-: SJC-13598 in the matter of an impounded case.
-: May it please the Court- -: Okay.
-: Good morning, Your Honor. -: Please continue.
Good morning.
-: Eddie McNaught for the appellant.
Justices, I'm asking this court to reverse the conviction
in this case, because the trial Judge impermissibly
allowed the Commonwealth to introduce testimony
that went beyond the scope of what is allowed
of a lay witness.
Like to start by reviewing, if I may,
the testimony and how it came in.
It's important to point out that at the top,
defense counsel alerted the trial judge
that there was a concern about the scope
of the testimony that would be coming in
through Detective McLaughlin.
There's a short discussion where the Commonwealth
represented to the trial judge that essentially
Detective McLaughlin's testimony would be limited.
And the trial judge said
his understanding was it would fall in line
with the other officers who testified.
And with that the Commonwealth-
-: Well wait, can you just, 'cause I think most of us
are familiar with the record, and the preserved nature
of the error that you're suggesting occurred.
What part of McLaughlin's testimony is the part
that you're saying went into expert testimony?
-: Well, there are a few parts, Your Honor.
Most concerning to our position is the fact
that Detective McLaughlin testified
that the images were not cached.
In other words, they couldn't have been
on this phone accidentally by virtue of visiting a website.
That in concept, meaning the discussion of a cache file is,
we would argue beyond the scope
of what what the average person understands.
-: Counsel, excuse me.
When you make that argument,
can you respond to sort of the nature of the report,
the extraction report, that the detective was working from?
And my understanding based on looking at the report
is that we're looking on what was admitted as an exhibit,
is that the report literally says that the images
were found in a sub folder that was titled,
"Something/something/screenshots."
So can you respond to the fact of, can you deal with that?
-: Sure. Thank you, Justice.
So had the only evidence in trial at trial
been the admission of this report in the form that it was,
it might have been okay, though I'm not conceding that point
given the defense was, if you will, caught off guard
by the notice provided by the Commonwealth in this case.
But getting back to your question, that wasn't how
Detective McLaughlin presented his testimony.
"This is what we received, or I received,
in so many words, from my extraction.
And also, here's what it means."
And that gets back to Justice Wendlandt's question
about really what is appropriate, what isn't.
And when Detective McLaughlin is ultimately allowed
to say, you know, "By virtue of the appearance
of these images in this report in this way, we know,
I know, and you can know, finder of fact,
that these files were, were in effect screenshotted
by the person who had the phone."
-: But Counsel, if we're going to the difference
between lay opinion and expert opinion,
and if I could marry the two points that Justice Dewar
and Justice Wendlandt just alluded to, it's like,
we still haven't gotten your answer.
If the lay opinion testimony is supposed to be testimony
that's to be helpful to the fact finder,
and the extraction report says,
"These images were found in a particular place,
and therefore they're in a file,
they're with a bunch of other images,
and based on the extraction report,"
Detective McLaughlin says, "they couldn't have been cached.
They couldn't have been something just by virtue
of going to a website, because they were found
in a discrete file that had a bunch of other images
that were in there."
W what what is it about that
that delves into specialized technical experience
that only an expert would give?
Why isn't that just proper lay opinion testimony?
"Here's where I found it, and because of where I found it,
it's helpful for you to know that
it's more likely than not from this happening,
the happenstance of going to a website."
-: If I understand your question, Your Honor,
I think there are two responses to that possibly.
First of all, with respect to Cellebrite itself,
most people, we would argue, don't understand exactly how,
you know, they understand we'd argue,
that phones and devices have a lotta data.
They probably also understand
that the data can be extracted in somehow,
but when you get into the Cellebrite software itself
and what the Cellebrite software does or can do,
I think we'd probably lose the majority of the population.
Gaziano: But lay people know what screenshots are, right?
-: Right, for sure Justice Gaziano, yes.
But that, connecting your point to Justice Georges' point,
if we were just to say that, "I found these screenshots
manipulating the phone personally in this way,"
which I don't believe was testified to
by Detective McLaughlin, Detective McLaughlin's saying,
"I found these things that we can trust are screenshots
that you know, fact finder, about, and I found them,
you know, because this software generated this report
in the software implicitly."
-: But that's not what he's doing.
He's saying it, to the fact finder's determination
of whether or not they were from a website
or their screenshot, "It's helpful for you to know
that the Cellebrite software found it here."
He's not getting into what the software does.
He's, "Like all of the other cases that you cite
and the other side sites, Cellebrite is something
that we've gone through a bunch of times.
It's plug and play, here's what it does,
it takes out the stuff," and then the people talk
about what the stuff was that was extracted from the phone.
If we're just limiting to that, what is it about the fact
that he said, "These are screenshots filed in this file
from this extraction, and then it's helpful to you to know
that it wasn't from a website, it was from this file."
-: Well, Your Honor, it becomes extremely problematic
when a detective or a witness says
in response to questioning from the prosecution, you know,
"Is there any way for this to be"-
-: But that's a different point, and I think your best point,
that how explains that Cellebrite
is an uncorruptible mirror image.
-: Right, and that's, when you marry that
to Justice Georges' point about, you know,
the inherent problem with the testimony
as it was presented at a whole,
'cause parts of it would have to agree,
under the federal rules at least right now
seem to be permissible, and probably are
rules of evidence here as well, condone some form-
-: Well, could we give you a little more time
to answer Justice Wendlandt's initial question,
which is, if you are assuming that it's okay,
as you just said, that some of this can come in,
if it were just, "I plugged it in, this is what came out."
Can you answer her question, which I realize
I interrupted you in the middle of answering,
about like what precisely, like almost going
through the transcript basis, like what are the exact things
that you think came in wrongly?
-: Other than the cache, 'cause you talked about that.
Other than the cache. -: Thank you.
-: The testimony. I apologize Judge,
for losing the point.
So to that question, we would argue that metadata is,
the general public may have some sense
of what metadata can do, but not specifically.
And there was obviously references to metadata.
Would also argue- -: So you're saying
that a non-expert witness can't refer
to the existence of metadata in testimony.
-: [Eddie[ That would not be the best approach,
in our opinion.
-: In the existence of metadata or what metadata is?
-: Well if, we're talking about matters of degree,
but in this, in this case it was,
there was what is metadata, and how does it function?
And that sort of renders, and I hope this gets back
to the question, renders Detective McLaughlin
an expert, versus just someone
who's explaining their perceptions.
-: And just from a factual perspective,
'cause I am not as familiar with the transcript
as you I'm sure are, did he testify that,
"In the report, reports, the metadata as follows,
and the metadata means that this screenshot
was saved on X date at this time?"
-: That is effectively, that is a fair characterization
of the testimony, at least part of the testimony.
-: Yeah, and then the other part,
just to put a fine point on it, is that he testifies
that Cellebrite does not manipulate
or change the data on the phone.
And I guess I'm surprised that I hadn't heard you say,
although perhaps you were interrupted,
that that was the most problematic part
of McLaughlin's testimony, given that he has no idea
how Cellebrite works.
-: Thank you for that, your Honor.
Yes, absolutely agree with the Court's point to that.
You know, there was that testimony,
which we would argue was out of bounds, and also,
and it was, pardon me, I believe it was repeated
in different forms throughout Detective McLaughlin.
So the effect of that is, in a case where perhaps,
you know, the evidence was strong for the Commonwealth
in respects that were addressed in the appellee's brief,
but not insurmountable, not not in a way
that were we to reduce the evidence to what maybe
I think the trial judge probably had in mind
when he initially made the finding for the record,
that if this is a plug and play situation,
following the lead of the circuit courts,
that probably was a fair ruling on, on the law.
The issue became that the Commonwealth didn't confine
Detective McLaughlin's testimony to the boundaries
that the trial court set, and the trial court in this
didn't enforce that as it pertained
to the issue that we're discussing.
-: Well assuming, are you done answering
Justice Wendlandt's question,
as far as the categories that were problematic?
-: I'm sorry? -: Are you done
answering her question, as far as the categories
that were problematic? -: I believe so.
-: Okay, assuming we agree with you
that at least with respect to the how Cellebrite works
was impermissible expert testimony,
how is this in any way prejudicial error,
given all the evidence against your client?
-: Thank you, Judge.
So Your Honor, with respect to the prejudice,
there are two points that the Commonwealth made
I wanna respond to specifically.
Yes, we have these statements
that are powerful for the state.
Additionally we have the observations of the officers, so-
-: The two officers who saw the photos?
-: Yes, Your Honor.
So with respect to the statements, it has to be pointed out
that to begin with, my client said to both the civilian
and the investigating officers at the grocery store,
"Here, have my phone, take a look through it."
Not the kinda conduct that we might say is consistent
with a person who's aware that the phone has
the types of images that are later found there.
Further, to my client's statements,
no one ever confronts him with a specific image to say,
I think this is crucial, "Do you know that this
is on your phone, this specific thing?"
And that ties- -: Well-
to the second- -: I don't know about that,
because perhaps your client misinterpreted
how far they would look, in as much as,
perhaps he only thought they were just gonna look
to see whether any pictures of this woman's children
were on the phone, and that was it.
"And as long as they were satisfied,
they'd gimme my phone back."
But later on when when he's upstairs,
he talks about CP, he talks about,
so the idea that he wouldn't have any heads up,
he offers that there may,
he gives some reason why to justify that.
But how would that affect the prejudice analysis,
where he makes these really powerful admissions
that in fact there's child porn on this?
-: Well, when we get to the specifics
of what he says upstairs, it's important
that the sequence of events, he now knows
that the officer has found something of concern,
he inferentially put that together.
But crucially, when he is upstairs being interviewed,
there's the discussion of the specific CP,
centers around this single image involving
what he described, he was aware of as a young male,
as a young male who, in the nude.
Categorically speaking, that may qualify.
He said it was concerning enough to him
to screenshot that specific image.
Okay, but we don't know whether it actually does
because how young is young, okay?
What about it is concerning, what about the posture?
As to the other images that appeared,
that the officers testified to,
those for sure would have to qualify.
But the image where, that he admitted to specifically,
is only de described in the most generic terms,
leaving open the possibility that he was only aware
of this one concerning image of a male.
And that's, to get back to Justice Gaziano's question,
where the prejudice falls in this case,
and why there is no way to say that this was harmless.
-: Sorry, can I just circle back to the metadata point?
So I just refreshed my recollection, which,
and I just wanted to make something clear.
Almost all of the testimony about metadata
consisted of the prosecution going through
the extraction report, which has thumbnails of the images,
and then next to the image it says the file path,
where it was found, and like a little bit
of other information like the date,
and I forget all of the items.
So every single question from the Commonwealth says,
"Okay, here we have this image,
and what does the metadata say about this?"
And the Commonwealth could have rephrased the question as,
you know, "What does the extraction report
say this came from?"
Do you think that would've been an impermissible question?
-: If I understand you Justice, yes,
and partly because of the way it started.
It's not our strongest position,
because I recognize that it's sort of at odds,
if I understand the Court correctly,
with the way the circuit courts are going.
But again, I kinda go back to how this started,
with respect to, this is all the testimony will be,
it'll be a plug and play.
And I think if you go to that focus on that point,
it's really more of an explanation.
It's like, "This is what you can understand
about what was on the phone,
by virtue of what I see here."
It would be so much less valuable if we were just to allow,
if it was just the report itself
admitted through the detective,
as the person who generated it himself.
-: So if the, to follow up on Justice Dewar's question.
So if the, I think it was exhibit nine or 10,
were admitted, and it showed the thumbnails
with the file data, basically the extraction report,
and the officer were asked, "Is this the report
that you generated using Cellebrite?"
"Yes," "True and accurate copy?" "Yes."
"What does it say about the first thumbnail
or the first photograph?"
"It says it shows it was stored in the screenshots folder
on such and such a date, and it's the size of a file."
In your view, that would be permissible.
-: Yes, but not how it came through in this case.
-: It wasn't how it was asked precisely
in those ways, but the substance of that testimony
would've come in, and it is essentially
the substance of the officer's testimony,
even though the questions were phrased differently here.
-: Yes, Your Honor. -: Okay, thanks.
-: Okay. -: Out of time.
Thank you very much, Your Honor.
-: Thank you, Attorney Langsam.
-: Good morning, may it please the Court.
Jessica Langham, Assistant District Attorney for Middlesex,
appearing on behalf of the Commonwealth.
If I could just pick up, with respect to the question
that the Court just ended with,
Detective Sergeant McLaughlin's testimony
essentially adhered to the report, that there was,
with respect to your question, Justice Wendlandt,
there was some testimony that went outside of that,
and that was arguably opinion
about the claim about reliability.
That was, when he says, "It doesn't alter the data,
there's no risk that other data can transfer
onto the phone when it's in airplane mode.
That the photographs that were extracted were not altered."
That was, let's see, transcript 163, 176, 178.
But most of his testimony really was
what the extraction report was, even if the questions
could have been phrased a little bit differently.
Wendlandt: How is he qualified
to say what the report was?
-: In what sense, Your Honor?
-: That it, you know, isn't the point of the report
and his testimony to say that Cellebrite
is actually extracting this thumbnail photo from the phone,
and that the dates and places recorded there
in the metadata are accurate?
Isn't that implied in the report itself?
-: Well Your Honor, he's testifying,
as Justice Georges had mentioned previously,
he's testifying based on his experience
as a, quote unquote, certified Cellebrite operator
and physical analyzer- -: No, but when he goes
and reads the report, what's the purpose of that?
-: Well- -: Show that Cellebrite
is doing an accurate,
reliable extraction from the cell phone.
-: I'm not sure that's a fair implication.
I know that's what my brother- -: What is the implication?
-: Well, I'm not sure there's any implication
at all, Your Honor, he's simply relating the information
that's in the report, which was properly admitted.
To the extent that some of his testimony went beyond that,
for example, as my brother just argued-
Wendlandt: Why do you say it was properly admitted?
-: I beg your pardon, Your Honor?
-: Why was it properly admitted?
If we don't know if Cellebrite does what it says it does,
you know, why was it properly admitted?
-: Well actually, Your Honor, I would argue
that there's evidence in the record that we do know that,
and that would be because the defendant,
when he's up in the market basket manager's office, he said,
"Gee you know, there's some things that I looked at."
There was, I think he said it was maybe a Gramps SC,
it was a photograph of a juvenile male
with his genitals showing.
I think that's at page 109 of the transcript, and,
or excuse me, I think that's the officer's testimony.
So, and then what the images are,
and I know that this court has
that impounded exhibit number 10, which is the, the images.
The images that are there in exhibit number 10 are the same
images that Lieutenant Columbus saw,
that Lieutenant Connor saw,
and that Sergeant Peterson saw on the defendant's phone-
-: And that's in the- -: In the market basket.
-: And that's in the transcript?
That you know, "Oh, this image
from this report is the same one."
-: Well, no Your Honor, because the report
hadn't been generated yet.
So in other words, what I'm saying is that-
-: The descriptions matched -: Shores up, exactly.
That shores up the reliability,
and that testimony was a Lieutenant Columbus.
That was at 68 and 69.
Lieutenant Connor, that was transcript 82, 83.
And Sergeant Peterson, that was transcript page 102.
And their descriptions of these images is the same image
that's contained in exhibit number 10.
Dewar: Well, it's not all of the images,
if I recall correctly.
-: Correct Your Honor, it is not.
There were only two images- -: There were only two
that they testified to.
-: When, I'm sorry Your Honor, I interrupted.
-: There were only two that they testified to.
-: There were only two that they-
-: And I think there were- -: They were altogether-
-: Over 10, 19? -: There were 19-
-: What was the number? -: There were 15,
one of the images was part of a chat with three,
and another one was a part of, I believe,
a chat with two images, so there-
-: So there's no, so you can't really use
what the officer used, what the officer saw,
to help authenticate or buttress the reliability
of the ones that they didn't see.
-: Well that's true, Your Honor.
But I think if we're talking about reliability,
I'm just pointing out to the Court
that the officers saw images that they used a certain word
to describe the images, and it's plain
that that's the image that was subsequently found
in the Cellebrite extraction, and that was admitted
into evidence as exhibit number 10.
-: So, let's try and explore lay versus expert.
I think you all but, or probably conceded that the testimony
that the Cellebrite doesn't alter images,
is impermissible by a lay witness, correct?
-: Yes Your Honor, I mean that would be-
-: We'll take your concession. -: Thank you, Your Honor.
-: All right, is this similar to a testimony
of a breathalyzer operator who testifies that,
not asked how the machine works, but a police officer says,
"The person blew into the machine,
I looked at it and here's the report, it's a .18."
-: Well yes Your Honor, arguably it is,
except Cellebrite doesn't even do a test
as a breathalyzer does.
Cellebrite simply takes data that's in the phone,
and moves it to a piece of paper and organizes it,
so it can be read by a lay person.
-: But in fairness, the defendant basically,
if you have a witness like this who's not an expert,
the defendant could cross-examine the person,
and probably say, "You have no idea
whether or not this is corruptible, et cetera."
-: Well, in fact, the prosecutor asked him those questions,
Your Honor, and said,
"Do you know how it transfers code keys?" "No, I don't."
And that's something that Justice Bailey plainly recognized
in ruling that the officer could testify,
that the officer plugs in the phone,
can read what it spits out, is not a cell phone expert,
and doesn't understand the technology or how it works.
Kafker: Can I ask, sorry, are you done, Justice?
Gaziano: I am done.
-: So I was focused on the best cases,
'cause the Feds have issued a couple
of pretty extensive discussions of this technology.
I'm wondering which, are those cases
we should use as a model, which ones?
'Cause the, yeah- -: I'm sorry,
are they federal cases?
-: Yeah, there are at least two that I read
that are very detailed.
Unfortunately, I just got the excerpts.
I don't have the name of the cases in front of me, but-
-: Well Your Honor- -: There's a First Circuit case
and then there's another one.
-: There was the Fifth Circuit case of US versus Williams,
which is 83-F fourth at page 997.
-: Did we adopt their, I mean it sounds like this is a case
in which there's a lot of evidence,
there may be some mistakes here,
but the legal standard's gonna be
the most important thing we develop here.
I'm just wondering which one of those cases
you think we should turn to for guidance,
and if so, should we modify it in any way?
-: And can I just add a further addition onto that?
Can you address the concept of the, quote unquote,
tech-savvy layperson, that I believe
the Fifth Circuit inserted as a concept?
-: Yes, Your Honor.
So I think that the tech-savvy layperson
comes from US versus, I believe it comes
from US versus Williams,
and that was the Fifth Circuit case.
And I would suggest to the Court
in response to your question, Justice Kafker,
that that's the same issue that happens here.
That the defendant in that case claimed
that Cellebrite was complex, therefore that operation
of Cellebrite requires specialized knowledge,
and that introduction of a Cellebrite report
demands qualification as an expert.
And then the Court says quote,
"But this ignores the basic realities of life."
So as the bench elicited earlier
during my brother's argument, there are many concepts.
We sign up for apps on our phones, we-
-: I think we have a feel for where this went beyond,
and where it's within. -: Yes, Your Honor.
-: But I'm just, what is there,
do we adopt this tech-savvy, you know standard,
or do we, what do you think?
Is there, help us on which case sets the proper standard,
'cause we're gonna need to provide better guidance out there
on how to use this technology.
-: Yes, Your Honor.
Well, I would suggest that US versus Williams
does provide guidance, and indicates after a review
of all of the circuits that evidence
obtained with Cellebrite,
it does not require expert testimony.
And Your honor, Justice Dewar,
when I referred to the tech-savvy witness,
it's a lay witness who is apprised of computer matters,
as many people today are, and-
-: Well Counsel, that's what bothers me about Williams.
I'm still stuck at the difference between lay and expert,
because we have all of these cases
that are kind of hybrids of that,
where there are lay witnesses that have more
information and experience than most lay people,
but not as much as experts.
We've got cases out there that talked about people
that have used drugs for a long time,
so that they're able, under lay opinion testimony,
to testify that this was cocaine without having to,
but the Williams case doesn't help this case or me,
in that what's the foundation in order
for this to be a tech-savvy person?
What, because here all he testifies to is,
he does these two-week Cellebrite training,
and nothing in Williams helps inform
what should trial judges look to,
to say that these are the tech-savvy folks
that are still lay witnesses, they're not experts,
but what are the metrics to inform
what makes you tech-savvy, if all you do
is just go to the Cellebrite two-week trainings?
-: Well Your Honor, I would also direct the Court's attention
then to Montito Maisonette,
which is also cited in my brief at 974 F third 34.
But I think that, had this case been tried before a jury,
perhaps a voir dire, or voir dire should have been held,
and then the Court could have better understood
the contours of Detective Sergeant McLaughlin's testimony.
What was the Commonwealth planning to elicit from him?
How much information did he have that could-
-: You're hitting the nail right on the head
as to what my problem is, this wasn't done.
So, how can we really assess whether this
was proper lay opinion testimony when we didn't know,
what is it that you would base his tech savviness on?
-: Well, and I would suggest to Your Honor
that Justice Bailey, in hearing the testimony
of Detective Sergeant McLaughlin as it came out,
had a better understanding of what the parameters were.
Defense counsel continued to object to admission
of certain exhibits, not all of them, based on the fact
that there was, quote unquote, metadata.
And that this metadata, which was part
of the extraction report,
should have been coming in through an expert witness.
But unlike in the federal cases where,
in Wehrle, for example, that's the W-E-H-R-L-E, 985-F 3549,
that's the 2021 case, I believe.
That's the first circuit case, Your Honor,
that's also cited in my brief.
In that case, of say for example,
if voir dire had been done in that case,
the voir dire would have, that's a case
where the expert explained how these concepts fit together
and why the program was reliable.
So here, while Detective Sergeant McLaughlin
kind of put a toe in the water with respect to,
"Well, the images aren't altered and this is reliable,"
that is opinion testimony, it was just this small part,
but he didn't explain further.
He didn't purport to hold himself out to arcane-
-: He does explain, so I see a distinction
between simply reciting whatever the Cellebrite report says
and what it means, I see a distinction there.
So if the exhibit says,
gives a file path name that includes the word screenshot,
that's one thing.
He may very well be able to simply testify
to what the report says.
But when he testifies that it means that all screenshots
are stored in the screenshot folder,
that seems to me something else.
Because what he's testifying is that the defendant
took a screenshot, and as a result
it was stored in the screenshot folder,
which goes to the whole notion of,
was this accidentally stored on his phone?
And that piece of it troubles me,
because I'm not sure how he's qualified
to testify to what the printout means,
as opposed to what the printout says.
-: I understand the point that Your Honor is making,
and I have in front of me Exhibit six,
which is plainly not an, excuse me, my apologies,
exhibit eight, which is not an impounded exhibit.
It was one of the photographs of the defendant,
and when Detective Sergeant McLaughlin was testifying,
he explained the file path.
So for example, the file path for this exhibit,
it says, "Filepath:phone/WhatsApp/media/WhatsAppimages."
So a, any person who has some level of tech savvy
would understand that this image is stored there
on the phone within WhatsApp in this media,
in WhatsApp images.
So to the extent that Detective Sergeant McLaughlin
was explaining that, it could be that,
it's unclear what Justice Bailey's level of understanding
of what the, I guess the metadata or what the background
of surrounding information of the thumbnail
or of the images was.
-: But he also says, "Will the metadata indicate to you,
whether it's downloaded, screenshotted,
taken on the camera?"
"It'll show where the file was saved to, yes."
-: Yes, and I think, Your Honor, the question could have,
getting back to before, the question could have been
better phrased, in other words,
"The metadata here, what does it say?"
And then it says exactly what I just read to the Court.
And when something is in WhatsApp images,
where would that be found on the phone?
That would be found
in the WhatsApp application on the phone.
So it's not so much, what does it mean?
It's, where is it located?
And I think had the prosecutor
used slightly different language-
-: Well, it's what does this file path mean?
Jessica: Yeah, well I'm not sure-
-: And that's exactly what it is.
It's, what does this file path on this report now mean,
in terms of what's on the defendant's phone?
-: Well, it's sort of like looking at a map, you know?
So what does it mean? The directions say go left.
I mean it that's all, it doesn't mean anything.
It just is what it is, just as the data is what it is.
Just as when Lieutenant Columbus was,
the defendant was urging her, you know,
"Here, look at my phone. Sure, you can look everywhere."
And that's when she opens the screenshot folders
and she immediately, these two images jump out
that are plainly C-SAM, and-
-: On page 175 of the transcript, the question is,
"And are you able to tell whether it was downloaded
from another source or taken on that device?"
"Answer, 'So if something is downloaded,
generally it saves to a downloaded file.
If it is a picture that's taken,
it's saved in a camera roll.
If it's a screenshot, it's saved in a screenshot file.'
'And will the metadata indicate to you
whether it's downloaded, screenshot taken on the camera?'
'It'll show where the file was saved to, yes.'"
How is that not testimony beyond simply,
"I use Cellebrite, this is what it did,
it gave me this report, it shows this."
How is this not veering into expert testimony?
-: Well, and that's a a key point
that Your Honor just made, sort of leading into,
because it's a person who is well-versed in the,
this individual was a, quote unquote, certified operator.
He is trained on using this.
He understands what these things mean.
In fact, he testified that he had used Cellebrite 46 times.
So he's done this before, and the point-
-: It's sounding like he's an expert.
-: Well, and Your Honor, we know that just because
the police call him the expert,
or he's a certified operator, doesn't-
Wendlandt: And he's done it a lot, 46 times,
and he knows what this stuff means.
-: Right, as Your Honor, as I knew what it means,
as anyone, in fact, if I could direct Your Honors to,
in looking at these, quote unquote, expert terms
that my brother has raised,
these terms are actually defined in the case law, and-
-: Counsel, can I ask you a different question,
going back to Justice Wolohojian's question?
Jessica: Yes.
-: This is a practical question.
I understand that they used Cellebrite
to download the entire phone, and put the data on the phone
into a means that's more easy to review,
in a spreadsheet, essentially.
Can they also at the same time
just go through the phone manually,
looking at different folders?
Because I would imagine that an officer
would have an ability to gain some experience
that the file path name in the extraction report
aligns with that officer's experience
in actually physically going through phones.
So even if the officer wasn't really
any kind of computer expert,
they would know that, "I've typically seen,"
and I realize this, you did not,
the Commonwealth did not introduce his testimony,
but that the 46 times of using a software,
a person could as a layperson have experience with that?
-: Yes Your Honor, and in fact, that's the part of the point,
although Detective Sergeant McLaughlin
didn't do that in this case, he didn't kind of go back,
and he said he physically manipulated the phone,
but really he ran the phone through the,
so he never testified to what he found,
or whether or not what he found correlated
to what was produced in the extraction report.
But yes, and that's exactly, this is, an officer could,
and regularly do scroll through, take photos of texts,
and then that's what was found on the phone.
Say for example, if the phone couldn't be downloaded.
And I think in, I'm just trying to find the case
where the Cellebrite download wasn't reliable,
and I think defense counsel had used it.
Yes Your Honor, the officer could have
just taken photos of what he saw.
And going back to the point I made earlier,
that's what Cellebrite does.
It just takes it from the phone
and it puts it onto a piece of paper so that we can read it.
And if I could briefly go back to my point,
looking through the opinions of this court,
for example, cache is mentioned in the Arrington case,
which is a case from this year,
that it's a temporary storage, and hash value
is defined and done, a case from this year.
Dorelas talks about what SMS and MMS means.
So these are somewhat technical concepts,
but they are understood by the public as a whole,
broadly understood and even referenced by this court.
And if I could also, with respect to the extent
to which Detective Sergeant McLaughlin's testimony
either constituted opinion testimony,
as in sort of claiming about the reliability of Cellebrite,
or otherwise somehow exceeded
the bounds of his lay testimony,
I would argue that that error was not prejudicial.
It didn't influence the judge, again,
because this case was tried before Justice Bailey.
And given that the images that Your Honors
have before you in exhibit number 10,
along with the testimony
of the investigating police officers,
the evidence in this case was overwhelming.
So if there are no further questions,
I would ask that you affirm the conviction,
and I would rest on my brief.