App Data and the Hearsay Business Records Exception

A decision by the Court of Appeals of Michigan on January 9, 2018, People v. Vancallis, 2018 Mich. App. LEXIS 35, gives insight into the forensics capabilities of the FBI, and also establishes a precedent by an intermediate appelate court on the use of app data as evidence. The defendant, James Vancallis, was charged with the murder of a young girl who was killed while walking her dog. A man on a motorcycle was seen in the area of a trail where the victim was found murdered. A FBI special agent was able to determine that the victim's phone was moving at around 4 miles per hour, and then suddenly accelerated to 22 miles per hour. Vancallis owned a motorcycle. A jury found Vancalls guilty of murder and kidnapping.

The special agent was a member of CART - the bureau's computer analysis response team. He found a screenshot on the phone of global position satellite that was generated by a fitness app. While the data from the app was in a proprietary format, the agent was able to get the developer to provide, "3,000 data points for latitude, longitude,date, time and speed". This data allowed the agent to create a Google Earth animation tracking the phone's location around the time of the murder. The data provided by the developer was loaded into a test iPhone with the fitness app installed in order to confirm that the data files were accurate.

The appeal argued that the defendant had ineffective assistance of counsel because there was no objection to the Google Earth animation was hearsay. The Court of Appeals rejected this argument because defense counsel had its own expert review the data, and because it determined the data was not inadmissible hearsay, but instead demonstrative evidence. It also found that even if the animation could not be considered demonstrative evidence it would be covered by the records exception to hearsay . The data compiled by the developer of the app constituted 'records of regularly conducted business activity' . "The data that was provided was made by a person with knowledge of the matter, made at or near the time of the occurrence. Sports Tracking Technologies, Inc. made, kept and maintained the data in the ordinary course of regularly conducted business activity. We reject defendant's claim that the animation was testimonial in nature when Zentz, who created the animation from the underlying data, testified at trial." [Id. at 15].