EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, October 2, 2015

Recent Court of Special Appeals of Maryland Case Deals with Authentication & Cell Phone/Tower Issues

In today's post, I will talk about the recent opinion of the Court of Special Appeals of Maryland in Baker v. State, 117 A.3d 676 (Md. 2015). The case discusses a couple of the topics we've been discussing on the Undisclosed Podcast: cell phone/tower evidence and authentication.

In Baker

On July 18, 2013, the victim, A.O. was "prostituting" at the Knights Inn on Belle Road in Cecil County. She testified that the person she worked for, her former boyfriend, set up an advertisement on a website, backpage.com, which listed a "Google account number," "a separate [phone] number that rings to your personal phone."

Sometime after dark, she received a call from a man, whom she later identified as appellant, seeking an encounter with her.

During that encounter, the

Appellant stated that he wanted to engage in oral and vaginal sex without a condom. A.O. told him that she did not do that. Appellant pulled out what appeared to be a police badge and told A.O. that he was a police officer. He said that if she did not do what he told her to do, he was going to arrest her, and he "made [her] write down [her] information like a cop would do." He also informed her that "his supervisor was in a nearby room."

Appellant then physically struck A.O. and forced her to engage in oral and vaginal sex without the use of a condom. At one point during the encounter, appellant appeared to receive a phone call, and he responded to the person on the phone: "Yeah, I'm with her right now, she's scared, but there's not really nothing here I could charge her for, so we will wrap things up.” After appellant left, A.O. was "an  emotional wreck," and she told several girls that she worked with that she had been raped.


At some point in the week following the rape, appellant contacted A.O. again. He told her: "Hey, it's Mike, the cop from the other night, I just want to let you know that don't be out there tonight because they are doing stings again," and he stated that he just wanted to warn her. After this call, A.O. put appellant's phone number in her cell phone under the contact name: "Do not answer." The day after the second phone call, A.O.'s boyfriend arranged for her to meet with a police officer, but A.O. was
still an emotional wreck," and she refused to talk to the officer.

In October 2013, Trooper First Class Alan Flaugher approached A.O. to question her about the rape. Although A.O. was hesitant to talk to Trooper Flaugher because she believed appellant was a police officer, and she "didn't want to talk to another cop about what a cop did to" her, she eventually spoke with Trooper Flaugher. She showed Trooper Flaugher appellant's number on her phone and described how appellant raped her. Trooper Flaugher later showed her a photo array, and A.O. identified a photograph of appellant as the man who raped her. She also identified appellant in court.

At trial, the prosecution called Flaugher to authenticate and discuss call logs, including cell tower pings, for the phone number A.O. ascribed to her rapist. The trial court allowed Flaugher to authenticate the call log and testify regarding the calls made and received; it did not, however, allow Flaugher to testify about the pings.

After he was convicted, the appellant appealed, claiming, inter alia, that the call log was hearsay/ improperly authenticated and that the error in admitting it was prejudicial:

The phone records, and Flaugher's testimony based on them, were incredibly prejudicial to Mr. Baker, and admitting them was not harmless error. Aside from A.O.'s identification, no other evidence connected Mr. Baker to her, and the State relied heavily on the records to link the two of them on the night of the incident. The prosecutor opened his closing statement by saying, "July 18th, 2013, at 8:45 p.m. Michael Baker dialed 1-4-4-3-5-0-2-1-5-9, A[]O[]'s Google number." (T2. 238) He went on to argue that Mr. Baker dialed the number several times that night and had no explanation for it. (T2. 238-39) The prosecutor then used the phone records several times during closing to argue that they confirmed A.O.'s story and that they undercut Mr. Baker's alibi. (T2. 239-40) He returned to the records again at the end of closing and during rebuttal closing. (T2. 241, 257) The phone records were the centerpiece and recurring theme of the State's argument to the jury. Given the weaknesses of the State's case, and its reliance on the phone records, the erroneous introduction of the evidence of the phone calls severely prejudiced Mr. Baker. This Court cannot find the error harmless beyond a reasonable doubt.

The Court of Special Appeals of Maryland agreed, noting that the call log was hearsay: "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." For the log to be admissible, then, it had to be properly authenticated, i.e, established to be what the prosecution claimed it to be. According to the court, this authentication is typically done by

either (1) calling an employee from the phone company, who testifies regarding the process by which call records are generated, that it is the regular practice of the business to make such records, and that they are regularly kept for business records.

The State, however, followed neither of these methods, causing the court to reverse the appellant's conviction, concluding that,

On the record before us, we hold that, in the absence of testimony from the custodian of records, or any certification, the circuit court erred in admitting the call records.



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Would the AT&T RF engineer's testimony concerning cell tower pings satisfy authentication standards if not can they be be challenged. Also, is this another of Urich's cases?

Posted by: JohnCatso | Oct 2, 2015 8:52:38 AM

So does this mean that any phone number mentioned in testimony at trial that was not authenticated by an official record is hearsay? For example, Jen's pager (no official confirmation of number) or incoming calls whose source was not identified? Could this mean all this "evidence" would have been inadmissible after this ruling?

Posted by: cac1031 | Oct 2, 2015 12:38:58 PM

JohnCatso and cac1031: As far as I can tell, there were no authentication problems with the cell phone/tower records in Adnan's case.

Posted by: Colin | Oct 2, 2015 12:54:40 PM

What a coincidence....I was actually thinking about this entire issue in another context just this morning.

Here's what was puzzling me and maybe CM has some insight. The question I was struggling with was the distinction between the authentication of a document and the authentication of the data contained in the document. The business record exception is primarily concerned with authentication of the document as the outcome of a business process, the assumption being that records created in the normal course of business are both reliable and neutral because they were not created with a court case in mind. On the other hand--and this especially comes up in CC cases such as Bullcoming etc.-- we are concerned not about the authenticity of the document itself but the authenticity of the data contained in the document, especially when that data is created with an eye for prosecution.

Does this distinction--whether data is or is not created with a eye to prosecution--actually make any conceptual sense? i don't think it does. It seems to be based in a notion that a person's intention is the crucial factor. But that cuts both ways. It's true enough that a business document is more likely to be neutral in a judicial sense because the person who created it did not do so with a court case in mind but it also likely to be less reliable for exactly the same reason. A cell phone record is primarily an accounting document and account is primarily concerned with money. If the cell record contains erroneous data then the business owner can simply refund money; a person's liberty is not at stake..

In writing this I'm not trying to suggest that the business records exception is ill conceived. Rather, I'm suggesting that the testimony of the custodian of records is a necessary but not sufficient to authenticate the document. Or rather than the custodian can authenticate the document but that is not sufficient to authenticate the data the document contains.

Posted by: Daniel | Oct 2, 2015 1:46:04 PM

So, does that mean that the cellphone testimony in Adnan's case was upto legal standards?

Posted by: S | Oct 2, 2015 1:52:12 PM

Daniel: Thanks for the interesting thoughts. I agree that there are some oddities with the exception (as is the case with many hearsay exceptions).

S: No, the testimony was definitely not up to legal standards.

Posted by: Colin | Oct 2, 2015 1:55:43 PM

Okay, now I'm confused. When I was reading your post, I thought I was reading that all the phone records that were used against Adnan, which was all the State's case against Adnan that wasn't Jay's lies, would be inadmissible and should not have been allowed in. Then you wrote "As far as I can tell, there were no authentication problems with the cell phone/tower records in Adnan's case."

Huh? What am I missing? Are they in or out?

Thanks, Colin, for all your time here. This is confusing stuff for us non-attorneys....

Posted by: Eric Wolff | Oct 2, 2015 5:28:34 PM

Eric Wolff: This is really a "bookmark for future reference" post.

Posted by: Colin | Oct 2, 2015 6:07:37 PM

Did the original ME who performed the autopsy say that there was lividity in the abdomen?

Posted by: doxxmenot | Oct 3, 2015 11:59:59 AM

doxxmenot: The autopsy report states: (1) "Lividity was present and fixed on the anterior surface of the body, except in areas exposed to pressure;" and (2) "Generalized skin slippage was noted and livor mortis was prominently seen on the anterior-upper chest and face."

Given that the abdomen is an anterior surface of the body, the inference is that there was livor mortis on the abdomen but that it wasn't as prominent as the livor mortis on the upper chest and face.

Posted by: Colin | Oct 3, 2015 12:02:38 PM

Hi Colin - could you comment on this post from reddit about the delay for testing DNA (the OP explained the delay was due to combining it with a Brady claim when research is complete, as you've explained before):
[–]xtrialatty 11 points 1 day ago

The problem is that their "one petition" opportunity expired in 2010.
And the Brady claims would never be part of the DNA petition -- a DNA petition is simply a request to get the DNA tested. The next step after a DNA petition with favorable results is for the defense to bring a PCR action, or move to reopen a PCR if there already was one.

IF the DNA had already been tested, and results were kind of favorable to Adnan, but the defense was delaying in bringing the motion to reopen the PCR based on an ongoing investigation -- that argument would have some merit.

But it's NOT an excuse for not bringing the motion to test the DNA in the first place.

There is only ONE good reason to not seek DNA testing, and that's if the the attorney fears that the DNA results will further incriminate the client.

Posted by: Cupcake | Oct 4, 2015 11:44:32 AM

"The problem is that their 'one petition' opportunity expired in 2010."

The "one petition" rule doesn't apply to "new evidence." To take one example, the State has never disclosed the existence of a CrimeStoppers tip that would constitute material exculpatory evidence. This would be new information that could form the basis for a new petition.

Posted by: Colin | Oct 4, 2015 2:29:03 PM

If an attorney, ex or otherwise, offered me legal advice from behind an anonymous username, I would not stake my freedom on that advice. I visited Reddit a few times and was surprised by the number of lawyers, Medical Examiners, cell tower specialists, mobile network specialists, forensic anthropologists and other professionals I found there. Or so they said. But, as there are only so many hours in the day one can devote to reading blogs, I had to choose between all the anonymous attorneys on Reddit or a Professor of Law at a reputable university whose professional credibility is at stake with every comment and interpretation of the law he makes on a blog network he shares with other Professors of Law. Some decisions in life are so easy.

Posted by: FarFarAway | Oct 4, 2015 9:12:41 PM

Daniel: The federal business records exception, at least, allows an opposing party to exclude evidence, even if properly authenticated by a custodian, where the source or circumstances of preparation indicate a lack of trustworthiness. Even if they can’t meet that burden, they can still attack the weight of the evidence after admission based on the reliability of the methods of preparation. I think the hearsay rule in general is more concerned with unreliability based on bias/interest and memory failings than on unreliability stemming from flawed processes of information collecting. Since the latter is much more open to impeachment without cross-examination (with, e.g., expert testimony), the “out-of-court” origins are, perhaps, less of an impediment (though this is open to debate). Other hearsay exceptions seem similarly to address only issues of bias, rather than reliability; excited utterances in the aftermath of stress, as just one example, do not seem likely to produce particularly accurate impressions, but rather only impressions devoid of deliberate artifice.

Posted by: Josh | Oct 5, 2015 8:21:31 AM

Thanks for your response Colin. I understand that the CrimeStoppers tip constitutes new information. However, the second half of the above post suggests that even if the tip turns out to be new Brady information, the petition to test the DNA is quite separate from this. The post suggests that presence or absence of possible Brady information has no influence on any decisions to allow the DNA to be tested in the first place. Is this the case? (and FarFarAway I totally understand your point, hence I'm asking here, as I don't think this precise issue has been addressed here before)

Posted by: Cupcake | Oct 5, 2015 10:20:37 AM

Cupcake: You generally only get one petition for postconviction relief. A DNA petition is an exception. As part of a DNA claim, other claims have and can be included. That's the plan here.

Posted by: Colin | Oct 5, 2015 10:57:06 AM

Sorry to be pedantic, but I’m not sure that’s completely answered the question – it seems to be lumping a few things together. I can understand that IF the ALREADY TESTED DNA came back FAVOURABLE to Adnan, a PCR proceeding would be opened/reopened, and then the Brady material would come into its own. But my (admittedly not-great) understanding is that a PCR proceeding is only opened AFTER the DNA has ALREADY been petitioned to be tested, AND that petition granted, AND then the testing coming back FAVOURABLE. If the testing is unfavourable (which I’m guessing includes inconclusive/no DNA present – correct me if that’s actually classed as favourable) then no post-conviction hearing would be opened, and therefore the Brady stuff CAN’T BE CONSIDERED, and thus the Brady-delay reason becomes irrelevant. I understand delaying if the DNA was tested and came back favourable to Adnan --- but given it hasn’t even been tested yet, delaying makes no sense under this rationale. It seems that gathering all this Brady info, now, before we even know whether a PCR proceeding will be opened based on this hypothesised favourable DNA…. is a lot of work that might not even see the light of day… which must be costly (don’t get me wrong, I find it all fascinating, but I’m not paying for it). Unless I’m understanding this wrong, and the petition to request the testing of the DNA is in and of itself a form of PCR that the Brady stuff can be tacked onto and immediately heard before the testing takes place… but from my quick bit of online reading I haven’t so far found anything that backs this up (I’m sure you’ll tell me otherwise if this is wrong!) http://www.opd.state.md.us/Portals/0/Downloads/CR_MdPostConvictionRules.pdf. Which is it? Thanks in advance for your response. (Sorry for the caps, it wouldn't let me italicise for emphasis)

Posted by: Cupcake | Oct 5, 2015 12:28:50 PM

Colin, this is off this topic, but the comments were full for the previous post regarding Susan's blog entry. My question is, has the diamond pattern that was shown on Hae's shoulders been looked into? Any idea to what that may be from?

Posted by: Penny | Oct 5, 2015 1:02:56 PM

Cupcake: There are a couple of different scenarios. Under one scenario, the Brady information could be helpful to the DNA petition itself. Imagine, for instance, that the 2/1 CrimeStoppers tip was about Jay, not Adnan. In that case, the tip would be hugely helpful to Adnan’s DNA petition because a DNA match to Jay could be argued as evidence of innocence.

Under another scenario, as you say, the Brady information could be helpful to a PCR petition after DNA testing produces a result that is helpful but not unambiguously helpful. Imagine the same scenario as above, with the DNA results pointing to Jay. If Adnan has the CrimeStoppers tip, that’s very helpful to the PCR petition. If Adnan doesn’t have the CrimeStoppers tip, his PCR petition is much weaker.

So, in summation, the Brady material in question can be helpful to both the initial DNA petition and the ensuing PCR petition.

Penny: We’re looking into it. There’s nothing clear at this point.

Posted by: Colin | Oct 5, 2015 1:25:44 PM

@josh: " I think the hearsay rule in general is more concerned with unreliability based on bias/interest and memory failings than on unreliability stemming from flawed processes of information collecting."

Yes but does that distinction continue to make sense in a world that is dominated by computer processes? That's the key question. The business records exception predates the internet age. That's what I mean when I say I'm not really arguing against the BR exception itself but wondering if the changing state of the world means that some of the justifications that buttresses it remain sound.

I don't have an answer but I wonder if we are not putting more faith in the reliability of information collection processes than is actually justified.

Posted by: Daniel | Oct 5, 2015 1:51:28 PM

Daniel: Yeah, that’s an interesting point. I think maybe the best lens with which to view the admissibility of cellphone records and other similar data collection evidence is the general standard for admissibility of scientific and technical expert testimony (whether Frye or Daubert), and not the hearsay rule. I believe that states currently differ on whether expert testimony is required to admit cell records, but in Maryland, under Wilder v. State, such testimony is a prerequisite. Maryland also apparently uses the Frye standard, but it appears that cell-tower evidence is considered widely accepted. Unfortunately, sometimes what is widely accepted is nevertheless unreliable; see the tragic history of hair analysis evidence for just one example.

I’m not actually sure whether expert testimony (and a Frye hearing) was required in Adnan’s case (which predated Wilder). I probably haven’t been following Evidence Prof closely enough.

Posted by: Josh | Oct 7, 2015 7:09:59 AM

Colin, regarding the cell evidence and Abe Waranowitz' new affidavit... Does the hearing allow him to specify what he *would* have testified had he known about the cover letter with the disclaimer? ie Has he found out what that disclaimer actually meant as it pertained to Syed's case/records in 1999? And if so, does that info pack enough punch to make a difference at trial? OR... is he mainly just testifying about the fact that Urick withheld this would-be game changing info (Brady).
Also, does this give Justin Brown and team the opportunity to bring in their own cell experts?
Thanks so much for your time! (sorry I couldn't contain this question to 140 characters).

Posted by: Reagan | Nov 7, 2015 1:31:16 PM

Reagan: Warnowitz will be able to testify about what he would have testified if he had been shown the cover letter with the disclaimed. He will also be able to testify about the meaning of the language in the disclaimer. It is my belief that it does pack enough punch to make a difference.

Also, Justin will be allowed to call his own cell tower expert. I believe that he will likely call Grant, the expert who submitted the affidavit that was included with the most recent filing.

Posted by: Colin | Nov 7, 2015 5:44:31 PM

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