Friday, September 27, 2019, Novi, Michigan Witness Steve Balog Direct examination Pg 20, Cross-examination 110 Pg, Excused Pg 132.
THE COURT: You're welcome. Please raise your right hand. Do you solemnly swear or affirm that the testimony you are about to provide shall be the truth, the whole truth and nothing but the truth, so help you, God?
DETECTIVE BALOG: I do.
THE COURT: Thank you very much. Please start off by stating your full name and spelling your last name for the benefit of the court recorder.
STEVE BALOG: Steve Balog, B-A-L-O-G.
THE COURT: Your witness.
MS. HAND: Thank you.
DETECTIVE STEVE BALOG
Called by the People at 1:42 p.m. and sworn by the Court, testified:
DIRECT EXAMINATION BY MS. HAND:
MS. HAND: How are you employed, sir?
DETECTIVE BALOG: I’m a detective with the Novi Police Department.
MS. HAND: How long have you held that position?
DETECTIVE BALOG: For approximately six years.
MS. HAND: And how long have you been in law enforcement?
DETECTIVE BALOG: Over 23 with the Novi Police Department.
MS. HAND: Okay. Drawing your attention, sir, to March 19, 2019 in the morning hours of that day did you have occasion to go to 23132 Meadowbrook Road?
DETECTIVE BALOG: I did, yes.
MS. HAND: And what was your purpose for going to that location?
DETECTIVE BALOG: To investigate a death.
MS. HAND: All right and upon your arrival to that location who was present?
DETECTIVE BALOG: On the scene it was Officer Hashim, Sergeant Manar, the victim Denis Preka, Paul Wiedmaier, who is the homeowner or homeowner’s son and Connor Gibaratz.
MS. HAND: Okay. And once at that scene did you – you said you saw the victim in this case, Denis Preka, correct?
DETECTIVE BALOG: I did, yes.
MS. HAND: All right and approximately how many death scenes have you participated in?
DETECTIVE BALOG: In a 23-year career I’d say 50 at least.
MS. HAND: Okay and what was the condition of the decedent’s body when you came upon it?
DETECTIVE BALOG: He was on his right side, there was obvious rigor and lividity to his body. He did have some vomit on the left side of his head – what appeared to be vomit, I should say. His head was facing east. He was propped up. He had a – I believe it was a speaker and a gas can was propping up him.
MS. HAND: Like a radio speaker?
DETECTIVE BALOG: A radio speaker or it was like a amplifier or something to that effect.
MS. HAND: Okay.
DETECTIVE BALOG: Propped up behind him. He had a blanket pulled up a little bit – about halfway up his body and like I said, that was just kind of propped up to prevent him from rolling over.
MS. HAND: Okay. Was – was it apparent to you at that point that he was deceased?
DETECTIVE BALOG: Absolutely.
MS. HAND: All right and based on your years of experience did it appear to you that he had been deceased for some period of time?
DETECTIVE BALOG: It did.
MR. ROCKIND: I’m going to object to lack of foundation.
THE COURT: Sustained.
MS. HAND: All right.
BY MS. HAND:
MS. HAND: You – you’ve indicated that you’ve been involved in at least 50 death scenes?
DETECTIVE BALOG: Correct.
MS. HAND: Okay and are you familiar with the process of rigor mortis?
DETECTIVE BALOG: Yes.
MS. HAND: And have you been trained in the process of rigor mortis?
DETECTIVE BALOG: Yes.
MS. HAND: Okay and where have you received that training?
DETECTIVE BALOG: I've been to several homicide investigative schools, police academy and just career experience.
MS. HAND: Okay. Have you come in contact with other individuals who have had the presence of rigor?
DETECTIVE BALOG: Yes.
MS. HAND: Okay and when you say lividity what do you mean by that?
DETECTIVE BALOG: Blood pooling.
MR. ROCKIND: Judge, I’m going to – again, I’m going to object. I can voir dire, but this is - this is not – these are not perceptions of lay witnesses. This is now going into expert opinion. This is additional specialized knowledge and if the prosecutor wants to qualify him as an expert then we have to go through that process. But this is –
THE COURT: Possibly. She’s trying to lay a foundation so far with his training. I’m going to give you your opportunity to voir dire, but let’s let her finish that process first.
MR. ROCKIND: If he’s going to testify as an expert.
MS. HAND: I’m not asking for expert testimony, Judge. If I could finish?
THE COURT: Of course.
MS. HAND: Thank you.
BY MS. HAND:
MS. HAND: Were you present when the body was removed from the house?
DETECTIVE BALOG: Yes, I was.
MS. HAND: And who removed the body from the house?
DETECTIVE BALOG: The medical examiner’s office.
MS. HAND: Okay and about how long after you arrived on the scene – well, I didn’t ask you that. Was the medical examiner there - their office there before or after you got there?
DETECTIVE BALOG: After.
MS. HAND: All right and about how long after you got there?
DETECTIVE BALOG: Probably an hour I would say.
MS. HAND: Okay. And did you move the body or touch the body prior to the medical examiner’s office arriving?
DETECTIVE BALOG: I did touch the body and typically I do that as a detective just to check for the rigor to see if the body is stiff and he was –
MR. ROCKIND: Again, I’m just gonna object. This –
THE COURT: It’s a factual recitation at this point. Overruled.
MS. HAND: Thank you.
MR. ROCKIND: When you use terms like – I’m just gonna – when you use terms like rigor mortis or rigor or livor mortis, you're using technical, medical, pathological terms, which requires, at least as to my objection, a form of expertise.
THE COURT: All right. Thank you. That’s overruled.
BY MS. HAND:
MS. HAND: Okay, was the body stiff?
DETECTIVE BALOG: Yes.
MS. HAND: And was the body colder than normal?
DETECTIVE BALOG: Yes.
MS. HAND: Okay. Did you in fact take a picture of the thermostat in the home?
DETECTIVE BALOG: I did, yes.
MS. HAND: All right and do you recall what the thermostat setting on the –
DETECTIVE BALOG: I don’t recall specifically. I’d have to review the photographs, but I believe that 70-ish, I do believe.
MS. HAND: Okay. All right. And you say you were able to observe pooling of the blood?
DETECTIVE BALOG: Yes.
MS. HAND: Okay, is that something that you see with your own eyes?
DETECTIVE BALOG: It is, correct. It’s a darkening of the skin, purplish color at the lower level of the body.
MS. HAND: Okay and when you say the lower level of the body, which part of the decedent’s body would have been lower given the way that he was positioned?
DETECTIVE BALOG: The right-hand side and right side of his face, right side of his legs.
MS. HAND: Were the – were the decedent’s eyes open or closed when you first came in contact with him?
DETECTIVE BALOG: Partially open, I believe.
MS. HAND: All right. Did you interview the individuals that were at the scene?
DETECTIVE BALOG: Yes, I did.
MS. HAND: Okay and you’ve already identified their names. Have you spoken with those individuals on – on more than one occasion?
DETECTIVE BALOG: Yes, I did.
MS. HAND: All right. The defendant in this case, not – without getting into what he said, have you heard him speak before?
DETECTIVE BALOG: Yes, I have.
MS. HAND: On about how many occasions?
DETECTIVE BALOG: In person, twice I believe. On video other times.
MS. HAND: Okay. So are you able to distinguish in your opinion the voice – between the voices of Paul and Connor?
MR. ROCKIND: I’m sorry, Judge, I’m going to have to – I don’t mean to keep interposing objections.
THE COURT: That’s okay, what’s your objection?
MR. ROCKIND: My – my objection is first of all if – if the prosecutor is attempting to lay a foundation that this man – well, I’m going to object to lack of foundation in terms of the – at this point, this witness being able to attempt to identify Mr. Remington’s voice. There’s no evidence as to the number – the – he said twice. No evidence as to how long, how long those interviews were, no evidence as to how much familiarity he has with that individual being able to compare his voice to others and there are some cases out there that say that absent that level of familiarity someone can’t make an identification of someone else in the video or in audio, which is where I believe the prosecutor is going. I can get the case and I don’t know if the Court wants to –
THE COURT: All right, I think it might be a little premature at this point. I’ll reserve the ruling until Ms. Hand is done asking him those foundational questions.
MS. HAND: Thank you.
BY MS. HAND:
MS. HAND: How long did you – did you talk to Paul for total?
DETECTIVE BALOG: In total?
MS. HAND: Mm-hmm.
DETECTIVE BALOG: At least probably an hour.
MS. HAND: Okay on all the – on how many occasions did you speak with Paul?
DETECTIVE BALOG: Once at his home and then one other time in the interview room of the Novi Police Department, so roughly – it could be over an hour and a half, then.
MS. HAND: Okay. You said only one other time in the Novi Police Department or was there an additional time?
DETECTIVE BALOG: I believe there – yep, twice I spoke with him.
MS. HAND: Okay.
DETECTIVE BALOG: In the Novi Police Department.
MS. HAND: All right. And about how many times did you speak with Connor?
DETECTIVE BALOG: At least four.
MS. HAND: Okay. And about what was the total amount of time that you –
DETECTIVE BALOG: Roughly two hours.
MS. HAND: Okay.
THE COURT: The objection is overruled, Mr. Rockind.
MS. HAND: Thank you.
BY MS. HAND:
MS. HAND: Did you – sir, did you have an opportunity to obtain or author any search warrants in this case?
DETECTIVE BALOG: Yes, I did.
MS. HAND: All right. Specifically, did you author a search warrant for Snapchat information?
DETECTIVE BALOG: Yes, I did.
MS. HAND: All right and whose – whose Snapchat information were you attempting to obtain by those search warrants?
DETECTIVE BALOG: I was attempting to obtain Hulkolas, which is Nicholas Remington’s screen name. I was attempting Olgas, who is Olga Lowry’s screen name, who is an individual that I spoke with from the University of Michigan; and also Connor Gibaratz, who was on the scene at the time.
MS. HAND: Okay and of those three individuals whose information you attempted to obtain, what information was Snapchat able to provide you?
DETECTIVE BALOG: Snapchat was able to provide me information from Hulkolas, which is Nicholas Remington’s –
MR. ROCKIND: Judge, I’m going to object to any allegation that Hulkolas is Nicholas Remington’s absent a foundation or records. It’s hearsay.
MS. HAND: Well, Judge, I – I disagree because it’s – well, for a couple reasons. And I can lay it – I’m going to lay a further foundation, but under MRE 1101, ownership information for preliminary examination purposes is admissible via hearsay and if you are the owner of a Snapchat account that information can be testified to. It’s no different than you’re the owner of a house or a car.
MR. ROCKIND: Judge, that’s – it’s an interesting and clever, I think, attempt to apply 1101 to this; 1101 if we’re just going to be hyper-technical 1101 subsection B discusses the rules other than those with respect to privileges do not apply in the situations and proceedings. And then when you get to subsection eight, preliminary examinations, “At preliminary examinations in criminal cases hearsay is admissible to prove with regard to property the ownership, authority to use, the value, possession and entry.” There is nothing else related to that other than property.
THE COURT: Okay, sustained at this point, but I haven’t heard what the detective had obtained to tie that nickname to the defendant yet. I don’t think we’ve had an opportunity to hear those questions. Go ahead, Ms. Hand.
MS. HAND: Thank you.
BY MS. HAND:
MS. HAND: Sir, how did – how did you end up with the – requesting the account of Hulkolas?
DETECTIVE BALOG: The police department as provided a video that was authored by Hulkolas.
MR. ROCKIND: Judge, again, I’m going to – I – I’m sorry, this is – this seems like this is probably the entire preliminary exam is going to be about these – the Snapchats, so we have to be a bit vigilant.
THE COURT: It has been so far, or objections anyway.
MR. ROCKIND: And the word authored, again, suggests that a person created it or someone associated with an account created it. There is – there is an absence of foundation that’s a conclusion and I object to that. He can surely say that he received the video, but he can’t go and just begin to describe the content of it or who the author of it was or what account authored it, because that is a conclusion or opinion not borne out by the evidence and beyond his – his – the lack of foundation.
THE COURT: All right, thank you. Overruled.
MS. HAND: He – he overruled, so you can go ahead.
THE COURT: You can answer the question, if you remember it.
BY MS. HAND:
MS. HAND: You got videos from -- A Yes, I received the videos through our police department. Snapchat, the way Snapchat works is people public – publicly display things on Snapchat. It’s a social media – pictures, text messages and other things. We received several video snippets that were tied together from the scene prior to the victim Denis Preka’s death that day on the 19th.
MS. HAND: Okay. Did you have a phone number that you associated with Nicholas Remington?
DETECTIVE BALOG: Yes, I did.
MS. HAND: Okay and was that phone number associated with the Snapchat account?
DETECTIVE BALOG: Yes, it was.
MS. HAND: That you received?
MR. ROCKIND: I’m going to – Judge, I’m going to object again to that. That requires – there’s a record. I know Ms. Hand is – hasn’t really asked the detective much to allow him to actually give a narrative, the questions have been pretty much yes or no. But – but the concern that I have is that that question and answer requires the detective to actually say, “Is there a phone number associated with this account?” Which then he says, “Yes.” There’s a lack of foundation for that. What is the foundation? Is it a record? Is it a piece of paper? Is it something that he got from a source? That’s hearsay and lack of foundation.
THE COURT: You’re objecting before we get to the foundation, though, Mr. Rockind. I understand you’re quick on the trigger, but –
MR. ROCKIND: Yeah, but there’s – but this – he’s offering – well, we’re not at the how did you attempt to associate this with – this account with the person, we’re just getting to summaries of information. That’s my objection.
MS. HAND: Well, Judge, and – and I disagree with Counsel and I – I greatly apologize. I left a little in haste from my office and did not grab my court rules, but I think Counsel omitted a very important portion – thank you, Judge – of MRE 1101 and that is that the hearsay objection also pertains to the authority to use. And so, if the officer learned through his investigation that the defendant was the person who had the authority – or authority to use this phone and use this Snapchat account, I believe that the objection to foundation is misplaced as it relates to the preliminary examination.
MR. ROCKIND: But – see, I – I – and I didn’t omit anything. I read the entire rule and I hope the record will bear that out. I didn’t skip any part of it. I read the rule. At preliminary examinations in criminal cases hearsay is admissible to prove with regard to property the ownership, authority to use value, possession and entry. The prosecutor just skipped over, we didn’t even – there’s no – we didn’t get to an issue of phone. There’s no question about a phone. There was a question about – there was a summary question of is there a phone number associated with this account. And it –
THE COURT: Well, the phone number - no, the question was, “Is there a phone number associated with Nicholas Remington?” That was the question.
MR. ROCKIND: Sure. It’s – and again, that has nothing to do – that completely skips over what – I don’t even think this section of the rules of evidence apply to a phone number. But this completely skips over to property. But we just completely skip over the –
THE COURT: Well, it’s yours, right? I mean, you pay for it. You can take it with you if you go to another company. Your number goes with you.
MR. ROCKIND: I don’t think the prosecutor actually asked a question about phones. She asked a question about a phone number.
THE COURT: That’s what I mean, the number. Isn’t that something that you own?
MR. ROCKIND: I – do your Honor consider your phone number to be your –
THE COURT: Yeah, when I was in practice I mean I had a phone number that was –
MR. ROCKIND: The phone is different than – I –
THE COURT: No –
MR. ROCKIND: I’m just making my objection.
THE COURT: Okay.
MR. ROCKIND: I think that the prosecutor skipped over – I think she literally skipped over a couple of steps, so –
THE COURT: I appreciate that and I will overrule the objection. Thank you.
BY MS. HAND:
MS. HAND: Did you, in fact, then receive the information for a Snapchat account associated with the phone number of Nicholas Remington and Hulkolas?
DETECTIVE BALOG: Yes, I did.
MS. HAND: Judge, I’m going to mark as People’s proposed exhibit number three a certificate of authenticity from Snapchat. May I approach the witness, your Honor?
THE COURT: Yes. Please show that to Mr. Rockind.
MS. HAND: He has it.
THE COURT: Okay.
MR. ROCKIND: I have it, your Honor.
THE COURT: Thank you. This is three?
MS. HAND: Three, yes, your Honor.
BY MS. HAND:
MS. HAND: Sir, do you recognize what that is that I handed you?
DETECTIVE BALOG: Yes, I do.
MS. HAND: What is it?
DETECTIVE BALOG: This is a certificate of authenticity from Snapchat.
MS. HAND: Okay and did that certificate of authenticity accompany the receipt of the documents that you received from Snapchat?
DETECTIVE BALOG: Yes, it did.
MS. HAND: And what kind of documents – in what format did you receive the documents from Snapchat?
DETECTIVE BALOG: Snapchat sends everything via email. It was a Microsoft Excel spreadsheet with different text messages, which are Snaps from the account of Hulkolas. There was also videos, photographic images that were also included in documents that I received from Snapchat.
MS. HAND: All right, and you provided those to me, I’m assuming?
DETECTIVE BALOG: Yes.
MS. HAND: Okay. All right.
MS. HAND: Judge, for – I’m going to move for admission for exam purposes, Judge, in - in two ways. One, there is a – a disk that I have provided to defense counsel that contains all of the information, the videos. And then inside that same disk is a – an Excel spreadsheet with the actual written documents of the – I guess they’re called Snapchats. So I’m going to mark those virtually at this point, because they’re already in my computer. But the – the thumb drive as four and I’d move to mark the actual printed out copy of the Snapchats as People’s proposed exhibit five. And based on – and I did also, so the Court is aware, provide Counsel notice of
my intent to admit these as a business record under 902(11).
MR. ROCKIND: Judge, I have an objection. I have a – I have a –
Pg 34-44 Court Transcripts
THE COURT: Please, take your time.
MR. ROCKIND: I have a little bit of voir dire and then I just have a --
THE COURT: Sure.
MR. ROCKIND: I have voir dire on – so, Detective Balog, good afternoon.
DETECTIVE BALOG: Good afternoon, sir.
MR. ROCKIND: Sorry for all the objections over form and I don’t want to keep tripping over myself and so I’m not very successful with those so far.
DETECTIVE BALOG: No problem.
MR. ROCKIND: Just so I understand, you – you sent off a – there’s a – an email which – to make a request for Snapchat to provide records, right?
DETECTIVE BALOG: There’s a preservation letter, yes.
MR. ROCKIND: And then you did that, you sent off the preservation letter?
DETECTIVE BALOG: Correct.
MR. ROCKIND: And then you ultimately obtained a search warrant, correct?
DETECTIVE BALOG: Correct.
MR. ROCKIND: Was there any communication between you and Snapchat or any representative of Snapchat between those two dates?
DETECTIVE BALOG: I do not believe so, no.
MR. ROCKIND: Did you have any actual – other than electronic communication, did you have any verbal telephone, face to face communication with any representative of Snapchat?
DETECTIVE BALOG: No, I don’t believe so.
MR. ROCKIND: You – do you remember the date that you sent off your preservation letter?
DETECTIVE BALOG: I believe it was April fifth.
MR. ROCKIND: And do you remember the date that you got your search warrant?
DETECTIVE BALOG: April eighth.
MR. ROCKIND: Did you send the search warrant to the contact information that you had at Snapchat?
DETECTIVE BALOG: That’s correct, yes.
MR. ROCKIND: And the info – the contact information at Snapchat is just a general email address or found in the law enforcement guide?
DETECTIVE BALOG: That’s correct.
MR. ROCKIND: Is that fair to say?
DETECTIVE BALOG: Correct.
MR. ROCKIND: And how soon after you sent off your request, your – your search warrant did you get a response from Snapchat?
DETECTIVE BALOG: It was, I believe, a month and a half.
MR. ROCKIND: If I – if I understand the – when you – Snapchat responds via email?
DETECTIVE BALOG: Correct.
MR. ROCKIND: And I don’t mean to be too – I’m not trying to take this outside of voir dire, this is just focused on the – the foundation for this. But I just want to know when you received the email from Snapchat did it come from an individual or did it come from the same law enforcement --
DETECTIVE BALOG: It come from the law enforcement.
MR. ROCKIND: And then when you got the email did it have – we don’t have a copy of the actual email that you received. Could you share with me again under –just for foundational purposes, what was the contents of the email?
DETECTIVE BALOG: The content of the email itself, it gives you a – I guess it would be kind of like a password information where you have to go in and – and type in some information and then the email comes directly to you in the Microsoft Excel spreadsheets and different snippets, files that you open.
MR. ROCKIND: All right. Is it fair to say that what you received from Snapchat is actually a letter from Snapchat, a cover letter?
DETECTIVE BALOG: Correct.
MR. ROCKIND: Was that in a file itself or was that just attached to the emails like a PDF?
DETECTIVE BALOG: I believe that was PDF.
MR. ROCKIND: And then it also – there’s a certification that’s also attached to the email, correct?
DETECTIVE BALOG: Correct, yes.
MR. ROCKIND: And – and the certificate of authenticity was also attached as a PDF.
DETECTIVE BALOG: Correct.
MR. ROCKIND: And then attached to that is – you know what a ZIP file is , right ?
DETECTIVE BALOG: Correct, yes.
MR. ROCKIND: And then there’s a single ZIP file that was attached to the email, correct?
DETECTIVE BALOG: A single ZIP file?
MR. ROCKIND: Yes.
DETECTIVE BALOG: I believe so.
MR. ROCKIND: You get it and then the information that you testified to appeared?
DETECTIVE BALOG: Yes. I believe so, yes.
MR. ROCKIND: There weren’t two ZIP files, there was a single ZIP file?
DETECTIVE BALOG: I believe there was just one.
MR. ROCKIND: And you provided all that to the prosecutor and as far as you’re aware the prosecutor provided all that to the defense –
DETECTIVE BALOG: I believe so.
MR. ROCKIND: As far as you’re aware.
DETECTIVE BALOG: As far as I’m aware, yes.
MR. ROCKIND: Okay. Since that time you’ve had – and is it fair to say that – just so I – I’m going to address the certification issue in a second. But when you click on the ZIP file it opens up to information from Snapchat itself, right?
DETECTIVE BALOG: Correct.
MR. ROCKIND: And one was there – there’s an Excel spreadsheet that is labeled chat, right?
DETECTIVE BALOG: Yes
MR. ROCKIND: And then there’s a bunch of –there’s a – some other Excel spreadsheets, one is related to subscriber, which is subscriber information?
DETECTIVE BALOG: Yes.
MR. ROCKIND: There is one for chat group, right?
DETECTIVE BALOG: Yes.
MR. ROCKIND: There is one --
MS. HAND: I --
MR. ROCKIND: This is – this is part of the foundation for --
MS. HAND: Foundation, I guess my question, Judge, is what is the objection to the admission based on 902(11)?
MR. ROCKIND: I’m going to get there. I - I’m getting there in one second, I promise. There is – I’m near the end of this. And there is another Excel spreadsheet that deals with chat stories, right?
DETECTIVE BALOG: Correct.
MR. ROCKIND: Okay and then just – then you have all the files related to attachments and things of that sort?
DETECTIVE BALOG: Yes.
MR. ROCKIND: And that’s the sum total of what you got from – from Snapchat, right?
DETECTIVE BALOG: Yes.
MR. ROCKIND: And then the prosecutor said that she was gonna introduce a printed – I believe said a printed Excel spreadsheet which purportedly contains Snaps and chats and alleged communications, is that right?
DETECTIVE BALOG: Correct.
MR. ROCKIND: And have you – I presume it’s – is it – did you print – did you just print that right off of the Excel spreadsheet that was on the --
DETECTIVE BALOG: Yes.
MR. ROCKIND: In the ZIP files?
DETECTIVE BALOG: Yes.
MR. ROCKIND: So that’s not created separately, right?
DETECTIVE BALOG: Correct.
MR. ROCKIND: Okay. So, Judge, I have a couple of objections. Let me start by – could I tender for the Court – could we tender just a copy of the certificate of authenticity for your Honor to review? Have you seen it, your Honor?
THE COURT: No.
MR. ROCKIND: Do you have an objection if I show the Court just a copy of it?
MS. HAND: That’s fine.
MR. ROCKIND: May I approach, your Honor?
THE COURT: Yes, thank you.
MR. ROCKIND: I think this is – what – what People’s exhibit number is that, Detective?
DETECTIVE BALOG: Exhibit three.
MR. ROCKIND: Okay. So, first, your Honor, the– would your Honor take a look at the certificate of – of the – I guess the authenticating certificate that I provided the Court?
THE COURT: I’m doing so right now.
MR. ROCKIND: So, if your Honor will take a look it’s – it’s not sworn. Federal Rule of Evidence 803, which is 28 USCA, which also is related to business records, says the following and I have a copy here for the prosecutor.
MS. HAND: I don’t care what the federal rules say.
MR. ROCKIND: You will in a second. Can I tender a copy to the court?
THE COURT: Yes.
MR. ROCKIND: Under – you will. Under 803(A) –if you take a look, 803 then we get to subsection 6, that’s records of a regularly conducted activity, a record of an act, event, condition, opinion or diagnosis and then if you look, your Honor, it – under subsection D in the second page, it says “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.” Your Honor, if you take a look at the – in the -–
THE COURT: What’s the relevance of the federal rules? Let’s take a look the Michigan rules.
MR. ROCKIND: I understand. Your Honor, there’s a–if you look in the certification that was provided by this person from Snapchat they actually reference the statute, providing the Court with the statute, there is a federal statute that allows - I’m providing the Court with a copy of it.
THE COURT: Thank you.
MR. ROCKIND: Which allows for a – an unsworn statement to be used and there’s a federal statute that allows the unsworn statement to be used and if you read under the federal rule, your Honor, there – under 902(11), which is the authentication – the federal authentication rule, your Honor, actually allows for an unsworn statement to be used for authentication purposes. The Michigan rule – the Michigan rule actually requires an under oath statement for authentication. I have copies of 803(6) and if the Court wants I have copies of 902(11).
THE COURT: I’m reading 902(11) now. It says under oath, I understand.
MR. ROCKIND: Yes.
THE COURT: Okay.
MR. ROCKIND: The certification that is provided associated with the Snapchat – that purportedly certifies these records does not comply with MRE 902(11). It is not under oath. We have other objections too, but – which I can get to, but this is a – this is the --
THE COURT: Well, isn’t a declaration under – under penalty of perjury, a consequence of violation of an oath? In other words, how could you be subjected to the penalty of perjury if you’re not under oath?
MR. ROCKIND: Judge, under – that’s why I provided the Court with the federal statute. The federal statute as I provided the Court actually calls for a – a declaration or a certification which is actually not under– under oath. Federal statute, which is why 28 US Code 1746 says, “Unsworn declaration under penalty of perjury.” And in – in Federal Rule 902(11) where everybody was – I know I was – I took a bit of time to get there but I wanted to give the Court as much information as I could, under 902(11) the – it references statutes. It actually references – if your Honor takes a look there is a specific reference under 902(11) for – and I’m going to pull it out of here.
THE COURT: 902(11) doesn’t reference any statutes in the Federal Rule.
MR. ROCKIND: Not – Federal Rule 902(11)? Federal Rule 902(11) actually does.
THE COURT: I don’t think you gave me a copy of that then.
MR. ROCKIND: I did but I can give the Court another copy if want.
THE COURT: Is that
MR. ROCKIND: That is --
THE COURT: I thought this was what you handed me.
MR. ROCKIND: Federal Rule of Evidence 902(11) --
THE COURT: Okay, let’s look to the third page, which is --
MR. ROCKIND: It’s a - a certified document of a regularly-conducted activity.
THE COURT: I don’t see a statute listed in there. I see a rule, 803.6(A-C).
MR. ROCKIND: Right and then keep going as shown by a certification of the custodian or another qualified person that complies with a federal statute for a rule subscribed by the Supreme Court. That’s different than Michigan law. Michigan law requires that the custodian of records actually provide and take an oath. The federal statute that the record keeper in this case relied on is a federal statute that may – if we were in Federal Court or applying the federal rules may suffice. Michigan requires an oath, period. And the witness – the – the custodian, the record custodian from Snapchat did not take an oath. She specifically says she did not. It – it’s not pursuant to oath, it’s pursuant to 28 USC 1746, which is not under oath. There is no – or taken. There is no notary. There’s nothing with which this is –to indicate this is an under-oath statement. In fact, the statute relied on specifically says it’s not sworn and it’s not under oath. It just doesn’t comply.
THE COURT: Okay. What’s your response, Ms. Hand?
MS. HAND: Judge, the custodian of records indicates that they – they’re under the penalty of perjury. That the foregoing is true and to the best of. their knowledge. I believe that it comports with 902(11). It – it indicates everything that 902(11) require it to indicate in order to admit the records as a business record.
MR. ROCKIND: I have other objections, too.
THE COURT: Okay, bear with me. Do you have any more Ms. Hand?
MS. HAND: No, your Honor.
THE COURT: Okay. I think that the certificate of authenticity, because it specifically requires a declaration it is a declaration under penalty of perjury, that that’s going to satisfy Michigan’s 902(11) as an oath. There is no other way you could be subjected to perjury unless you – you’re under oath first.
MR. ROCKIND: Well, I was trying to --
THE COURT: It’s a --
MR. ROCKIND: The Federal Statute I provided the Court does not require an oath in order to be subject to perjury. It says unsworn.
THE COURT: Okay. I – I’m reading the statute. We’re going to have to agree to disagree on the interpretation of that, but for purposes of application of Michigan Rule 902(11) I think this certificate of authenticity satisfies the concept of the oath that is required.
MR. ROCKIND: We have some other --
THE COURT: Go ahead. What’s your other objections to the --
MR. ROCKIND: Okay.
THE COURT: - proposed exhibits?
MR. ROCKIND: Sure. So, your Honor, I – let me get my notes here, which is – so, the other issues we have, your Honor, is first – and that’s why I did – I attempted to lay a foundation for what was received from Snapchat by Detective Balog and I’m more than willing to allow them to pull up the – the disk that was provided to the prosecutor and the prosecutor provided to me. If you take a look at the certificate that your Honor just looked at the certificate actually was provided on a particular date. The certificate actually indicates that the – that whenever this individual that I’ll get to in a second, that she is actually certifying that there are two ZIP files. Your Honor, as part of the – Detective one testified that he did not receive two ZIP files and as an offer to the Court I can tell you that the discovery disk that we received did not contain two ZIP files. We only received one ZIP file. So, there are concerns about that that I think are important to be shared with the – with the Court, that’s part of our objection.
THE COURT: It says there’s an internal reference number, 4047262.
MR. ROCKIND: Do you see where it says two ZIP files, your Honor?
THE COURT: I do.
MR. ROCKIND: We only have one ZIP file.
THE COURT: Was there something that had associated with that internal reference number
Something that’s cited in that same sentence?
MR. ROCKIND: I guess I don’t understand the Court’s – the Court’s query.
THE COURT: Okay, number three says attached is a true and correct copy of two ZIP files --
MR. ROCKIND: Which we only got one.
THE COURT: - of data associated with Snapchat identified Hulkolas with internal reference number such and such.
MR. ROCKIND: We only received on ZIP file.
THE COURT: I understand but is that internal reference number part of the exhibit in any way?
MR. ROCKIND: I – you know, I’d have to pull out the - the –
THE COURT: If you know. If you don’t know, that’s fine.
MR. ROCKIND: I don’t know the answer to that, your Honor.
THE COURT: Okay.
MR. ROCKIND: There are – the other issues that we – so – so this is – one of the – one of the issues that I can walk the Court through is that what I believe what is on the ZIP file, which is what is certified by that record, is different from the – the typed copy or the – the People’s next exhibit that intends to introduce. They – they’re different. They’re substantially different. And one of the reasons that I wanted to go through that with the Court was that the differences are significant. What is certified on the – what is certified –
THE COURT: What is – I – I understand the concept and I’m going to let you finish, but for purposes of admissibility as opposed to the weight of the evidence if there are discrepancies, how does that go to admissibility?
MR. ROCKIND: Well, because the document –
THE COURT: Which is where we’re at now.
MR. ROCKIND: Because it –
THE COURT: We’re stuck on admissibility.
MR. ROCKIND: It – because if the State wants to introduce – because I – I’m trying to work through it to – it’s a – it’s a rather sort of – it’s a – it’s a rule of evidence intensive issue. What is certified on that disk, assuming that the Court accepts this – the certificate of authenticity, what is certified on the disk is different from the – what is this printed copy. We received the printed copy. The printed copy, the hard copy that the State wants to introduce apparently, contains 1,189 messages. The e-copy or the ZIP copy of these chats actually contains only 720 messages. What is this – this written copy is not a – the one that they want to introduce is not certified. The written copy, if you were to actually try to print the Excel spreadsheet that’s on the – purportedly certified, it’s not the same. In fact, there are significant Snap conversations that are different. For example, there are – there are communications on the hard copy that the People, I believe, what to introduce that are not actually on the – the ZIP copy, on the e-copy. So, the hard copy is not certified. The hard copy itself that the State wants to introduce is not a certified record. It wasn’t certified by Snapchat.
THE COURT: How do you know?
MR. ROCKIND: Because they’re different. Because the e-copy and the hard copy – the Court can go through it itself. If I take the – the e-copy and take it to your computer and attempt to download it and you’ll see that the two are not the same.
THE COURT: Okay.
MR. ROCKIND: They’re different.
THE COURT: The fact that they’re different – they both came from Snapchat, right?
MR. ROCKIND: Well, no, I – the – I – I – that’s why I attempted to lay a foundation with the Court. There is a – we can pull the disk out and we can plug it in. For example, from the – the e-file, which is on the – the disk, the e-file itself has – there are – it – it’s substantially different. I mean, I can work through the Court what the differences are, but I guess I’m trying to – you’re asking me how I know, it’s not my job to lay the foundation that this written copy that the State wants to introduce actually came from Snapchat. In fact, I’m going to suggest to the Court that the way we received it in discovery suggests that it’s – it’s not the e-copy. All that certificate does is verify what is in a – is certified, the authenticity quote/unquote or a ZIP file. We established the testimony the ZIP file contains an Excel spreadsheet and that Excel spreadsheet is different from this printed copy that the People want to introduce.
THE COURT: Okay. I understand your argument, but I’m not seeing anything that would make me believe that the detective or that the People modified something.
MR. ROCKIND: I’m not suggesting anybody modified it.
THE COURT: Right, so if it came from Snapchat –
MR. ROCKIND: I don’t know that it did. Here –
THE COURT: Well –
MR. ROCKIND: It’s – as opposed to doing this, can I –
THE COURT: The fact that it’s different –
MR. ROCKIND: But this is - this is –
THE COURT: And you didn’t come up with it, right?
MR. ROCKIND: Judge, this is important. Can I suggest this?
THE COURT: Go ahead.
MR. ROCKIND: If the Court takes the – if the Court wants to utilize the disk, not a printed copy of it, just the disk and utilize the disk which is – is allegedly – then that – then that would be – that would fit within the certification. A separately printed copy – I object to the separately printed copy because they can’t establish that that is the same copy that is purportedly certified.
THE COURT: All right, I respectfully disagree. So, let me make this ruling.
MR. ROCKIND: But, can I –-
THE COURT: I’m going to –
MR. ROCKIND: Because there are other – there are other –
THE COURT: - accept this certificate –
MR. ROCKIND: There are other objections I have to it.
THE COURT: Okay. I’m going to accept the certificate of authenticity. And, as I’ve already indicated, I’m ruling that it applies under 902(11) under the Michigan Rules. If you have any other objections with regard to the admissibility let’s go through them.
MR. ROCKIND: Sure. It - is the Court willing to actually just compare the two to confirm whether –
THE COURT: I will once they’re admitted, because that goes to what they mean, but not their admissibility.
MR. ROCKIND: Okay.
THE COURT: In other words, the detective’s already testified –
MR. ROCKIND: But the written copy is not certified.
THE COURT: Excuse me one moment, Mr. Rockind.
MR. ROCKIND: Sure.
THE COURT: I’ve heard the detective testify that he got the email from Snapchat in response to the search warrant. He printed what was on there without changing it in any way. You’re saying that what he printed is different from the digital copy, but you’re not attributing that to any sort of malfeasance on the detective’s part.
MR. ROCKIND: I’m saying that it – I know from the disk, we have the disk. I am telling you and I hope the Court will attempt to – before you admit the written copy let’s put the disk in and take a look at what’s on the – the e-file. The e-file doesn’t match what is on the actual – this hard copy. I don’t know where the – if the hard – the claim is that the hard copy was printed directly from – from the disk, it’s not possible to have done that. It’s not the same. This – the information on the purported hard copy does not match up with what’s on the disk.
THE COURT: What’s the response to that?
MS. HAND: Well, first of all, I’m at a complete disadvantage because I really don’t know what a ZIP file means. If Neil – if Mr. Rockind wants to look in my computer to make sure this looks like his disk when he opens it, I think these are two ZIP files and I copied my disk. Isn’t that two ZIP files?
MR. ROCKIND: No.
MS. HAND: Isn’t it?
MR. ROCKIND: No, it’s not.
MS. HAND: When you hit that? I don’t know.
MR. ROCKIND: It’s not – these are not two ZIP files, your Honor. So –
MS. HAND: I think it is.
THE COURT: Okay, but –
MR. ROCKIND: These are not ZIP files. These are PDFs.
MS. HAND: Okay, well when I put in the disk and I click on it that’s what comes up.
MR. ROCKIND: You have to go back one.
MS. HAND: I’m in the E, not the D.
MR. ROCKIND: All right, but there’s a –
MS. HAND: All I can think of is maybe there’s a disconnect in the copying, but I mean I have –
MR. ROCKIND: We – we only have in ours, we have one single ZIP file. That ZIP file contains one Excel spreadsheet. That one Excel spreadsheet has about half of the – the – the Snapchats and the communications that are purportedly attached that are part of this disk, which is the People – they are not the same.
MS. HAND: Judge, I – I gave him that printout. That is – I don’t think that’s exact printout of
everything on here, because I printed mine out from here. I don’t – that wasn’t a – just some extra ones that I had originally when they presented the case for the warrant. So, he has – he has the complete –
THE COURT: He has what you have.
MS. HAND: He has what I have and it’s just in a different format.
MR. ROCKIND: And I’m not – I’m not suggesting that, but wait. But that’s what I’m – that’s what I’m trying to point out. Your Honor has admitted the certification?
THE COURT: Yes.
MR. ROCKIND: So if the – the certification certifies a – an Excel spreadsheet and information is in a ZIP file and I – what I’m telling the Court is that even the prosecutor just now in her recitation can’t tell you that this – that the information that’s in this – which we got as part of discovery, and I can tell you the exact date we got it
MS. HAND: Well, Judge, I’m not admitting that. I am admitting the printout of the Excel spreadsheet from this disk. I didn’t print –
THE COURT: Right.
MS. HAND: I have that –
THE COURT: Again, the fact that it doesn’t go to admissibility, it goes to what it means, its weight.
MR. ROCKIND: Can I see what the – the document the prosecutor –
THE COURT: Yes, please. Take your time and take a look. I would have thought that in the two and a half months that we’ve had this you would have been able to do that already, but let’s do it now.
MR. ROCKIND: So –
THE COURT: Do you have any more objections other than –
MR. ROCKIND: I do – I do and – and the prosecution –
THE COURT: Okay, go ahead.
MR. ROCKIND: The prosecution has them printed separately, so I need to take a look and see if these are – because I – if these are from the disk as opposed to from this – this hard copy that we received the very first day as part of discovery. This was provided to us on – I think it was June 19th, we got a disk of Snapchat logs, which I believe is what the People are attempting to admit.
THE COURT: Okay.
MR. ROCKIND: Then we got a printout of Snap conversations that was 40 pages.
THE COURT: Okay, I understand it’s lengthy, but we’re three months from that date.
MR. ROCKIND: But that’s what – the 40 pages is not on that drive, which I’m trying to tell the Court. And if it’s accepted you’re accepting a drive – you’re accepting 40 pages of Snapchat logs, let –
THE COURT: Well, then, where did they come from?
MR. ROCKIND: It’s not my responsibility to have the answer to that question. I don’t have an answer.
THE COURT: It is a –
MR. ROCKIND: I know it’s not in the drive. I can tell you that they’re not on the drive.
THE COURT: Okay.
MR. ROCKIND: They are – they are conversations –
THE COURT: Well, we have a foundational witness who is – let me just ask the detective. Is what the prosecutor has in her exhibit something that you had printed yourself or could print from what you received from the Snapchat –
DETECTIVE BALOG: Yes.
THE COURT: - response to the search warrant?
DETECTIVE BALOG: Yes.
MR. ROCKIND: Let me make sure we’re talking about the same thing. So, when we talk – as part of – when you – you’re aware that there was at some point provided to the prosecutor a 40-page Excel printed –
DETECTIVE BALOG: I provided the prosecutor whatever Snapchat provided to me.
MR. ROCKIND: Can I approach the witness, your Honor, just so I can –
THE COURT: Sure, yeah.
MR. ROCKIND: This – do – I’m showing you just what is my copy, but I want to – have you seen that before?
DETECTIVE BALOG: Sorry, your Honor, old eyes.
THE COURT: That’s okay.
DETECTIVE BALOG: That’s what happens when you hit 46.
THE COURT: I know, I’m getting there myself.
DETECTIVE BALOG: Yes, this is some of the Snapchat text information that I received.
MR. ROCKIND: Are you saying that – that the document that I’ve handed you, which is a 40-page log of Snap conversations, is on the disk that has been certified by Snapchat as – that you’re –
DETECTIVE BALOG: This is – this is information that Snapchat sent to me via the email.
MR. ROCKIND: Is that in the ZIP file?
DETECTIVE BALOG: If it was sent to me through Snapchat in a ZIP file, yes.
MR. ROCKIND: I’m trying to be very precise about this, because the – there are two different – have you compared that with what’s on the disk?
DETECTIVE BALOG: Again, what – what –
MR. ROCKIND: Detective Balog, have you compared the Excel spreadsheet that I’ve just handed you with the copy, have you compared that for content or with – with what’s on the disk?
DETECTIVE BALOG: I don’t have the disk before me. I mean –
MR. ROCKIND: Have you – have you compared whether that was even on the disk?
DETECTIVE BALOG: I guess I’m not getting what you’re asking. I – I can’t compare this –
THE COURT: Well, you can’t – you haven’t shown me that he actually had what you handed him before today’s date. He had the information, but not that exact stack of paperwork.
MR. ROCKIND: Well, did you have this stack of papers before? I mean, there’s 40-pages of Snapchat logs that were provided as part of the discovery in the case, is that right?
MS. HAND: Well, Judge, he can’t – he can only say –
THE COURT: Okay.
MR. ROCKIND: There’s 40 pages of discovery.
THE COURT: Okay.
MR. ROCKIND: I – I’m trying to be – your Honor, I –
THE COURT: He’s already laid a foundation. He print – he gave what he had from Snapchat.
MR. ROCKIND: But he hasn’t identified – your Honor, this is –
THE COURT: Did you obtain any other information from Snapchat ever at any point other than that one email response from them?
DETECTIVE BALOG: No, I did not.
MR. ROCKIND: Okay, so what I’m saying is that when we hook up Ms. Hand’s computer and we look at this Excel spreadsheet that’s on it, you’re saying that that document that you’re currently looking at, that Excel spreadsheet, you’re saying that that is on – that that’s on that disk. Under oath?
DETECTIVE BALOG: It should be, correct.
MR. ROCKIND: Well, what explanation would there be for it not being on the disk?
DETECTIVE BALOG: It could be –
MR. ROCKIND: Who’s doing the talking in the background?
THE COURT: Yes, no one talk please except the lawyers or the witness.
DETECTIVE BALOG: If it is not on that then I have no explanation for it other than an error, but I believe it is on there.
MR. ROCKIND: An error – an error in – an error in terms of what? An error on Snapchat’s part?
DETECTIVE BALOG: No, an error on my part or downloading, possibly. I mean, if it’s not there then it’s an error on my behalf, but I believe it’s there. I recognize some of these text messages, reading them in the past.
MR. ROCKIND: I understand and I’m not trying to stand over your shoulder. I’m trying to establish what this document is – so if we look at the disk you’re saying that if it’s not – which you can see that if this – what I’m showing you here, this 40-page Excel spreadsheet is not on the disk, would you concede to me that it is not – 1 was not provided to you by Snapchat?
THE COURT: I’m sorry –
MR. ROCKIND: Yes, if this is not on the disk. If this is not on the disk that the prosecution intends to – that you provided to her that you intend to play in court. Would you concede this was not provided by Snapchat? Not – wasn’t provided as part of this certification?
DETECTIVE BALOG: No, it was provided by Snapchat.
MR. ROCKIND: What –
DETECTIVE BALOG: Again, everything that I – everything that Snapchat provided me as provided to the prosecutor.
MR. ROCKIND: That –
DETECTIVE BALOG: If you’re saying that it’s missing then I don’t know how it’s missing other than there could be an error. I can –
MR. ROCKIND: An error in downloading it or –
DETECTIVE BALOG: That’s a possibility. If you’re saying that then that’s a possibility. Do I doubt it? I doubt it, yes. I believe everything that I have from Snapchat was presented to the prosecutor.
MR. ROCKIND: So –
THE COURT: Do you have any other objections?
MR. ROCKIND: I do. I do, your Honor, and I’d like to take a – there’s one conversation I can really focus on to know whether these were – these are the same. But – so here are the other – the other issues that – that we have, your Honor.
THE COURT: Okay.
MR. ROCKIND: There is – I don’t believe that the Snapchat records, your Honor knows that these suffice particularly related to the – the content of the communications that these qualify as – as business records and I want to attempt to make the – the – the argument as to why.
THE COURT: Okay.
MR. ROCKIND: As your Honor knows, the purpose in admitted business records is that they are inherently –that they are inherently reliable and carry with them sufficient guarantees of trustworthiness. And to have information that, as your Honor knows, under 104(B) and then under 110(A) – 1101(A), we’re allowed to present other information when the Court is attempting to establish the admissibility of documents and I want to give the Court some of that because I believe that there is a – there is a – these – the chat conversations don’t qualify as – as a – business records. And so – can I do that with – with –
THE COURT: Yeah, explain to me what you – what you –
MR. ROCKIND: Sure.
THE COURT: The basis of your argument.
MR. ROCKIND: Sure. So, first of all you’ve got information from Snapchat presents – creates a Snap Law Enforcement Guide. Have you seen that? So – can I provide a copy to the Court?
THE COURT: Sure.
MR. ROCKIND: The Snap Law Enforcement Guide itself, your Honor, when you take a look at it and this is available online. The Snap Law Enforcement Guide, were you to turn to, your Honor, page – page four on how Snapchat works, the People are – I believe what they want to do is they want to introduce these logs to attempt to show what communications occurred between two user accounts. And page four, if you look at the third paragraph, it says, “Snap servers are designed to automatically delete a Snap after it has been viewed by all intended recipients. Snap servers are designed to automatically delete an unopened Snap sent directly to a recipient after 30 days and an unopened Snap and group chat for 24 hours.” You go down to another two lines, “Snap servers are designed to automatically delete a Snap in a user’s story 24 hours after the user posts a Snap but the user may delete part or all” and then if you go to the next section about next page on chat, it says, “Our servers are designed to automatically delete one to one chats once the recipient has opened the message and both the sender and recipient have left the chat screen depending on the user’s chat settings.”
THE COURT: Okay.
MR. ROCKIND: Continues on about unopened chats and talks about –
THE COURT: What –
MR. ROCKIND: And then talks about – if you look at the last page – and on page 10, your Honor
THE COURT: So what does that have to do with –
MR. ROCKIND: I’ll share because Snap servers are designed to automatically delete most user account is described in subsection three, and if you take a look, your Honor, there is more documentation that Snap even publishes. We’ve got a transparency report, which I can provide to the Court, that Snaps recovery rate even pursuant to court orders or search warrants or overall recovery rate of recovering data is 87 percent. Which means that what the State is trying to do is to introduce information from Snapchat and what they’re trying to do is introduce – they can’t even verify that all of the communications are, in fact, provided. That all communications between two account holders is provided because, as I have here, you will see that Snap even says that they are – their default is to delete.
THE COURT: Okay.
MR. ROCKIND: Now how – now how does that all relate?
THE COURT: How does that –
MR. ROCKIND: Sure.
THE COURT: - go to admissibility?
MR. ROCKIND: Well –
THE COURT: Again, that should be an argument for weight.
MR. ROCKIND: It goes to admissibility – and I – and I’m – and I appreciate the Court asking. It goes to weight in part because we’ve got some cases that talk about, and I have a case here, it’s People versus Jambor.
THE COURT: Okay.
MR. ROCKIND: I have a copy for the prosecutor and I’ll provide the Court with a copy of it here.
THE COURT: Okay.
MR. ROCKIND: The business record exception is based on the inherent trustworthiness of business records. But the trustworthiness is undermined and can no longer be presumed when the records are prepared in anticipation of litigation. And I’m going to get to the – their – how this applies to this. The – the Court – it goes on, “A firm conviction in the found that the report was inadmissible under MRE 803.6 because it was prepared in anticipation of litigation and therefore was not sufficiently trustworthy.” I’ve provided the Court with some information as to why evidence from Snapchat is not sufficiently trustworthy, because there are – it’s default is to delete. That – evidence is deleted that is on the Snapchat server.
THE COURT: Well, this – these documents have not been admitted, so you
MR. ROCKIND: Well –
THE COURT: You’ve shown me some things for demonstrative purposes, but -- MR. ROCKIND: But, Judge,
THE COURT: - you haven’t proven to me that they’re inaccurate. You haven’t proven to me any of that yet. You’re just saying that.
MR. ROCKIND: First of all, I’m just saying – well, your Honor, I’m happy to mark these but under 104(B) –
THE COURT: I mean, you’ve said that they’re only 87 percent retrieval rate. That hasn’t been proven. You’re just saying that.
MR. ROCKIND: Your Honor –
THE COURT: You’d need a witness, too, don’t you? To get something admitted?
MR. ROCKIND: Well, not under – not – not for this purpose, your Honor. Now we’re just talking about – here’s – here’s Snapchat’s transparency report. Now we’re actually talking about the – the rules of evidence, as your Honor knows, don’t apply when we’re addressing issues like 1104. We’re addressing the admissibility of evidence. Under 104(B) and 11 – 11 and – and 1101(A) in terms of establishing the admissibility of evidence the rules of evidence don’t apply.
THE COURT: Okay.
MR. ROCKIND: And I know your Honor knows that and so that’s what I’m trying to do is to give the Court information to show you that the Snapchat information is not – a Snap itself is not – it’s not sufficiently trustworthy. The second thing, and I want to explain the difference between this – this spreadsheet or this Excel spreadsheet and the reasons why the Jambor case and another case, which is the McDaniel case, that was cited there and why those really apply. And this is how -- THE COURT: Let me ask you a question. And I hate to interrupt your flow, but just by way of example. So, you’re saying that because there’s not a 100 percent accuracy of retrieval rate that the document can’t possibly be admissible because it’s incomplete?
MR. ROCKIND: Well –
THE COURT: So if I were to have a subpoena, let’s say, to the Wayne County Register of Deeds and for some reason, maybe they are, maybe they’re not, they weren’t 100 percent accurate down there at the Register of Deeds in Wayne County, that all of their records would then be inadmissible because they’re not perfect. That can’t be so.
MR. ROCKIND: Well, no. so, your Honor, first of all – and it’s a – it’s a – I’m not trying to frustrate the Court.
THE COURT: You’re not frustrating me, I’m just – I don’t – I don’t think your argument carries water.
MR. ROCKIND: Well, let me – let me – well, let me –
THE COURT: So far, any way.
MR. ROCKIND: Well, let me just sort of kind of explain how this all ties in here. The – the records that have been provided were assembled. They were – this Excel spreadsheet was assembled by Snapchat. It was created with – when Mr. – when Mr. Remington was actually a suspect or target of the investigation. This was the – the receipt of it, the creation of it and the receipt of it were actually created and it was received in anticipation of litigation. And I want to compare the two things that we’re talking about. Let’s use your example of – of information or records of the Register of Deeds or medical records. So, if we’ve got – let’s just use the medical record example. We’ve got nurses that make vital entries. Those entries into – into records related to patients, they have an independent basis of existence. They exist standing alone of whether or not there is litigation or whether there’s a suspect. And if I want to get those records those – that date is created by a nurse or by someone at the hospital and it’s entered into a medical record and it’s – and it’s saved in a medical record and it sits there until someone – if someone actually seeks it. The nurse that took the vitals actually knows what the vitals were and relies upon those vitals as a part of their actual day-to-day responsibilities. And if I wanted to do a – an analysis some time later and I wanted to seek out all of the records, so I wanted to know how this nurse did her job on a particular day, for example, there are two ways to go about it. One way would be to – to send a subpoena or a search warrant to the hospital and get all of that nurse’s records for that day. And then what I could do is go through each individual record, which would be business records because those – they have an independent basis for existence and I could literally then take each individual piece and then I could make my own spreadsheet and attempt to present that to the Court.
THE COURT: But I – you’re not convincing me there is any difference. These were not Snapchat
MR. ROCKIND: Well –
THE COURT: Let me finish. Snapchat is not saving these images or what have you, what we would call them, documents or Snaps or stories or whatever they are, for the purposes of litigation. They were collected after the request, but they were not stored for litigation –
MR. ROCKIND: These are – but these are –
THE COURT: - purposes.
MR. ROCKIND: No, but Judge, but that’s – this goes back to the point I was trying to make. One, they have an issue with storage, because they claim that the default, which I’ve provided the Court is – is deletion. Two, they have an issue with – they have an issue – so their – their default is deletion. They concede in their law enforcement guide that they have – that they delete records and that they are deleted as a matter of course. Their transparency rate in terms of record retention and record retrieval is 87 percent, which means that unlike the – and then these – this data is assembled, so when people actually enter in – date into Snapchat they actually have – they enter into a chat. The chat is then on a screen. The information is then sent to another phone. What’s happened here is that Snapchat has – because they’re in anticipation of litigation and because Mr. Remington was a suspect, Snapchat has assembled the data. It would be similar to rather than giving me all the medical records with the individual nurse entries that have their own existence, that – that have their own independent basis for existence, it would be like me going to the hospital and saying, “Don’t just – don’t give me all the medical records. I want you to go together and I want you to assemble a chart with this nurse’s name, with this date, with the patient’s name and the vital – and – and I want you to send me a chart. I don’t want all the individual records.” And here’s the difference: that would not be – that – that chart that they would send me, that Excel spreadsheet that they would send me, that’s actually not the data. That’s not what is stored. That’s not the data that – that’s – that is stored quote/unquote as part of its – its everyday business. That would be stuff that is someone’s interpretation or someone’s recitation and their condensation of it into a – a chart. And – and were the Court to – the reason how this all kind of comes together –
THE COURT: That’s purely speculative on your part on at this point, Mr. Rockind.
MR. ROCKIND: Well – okay. Then I’m going to propose this. I would like before the Court concludes the preliminary examination I would like your Honor to order or enter an order that a representative of – from Snapchat come to court.
THE COURT: Why would I do that?
MR. ROCKIND: Because the only way for the defense in this case, Mr. Lewis and myself on Mr. Remington’s behalf in an effort to actually confront the evidence and to get past the quote speculation unquote that your Honor suggests is at the root of my argument, is to have somebody from Snapchat come to court and – and explain. And explain that it is or it’s not. And here is the problem: Snapchat won’t provide an expert. They say so in their law enforcement guide. They will not provide someone to come to court.
THE COURT: Well, you have subpoena powers to this hearing. Why didn’t you subpoena someone if you felt that the – they’re – the prosecutor is telling me that they’re satisfied with their evidence that they want to admit. Right? So now we’re at admissibility. If I admit that evidence and then you want to challenge its effectiveness, what it means, what its weight. That’s for you to do, not her, right?
MR. ROCKIND: Judge –
THE COURT: She has to prove her case, right?
MR. ROCKIND: Yeah, but it –
THE COURT: At this level?
MR. ROCKIND: This is – this is – this is an issue of – this is an issue of admissibility, not an issue of weight. Because now we’re talking about whether or not – was this document created in anticipation of litigation in response to a search warrant –
THE COURT: You’re – what you’ve now speculated is – now you’ve not only said it was created in anticipation of litigation, but that someone interpreted it and thereby – and by creating a spreadsheet, that there was some level of interpretation there to take raw data and put it into a spreadsheet. That I don’t –
MR. ROCKIND: What - your Honor –
THE COURT: I don’t see any – I don’t see anything you’ve told me that leads me to believe that beyond pure speculation.
MR. ROCKIND: Well, I gave you the – the reasoning why. I’m not – your Honor, this is a – the Snapchat Law Enforcement Guide, one says that the only people that can actually seek data from Snapchat are – are law enforcement agents. They don’t even – they actually say users can’t. There is actually nothing other than law enforcement guide or law enforcement access, search warrants and – and the like for Snapchat. And they specifically say in their guide that they will not provide testimony. So Mr. Remington, through Mr. Lewis and I, we can’t even we don’t even have the ability-it’s completely one-sided to confront the evidence. Now, when I
THE COURT: Well, I imagine that – isn’t this – I don’t do Snapchat, but isn’t there some sort of user agreement that a person accepts when they download it? Isn’t all this in there?
MR. ROCKIND: I don’t have an answer for that, your Honor.
THE COURT: Okay.
MR. ROCKIND: So – the –
THE COURT: Do you have any other objections?
MR. ROCKIND: The other –
THE COURT: Do you have any other objections to its admissibility?
MR. ROCKIND: I do. I do. And where I – where I can make an offer of proof to the court, because we haven’t gotten to the actual document, for the Court to actually see the – the Snaps that the State purportedly wants to introduce, there are characters in these Snaps that you – your Honor, were you to look at it, again under 104(B) and 1101(A) your Honor would see that these are not characters. It’s clear that someone just – somehow, someone – a person, a program took data from another source and attempted to put it into this table to create – these are not individual Snaps that were given to us one-by-one, this is a table that was assembled for purposes of complying with the search warrant. And there’s date in here that is not – clearly is not type. It is – there’s – there is ones that are even absent. They’re blank. I mean, could show you the first page of mine, they’re entirely blank, which means that they’re not reliable. So, the last thing I wanted to point out is this case that I think is – is very much on point and I certainly – unfortunately my success rate with the – the Court, despite my effort is – it’s a bit low. This is a – a case that specifically addresses – United States versus Brown. It is a Third Circuit case, so I know that it’s not binding on the Court, but it is pretty persuasive and it makes a pretty compelling argument as to why these are not business records and I’m going to – this addresses the issue of business records and self-authentication. And in this case, your Honor, the Brown case which is a Third Circuit case that dealt with an attempt to admit Facebook records and the – the government attempted to or did admit these as self-authenticating and they were Facebook chat conversations. And if I could draw your – your Honor’s attention to – and the reason why is that this Court explains, I think, better than I ever could or – or anybody could, why the – the content of the chat communications are not part – are not covered by the business record. And it says on page eight of 23, “Versus with non-digital records we assess that 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 902(11) of the Federal Rules of Evidence.” And then you go on to page nine in the middle and it says, “The government’s contention that it authenticated the Facebook chat logs by way of 902 under which extrinsic evidence is not required for certain documents that they are sufficient indicia of the liability as to be self- authenticating. Specifically the government relies on Rule 902(11), which provides that records of a regularly conducted activity had fallen to the hearsay exception under Rule 803(6), more commonly known as the business records exception and may be authenticated by way of certificate from the records custodian as long as a proponent of the evidence gives the adverse party reasonable notice and makes the record and certificate available for inspection in advance of trial” and it cites the rule. “The viability of the Government’s position turns on whether Facebook chat logs are the kind 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.” They then discuss the issue of relevance. It – we’re not – we’re not even at that point here, so skipping ahead to page 11 of 23, which is the first full paragraph, “The Government’s theory of self-authentication, which is identical to the one that the State is advancing here, 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.” I’m going to skip down if I can, your Honor, but it says, “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 accuracy of only certain aspects of the communications exchanged over that platform. That is confirmation that the depicted communications took place between certain Facebook accounts on particular dates or particular times. There is no more sufficient” – excuse me, let me say it again. “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.” And then they cite to a case. “Communications content, such as the contents of letters, phone calls, and emails are not directed to a business but are simply sent via that business” was the case that - example the Court gave. “We held that the District Court erred in admitting bank records as business records under 803(6), even though the records verified the dates and amounts and certain deposits and receipts because signification other portions of these documents have not been independently verified and the records custodian 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.’ If the Government here had sought to authenticate only the time stamps 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).” Then I skip – I’m going to go forward, “It suffices for us to conclude that considered in their entirely the Facebook records are not business records under 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.” In essence, what they’re saying, your Honor is that the content of the chats is not something that – that Snapchat – in that case Facebook, in this case Snapchat is actually going through – they aren’t relying on it. It’s not part of – they’re not verifying it, they’re not comparing the – the information contained in the Snap –
THE COURT: Well, first of all, I’m trying to skim Browne.
MR. ROCKIND: I’m sorry.
THE COURT: It’s difficult for me to do these cases – to look at these cases and analyze them on the fly. However, in a – in a brief review of Browne it appears to me that what the Browne court is saying is that absent evidence that the author of the social media conversations was who it was purported to be, but the records themselves, the – the actual text could be authenticated, but not who did it necessarily just based upon the custodians –
MR. ROCKIND: Your Honor –
THE COURT: And I’m reading here –
MR. ROCKIND: Yeah, I’m sorry, the case actually says – I know I’m giving it to you on the fly, but the case says a little bit more than that. The case says that they can’t be verified as business records and self- authenticated as business records because what Facebook in that case is – all that Facebook is – is doing and in this case Snapchat, they rely on the account names, they account on the metadata of the sending and receiving. They rely on the fact that they’re sent and received on this particular day. But nobody is going through –
THE COURT: I – I’m reading on this, it says, “If the Government” – and this is page, what – it’s difficult form the copy – 12 –
MR. ROCKIND: The – the bottom, your Honor.
THE COURT: - 12 of 23.
MR. ROCKIND: It’s probably the bottom.
THE COURT: “If the Government here had sought to authenticate only the timestamps on the Facebook chat”
MR. ROCKIND: Yes.
THE COURT: “The fact that the chats took place between particular accounts and similarly technical information in the course of regularly conducted activity, the records might be more readily analogized to bank records or phone records” –
MR. ROCKIND: Right.
THE COURT: - “conventionally authenticated under 902(11).” So, the fact that –
MR. ROCKIND: The content –
THE COURT: - they existed, but not who did them. In other words, the content – and that’s what the prosecutor so far –
MR. ROCKIND: The content’s inadmissible. The – what that case is saying is what they tried to do in that case was to admit as business records, they tried to admit the actual chat and text conversations and to say that because these were part of a business – a quote/unquote record provided by Facebook, that not just the times and the accounts and the metadata, but the actual content, what was said, was that was admissible. That’s the – the – the – and what – what that court says is that it’s not.
MS. HAND: Your Honor, can I chime in?
THE COURT: Okay, yep. Go ahead.
MS. HAND: Thank you. Even if you took Mr. Rockind’s argument at – to be true, which I – and I don’t believe it is – A, as he indicated, the Browne case is not binding on this Court. B, it – if you wanted to follow the Browne case reasoning and I haven’t read it yet because even though I provided this notice months ago, no one indicated they were going to have an issue with it. But, that’s fine. Even if you – even if you took the wording that he’s just relying on that you could take the metadata and the dates and the times and that – the receiver and sender to be true and that you shouldn’t – that the content of the conversation couldn’t be considered to be a business record. Then the content of the conversation, your Honor, is admissible under 803(B)(4) – I’m sorry, 804(B)(3) because these are statements of the defendant that are against the defendant’ interests. They are statements by a party who is not taking the stand, an opposing party that I am offering into evidence and the statements of the other individuals in the conversations themselves, they are being admitted to give light to the response and the communications between the other user and the defendant. So, even in the light most favorable to him, that for somehow the only information that is quote acceptable under a business record, time, date, user, sender, the conversation themselves is still admissible under the other rule of evidence and that is under 804(B)(3). These are akin to text messages that are – are admitted in – in court on a daily basis relative to the user and sender when the – one of the participants in a conversation is the defendant. So, you – you don’t – I mean you can – I think his argument is incorrect, but even if you found that the business portion of it didn’t pertain to the content, the content still comes in under 804(B)(3).
MR. ROCKIND: Now here – here’s the problem with that. The problem with that is so – now we’re talking about 804(B)(3), they want to actually admit, apparently, they want to – so let’s follow that through. So they want to claim –
MS. HAND: I’m just giving an alternative.
MR. ROCKIND: - that there is a – right, but they want to say there’s a declarant who is unavailable and I presume they want to say the declarant who is unavailable is – is Mr. – Mr. Remington and they want to say because he’s unavailable that his statements, which are quote against interests could be – it would be admissible at the proceeding, if that’s the analysis that I – that the prosecutor is making, which goes back to the point that I was trying to make earlier and I – I don’t want to keep – I don’t want to rehash it, but this all ties together. One, they can’t establish – the relevance. They can’t establish that – that Mr. Remington actually is the one that made these entries or made these chats. Two, if they’re going to try to –
THE COURT: That’s different from relevance.
MR. ROCKIND: I – if they’re going to try to admit that they’re – well, if he didn’t make them they’re not relevant. Can we agree with that? I mean –
THE COURT: No, they – someone could have made – anything can be relevant if it moves the needle one way or the other. It doesn’t – he doesn’t have to make it or not make it for it to be relevant potentially.
MR. ROCKIND: Okay, it – putting aside the issue, I’ll accept the friendly amendment to the argument that I was making that is that it – putting side - if he – they – if he didn’t make them then they aren’t 804(B)(3). That’s number one. So –
THE COURT: That’s probably true.
MR. ROCKIND: So, okay. So they can’t even establish that he made them.
THE COURT: Let me ask you – let me ask you this. Now, I understand – my limited understanding of Snapchat is that sometimes there are pictures, for example. Now, let’s say there is a picture of the defendant. Would that weight on whether or not he authored it?
MR. ROCKIND: Well, you’ve got two different things –
THE COURT: I mean, could there be other facts that circumstantially would authenticate –
MR. ROCKIND: Pictures – their pictures are different then the way that Snapchat works, the – the way I understand this Snapchat to – to work, is that there are – there are pictures that can be posted in one-on-one chats. There can be a story that one posts and then people can response to it and there can be conversations that go on back and forth. There’s a lot of variations of this. But what’s being admitted here is – again, your Honor is not getting those. If you – have you ever used Snapchat, your Honor?
THE COURT: I have not.
MR. ROCKIND: So, if you and I were to just create, you know, a – a test Snapchat account – an account and we were to do it, it would have a certain look to it. The look of it would be your picture, it would be your account with your color and your – your emoji, mine. I would –
MS. HAND: Well, Judge, I – I’m going to –
MR. ROCKIND: Let me just –
MS. HAND: I mean, no – no offense to Mr. Rockind that he’s like holding himself out to be a Snapchat expert.
MR. ROCKIND: No, I’m not.
MS. HAND: Well, he –
MR. ROCKIND: I’m not, but somebody should be if we’re going to actually claim that – that this – that these Snaps – this is the point.
MS. HAND: But Judge this again goes to the – to the –
THE COURT: I’m sorry, go ahead.
MS. HAND: It goes to the weight and not the admissibility, Judge. He’s saying this is no different than us having to prove that the holder of a cell phone is the person – or the person making the text messages is the account holder of the phone and that can be shown, Judge, by the contents itself under the authentication rules and in order to get to that the Court can say, “Okay, I’m admitting these records, but guess what? I find that there is nothing in these records that shows that the defendant was the person sending or receiving the - the chats,” which the Court, after you look at it, there is no way it’s going to happen.
THE COURT: He – his argument is who is the author, is it proven by this. That’s different. I mean, the same as with an email, you don’t necessarily know that the email –
MR. ROCKIND: In part.
THE COURT: - was sent by so and so –-
MR. ROCKIND: But in part it is and then the other issue that I have, which I was trying to share with the Court, that because Snapchat has – admits in the documetns I gave you, this is all part of 104(B) and under – 1101(A), which is evidence – the rules of evidence are suspended to address the admissibility of evidence that because Snapchat concedes that its default is to delete, that it doesn’t save date and it only has an 87 percent overall retrieval rate when – when date is requested and by way of offer of proof when you take a look at these you’ll see that there are figures, there are symbols, there’s absences, there’s information that is absent that it is not – one – it’s not sufficiently reliable to admit it as a business record. It’s not sufficiently trustworthy as a business record, but to then address the prosecutor’s argument about use – authentic – these being authenticated as or admissible as Mr. Remington’s statements, then your Honor we have an issue with that. You’re claiming that these are his statements and when you take a look at them you’ll see that there are clearly errors, omissions and because there are deletions they can’t then come to court and say that, “Well, Snapchat deletes the stuff.” There are entries that are – are missing. There’s configurations that don’t make sense. There’s – and what I would suggest to the Court is that you can’t then say that these are accurate statements that can be attributed to the accused. If we’re going to admit his statements they should be his statements. And there’s – again, what – I feel in a way that there’s a shifting of the burden because as you – you know, it’s so easy for someone to make the – the argument in response to an attempt to exclude evidence that the data is – that it goes to the – the weight and not admissibility. This is an admissibility issue. These records have to be – have to have sufficient indicia of trustworthiness and reliability. For the Court to look at these, you’ll see that they don’t, that they don’t match up with what’s on the – the hard copy does not match up with what’s on the disk and that there are configurations and – and you can’t even – there are omissions, there are absences, because Snapchat concedes that they delete certain entries, that they can’t even guarantee that these are all the communications. It doesn’t go to weight, it goes to admissibility. They can’t say that these are trustworthy and reliable.
THE COURT: Okay. All right, thank you. I’ve carefully listened and I’ve tried to give you as much leeway as I can to make all the arguments that you want. I don’t find that any of them are persuasive with regard to the threshold for admissibility, so the – the records are admitted.
MS. HAND: Thank you, your Honor.
BY MS. HAND:
MS. HAND: When you had the opportunity to sort of review the records sent to you by Snapchat you said part of those were videos?
DETECTIVE BALOG: Yes.
MS. HAND: And did you have the opportunity to review those videos?
DETECTIVE BALOG: Yes, I did.
MS. HAND: And you indicated that you were present in the home on – at 23132 Meadowbrook, correct?
DETECTIVE BALOG: Correct.
MS. HAND: And the videos that you observed relative to the evening prior to the morning that you arrived?
DETECTIVE BALOG: Yes.
MS. HAND: Were those videos – did they depict the house that – could you tell that they were taken in the house that you were in that morning?
DETECTIVE BALOG: I did, yes.
MS. HAND: Okay and were you able to identify the voices and/or people on those videos?
DETECTIVE BALOG: Yes.
MS. HAND: We’ll start with people. Who were you able to physically observe on the video as being people?
DETECTIVE BALOG: The victim, Denis Preka; the homeowner, Paul Wiedmaier.
MS. HAND: Were you able to see other –
MR. ROCKIND: Judge, I’m just gonna – again, I don’t mean to keep doing it, but in the absence of calling the two young men who were there who could probably identify the individuals there, People versus Nolan. The case is 2017 Mich App, 1792 and it – it prohibits someone in the detective’s position from attempting to identify in a video the – individuals in the video absent a more historical background with the –
THE COURT: I've already heard the detective testify that he met these people. He talked with them for hours. You’re saying that there’s a case that tells that he can't identify them on a video after that?
MR. ROCKIND: I –
THE COURT: What’s the case exactly? Can you cite it for me?
MR. ROCKIND: Yeah, People versus Nolan, 2017 Mich App Lexis 1792, your Honor.
THE COURT: I’m sorry, the last part?
MR. ROCKIND: Lexis 1792.
THE COURT: 1792? And that stands for the proposition that –
MR. ROCKIND: So we agree that Sergeant Ford’s testimony referencing defendant as the person depicted in the surveillance video impermissibly invaded the province of the Trier of fact. The issue of whether defendant in the courtroom was the person depicted in the surveillance photo is a determination improperly left to the jury and there is no indication on the record nor is there any argument that this sergeant was in any better position that the Trier of fact to make the identification.
THE COURT: Okay, but we’re here for preliminary examination, right?
MR. ROCKIND: Yes, your Honor.
THE COURT: Okay, overruled.
BY MS. HAND:
MS. HAND: We – and you indicated that you were able to identify the voices on the video?
DETECTIVE BALOG: Yes.
MS. HAND: Okay. I’m going – the video that you got emailed to you, do you know what a filter is?
DETECTIVE BALOG: Yes, I do.
MS. HAND: Okay. So – and you had the opportunity to look through the Snapchat records themselves?
DETECTIVE BALOG: Correct.
MS. HAND: When you look at the Snapchat records on the thumb drive that you provided, does the filter lay on top of the video or is it a separate – help me out here – a line on the video? On the – on the records?
DETECTIVE BALOG: On the records itself it is a separate entry.
MS. HAND: Okay.
DETECTIVE BALOG: The video – the - some of the filters are overlaid onto the video itself. That’s the way that Snap does the – the overlays.
MS. HAND: Okay.
DETECTIVE BALOG: So the –
MS. HAND: So if I said --
THE COURT: I don’t know what a filter is. What’s a filter?
DETECTIVE BALOG: It would be if like if somebody wanted to put extra things onto a photograph. Rabbit ears is on Snapchat or statements or texting. Overlays.
THE COURT: I’m sorry, go ahead.
MS. HAND: Thank you. And thank – thanks, Judge, I learned that myself.
BY MS. HAND:
MS. HAND: So – all right, so when we look at the actual admission, which is People’s exhibit number four, the overlay will be – do you know if it’s going to be the one under or the one above the video, if you recall?
DETECTIVE BALOG: I don’t recall.
MS. HAND: May I publish the – some of the videos to the Court, your Honor?
THE COURT: Sure.
MS. HAND: Is it showing up there?
THE COURT: And this is exhibit – which exhibit?
MS. HAND: Four.
THE COURT: So exhibit four is admitted over strenuous objection by Mr. Rockind.
MS. HAND: It’s up? Okay.
THE COURT: Can you see, Ms. Hand?
MS. HAND: I can see it on my computer.
THE COURT: Okay.
MS. HAND: So – and, Judge, just for the Court’s knowledge as well as defense counsel, so that I didn’t have to make the Court watch me try to find these videos I did – I moved some of them to this file over here called Remington so that the Court – so that we didn’t have to search from the entire –
THE COURT: Can you see, Mr. Rockind?
MR. ROCKIND: I can, your Honor.
MS. HAND: Oh, sorry. (At 3:01 p.m., video played)
BY MS. HAND:
MS. HAND: Can you identify the person in that video?
DETECTIVE BALOG: That was the victim, Denis Preka.
MS. HAND: Okay and is – can you tell the Court what it’s saying now?
DETECTIVE BALOG: This is a – the overlay or a filter.
MS. HAND: Okay, is the Court able to read it from the Court’s position?
THE COURT: Bear with me for a moment. I can read it.
MR. ROCKIND: Can you just read that into the record so we – because I know there is no video of the –
THE COURT: Sure, would you mind reading it, Ms. Hand?
MS. HAND: Sure. “He fucking know how ta,” T-A, “srunit,” S-R-U-N-I-T, “Going straight cross-eyed up in this bitch. Game over. Time to sleep.” And at the upper left-hand corner there appears to be some hearts with smiley faces.
THE COURT: Okay, that seems correct.
MR. ROCKIND: Thank you, your Honor.
THE COURT: You're welcome. Thank you. (At 3:03 p.m., video played)
BY MS. HAND:
MS. HAND: Can you tell from – who’s saying, “Keep your eyes straight, dammit?”
DETECTIVE BALOG: Nick Remington.
MS. HAND: Okay. And that chair that the victim is rocking in, is that a chair located inside this house?
DETECTIVE BALOG: Yes, it is.
MS. HAND: Can you tell whose voice that was?
DETECTIVE BALOG: It sounds like Nick Remington, yes.
MS. HAND: And what is that that we’re seeing?
DETECTIVE BALOG: It’s another overlay, another filter.
MS. HAND: Your Honor, for the record it indicates, “I just want him to stop being cross-eyed. I spoke to Jesus. He said he – he said he wanted my guardian angels.” And then underneath that it says, “Wave check” and at the top it looks like a – a play button.
THE COURT: That sounds correct. (At 3:04 p.m., video played)
BY MS. HAND:
MS. HAND: And could you tell whose voice that is?
DETECTIVE BALOG: Yes, Nick Remington.
DETECTIVE BALOG: Again, could you tell the voice?
DETECTIVE BALOG: The loudest voice, Nick Remington, yes.
MS. HAND: Okay, who is that person walking behind the victim?
DETECTIVE BALOG: That is the homeowner’s son, Paul Wiedmaier.
MS. HAND: And when the, “I’ll punch you in the,” excuse my French, “fucking jaw,” who was saying that?
DETECTIVE BALOG: That’s Paul.
MS. HAND: Okay could you tell whose voice that one was?
DETECTIVE BALOG: Yes, Nick Remington.
MS. HAND: All right and this is what?
DETECTIVE BALOG: Again, it’s a filter and an overlay.
MS. HAND: And, Judge, this says, “We been taking turns cause I say it hydrates him. Who else is up RN?”
BY MS. HAND:
MS. HAND: All right, and this is just a photo, correct?
DETECTIVE BALOG: Correct.
MS. HAND: All right.
MS. HAND: And, Judge, for the record, the photo says – and who is pictured in the photo?
DETECTIVE BALOG: That is the victim, Denis Preka.
MS. HAND: All right and it says, “Ding, ding, ding. It’s watering time. Novi, Tuesday, 1:50 a.m.”
BY MS. HAND:
MS. HAND: And then there is an emoji on there, right?
DETECTIVE BALOG: Correct.
MS. HAND: Or I guess it’s a Bitmoji, right?
DETECTIVE BALOG: I believe so.
MS. HAND: Okay. Did you see that – this Bitmoji on other Snapchat Pictures?
DETECTIVE BALOG: I – I don’t recall.
MS. HAND: Okay, fair enough. Can you tell the laugh on that one?
DETECTIVE BALOG: I've never heard him laugh, but again –
MR. ROCKIND: I’m going to object to any attempt to characterize –
THE COURT: Sustained.
MS. HAND: Okay.
BY MS. HAND:
MS. HAND: The location of the victim at that point, could you tell where in the house the victim as locate with the coffee mug?
DETECTIVE BALOG: Yes, it appeared to be the exact spot where I found him in the morning.
MS. HAND: When you received the videos via email, were they – did they appear to be in sequence time wise?
DETECTIVE BALOG: I don’t believe they were in sequence or timeline.
MS. HAND: Okay. Did you notice when you watched the videos as a whole – have you ever laid them all out and watched them as a whole?
DETECTIVE BALOG: Individually?
MS. HAND: Yes. Individually but all in – simultaneously, like one right after the other?
DETECTIVE BALOG: The original videos, yes. I have don’t that, correct.
MS. HAND: Okay, did you notice a progression of the clothing of the victim during the course of the timeline?
DETECTIVE BALOG: Yes, I did.
MS. HAND: And what was that?
DETECTIVE BALOG: Started off fully clothed and by the end he was stripped down to just, I believe, a T-shirt and jeans.
MS. HAND: Okay, when you say fully clothed initially –
DETECTIVE BALOG: Jacket, I believe, he had – he had a jacket on.
MS. HAND: Okay.
DETECTIVE BALOG: Socks.
MS. HAND: All right. Did the – did the victim appear to have more than one shirt on as the night went by?
DETECTIVE BALOG: Yes, I believe he did, yes.
MS. HAND: Okay. (At 3:08 p.m., video played)
BY MS. HAND:
MS. HAND: And can you see what that says? “This man” –
DETECTIVE BALOG: Yes, “Wins the Oscar” -- Q “For best drama”?
DETECTIVE BALOG: “For best drama”, yes.
MS. HAND: Is that another overlay?
DETECTIVE BALOG: It is, correct.
MS. HAND: And do you see the word underneath it? Insomnia?
DETECTIVE BALOG: Insomnia, okay. (At 3:09 p.m., video played)
MS. HAND: Okay, Judge, some of these are duplicates because they show up more than once on the disk.
BY MS. HAND:
MS. HAND: Okay, so is this just another picture?
DETECTIVE BALOG: It’s another picture, yes, of the victim, Denis Preka.
MS. HAND: Judge, for the record, it indicates, “He ripped himself a new vagina. Judgment day.”
BY MS. HAND:
MS. HAND: And do you see the – the hand here with the water bottle?
DETECTIVE BALOG: Yes.
MS. HAND: All right. Are you – do you recall whose hand that would be?
DETECTIVE BALOG: I believe that’s Paul. He seemed to be wearing the same flannel shirt.
MS. HAND: And the same Adidas?
DETECTIVE BALOG: Correct.
MS. HAND: Okay. And then this also has a Bitmoji over it?
DETECTIVE BALOG: Yes.
MS. HAND: Okay. Can you tell what room of the house at this point the victim is laying out?
DETECTIVE BALOG: I believe that’s the foyer area.
MS. HAND: Okay. Did the foyer have these rugs in it?
DETECTIVE BALOG: The foyer did have some rugs, correct.
MS. HAND: Okay. (At 3:10 p.m., video played)
BY MS. HAND:
MS. HAND: Could you tell who was saying that?
DETECTIVE BALOG: Yes, Nick Remington. (At 3:10 p.m., video played)
BY MS. HAND:
MS. HAND: Was the bucket at that location when you found the decedent?
DETECTIVE BALOG: Not when I saw him, no. I don’t believe.
MS. HAND: Do you recall – did – was there a bucket in the foyer that you recall?
DETECTIVE BALOG: I don’t recall offhand. And I’d to reflect the photographs.
MS. HAND: Okay, you said that the – the decedent had vomit on his face?
DETECTIVE BALOG: Appeared to be some vomit.
MS. HAND: Okay.
DETECTIVE BALOG: On the left side.
MS. HAND: Did you find any buckets with vomit in the house?
DETECTIVE BALOG: I didn’t observe any, no.
MS. HAND: Okay. (At 3:11 p.m., video played)
BY MS. HAND:
MS. HAND: Do – where were they standing in that – that video?
DETECTIVE BALOG: I believe that’s right in the foyer area.
MS. HAND: Okay, when you come through the foyer what room of the house do you go into?
DETECTIVE BALOG: As – as you enter the front foyer of the home to the left would be like a living room sitting area and if you walk straight you would go right into the kitchen.
MS. HAND: Okay.
DETECTIVE BALOG: And to the right would be another living/family room area.
(At 3:12 p.m., two videos played)
MS. HAND: All right. And I’m sorry, Judge, there is a couple more I do want the Court to see.
BY MS. HAND:
MS. HAND: Detective, do you recall a video where they’re actually pouring water on – on the victim?
DETECTIVE BALOG: Yes.
MS. HAND: If I could ask defense counsel, is there an objection to me playing the disk that I gave you that shows the videos in sequence that came from this?
MR. ROCKIND: If I – so – I guess we can object to relevance, but is – is the – is the – is this the sequence that they were provided to the detective originally? Is that the sequence that he was given them originally or –
MR. ROCKIND: What I’m trying to figure out is –
MS. HAND: I can ask the detective.
BY MS. HAND:
MS. HAND: So, the – the tape that you gave us just has Snapchat videos on it. Did – is that the one you got via email?
DETECTIVE BALOG: That was the one that was provided to Sergeant –
MS. HAND: Okay.
DETECTIVE BALOG: The files were then provided to me.
MS. HAND: And are all of the videos that were on that one disk that you provided to me and likewise to defense counsel, are all those videos – did you verify that they are inside of this Snapchat log?
DETECTIVE BALOG: They are in that log, correct.
MS. HAND: Judge, if there’s no objection I’d like to play – I think it’s a little easier for the Court to see the entire picture as opposed to – and they all did come from People’s exhibit three and I could mark it as People’s exhibit five.
MR. ROCKIND: So the objection is to relevance, the relevance of the videos. There is – the charge in the case, as your Honor knows, is delivery of a controlled substance causing death.
THE COURT: Yes.
MR. ROCKIND: And these videos don’t show Mr. Remington in any way providing or delivering the drug to Mr. Preka.
THE COURT: Just so I’m clear, this is a – a compilation of videos done by someone other than law enforcement?
DETECTIVE BALOG: Yes.
THE COURT: Then I think I’d rather go through them one at a time.
MS. HAND: Okay.
THE COURT: So the objection is sustained. Not for relevance but for authenticity.
MS. HAND: Well, Judge, I – I don’t know just – so the – if the defendant – if defense counsel, maybe he won’t stipulate but each of the videos on that disk are on this am – am I – am I –
THE COURT: In other words –
MS. HAND: Well I know. I don’t know –
THE COURT: I – I don’t know if the compilation was manipulated in any way.
MS. HAND: If his objection is relevance –
MR. ROCKIND: Judge, I – I –
MS. HAND: That each of - I know he’s objecting to relevancy, but I don’t think he’s object – I don’t think he’s asserting that –
MR. ROCKIND: My objection is - my objection is relevance. If the Court gets past the relevance objection, which I’m certainly hoping that you don’t, but let’s address that first. The videos are – these are individual snippets of videos that – that your Honor is looking at, one-by-one on this that obviously the People are intending to introduce. We – we object to relevance. So, let – let’s address the relevance argument first if we could and then the Court –
THE COURT: Okay. Why do you think they’re not relevant?
MR. ROCKIND: Because they don’t show Mr. Remington actually – they don’t show Mr. Remington delivering a drug, mention a drug, discuss a drug. They don’t show him actually engage in any act associated with the commission – the alleged commission of a crime.
THE COURT: Okay and what’s your response, Ms. Hand?
MS. HAND: Judge, I – I have to show that the defendant delivered the controlled substance methylene dioxymethamphetamine so clearly the actions of the victim and the way that the victim is acting on the video, as well as the defendant’s presence during the course of the evening leading up to the death of the victim, I don’t know how anything could be more relevant.
MR. ROCKIND: Well, there – there are clearly, as you can see in the video other individuals in the house. There is no testimony as to the – the time of consumption, the method of consumption, method of provision or the individual that provided any drug to Mr. Preka. These videos don’t establish – they don’t in any way, shape or form even under the standard of relevance, which is do they have any tendency to – to make fact and controversy more or less likely? They don’t.
THE COURT: Okay.
MS. HAND: But –
THE COURT: I’m going to find that they’re relevant, but I will say I haven’t seen anything yet other than presence at a scene where someone is clearly intoxicated by something.
MS. HAND: Agreed, you haven’t, Judge. But there – the rest of the logs –
THE COURT: So, they’re admissible, but –
MS. HAND: Okay.
MR. ROCKIND: So I guess if the Court –
THE COURT: Based on pure relevance. In other words, the presence of the defendant at the scene at the time is relevant. It doesn’t prove that he gave him the drugs.
MS. HAND: I agree.
THE COURT: So far I haven’t seen anything like that.
MS. HAND: I agree.
MR. ROCKIND: So I think for exam purposes and for – for expediency, and obviously we have a lot of objections that – to these for a variety of reasons, but without waiving any of those I think for expediency maybe –
THE COURT: To play them –
MR. ROCKIND: You can look at the compilation of them for –
THE COURT: All right. Based on that, for exam purposes only, I’ll take a look at it.
MS. HAND: Thank you. (At 3:17 p.m., video played)
MS. HAND: I have no further questions of this witness, your Honor.
Detective Balog Part 2 Cross Examination by Rockind
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