State v. Pratt

128 A.3d 883, 888-95 (2015)

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Nature of the Case

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Facts

T.B. was twelve years old. D followed T.B. into her bedroom and asked her for a “handjob.” He then asked T.B. to come sit in the living room where he again asked for a handjob. When she refused, he slapped her across the face and on the back of her head and forced her hand down his pants. He then told her that he wanted her to watch a video on his cell phone of a girl giving a man a handjob so that she would know how to do it. D forced her onto a bed, fondled and performed oral sex on her, and forced her to perform oral sex on him. After the incident, T.B. left the house and waited in the farm store across the street until her aunt came home. Later that night, T.B. wrote a letter about the incident and about how she no longer felt safe in her home. The next morning on the bus, she showed the letter to a friend, who encouraged her to tell the school principal. T.B. showed the letter to the vice principal, and the school officials called the police and a Department for Children and Families caseworker. P moved to admit T.B.'s letter under Rule 804a, which allows admission of out-of-court statements made by a child of age twelve years or under if several factors are met. D moved to exclude the testimony of P's expert witness regarding the extraction of data from D's cell phone. The court ruled both the letter and expert testimony admissible. D was found guilty. D appealed. In part, D argues that the court erred in admitting the forensic expert's testimony regarding his use of the Cellebrite software for retrieving the contents of D's cell phone. D's primary claim is that, while the forensic expert had a “general understanding of how the program works, but did not have any understanding of the programming behind the software. contends that the forensic expert's responses were “conclusory”; that he self-tested the program “using other software equally under scrutiny”; and that he read some periodicals about the program and is aware of its capabilities, but has no knowledge of its error rates and believes the program is reliable merely “because it is the most popular program used to examine cell phones and because he was told it was reliable.”