, 2015, the Government sent Defendants' counsel
a letter summarizing Hess' testimony. The letter explained, “SA Hess will specifically testify to cell site
location data for four cell phones for the period of April 18—23, 2014. Using call detail records provided by
the telecommunication companies that include information related to the cellular towers that a particular
cellular telephone is communicating with, SA Hess will plot out the locations of the four cellular phones from
April 18—23, 2014.” (Mot. to Exclude Expert Ex. A, Apr. 6, 2015 Letter from Graveline to Defendants'
Counsel at 1.) The letter identified four phone numbers and their alleged users:

1. (267) 506–7819—user David Briley

2. (424) 302–1434—user Orlando Johnson

3. (872) 999–0033—user Shaheed Calhoun

4. (215) 526–1574—user [unidentified male] # 1

(Apr. 6, 2015 Letter from Graveline to Defendants' Counsel at 2.) (The 1434 and 0033 numbers were the
subject of § 2703 orders discussed above, but the 7819 and 1574 numbers were not.)

The Government's April 6, 2015 letter also attached a document titled “Basic Principals [sic ] Utilized in
Record Analysis” prepared by Hess. In it, Hess provides how cell phones communicate with cell towers. Much
of the information is similar to that presented above, but Hess included some additional detail about cellular
communications. For example, “The phone ‘sees' other towers around the SERVING CELL and will constantly
measure those signal strengths. However the phone will not randomly reselect to an adjacent tower unless the
tower is on its ‘neighbor list’ which is controlled by the network service provider,” and “As the phone moves, it
will choose a new serving cell based on signal strength and neighbor list. If this occurs while the phone is in a
call, the phone will ‘handoff’ the call to the next cell site/sector.” (Apr. 6, 2015 Letter from Graveline to Defs.'
Counsel at 3.)

The letter also included four maps prepared by Hess—one for each of the four phone numbers referenced in the
Government's letter. (Apr. 6, 2015 Letter from Graveline to Defs.' Counsel at 4.) Each map shows data points at
Philadelphia, Pennsylvania, South Bend, Indiana, Grand Rapids, Michigan, and West Bloomfield, Michigan.
(Id.) Underneath the maps, Hess wrote three statements: “Preliminary analysis identified similar travel patterns
of the referenced numbers”; “Travel originated and terminated in Philadelphia, PA”; and “The phones traveled
to WI then to MI and utilized towers consistent with the geographic area encompassing robbery locations in
Grand Rapids and Southfield, Michigan.” (Id.)

Finally, the Government's Rule 16 letter included Hess' curriculum vitae. (Apr. 6, 2015 Letter from Graveline
to Defs.' Counsel at 5.) It states, among other things, that Hess is educated in criminal justice and has received
over 400 hours of training in various cellular protocols and radio frequency theory. (Id.) The Government
informs that “Hess has testified as an expert in historical cell site analysis in over 25 criminal trials,” including
before five different judges of this judicial district. (Gov't Resp. to Mot. to Exclude Expert at 7.)

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 United States v. Pembrook 119 F. Supp. 3d 577 (E.D. Mich. 2015)

II.
The Court starts with Calhoun's motion to suppress. Calhoun argues that the cell-site data obtained pursuant to
585 the April 28, *585 2014 order entered pursuant to 18 U.S.C. § 2703(d) must be suppressed because that section
of the Stored Communications Act does not permit the Government to obtain “cell tower dump data.” (Mot. to
Suppress at 22–24.) Calhoun further argues that the evidence obtained pursuant to the April 28, August 5, and
September 17, 2014 orders must be suppressed as unreasonable searches prohibited by the Fourth Amendment.
(Mot. to Suppress at 9–22.) (Calhoun does not explicitly seek to suppress the evidence obtained pursuant to the
May 22, 2014 order for the 1434 number (see Mot. to Suppress at 9–22), presumably because the Government
believes that number was used by Johnson.) The Court addresses these arguments in turn.

A.
Calhoun's argument that the Government violated the Stored Communications Act by applying for and
obtaining an order directing AT & T, Verizon Wireless, and other cellular-service providers to produce a log of
all cellular devices that registered with cellular towers close by the jewelry stores around the time of the two
robberies is based on the text of the Act. (Mot. to Suppress at 23–24.) He focuses on the following language:
“A governmental entity may require a provider of electronic communication service or remote computing
service to disclose a record or other information pertaining to a subscriber to or customer of such service (not
including the contents of communications)....” 18 U.S.C. § 2703(c) (emphasis added); see also 18 U.S.C. §
2702(c)(1) ( “A provider described in subsection (a) may divulge a record or other information pertaining to a
subscriber to or customer of such service....” (emphasis added)). Calhoun concludes that Congress' use of the
singular “a subscriber” means that the Act “does not authorize a request for records pertaining to a large set of
unidentified persons.... To rule otherwise is to conclude that Congress intended to authorize broad-based
requests for information about potentially thousands of people by using language plainly limited to a single
person.” (Mot. to Suppress at 24.)

This argument is not novel and has been rejected by other district courts. See In re Application of the U.S.A. for
an Order Pursuant to 18 U.S.C. 2703(c), 2703(d), 42 F.Supp.3d 511, 513 (S.D.N.Y.2014); In re Cell Tower
Records Under 18 U.S.C. 2703(D), No. H–15–136M, 2015 WL 1022018, at *3 (S.D.Tex. Mar. 9, 2015).

But even accepting Calhoun's interpretation of § 2703, the Court cannot grant him the relief he seeks. Calhoun
asserts that because obtaining a tower dump is not permissible under the Stored Communications Act, the
Court “must ... suppress[ ]” that data. (Mot. to Suppress at 24–25.) Not so. The Act lists remedies for violations
of its provisions, none of which is suppression. See 18 U.S.C. §§ 2701(b), 2707; United States v. Clenney, 631
F.3d 658, 667 (4th Cir.2011) (providing that “[t]here is no mention of a suppression remedy” for violations of §
2703(c)). And the Act says, “The remedies and sanctions described in this chapter are the only judicial
remedies and sanctions for nonconstitutional violations of this chapter.” 18 U.S.C. § 2708. So the Court cannot
suppress the tower dump data even if the Government violated the Secured Communications Act by obtaining
it. See United States v. Corbitt, 588 Fed.Appx. 594, 595 (9th Cir.2014); United States v. Powell, 444 Fed.Appx.
517, 520 (3d Cir.2011).

B.
Calhoun's primary argument is that the Court must suppress the cell-site data that the Government obtained
586 pursuant to the *586 April 28, August 5, and September 17, 2014 orders because that data was obtained via a
search prohibited by the Fourth Amendment.

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 United States v. Pembrook 119 F. Supp. 3d 577 (E.D. Mich. 2015)

The Fourth Amendment to the United States Constitution provides, “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” A
“search [ ]” within the meaning of the Amendment occurs when “Government physically occupie[s] private
property for the purpose of obtaining information.” See United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945,
949, 181 L.Ed.2d 911 (2012). And, under Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576
(1967), a “search” also occurs “when the government infringes upon an expectation of privacy that society is
prepared to consider reasonable.” See Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220
(1979); United States v. Warshak, 631 F.3d 266, 284 (6th Cir.2010).

Calhoun relies on the latter formulation. Combining the two concurring opinions in United States v. Jones, –––
U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), Calhoun asserts that five justices believe that people have a
legitimate expectation of privacy in their hour-by-hour whereabouts over an extended period, such as the six-
and eight-week periods at issue in this case. (Mot. to Suppress at 10–13, 17–19.); see also United States v.
Maynard, 615 F.3d 544, 562 (D.C.Cir.2010) aff'd in part sub nom. Jones, 132 S.Ct. 945 (“A person who knows
all of another[']s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym,
an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or
political groups[.]” (footnote omitted)). And citing United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82
L.Ed.2d 530 (1984), Calhoun also argues that cell-site data has the potential to reveal information about a
person's home and is thus shielded from warrantless searches by the Fourth Amendment. (Mot. to Suppress at
11–12, 13–14.) Finally, citing United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983),
Calhoun argues that because potentially hundreds of wireless devices were connected to the towers proximate
to the two jewelry stores around the time of the robberies, the “cell tower [data] dump” obtained pursuant to the
April 28, 2014 order was a “dragnet” search that violated the Fourth Amendment. (Mot. to Suppress at 15–16.)

It is not necessary to directly address these arguments. The question presented is whether the cell-site evidence
the Government has already obtained should be suppressed, not whether an application for that data should be
granted. And suppression is not an automatic remedy for a Fourth Amendment violation. Herring v. United
States, 555 U.S. 135, 140, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009). The Supreme Court has directed lower
courts to ensure that suppression will have “[r]eal deterrent value” and to be mindful that the “bottom-line
effect [of exclusion], in many cases, is to suppress the truth and set the criminal loose in the community
without punishment.” Davis v. United States, 564 U.S. 229, 131 S.Ct. 2419, 2426, 180 L.Ed.2d 285 (2011)
(citation and internal quotation marks omitted). The balance has been articulated this way: When law
enforcement “exhibit[s] deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights, the
deterrent value of exclusion is strong and tends to outweigh the resulting costs,” but when law enforcement
“act[s] with an objectively reasonable good-faith belief that their conduct is lawful ... the deterrence rationale
587 *587 loses much of its force, and exclusion cannot pay its way.” Id. at 2427–28 (internal quotation marks
omitted). Suppression is a remedy of “last resort.” Id. at 2527.

As will be explained, at the time the Government obtained the cell-site data at issue in this case, there was no
binding authority holding that obtaining cell-site data, even cell-site data revealing an individual's whereabouts
over an extended period or his presence in a private place, required a warrant supported by probable cause.
Further, as will also be explained, the persuasive authority available at the time was mixed. As such, the Court
finds that the Government could not have been “deliberate, reckless, or grossly negligent,” Davis, 131 S.Ct. at
2427, in violating Calhoun's Fourth Amendment rights (assuming, without deciding, that it did violate them).

1.

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 United States v. Pembrook 119 F. Supp. 3d 577 (E.D. Mich. 2015)

The Court starts with the Supreme Court cases that should have informed the FBI and the United States
Attorney's decision to obtain the month-and-a-half of data associated with Calhoun's cell-phone accounts.

In United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), government agents were
investigating Mitchell Miller for tax fraud and, without a warrant, obtained records from two of Miller's bank
accounts. See id. at 436–38, 96 S.Ct. 1619. One bank gave the agents “all checks, deposit slips, two financial
statements, and three monthly statements.” Id. at 438, 96 S.Ct. 1619. The Supreme Court, applying Katz's
reasonable-expectation-of-privacy test, held that the agents had not violated Miller's Fourth Amendment rights
in obtaining the bank records. The Court explained that “[a]ll of the documents obtained, including financial
statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their
employees in the ordinary course of business.” Id. at 442, 96 S.Ct. 1619. Said the Court: “The depositor takes
the risk, in revealing his affairs to another, that the information will be conveyed by that person to the
Government. This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of
information revealed to a third party and conveyed by him to Government authorities, even if the information is
revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third
party will not be betrayed.” Id. at 443, 96 S.Ct. 1619 (citation omitted).

Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), rests on the same voluntary-disclosure
doctrine. There, police suspected Michael Lee Smith of a robbery and so they, without a warrant, directed his
telephone company to install “a pen register at its central offices to record the numbers dialed from the
telephone at [Smith's] home.” Id. at 737, 99 S.Ct. 2577. Not long thereafter, the pen registered that Smith had
dialed the robbery victim's number; “[o]n the basis of [that] and other evidence, the police obtained a warrant to
search [Smith's] residence” where it found further evidence linking Smith to the robbery. Id. The Court held
that “even if [Smith] did harbor some subjective expectation that the phone numbers he dialed would remain
private, this expectation [was] not ‘one that society is prepared to recognize as reasonable.’ ” Id. at 743, 99
S.Ct. 2577 (quoting Katz, 389 U.S. at 361, 88 S.Ct. 507). In accord with Miller, the Court reasoned, “When he
used his phone, petitioner voluntarily conveyed numerical information to the telephone company and ‘exposed’
that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk
588 that the company would *588 reveal to police the numbers he dialed.” Id. at 744, 99 S.Ct. 2577.

United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), held that law enforcement's
warrantless tracking was permissible but under a slightly different rationale than that of Miller and Smith. In
Knotts, police placed a “beeper” inside a chloroform drum to track, via a radio signal, the movements of
individuals suspected of manufacturing drugs. Id. at 277–78, 103 S.Ct. 1081. In the course of tracking the
suspects, the police lost the beeper signal, and when they picked it up, the signal was stationary at a cabin. Id. at
278, 103 S.Ct. 1081. “Relying on the location of the chloroform derived through the use of the beeper and
additional information obtained during three days of intermittent visual surveillance of [the] cabin, officers
secured a search warrant,” executed it, and discovered a drug laboratory. Id. at 279, 103 S.Ct. 1081. The
Supreme Court held that the officers' use of the beeper without a warrant did not offend the Fourth
Amendment. In the language of Katz, the Court explained, a “person travelling in an automobile on public
thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Id. at
281, 103 S.Ct. 1081. In responding to the argument that the beeper had reached the premises of a private
dwelling, the Court was careful to note that there was no evidence “that the beeper was used in any way to
reveal information as to the movement of the drum within the cabin, or in any way that would not have been
visible to the naked eye from outside the cabin.” Id. at 285, 103 S.Ct. 1081. In response to the argument that the

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 United States v. Pembrook 119 F. Supp. 3d 577 (E.D. Mich. 2015)

beeper would allow the police to engage in 24–hour surveillance, the Court explained, “if such dragnet type
law enforcement practices as respondent envisions should eventually occur, there will be time enough then to
determine whether different constitutional principles may be applicable.” Id. at 284, 103 S.Ct. 1081.

United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), also involved the authorities' use
of a beeper, but, unlike Knotts, “present[ed] the question whether the monitoring of a beeper in a private
residence, a location not open to visual surveillance, violates the Fourth Amendment rights of those who have a
justifiable interest in the privacy of the residence.” Id. at 714, 104 S.Ct. 3296. The DEA had installed a beeper
inside a can of ether it thought would be used to manufacture drugs. Id. at 708, 104 S.Ct. 3296. The DEA
tracked the can to a house, but “did not maintain tight surveillance [of the residence] for fear of detection.” Id.
at 709, 104 S.Ct. 3296. After the suspects left the house, and again on the following day, agents used the beeper
to determine that the can of ether was still in the home. Id. at 710, 104 S.Ct. 3296. In holding the DEA's
warrantless use of the beeper unconstitutional, the Supreme Court characterized as “obvious” the fact that
“private residences are places in which the individual normally expects privacy free of governmental intrusion
not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as
justifiable.” Id. Given that the Government's use of the beeper “reveal[ed] a critical fact about the interior of the
premises” that the Government “could not have otherwise obtained without a warrant,” the warrantless use of
the beeper to determine the presence of the can in the house ran afoul of the Fourth Amendment. Id. at 715,
718, 104 S.Ct. 3296; see also Kyllo v. United States, 533 U.S. 27, 34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001)
(“We think that obtaining by sense-enhancing technology any information regarding the interior of the home
589 that could not otherwise have been obtained without physical *589 intrusion into a constitutionally protected
area constitutes a search—at least where (as here) the technology in question is not in general public use.”
(internal quotation marks and citation omitted)).

United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 951, 181 L.Ed.2d 911 (2012), involves much more recent
technology: government agents installed a Global–Positioning–System tracking device “on the undercarriage of
the Jeep” and, over a 28–day period, tracked the vehicle's movements to within 50 to 100 feet. 132 S.Ct. at 947.
This ultimately led to Jones being indicted for conspiracy to distribute cocaine. Id. at 948. The Justices
authored three opinions. The majority opinion, authored by Justice Scalia and joined by four other justices,
focused on the pre-Katz physical-intrusion-of-property test and “h[e]ld that the Government's installation of a
GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitute[d] a
‘search.’ ” Id. at 949. Justice Alito instead analyzed the issue under Katz's legitimate-expectation-of-privacy
test. In his and three other justices' view, “relatively short-term monitoring of a person's movements on public
streets accords with expectations of privacy that our society has recognized as reasonable.” Jones, 132 S.Ct. at
964 (Alito, J., concurring in judgment). “But,” said Justice Alito, “the use of longer term GPS monitoring in
investigations of most offenses impinges on expectations of privacy.” Id. He explained, “For such offenses,
society's expectation has been that law enforcement agents and others would not—and indeed, in the main,
simply could not—secretly monitor and catalogue every single movement of an individual's car for a very long
period.” Id. Although Justice Alito acknowledged that the line between short- and long-term monitoring might
be blurry, for him (and the three justices who joined his opinion) “the line was surely crossed before the 4–
week mark.” Id. Justice Sotomayor wrote a concurrence. Although she joined Justice Scalia's opinion in full
(thereby making Justice Scalia's opinion a true majority opinion), she wrote, “I agree with Justice Alito that, at
the very least, ‘longer term GPS monitoring in investigations of most offenses impinges on expectations of
privacy.’ ” Jones, 132 S.Ct. at 955 (Sotomayor, J.) (quoting Jones, 132 S.Ct. at 964 (Alito, J.)).

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 United States v. Pembrook 119 F. Supp. 3d 577 (E.D. Mich. 2015)

Even charging the Government with complete knowledge of all these Supreme Court decisions, the Court
cannot conclude that the Government's decision to obtain cell-site data associated with Calhoun's cellular
accounts without a warrant was a “deliberate, reckless, or grossly negligent disregard for [Calhoun's] Fourth
Amendment rights.” Davis, 131 S.Ct. at 2427–28 (internal quotation marks omitted).

Starting with Knotts, if the Government had good reason to believe that the cell-site data it would obtain would
only reveal Calhoun's location on the “public thoroughfares” in and between Philadelphia, Grand Rapids, and
West Bloomfield, then the Government would also have had good reason to believe that Calhoun did not have a
reasonable expectation of privacy in the cell-site data. And that was the case for the initial April 28, 2014
“tower dump” as the towers at issue serviced the two commercial jewelry stores. Defendants had no legitimate
expectation of privacy there; and Defendants have not suggested that they had any expectation of privacy in
nearby buildings (which, presumably, were mostly commercial in nature). As for the fact that the tower dump
may have disclosed the approximate location of hundreds of cell phone users, Defendants have not explained
590 how they can complain about a potential intrusion on privacy interests *590 not their own. See United States v.
Noble, 762 F.3d 509, 526 (6th Cir.2014) (“It is long-settled that ‘Fourth Amendment rights are personal rights
which, like some other constitutional rights, may not be vicariously asserted.’ ” (quoting Alderman v. United
States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969))). Nor did Knotts, as Calhoun suggests, prohibit
this type of broad-sweeping search; all the Supreme Court said was “if such dragnet type law enforcement
practices as respondent envisions should eventually occur, there will be time enough then to determine whether
different constitutional principles may be applicable.” Knotts, 460 U.S. at 284, 103 S.Ct. 1081 (emphasis
added).

More importantly, the voluntary-disclosure reasoning of Miller and Smith supports the Government's decision
to proceed without a warrant—assuming that, by mid–2014, people understood that their cellular phones sent
data to cellular towers to make calls, send texts, or download webpages. This assumption would not have been
unreasonable for the Government to make. See In re Application of the U.S. for Historical Cell Site Data, 724
F.3d 600, 614 (5th Cir.2013) (“Because a cell phone user makes a choice to get a phone, to select a particular
service provider, and to make a call, and because he knows that the call conveys cell site information, the
provider retains this information, and the provider will turn it over to the police if they have a court order, he
voluntarily conveys his cell site data each time he makes a call.”); In re Application of the U.S.A., 42 F.Supp.3d
511, 517 (S.D.N.Y.2014) (“Many courts have held that [the] voluntary disclosure doctrine (also known as the
‘third-party disclosure doctrine’) [set out in Smith and Miller ] compels the conclusion that the Government's
acquisition of cell site location data is not a ‘search’ within the meaning of the Fourth Amendment.”); In re
Smartphone Geolocation Data Application, 977 F.Supp.2d 129, 137–42 (E.D.N.Y.2013) (providing a number
of reasons for why cellular phone users should understand that cellular-phone service providers log geolocation
information and that “all of the known tracking technologies may be defeated by merely turning off the
phone”); but see In re Application of U.S., 620 F.3d 304, 317–18 (3d Cir.2010) (concluding that “[a] cell phone
customer has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way”
and that “it is unlikely that cell phone customers are aware that their cell phone providers collect and store
historical location information” (citations omitted)); In re Application for Pen Register & Trap/Trace Device
with Cell Site Location Auth., 396 F.Supp.2d 747, 756–57 (S.D.Tex.2005) (“Unlike dialed telephone numbers,
cell site data is not ‘voluntarily conveyed’ by the user to the phone company. As we have seen, it is transmitted
automatically during the registration process, entirely independent of the user's input, control, or knowledge.”).

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 United States v. Pembrook 119 F. Supp. 3d 577 (E.D. Mich. 2015)

And the fact that the Government could have reasonably thought that the voluntary-disclosure rationale
articulated in Smith and Miller applied to the cell-site data it sought, could have reduced the weight of Karo in
the Government's mind. As the Fifth Circuit explained in an opinion issued before the events of this case:
“Both Karo and Smith involved the Government's acquisition of information about the interior of a home: that a
particular canister was located in the home or that a person was calling particular numbers from a phone in the
home. But in Karo (as in Jones), the Government was the one collecting and recording that information. And
591 this is the distinction on which the Government's affirmative argument *591 turns.” In re Application of the U.S.
for Historical Cell Site Data, 724 F.3d 600, 609 (5th Cir.2013); see also In re Application of the U.S.A., 42
F.Supp.3d 511, 518 (S.D.N.Y.2014) (“As Smith makes clear, the voluntary disclosure doctrine applies even
where the disclosures are made from the protected space of the home.”).

Regarding Jones, the possibility that Justice Sotomayor's opinion could be read as a fifth vote for the finding
that society is willing to accept as reasonable a person's claim to privacy in their cumulative whereabouts does
not show that the Government acted with reckless disregard to Calhoun's Fourth Amendment rights. Although
Justice Sotomayor did say she “agree[d] with Justice Alito that, at the very least, ‘longer term GPS monitoring
in investigations of most offenses impinges on expectations of privacy,’ ” Jones, 132 S.Ct. at 955 (Sotomayor,
J.) (quoting Jones, 132 S.Ct. at 964 (Alito, J.)), her concurrence was not unequivocal on that point. Noting that
“GPS monitoring generates a precise, comprehensive record of a person's public movements,” and that GPS
monitoring comes at little cost to the government (as compared to traditional means of surveillance), Justice
Sotomayor stated that she “would” take those attributes “into account when considering the existence of a
reasonable societal expectation of privacy in the sum of one's public movements.” Id. at 956 (emphasis added).
And in discussing Smith's voluntary-disclosure doctrine, Justice Sotomayor used similar some-day language:
that it “may” be necessary to revisit “the premise that an individual has no reasonable expectation of privacy in
information voluntarily disclosed to third parties.” Id. at 957 (emphasis added). All of this is underscored by
her conclusion: “Resolution of these difficult questions in this case is unnecessary, however, because the
Government's physical intrusion on Jones' Jeep supplies a narrower basis for decision. I therefore join the
majority's opinion.” Id. at 957 (emphasis added). Thus, the Government could have reasonably understood that
only four justices had settled on the position that people have a reasonable expectation of privacy in their
whereabouts over the long term (where there is no issue regarding public disclosure of the information gleaned
from the tracking method). See also United States v. Davis, 785 F.3d 498, 500 (11th Cir.2015) (en banc)
(finding that in Jones Justice Sotomayor raised the question of whether Smith might need to be revisited “but
did not even purport to answer it.” (quoting Jones, 132 S.Ct. at 957)); United States v. Herron, 2 F.Supp.3d 391,
402 (E.D.N.Y.2014) (“Jones does not appear to have substantially altered the state of the law as to historical
cell-site records.”).

In short, no Supreme Court authority established by mid–2014 that obtaining cell-site data—even data that
might reveal Calhoun's daily travel over a six-week period or disclose his presence in a private place—was a
search within the meaning of the Fourth Amendment. Thus, the Government's decision to proceed without a
warrant was not in reckless disregard to any Supreme Court precedent such that suppression of the data would
be the appropriate remedy.

2.
The Court next considers binding Sixth Circuit precedent and asks whether that body of law made clear to the
government that obtaining cell-site data without a warrant was unconstitutional. Several opinions are relevant.

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 United States v. Pembrook 119 F. Supp. 3d 577 (E.D. Mich. 2015)

In United States v. Forest, 355 F.3d 942 (6th Cir.2004), judgment vacated on other grounds, 543 U.S. 1100, 125
592 S.Ct. 1050, 160 L.Ed.2d 1001 (2005), DEA agents identified Craig Forest and Herman Garner as *592 “active
cocaine traffickers.” Id. at 947. Although the agents conducted physical surveillance of Forest and Garner, they
“were unable to maintain constant visual contact.” Id. “In order to reestablish visual contact, a DEA agent
dialed Garner's cellular phone (without allowing it to ring) several times that day and used Sprint's computer
data to determine which cellular transmission towers were being ‘hit’ by Garner's phone. This ‘cell-site data’
revealed the general location of Garner.” Id. The Sixth Circuit found the facts similar to those of Knotts:
“Garner acknowledges that the cell-site data was used to track his movements only on public highways. The
rationale of Knotts therefore compels the conclusion that Garner had no legitimate expectation of privacy in the
cell-site data because the DEA agents could have obtained the same information by following Garner's car.” Id.
at 951. Notably, Garner “persuasively distinguishe[d]” the Supreme Court's decision in Smith by arguing that
unlike the robbery suspect in that case who voluntarily called his victim from his home, “he did not use his
telephone”; instead, “[t]he agent dialed Garner's phone number and the dialing caused Garner's phone to send
out signals.” Id. Still, the Sixth Circuit thought that while Garner's argument “might have merit in other
contexts,” it had no significance on the facts before it because “the cell-site data [was] simply a proxy for
Garner's visually observable location” and “Garner had no legitimate expectation of privacy in his movements
along public highways.” Id. at 951.

United States v. Skinner, 690 F.3d 772 (6th Cir.2012), involved facts very similar to those of Forest and the
Sixth Circuit again found Knotts controlling. Melvin Skinner was suspected of working as a marijuana courier.
Id. at 775–76. Authorities repeatedly “pinged” Skinner's phone, which allowed them to determine that he was
travelling “on Interstate 40 across Texas.” Id. at 776. This tracking eventually informed law enforcement that
Skinner had stopped at a truck stop near Abilene, Texas. DEA agents were dispatched to the stop and a search
of the motorhome Skinner was driving uncovered 1,100 pounds of marijuana. Id. at 776. Skinner sought to
suppress the search of the motorhome, asserting that “the agents' use of GPS location information emitted from
his cell phone was a warrantless search that violated the Fourth Amendment.” Id. at 776. The Sixth Circuit
disagreed: “Similar to the circumstances in Knotts, Skinner was traveling on a public road before he stopped at
a public rest stop. While the cell site information aided the police in determining Skinner's location, that same
information could have been obtained through visual surveillance.” Id. at 778. In reference to Justice Alito's
opinion in Jones, the Sixth Circuit stated, “There may be situations where police, using otherwise legal
methods, so comprehensively track a person's activities that the very comprehensiveness of the tracking is
unreasonable for Fourth Amendment purposes.” Id. at 780. But, said our Court of Appeals, “No such extreme
comprehensive tracking [was] present in this case.... [T]he DEA agents only tracked Skinner's cell phone for
three days.” Id.

The government personnel involved here could have reasonably read Forest and Skinner as providing little
guidance beyond Knotts and Jones. In particular, because the Sixth Circuit found that the cell-site data obtained
in Forest and Skinner could have been obtained through traditional tracking on the public roadways, it found
that Knotts controlled. True, in Forest, the Sixth Circuit indicated that Smith's voluntary-disclosure doctrine
593 might not apply to the situation when a cell-phone is merely registered to a tower *593 but in “idle” (or merely
receives calls but does not make them), but the Court of Appeals did not decide that issue. It instead found
Knotts ‘ public-thoroughfare doctrine a narrower decisional ground, reasoning that the defendant's argument
“might have merit in other contexts.” 355 F.3d at 951 (emphasis added). As for Skinner, it is true that the Sixth
Circuit indicated that it might follow Justice Alito's reasoning in Jones where the Government comprehensively
tracks a person's movements. But like Justice Sotomayor in Jones, our Court of Appeals did not unequivocally
make that finding—Knotts disposed of the appeal.

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 United States v. Pembrook 119 F. Supp. 3d 577 (E.D. Mich. 2015)

At oral argument, it became apparent that Calhoun's primary authority against the application of a good-faith
exception in this case is United States v. Warshak, 631 F.3d 266 (6th Cir.2010). But that case is far afield of this
one. True, it involved a motion to suppress data that the Government obtained pursuant to the Stored
Communications Act. Id. at 282. But the data at issue in Warshak was the content of email messages—not, for
example, data indicating from which internet-protocol address a message was sent. See id. (noting
Government's seizure of 27,000 private emails). Indeed, the Sixth Circuit's “hold[ing]” was that “a subscriber
enjoys a reasonable expectation of privacy in the contents of emails that are stored with, or sent or received
through, a commercial ISP.” Id. at 288 (emphasis added) (internal quotation marks omitted). Here, the
Government did not obtain the content of Calhoun's text messages or cell-phone conversations.

In sum, even charging the FBI and the United States Attorney with knowledge of relevant Sixth Circuit
precedent, the Court cannot say that the Government recklessly disregarded Calhoun's Fourth Amendment
rights in obtaining the cell-site data Calhoun seeks to suppress.

3.
A consideration of persuasive authority does not alter the Court's conclusion.

Starting with an examination of the precedent from this judicial district available as of mid–2014, nothing the
Court could find clearly informed the Government that obtaining historical cell-site data without a warrant was
unlawful. The closest would have been United States v. Powell, 943 F.Supp.2d 759 (E.D.Mich.2013)—but that
case involved real-time tracking of an individual's whereabouts via cell-site data. Id. at 770 (holding “that when
the government requests authorization to engage in long-term, real-time tracking of an individual's movements
via his or her cell phone, the situation reaches past the law set forth in Skinner, and Fourth Amendment
concerns are implicated” and providing that, with regard to real-time data, a “significant majority” of courts
have required a warrant). Although this Court questions whether the historical versus real-time distinction
makes a constitutional difference, at least some courts had found it significant. United States v. Graham, 846
F.Supp.2d 384, 391 (D.Md.2012); In re Applications of U.S. for Orders Pursuant to Title 18, U.S.Code Section
2703(d), 509 F.Supp.2d 76, 80 (D.Mass.2007). Thus, the Court cannot say that one non-binding case to the
contrary shows that the Government acted recklessly in proceeding by order and not warrant. Indeed, another
case from this district on the books in mid–2014 lent some support to the Government's action. See United
States v. Carpenter, No. 12–20218, 2013 WL 6385838 (E.D.Mich. Dec. 6, 2013) (rejecting argument that a cell
594 phone user's reasonable expectation of privacy in prolonged surveillance data demonstrated that the Stored *594
Communications Act “reasonable grounds” standard was unconstitutional).

Moreover, the out-of-district persuasive authority available at the time of the Government's four § 2703(d)
applications was far from one-sided. Compare In re Application of the U.S. for Historical Cell Site Data, 724
F.3d 600, 613 (5th Cir.2013) (finding the defendant had no reasonable expectation of privacy in sixty days of
cell-site data revealing the defendant's approximate geographic location when phone was used (and not merely
in idle) because using a cell phone is “entirely voluntary” and “the Government does not ... require [someone]
to make a call, let alone to make a call at a specific location”); In re Smartphone Geolocation Data Application,
977 F.Supp.2d 129, 131–32, 146 (E.D.N.Y.2013) (finding, no reasonable expectation of privacy in 30 days'
worth of prospective geolocation data; reasoning, “it is clearly within the knowledge of cell phone users that
their telecommunication carrier, smartphone manufacturer and others are aware of the location of their cell
phone at any given time.... [I]ndividuals who do not want to be disturbed by unwanted telephone calls at a
particular time or place simply turn their phones off, knowing that they cannot be located”); United States v.
Graham, 846 F.Supp.2d 384, 387, 391 (D.Md.2012) (finding, where government sought cell-site data covering
“two hundred and twenty-one days” and included “20,235 individual cell site location data points” that

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 United States v. Pembrook 119 F. Supp. 3d 577 (E.D. Mich. 2015)

defendants did “not have a legitimate expectation of privacy in the historical cell site location records acquired
by the government”), with United States v. Davis, 754 F.3d 1205, 1215 (11th Cir.2014) (finding, where
government obtained 67 days of records showing “the telephone numbers for each of Davis's calls and the
number of the cell tower that connected each call,” that “the government's warrantless gathering of [Davis's]
cell site location information violated his reasonable expectation of privacy”), opinion vacated, 573 Fed.Appx.
925 (11th Cir.2014);1 In re Application of U.S. for an Order Directing a Provider of Elec. Commc'n Serv. to
Disclose Records to Gov't, 620 F.3d 304, 312–13 (3d Cir.2010) (relying on Knotts to find that probable cause
was not necessary to obtain historical CSLI where there was “no evidence in this record that historical CSLI”
extended to people's homes, but rejecting the notion that Smith ‘s voluntary-disclosure doctrine applied to cell
phone use); In the Matter of an Application of U.S. for an Order Authorizing the Release of Historical Cell–Site
Info., 809 F.Supp.2d 113, 116 (E.D.N.Y.2011) (finding that a request for prolonged historical cell-site
constituted a “search” under the Fourth Amendment that required a warrant and a showing of probable cause).
1 The Court recognizes that this panel decision in

Indeed, it may have been that at the time of the Government's applications in this case, a majority of courts had
held that law enforcement could obtain historical cell-site data without a warrant. See United States v. Moreno–
Nevarez, No. 13–CR–0841–BEN, 2013 WL 5631017, at *2 (S.D.Cal. Oct. 2, 2013) (joining “the majority of
the courts to address this issue ... in concluding that there is no ‘reasonable expectation of privacy’ in historical
cell site data” in case where government sought two-and-a-half months of historical cell-site data generated
only when the user made or received a call); Graham, 846 F.Supp.2d at 389 (reviewing cases from 2010 and
595 2011 and concluding that “[a] *595 majority of courts ... have concluded that the acquisition of historical cell
site location data pursuant to the Stored Communications Act's specific and articulable facts standard does not
implicate the Fourth Amendment, regardless of the time period involved.”). But cf. United States v. Powell, 943
F.Supp.2d 759, 770 (E.D.Mich.2013) (providing that, with regard to real-time prospective data, a “significant
majority” of courts have required a warrant).

Given the split in persuasive authority at the time the Government acted, even charging the Government with
knowledge of cases finding or suggesting that a warrant was required to obtain the cell-site data associated with
Calhoun's accounts, the Court cannot say that the Government recklessly disregarded Calhoun's Fourth
Amendment rights by proceeding without a warrant.

4.
Before concluding the deterrence analysis, the Court makes two further points.

First, with limited exceptions, “[t]he exclusionary rule does not bar the government's introduction of evidence
obtained by police officers acting in objectively reasonable reliance on a search warrant that is subsequently
invalidated.” United States v. McPhearson, 469 F.3d 518, 525 (6th Cir.2006) (internal quotation marks
omitted). Although a magistrate judge did not issue a warrant in this case, two magistrate judges did issue §
2703(d) orders granting the Government the right (or, at least the perceived right) to obtain the cell-site data it
sought. This lends some support to the Government's claim that it proceeded in good faith. See United States v.
Jones, 908 F.Supp.2d 203, 215 (D.D.C.2012) (“Here, Magistrate Judge Facciola—and later Magistrate Judge
Kay—considered the government's applications and determined that the government could obtain prospective
cell-site information under 18 U.S.C. § 2703(c) and had satisfied the standard set forth in § 2703(d).... [I]t was
objectively reasonable for the government to rely on the independent judicial determinations that no warrant

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 United States v. Pembrook 119 F. Supp. 3d 577 (E.D. Mich. 2015)

was required.”); United States v. Ferguson, 508 F.Supp.2d 7, 9 (D.D.C.2007) (“The fact that a neutral
Magistrate Judge approved the Government's applications under the SCA provides further reason to deem the
Government's reliance on the SCA to be objectively reasonable.”).

The second point involves Calhoun's primary argument that suppression in this case will result in significant
deterrence: that, as opposed to cases where police perform a search in haste, this case involved a deliberate
decision by a United States Attorney, someone with a deeper understanding of Fourth Amendment
jurisprudence. (See Mot. to Suppress at 21; Reply to Gov't Resp. to Mot. to Suppress at 6.) Whatever merit this
argument has, the Court's analysis has proceeded under the assumption that the United States Attorney knew all
of the authorities cited above. So Calhoun's argument does not disturb the Court's analysis.

***

The point of suppression is deterrence; and when the Government “act [s] with an objectively reasonable good-
faith belief that their conduct is lawful ... the deterrence rationale loses much of its force, and exclusion cannot
pay its way.” Davis, 131 S.Ct. at 2426–28. That is the case here: no binding precedent dictated that the
Government needed a warrant to obtain the cell-site data that Calhoun seeks to suppress and persuasive
authority on the issue was mixed, or, arguably, favored proceeding without a warrant. As such, the Court will
596 deny Calhoun's motion (joined in by the other Defendants) to *596 suppress the cell-site data that the
Government obtained during its investigation.

III.
Remaining for resolution is Calhoun's motion to exclude the Government's cell-site data expert, Christopher
Hess, from testifying at trial or, in the alternative, to limit his testimony, or, in further alternative, for additional
discovery relating to Hess' testimony.

Calhoun raises four arguments. First, he says that the Government's Federal Rule of Criminal Procedure 16
letter and the accompanying report by Hess “fail[ ] to provide any details describing the bases and reasons” for
Hess' conclusions, thereby depriving the Court of the ability to determine whether his methods are reliable.
(Dkt. 53, Mot. to Exclude Expert at 9.) Second, Calhoun says that Hess' opinion is based on the “theory of
granulization”—a theory untested by the scientific community. (Mot. to Exclude Expert at 10–11; Reply re
Mot. to Exclude Expert at 3.) Third, Calhoun argues that Hess' testimony is not admissible under Federal Rule
of Evidence 701 as lay-witness testimony. (Id. at 11–13.) Finally, Calhoun asserts that if the Court allows Hess
to testify, he would like additional discovery so that he can effectively cross-examine Hess at trial. (Id. at 14.)

The Court begins with Calhoun's third point because the Government agrees with it: the Government
acknowledges that Hess' testimony is not lay-witness testimony and so Hess must pass this Court's screening of
expert witnesses. (See Gov't Resp. to Mot. to Exclude Expert at 4–8.) So the question is whether Hess'
testimony satisfies the standards set out in Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

Federal Rule of Evidence 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in
the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;

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 United States v. Pembrook 119 F. Supp. 3d 577 (E.D. Mich. 2015)

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed.R.Evid. 702. Or more concisely stated, the question is whether Hess' expert opinion “rests on a reliable
foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597, 113 S.Ct. 2786. It is the Government's
burden to persuade the Court that the answer is likely “yes.” See Fed.R.Evid. 702 advisory committee note
(2000) (“[T]he proponent has the burden of establishing that the pertinent admissibility requirements are met
by a preponderance of the evidence”). But exclusion remains the exception, see id., as “[v]igorous cross-
examination, presentation of contrary evidence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but admissible evidence,” Daubert, 509 U.S. at 596, 113
S.Ct. 2786.

The basis for Calhoun's second argument, that Hess' testimony relies on an untested theory, is a single case:
United States v. Evans, 892 F.Supp.2d 949 (N.D.Ill.2012). There, the Government sought to rely upon the
testimony of a cell-site expert to show that the criminal defendant, Antonio Evans, was in the area where a
597 kidnapping took place. Id. at 951. The court explained that the theory of *597 granulization involved (1)
identifying the cell tower, sector, and sector-coverage direction used by the phone during the relevant time
period; (2) estimating “the range of each [sector's] coverage based on the proximity of the tower to other towers
in the area,” and (3) predicting “where the coverage area of one tower will overlap with the coverage area of
another.” Id. at 952. Applying this theory to the facts at hand, the Government's expert intended to testify that
Evans' cell-phone used two towers at the time of the kidnapping and that “[t]he building where the victim was
held [fell] squarely within the coverage overlap of [those] two towers.” Id. The court found one significant
problem was that the expert's coverage-overlap theory assumed that Evans' phone “used the towers closest to it
at the time of the calls” without accounting for the possibility that Evans' might have connected to other towers
because of signal obstruction or network traffic. Id. at 956. “Second,” the court reasoned, “the granulization
theory remains wholly untested by the scientific community, while other methods of historical cell site analysis
can be and have been tested by scientists.” Id. “Given that multiple factors [could] affect the signal strength of
a tower and that [the expert's] chosen methodology ha[d] received no scrutiny outside the law enforcement
community,” the court concluded that the Government had not carried its burden in establishing that the
granulization method was reliable. Id. at 957.

Hess' proposed testimony is not similar enough to that excluded in Evans to justify that result here. The
Government explains that it “is not attempting to put a particular cell phone in [a] very specific location via
Agent Hess' testimony”; instead, it “is attempting to show how the four phones in question originated in the
Philadelphia, Pennsylvania [sic ] on April 21, 2014, traveled in a similar pattern over the next few days, were in
the Grand Rapids and West Bloomfield areas around the time of the robberies, and traveled back to
Philadelphia on April 2223, 2014.” (Gov't Resp. to Mot. to Exclude at 10.) The Government “concedes” that
cell-site data cannot place Defendants “in a precise location.” (Id. at 11.) Thus, to the extent that Hess'
testimony essentially consists of placing the four cell phones at issue in this case within a general geographic
region, i.e., within a couple miles of a particular tower, the Court is not persuaded that Hess' testimony is based
on the granulization theory or that Evans is on point.

As for testimony more akin to Hess'—that, because a log shows that a particular phone connected to a
particular tower at a particular time, it can be inferred that a phone was within that tower's coverage area at that
time—a number of courts have found such testimony to be based on reliable methods. See, e.g., United States v.

17
 United States v. Pembrook 119 F. Supp. 3d 577 (E.D. Mich. 2015)

Schaffer, 439 Fed.Appx. 344, 347 (5th Cir.2011) (finding that agent's testimony demonstrated that determining
a phone's location based on cell-site data is “neither untested nor unestablished”); United States v. Reynolds,
No. 12–20843, 2013 WL 2480684, at *5 (E.D.Mich. June 10, 2013) (“Testimony about cellular phone
technology and the ability to determine the general area where calls are placed and received has been widely
accepted by federal courts.” (citing cases)); United States v. Jones, 918 F.Supp.2d 1, 5 (D.D.C.2013) (“[T]he
use of cell phone location records to determine the general location of a cell phone has been widely accepted by
numerous federal courts” (citing cases)). The Court finds these authorities persuasive. And to the extent that
Hess has made assumptions about signal strength that call into question his estimate of where the phones were
598 located at particular times, Defendants can test those assumptions on *598 cross exam. United States v.
Freeman, No. 06–20185, 2015 WL 2062754, at *5 (E.D.Mich. May 4, 2015) (“The fact that an expert did not
take into account various factors that may affect the signal strength of a tower or impact its coverage range
does not render the fundamental methodology of cell site analysis unreliable. Instead, the absence of those
considerations goes to the weight of the testimony rather than its admissibility, and those considerations can be
addressed through vigorous cross-examination.” (internal quotation marks and citation omitted)).

As for Calhoun's argument that the Court cannot even tell if Hess' testimony is based on reliable methods
because the Government's Rule 16 letter lacks sufficient disclosure, the Court mostly disagrees. As explained at
the outset, at a basic level, Hess' method is straightforward: a cell phone has to connect to a cell tower to make
a cellular communication; the cell tower is fixed somewhere (e.g., the roof of a building); the cell tower has a
limited coverage area; and the service provider logs the connection (which phone, which tower, and when).
This basic method is adequately disclosed in Hess' “Basic Princip[le]s Utilized in Record Analysis.” (Apr. 6,
2015 Letter from Graveline to Defendants' Counsel at 3.) In particular, Hess explains that “[t]he tower with the
best signal is the one the handset will use for service, this is the serving cell and will be used to make and
receive calls,” that each cell tower “has its own unique identifier, this identifier is used to track which towers
the handsets use,” that towers can be “located anywhere (church steeples, water towers, [etc.] ),” and that some
service providers' logs show both the tower a phone used to initiate a call and the one used when the call ended.
(Id.) This information, at least when coupled with publicly available information in any number of cases
involving using cell-site data, sufficiently discloses Hess' method so that the Court can determine its reliability
and fulfill its gatekeeper duties under Rule 702 and Daubert.

It appears that Calhoun's real complaint with the Government's Rule 16 disclosure is that Hess did not disclose
the “source” of certain assertions. (Mot. to Exclude Expert at 5.) The following are among Hess' assertions that
Calhoun complains of: even if the phone has a better signal to a tower different than the one providing service,
“the phone will not randomly reselect to an adjacent tower unless the tower is on its ‘neighbor list’ which is
controlled by the network service provider”; “[a]s the phone moves, it will choose a new serving cell based on
signal strength and neighbor list”; a cell tower can be located anywhere; there are more towers in urban areas
than in rural ones; and “[a] typical cell tower has THREE, 120° sectors.” (Apr. 6, 2015 Letter from Graveline to
Defs.' Counsel at 3; see Mot. to Exclude Expert at 5.) Calhoun says that Hess has not disclosed “any source for
these so-called ‘principals.’ ” (Mot. to Exclude Expert at 5.)

On this limited point the Court agrees with Calhoun. Although Federal Rule of Criminal Procedure 16 does not
require detailed disclosure, United States v. Campbell, No. 1:04–CV–0424–RWS, 2006 WL 346446, at *1
(N.D.Ga. Feb. 13, 2006), it does demand that the Government “describe ... the bases and reasons for [its
expert's] opinions,” Fed.R.Crim.P. 16, and, according to the accompanying advisory committee note, that
description “should cover not only written and oral reports, tests, reports, and investigations, but any
information that might be recognized as a legitimate basis for an opinion under Federal Rule of Evidence 703,”

18
 United States v. Pembrook 119 F. Supp. 3d 577 (E.D. Mich. 2015)

599 Fed.R.Crim.P. 16 advisory committee note (1993). Indeed, *599 at oral argument, counsel for the Government
indicated that they would explore whether more detailed information could be provided. Thus, the Court will
order that the Government supplement its Rule 16 disclosure to explain the source of Hess' “Basic Princip[le]s
Utilized in Record Analysis.”

IV.
For the reasons stated, the Court will not suppress the cell-site data that the Government intends to introduce at
trial. Although it may ultimately become settled that long-term tracking via cell phones, or the identification of
a cell phone in a home, requires a warrant supported by probable cause, that law was not established at the time
the Government sought and obtained the cell-site data at issue in this case. Deterrence, therefore, will not be
forwarded by suppression. Calhoun's “Motion to Suppress Cell Site Location Information” (Dkt. 56) is
DENIED.

The Court GRANTS IN PART Calhoun's “Motion to Exclude or Limit Expert Testimony, or, in the Alternative,
for Additional Discovery” (Dkt. 53). In particular, the Government shall supplement its Rule 16 disclosure to
inform Defendants (and the Court) of the sources of Hess' assertions in his “Basic Princip[le]s Utilized in
Record Analysis.” Calhoun's motion to exclude is otherwise DENIED WITHOUT PREJUDICE.

SO ORDERED.

Davis was vacated on September 4, 2014, after the Government filed three of the four § 2703(d) applications at
issue in this case. And while it was nullified by the en banc court, it could have been relevant to the
Government's decision-making at least as to those three applications.

19
 No. 14-121
Supreme Court of Vermont.

State v. Pratt
128 A.3d 883 (Vt. 2015) • 2015 Vt. 89
Decided Aug 14, 2015

No. 14–121.

08-14-2015

STATE of Vermont v. Leo Paul PRATT II.

Dennis M. Wygmans, Addison County Deputy State's Attorney, Middlebury, for Plaintiff–Appellee. Allison N.
Fulcher of Martin & Associates, Barre, for Defendant–Appellant.

DOOLEY, J.

884 *884

Dennis M. Wygmans, Addison County Deputy State's Attorney, Middlebury, for Plaintiff–Appellee.

Allison N. Fulcher of Martin & Associates, Barre, for Defendant–Appellant.

Opinion

DOOLEY, J.

¶ 1. 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
885 *885 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.

1
 State v. Pratt 2015 Vt. 89 (Vt. 2015)

¶ 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.
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.

¶ 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 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. ––––, 117 A.3d 829. “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
886 of aggravated *886 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, 2012 VT 65, 59 A.3d 711, which provides a nonexclusive list of factors relevant to determining
the trustworthiness of Rule 804a statements.
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.

¶ 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;

2
 State v. Pratt 2015 Vt. 89 (Vt. 2015)

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 the friend read the letter—the statements were made spontaneously at a time when T.B.
887 and her friend were not otherwise talking about sexual issues or abuse; the statements were *887 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 65, ¶ 24, 59 A.3d 711; 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., 80 Conn.App. 714, 837 A.2d 829, 837 (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, 32 Mass.App.Ct. 279, 589 N.E.2d 318, 323 (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 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)).

3
 State v. Pratt 2015 Vt. 89 (Vt. 2015)

¶ 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
888 trustworthiness of the contents, *888 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, 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, 118 S.Ct. 512, 139 L.Ed.2d 508 (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, 113 S.Ct. 2786, 125 L.Ed.2d 469 (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.”
3 The search of defendant's cell phone revealed URLs from a pornographic website, including one linking to a video

involving a teenage girl.

¶ 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.

4
 State v. Pratt 2015 Vt. 89 (Vt. 2015)

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
889 dual principles of relevance and reliability. 985 Assocs. v. Daewoo Elecs. Am., *889 Inc., 2008 VT 14, ¶ 6, 183
Vt. 208, 945 A.2d 381 (citing Daubert, 509 U.S. at 588–89, 113 S.Ct. 2786).

¶ 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, 113 S.Ct. 2786). 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,
862 A.2d 269. 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 preliminary inquiry into the merits of the case.” Daewoo, 2008 VT 14, ¶¶ 8–10, 945 A.2d 381
(“We adopted the Daubert decision precisely because it comported with the ‘liberal thrust’ of the rules of
evidence and broadened the types of expert opinion evidence that could be considered by the jury at trial.”
(quoting Daubert, 509 U.S. at 588, 113 S.Ct. 2786)).

¶ 18. The United States Supreme Court issued a subsequent decision that provides guidance here. Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (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, 119 S.Ct. 1167. 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, 119 S.Ct. 1167 (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, 119 S.Ct. 1167. 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, 119 S.Ct. 1167. In light of this expanded view
of Rule 702 and the Daubert inquiry, the Court rearticulated the objective of the gatekeeping requirement as

5
 State v. Pratt 2015 Vt. 89 (Vt. 2015)

890 “ensur[ing] the reliability *890 and relevancy of expert testimony” and “mak[ing] certain that an expert ...
employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the
relevant field.” Id. at 152, 119 S.Ct. 1167.

¶ 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, 88 A.3d 1173 (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, 762 A.2d at 842. 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, 762 A.2d at 842.

¶ 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 conducted by those courts comport with the flexible principles of Daubert as applied
by this Court.

¶ 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
891 qualifications of a *891 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

6
 State v. Pratt 2015 Vt. 89 (Vt. 2015)

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 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 expert] 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 that 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 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
892 for the extraction of data. While an investigator *892 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 Fed.Appx. 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,

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 State v. Pratt 2015 Vt. 89 (Vt. 2015)

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 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
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.Ct.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 this 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.

¶ 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
893 position would not be able to speak about the underlying programming, stating, “[W]e're actually *893 trained
... to be very careful about how we talk about how the software and hardware works ... we're not experts on
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.

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 State v. Pratt 2015 Vt. 89 (Vt. 2015)

¶ 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 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, 945 A.2d 381 (quoting Daubert, 509 U.S. at 596, 113 S.Ct.
894 2786). “So long *894 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.

¶ 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 perceptions.” 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.

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 State v. Pratt 2015 Vt. 89 (Vt. 2015)

¶ 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.

¶ 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
895 permissible.” Id. We do not require absolute certainty in *895 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. Mecier,
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.

¶ 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

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 State v. Pratt 2015 Vt. 89 (Vt. 2015)

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
896 know. Further, the court stressed that it was “fine” if the jurors did *896 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.

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