State v. Pratt, 2015 VT 89
By Timothy Fair
The Petitioner in this case was convicted of Aggravated Sexual Assault of a Minor following a multi-day jury trial. On appeal, the Petitioner raises three issues for the court to review. One of these issues is procedural and, in the interest of brevity, will not be covered here other to say that SCOV disagreed with the Petitioner’s claim of error. The remaining two issues, both concerning the admissibility of evidence, provide for much more informative (and hopefully entertaining) reading.
Before we get any further, I want to make two points: (1) I will be condensing the applicable rules of evidence significantly, or else this article would end up weighing in at about 15 pages long; and (2) when the evidence in question involves the alleged victim of a sexual crime, the rules change. That said, here we go.
As a general rule, trial courts and attorneys prefer dealing with evidentiary issues before a trial begins. This way there are no interruptions which disrupt the flow of the trial and can cause the jury to start pondering things they shouldn’t be pondering. These pretrial questions are dealt with in written pleadings to the court known as motions in limine. Both sides in a criminal trial often file these motions either asking for evidence to be allowed, or that it be excluded. In this case, both sides filed motions in limine, with the State requesting a letter written by the alleged victim be entered, and the defense asking that the testimony of a State’s expert witness be excluded. Petitioner’s first claim of error arises from the trial court’s decision to grant the State’s request and permit the letter to be admitted.
As a general rule, any out-of-court statements being offered for the truth of the matter asserted are not admissible as evidence. This is called hearsay, and is one of the most commonly misunderstood principle of evidence. While as a general rule hearsay is not admissible, there are multiple exceptions in which is becomes admissible. A very basic explanation is that the court will look at how reliable the statement is to determine whether or not it should be admitted.
As a general rule, any out-of-court statements being offered for the truth of the matter asserted are not admissible as evidence. This is called hearsay, and is one of the most commonly misunderstood principle of evidence. While as a general rule hearsay is not admissible, there are multiple exceptions in which is becomes admissible. A very basic explanation is that the court will look at how reliable the statement is to determine whether or not it should be admitted.
In this case, the issue revolves around a letter that the victim wrote after the alleged assault, detailing the incident in question. It was this letter that started the criminal investigation of the petitioner, and ultimately formed a majority of the State’s case against the petitioner. Needless to say, defense counsel did not want this letter to be given to the jury.
As justification for its exclusion, defense claimed that the letter amounted to inadmissible hearsay (that is, it was an out-of-court statement (true) which was being introduced to prove the matter asserted (also true)). However, the State argued that while the letter may be hearsay (it was), an exception to the rule applied. Under the Vermont Rules of Evidence, statements which would normally be considered hearsay, when made by the putative victims of aggravated sexual assault, may be admitted if the court finds that, “the time, content, and circumstances of the statements provide sufficient indicia of trustworthiness.” In short, if the trial court finds the statements to be trustworthy, then they are in. Petitioner’s claim was that since the letter in question was written in private it was untrustworthy, and thus inadmissible. The trial court disagreed, and allowed the letter to be admitted into evidence. On review, SCOV concludes that the trial court’s decision was correct and actually reasons that petitioner’s argument works against him. SCOV reasons that the fact that the letter was written in private actually bolsters the sincerity of the author, since it demonstrates the absence of outside influence on the author.
The second issue raised by petitioner involves the admission of expert testimony. Specifically, petitioner raised an issue concerning the admissibility of evidence from a witness for the State who was testifying about the extraction of data from petitioner’s cell phone. The short version of the argument is as follows: while the digital forensics expert—whom the State was relying on to testify about the information extracted from petitioner’s cell phone—was generally familiar with the software used to extract data, he did not have any knowledge or understanding of the programming used to create the extraction tool. Petitioner goes on to argue that, due to the witness’s lack of knowledge concerning the program, his testimony should've been found inadmissible.
The legal history surrounding the admissibility of expert testimony is lengthy, to say the least. To this day, the issue still has not been uniformly decided by courts across the country. Again, in order to avoid what is supposed to be a summary turning into a textbook, I will attempt to briefly summarize Vermont’s law on expert testimony.
The second issue raised by petitioner involves the admission of expert testimony. Specifically, petitioner raised an issue concerning the admissibility of evidence from a witness for the State who was testifying about the extraction of data from petitioner’s cell phone. The short version of the argument is as follows: while the digital forensics expert—whom the State was relying on to testify about the information extracted from petitioner’s cell phone—was generally familiar with the software used to extract data, he did not have any knowledge or understanding of the programming used to create the extraction tool. Petitioner goes on to argue that, due to the witness’s lack of knowledge concerning the program, his testimony should've been found inadmissible.
The legal history surrounding the admissibility of expert testimony is lengthy, to say the least. To this day, the issue still has not been uniformly decided by courts across the country. Again, in order to avoid what is supposed to be a summary turning into a textbook, I will attempt to briefly summarize Vermont’s law on expert testimony.
In cases where the court determines that specialized knowledge will assist the jury in reaching a verdict, three factors must be present: (1) the testimony of the expert must be based on sufficient facts or data (No drawing conclusions from speculation); (2) the testimony must be the product of reliable principles and methods (phrenology and astrology are generally out); and (3) The expert has applied the principles and methods reliably to the facts of the case (No testifying about non-specific generalizations). The gist of petitioner’s argument is that because the expert did not understand the underlying programming of the extraction software, his testimony should not be considered credible, and thus, should not be permitted.
After a rather lengthy jaunt into the history and evolution of laws governing the admissibility of expert testimony, SCOV dives into the matter at hand. The SCOV concludes that the expert’s 800 hours of training in forensic examination; his week of specialized training in forensic extraction with a company that specializes in training law enforcement; and his use of the software in “hundreds” of previous extractions, all add up to one reliable witness. SCOV reasons that specific knowledge of the programming details of the software was an unnecessary factor in the determination of reliability. SCOV notes that there were no issues surrounding the origin or ownership of the phone; no break in the chain of custody of the phone; and no evidence that the phone had been impermissibly tampered with or otherwise altered from its original condition. SCOV goes on to state that if there were any legitimate concerns about deficiencies in the software used for the extraction, those concerns could be raised through the adversarial process of trial.
As I mentioned earlier, petitioner did raise one last argument, that the trial court “coerced a verdict” by imposing a time limit on jury deliberations. I promised not to bring it up, but what the heck. The transcript of the original proceeding shows that the trial court did not impose a time limit on the jury and SCOV made the same determination (most likely because there really was no time limit imposed). No time limit, no coercion. Thus, trial court’s judgement was sound and petitioner’s conviction is affirmed.
After a rather lengthy jaunt into the history and evolution of laws governing the admissibility of expert testimony, SCOV dives into the matter at hand. The SCOV concludes that the expert’s 800 hours of training in forensic examination; his week of specialized training in forensic extraction with a company that specializes in training law enforcement; and his use of the software in “hundreds” of previous extractions, all add up to one reliable witness. SCOV reasons that specific knowledge of the programming details of the software was an unnecessary factor in the determination of reliability. SCOV notes that there were no issues surrounding the origin or ownership of the phone; no break in the chain of custody of the phone; and no evidence that the phone had been impermissibly tampered with or otherwise altered from its original condition. SCOV goes on to state that if there were any legitimate concerns about deficiencies in the software used for the extraction, those concerns could be raised through the adversarial process of trial.
As I mentioned earlier, petitioner did raise one last argument, that the trial court “coerced a verdict” by imposing a time limit on jury deliberations. I promised not to bring it up, but what the heck. The transcript of the original proceeding shows that the trial court did not impose a time limit on the jury and SCOV made the same determination (most likely because there really was no time limit imposed). No time limit, no coercion. Thus, trial court’s judgement was sound and petitioner’s conviction is affirmed.
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