Transcript for:
Digital Forensics in Court Proceedings

This [Applause] This is different. Heat. Heat. [Applause] [Music] [Applause] [Music] [Applause] Hope I didn't get in your way. I kind of lost Yeah, better camera. I'm not sure. Hey there, Karen Reed, trial watchers. You know what? A lot of the trials we cover remind me of that the world is unfortunately very unpredictable. And I'll tell you what, having a great lawyer matters so much. That is where a great partner and sponsor Morgan and Morgan comes in. This is a firm with over a thousand attorneys. You know why? Because they win a lot. In the past few months, Morgan and Morgan secured a $9.3 million verdict for a car crash victim in Florida, a $5.6 million verdict for another car accident victim in Atlanta, and not to mention $1.8 million in Kentucky after insurance offered them a mere $5,000 in that case. And even if you think your case, you know, isn't worth millions of dollars, why not start a claim and fight for what you deserve? Morgan and Morgan makes it so simple. You can start a claim from your phone in just eight clicks. That's it. It can all be done on your phone. So, if you're injured, you can easily start a claim at forthepeople.com/lc live by clicking the link below or scanning the QR code on screen. He all persons have any business before the honorable Emily Keni, justice of the North Superior Court of the County of North. Join, give your attention, you shall be heard. I say to call up Massachusetts. This court is now open. You may be seated. All right. Good morning, council. Good morning, Miss Reed. Good morning, jurors. Good morning. I do have to ask you those same three questions. Were you all four or actually I guess were you all able to follow the instructions and refrain from discussing this case with anyone since we were last here on Friday? Everyone said yes and nodded affirmatively. Were you also able to follow the instructions and refrain from doing any independent research or investigation into this case? Everyone said yes and audited affirmatively. Did anyone happen to see, hear, or read anything about this case since we left on Friday? And were you all careful? Everyone said no or shook their heads. Were you all careful with your social media this weekend? Yes. Thank you very much. All right, Mr. Brennan. Good morning, your honor. Good morning. Call Ian Whiffen. Okay. Approach matters. All right. Just come on out. calls Ian with it. Please pay our clerk and raise your right hand with the evidence you give to the court and jury in the case and I hear you from the truth, the whole truth and nothing but the truth. I do. Good morning, sir. Good morning. May I, your honor? Yes, please. Good morning, sir. Good morning. Would you kindly introduce yourself to the jury? Yes. My name is Ian Whiffin. I'm a digital forensics examiner and decoding product manager for CellBright. You just mentioned Celbrite. Is that where you work? It is. Yes. And you're a forensic examiner. I am. Can you tell us a little bit about Celbrite where you work? Yes. Celbrite uh provides digital forensic solutions uh to customers globally for access and decoding of digital artifacts from devices. Where would you find a digital um system? Is that resigned to a phone or is it all systems? Uh typically Celbrry uh focuses on phones uh or iPads uh but we do have some additional uh devices that we can also interrogate computers uh vehicles things like that. So simply what is Celbrite? Celebrate is a digital intelligence company. Do they use a certain type of software? Do they brand a certain type of software? Yeah, we create our own software uh to access devices and to decode the data that we pull from devices. So essentially does that software help you look into the data in a phone and analyze it? It does. Yes. What is the role of a digital forensic analyst? Uh typically the analyst would take the data that's been extracted from a a device such as a cell phone, process that in software such as a physical analyzer that Cellbrite create uh and use that information to filter to search and to create a report for the investigator that would allow them to see what happened on the device uh at the time being investigated. How long have you been involved in analyzing data, sir? Uh I started my career in digital forensics in 2013. Can you take us back to the beginning of your career and tell us a little bit about how you became involved in learning about analyzing data? Uh certainly. Uh I spent 5 years as a frontline police officer in the UK uh during the 2000s. Uh in 2009, immigrated to Canada and continued policing uh frontline officer in Calgary uh before joining the digital forensics team in 2013. uh pursued several qualifications related to digital forensics and just continued in that role until 2019 uh 2020 when I left uh the police agency and began working for Celbrite. While you were working at the police agency and began your career analyzing data, were there special classes that you took? There were. In order to be a forensics examiner in Canada, you have to take uh a 3-week foundational course uh in Ottawa uh basically covering the basics of digital forensics and then from there other courses are available that uh would focus on things like uh cell phones would focus on uh how to get data from different types of devices and then there's industry uh qualifications that can be sought as well where you can focus on particular types of device or particular types of data. Does software in this field continually change? It does. Uh every time uh an update is released to an application or to an operating system, uh there's the opportunity for the the foundation of that software to change. And from a forensics point of view, you have to re understand uh what has changed. Make sure you understand what is now happening on that device uh and provide that information to the users. As you've progressed through the field, do you continue to take classes? Uh, I've not taken a class now since uh I actually joined Cellbrry and did the the basic foundational courses that Cellbrite offer. But prior to that, I was doing courses uh across the industry. Do you teach courses? Uh I do teach webinars. I don't teach any actual courses. Although some of my research and some of my tools uh are taught to examiners uh in many of the industry uh standard qualifications which users seek. Do you ever write papers about the subject that are published? I do. Uh so I have a blog where I uh publish my research. Sometimes some of those become papers which get peer-reviewed uh and distributed uh in more uh academic channels. So when one of your papers is peer reviewed, can you tell us what that means? Yeah, essentially uh other forensics examiners would read over the uh the paper that I've written, do their own testing, compare their testing uh and research to what I've conducted and make sure that what I've said is consistent with their findings. Uh and presuming that what they find is the same as what I found, then they would uh agree that it's a valid document and it gets shared. Take us now to Celbrite. When you began working at Celbrite, what did you do? Uh when I started there, I was considered the uh senior digital intelligence analyst. Uh my role was to help the developers of the software understand the role of a digital forensics examiner. Uh what an examiner needs from the tool, what an examiner wants to do with the tool and how they want to use it. Uh and then since then I've progressed to the decoding product manager where I can uh manage the uh the backlog of software applications that we support uh decide how we should support those applications and how that information should look to the users. Do you do research? I do still do research. Yes. It's not my primary function within Celbrite. Uh but it's something that I've continued to do uh throughout my career. Have you ever done any programming? Uh yes. Again, I'm not an official programmer with Salright, but I do program uh as well. And I have several tools uh which I've written myself for the last few years since around 2015. Uh tools that I wrote uh to do the things that the vendor tools didn't do and to to offer examiners things that the vendor tools didn't offer. Uh and I continue to maintain those tools as a learning uh opportunity for myself and also because other examiners can make use of these same features. Mr. Mr. Whiff, have you ever testified in courts regarding forensic examination of data? I have. Yes. And can you share a little bit about that? Uh, I've been qualified as an expert in Canada, Australia, the UK, uh, in total around 20 times. I want you to take us now to the Celbrite software. We talked a little bit about it. I don't want to go into too much detail, but can you help us explain how software works like Celebrite software? Yes. So fundamentally when we've got data from a device, it's a series of files, a series of databases, uh property lists or all manner of different uh structured data. The software that we create knows uh where these files exist, knows how to read these files and what the data inside them means and provides uh a a clear view for the user to to view that data. As an example, uh if you were to look at the SMS database on a device, all you would see is a long list of uh messages that don't really have um an easy way to interpret or to read them. Our software takes that information, converts it into uh a conversational view so that as a user you can read the data, you can see who sent what message, what time it was sent. uh we can do decoding and decryption of various different types of security uh to give the user as much information as possible. Is there other software available in addition to celebrate? There is there's multiple uh vendor supply tools uh and multiple tools available that are maintained by users in the community like myself. Does a forensic examiner should they rely simply on the software program or is there more to do other than the program itself? uh the software program is great at finding the data and displaying the data. Uh but I always maintain it's the role of the examiner to actually understand what that data means and provide context and validation for what that data means. Making sure that the end user of the report, whether that's the investigator, a judge or a jury, can understand what that data actually means rather than just taking it at face value from the software. Does the software create a report that you can look at that manages or arranges some of the data that you can see? It does. It just creates a list of all of the results that the uh the examiner wants to include in the report. So, the software can produce a report, but the examiner goes beyond the report and looks into the data itself. The examiner can and should uh go beyond what the program provides. Let's turn now to your involvement in this case. Can you share with us when you first became aware of the data in this case and how that came about? Uh yes, it was actually uh one of the public relations managers at Sbrite who reached out to me uh or to my team uh because he'd heard about this case and about the confusion uh regarding a time stamp uh and requested uh if we could look into it and find out what the confusion was and how we could respond to it. Uh at that point I contacted the uh the investigators to get more details. Did you learn that a consumer had called about a question relative to a report produced by the software? Uh yes, there was both the troopers who had uh requested information about this particular artifact uh and also a uh private forensics examiner uh Richard Green. And when Richard Green reached out to your company, what specifically was the question or issue? Uh he reached out to the tech support team uh asking basically there's a time stamp that doesn't make sense. I need to understand uh what this time stamp means. What is a timestamp? Uh essentially it is the time which is attributed to an artifact. So it it should intentionally be uh when something happened on that device, we would show a time stamp associated to it. Can you tell us what an artifact is? Uh, an artifact would be any piece of data that we pull from that device. So, it could be a text message, it could be a location point, it could be a photograph. So, if I had photographs on my phone, would each photograph be considered an artifact? It would. Yes. Would the date and time I took the photograph be considered an artifact? I'd consider that a property of the artifact. And if I had a phone call or a text message, those would be considered artifacts. Yes. When I look at my phone and I see a call log or a name, does that tell me all the information about that call? Uh, when you look on the phone itself, yes. Uh, no. There's usually a lot more information uh in the background of the phone that's available to the forensics examiner which the user wouldn't necessarily see on the device. And so when you're looking at uh an artifact, a phone call, a text message, whatever it may be, and you see it on a report, um if you want to know more detail where it came from, when it was developed, when it started, is that what a forensic examiner would do to look into the data to try to identify that other information? Uh yes, you can see what other information is available. Uh you can see if there's any information that's been deleted that can be recovered. uh and you can validate the information that's there and make sure that the time stamps are being interpreted correctly uh and that they mean what you think they mean. You told us you got a call from a consumer or a forensic examiner, Richard Green, about a timestamp. Um what type of time stamp for what type of artifact was this time stamp? Uh it was related to an internet query. And so there was an internet query on a phone that had a time stamp and this gentleman, Mr. Green had a question about it. He did. He wanted to know how accurate the time stamp was in relation to when the internet query was made. Did you look into the question, the query that was made? Uh in response to Richard Green at that time, I didn't. I wasn't aware uh that Richard Green had made this request until several months later. Uh but it was an almost identical question that had been asked by uh the troopers here. Uh and that's the the question I was able to look into and to answer. And can you share with us what was the issue? What was the question that you were actually looking into? Uh the question was uh related to a time stamp of 22740 uh a.m. uh and an internet query that appeared to have occurred at that time. Uh there was no other information on the device that suggested that that internet query had occurred at that time. Uh so we wanted to know how relevant is that timestamp to when the query happened. Uh so I was able to take test devices recreate test data to to find out exactly what this timestamp meant. Uh and discovered that it was actually the timestamp that the tab within the browser was brought into focus and had no relevance to when the actual uh web query had been made. And so after you looked into the issue and came to a determination or opinion, did you reach back out to Mr. Green? Uh, eventually yes, I did. Uh, after I provided information to the troopers, uh, I wrote a blog that covered this information. Uh, because there was another examiner in Europe who had a very similar question and I I realized that this is a relatively common point of confusion. Uh and then eventually I uh reached out to Richard Green offering to speak to him about this issue and clear up any confusion uh but never received a response. So to summarize there was an inquiry about a phone that made a Google or a internet search and the question is what time was that search made? Correct. And relative to that inquiry, there was a time stamp on some of the data that said 2:27 a.m. Correct. Your honor, sustained. So, at some point, did you have an opportunity to forensically examine a telephone that was attributed to a person by the name of Jennifer McCabe? Uh, I did have the opportunity to look at the data that was extracted from that device. I never saw the device itself. Putting that aside for a second. Secondly, were you asked to look at any other phone to examine data in this case aside from the phone attributed to Jennifer McCabe? Uh, yes. I was also sent the extraction of data from John O'Keefe's phone. Did you um look through the data and analyze some of the data in John O'Keefe's phone? I did. Yes. So, I want to walk through both your analysis of Jennifer McCabe's phone, but also of Jonathan uh John O'Keefe's phone. So, if we can first start with Miss McCabe's phone. Yes. Did you actually receive her phone? I didn't know. It was just a download of the the extraction. So, how does that work? Uh the examiners here had done the extraction of the device resulted in a large uh zip file which is a container containing all of the the files extracted from the phone. They uploaded it to Cellbrite's secure uh portal where I was able to download it and uh and verify what the the data uh was in the extraction. Okay. When you received the download of the extraction for Jennifer McKave's phone, was it similar process for John O'Keefe's phone? Uh, with John O'Keefe's phone, I actually received uh the data on a USB thumb drive through the mail. And before we begin, can you summarize briefly the issue, what you were looking for, and what the scope was as far as Jennifer McCabe's phone? Uh for Jennifer from the Caves phone, it was related to the uh the internet search uh that occurred or that allegedly occurred at 22740. Okay. And as part of your effort and analysis, did you put together a PowerPoint that would help educate us on how a timestamp works and what happened in this case regarding a search? I did. Yes. And have you seen that power point recently? I did. Yes. Did I approach your honor? Yes. Thank you. I'm handing you a binder. You should take a look in, you know, or if you recognize what's in that binder. Uh, yes. This is the PowerPoint presentation I created related to Jen's phone. And with that presentation, do you have it downloaded on your computer? I do. Yes. I'd like to introduce this as the next exhibit, please. No objection, your honor. Great. Thank you. Mr. You know, with the court's permission, I'd ask Mr. Whiffin to be able to use his computer to walk us through the PowerPoint and explain it to the jury. No objection, your honor. Yes. Thank you, Mr. Wiffin. Okay. May we begin, your honor? Yes. Mr. Griffin, if you would walk us through and explain the PowerPoint and explain this issue to the jury what the um the question was and how you resolved it, of course. Okay. Um the query resol revolved around a a database called browser state. DB. Uh browser state stores information about Safari uh internet browser and about the tabs that the user has either had open or has open. Uh fundamentally in this presentation I wanted to include information from iOS 14 and earlier. Uh iOS 14 is not the version of iOS that was on Jen's uh Jen McCabe's phone. Uh but iOS 14 uh has uh an easier way to understand how this database works. Uh and then I can move on to iOS 15 which was the the device uh or was the version installed on on J McCabe's phone. and and hopefully by that point it'll be clearer how this information is being populated on the device. Could you tell us what iOS means? iOS is Apple's proprietary operating system uh available on iPhones. Thank you. Uh fundamentally the browser state db uh tabs table is shown uh hopefully I can show this on here uh in the top here. The real database has many more fields but these are the fields which are important for the demonstration to to just see the row ID, the timestamp that's recorded. Uh the URL or the the web address and the title of the page. Uh and the example at the side there you can see there's uh the browser is open but there is no tab actually in focus at this time. Can I take us just a little bit back so we can put this in context? Yes. when you are doing internet searches on your phone um and you hit Safari or Google or whatever search engine you're going to use, does it create a tab? Uh it doesn't create a tab just by opening the application. Uh but there may be tabs already open in the background when you start the application and then you can tell it to create further tabs. So if I have a phone, can I have a number of different tabs on my phone at the same time if I've searched for different things throughout the day? Correct. You can have hundreds of tabs open. Do tabs stay open forever or can you close them? Uh, they stay open until you close them. So, if you look at your phone and you have a number of different tabs um and say, for example, I start with one tab, I'm looking for the local um football score, can I reuse that same tab for some other search or do I have to use a new tab to start a new search? you could use that tab for as long as you wanted uh or create a new tab to do additional searches while maintaining the original tab in its current state. And so what you're trying to demonstrate to the jury is identifying a time on one of these tabs where a particular search was made. Objection, your honor, sustained is to Could you explain this demonstration as it relates to tabs on these internet searches? What are we actually trying to learn? So, uh, as I showed, there's a a field in this table called time stamp. It's actually called last viewed time stamp. And I wanted to prove or or to demonstrate what that time stamp means, how that time stamp gets populated uh, and how it's relevant or in irrelevant to a case. So, if I have one of many tabs open on my phone, each tab will have its own timestamp. Correct. And the URL, that's whatever I look up, what I search on the search engine. Objection, your honor. Allow them. Is that is that what's looked at? That that's correct. The URL is the the address of the page that's being viewed. So if I have a tab open and I use it continuously, three, four, five, 10 times, um, will the time stamp change? Uh, no, it will not. Okay. And that's is that what you're explaining to us now? Correct. That that's part of the demonstration and presentation. I'm sorry to interrupt. Okay. Um so in this instance at 10:00 a.m. which is shown in the uh top of the the device there. Uh we can see a I visit firstpage.com as an example website. At that time, uh, a row is created in the database that shows row ID 1 with the time stamp 10 a.m. when the page was, uh, opened. The URL and the title are relevant to the page that was visited. So, firstpage.com. Uh, a minute later, excuse me, uh, I now use the same tab to visit secondpage.com. What actually happens in the database at this point in time uh is the first record is updated with new information. So we continue to see row ID 1. We continue to see the time stamp that the tab was opened at 10:00 a.m. And we now see the URL and the title that are related to the second page.com uh website. Uh so I've shown it here. The first one is red to show that's no longer a live record. It's been replaced by the new record that's underneath it in black. A minute later again, uh I can visit thirdpage.com. Uh and at that point, the records updated a further time. So we still see that it's row ID 1. Uh cuz no new ID uh new new rows are being created. We're just simply updating the existing rows. So we still have row ID 1. We still have 10 a.m. as the time stamp and we have the URL and the title that show thirdpage.com instead. Mr. Wiffin. So in the URL column there are three s different searches. Uh yes this is three different pages that have been visited uh within the same tab and in the data it has three timestamps but they're all the same. Correct. Okay. Thank you. This database is not monitoring uh web navigation events. It's purely monitoring the the tab events. So when the tabs brought into focus or when the tabs created is the only time stamp that's relevant here. Thank you. Uh from a non-forensic point of view, uh if I was looking at this database in a regular database viewing tool, all I would see is the black record at the bottom. I wouldn't see the other two records because they've been uh essentially overwritten by the the third record. If I was to use a forensic tool though uh then I would see all of these records because the forensic tool is designed to find the older versions of these records that have been replaced. Uh so again from a forensic point of view I would see all of these records. I would see all the different URLs and I would see the same time stamp and the same row ID for all of them. This fundamentally changed in iOS 15. Uh, and I've tested this on multiple versions of iOS 15, 16, 17, and 18, including iOS 15.2.1, which is the same version of iOS, uh, installed on Jen McCabe's phone. In this case, uh, the data is not written to the database immediately. So, I've tried to show here that we have, uh, some in-memory variables. So essentially a short-term memory uh that that the device knows exist but aren't written to the database yet. So they're not written longterm. So in this case if at 10 a.m. I go to firstpage.com uh we see that the in-memory variable for timestamp URL and title are updated to show a 10 a.m. timestamp and the firstpage uh.com information. But you can see at the bottom I still have the browser state tables uh sorry tabs table and nothing has been written to that database at this time. So can I ask you a question about this browser state DB? What does that mean? What does that tell us? Uh the browser state.db is just the name of the database that Apple are using to monitor the tab activity on the device. Will a cell phone have a number of different databases it will send information to or is it all one database? There are hundreds or thousands of databases uh depending what uh applications are installed on the device. Each database typically targets a different application or a different feature. Can information like information from a um URL or a Google search or a Safari search? Can it leave data on different databases or does it always go to one database? It can leave on different databases for sure. Thank you. Uh, so again to continue this example, if I now go to secondpage.com a minute later, we can see that now the in-memory variable is updated. So the timestamp still remains 10 a.m. the same as it did previously on iOS 14, but the URL and the title are updated to reflect uh the current web page that's being viewed. Again, nothing has been written to the uh the browser state database. I can go to thirdpage.com. Uh again we see the in-memory variables for the URL and the title are updated but the time stamp still remains the time that this tab uh was brought into focus or created not the time that the navigational event occurred. Still nothing's being written to the browser state database and it's not until you actually close the tab that the information gets removed from the in-memory variables and written into the database. And at that point, the information written to the database is whatever was in the in-memory variable. So right now, all we have is a single record in the database that shows the 10 a.m. timestamp. That's when the tab was opened. And we have the thirdpage.com uh URL and title information, which is the most recent web page visited in that tab. Uh it wouldn't matter whether I was looking at this data using a regular database tool or a forensic uh database tool. The only record that I will see is this particular record. There may be multiple versions of this record, but still would only show me this timestamp and this URL information uh because this is the only information that was ever committed to the database. Okay, moving on from that, there was um multiple databases or multiple data sources on J McCabe's phone uh that could be used to see what actually happened on the device at this time of day that was of interest. Uh so the analysis analysis I did looked at the browser state database that we've just described. Uh the history database which is what is tracking the navigational events. So every time you visit a website and the website fully loads, it gets written to the the history database to say this data uh this URL was visited at this time. Uh and that's the information that as a user you can see when you look at the the internet history in your device, it will list all of the web pages that have been visited. Uh com.apple mobile Safari.pist uh is a property list file. So essentially a list of values and information sorry keys and values uh that would describe various settings on the device typically but it also stores information such as the the last searches that were conducted using the the Safari search uh feature. And then finally here we've got knowledge c.db uh which is a a massive database at the heart of iOS that stores lots of types of of information. Uh, it can tell you what web page was actually on the screen at any given time. It can tell you when the backlight came on, when the backlight went off, when the the device was locked or unlocked, the battery level. Uh, lots of different types of information. Uh, but useful here for the the web pages that were being viewed. Uh so using the combination of all those sources uh I could see that at 2:279 a.m. uh Safari was opened from the application library uh on the device. Uh at 2:27 a.m. uh when Safari opened there was already numerous tabs open in the background. uh the browser would show in the foreground whatever browser tab was opened when Safari was previously minimized. In this case, we can see looking at knowledgec.db uh that the the web the web page that was being viewed was related to hawk sports uh Friday's schedule scoreboard. Uh at around 2:27 that tab would have been closed. Now we don't actually have a time the tab was closed. Uh but based on other activity this time stamp can be inferred. Uh essentially when this time uh when this tab was closed a record is created in the browser state database that shows the time stamp 15944 a.m. that would have been the tab at the time that the tab took focus. and then the Hawkerox Sports Friday schedule scoreboard uh URL at 22731 uh there was a browser switch occurred uh and the last visited time stamp that's held in memory would have taken the time that this occurred. So 22731 this URL was PayPal. Uh there was no navigational event listed in history. So, this wasn't a page that was uh visited from a bookmark or from typing in a uh a URL. It was whatever was currently shown in that tab when the tab was brought into focus. Uh and we know that this exact URL was last visited uh at 7:40 a.m. on the 28th of January. This is evidenced in browser state and in knowledge C. Around a second later, that tab gets closed and that record gets written to the database with a time of 22731 because that's the time the tab was brought back into focus. Uh it gets written with the URL and the title information related to PayPal. At 22733, uh another tab is brought into focus from the background. Uh this one related to Eastern Bank. Uh again the last visited timestamp would be updated because this tab has now been brought into focus causing the uh the time stamp to change. We know that this particular website was visited at 802 on the 27th of January and there's no new navigational events at this time. So we know it's just brought into focus and visible on screen according to knowledge C uh and browser state databases. that tab gets closed and it gets written to the database. Uh this again is going to show and I've just noticed there's a typo on here and the time stamp at the top is showing incorrectly. Uh but essentially it's closed at around this time. Uh and the Eastern Bank URL is written to the browser state database with the 22733 time stamp. At 22735, uh we see that there's a YouTube video shown on screen related to uh it's raining men. Uh this shows in knowledge C there's no new navigational event for it, but there's also no timestamp in the browser state database at this point. Uh this is because this page is actually or this tab is brought back into focus a second time. And that when it gets brought into focus the second time, the time stamp that's attributed to it overrides the time stamp that would have been written at this point. Sounds convoluted, but essentially if you imagine that the the in-memory time stamp here would have said 22735. Uh but then there's another tab that's brought into focus uh related to Huckamok Sports at 22736. Mr. Wan, can I ask you a couple questions? Yes. This time stamp 22736. Does that indicate the time when this tab was actually opened? Yes. The time that the tab was brought into focus or opened. What does it mean brought into focus? Uh if you imagine you could have five or six or however many tabs uh in the background. You select one of those tabs to view. It makes it full screen. That would be considered in focus and that would cause the time stamp to be updated. So, if someone had an open tab that had a timestamp and then they put it in the background to look at a different tab, but then went back to an earlier tab and opened it, would it create a new time stamp? It would. It would update the time stamp. If somebody had an open tab and they didn't put it in the background, but they used other functions or shut off the phone and when they came back that tab was still open, would that create a new time stamp? uh as long as Safari doesn't close uh then the time stamp will remain the same. So if I just minimize Safari, put it into the background and start to do other things on my phone, the time stamp won't get updated. If I completely close Safari or turn the phone off, when Safari reloads, then that tab uh does get a new time stamp when it opens up again. Thank you. Okay. Um yes so uh at 22736 we've got hockerox sports gallery shoots canton girls basketball to import Important win at Mansfield uh is the page that is visible on screen. Again we know that there's no uh navigational event at this time. So the page has not been loaded as a result of uh a bookmark or uh typing the URL in. It's just showing what was on screen previously. And we know that this page was previously viewed uh at 220 sorry at 2255 on the 27th of January. Uh this tab gets closed and gets written to the database as well. Uh and we see it's written with the time stamp 22736 when the tab was brought into focus. And then we go back to the uh the YouTube video tab. So at this point the time stamp that had been written there gets overwritten again with 22738 uh and it shows the the YouTube video is the the active page that's on the screen around 22739 uh that tab gets closed and the record is written to the database showing a time stamp of 22738 when the tab took focus uh and the uh the YouTube video URL. Then we move to 22740 uh which was the time of interest uh and we see that a browser switch occurs uh causing the last visited time stamp to take on the time of 22740. This is the tab that was ultimately used to search uh hos long to die in cold which is the query uh that started all of the the confusion. At this point in time there is no uh navigational events recorded anywhere. All we see is that the the web page that was brought into view is ozone basketball.comteams. This web page was last visited uh at 14 minutes after midnight on the 26th of January. Uh we know that this is on screen because it tells us that in knowledge C. Uh and we know that the time uh is 22740 based on knowledge C time stamps and based on the browser state database time stamp. At 22742, there is a web navigation event. Whether this is loaded from a bookmark or whether it's typed in, uh, I can't say, but a web navigation event occurs, uh, using the same tab that's just been loaded. And now the user is, uh, loading the web page hawksports.com/standings. uh this is is logged in the history database that shows what web uh web page is visited when and it also shows in the knowledge C database to show what web pages on screen at this time. Mr. Wiffin in the slide before 22740 you mentioned that was the tab in question. Yes. Do the following um pages that you show us in the PowerPoint follow that one specific tab? Yes. Thank you. Uh so at 2:2747 there's another uh web navigation event as the web page hawkeroxports.com/schedules is loaded. Uh again this is evidenced in the history database to show that a navigation event occurred and completed and in knowledge C to show that this is the web page that was viewable on screen. At 22753 there's a further web navigation event. uh where we're now viewing the or now loading the page hockeyoxports.com/sccheduleshockey. Again, this is evidenced in the history database and the knowledge C database to show what page loaded and what page was visible on screen. At 22758, there's a further uh navigational event for girls hockey Franklin 2122. Uh again this is logged as a navigational event in the history database and shown on screen according to the LC database. So I understand these are all subsequent searches on the same open tab. Correct your honor. Are these s sustained as to four? Are these all subsequent searches on the same single open tab? There is no tab switch event uh listed. We we see the tab switch event occur at 22740 and then we see lots of navigational events occur. Thank you. At 22806 uh Safari is minimized so it's removed from focus uh so that something else could be viewed or you know the phone is locked. Is remove from focus different than closing? Correct. If you remove it from focus it's essentially going into the background. Uh but it's still open. it's in its current state just in the background versus if you close it completely and have to reload it later on. So in this particular state the time stamp doesn't get changed. Uh the time stamp remains 22740 as it was earlier. Uh Safari is then not used again until 62337 when it's opened from the background uh using the uh the icon in the app library. At this point when it loads up uh the same page that was open when Safari was minimized is shown. So we still see hockeyoxports.com/schedules/girlhockey/franklin/20212022. Uh there's no navigational event at this point. So we know that it wasn't uh completely reloaded. It's just showing what was on screen previously and it's evidenced in the knowledge C database. At 62349, uh there's a a cache file created. Uh the cache files related to how long to digest food. Now, these particular cache files show up as suggestions in Safari. So, as you're typing in uh a query or a word or a a URL, for example, uh Safari tries to take that information and make suggestions based on what it thinks you might be searching for. So if for example you were to type in how long to die with the word the word spelled just di uh Safari can mistake that for how long to digest food and it could present this information. And up until about 12 months ago this is uh the information that was provided by Safari if you were to do this search. If you were to type in how long to DI you would get the result that's shown at the top of this screen uh with an image of somebody eating a plate of food. And this is the image that was cached onto Jim McCabe's phone at 62349. What does cache mean? Uh, essentially downloaded now for use later. It will download it. It will save it in case it's required again. If it is, it doesn't need to download it. It's already there. If it's not required again, eventually it will be deleted. So, is it stored information from prior events that's available in case the device thinks you're looking for it? Uh, yes. So, at this point in time, at 62349 when it downloaded it, that's the first time that it's downloaded this image and it it stores it. If an hour later, for example, I did the same search a second time, it wouldn't need to redownload the image because it's already got it in cache. So this the creation time of this uh image shows that this is the first time that this cache file was downloaded. Uh a few seconds later at 62351 uh the blue button at the bottom of the keyboard is used to submit a search for the term how long tidi in kick uh cd. This creates a specific URL in Safari which is shown on screen here. So google.com/arch how long to dian kickd uh i.e. UTFA oeutfa uh client Safari is the important part of this string that tells us that it's a a query that's made using Safari. Uh this is different to if I visited Google for example and just typed in the search uh text box in Google. it wouldn't necessarily have this same structure of the the the the URL. So, we know that this is the the query created by submitting a search uh using the uh the search bar here and pressing the the blue button at the bottom. Uh we know that that search was conducted at 62351 according to the information in mobile safari.p. uh and knowledge C also shows that this uh page uh was visible. Importantly, there is no history record made that shows that a navigation actually uh occurred to this p to this website. Several reasons why that might happen. One could be if the device was in private browsing mode. Uh however, it can't have been in private browsing mode because if it was, we wouldn't have uh the the search recorded in the mobile Safari P list uh either. So we know it wasn't in private browsing. Uh it could have been deleted at some point after the fact. That would leave a gap in the numbering. Every time a record is written, it would be uh consistent numbers 1 2 3 4 5 6. Uh and to delete a number would leave a gap there. So you would see 1 2 uh 45. and that number will pretty much never be reused. So if you if you don't see a gap then you can be confident that nothing was deleted and there are no gaps uh on this device. The third reason and the one that I believe is the reason why it wasn't recorded uh in the database is that the page never completely loaded. If I go to a web page and cancel the navigation prior to it completing the load, it will never get written to the history database. At 62418, there's a second search submitted uh using the same method. So, still using the Safari search uh bar uh this time searching for host long to die in cold. This is evidenced in the uh mobile Safari.p list. Again, there is no record made in the history database. That to me suggests that the page never successfully loaded. At 6:2424, Safari is minimized again. It gets reopened at 10:33 a.m. uh again loaded from the app library and brought into focus. And at that point, the previous page is shown to the user. That previous page is related to the search host long thy cold. Uh this is evidenced in knowledge C to show that this is the the page that's visible on screen but there is still no history event that shows that the page completely loaded and around that time so around 10:334 that tab would have been closed resulting in the record being written to the browser state database uh with the time stamp 22740 when that tab was originally brought into focus several hours earlier but it shows the most recent URL information uh which is the Google search for host long to die in the cold. It doesn't have any of the other URL information that was visited during that time period. It doesn't have the previous Google search uh for how long to die in the kit because all it records is the most recent URL that's visited alongside the uh the original time that the tab took focus. Importantly here there is no title information. uh the title information is included within the page uh itself. So if you do a Google search, the title of the page that showed up would show Google search and then it would show the query that you typed in to search for. The fact that this doesn't have a title also suggests that the page never loaded. So again, it kind of ties back to the fact that it's not written in the the history database. We have no title. Uh is both indicative that the page never successfully loaded. Mr. Mr. Whiffen, when a tab is ultimately closed, does the URL always have the last search or could it show an earlier search? It will always be whatever URL is visible in the tab at the time. Thank you. Uh to overview again the the data sources used here, uh com.apple mobile safari.plist P list is known to be a reliable uh location to get search time stamps from it. We know that it's good to show uh the time that a search was conducted and what search was conducted. It doesn't record if the device is in private browsing mode. The only time it shows how long to die in the keepd is at 62351 and the only time it shows how long to die in the cold is at 62418. There's no other mentions of either of these searches anywhere else in this file. The history database uh again is known to be a good source of data for visited web pages uh and timestamps uh for the pages that completely loaded. Uh again in this case neither of these searches or neither of these URLs was in the history database but there are no missing records which indicates that nothing was deleted. Uh and again the only reason that I can uh come up with for why that is the case is that the page didn't load. Uh there must be an entry within this database to allow the user to delete it. Obviously if the page doesn't load it doesn't get written to the history. as a user, you can't see that item in your internet history uh list. So, you can't delete it. And then knowledge C, uh which shows the page that's on the screen, uh when the browser is in use. Uh again, we know that this is a a good time stamp. Uh and we see the only times that web pages related to these web searches were open is at 6:23 and at 10:33. Uh there were multiple deleted records in the browser state database. It wasn't just uh the the record for host in the cold. When you say there's multiple deleted records, can you go into a database and see what URL searches have been deleted from the actual um item? Yes. So from a from a forensic examiner point of view and using forensic software I can look at the database and see the records that have been uh deleted and recovered. Uh there does become a time when you're unable to recover any more records and they're now just purely deleted and unable to to get back. But at this point I was able to recover a good number of records. Uh and these were the five that I thought it was important to uh to focus on. uh for here you can see that three of them occur at 227. So at 22736 22738 22740 uh and these are the uh the web pages that we've just seen in the presentation. So Hawkerox Sports the the YouTube video host to die in the cold uh and then two additional pages uh for cantonma.org or and ozone basketball. Um the the way that we're able to recover these records forensically is because of uh how databases work. Uh what I've tried to to display here is that when you first create a record, in this case creating record 4025, uh a new page is created in the database. Uh a page is simply a block of binary data that's organized in a way that can be understood by the database as a page of data much like it would be a ledger with a list of of records. Uh so it creates frame 181 with page 2752 and a record 4025. What is a little bit different from if you were doing this manually is when you want to add a new record or when you want to delete a record or when you want to update a record, it has to create an entirely new page or an entirely new version of that page. So in this case, we see that frame 194 is also page 2752. It duplicates the record 4025 and adds the record 4026. From the database's point of view, at this time, frame 181 is now dead. Like, it won't be used for anything. Uh, and a regular database tool would only refer to the most recent version of that page. So, frame 194. Forensically, I can look back at all of these different versions of the page, and I can start to see differences. Not so important in this case when all that's happening is that you're adding information, but when you start to delete or edit records, being able to go backwards and see these previous pages, you can see the records that have been changed or deleted. So, as we're moving along all of these pages, uh, each of these refer to a time when a new record was added. Every time a new record is added, a new frame is created. It duplicates the page from before and it adds the new record. highlighted uh record 4028 in green across these three frames uh because this is the host long dying cold record that is of interest. Moving forward again we start we continue to see records being added uh but particularly here at frame 430 record 4029 is deleted. Uh 4029. If I go back a few slides, uh we can see 4029 is the cantonmma.org families index uh web page. As far as I know, no relevance to anything related to this case. It just so happens this is the first uh record deleted from the browser state database. We don't have uh information that tells us at what time the records deleted. But we're able to infer what time that record was deleted based on other records in this frame. So for example, we know that at the time that record 4029 was deleted, record 4031 already existed. Record 4031 has a time stamp of 629 on the 31st of January. Therefore, we can summarize that record 4029 had to be deleted at some point after 629 on the 31st of January. Uh we see again record 403 is deleted uh on frame 468. Again, we can look at uh what record was the most recently created on that frame uh at the point that that file that record was deleted. And that gives us information that suggests record 4030 had to have been deleted at some point after 8:35 on the 31st of January. We can continue to go along uh and continue to see that records being added, edited, and deleted. But the record of interest 4028 still exists even on frame 650. And in fact, it doesn't get deleted until frame 732. By the time the record related to host long night in the cold is deleted, record 4037 already exists. Record 4037 was created uh after 2207 on the 31st of January. Therefore, we know that the host long to die in the cold record was deleted at some point after 10 p.m. on the 31st of January. Taking all of those deleted records, those five deleted records, uh and the earliest time that they could have possibly been deleted, uh we see a spread throughout the 31st of January. uh like a few oh a few quite early on at 629 8:35 a couple at 920 940 and then finally the one that we're interested in at 2207 uh for the user to cause these to be deleted uh if you wanted to do it selectively and select and and delete one at a time the record has to be available in the history database uh as I said earlier it wasn't ever in the history database because there there'd be a gap. So this or this record could not have been deleted by the user selectively. Uh that leaves options of deleting everything from the history. But if everything was deleted, we would have none of this information. And we do. Uh and it also leaves the option of deleting everything from what's considered today and everything that's considered today and yesterday. Uh and again, if either of those options were the case, we'd have much less information than what we have and we wouldn't see this uh staggering of timestamps that we see here where the information was deleted. Ultimately, I wasn't able to say what caused these deletions at this at these particular times. Uh but I'm confident that it wasn't as a result of user interaction. That's something that was brought on on purpose. Mr. Mr. Won, I have a couple questions about your analysis and your opinions. Yes. You showed us a tab that was opened at 22740 and it had something to do with Hawkmach Sports. Yes. Um to in your opinion, to a reasonable degree of scientific certainty, was that the same tab that 22740 tab open for Hakamok Sports? Was that the same tab that later was used for searches or attempted searches at 62351 and at 624 relative to how long or how's long to die in cold? I believe it was. Yes. Does your opinion is it based on your analysis of reports generated by software like celebrate? Your honor sustained as to form. Was your opinion limited to analysis of reports generated by companies like Celbrite or Axiom? It it wasn't. No. I went into the data uh looked at the various different uh databases, different files that were in use uh tested it across many different devices uh to make sure that my understanding and analysis of it was correct. In addition to your opinion that the two searches at 623 and 624 occurred at that time as opposed to 22740. Um did you also when analyzing the data come to an opinion whether or not either of those searches actually connected and produced results? Uh if either of those searches had connected, the information would have been written into the history database. The fact that it wasn't in the history database uh strongly suggests it never completely loaded. Uh and the fact that there is no title information on the browser state tab as well also suggests it never loaded. And finally, those attempted searches at 623 624. Um, you mentioned that information at some point was deleted from the phone. Uh, the only records that were deleted were the browser state uh, database records. Yeah, they they were deleted from the device. Do you have an opinion to a reasonable degree of scientific certainty whether or not that information was removed as a natural application of the phone or was it because somebody took the phone and actually deleted it by hand? So again, I don't believe it's possible. uh given the situation and the information that's available that it would have been possible for the user to delete it. Uh I believe it was more than likely a system event that caused that, but I've not been able to replicate that system event. I want to take you back to your first opinion. Were you opine that the house long to die in the search occurred at 6:23 and 624 not at 22740? Yes. And so in looking at the data, coming to that opinion, what caused the confusion with the software where it could be misunderstood the time those searches were actually made? Objection, your honor, I'm going to allow it. Um the the way that forensic software typically works, certainly the way that physical analyzer works, uh is we design models for the data. Uh so we know that uh an SMS application for example will always have uh a message body. It will always have a sender, a receiver, a time that kind of thing. Uh we always know that a web visit will have a URL, a title and a a visited time stamp. In this particular case uh in the database the time stamp is called last visited time stamp which is indicative you would think of the time that the web page was visited. Uh so when that information was being modeled within the software the timestamp that was uh within the database was used and it was called last visited time stamp. Since the investigation uh that I did into this case, uh I requested that the forensic research team at Selbrite revisit this data and confirm if there's confusion around it. Were my findings correct? Ultimately, there are times that that information can be correct. If for example, you create a brand new tab, visit a website, and then close the tab immediately, then that time stamp would be indicative of the time that the URL was visited. Uh but if you were to create a tab, use it for 3 hours and then close it, uh the time stamp would not be indicative. Also, if you were to bring an old tab into focus that you'd use several days earlier and then close that tab, again, you're going to get bad time stamp information. So ultimately, from CellBright's point of view, we remove the time stamp from that data uh to avoid confusion in the future. You shared with us that the URL for the 623 and 624 attempted searches um ultimately was removed from the device? Yes. Would it be fair or accurate to say there were over 4,000 deleted files from the phone or there was uh 4,000 um deletions from the phone? There were many sustained. Okay. As to form um would it be accurate to say that the only deletion from that phone was that 623 624 search? No. There were thousands of records deleted ultimately for various reasons that I can follow. That would be an inaccurate assertion. Uh to say that that's the only record that was deleted is inaccurate. Yes. Okay, thank you. I'm now going to turn to a second phone that you looked at. You told us that you looked at two phones. The second one was a phone that was or is attributed to John O'Keefe. Correct. When you looked at the phone for John O'Keefe, were you looking at things different than we looked at on the phone attributed to Jen McCabe? Uh, I was I wasn't as interested in uh internet data. I was more interested in location and health and anything else that could be uh useful. Before we show any presentation, I want to get a little understanding of what you looked for and what you found. Um, were you looking for what's called location data? I was. Yes. Was there a period of time that was important that you were looking for relative to location data? Um, typically after midnight and before 6:00 a.m. Is that on January 29th, 2022? It is. Yes. Sorry. How does a a phone like an iPhone store location data? Uh, multiple ways that it can be stored. uh primarily uh there's a database called cache.sqlite SQL light uh and every time an application requests location data from the device uh a feature called location services on iOS tries to calculate the devices location using a combination of technologies uh GPS, Wi-Fi, cell tower uh and Bluetooth uh calculates the the devices location and stores that into the database as a uh latitude, longitude, altitude, time stamp, accuracy, radius uh information like that. Are there different types of location data that are captured and stored on a device like an iPhone? Uh, can you define different types, please? I'm sorry. If you could define what you mean by different types. Um, the different sources of data that are generated that then captured on an iPhone. Uh, yes. So, the application can specify how accurate it wants the data to be. Uh so for example, if you're using a a navigational uh application, you'd want high accuracy data. So the the application would request high accuracy data from location services. Location services would then try to use uh GPS primarily to get location information versus if you were using a weather app for example where you don't really need to know precise information. You just need to know the approximate town maybe that the user's at. Uh so a weather application would ask for low accuracy information. Uh and the device may be able to calculate the location based on cell tower information for example. Uh both can be stored in the database uh with the accuracy information that's available. Would a uh application that is devoted to navigation in your programming experience typically have stronger data location data information than uh more general application like a weather app? Uh yes, for sure. And and Apple actually specify in their uh documentation when they specify the various different accuracy levels, they have one for navigational purposes for map applications. How do you define accuracy level from the different data that's being stored in a phone? Uh how do you mean? Sorry. Um is there high level, middle, low? Yes, the the information is typically uh provided with a a range of meters. So you'll have a latitude longitude coordinate and a number of meters that you have to draw around that uh location or point. Uh and the device is somewhere within that circle. It it could be as accurate as 2 or 5 m. It could be as inaccurate as several miles depending on the technology that was used to to get the data. Are you familiar with an application called ways? I am. Yes. And tell us what ways is. Ways is a a navigational tool. Uh so you can plot a route and uh it will try to direct you the best uh the best way avoiding toll roads avoiding accidents that kind of thing. What is the level of accuracy in location information that is generated by using ways? That would be the highest level of of accuracy. So it would aim to get GPS quality information of around 5 meter accurate. So why doesn't a programmer in every application just use the highest level location data for every application? Uh getting GPS data is not always possible. If you're uh in a building in a basement for example, you may not get that. uh but also it can be expensive to the device in terms of processing power in terms of battery requirements uh so if it can find location information cheaper by using uh Wi-Fi networks for example uh then it would prefer to do that so just a lot less resource intensive than using GPS all the time in order to capture the highest level of location data the most accurate in an application such as ways Um, if somebody's using ways and then turns it off, does it still continue to capture that highest level of accuracy? Uh, typically not. It may do for a short time uh as it's still kind of working through a backlog. Uh, but fundamentally, if there's no application open that's trying to use uh location services, uh, then the the location information that's being requested and recorded is far more sporadic. It's typically background applications that may be requiring location data. When you analyze John O'Keefe's phone, in addition to the location data, did you also look into data known as health data? Yes. And could you tell the jury how that works? Uh, yeah. So, pretty much all iPhones for the last 10 years or so have Apple Health included. Uh it monitors activity on the device such as uh steps taken using various sensors inside the device uh looking for motion which appears to be uh walking. Uh it monitors altitude so it knows whether you've gone up a flight of stairs for example. Uh it uses that information uh in concert with the uh the steps taken. So it knows the difference between going in an elevator versus walking flight of stairs. Um and all that kind of information uh is available to you as a user to to essentially see how far you walked each day uh and to monitor your own health. When you look at healthcare data, you said it interprets it in different terms. One you used was steps. If I have an iPhone and I'm walking and it registers steps, can it tell what direction I went in? No, it's purely just looking for uh motion of the gyroscopes which appears to match the pattern that it expects of somebody who's walking. It doesn't know whether you're in a straight line walking in zigzag circles, just number of steps. What if I had my iPhone and I was moving the iPhone but my feet weren't moving? Would it register? Uh, it could register some, but typically uh it's relatively good at uh picking the difference between actually walking or throwing the phone around or or shaking it. The healthcare data does it store with date and time? Um, so there's two locations that health data is uh is stored. primarily a database called health dbc_secure uh and that aggregates the information into periods of time. So you may have a 10-minute period where it says 100 steps were taken. It could be that the 100 steps were taken in the first 2 minutes and then virtually nothing was done for 8 minutes there. Uh but there's another database called cache encrypted C which is more granular. uh it's where the information is uh written originally prior to it being aggregated and moved into the the bigger health database. You also mentioned that the healthcare data has a term known as steps. Yeah. If the movement registers as steps, would that necessarily mean that a person was walking up or down steps? Uh sorry, we're talking about steps taken or flights climbed? I'm sorry, flights climbed. Uh a flight climbed according to Apple. uh is essentially an incline of 3 meters over 16 steps taken. Uh so it wouldn't really matter whether it was walking up a flight of stairs, walking up a steep inclined hill, uh on an escalator, something like that. If there is uh movement that appears to be walking and an incline of 3 m, then that would be considered a flight climb event. Is there any other ways that the phone could register flights climbed, but the person's not actually walking up or downstairs? Uh, so I did test this uh a few months ago uh driving in my vehicle. Uh I was able to if I just put a a phone on my uh dock as I'm driving around, uh nothing was recorded. But I found that if I was actually holding the phone while driving at the same time, then the uh the natural suspension of the vehicle plus the movement of my arm would be considered uh enough to be steps. And if that motion happened while I was driving up a hill, uh it would also result in a flight climb event. Uh and the testing that I did consistently uh resulted in, I think it was nine flights of stairs climbed while I was driving up the same hill uh multiple times. In your studies, what elevation change um would have to be present if you were in a car with a phone and it would register healthcare data as steps? Is there a certain level of elevation that would trigger that? Again, it's just a 3 m incline is required. Did you say 3 meter? 3 m. the the healthc care data. Um, in addition to being able to give a range of time of movement and defining generally terms, whether it's steps or stairs, is there any other information about healthcare data that is important in your analysis of this case? Um, sorry, can you just repeat that please? Sure. Trying to think. Um the healthcare data you shared tells us there's movement. Yes. And it may come in the term steps. You also shared that the healthcare data um can show elevation that can come in the term flights. Yes. Is there any other information about the healthcare data you looked at? Did you look at it across a a a wide range in this case? No, it was just the steps and the flight climb that I was interested in. What is the time period you looked at the healthcare data for in this case? Uh between midnight and 6:00 a.m. or 6:30 a.m. midnight on January 29th, 2022 till about 6:00 a.m. Yes. And before we get to any presentations, did you see movement on that phone relative to healthcare data at different points through the night? I did. Yes. Did you identify those different times in your report? I did. You created a PowerPoint for Mr. O'Keefe's phone. Are those time points and movements, are they indicated in the PowerPoint as well? They are. Yes. So, you had with Mr. O'Keefe's phone, you looked at location data, you looked at healthcare data. Is there any other data you found important in your analysis to try to track the movements or non-movements of the phone of John O'Keefe on January 29th, 2022? Uh yes, I've also looked at uh battery temperature information and at a feature called Doppler uh which is monitoring for Face ID. Tell us a little bit about the battery temperature. Is it the battery temperature of the phone or part of the phone? Uh there's a a battery s temperature sensor built inside the phone uh within the the battery. uh and it's essentially always checking for battery overheats or battery cooldowns to the point where performance will be affected and the the device needs to power off uh to save itself being damaged. Uh so that temperature information isn't recording ambient temperature. It's not interested in the temperature in the room for example. It's purely interested in the battery temperature. Uh but it is affected by ambient temperature. Uh and I again did lots of testing by putting the phone into controlled temperature environments. So inside a freezer for a set amount of time uh to monitor how the battery temperature would decrease over time given uh the environment it was in. Uh bringing it back into a warm environment and testing how long it takes to increase. Uh putting the device outside. Uh I was in Calgary uh where it's pretty cold in winter. So putting it outside uh it was like 40 fah I think it calculates to uh and the temperature of the environment had a big impact on the battery temperature that was recorded by the device. Were you able to track the changes in battery temperature for Mr. key cell phone over the course of the evening from after 12 um on January 29, 2022 through after 7 8 in the morning. Yes, there wasn't a massive number of records, but there were records that I've included in my report. In addition to those three areas, when a person uses an iPhone and presses the buttons or they they hold it and they try to open it by recognizing their face, what is that process called? Uh the Face ID uh would be the process for the unlocking uh and then the locking uh pressing the button on the side would lock the device. When an iPhone is being used, does it act or operate differently when it's out in the open or if it's in your pocket or under something? Uh yes. So this is the Doppler uh function that I found uh within uh a feature called unified logs. Uh essentially whenever uh the device receives a phone call or when you pick up the device uh an iOS sorry an iPhone X or above is trying to find a face to use to unlock the device. Uh if the camera is blocked a record is made to say that it's within a pocket state. Uh, so if my phone's in my pocket, when somebody calls me, it tries to look for a face. It immediately recognizes that the camera's blocked and it records pocket state. As soon as I take the phone out of my pocket or unblock the camera, it records a a pocket state cleared event. So, we know uh when the camera was was covered up versus when it was uncovered, if at the time it was receiving a phone call or was being picked up. Does an iPhone always record whether or not the camera was blocked or hidden or covered at the time a call comes in? Uh, no. For example, if uh if the device is already unlocked, then it won't make a recording to say that it was uh within a pocket state or a pocket state cleared. uh and if uh the device isn't blocked at all. So if I have the device on a desk in front of me for example and a call comes in uh there'll be no record that says that it's in a pocket state or a pocket state cleared. It will only record a pocket state event if the camera's blocked and it will only record a pocket state cleared event if the camera was blocked and now isn't. So, if I have my iPhone and I put it inside my jacket in the darkness and I get 30 calls, would all of those calls result in a reading of pocket state? They'd all result in multiple readings of pocket state. Uh the the pocket state check is conducted uh more than once a second. I can't remember the exact number. Uh but it's very frequent. uh and an average phone call uh from the the start of the ring to when the device essentially hangs up uh somewhere in the region of 500 checks. So if you had 10 phone calls then you'll have 5,000 checks uh made that would all report pocket state. Did you analyze John O'Keefe's phone on the evening early morning hours through the next morning on January 29th, 2022? in an attempt to identify where he was, what he was doing, and whether his phone was inside or outside. That was my goal. Yes. And did you engage in that analysis, sir? I did. And in your efforts, did you write a report? I did. Did you write multiple reports on these separate issues? I did. And those reports were provided to everybody? Yes. In addition to the reports that you generated from your study, did you present or did you prepare a PowerPoint? I did. Does the PowerPoint outline some of those points? It does. At the end of the PowerPoint, do you go through a timeline accumulating many of these pieces of evidence together that show them in a chronological sequence? I do. And does that help capture the movement or non-movement of John O'Keefe's phone through that night? I believe it does. May I approach? Yes. I'm showing you a binder. Sir, could you look at it too? Let me know if you recognize it. Uh, yes. This is the presentation that I created regarding John's fun. And does it include all the some of the subject areas we just spoke about? It does. I'd move to introduce this as an exhibit, please. No objection, your honor. Thank you. Thank you. With the court's permission, Mr. Whiffen referring to exhibit 39, I'd like you to walk us through John O'Keefe's phone on the evening of January 29th. Okay. 2022. Yes. Thank you. Uh so I start the presentation with location data. Uh as I mentioned earlier this comes from the cache.sqlite database which is considered the most reliable location or the most rel uh most reliable file for location data on an iOS device. Uh stores information whenever location information is requested. That could be through user interaction with the device using something like ways. It could be background activity uh just depending on what applications the user has open, what settings the user has uh chosen. This constantly uh trying to find its location and recording it in this database partly for the purposes of identifying frequent locations. Uh at 12 minutes and 5 seconds after midnight, uh the device shows multiple location points uh at Washington Street around uh Forge Pond. What I tried to show here, there's a a kind of a gold dot in the middle which would show the actual latitude longitude information and then the circle around it is what's considered the accuracy radius. uh the smaller the accuracy radius obviously the more accurate the information is believed to be according to the device but ultimately if the device is anywhere within that circle then iOS would consider it correct it considers it an accurate record Mr. Whiffin why are there multiple circles of location data for one point where Mr. key cell phone was. Uh so this wasn't a a single point in time. This was multiple records at around 12 minutes and 5 seconds. Uh no application was actually in use at this time requesting location information. Uh but the device for whatever reason recorded multiple uh records with various degrees of accuracy. Typically, you would see uh accuracy start quite low and get better over time. Uh which you may have seen on your own device when you open up the map application and it may show your device, you know, close to where you are but not perfectly where you are and then wait a few seconds and that information gets refined. Essentially, this is the same thing. So, low accuracy would be a wider circle and higher accuracy would be a smaller circle. Correct. At this point, Mr. Keith has is not utilizing ways on his phone. Correct. But location data is still being stored randomly on the phone from multiple different sources. It is. Yeah. Depends on the device itself. In the top left hand corner, it says 12:05. That's the time that this snapshot. Yes. Okay. And approximate. And below it's obviously the date. Yes. Okay. Could you take us ahead please? Yeah. Uh there were multiple records between um that last time and uh and what's shown on screen now at at 19 minutes and 33 seconds, but all of the records were sporadic and low accuracy uh with values of uh 1,000 m or or more. Uh but around this time around 90 minutes and 33 seconds after midnight uh is when was actually brought on screen. ways starts to ask for high accuracy data. So we see the accuracy immediately start to improve. So again we see relatively low accuracy data to begin and then over the next few seconds it begins to to refine itself until it gets down to a 5 m accuracy uh records as the device continues up here. We'll highlight that there's a cluster of records here uh as the device came to either a slow or a stop uh momentarily. Multiple records were created and then the device continued driving up uh Denim Street. Mr. Whiffen, below the time 121933 in the date talks about the average accuracy. Yes. And that's in meters. That's in meters. Uh so again the records that are shown at the bottom here are around 55 m. The records shown at the top are around 5 mters. Is it typical in ways that once it locks in the range is around 5 mters? Typically, yes, that would be the goal. You also mentioned the average speed. Where do you learn the the speed from? Where does that data come from? The database uh the the cache SQLite database also calculates the average speed between two data points and also the uh the bearing or the the direction of travel between those two points. Uh so the average speed that's shown here on the left is approximately uh the average of all of the records that are shown on this map at the time. And each of these map points has a uh a directional arrow that points in the direction that the database recorded the device was traveling in. When you look at the this information generated because of the usage of ways and you can see both the accuracy and the speed um with the ways information at its most accurate can you actually tell whether the vehicle is moving or whether it stops? Uh yes based on the the speed and the the location uh and the time stamps you can determine whether the device is moving or stopped. Thank you. Uh, also important to I think point out here in terms of um knowing how reliable this location information is, I typically look at something along the lines of does the the location think it's accurate. In this case, 5 m. So, yes. Uh, does it make sense? Like it's on the road, it's on the correct side of the road. So, again, it kind of makes sense. It fits the pattern uh of the road. uh the cadence and the speed are you know what you would expect for for this road like traveling at 20 to 30 miles an hour up here seems quite reasonable. Uh so all of these factors taken together increase my confidence that this would be reliable location data. Uh moving to the next slide, between 20 minutes and 19 seconds and 21 minutes and 58 seconds after midnight, uh the device starts on the left side, uh sorry, on the right side at Denim Street, uh drives up and turns left onto Mapleroft Road. Uh again, we see that all of these location points uh match the pattern of the road layout. They all have a uh consistent cadence, a consistent speed traveling at between 10 and 20 mph. And we see a cluster of records here, which is around a stop sign. So again, it indicates uh how reliable the data is because the location or the the location data that's recorded recognize the vehicle slow, come to a stop, and then continue uh after the the stop sign. Is Maple Croft Road in Canton? Uh yes. Uh at the end of Mapleroft Road, it the device turned left onto Oakdale Road and continued heading uh down there. Uh between the hours of 21 minutes and 59 seconds and 22 minutes and 53 seconds, the device continues down Oakdale Road. Again, all of these location points show with 5 meter accuracy. uh they show a consistent cadence, consistent pattern to the road and again we see a cluster uh where we see the device come to a a slow or a stop for a stop sign. Uh the device ultimately turns right onto Cedar Crest Avenue, I believe. Uh and continue down there between 22 minutes and 54 seconds and 23 minutes and 57 seconds. Uh again as I've said before all of these points 5 m accurate they all conform to the road uh cadence is good and again we see uh a cluster on approach to a stop sign. The device shows that it it overshot Fairview Road and continued uh turning up Cedar Crest uh but came to a stop somewhere between uh 50 and 51. Uh, and at 23 minutes and 58 seconds, uh, the device appears to have turned around, so potentially a three-point turn, uh, in order to head back down Cedar Crest Road and turn right onto Fair View Road. Uh, again, accuracy 5 m, uh, good cadence, good conformity to the road. All appears to be, uh, reliable and make sense. Traveling at an average of 20 miles an hour. And that road coming down at the bottom of the screen where John O'Keefe's phone travels, that's Fair View Road. This is Fair View Road here. Yes. Uh the next few slides uh replay that same data, but instead of showing multiple points on one graph or on one map, it's going to show uh one location point uh per slide. So at 24 minutes and 20 seconds, we see the device is already on Fairview Road. uh accuracy of 5 meters traveling at 14.8 meters uh and heading south 24 minutes and 21 seconds uh is now at 16.2 m but it's still highly accurate information. 24 minutes and 22 seconds traveling at 18.3 mph. Uh 24 minutes and 23 seconds traveling at 16.9. 24 minutes and 24 seconds after midnight. Uh traveling at 16.9. 24 minutes and 25 seconds traveling at 16.6. Uh 24 minutes 26 seconds traveling at 17. 24 minutes 27 seconds traveling at 15.9 uh mph. Uh at 24 minutes 28 seconds traveling at 14.5 mph. uh at which point it's approximately outside number 34 uh around the driveway area. 24 minutes and 29 seconds uh traveling at 12.1 mph 24 minutes and 30 seconds traveling at 11.5 24 minutes and 31 seconds traveling at 10.4 4 24 minutes and 32 seconds traveling at 8.9. Uh 24 minutes and 33 seconds traveling at 7. 24 minutes 34 seconds traveling at 5.2. Uh 24 minutes and 35 seconds traveling at at 3.5. Uh 24 minutes and 36 seconds traveling at 3.2 m an hour. uh and at 24 minutes 37 seconds traveling at 1.4 mph. Finally, the device comes to a complete stop at 24 minutes and 38 seconds. Uh I'll say from the testing that I've done related to the speed, it may not be 100% accurate, but it's a very good indicator of the speed in general. Uh, so if it says it was traveling at 10 miles an hour, it would have been traveling somewhere between 9.5 and 10.5 on average. Mr. Whiffen, you just showed us the travel of Mr. O'Keefe's cell phone around 12:24 to 12:2438 on January 29th, 2022. And you said at 12:2438 it came to a complete stop. Yes. Before that complete stop, was the car continuously moving at some speed? Uh, yes. This is the first record that shows uh 0 miles per hour or 0 m/s. Prior to this, there was always uh a record that showed some level of of speed. If you look at number 34 on that chalk, if you can highlight it, please. Okay. Um, if the driveway were at the right side, the top side of the house. Yes. Um, does your studies indicate that the vehicle or at least the phone um traveled past the driveway before it stopped? Objection, your honor. Ask it non leading. Yes. Did this car or the phone that was in the car ever stop at the driveway of that address? Uh, no. According to the the location and the speed data from the device, uh by the time it was approximately the driveway, uh the phone reports it was still traveling at around 15.9 mph. Have you ever seen a photograph of that address? I have. You have or have not? I have. You have. And in that address, do you see on the far left corner of that address the yard there's a flag pole? Yes. Where this car stopped. So, this phone stops at 12:2433. How close is the phone to that flag pole? Uh, I believe very close. And you never do you ever see the car or the phone stop anywhere near that driveway? No. Please continue. uh between 24 minutes and 39 seconds and 25 minutes and zero uh and 8 seconds. There were a cluster uh of more records all showing 5 m accuracy but no movement. Uh although the the center point does move around a little bit. Uh you could interpret this as movement, but because all of the radiuses or radi overlap, there's also a good chance that there's no movement that actually occurred here. This is just the device uh as it's trying to refine its location. At 25 minutes and 30 seconds, uh we see a relatively significant change where the accuracy drops to 34 m. Uh we do see uh a course or a bearing that shows that the device uh reported it was heading uh west. uh but again this accuracy radius includes the previous locations anyway. Uh so it's difficult to uh to differentiate between actual movement based on this location data or just on the fact that the the accuracy reduced uh the center point shifted because of the accuracy change and therefore a bearing was attributed to it when it shouldn't have been. If I could ask you some questions about the talk on that indicates 25 minutes 30 seconds. So 122530 the circle's become larger. Correct. Is ways still being used or has ways been stopped? No. Ways has been closed at this point for about 40 or 50 seconds. For how long, sir? Uh about 40 or 50 seconds. This location data or this circle the perimeter that's not coming from the ways application anymore? Uh no the location data never came from the ways application. uh ways was requesting location data. Uh iOS is responding to that request and as part of that response would write the information to its database. Ways itself records very little location data. So when you look at that circle based on location data alone, um could the phone be anywhere within that circle? Correct. There is a bullet pinpoint center of that circle. Yes. That center of the circle doesn't necessarily mean that the phone is at that exact location, does it? It it doesn't. No, the the center point is purely uh an indication of where you need to draw the center in order to draw the radius. If we didn't have a center point, how would you know where to draw this circle? And so the phone could be anywhere in that circle. Close to 34 inside 34 32. Objection, your honor. Ask it non-leading. Please. Could the phone be anywhere in that circle? It could. Could it be at the center point? It could. Could it be still in the car? It could. Continue. Please. Uh between 25 minutes and 31 seconds and 25 minutes and 36 seconds, uh there's an additional cluster of location data. uh ranging between 61 m accuracy and 17 m accuracy. Uh all of them roughly centered on the same point approximately. Uh and all of the uh the accuracy radius uh covers the same area. like there's so much overlap in these records that the device uh is essentially anywhere within the smaller circle between 27 minutes and 35 seconds and 38 minutes and 15 seconds. Uh there was a approximately 50 low accuracy records. Uh again the device wasn't being used to ask for location data. This is completely passive and resulting in some pretty poor location data. Uh I've highlighted with the red arrow where the uh 34 Fair View Road is. Uh and we can see although a lot of these location datas do overlap with that point, there are location uh information here that that doesn't. Uh at 38 minutes and 16 seconds, the accuracy improves again. uh is now 18 meters accurate but continues to show approximately the same location that we saw uh 10 or 15 minutes earlier around the kind of around the flag pole area. 38 minutes and 17 seconds uh same general area slightly higher accuracy information down to 14 m. uh 38 minutes and 18 seconds. Uh accuracy increased to 12 meters, shifted slightly. Uh now the the flag pole area is essentially at the the lower side of this circle. Uh the obviously the top side of the circle now includes a part of 34 Fairview. If the location information is indicated by the circle and the circle has shifted, does that mean necessarily the phone the phone has moved? Not necessarily. Um, typically you could assume it has, but when we're already talking about accuracies of uh 12, 13, 14 m, it starts to become a little bit harder to determine how accurate this data is. Uh, so at this point in time, it could be anywhere within this circle. and the the movement of the center point could just be the result of uh refinement of the device or environmental conditions that suddenly change. If the weather changes, it could cause the device to slightly miscalculate or to to calculate differently. Would a snowstorm or a blizzard potentially impact the precision of location information that's not precise like ways? It it definitely has the potential to. Yes. How about a phone being covered? Could that affect it? That could also affect it. Yes. If somebody was lying on a phone, could that affect it? That could affect it. Could being in a building affect it? It could. Thank you. Um, we've done that one at 38 minutes and 20 seconds. Uh, again, refining information more. We've got an 8 m accurate uh radius. Still focusing primarily on the the front yard uh towards the left side. Uh and then accuracy of 7 m at 38 minutes and 21 seconds. Again showing that same general area. Um between 40 minutes and 22 seconds and 59 minutes and 20 29 seconds. Uh accuracy fairly drops off again and we see some fairly wild records uh that don't cover the area at all. But we also see some more accurate records showing um again where the the red arrow points at Fairview Road. The those records are highlighted here uh just between 40 minutes and 22 seconds and 59 minutes 29 seconds only showing records of 25 meter accuracy or better. Uh and again it's kind of focusing on that flag pole area between 1:00 a.m. and 2 am only looking at uh location information which is 25 m uh accurate or better. Uh again it kind of focuses around the front yard area. Uh although some of these accuracies are still rather large and and could put the device uh inside 34 on the opposite side of the street uh you know towards 32 between 2 a.m. and 3:00 a.m. uh fairly similar story again most of these points are centered around that same location at the front yard. Uh similarly between 3 and 4:00 a.m. between 4 and 5 between 5 and 6. Uh, and in fact, if I take all of the location data between 25 minutes after midnight until 6:00 a.m., only looking at the records that report 10 m accuracy or better, then typically they all focus around that same location at the front of the yard nearish to where the uh the flag pole can be found. I'd like to ask you some questions about this photograph. There's a red circle with a bunch of red dots in the middle. Yes. Would those red dots indicate the center of some location that was captured at a particular point over that night? Uh yes. So each of those center dots is the center of a uh 10 m accurate or better location record. Uh I chose to not show the accuracy radius circle on this image just purely because it it makes it hard to see when you've got all these uh intersecting lines. Uh but ultimately if you were to draw a 10 meter radius around all of these points, they would all fall within the large red circle uh that's shown. So this photograph was meant to take readings from the most accurate of the data throughout the night. Correct. Your honor, sustained. Ask it again differently, please. Um was this circle did it include low frequency data? Uh no. This circle only includes 10 meter accuracy or better. Okay. The fact that the center dots are in different spots, um, is that inconsistent with a phone being in the same place, not moving that entire knife? Uh, it could indicate movement. It could indicate refinement. Is it impossible to tell? It's impossible to tell at this level of of detail. Anyway, are all of these dots given the um the range 10 m or under are all these dots and all these readings of the high frequency data that you compiled for that night? Are they all consistent with Mr. O'Keefe's phone being near the flag pole and not moving that night? Objection, your honor. I'm going I think that's a reasonable assumption. All right, this might be a good spot. Are you ready to move on to the next area or you have any more questions about Now would be a fine time, your honor. All right, folks. Why don't we take our morning break? 15 20 minutes. See you back there. Thank you. Please rise for the jury. Hey there, Karen Reed, trial watchers. You know what? A lot of the trials we cover remind me of that the world is unfortunately very unpredictable. And I'll tell you what, having a great lawyer matters so much. That is where a great partner and sponsor Morgan and Morgan comes in. This is a firm with over a thousand attorneys. You know why? because they win a lot. In the past few months, Morgan and Morgan secured a $9.3 million verdict for a car crash victim in Florida, a $5.6 million verdict for another car accident victim in Atlanta, and not to mention $1.8 million in Kentucky after insurance offered them a mere $5,000 in that case, and even if you think your case, you know, isn't worth millions of dollars, why not start a claim and fight for what you deserve? Morgan and Morgan makes it so simple. You can start a claim from your phone in just eight clicks. That's it. It could all be done on your phone. So, if you're injured, you can easily start a claim at forthepeople.com/lcive by clicking the link below or scanning the QR code on screen. Let's close the session. Be seated. All right, Mr. Brennan, whenever you're ready. Mr. Whiffen, before we go into the next subject area, I'd like to ask you about the location data. Based on your review of the location data, do you have an opinion whether the location data throughout the evening is consistent with John O'Keefe's cell phone being near the flag pole the entire night? I believe it is. Yes. I asked you whether you had an opinion whether it was consistent with I didn't ask you if you had an opinion to a reasonable degree of scientific certainty. Are there other things that you looked at that you will consider in addition to the location data to have a more certain opinion. There is. And is the next thing that you considered Apple healthcare data? It's the Apple Health data. Yes. We asked about it or I asked you about it earlier on, but I just want to talk about it a little bit before you show us and present to us the data that you've compiled for us. Um, is Apple Health data different than when you have like an Apple Watch? Uh, no. It's the same Apple Health data recording on the phone or the watch. Uh the only difference is the sensors being used uh to do that monitoring. So if you're just using the phone, uh obviously you're only using the sensors in the phone. It's limited to uh to steps walked and to altitude climbed. If you're wearing a watch, it can also do those things, but it can also uh add things like blood pressure monitoring and things like that. Does Apple Health data require an internet connection? It doesn't. No. So, it's all self-suffic. It is. So, without having an internet connection, it will still store the data. Correct. If I have a an iPhone, is it storing health data even if I didn't ask for it to do so? Yes. Unless you actively turn the feature off, uh, it will by default try to track movement. Is it something that is hidden that I wouldn't see unless I look for it? Uh, no. There's an application for Apple Health and then the settings are quite obvious in the settings screen. Apple Health data um tracks movement of the phone. Correct. When you were considering the Apple Health data in this case, did you begin looking for the Apple Health data before Mr. O'Keefe's phone began approaching Fairview Road? Uh yeah, I started again at around midnight uh and looked at the health data up until 6:30 a.m. on the 29th. The different points when you tracked Apple health data um is that helpful even if you're only trying to isolate a certain point in time. Uh it can be. Yes. Does it help um determine whether or not it was working properly? If it was it it can determine whether it's working properly. it can determine uh an average kind of walking speed for example of a person uh the average gate that the person may walk with. Uh if that was important if a person has an iPhone and they're moving and it registers Apple health data and then they stop moving and the healthcare data doesn't register because there's no movement. Would the Apple Health data uh resume movement even if somebody else picks up the phone? It it would it the phone itself doesn't care who's carrying it. Uh it just looks for movement. So it doesn't identify the owner in order to register movement. Correct. Your honor, does it identify the owner in order to register? Better question. Uh it doesn't. No. Okay. Could you turn to the next uh part of the data analysis that you did? Yes, please. Uh so the two sources that I got the Apple Health data from uh were a database called Apple uh sorry health dB_secure.sqlite. Uh this uh as I said earlier is the typical database that's used to store long-term information uh about the health activity that's been recorded. So this database can have years worth of steps taken, flights climbed, uh, and any other kind of health data that's been recorded. Uh, the downside to that is that the the information is aggregated. So you see chunks of time and multiple activities can happen within those chunks of time. The cache encrypted C uh.SQL light database is much more temporary but is much more granular. So we can see exact times uh that flights were climbed for example or at least you can see the exact time that the flight climb uh was recorded to the device and then that information is aggregated into the the larger chunk of time. Uh so again we might see within the cache encrypted C individual flight climb events that occurred uh for example 30 seconds apart. Uh but by the time that information is written to the health DB secure, you're now looking at a 10-minute time period with three flight climb events as opposed to three individual flight climb events with individual time stamps. Uh typically that source is not uh used because the data is not stored there for for very long. The information I found on John's phone uh was essentially uh these five records. So between 11 minutes and 9 seconds and 21 minutes and 5 seconds, there were 170 steps uh recorded by the device. Mr. Wiffin, I'm going to stop at each one and ask you some questions. At the time period between 1219 12215, um you don't have any independent information where John O'Keeffe or his cell phone were, do you? Uh the location data that I showed to begin with on Washington Street was around uh 12 minutes after midnight. So the presumption is that's where the location was uh at that time and then 21 minutes and 5 seconds the device had already started using ways. It was already driving uh along uh Denim Street or had turned onto Maplecoft. What time did you say that ways was initiated? Uh it was approximately 19 minutes and 30 secondsish. Thank you. Uh again we see at 21 minutes and 10 seconds until 24 minutes and 22 seconds there are 80 steps recorded. Uh and again if you compare this to the location data we know that the uh device was in a vehicle at this time. uh between 22 minutes and 14 seconds and 24 minutes and 37 seconds. We have three flight time events that are aggregated into that time period. Uh and again the location data shows that the the device was traveling in a vehicle at that time. Mr. Whiffin, you had showed us a slide of 2437 on January 29th, 2022 in your PowerPoint presentation, noting at that time 12 2437, the phone in the car was still traveling at 1.4 mph. Correct. This is about a second before it came to a stop. Can you conclude to a reasonable degree of scientific certainty that that period of 12224 to 122437, Mr. O'Keefe or at least Mr. O'Keefe's cell phone was still in that car. Yes, the location data shows it was in the car at the time. Uh, and my next few slides will demonstrate uh why that that we're still recording a flight climb event while it was in a vehicle. Thank you. Uh, at 31 minutes and 56 seconds until 32 minutes and 16 seconds, uh, there were 36 steps recorded. Uh and then there was no further health activity recorded on the device for several hours uh until 4 minutes after 6 a.m. Uh when a uh 432 steps were recorded between the time of 604 and 611. Let me ask you about that 12:3156 to 123216 time period. We can see larger ranges in the time period range. That is a smaller range comparatively. Yes. Okay. At 12:3156 is that the beginning of the 36 steps. Uh essentially, yeah, it takes the time stamps from the cache encrypted C. Uh looks at when the first step occurred, looks at when the last step occurred and aggregates the times based on that. So 12:30 to 16 would be the last steps taken for that cell phone. Correct. And in between that time period there's 36 steps you shared earlier that it doesn't indicate the direction of the steps um other than the movement that equates the steps. Can it tell anything about um what direction the positioning how the phone was moving? It can't. No, it's just purely registered what it thinks are 36 steps. Could it have been a straight line? It could have been a straight line. Could it have been somebody pacing? It could have been. Could it have been somebody moving and jumping? Yes. Uh jumping if they were jumping uh forward essentially after 123216 when this phone took its last steps it never moved again. Your honor. Form of the question sustained. After 12:3216, when this phone took its last steps, did it move again until 6:0401 a.m.? There were no more uh steps or flight climb or any other health activity recorded during that time. Do you know what triggered movement at 6:041 a.m. of Mr. O'Kee cell phone? I presume that the device was moving at that time, but I don't know the details of of who. I'll strike it. Please continue. Okay. Uh, regarding the flight climb events, uh, looking at the cache encrypted C database, I was able to find uh, more granular, accurate timestamps for these records. Uh and I showed those timestamps on this map uh at the position that the device was according to the location data at the time. So you're you're going back to earlier in the evening now 122214. Correct. To 122437 when the phone stopped near the flag pole. Correct. Okay. Thank you. So we have the first record at 2217 a flight climb event was recorded. I've highlighted that with a red line and that equates to the red line that shows underneath the time stamp where the location was uh where the device was uh at that time. The second record is 22 minutes and 32 seconds showed with a green line which shows over here. And then finally uh 24 minutes and 37 seconds after midnight shows with an orange line down here outside 34 Fairview. uh like to point out that health activity events are recorded upon the event completion. The device doesn't know that you're about to walk up some stairs. It doesn't know that you're halfway up some stairs. It has to wait until you've reached the top in order to detect that a an altitude change has occurred. Uh so that change only uh gets written to the database once the flight climb has ended. Uh I tested approximately eight different phones, different models, different versions of iOS. Uh and found that on average there was a time difference between 15 and 50 seconds between when I physically uh stopped walking up a flight of stairs and when the record was made. So it's just based on the time that the device takes to to pull the altitude, detect that an altitude difference has occurred, and then write the data to the database. So then I took that average data between 15 and 50 seconds and plotted it onto a uh this graph which also plots the altitude of the device over time. So the red line here shows the the time according to the cache encrypted C database uh where the first flight climb event was recorded at 22 minutes and 17 seconds. working back 15 seconds from that to say that uh with the the gap that I know exists between the flight climb ending and when the records recorded, the flight climb event is presumed to have occurred within this red gradient area. The altitude information on the device shows that between those times uh the altitude increase from around 41 m to around 45 m. Uh you may recall earlier I said that it's a 3 m incline that Apple considers a flight climb event. Therefore the incline that occurred within this red gradient is sufficient to trip a flight climb event. When we look at the second record at 22 minutes and 32 seconds. Uh this is shown on this chart as a green line. And again working back 15 seconds and beyond to allow for the tolerance we see the green uh gradient area. Uh this shows an altitude change of around 45 m to 48 m. Again, that would be sufficient for a flight climb event to be recorded because we have 3 m incline change. We then don't see an incline change uh for a while. All we see is uh the device going downhill uh until we get the record right at the end there at 24 minutes and 37 seconds. And again working back around 15 seconds to the orange gradient we see an increase from around 25 to 28 29 meters. Uh again that would be sufficient to cause a uh flight climb event to be recorded. I'd like to ask you sorry I'll go back continue and then I'll ask you please. Okay. Uh I then compared that information to uh topology website from the area according to uh a topology uh website data uh and plotted that out. Here we see uh the red circle now is related to the first flight climb, the green circle to the second flight climb and the orange circle to the third flight climb. The gradients that we see here are the same gradients that were shown on the previous graph. So the presumption is that within this red gradient is where the flight climb event occurred. Within the green gradient here is where the second flight climb event occurred. And within the orange gradient here is where the third flight climb event occurred. The white circles uh show the altitude of that particular location according to the topology website. So again we see that for the red gradient there's an increase from 43 to 47 m. uh between the green gradient and the uh the green number two. Again, we're going from around uh 47 to 50 m. Uh and then with the orange gradient at the bottom, we've gone from around 26 to 28 m. So, fairly consistent with the data that was recorded uh on the device in terms of altitude information. uh and I would uh suggest is the reason that these flight climb events occurred. Mr. Whiffin, there's three different times. The first is 12:227. At that time, was the ways data app initiated? It was. And did that indicate whether or not Mr. O'Keefe or his phone were traveling in a car at that time? uh appeared to be still be traveling in a car at 12:22. Was the ways data initiated and active? Uh it was. Yes. And at that time, does the data indicate that Mr. O'Keefe's phone was in a vehicle and moving? It does. And you showed us a slide finally from 122437 that the vehicle was still moving 1.4 mph. Correct. And was the ways data initiated and active at that time 12:2437? Uh if I remember correctly ways had closed about 5 or 10 seconds earlier. Now based on your study of the waves information, the location information, the topography and the healthcare data, do you have an opinion to a reasonable degree of scientific certainty whether the indication on the healthcare data reflecting flights of stairs? Do you have an opinion whether or not that was registered as a result of a person holding a phone walking upstairs or for some other reason? uh based on the location data, the health data and the research that I did and the testing uh I believe it is more likely that the device was in a vehicle traveling on a road going up uh an incline versus uh the location data being incorrect and the person being walking up physical stairs. Thank you. You can continue please. Okay. Um, so I I'll address the idea of three clocks, uh, which I I believe was brought up, uh, previously. Let me let me interrupt. Sorry. Um, why don't we just explain to the jury how clocks work in an iPhone? Uh, that is kind of covered in the next slide. Anyway, okay. Maybe worth just jumping ahead to that slide. Explain the idea of three clocks. Yes. Um essentially there is one clock on an iPhone. It's the clock that you see uh it's shown in the top corner and all activity is related to that particular time. So when you receive a text message the time that's shown in the database is related to the time that you can see uh on the phone. When you do health activity it's related to the time that you see in the top corner of the phone. Uh you know everything is related to that time. Uh the difference is within the current power log databases, it's a a subset of files stored on iOS devices. Uh they use what's called a monotonic clock, but it's not a clock that can actually be trusted to uh see when events occurred. Uh it's it's the way that the device records time. It's essentially a counter that's just counting seconds since the device was reset basically. Uh, and I'm sure most people can recall uh a time where you would set a clock on a digital device. Uh, come back to it 3 or 4 months later and the clock's now not quite as accurate as it was when you left it. Time starts to drift. It might drift forward and be faster. It might drift slower and be further behind. That essentially happens with the monotonic clock as well. Uh so you have to take the values that the monotonic clock provides and add or subtract different values which are essentially offsets in order to to get the accurate time. Uh and that's what I'll be displaying in in this slide here. Uh the confusion with the idea of three clocks I believe comes from the way that uh magnet Axiom product displays power log data. They show a monotonic date and time, a bassband date and time and a display date and time within the power log records. Uh, as an examiner, it's really good to see this data and understand uh how the the tool is determining these values. As an examiner, it would be really bad to look at these values and think that they are accurate time stamps at face value because they aren't. and I'll I'll start to talk through how this information uh works. So the other thing that that Axiom shows as well as the monotonic bassband and display times is they show the location where this information came from. In this case uh we have two tables. One is called PL springboard agent event forward s block and that is what this table is here. And you can see we've got an ID number, a time stamp, and a value of locked. But we also show a second table that's involved called PL storage operator, event forward, time offset. Uh, and that's this table at the bottom here. So again, we see there's an ID, a time stamp, bassband, kernel, and system values. These values all need to be read together in order to make sense of the data. So for example, if I take the time stamp that's shown here, uh the the 1643 uh 33687 uh number if you treat that as number of seconds uh since the 1st of January 1970, it's what we call a a Unix epoch. uh that will get you the time stamp of 29th of January 2022 uh at midnight 21 minutes and 27 seconds uh once you account for the uh the UTC minus 5 offset and you'll see that that is the same time stamp that Axiom shows here as the monotonic time 122127 what we need to then do is take that monotonic time and add it to the bassband value that we see in the time offset table so Now we have a value of 1643 uh 36 uh 87.14954 and we add minus 183 whatever this number is here to get this value. If we treat this value as number of seconds since the 1st of January 1970, then we get a time of 18 minutes and 23 seconds past midnight on January 29th, which is also the time that we show here as the base bank time. Finally, we can take the monotonic time and add the uh minus 181 seconds shown in the system to get this value which equates to 18 minutes and 25 seconds past midnight on the 29th of January which is the same as the display time up here. So all this is essentially doing is saying that the counter that is built into the iPhone is registered at the time of uh that we we see in the top the monotonic time. This is not necessarily the time that the event happened. You have to offset it with this value here in order to get the actual time that this happened. uh my own personal phone when I was doing this testing, the time difference between the monotonic time and when something actually happened was over two weeks. There was a massive difference because my phone has been drifting so far since I originally bought and set up that phone. Uh and again, when I was testing this, I can turn the flashlight on, turn the flashlight off. Both of those activities are recorded in the power log database. Uh if I just look at the the monotonic time, it's off by over two weeks. If I do this process to calculate the correct offset, it shows exactly when I turned that flashlight on and when I turned that flashlight off. The calculation is imperative. Without the calculation, these timestamps are irrelevant. uh and all Axiom is doing here is they're showing you the values that they use in order to calculate the final value. It doesn't mean that you can take the monotonic timestamp and read anything into it. It's completely irrelevant on its own. Is it necessary to understand this process in order to ensure the integrity of the time that you're offering to the jury so you understand whether it's accurate or not? It would be if we were discussing power log data. Uh power log data only really encompasses things like uh battery level, the uh the time and date that it's plugged in, uh button presses, camera usage, things like that. It doesn't count for location data. It doesn't count for Apple health data. Uh they both work on the system time and they both work on the same system time. So they're always going to be aligned. Do you have an opinion to a reasonable degree of scientific certainty as to the accuracy of the location data times and the accuracy of the health data times that you shared with us? Uh they'd be consistent with each other. Uh so to summarize that there's only really one clock that's in use on an iPhone for recording. Uh the only difference is the the monotonic time which is how power logs record information. But you need to to offset the times to to figure out when that activity actually happened. Uh and that you only have to offset those times for power log data. Not for health, not for location, uh not for messages or photographs or any other activity like that. Purely uh power log data. Okay. Is there another subject that you looked at that you analyzed in order to reach a conclusion about the time and location of John O'Keefe's cell phone over the night of January 29, 2022? Uh yes, the next one is battery temperature. Can you explain a little bit background on this before you start the slides? Uh so again we we have a temperature sensor built in within the phone monitoring for uh if the the battery temperature increases too high and becomes a danger or if the temperature gets too low and becomes an issue. Uh so it constantly monitors uh the temperature of the battery and records that information in the knowledge C database. Did you look into the battery temperatures from before midnight and after midnight and do an analysis regarding the temperatures of that cell phone battery? I did. Yes. Throughout the evening of the 28th of January and then the morning of the 29th. Mr. Whiffen, that's going to be hard to read. Is there any way you can enlarge it? Um, apparently not like that. Um, there we go. Thank you. Uh so on the evening of the 29th uh sorry the 28th uh see an average temperature of uh around mid80 uh degree fahhe uh I've got no understanding of of where the device was at this time whether it was in a pocket on a a surface whether it was in use or not. Uh but I just wanted to get an average idea of temperatures uh of the device. By uh 13 minutes after midnight, uh we're still at 82 Fahrenheit. At 22 minutes after midnight, we know from the location data that the device was currently in a car. Uh and we see the the temperature has dropped to 77 Fahrenheit. By 37 minutes after midnight, we now know the device is already at Fair View. It's been at Fair View for approximately 12 minutes. Uh, and the temperature has continued to drop. It's now 72 Fahrenheit. Mr. Whiff, if I can interrupt you, at 12:37, when the temperature drops to 72°, is that before or after the healthcare data stops for that evening? Uh, that's after. Thank you. Uh, 45 minutes past, the temperatures dropped to 66 Fahrenheit. At 53 minutes past, it's dropped to 61 Fahrenheit. At 7 minutes after 1, it's dropped to 55 Fahrenheit. At 136, uh, it's dropped to 50. And then we have a a large gap in the uh, in the data with the next record being made at 6 minutes after 6:00 a.m. when the temperature is 43 Fahrenheit. Mr. W. um if a phone has any protection or coverage. Um well, let me ask it this way. Do you know what if anything happened around 602 603 to trigger that 6° drop in temperature? Uh I don't know accurately no. Okay. And then you're now at 6:14 and it's 37°. Yeah, correct. This is the coldest temperature recorded. Do you know what if anything happened to that phone at 6151? Uh I don't know. Okay, please continue. Uh and then as of that point in time from 6:35 uh we start to see an increase in temperature to 43 Fahrenheit. At 640 it's up to 50 fah. At 648 up to 55 fah. and at 656 up to 61 Fahrenheit. And then also plotted this out onto uh a graph just for visualization. Uh again we can see on the evening of the 28th the temperature is relatively consistent. uh it starts to drop as we know the the phone is traveling in a car and by the time it arrives at Fair View we only see it drop uh until 1:36 a.m. Uh we see a relatively uh modest drop over the next few hours uh but no records recorded. uh we see the final drop at 614 uh and then we see an increase but there are no increases occur uh prior to 614 that would suggest that the phone went from a cold environment to a warm environment or had uh extensive usage between 1:36 a.m. and 6:06 a.m. Is there any indication at any time that that battery temperature went up? No, there's no records uh related to battery temperature at all for that time. Thank you. Is there another area that you looked at for um your conclusions in this case? Uh yes, I was looking at device usage. What is device usage? uh information about when the user unlocks the phone, what applications they're using, uh what they're using the device for, uh and when they lock the phone again. Would device usage require an actual person to interact with the phone or can it happen without user interaction? Uh everything that I was looking at was related to physical interaction and manipulation of the device by a user. Okay, please continue. Uh so the three sources of data that I used for this uh were knowledge C uh database I mentioned earlier that logs lots of different activity including uh device unlocks, device locks, applications that are on screen. Uh the current power log which I mentioned uh which can track button presses uh so specifically when the lock button is pressed and the times that I display have been offset appropriately. uh and unified logs uh which is essentially a list of uh almost everything that's happening on that phone for a short amount of time. Uh but it would be used for example uh if you had a problem with your device took it back to Apple because it was crashing all the time for uh let's say they could look at the unified logs and figure out well what's causing these crashes to occur. So really granular. Uh we see that at 12 minutes and 52 seconds after midnight, the device is unlocked using uh biometric Face ID. The SMS application is on screen uh for about 5 seconds before it's closed and then the user presses the lock button at the side of the device to lock the uh the phone. At 13 minutes and 54 seconds, biometric Face ID is used again uh and the SMS application is opened. And at 14 minutes and 29 seconds, the lock button is pressed again, causing the device to lock. 15 minutes and 46 seconds, the device is unlocked using Face ID. The SMS application is already on screen because that's the application that was on screen when the device was locked. And the device is locked again at 1603. Uh at 17 minutes and 59 seconds, the device is unlocked again using Face ID. Uh the SMS application is still on screen from before and at 18 minutes and 12 seconds the lock button is pressed causing the device to lock. At 18 minutes and 25 seconds the device is unlocked using Face ID. Uh the SMS application is already on screen from the previous usage and at 1831 the SMS application is closed. At 18:34, the phone application is opened by the user actively pressing on the phone icon on the home screen. At 18:36, uh they're now in a call and this causes a different screen on the phone. Uh and at 1923, that phone call ends. At 1929, the ways application is opened by the user pressing on the icon on the home screen. Uh, and that's open for approximately uh 5 minutes, closing at 24 minutes and 26 seconds. 2 seconds later, at 24 minutes and 28 seconds, the device is locked by the user pressing the lock button on the side of the phone. At 24 minutes and 59 seconds, the device is unlocked using Face ID. The SMS application is opened using the icon on the home screen. And at 25 minutes and 9 seconds, the lock button is pressed by the user to lock the device. At 27 minutes and 45 seconds, the device is unlocked using Face ID. The SM SMS application is already on screen. And at 27 minutes and 50 seconds, uh the device is locked using the lock button. 29 minutes and 52 seconds, device is unlocked using Face ID. SMS application is already on screen from the previous usage and at 29 minutes and 53 seconds the lock button is pressed uh to lock the device. 32 minutes and 4 seconds the device is unlocked using Face ID. SMS application is already on screen from the previous use and at 32 minutes and 9 seconds uh the lock button is pressed by the user. Uh and that is the final interaction uh with the device. It's the the final unlock of the device uh using Face ID and it's the final uh logged button press on the device as well to lock the device. So, the final interaction with John O'Kee's cell phone that night. Correct. Up until uh 6:15 a.m. in 12:320 was the last time before the phone moved again the next morning. Correct. Is there one more area that you engaged in analyzing to help reach your conclusions in this case? There is. Uh during my time looking at the unified logs that were mentioned, uh I found a record that appeared like it could be interesting that was called Doppler. Uh this was the the pocket state that I think I mentioned earlier and it detects when the user uh takes the phone out of the pocket or at least removes the uh the item that's blocking the camera. uh there were hundreds of thousands of records uh within the unified logs that I was able to filter down to just the Doppler records uh and to filter and aggregate down into a more uh digestible number uh which is what's shown here. So again, whenever the the device receives a phone call or whenever the device is picked up in a particular way, uh the camera activates and it actively looks for a face. If it finds that the camera is blocked, it records uh the fact that it's in a pocket state and it will continue to record pocket state until either uh the the obstructions removed, so the device has been removed from a pocket or until uh whatever is calling uh for the Doppler check uh to be completed. So for example, if I make a phone call, it will continue to check and look for a face up until the phone call ends or the the the ringing ends. So in this case at 12 minutes and 37 seconds, see a small amount of time where four Doppler checks were conducted. Uh and that ended at 12 12 minutes 37 seconds uh with a pocket state cleared event. At 12 minutes and 39 seconds, there was a 7 1/2 second period where 108 Doppler checks were conducted. Again, that ended with a pocket state cleared event at 12 minutes and 46 seconds. At 25 minutes and 8 seconds, there was a single uh Doppler check that resulted in a pocket state. And at 29 minutes and 37 seconds uh for 5 1/2 seconds roughly, there were 97 Doppler checks. The 97th check resulted in a pocket state cleared event at 29 minutes and 42 seconds. At 31 minutes and 52 seconds past midnight, there was an 11second period where 155 Doppler checks uh were made. The 155th Doppler check resulted in a pocket cleared event at 32 minutes and 3 seconds. At 33 minutes and 14 seconds was the start of a 5 hour and 20 minute period where 26 and a half thousand Doppler checks were conducted. Every one of those checks came back to say that it was in a pocket state. There was never a pocket state cleared event during that time. At 2 minutes after 6:00 a.m. uh and 41 seconds, there was a 12minute period uh and 22nd where 417 Doppler checks were conducted. The 417th uh Doppler check showed a pocket state cleared event at 6:15. Mr. Whiffen as a result of your analysis of John O'Keefe's cell phone considering the location data including ways data and considering the healthcare data the pocket state information the battery temperature did you have an opportunity to create a timeline putting all of these different important pieces of data together so you could show them to the jury in chronological order I did yes would Could you share with us now your timeline and explain it for us? Of course. Uh so again, this combines all of the information from the previous uh slides. Uh just showing it all within a timelined uh view. So at 18 minutes and 25 seconds, the device is unlocked using Face ID. Uh we see the SMS application is in use. um for around 11 seconds. A phone call is made uh from John to uh Jennifer McCabe. A phone call lasts 36 seconds, starting at 18 minutes and 47 seconds. That call ends at 19 minutes and 23 seconds and the mobile phone application is closed at 19 minutes and 24 seconds. At 19 minutes and 29 seconds, the Ways application is loaded on screen. And at 20 minutes and 49 seconds, which is what this uh location on the side uh relates to, we see an incoming message from Brian Higgins uh saying, "You coming here?" At 22 minutes and 14 seconds, this is the start of the three flight climb events. uh as the device is driving uh along uh Oakdale Road. I believe that one is at 24 minutes and 26 seconds is when the ways application uh is closed uh and the device is locked via the lock button at 24 minutes and 28 seconds. At 24 minutes and 37 seconds, the three three flight climb events uh comes to an end. And at 24 minutes and 38 seconds is the first record that shows a speed of zero meters per second. At 24 minutes and 59 seconds, the device is unlocked using Face ID and the message you coming here is read at 25 minutes and 8 seconds after midnight. At 25 minutes and 9 seconds after midnight, the device is locked using the lock button. At 27 minutes and 33 seconds after midnight, uh, a text message is received from Jen McCabe saying, "Here." At 27 minutes and 45 seconds after midnight, the device is unlocked using Face ID. And the here message that was just received is read. Uh, at 27 minutes and 48 seconds. At 27 minutes and 50 seconds, the lock button is pressed by the user, causing the device to lock. At 29 minutes and 37 seconds, uh, we start to get some Doppler uh, checks. And at 29 minutes and 42 seconds, uh, the pocket state cleared event is, uh, written. At 29 minutes and 44 seconds, there's an incoming call from Jen McCabe. This is answered and lasts for 7 seconds, uh, ending at 29 minutes and 51 seconds. At 29 uh minutes and 52 seconds, the device is unlocked and a second later, the lock button is pressed, causing the device to lock again. 31 minutes and 47 seconds after midnight, uh a message is received again from Jennifer McCabe saying, "Pull behind me." And at 31 minutes and 52 seconds, uh the Doppler check records a pocket state. At 31 minutes and 56 seconds, we start the health event that shows 36 steps were taken. Uh, and at 32 minutes and 3 seconds, there's a pocket state cleared event. At 32 uh minutes and 4 seconds, the device unlocks with with Face ID. Uh, and again, I'll point out that makes perfect sense if the uh the Doppler state clears because it's no longer within a pocket and then it unlocks a second later. uh that that makes sense with the logic that's been identified. At 32 minutes and 5 seconds, uh messages applications on screen and the message pull behind me is red. 32 minutes and 9 seconds. Uh the messages application is uh closed uh and the device is locked for the last time. At 32 minutes and 16 seconds, the 36step health event is uh is ending. At 33 minutes and 14 seconds, we have the first of the 26 and a half thousand Doppler state records that all record pocket state. Uh, this is followed by several phone calls at 33 minutes and 35 seconds, 34 minutes and 9 seconds, 34 minutes and 38 seconds, 35 minutes and 9 seconds, 35 minutes and 35 seconds, and 36 minutes and 9 seconds. Uh, all calls from Karen. uh call were all unanswered and all resulted in pocket state being detected by Doppler. At 36 minutes and 9 seconds uh and again at 36 minutes and 40 seconds, two more phone calls received from Karen again showing unanswered calls and resulting in pocket state uh being recorded by Doppler function. 37 minutes past midnight, battery temperature dropped to 72 Fahrenheit. And at 37 minutes and 8 seconds, a further phone call, again unanswered, again resulting in uh a pocket state recorded by Doppler. 37 minutes and 31 seconds, a 3second voicemail received from Karen. Uh and at 38 minutes and 21 seconds, uh another incoming call. And at 38 minutes and 26 seconds, another incoming call. Both unanswered, both resulting in Doppler pocket state being detected by Doppler. Uh, and I've also showed some of the locations uh that were recorded at around this time by the device. 40 minutes and 31 seconds. Uh, a message received from uh Jennifer McCabe saying hello. This is the first uh iMessage or SMS message received by the device which is unread. Uh this is followed up 2 minutes later 42 minutes and 9 seconds by another message uh from Jennifer McCabe saying where are you? Uh and at 42 minutes and 35 seconds there's a 40 secondond voicemail received from Karen. 43 minutes past midnight, the battery temperature has now dropped to 66° F. Uh at 45 minutes and 53 seconds, uh another incoming message uh from Jennifer McCabe saying hello. Uh and again, we can see location data at 53 minutes and 7 seconds placing the device on the front yard somewhere kind of around the uh the flag pole area. Uh 55 minutes and 31 seconds, uh a message received from Karen stating, "I'm going home." 55 minutes and 50 seconds, uh a follow-up message saying, "See you later." Uh another location data, this is the location that's shown bottom left. And at 2 minutes past 1 a.m., uh another message from Karen saying, "Your kids are cooking alone. Mr. So whiff based on your analysis of John O'Keefe's cell phone keeping in mind some of the data points you shared with us that wave was initiated around 1219 that the car reached the flight wall around 122437 that the only health data during that later time near 12:30 was from 123156 to 123216. that the last interaction was at 123209 followed by an overnight pocket state and an increased reduction objection your honor I need to hear the question first including a reduction in the battery temperature do you have an opinion in to a reasonable degree of scientific certainty that after that phone stopped in the car at the flag pole area 34 Fair View whether or not that cell phone remained near the flag pole the entire night until after 6:00 a.m. the next morning. Objection. I'm going to allow it. Um the location data the location data that shows accurate tends to show around the flag pole area. There's no further health data other than 36 steps that were taken that suggest it moved uh after 32 minutes and 16 seconds after midnight. Uh the battery temperature data never indicates that the device went from a cold environment to a warm environment, which I would expect to see if the device went inside a building. Uh and the Doppler state information suggests that the camera was blocked for at least the majority of the 5-hour period uh with no uh records showing that the camera was uh unblocked during that time. uh which would typically happen if you were to pick a camera up and move it around. Does that lead you to a conclusion to a reasonable degree of scientific certainty? Yes. Whether that phone remained in the flag pole area from around 12 24 33 until the next morning at 6:00 a.m. or after objections sustained. Ask the question in a different form. Do you have an opinion where John O'Keefe's cell phone was from around 12:2433 on the evening of January 29th, 2022 through at least 6 a.m. and after that morning? Yes. Based on the totality of all of the information that we've described, my opinion is that the device never moved far away from the flag pole. I have no further questions. Thank you. All right, Mr. Lesie. approach. Okay, J feel free to stand up. If I may have a moment, please set up the Okay, Mr. Wiff, I should have told you you can feel free to stand up and stretch if you want to as well. Okay. Please. [Applause] Thank you, your honor. May I proceed with the administrative matters and may I approach? Yes. Thank you, your honor. Pursuant to a stipulation with uh the prosecution, I would like to mark and enter into evidence three documents. The these are each portions of a March 2025 report prepared by Mr. Whippen. The first one, so yes, they can come into evidence. They can come into evidence. There's a stipulation. So we can mark it as the next exhibit if we can. That's page 29 for the next exhibit. You want them marked separately. Separately, please. Is it 40? The next exhibit will be pages 77 and 78 of the same report. Okay. 41. The third and last is page 43. And [Applause] Page 44. Okay. All set. Thank you, your honor. May I your honor? Yes, please. Good afternoon, Mr. Whiffen. I don't believe we've had the pleasure of meeting. Good afternoon. Um, cell phone data when correct and when correctly analyzed can help tell a story of what may have happened under various circumstances. Correct. Correct. And in cases like this, literally seconds on cell phone data can be significant. Correct. Correct. What I'd like to do is to go back to your PowerPoint presentation and specifically go to uh the timeline that you had gone through with Mr. Brennan and rather than repeating everything, there'll be select aspects of the timeline I'm going to reference and with the court's permission, we will put the timeline back on that's already in evidence. Okay. Thank you. So, what I'd like to do is to start with page uh 70, which we have is 78 of the deck. If you could uh Mr. Wolf, go to [Applause] that. And what I'd like to do uh if I could please, Mr. Whiffin has draw your attention to the very last entry which says loc at the bottom location 122438 and it indicates description first location record showing speed of zero. Do you see that sir? I do. And this is the arrival of John O'Keefe's phone at 34 Fair View. Correct. Correct. If we could go to the next page, please. We have up at the top 12 2459 about uh 21 seconds later after arrival, we have device unlock with Face ID. Correct. Correct. Is it possible for anyone other than John to unlock that uh device with Face ID? if a secondary user was set up. Do you have any indication that a second user was set up on John's mobile phone? I never looked at that. I'm sorry. I'm I never looked to see if a secondary user was was set up. In terms of the next entry 122508, it says read message you coming here with three question marks. What I'd like to do because you did not note who that was from, but I want to go back a few slides so we can identify who that message was from. We could go back to 76, please, Mr. So in the last line there message reading uh left to right 20 122049 it says message received from someone listed in context as Brian Higgins. Do you see that correct? So, if we could go back to slide 80, excuse me, if we could go back to slide 79, that phone reading the message, you coming here is reading the message from Brian Higgins. Correct. Correct. But you you didn't note that in the timeline that that was from Brian Higgins. Correct. Uh, no. I was just highlighting the fact that a message was read and that the contents of the message were you coming here. But you didn't note in this entry when it was read by John that that message was from Brian Higgins. Correct. Correct. Now the next entry lock again I'm always going to be leading reading left to right unless otherwise indicated sir is a time of 122509 and it says device locked with lock button. Yes. You see that sir? I do. that requires human valitional conduct. In other words, someone has to actually manipulate their phone and and hit it. Right. Correct. Now at this particular point, isn't it correct that in your report that you mentioned in your direct your March 2025 report that you had more of a description of what was happening at this time with the phone, namely devicebearing shifts to a westerly direction as Location records also show the device moving west from the roadside towards the house. Isn't that what you had in your report? Yes, that's covered in the location section of this report, the PowerPoint. So, so there is no statement in this timeline under any type where you had concluded that at this time the record showed that the device was moving west from the roadside towards the house. Correct. uh the location latitude longitude was moving westerly but at the same time the accuracy was increasing so it didn't intrinsically prove that the device was moving my my question Mr. Griffin is straightforward in this sense that I'm just looking for an answer of whether on this timeline you included the analysis that you had in your report that the device at this time was moving west from the roadside towards the house. Did you include it in that time? No, I left out of the timeline. Next entry 2733. That's 122733. You you note that there's a message received from Jen McCabe here. Exclamation point question mark. You see that, sir? Correct. Now, at this point, you have two people in just 2.5 minutes, Brian Higgins and Jen McCabe, trying to find out if the John is coming to 34 Fair View. Is that a fair conclusion? It appears so. I'll allow it. Is that a fair conclusion? It would appear so. So just because of the colloquy that occurred I want to repeat the question. Now you have at this point at 12:2733 you have two people Brian Higgins and Jen Jennifer McCabe in just 2.5 minutes trying to find out if John or the phone is coming to John is coming to 34 Fair View. Sustained. Ask it differently. Thank you, your honor. Now, at this point, you have two people trying to find out if John is coming to 34 Fairview. Correct. Object. Sustained. Mr. Whiffen. In terms of the information at this stage, there are two communications with Mr. O'Keefe on this phone. and that is they're trying to find out uh excuse me I'll rephrase it there are two communications one from Jennifer McCabe and one from Brian Higgins correct correct now let's go to the uh next uh deck 80 please Mr. Well, this is 20 uh 122745 device unlock with face ID. Correct. Correct. And then right under that is 122748. It says read message which it says here. And is it correct that that is the message that was sent by Jennifer McCabe? Correct. I I'd just like to point out it says read message, not read message. Red message. Thank you. And and that the fact that Jen McCabe sent that message and that it was read was not indicated in your timeline at this point. Correct. Uh sorry, repeat that question. Yes, you did not. It does not appear in that timeline that you've drafted that that message that was read was from Jennifer McCabe. Is it correct? Correct. Next entry 2750 device locked with lock button. Next entry down that 2937 Doppler pocket state. And I want to want to be clear. Does Doppler pocket state mean that someone takes an iPhone? because up above there's red messages we went through on 2748. So if somebody reads the message and then it goes at 2937 into Doppler pocket state, does that mean someone has for example put it in their pocket? No. What does it mean that that it's a pocket state? So, the only times that I was able to cause a pocket state to be recorded uh is when the camera was blocked and when the uh device received a phone call or was picked up in a particular um in a particular way so that the the device thinks that you're about to try to use it. Um if the camera is not blocked from the outset, then nothing's recorded at all. Uh, and in order to get the pocket state cleared, the camera must be blocked to begin with. So again, you have to receive a phone call with it in your pocket and remove it in order to get a pocket state cleared. Thank you. Because that helped me because that's exactly where I was going with the next question, which is pocket state cleared. What did you conclude from 2937 to 2942 that it was in pocket state and then pocket state cleared? Uh there was some activity on the device that caused the pocket state to be checked. Uh the device was in a pocket state up until 2942 uh when it whatever was obstructing the camera was removed. Next entry is a call at 12:2944 and that you state is an incoming call from Jen McCabe. So there you do indicate the name and you say answered 7 seconds. Correct. Correct. Is the phone at this time that there's an incoming call from Jen McCabe that is answered out in front of 34 Fair View. Uh yes, it would be according to the location data. Right. So now we have at 12:2944 the phone's out in front of 34 Fair View. There's an incoming call from Jen McCabe. It's answered. 7 seconds is how long the duration of the call was. Is that correct? Correct. And then uh 122951 incoming call ends and that's that end of that second 7-second duration. Correct. So, you've concluded that this was a call that was indeed answered by the user of the phone. Correct. Correct. Now, let's go to um 12 uh Mr. Wal 81, which is starting up at the top of 123147. There is, as you indicate, an iMessage received from someone with a contact named Jen McCabe. You see that, sir? I do. Can you just state for the jury what an iMessage is? Uh, an iMessage is essentially a text message sent uh from primarily from iPhone to iPhone via the Apple servers. uh not like a an SMS message which goes through carriers and the is it correct that the message that was received from Jen McCabe said from a contact Jen McCabe says pull behind me correct and then at 123152 we're back to Doppler pocket state correct correct now let's go to the next uh entry which is deck 82. It's under health type. And what I want to do is is see if we can clarify the Commonwealth on direct examination and multiple times referred to this as healthc care data. Do you remember hearing that healthc care data term? I do. Is that a correct term? Is it healthcare data or is it health data? It's health data. So it's incorrect to refer to this as healthcare data. Correct. Health care data is encompassed within Apple Health, but primarily if we're talking about steps being taken, uh it would just be health data. Right. So the correct parliament is health data. Yes. Correct. Particularly when we're getting to steps. Is that correct? Correct. It's important to be precise about the parliament. Yes. So in this entry 31 uh 123156, you state that there's the start of health event quote 36 steps/25 m. Correct. Correct. Is it accurate to say that because we're in the United States and we don't work on the metric system that 25 m is about 84t? Are you able to make that calculation? Um, it's approximately that. Yeah. Right. Would you accept approximately 84 ft? So, as we discussed meters, we can go to feet and about I would accept approximately three times 25. Right. So, um, in your report of March 2025, isn't it correct that for this time, you stated that the device began moving for a period of 20 seconds. Correct? Uh, yes. So again your conclusion from your analysis is with these 36 steps the device at this point began moving. Correct. Correct. Next entry 12323 pocket state cleared. Correct. Correct. So does that mean that there's some human activity going on interaction with the phone or not? Uh it could have been a received phone call. It could have been uh movement of the phone to be lifted but but something has happened. But something's happened. Yeah. Next 123204 device unlocked with face ID. Correct. Correct. And then at 12:325 it states application focus messages. Yes. Can you clarify what that means in terms of what is happening with the phone for the jury? Yep. Uh so at 22 32 minutes and 5 seconds the messages application uh was in focus on screen. So it was the application that was being used by the user at that time. Now the next entry is message 12326 and it states red um red message quote pull behind me close quote. Correct. Correct. Now, you don't indicate who that message is from in your timeline, but that's the message that was sent by Jennifer McCabe at 31 12:3147. Correct. Correct. Next entry is application lock at 32 123209. And you've got here end application focus. And then you say device device lock with lock button for the last time. Correct. Correct. So that's again pressing the side button on the iPhone that locks it. Correct. And that requires human conduct, human interaction with the phone. Correct. Correct. And then the next entry under health data at 123216 that is 7 seconds after 7 seconds after the lock. It's the end of the health event of 36 steps 25 m and as we agreed approximately 84 feet. Correct. Correct. So in terms of the steps, I want to turn to some further information with regard to your previous your the report that you mentioned on direct which is the March um 2025 report. Your honor, your honor indicated a time for the break and I'm going to go into a little bit of different area. Would you like me to keep All right, Mr. Lesie. Um folks, we'll stop. Um turn on lights, please. Thank you. Mr. W, we need you back here. All right, jurors. We're going to recess for the day. Please um do not discuss this case with anyone. Don't do any independent research or investigation into the case. If you happen to see, hear or read anything about the case, please disregard it and let us know. And please be very careful with your social media. All right, we'll see you tomorrow. I'll see [Music] Good afternoon. It's just about 1 o'clock Eastern time. I'm Anget Levy and you are joining us live for our lunch show Q&A. This is the Karen Reed retrial and this morning the jury heard from Ian Wiffin. He is an expert, a celebrate expert and he really uh talks all about uh John O'Keefe's cell phone and the activity on John O'Keefe's cell phone on the last day that he was alive in that early early morning hours that um he was alive uh before he passed away. So, uh, we have a guest with us today to take all of your questions. Submit those questions to us in our live chat and we will get to as many of them as we can during this lunch hour. Safa Robinson Ferrer is here with me. Um, Sappa, I'm wondering what did you think of Ian Whiffin's testimony this morning? You know, it was very, very detailed. We heard a lot about John O'Keefe's cell phone, the temperature of the cell phone, where Ian Whiffin believed it was located uh during those early morning hours, and also um his health data, his Apple health data and his wise map data. So, there was a lot going on here. Some of some of it was very dry, but it's very important information. Absolutely. And so, what Mr. Wiffin is doing is establishing a a timeline of events with respect to the deedent cell phone, what time the phone was active. Um, and you heard testimony about what the temperature of the battery was at a certain amount of time, when he was unlocking that phone via face unlock, the face unlocking button. Uh, you heard testimony with respect to when he was sending text messages, when they were read, when they were read by other individuals. And so all of those things essentially go to show that the deedent was alive at that time, what the activity was and what he was doing. So that it establishes in a chronological order essentially a timeline of what he was doing at a particular time and then when that time stops and ultimately would likely be around the time of his death. Uh Safa, what I really thought was interesting was the discussion about the temperature of the cell phone battery. I think that's really key in this case because essentially the Commonwealth is saying that that phone battery the temperature went down gradually over the hours but then there was a sudden um drop in temperature when the EMTs arrived and they picked up John O'Keefe's body and so the Commonwealth is basically saying well the phone was underneath John O'Keefe's body the entire evening and then the phone that battery temperature dropped after the EMTs came lift up lift up John O'Keefe's body and then you know you know what happens if you're out in the cold you're out in the cold and your cell phone battery just zaps you know it goes it goes from you know maybe 100% to 80% in no time at all so I think that's going to be really key this time around is looking at how slowly and then how quickly that cell phone battery charge dropped with the temperature. Yes. And what's going to be interesting is when when we hear the testimony of the EMTs, um, in what position was his body when he was ultimately recovered by them, you know, was he face down and where specifically was the phone located at that time? And you heard testimony from Mr. Wiffin about the pocket setting of the phone. Now, I would think and I would imagine and of course, you know, if a phone or a battery is close to somebody's body, a body temperature would would essentially make it a little bit warmer. But if he's face down, if he's in the snow and the phone is wedged between his body and the ice cold snow, you know, I would tend to think that once the EMT pick him up, then it could actually warm up instead of drop. So, it's going to be interesting to see what the jury is going to believe when it comes to that and what opinion they're going to have. Yeah, most definitely. Uh, and I want to get to some of our questions, Sappa, because we always have really great questions that come in. Everybody keep those questions coming into the YouTube chat and we'll get to as many of them as we can um during this lunch hour. But this first one is very important, Safa, because it has to do with what is going to happen after lunch. Um, and this question comes from Hubgrass and Janette, my question is why are they taking so many half days? Do they want to drag this out as long as possible? The answer to that Safa is no. Um, the reason they're doing the half day today for the jury is because there's going to be a voadier in the afternoon of the Arca crash scene reconstruction experts that the defense has employed because uh there's a question about whether or not Alan Jackson should have turned over a hundred or so text messages, text message exchanges he had with these experts. He didn't turn those over. The defense is saying they didn't have they don't have those, but the judge is saying you should have those. and the Commonwealth is saying, "We know they exist." And so the judge is really upset about this because those should be turned over to the Commonwealth so they can examine those communications. So there's this whole thing about these ARCA defense witnesses and whether or not they had a a closer relationship with the defense uh than they really had. So that's part of the reason there's a half day today. So Safa, what are your thoughts on this whole issue? You know, once we get to the point of trial, and it doesn't matter what state you're in, discovery is required to be disclosed. It's required to be disclosed from the prosecution to the defense. And the defense also has a discovery obligation as well to turn those things over to the prosecution. This case will likely hinge on a battle of the experts. So, the prosecution's expert versus the defense expert. And if they are um if the text messages are evidentiary in nature, then those should have been turned over. Now, one of the things that attorneys, whether you're a prosecutor, a defense attorney, um one of the things that comes into play is whether or not, at least here in the state of New York, is whether those text messages are what we call Rosario material. So, were they notes taken by the witness as they were, you know, maybe preparing or reviewing reports and things like that, handwritten notes that were created? Rosario material is technically disreario material is technically required to be disclosed before the witness takes the stand. Um this particular witness this afternoon there's going to be a voadier conducted which is just essentially questioning of this witness as to maybe what his qualifications are if he can be declared an expert witness. um what is the nature of the text messages and what capacity were those text messages formulated in order to determine if he is going to be able to testify in front of this jury or if he's going to be kept out as a result of the failure to disclose. Yeah. And the judge has ordered ARCA and and another one of our questions is what is ARCA? And ARCA they're a crash reconstruction firm. I mean, that's not the only thing they do, but they they do a lot of different things, but they were first brought into this case uh for the federal investigation. Uh the the feds apparently used them and then the defense brought them in. And there's there's a lot of back and forth depending on who you talk to about when exactly the defense came to know these experts from ARCA. And so the ARCA experts testified in the first trial that John O'Keefe was not hit by a vehicle. Um so and that you know basically this is key for the defense. These are they're big big experts. But then it came to light after you know that the the defense is acting like well these were government people, government witnesses. Um you know even during the trial they they acted like they didn't have any interaction with them during the first trial. But then it came to light recently before this first before this retrial that ARCA out of the blue the defense was shocked when Arca sent them a bill. um apparently after the trial. Uh so there's a lot of there's some speculation and suspicion Safa that maybe the defense was more uh cozy with ARCA than they than they are letting on. It's very possible, you know, in our profession, you know, attorneys and prosecutors or criminal defense attorneys and prosecutors, we tend to know the same witnesses. If you have, for example, an accident reconstruction uh expert that's a witness, they're used all the time. They're used, you know, from state to state depending on their qualifications. They can be used as prosecution witnesses. They can also be used as defense witnesses. And just because an individual that's an expert is a witness for, say, the prosecution doesn't necessarily mean it's a bad thing for the defense, and it doesn't mean that they ultimately can't be used as a defense witness later down the line. Um, again, this is a retrial, and it seems that now Arca is is acting as a defense witness. be interesting to see what the prosecution tries to get out of this witness. Um, and why they would not call him or the who whoever the individual is. Why would they not call the individual as their own witness like they did in the first trial? So, things to think about and we'll certainly see that by the end of the day today or tomorrow, I expect. Yeah, this this could be a really this is a crucial and critical hearing for the defense in this case. and and it could it could we could find out that the judge is going to say no, you're not you're not allowed to testify. I I don't know if that'll happen or not. Um but they've been ordered these experts have been ordered to bring all communications, whether they are emails, whether they are text messages, encrypted messages, everything. They've been ordered to bring all communications. Uh the defense says, you know, we don't have these 100 text messages that you're referring to. Um the judge says, well, you were required to keep that stuff. and Robert Allesie said, "Well, we can't hand over what we what we don't have." So, it'll be interesting to see if they actually bring these communications when they show up and when they testify. Um, I do want to mention to everybody though, uh, this is a retrial as we've been discussing. Just to let you guys know, today we have the car, you know, there's this new podcast that we've produced. It's on Wondery Plus and Apple Podcast. It's called Karen the Retrial. It just dropped today, so you might want to check that out. Um, we did one during the first trial. Uh, check this out. This is a brand new podcast. I think you're really going to enjoy it. So, it dropped today again. Wonder Plus and Apple podcast. More questions now. Um, this question comes from Laura for you, Safa. Do you think the Celebrite ex expert Ian Whiffen, he testified in the first trial. Do you think he lost the jury with all of the technical information? Oh, listen. He lost me, too. you know, when we listen to the these technical things, it could get a little boring. It could get a little inundated, and that's just being honest and transparent. He is an important witness, though, and so hopefully the jury is still there listening, you know, as attentatively as they can um to his testimony because it is necessary. But I think the the the issue becomes if there's too much information, jurors get tired, they get bored, they stop paying attention, then they might forget about it completely. So, as a prosecutor, especially when you have a witness like this, that's really with respect to technical data, you have to really keep it simple, keep it quick, uh, keep it digestible for the jury to understand so that they're not getting bogged down with too much information and just check out. Yeah, most definitely. Uh, and he is a very important witness. I mean, he he's a very important witness. He's essentially testifying not only about John O'Keefe's um Apple Health data, about his cell phone. He's testifying as well about that infamous test text message or pardon me Google search of by Jen McCabe. How's long to die in the cold? She's saying she did it at 6:23 6:24 in the morning. Um, there's another thing that says though, the defense expert says it happened at 2:27 a.m. and that that shows there's this conspiracy and that she was googling this to see at 2:27 in the morning how long it would take for John O'Keefe to die out in the cold. Um, but Ian Whiffin testified, look, I, you know, I kind of talked to the defense expert about this and he's he's saying that search didn't happen. And it was because she went to a tab that she had open on her phone at 2:27 a.m. did that search and that's why it showed up that way in some of the results. So, how did you feel about how he explained that? Because as you said, it it can be a little dry and tedious, Sappa, but he is an important witness with a lot of important information. Most definitely. And I think the good thing about Ian Whiffin is that he essentially is a neutral witness. You know, he's not going to hurt the prosecution or the defense one way or another. He's just going to testify to the truth straight and direct. And his testimony is technical in nature. So, you really there's no change in that as long as he's testifying about the facts as he developed them and you know, all of those sorts of things. I think it's interesting about the text message search and we'll see how that ultimately comes out. um with these experts and with these competing points of view, whether that search took place at two something in the morning and if it was just at the um t click of a tab or if it was later in the morning or 4 something in the morning, whatever time it occurred, that's going to be an issue of fact that the jury is going to have to decide. They are going to have to decide if they're going to give more credibility to which witness um and what they believe the time actually was or why that search occurred. So those things will be what the jury ultimately decides and it really hinges on credibility. You know, is this witness more credible than the other? What makes more sense? So that's that's going to be what what it's going to come down to. Yeah. Which expert do you believe? That that's really who what it will come down to. Um this is a question you may not know the answer to, but I I think it's an interesting question. Um it comes from Addie. Less than three. Uh, my Apple Watch asks me if I fell if I moved too quickly, which that's very interesting. My my Apple Watch doesn't do that. Uh, how on earth did his health data not track being hit so severely by a vehicle that he died? Uh, so that that is interesting if he, you know, if he flew backwards. Um, you know, I I don't know. That's a pretty technical question, but but it's an interesting point I think that Addy R Addy raises like why didn't the phone show that or the Apple health data show show that or reflect that? Because I've never had my watch ask me uh if I fell or anything if I move too quickly. They they must have a different program or something. Yeah. So, it I don't fully know the answer to that, but I'll say this, like I have an Apple Watch, I have an iPhone. Um, what I do think happens is when your Apple Watch when you have it on your body, it tracks more accurate information. Not only that, but if it senses there's some sort of high impact to the body, it will signal off, have you been in a crash? Do you need help? Um, and I have had that experience, not the crash part, but anyways. And so with the phone, the phone may, and this is just my opinion, um, but the phone may not be able to track that information as accurately because it's either in your pocket or in your hand. With the watch, it's more closely directed to your pulse and on your physical body and would essentially feel with you um the impact of any crash or anything like that. But definitely an interesting question. um you know if there was an impact why didn't his watch alarm or or what specifically alarmed and the phone aspect to it. So very interesting question. Yeah, I think it's a really it's a really good point. I mean it it makes you wonder why why why didn't it happen? Um question from Roxy and this is a pretty good question. Uh, I have my own opinions on this, but Roxy asks, "Why do you think the Supreme Court, the US Supreme Court, they I mean the defense took this case to the US Supreme Court as the trial was beginning um rejected Karen Reed's double jeopardy appeal. Um, you know, I I'm not privy to, you know, the appellet arguments that that the attorneys made. Um, but essentially something with respect to what at least was presented or argued at the bench at the Supreme Court. uh the justices decided differently. You know, they had a different opinion based on either facts and law that are already established and or just their own opinion if it was an issue of first impression depending on the arguments that they've had. Um and with respect to double jeopardy, it's not that is not the issue. That's not a case of first impression. Double jeopardy has been argued for times time and time again throughout our country. Um so it's not a new issue. definitely smart on the defense aspect or the defense side to argue that. Um but essentially when there was the prior trial, I believe it ended up in a mistrial. Um that is not an adjudication. So she has not been found guilty with respect to that first trial. Once there's the finding of guilt, then jeopardy attaches. She cannot be tried again for the same crime twice. Um or anything transactional to that crime. So anything related to that crime. So if the police went and found additional information after maybe it and wanted to add a tampering with evidence charge, they wouldn't be able to do that because the case has already been adjudicated. She's already been found guilty. And so Jeopardy would have attached based on th these transactions all happening within the same nature or occurrence. Well, and it's really hard Safa to get the US Supreme Court to take on a criminal case. I mean, it's hard. They only hear so many cases. So, I think it was a long shot for them to go to the US Supreme Court anyway. It's not like the US Supreme Court takes every case when somebody goes. I mean, they they basically said, "We're not even going to like look at this thing." So, I I mean, isn't it really difficult for them to get the US Supreme Court to look at a case? It's super difficult. You know, I I don't see this happen quite often, if ever. I've never seen that happen with respect to something like this. A case that's still being litigated in state court and you have a double jeopardy argument that you're taking to the Supreme Court. You know, if anything, most of the time we'll see like in New York, we have the appellet division. You know, you might appeal to the appellet division or, you know, just a court of higher jurisdiction than the court that you were initially in or in in our highest court in New York is the New York State Court of Appeals. You would essentially, I would think, take it through those channels. So very interesting to hear that. Um, you know, obviously the justices decided that they weren't either going to hear it or agree to it. Um, but usually that that's very unusual. It's not common at all. Uh, our next question comes from Paca. Uh, Paca asks, "Why stop on questioning so important?" And the this is the cross-examination, I assume, of Ian Whiffin. The jury will forget everything they heard. It should have been completed. This was scheduled for a half day today. That's what the judge told um the jury. They were going to be in for a half day today. So, why do you think the judge though decided to cut this off exactly when she did Sappa the cross-examination of Ian Whiffin? And do you think the jury will really forget everything they heard? You know, this judge seems to run a very tight scheduling ship. So, I think why the cross-examine was cut off at cross-examination was cut off at the point that it was was because the judge said, "We're done by this time." Now, I don't like that personally. You know, I like if if we're going to have one witness on and the prosecution is going to go through their questioning, then the defense, we should be able to go through and complete our questioning and be done with this witness. I don't like peacemealing or going from one day to another with witnesses because jurors can forget. And this testimony that's been provided by Mr. Wiffin is already a little tough to understand and to sit through and listen to. So there is a higher likelihood that the jury might forget. Um they won't forget everything and that the defense attorney will be able to, you know, maybe refresh, you know, recollection as to, you know, some of the things discussed today. But I think it's always best that that cross-examinations and direct examinations be fully completed on the same day. I'm not sure they could have gotten through the entire cross without going much longer today. I mean, there may have been a lot of points that Robert Allesie wanted to hit and most definitely. So, what would have been better, at least in my opinion, and I'm no judge, um, is, you know, you can have the prosecutor direct examine this witness today and then tomorrow we'll do cross-examination. That way things are not as pieced about, you know, and we have one smooth, seamless examination of this witness without having to break things apart and risk people forgetting things on this already very technical testimony. Yeah, most definitely. Uh, and you know, we have another question now from Jennifer Patterson. Jennifer asks, "Will we be able to see the questioning of the ARCA witnesses?" Um, yes, that's a very simple question. Everything in this uh trial has been open to the public for the most part um except for the testimony in the first trial of the children um the the children that John O'Keefe was raising his niece and nephews. So uh we will get to watch that Sappa and it should be pretty revealing. Most definitely. And and Wadier is especi I I don't think or expect that the jury is going to be present. Um I think it would actually be improper for them to be present at this time. Um, which would also beg the question, it's interesting that the public gets to see it. Um, when this is something that is more tailored to ensuring that the witness has the appropriate information, is qualified. Um, and this issue with respect to the text messages and who had what information is also going to hinge on, you know, our ethical obligations as attorneys. Um, you know, things like that. So, you know, again, we're going to be able to see it. Um, and we'll see both sides take take cracks at this witness. And I think I expect that the prosecution is more than likely going to make an argument about this um as opposed to the defense. Um but all the defense can do is just put this individual on the stand to testify to what they truthfully know, what they truthfully did. Um and that's really it. That's really it. And then if he's going to he or she is going to testify any further on whatever date they ultimately testify, then we'll hear more from them then. Yeah. And I I'm really interested. I think everybody's interested to see the ARCA witnesses after lunch. So everybody stay tuned because we were we will definitely be bringing that to you live. Stay here on the stream so you can uh catch that. We will bring it to you as soon as it begins. Uh we want to look now at some of that testimony from Ian Whiffen from this morning. He's the celebrate expert and he had some testimony to offer about what he believes happened with John O'Keefe's cell phone that morning uh the morning that he passed away and where it was located exactly uh on the lawn there at Fair View Road. So, let's take a listen to that and we'll talk about it on the other side. I'd like to ask you some questions about this photograph. There's a red circle with a bunch of red dots in the middle. Yes. Would those red dots indicate the center of some location that was captured at a particular point over that night? Uh yes. So each of those center dots is the center of a uh 10 m accurate or better location record. Uh I chose to not show the accuracy radius circle on this image just purely because it it makes it hard to see when you've got all these uh intersecting lines. Uh but ultimately if you were to draw a 10 meter radius around all of these points, they would all fall within the large red circle uh that's shown. So this photograph was meant to take readings from the most accurate of the data throughout the night. Correct. Your honor, sustained. Ask it again differently, please. Um was this circle did it include low frequency data? Uh no. This circle only includes 10 meter accuracy or better. The fact that the center dots are in different spots, um, is that inconsistent with a phone being in the same place, not moving that entire night? Uh, it could indicate movement. It could indicate refinement. Is it impossible to tell? It's impossible to tell at this level of of detail. Anyway, are all of these dots given the um the range 10 m or under are all these dots and all these readings of the high frequency data that you compiled for that night? Are they all consistent with Mr. O'Keefe's phone being near the flag pole and not moving that night? Objection, your honor. I'm going assumption. All right. Okay. So, Ian Whiffin believes it's a reasonable assumption that that phone was near the flag pole through the entire night. Um, if you're the defense and you see that testimony, you knew it was coming, Sappa. But if you're sitting there watching the jury take this in, you've got to be concerned about that because you've got an expert uh in celebrate basically saying, "I believe the phone was by the flag pole the entire night." And then you've got coupled with that the um testimony about the cell phone battery and the temperature drop and all of that and and that indicates according to the Commonwealth that that phone was underneath John O'Keefe's body the entire night. Yeah, it's definitely concerning. But I think what's going to have to happen or what ultimately will need to be established at least from the defense aspect is at what point, you know, what specific time was the was the death what time the the death occurred, excuse me. Um, and and you know, I know there's a defense theory that he ultimately was murdered some other way, that there may have been a fight that occurred in the house. If if they're playing into that theory, it could be something as simple as there was a fight that happened in the house. He was then brought outside and left there and his phone was there with him. Um again and and it was snowing at the time so we'll see if there's any foot traffic in that area as well. Um but it it's going to be concerning and regardless it's concerning but it doesn't I in my personal opinion it does not directly say well Karen Reed is the one that caused his injuries and ultimately caused the death. And that's where the defense is going to say well wait a second. Yes you may have found your phone outside. He was outside, but he got outside either another way or his injuries were sustained in another manner outside of, you know, being hit by a vehicle. Yeah. And that's that's the defense's contention. I mean, they're they're saying there was no collision and that Karen Reed didn't do this. Uh, so that's their position and they they are also going to call an expert, the defense will that says that John O'Keefe died in a warm environment. uh so that he was never in a hypothermic state as the Commonwealth maintains. So there there's going to be a lot of expert testimony in this case that the jurors are going to have to digest. Uh let's get to our next question. This one comes from Eugene Wood. Why and how or why and how exactly would the forensic analyst/senior program director at celebrate Ian Wiffin uh why would he lie or be wrong and or criminally conspire against KR about the data his company obtained through the phones? That's a good that's a good question. Um I don't know if uh the defense has ever accused expert witnesses from Celebrate of being a part of this conspiracy. Uh, but I think it is a valid question. Why why would Ian Wiffin lie about any of this data that he's collected from all of these apps and from the phone? Yeah. First things first, any witness that gets on the stand to testify, um, prior to to the trial, the judge is going to give certain jury instructions. And a part of those jury instructions is going to be with regard to witness credibility. Um, how you assess a witness's credibility and things of that nature. And every single witness that gets on the stand to testify, whether they're an expert, a civilian, or a law enforcement witness, gets the same uh baseline level of of assessment when it comes to credibility. And so that's the first things first. As I said earlier, I don't think that that Ian Whiffin, the Celebrite expert, he's not harmful to any one side. He's just testifying to technical facts as he developed them through, you know, his company, CBrite. I don't think that he has a motive to lie or to conspire against Karen Reed. Um he's just giving the facts as he's developed them and the jury can either take them as a fact or dismiss and say, "Well, we don't really think that's credible because the defense expert is saying X, Y, and Z." And we think that that is more likely to what to be what has occurred or this would be the defense expert would be more likely to establish the more appropriate timeline if that makes sense. Our next question comes from Constance Bates. Uh, how is Karen allowed at Sidebar? Uh, this has been really interesting. We've seen Karen going up to the bench during every sidebar. I kind of have my own little theory on this, but Safa, I want to hear from you first and then I'll I'll tell you what I think. So, uh, one of the things that we have, and at least we have it here in the state of New York, and I'm not sure about Massachusetts, but I would imagine it's very similar, is we have what are called antimmarchy rights or antamachi. That's pronounced two separate ways. And what that says is that the defendant has the right to be present at any and every sidebar conference uh that his or her attorneys are having, the prosecution and the judge. So, anytime the attorneys are going up for a sidebar, she has a right to be present. Most of the time, our clients, they wave that right and say, "I trust you as my lawyer to convey and communicate to me what is being said." Um, and so they wave that right. So, you don't often see defendants go up to the podium. Um, but she does have that right to be present at Sidebar, and it seems to me that at this rate, she has not waved that right to be present at Sidebar. And I think it's because, you know, this is the second time that she's been throughout this trial. She wants to make sure that everything is done appropriately, correctly. She's on the same page with her attorney, you know, and and I I I get that because, you know, you don't want to run the risk of a possible conviction and she's got a lot to lose here. Yeah, most definitely. And Karen Reed is somebody Sappa who I mean, she's not somebody who's not fully engaged in her defense. I mean, she is very involved. She's an educated woman. I mean, I was watching the documentary about this case over the weekend, a body in the snow. I mean, she's right there in the war room with them discussing strategy. So, she's very, very involved. I mean, this is her life on the line. She said that many, many times. Also, I mean, I kind of go back to this hearing a couple of months ago where, you know, the judge, it almost seemed like she was contemplating whether to remove one of the defense attorneys um over a possible discovery issue and she called Karen Reed up during a sidebar. And so, there was something going on at this sidebar where she called her up along with the attorneys. I kind of wonder if there was some type of questioning at this sidebar about is this what you is this what we're going with? you want you want them as your counsel. This is what you want. Uh I kind of wonder if the judge maybe has said you need to come up here for these. Do you think that's possible? That is definitely very possible. And at the end of the day, Karen Reed has a right to have whatever attorney she chooses, even if the judge is like the like the judge can't kick her attorney off unless there is just some absolute reason. Because if Karen says, "Nope, this is my attorney. This is who I want." then she has that right and the judge cannot impede on that right for her to have an attorney of her choosing. Um so whatever the hearing was with respect to her counsel and what was ultimately said to Miss Reed at the bench by the judge, it probably was something along the lines of this is your opportunity. Do you want this as your attorney? Do you want these this person or this firm as your counsel or not? You know, and be transparent with me. She said indicated yes clearly because we're still here where she has the same attorneys and and we've continued we've we've moved on from that. So, but she has that right. Yeah. And I and and I just I remember that one specific hearing and it was it was a hearing over discovery issues and and I remember specifically Judge Canon called her up to the to the bench with the lawyers. Um, and you know, it's been brought up before too by the Commonwealth, and this is was a while ago when Adam Lai was the lead attorney, the lead prosecutor on the case. He brought up like wanting a waiver or something um about he didn't like everything that was going on with this um you know, public campaign and the conspiracy and the what was going on with the witnesses and wanted some type of waiver from from her about ineffective assistance of counsel should she be convicted. So, uh, this is stuff that I've read in court documents from way back when. So, you know, that's why I'm wondering, did the judge say, "You're coming up here for all of these now." So, that that's just my kind of wondering out loud about that. Uh, Queen or question from Hi, pardon me. Is it possible if she could be found not guilty for leaving the scene and guilty of the rest of the charges? Anything's possible, Safa, right? Anything is possible. But I think, you know, if they find her guilty and they find her guilty, you know, of the top count, then and obviously she wasn't there, you know, she left the location at some point in time, it would be highly unlikely for her to be found not guilty of the leaving the scene. Um, if anything, you know, there could be an argument that she'd be found guilty of leaving the scene, but not the top counts. Um so because and there there are legal mechanisms to ensure that you know if she's found guilty of certain offenses they it basically has to make sense. Um it can't go against the weight of the evidence. So I don't think that's going to be the case although anything is certainly possible. Yeah anything is possible. Uh speaking about anything being possible in the first trial, Sappa Karen Reid did not testify, although she has talked publicly about this case a lot. And now we're seeing Karen Reed's public statements coming into this trial and being used against her uh by the Commonwealth. So one of our viewers is asking uh this is Jane asking, "Will Karen take the stand?" So, do you think possibly the fact that her statements in the documentary and on some of these news broadcasts now that these are being brought into this retrial, do you think that may force her hand and force her to testify so she can kind of explain some of what she said? So, I haven't had an opportunity to watch the documentary. Um, but I I don't think that it will. And the reason I say that is because first and foremost, she has a right to remain silent and she's going to hold on to that right to remain silent unless she decides that yes, she wants to testify. I don't think that she has to here. I think what the defense has been doing and what they can continue to do is present their case and exploit the prosecution's case against them through the prosecution's own witnesses. And one of the reasons why we do see documentaries and things like that, things of that nature. And I would imagine here is that is her way to publicly tell her own story without having to get on the stand later to testify about it. So it kind of gets ahead of it and it is probably not the cleanest way to do things. But that in my opinion is why she probably, you know, gave this documentary. Now, could there be things that aren't great for her that could she could possibly want to explain away? Absolutely. But does that outweigh her right to remain silent? Because once she gets on the stand, she's going to be subject to cross-examination by the prosecutor and any and everything that is relevant and that she has knowledge to is fair game. And I think that the possibility of them cross-examining her on things that could really be detrimental to her case, um I I don't think that she should be testifying just to correct things that may have been brought up in a documentary. Yeah, it's there have been a lot of clips though that have been played and I think a lot more will probably be played. So, it'll be interesting to see if the defense feels like they have to put her up there, but it could be just way too risky. It could be way too risky for them to put her up there. So, we'll see what happens. Um, question from the ke the kef thief I think is what what this says. Why did they get rid of the dog? You're talking about Khloe the dog. I'll take this one. Safa. Um, Brian Albert testified at the first trial that they got rid of Khloe. Um, Khloe's a German Shepherd that the Alberts owned that the defense believes caused the injuries to John O'Keefe's arm. Um, they got rid of Khloe, Ryan Albert says, because Khloe got into a fight with another dog in the neighborhood. So, they rehomed her. Um, took her somewhere else. She's living elsewhere. I'm told she's very happy. This is what somebody on Twitter told me a while ago during the first trial. uh wherever it is she's living, not around other dogs apparently. Um so that's why they got rid of Khloe. Khloe is still very much alive. People were asking me that last week. And they've actually for this trial, Sappa, I think this is amazing. Uh they went and took molds. You've heard of people taking molds of teeth of humans. They've actually gone, the Commonwealth went and took molds, an expert did, of Khloe's mouth. And so there's going to be an expert that testifies about the measurements, the teeth of Khloe's mouth. So the dog Khloe, we have not heard the last of her. What do you think of that? They're going to talk about the measurements of Khloe's mouth and I guess compared to the marks on John O'Keefe's arm, the Commonwealth will um to dispute that Khloe caused those injuries on John O'Keefe's arm. Super interesting. Um, I have never had that come up before. But here's the thing, you know, if they want to get imprints of Khloe's mouth, then fine, great. Go ahead. But how do we know that that dog is actually Chloe still? How what what was Chloe what was Khloe's mouth? Well, I guess I don't know. I don't know. Maybe we just have to walk her in to the courtroom. I don't know if we need a Chloe DNA test or what. I I'm sure some I don't know how we verify that. I don't know how that works, right? And and that's going to be the thing. If they are trying to say that these are the teeth tooth imprints of Khloe, we have to authenticate that these actually came from Khloe. And how do we know that this is Khloe? It's a German Shepherd. It's a common dog uh or common breed of dogs. So, how do we know that the specific imprints that we have today are from the same are the same as from a year and a half or two years ago? Not only that, but does she have any teeth injuries? You know, could her mouth have been altered? You know, dogs like to bite things, things like that. So, yes, they can do that. Do I think that's the best use of resources? Probably not. But they definitely have a right to do that. And if as long as they can establish that it is actually Khloe the dog and that it's properly authenticated and moved into evidence, it's going to be fair game. Okay. I, you know, I've been wanting to see Khloe in the courtroom. Been wondering if, you know, because some so much of this trial is so wild. I'm thinking to myself, are we going to are we bringing Khloe into the courtroom? Is somebody gonna have to ID Chloe? I mean, like, what in the world is going to go on? I mean, bring Khloe in. Walk her through. Brian Albert says, "Yes, that's Chloe. I've I've identified Khloe." I mean, who who knows? Who knows what could happen? Um, but Chloe, man, that dog, she's really been through the ringer. All right, let's get to our next question. Um, let's see. How do they know? Oh my goodness. Here you go, Safa. You got somebody. Maryanne Freeman. How do they know if it's really Chloe? Does she have an ID or a passport? I I mean, like I I guess that I I don't know. Maybe she's got a chip. Maybe she was chipped. Who knows? So, we'll we'll we'll let we we'll move on from Chloe, but I just had to mention that once I saw that in the feed here. Uh, okay. Uh, our next question comes from Adrien Ferguson, who's always a great chatter here on lawn crime. Jen McCabe said she saw Karen and John pull up outside at the front door. So, how did John's phone and his body end up away over at the fire hydrant? Uh, this doesn't make sense. So, there had to, I guess, be some type of movement there, even if she saw them pull up uh by one location, possibly. Maybe they moved down. I I I don't know. Very possible. You know, it maybe if if at some point they they pull up together, but then, you know, they they leave or go to leave and there's an altercation that takes place further down by the flag pole, then that could explain. Again, I believe it was snowing at this point in time and, you know, we'll see the tire track marks and, you know, if there are any footprints and things like that. Um, so that definitely should give a better idea. So, we'll just see how that comes in. Yeah. And they've also got all of this Lexus data, too. um you know the black box if you will from Karen's Lexus. So we may see some data from there that kind of paints a picture of the vehicle's movements from that morning as well. Uh let's get to a question from um I don't know if I can say that on the live feed. Um but um you know there's an M and an F in this uh in this uh name so we're not going to say that one but I'm sure you know who you are. Uh why wasn't Wi-Fi signal strength history included in the data presented today? Uh that's an interesting question. I I I I don't know the answer to that and Safa, you may not know either. Maybe it's an issue of relevance. Yeah, I don't think any of us are in a position to be able to answer that. Um what I will say is that when you know there's an investigation that's launched um the investigators and or the district attorney's office is ultimately directing you know the investigation in the sense of well we want this data, we want this information, we wanted to say this or that. Um so it could have just been something that was never an oversight or never thought about. Um or it could have been an oversight or there's just no way to do that because Wi-Fi can attach differently depending on the location. um or your phone may attach to different Wi-Fi. Uh so it just depends. I don't think anybody can really answer that question and you know we have to know whether or not it attached to any Wi-Fi. Uh really uh we need to know that as well. Uh this question comes from Christine Evans. How did they know that the pieces of tail light came from Karen's Lexus? Um you know there are probably a number of ways that they can figure that out. Yeah. Um, and one of the things that they can do is they can compare it to another Lexus that is about the same type, you know, or is the same type. Um, maybe test the material of that Lexus. What I would expect they would do is, you know, get information on this model of Lexus. Um, the make of the light or or the the positioning of the light, maybe what I hate to say the word ingredients, but the makeup of what was used to create that light. Um, and so they can maybe compare, you know, is this what was found consistent with the light of Alexis of this model? Um, or the materials used consistent with the materials used for Alexis light of this model? Our next question comes from Yy Triple Y. I have a question. Is it normal for prosecutors to play Karen's clips to jurors before the witnesses walk in? Um, we've seen this. They've played Hank Brennan has played Sappa the clips of Karen typically after a witness ends up testifying. Um, you know, a witness gets off the stand and he'll want to play a clip or a series of clips and and sometimes those clips back up what the witness had just testified to. I Is that normal? Um, you know, it's not something we often see in criminal cases. It's not normal at all. And it's interesting because what is the the basis or whenever you play a video in into evidence? There has to be a proper foundation that has been laid. You know, kind of similar to the dog example, like how do we know that this was the exact video from that time, date, and place? What method was it stored in? Are there any additions, deletions, modifications, or alterations to this video? Um, now we have AI in the world. So, how we have to make sure that the integrity of this piece of evidence in this this this video is true, accurate, and correct. Um, so there has to be someone generally speaking to testify to the authenticity of the video to even get it played into evidence. Usually you see things like this, they're played in after as a witness is testifying that has established that proper foundation. to hear it being played after different witnesses that may be testifying or just to negate what she said. It's a little weird. I've never seen it. I personally think it's improper. Um I I don't know why that's happening. A question from Top Chuckle. If the prosecution can show clips of KR from interviews and docs, can the defense also use clips as a form of testimony for for Karen without subjecting her to cross-examination? That's kind of an interesting question. So, now that the prosecution has played some of these clips, the defense has the ability to say, "Well, you've played these clips of her, but let me now play these other clips that you failed to play to complete the narrative of what she was actually saying." Again, I don't think this form of introduction is proper, but if the judge is allowing it or it's allowed in the rules of evidence uh for the state, then that's fine. Then the judge, of course, would allow it to to happen. Um, but there has to be a completion of the narrative. So, as the defense, I'm arguing, okay, they've played these. Now, let me play the rest of it to complete the narrative. And it allows Karen to tell that story that she told in that interview again, which is she's innocent. She didn't do it. And the jury is going to continue to hear that over time without her even having to get on the stand to testify. The jury is going to begin to resonate with things in that video. And so the prosecution has to be really careful with how they are they're framing this for the jury because it could come back to bite them. Uh I just want to let everybody know that court will be back in session in 15 minutes. So it's about 2:00 Eastern time. So everybody sit tight. At that time we'll be in court for the voadier of the arc of witnesses. And those are the crash scene the crash experts for the defense. And uh there's a big brew haha over the defense and whether or not they handed over all of their communications with the arc of witnesses. I mean, basically they're maintaining they did hand over everything they had. Uh but the Commonwealth is saying uh they know about there's about a hundred text messages or something that weren't turned over between Alan Jackson and these witnesses. So you don't want to miss that. So stay tuned for that and keep your questions coming in and we'll take them until that happens. And also just a reminder that our Wondery podcast, WREY Plus podcast, it's also on Apple Podcast, Karen the Retrial, dropped today. So please check that out. Uh our next question comes from Hi, how can you make sure the juries the jury is not sexist? Um good question. I mean we that's I mean this is a this is a jury selection kind of question. you know, you have to just kind of question these jurors during voadier. Yes, most definitely. Um during the jury selection process, which is called wadier, um we are qu the prosecution, the defense, and even the judge um will be questioning or has questioned these what were at the time potential jurors um to see if they're an accurate fit to sit on the trial. There are questions that are asked with regard to bias, whether that be a racial bias, whether that be a gender or sex bias. Um, and so one of what Vader means is to speak the truth. And when attorneys ask these individuals questions, you know, the hope is that they're being truthful and honest with us as we ask these questions. Um, so that it ultimately ensures that we have the best jury for the case. Now, could people not be as truthful during VAR? Of course. Um, but attorneys usually should and try to stay as detailed as possible. And because Karen Reid is a is a woman, you know, one of the valid questions would be, do you have any biases towards women? Um, and if so, what are they? And do you think that you're a good fit to sit on this jury considering you have those biases? Uh, yeah. And I mean, this this jury, I believe, is pretty evenly split. I mean, obviously, some of them are alternates because we only need 12 to deliberate, but it's nine men and nine women, I'm pretty sure. So, um, you know, women, but it doesn't matter. I mean, women can have some biases, too, and as can ma men. We can all have a bias. So, uh, that's just something you have to take care of in voadier when you're questioning these witnesses. Uh, let's get to our next question. This is from Adrien Ferguson. And I I saw some stuff on social media about this Safa. I don't know if you're totally aware of it, but there's apparently a rock at the yard and it says Alberts at 34 Fair View. The Alberts haven't lived there now in more than two years or so, maybe about three years or so that they haven't lived there. Um, so there's there are a lot of people asking about this rock. It's it's a rock at 34 V Fair Fair View that says Alberts. And so the question is from Adrienne Ferguson. Hi from Scotland. We love that that you're watching from Scotland. I don't know if you've both heard about this rock outside 34 Fairview. Will this be brought up in court? It seems very odd, doesn't it? I I'm not sure that that's going to be anything that anybody brings up. I personally have not heard about it and we'll see if either side brings it up. Um I don't think that the prosecution is going to want to bring it up because they don't want anything else that could essentially say that this was the cause of the deedants's injury and it wasn't Karen Reed, it was just an accident. He fell. He hit his head on the rock or whatever the case may be. or his injuries are consistent with the fall on the rock. Now, the defense may want to bring that up, but they may not because if their theory is that there was an altercation that took place in the house, you know, that's going to be their argument. They don't need to argue that this rock somehow caused damage. Um, unless the rock is moved and and we'll see as the as the trial continues what the testimony is going to be. if we see that it's moved um or it could have been used as a weapon and and Iraq can be considered a deadly weapon, you know, depending on the manner it's used could come relevant at that time, but I don't think that there either side is going to really need to bring that up. We have another question from LJ. LJ asks, "Will John's father take the stand? Does he believe the police were involved and Karen is innocent?" Uh, we've never heard that, but um we, you know, we don't know if the prosecution will call John's father or not. We do know that John's mother, Peg O'Keefe, testified. Yeah, we're not privy to the witness list at this point in time. So, could they can call whoever they want as a witness, and they could certainly call dad. Um, and mom, of course, testified, but I don't think they need to. Um, one of the things that the prosecution has to do, and it's very much just keep it simple. You've got a set of facts. You have factors that you need to establish in order to find the defendant guilty of this charge. And how do we establish those factors? When you call too many witnesses, it can confuse the jury. And the truth is very simple. So, you don't need many people to tell you the truth about the same thing. You may need a few to connect the dots, but what would dad really be connecting the dots on? you know, his opinion is is not really relevant. You know, it's not factual. It's just an opinion. So, I don't think they need to call him and I don't think we're going to hear from him. Uh, let's go now to Cindy Klene. She asks, "Why did they not assign a new judge?" Um, that's an interesting question. Sometimes, you know, I've seen some cases, Sappa, where there is a retrial and the judge steps down from the case and says, "You know what? It's a retrial, new trial. Another judge can take over for the second one." But Judge Canon kept the case and it didn't act it didn't seem like anybody, you know, wanted to boot her. So, what what are what are your thoughts on that about Judge Canon keeping the case because it it's it is a monster of a case when you look at all of the evidence and the motions that have been heard. So, I mean, maybe the maybe the court's like just keep it. Yeah. And I think because a lot of judges, they don't like to pawn off their cases that they've been so invested in on to other judges. This judge has the the most information on the case. She's made the ruling. She's privy to all of the information. She's had conferences with the with the the attorneys in the case, um chambers conferences and all things like all of those sorts of things. And so she is probably still the best person to sit on this case in light of all of the information she has and in light of the rulings that she has made. And again, no attorney seems to have made any complaints about her keeping the case. I know that, you know, it's always good to have a fresh set of eyes and looking at things. Um, but if there's no issue with regard to, you know, her handling of the case, then it would make most sense for her to keep it considering all of the information she has and knows and her involvement in the case. And the the retrial was happening, I mean, fairly soon. I mean, and when I say fairly, the last trial ended last summer, um, Julyish. So going to this this time period, you know, March or or I'm sorry, April, you know, that's pretty soon for a case of this magnitude to go to trial. So I don't know that she kept the case. Uh let's get to our next question. Uh question from Cindy Klein. Has Karen and her attorneys sold the book and movie rights yet? Well, we know that they did the IG docue series, so I don't know about a book or movie rights. So not not sure about those questions, but they certainly have already done a docue series that I think they never I I think they did that Safa they never thought that they would have a retrial or else they probably wouldn't have done that. Uh wouldn't you wouldn't you say they probably thought we're going to get a verdict so we don't have to worry about this coming out because it will be done. Uh but it wasn't done. Very possible and very likely that they could have thought that. Um, but you don't ever count your chickens before they hatch. Here we are now there's been a retrial and you know again you know she had given certain information and those docy series and so now they have to deal with dealing with that in the trial and how to answer to some of those things or how to navigate through some of the things that the prosecution is alleging based off of those issues without having to put her back on the stand. Um, so probably was a little too uh premature to make that decision, but here we are. Yeah, here we are. We are here. And Alan Jackson in that documentary actually said, you know, after closing arguments, you know, I think we're going to get a verdict and it's going to be a not guilty. Um, so he at least felt very confident that they were going to get a verdict and it was going to be the one that that they were wanting. So, uh, that's that's that. Uh our next question uh comes from Hi again. How can Karen Reed lawyers know if the judge is a pro police supporter? Has any police in her family or has donated money to any police department? Uh that's that's kind of interesting. Um I don't know how how could they know that? So judges and lawyers, we all kind of congregate together and you you as you practice, you begin to know your judges. You have judges that are more conservative. you have judges that are more liberal. Um you you begin to know what their lives are like. You know, some judges may have family members that are in law enforcement. Some defense attorneys have family members that are in law enforcement. Um and so as long as there's no bias on the particular judges part and because law enforcement lawyers and judges are so closely intertwined, it's never usually an issue. Um, you know, judges may make certain decisions because they may take the approach, well, you know, I believe in law and order and if you, you know, do something or are convicted of something that happens to injure a police officer, for example, then then I'm going to give you a harsher sentence because I believe in law and order and in protecting our law enforcement. Some judges can have that point of view and will exercise their judicial abilities consistent with that point of view. other judges more liberal and say, you know what, the police choose this as their own as their job. Um, it's a choice for them. And so, you know, I'm going to treat them the same way that I would treat any other witness. I'm not going to give them any difference because they're law enforcement officer. And so, they may not be as um may may not be as um strenuous on, you know, dealing with law enforcement and things like that. So there's no way to know unless you start to get to know your judges and and you know that over the time the longer you practice in front of them. It is interesting to me though a lot of people who support Karen Reid have been very critical of Judge Canon. And it's it's interesting because I Judge Canon was a defense attorney um before she was on the bench. And I actually think sometimes she's equally hard on both sides. you know, she tells them to rephrase their questions um you know, a certain way. And I actually think it's interesting how she'll jump in and she'll ask the witness a question. Like it's almost like she she thinks they're not getting to the heart of the issue quickly enough. And I I I find that really interesting. Uh we have five more minutes or so, actually about two or three minutes, maybe about three minutes until we get back into court. Uh so stay with us here on the live stream. I also want to remind you that you can become a member, a law and crime YouTube member. You can hit the join button right under our screen. We have uh three different levels. It's pretty cool. We have a lot of exclusive content that you can get access to. We have discounts on merch and other products, early releases on documentary content, membersonly live streams that'll feature me and some other people here at Lawn Crime. So, those are really fun. and badges and custom emojis. So, uh, everybody check that out. We're gonna get back to more of your questions, though, before we go back to court. I have a question. This is from I, um, is it true that the judge's brother is a lawyer and he represented Paul O'Keeffe in a DUI a few years ago? I don't know, but we could check into that. So, we will, and we'll let you know tomorrow. How about that? Uh, let's get back to another question of this is from Danny. Uh was the amount of snowfall that night introduced? Maybe John's body was covered. That's why he was not visible. I mean, this was a blizzard, Safa. I mean, so we have heard some discussion about just how much snow there was, and we can see it on body camera footage. Yeah. And it also is going to depend on how long he was out there, you know, how long had it been snowing while his body was out there. And so all of those things are going to come into play and are going to ultimately go to the jury's, you know, deliber deliberation. Um, so depends, you know, we'll see how long they're going to allege that his body was out there at that point in time and how much snow was maybe was on top of him, how much time it had snowed and when the snow stopped in conjunction with when he was found. All of those things will be relevant. Okay. Uh so Sappa I really appreciate you being with us today. Um it's been great hanging out with you and talking with you Safa Robinson Ferrer. Uh we're going to sign you off. Court is going to resume here very very shortly. Uh so we are going to take maybe one more question and then we are going to toss right back into court. Um we are so Sappa thanks so much for being here. Um that testimony with the arc of witnesses, the voadier is going to be taking place as court resumes. Um so actually we're going to be tossing you back uh to court very soon. Uh just one last question. This one is from Tilt Thomas. How is Karen paying for all of these lawyers? Well, we know that she's had a lot of crowdfunding or crowd sourcing going on. There have been fundraisers. Uh she's had some other fundraisers that have been held up there in Massachusetts. So a lot of people have been contributing to her and she also I know borrowed some money and her father had given her some money as well the first goound. So we don't know if they received any money possibly from the documentary for licensing of family videos and things like that. Um but she has had a lot of people donating to her cause. So, it's uh been interesting to watch uh the amount of people, the number of people who've donated to her cause. So, I think that we are going to go back into court. We don't want you to miss a minute of this once court resumes. So, we're going to take you back into court for that hearing that is going to resume momentarily. And so, let's get you back outside the courthouse and then back into court. And I will see you back here tomorrow. Remember to get those questions ready for tomorrow and we will see you back here then. And until then, have a great afternoon. Hey there, Karen Reed, trial watchers. You know what? A lot of the trials we cover remind me of that the world is unfortunately very unpredictable. And I'll tell you what, having a great lawyer matters so much. That is where a great partner and sponsor Morgan and Morgan comes in. This is a firm with over a thousand attorneys. You know why? Because they win a lot. In the past few months, Morgan and Morgan secured a $9.3 million verdict for a car crash victim in Florida, a $5.6 million verdict for another car accident victim in Atlanta, and not to mention $1.8 million in Kentucky after insurance offered them a mere $5,000 in that case. And even if you think your case, you know, isn't worth millions of dollars, why not start a claim and fight for what you deserve? Morgan and Morgan makes it so simple. You can start a claim from your phone in just eight clicks. That's it. It can all be done on your phone. So, if you're injured, you can easily start a claim at forthepeople.com/lc live by clicking the link below or scanning the QR code on screen. Hallelujah. [Music] You are unmuted. Thank you. We're back in session. You may be seated. Hi, Marin. For the record, before the court is Comwalk versus Karen Reed 22C117. The parties are present. The jury is not present. All right. Thank you. All right. So, we know that the Commonwealth has filed a few anyway, or repeated motions trying to get the defense to comply with reciprocal discovery regarding the ARCA witnesses. Previously, about a month or so ago, maybe longer, I found that there was a violation of the defendants's obligations for reciprocal discovery, and I found that it was deliberate. The comel filed additional motion, a motion to compel reciprocal discovery of the AKA witnesses or to exclude their testimonies. Um I upon that I believe I issued an order last week um for certain discovery to be provided and to be provided by Aka. On the day of opening statements, it was clear to me that there was another violation of the defendants's rules uh defendants obligations under our rules of criminal procedure. And based on that, especially given what has the defense has failed to deliver, um I would not permit the defense from mentioning ARCA in their opening. So today, we're going to have an evidentiary hearing. on your motion, Mr. Brennan. So, I expect that we will get through both witnesses by the end of today. If not, we'll have to have them back, but I expect we can get through them. So, Mr. Brennan, uh, who we going with first? Dr. Wolf, please. Okay. Dr. Wolf. Once you set, you're going to face the clerk and raise your right hand, please. I solemnly swear that the testimony you shall give to the court in the matter now in hearing shall be the truth, the whole truth, and nothing but the truth. So, I hope you got it. Yes. Thank you. All right. Go right ahead, Mr. Thank you. Good afternoon, doctor. Good afternoon. Did you become aware there was an order from this court to produce records? Yes. Did you receive a copy of that order? Yes. Who did you receive a copy of that? So, we need Dr. Wolf to identify himself. Please identify yourself for the record. Spell your last name. Daniel Wolf. Last name spelled W O L F E. Who did you receive that order from? Uh, I believe it was in in an email forwarded from Miss Little. Did you read it? Yes. Did you understand that there was a request for certain communications? Yes. Did you understand that you were supposed to turn those records over to the Superior Court? Yes. Did you turn records over to the Superior Court? I provided a copy of that production notice to Miss Little. Did you provide the records to the Superior Court? I didn't directly email that to the court. No. Did you indirectly email it to the court? It was my understanding that it would be passed along to the court. So you did not pursuing to the order provide the records to the superior court, did you? Not directly to the court. No. When you read the order, uh, you understood what the order was requiring you to provide. Correct. Correct. It was requiring you to provide all text messages. Yes. Did you provide all text messages? I I don't have any in my possession. Did you look for any text messages that are not in your possession about this case? Yes. Okay. Did you find any? No, sir. What did you do to look? So, I went through the phone that I presently have uh and uh as I informed Miss Little uh last year, I was under T-Mobile was my carrier. Uh subsequent to that, I then switched to Verizon in I believe it was November. So, I made an effort to contact T-Mobile as well as get access to my T-Mobile account hub. Unfortunately, I I was unable to get access to it or get any records prior to uh or at least from my T-Mobile carrier. Then I went through my Verizon records uh that I have from 2025. That was I could only go back 3 months and I provided those records. How about emails? You didn't change email carriers, did you? No, sir. Did you provide all your emails from when you first were contacted by the defense? Yes, sir. And you provided every one of those emails to who? to it. It would have been in the the file that I put together for the production. How many emails did you find between you and the defense? I'd have to look at the the the order, but it was probably I six to Are you talking about present day or just from last year? Anytime. It was probably around a dozen or so. Who did you correspond with by email on the defense? Again, can you specify a time frame? At any time. Who did you correspond with by email on the defense? It would have been Mr. Jackson. Miss Little might have been on one of those emails. There might have been a couple other members. I don't remember off the top of my head. Well, how about Miss Reed? I don't believe she was on any of those emails. You've never emailed or been on a correspondence with her by email? No, sir. And how about Mr. Yianetti? He may have been on the one of the emails. I I don't know. As I sit here today, you communicated by phone with the defense, didn't you? Yes. And that began as far back as March 2024 after our report was issued. Yes. In March. Back in March of 2024, you spoke on the phone to Mr. Jackson. Yes, sir. A number of times? Yes, sir. And as you spoke, you began to become familiar with him and his role in this case, didn't you? We corresponded about again our expected testimony here at trial. Yes. I'll ask it again. Did you become familiar with him and his role in this case when you spoke to him? I understood him to be the defense attorney on the case. Yes. Did you speak to Miss Little by follow? I don't believe so. No. Did you speak to anybody? Hold on one second, please. Thank you. Did you speak, Pardon me, did you speak to anybody other than Mr. Jackson about this case before the first trial? I don't believe so. No. Could you speak to anybody since then on the defense team? Who? Uh, I believe Miss Little and uh Mr. Allessie. Okay. And how about Miss Reed? No, sir. Did you ever have any conversations that weren't on a regular telephone? You have a Zoom? Uh, yes, we have had uh I believe it was a Zoom or a Teams meeting. We've had a couple. When was that? Uh, that would have been more recently uh to go over some of the testing that we've done. Did you ever have any Zoom meetings before the first trial? No, sir. Did you ever have any group conferences before the first trial? I don't believe so. No. Were you ever on the phone before the first trial in a conversation where you and Dr. Wrenchler both were on the call? There may have been an instance of that. I I just don't recall. Well, think back. I I I don't recall. At some point, you were contacted by Mr. Jackson and you decided or you learned that you may be part of this case as far as a witness. Yes, sir. When you learned you were part of this case, um did you have contact with Mr. Jackson before you testified at the VAR? Did I have communications with him? Yes. Yes. And in those communications, you spoke about your role. I think we spoke about logistics and coordinating my arrival here for the Vader and certainly the trial. Well, when you spoke on March 20th, 2024, didn't you talk about more than co coordination of logistics? I'm sorry, what was the date? March 20th, 2024. So, I believe that would have been the very first phone call that I had with Mr. Jackson. Right. Was that more than about logistics? Well, I think we were trying to figure out what what should we do? Uh, I will note that this was a very abnormal situation for me being involved in in a federal investigation and then ultimately being called as a witness. Well, I'm trying to answer your question, but you're not. Did you talk about more than logistics? So, are you finished with your answer, Dr. Wolf, or you still answer? I was still trying to answer. Go ahead. Finish. Thank you. So, as I mentioned again, the situation was was abnormal. I didn't know if we could get involved. I didn't think Mr. Jackson knew we could get involved in terms of a path forward. Would we be able to do more work? Could we review additional material? How could we work together moving forward? There was a lot of unknown. So, there was a lot of uncertainty. You done? Yes, sir. Did you talk about more than just logistics? No, sir. Did you talk about fees or structures? I described to him our our typical procedure when when we intake a criminal defense case, right? There's typically a contract and retainer associated with that. So I described our normal procedure that takes place. Yes. So you talked about fees and scheduling and costs what you charge. I did talk about Yes. the contact contract and the retention letter. When you talked about that contract, it was a discussion, wasn't there, about them hiring you, paying you or retaining you potentially? Again, I I prescribed our standard procedure. Why was it you were talking about fees and schedules if you didn't think that you were potentially going to get hired? Again, I I prescribed our our normal operating procedure. I had no idea how it was going to work moving forward, which is why ultimately immediately after that phone call, I contacted the Department of Justice to get clarification on that. We'll get to that, but I'm asking you specifically, why were you talking about fees and scheduling and being paid at that point? Objection, your honor. I'm going to allow it again because Mr. Jackson was was interested, I believe, in calling us to testify at trial. So, I explained to us the normal process when a client reaches out and wants to engage us for trial testimony. That's typically again the procedure that that we prescribe at ARCA. So, that's why I had that explanation to him. So, you were talking to him about details about potentially being hired. Isn't that fair to say? I I don't know about being hired. I think again him utilizing us in in the trial as expert witnesses. Well, what's the difference between him utilizing you and paying you for that utilization and him actually hiring you? What's the difference in your mind? Well, I think there is a difference because ultimately after I got clarification from the Department of Justice, they indicated that they could not the defense sign any type of contract. There could not be any type of agreement or retainer. I'm not asking what you determine later. I'm talking about the conversation you had on March 20th, 2022 when you were speaking to Attorney Jackson. That's what I'm talking about. Okay. Understand? I I don't know that I understand your question then. Okay. When you had a conversation on March 20th, 2022 with Attorney Jackson, you discussed potentially being hired, paid, compensated by Attorney Jackson or the defense for this case, didn't you? We did, like I said, we I did explain to him our typical operating procedure when a case when a client reaches out for trial testimony. I went over that with him. Yes. Not talking about a client. I'm talking about this client. Did you talk about them potentially hiring or retaining you for work in this case? That's the question I'm asking you. On March 20th, 2022, not the 22nd, not the 24th, March 20th, 2024. Did you speak to Attorney Jackson about them potentially retaining or hiring you for this case? I spoke to him like I speak to any other client that would be interested in calling us as a witness. Okay. And so after you spoke to them, you spoke to representatives of the United States Attorney's Office and you wrote an email back saying that you were going to put the conversation on hold. Is that fair to say? Correct. Until I got clarification from them. And at some point it was on on hold, right? Some point it resumed. Yes. When was that? Uh that would have been towards I believe the end of April. Okay. The end of April. How was this relationship resumed? What was the contact, the conversation between you and anybody on the defense that resumed that um relationship? I I think that I reached out to Mr. Jackson. Like I said, I think it it looks like about a month had passed and I had let him know that I had spoken to the DOJ and got clarification on on moving forward. Okay. So, in April of 2024, you reached out to the defense and said that you had permission or a green light to move forward in the relationship with the defense in this case. I had clarification from the Department of Justice. Yes. And that clarification allowed you then to work with the defense on this case. Not work with, we we could be called on the defense's behalf to testify. And for that matter, the Commonwealth could have also contacted us and utilized us at trial as well if they should please. So, when did you become an advocate for the defense? Interesting. Do you feel like you're an advocate for the defense? No, sir. Are you sure about that, sir? I'm on the science and and the analysis that I've done. That's the side that I'm on. You sure are. Because after that 424 call, letting them know that the United States Attorney's Office gave permission for you to be called as a witness, you called them again that day, didn't you? Or they called you on the main line. We may have exchanged a couple calls that day. Yes. Well, you did exchange a couple calls that day because we have at least some records. And when you called later that day after telling them that you had permission, they could use you as witnesses. What did you talk about? I do. You have the records that I could take a look at just so I could see what you're referring to. Do you remember having calls after you called attorney Jackson and said you had the green light from the US attorney's office? Do you remember having further calls that day? I I think we had a couple brief conversations. Yes. Okay. When you think about it, do you remember them or you just saying you think but you don't know? I don't remember. I remember that there was one conversation I believe in early May that I had with Mr. Jackson in which we engaged in a conversation where I gave him more information about my background, who ARCA was as a whole. I think we even got to talk a little bit about my family, my four kids, and things of that nature. But it was it was a call about background and qualifications. We're still back in April. You're moving ahead to May when you first started billing. I want to talk about back in April. Do you remember having conversations on April 24th with Mr. Jackson? Do you remember that? I'm going to allow that. I remember that there were conversations. Yes. Specifically what they were too. I I remember I think they were brief, but I don't remember the specifics of them. No. Well, in the brief conversation, what do you briefly remember about that brief conversation, doctor? Well, as I mentioned, I think it's I had finally received clarification from the DOJ. So I think I was letting him know that I had received that clarification. Well, um, sir, you said that that was the first call. There were more than one call. There was then two calls to the mainline. What did you discuss with him during those calls? Well, to be honest with you, I the call to the Ark of mainline. I don't even know if I spoke with him. That's just to the mainline, not to me directly. So, he could have spoken to a receptionist who then tried to get a hold of me, right? So I I don't know if that specific call to the mainline was to me or someone else at ARCA. Well, this is a new relationship, right? You working on a contract with the federal government. You have only spoken to Mr. Jackson, according to you, twice. Do you don't remember the early conversations with them and what they were about? I'm sorry. Are we talking about now at the end of April still? I'm still talking at April. April 24th, 2024. Yeah. As I just discussed with you, I from what I recall, it was relaying to him the clarification that I got from the Department of Justice. Right. But that doesn't take more than one call, does it? I I I don't know. He may have been in court. There might have been some phone tag. I I don't know, sir. Well, there was a 9-minute call on April 24th, and then there's two calls to the Ark of Mainline. 3 minutes and 2 minutes. Do you remember any of those calls? Again, when you say 3 minutes and 2 minutes, that makes it sound like in all likelihood he contacted the Ark of Mainline, got a hold of receptionist or my project manager and couldn't get a hold of me. Are you just making that up or that's what happened? Sir, that is my best guess. I I don't recall from a year ago. When I asking you to guess, I'm asking for your testimony. That's what I recall. Sir, do you you recall him calling a secretary on the mainline? That's what you recall? He very well could have. I I just don't know, sir. But you're making a representation that you recall him using a secretary in the mainline. I'm asking what you actually did and actually said, do you remember speaking to Mr. Jackson? Excuse me, Mr. Jackson or anybody on the defense team after that initial call back on April 24th, 2024. Do you remember those two phone calls? Objection, your honor. So, let's get an answer. I don't remember those phone calls specifically. No, sir. Next question. Do you remember the phone call on April 30th, 2024? Do you remember that one? I I don't remember that call, sir. Okay. Do you remember the call on May 1st, 2024? I don't have the records in front of me, but was that a longer call by any chance? It was. It was 40 minutes long. Okay. Yep. So then, yes, as I just described earlier, that would have been the call in which I went over with Mr. Jackson, a little bit more about ARCA, my background, my education, qualification, the kind of case work that I do, things of that nature. And did you discuss issues regarding this case? No, sir. So, during the 40 minutes you spoke, you never discussed any of your findings that had already been made? No, sir. You had never discussed any of your testing in this case during that 40-minute conversation? No, sir. And it was it was all laid out in the report that was issued in February. Kingston's report. I'm asking you, did you have any conversations about it with the defense? No, sir. So, in that 40-minute conversation, you talked about your family, your past times, ARCA, but never ever talked about this case. Objection, your honor. I'm going to allow it. Correct. You build for that time, didn't you? Uh, I believe that I kept track of that time. Yes. Okay. When you kept track of the time, did you submit that time and ultimately get money for that time? Uh, again, I I routinely keep track of my time when I'm working on a project. So, yes, that time was was kept track. That's not what I'm asking you. Ultimately, that time that you kept track of, did you then submit it and get paid and compensated for that time? That's what I'm asking you. Well, first off, I'm a salaried employee, so I don't get direct compensation when an invoice goes out. that that invoice when it's sent ultimately comes back to ARCA. That doesn't come back to Dan Wolf. Okay. So, in order to get paid for that, you would have had to submit that time through ARCA to then forward it, wouldn't you? Objection, your honor. Going to allow it. Is that true? Uh, yes. Yes. I keep track of of my time so that my my boss knows what I'm doing. Yes. Okay. Can we approach, please? Who asked me that, your honor? Yes. Come on over. Doctor, again to focus you, we're on May 1st, 2024. May 20 May 1st, 2024, you had a conversation with Attorney Jackson, correct? And at some point, did you submit the time you spent and forwarded it so that that could be build? Yes. And and I will note that all of that time was actually tracked under the same project number that the uh work that was done for the Department of Justice was under. So at the time you had that conversation, you were keeping track of ours, correct? something I routinely do. Yes. And do you know who ultimately paid that bill for that day? May 1st, 20 uh 24. I know now that it was the defense. Yes. Okay. Now, when you build um did you build for the entire conversation? I I don't know. You said most of the conversation was background talking about ARCA, talking about your families. Yes. Right. Do you typically bill clients when you're spending time talking about families? Again, I that wasn't the entirety of the conversation. I think you just briefly asked me about my family. Oh, now it's brief. Okay. All right. Objection, your honor. No comments, please. Do you typically charge when you're talking about nonrelated work matters in your billing? Sir, I think the the majority of that phone call was was related to again workrelated topics. Uh workrelated. It took that much time to talk about ARCA and my background certainly. Yeah. Okay. And and how much was the majority? Sir, I I don't know that I can parse it out in in individual segments or minutes for you. And so after that May 1st conversation, um did you communicate with the defense before June 9th, 2024? I don't believe so. I think the from what I recall next up was I think the voadier uh either Allan I think Allan contacted me letting me know that the court uh wanted to do a voadier of of myself and Dr. Wrenchler. And you mean Allan? You mean attorney Jackson? Yes, sir. So, you became friendly. I guess firstname basis. Is that what you're referring to? No, I'm saying did you become friendly? Uh, no. I I wouldn't say that we were friends. I didn't ask you friends. I said did you become friendly? I I talk to him like I talk to all of of the attorneys that I work with, sir. What would you call me if you were going to address me? Probably Mr. Brennan. So, um, do you remember the next time you spoke to Allan? Uh, as I mentioned, it probably would have been sometime in in early or mid June. Going into June, um, you were keeping track of all your communications with Attorney Jackson or anybody from the defense, weren't you? I don't know if you mean what do you mean by keeping track? Well, do you have a folder where you make notes when you have communications with an attorney and discuss issues? No, sir. You don't make notes? Not for brief phone calls. No. For your billing, do you save phone records or text messages so you have some collateral evidence about the billing? No. Not Not when it's things about again logistics and and traveling and scheduling. No, sir. And by the way, when you put together your phone records and text messages that you sent to the court in response to the court order, um, did you have actual records? What What do you mean in terms of actual records? Well, I see like a summary chart that was developed. Who developed that summary chart? So, that was again, as I mentioned earlier, I was unfortunately unable to pull anything from T-Mobile. I just could not get access. Then what I did is I logged into my my personal Verizon phone records and I was able to go back for three months. I couldn't get back to December but and then I pulled I downloaded the spreadsheets and I extracted those rows and provided that. Did you provide the actual records or just the spreadsheet? Well, I provided the spreadsheet which was pulled from the records. I would have had to redact a a lot of phone numbers if I was to to put in the full extraction, if you will. So, you didn't provide the full extraction? I provided the full extraction as it relates to all the contact between myself and Mr. Jackson and Miss Little. Did you ever delete texts from last year? Yes. Yes. After you had text messages with the defense, did you delete those texts? Yeah. After the trial concluded, I mean, that's something I routinely do. I'm not going to keep texts from Mr. Jackson, especially now that we're past a year. I would have no reason to keep those, sir. I'm not asking for the excuse. I'm asking if you did it. Did you delete texts? Again, it's something that I typically do. I communicate with attorneys all the time, whether it's for trial or inspections. I don't have a habit of keeping a text chain about scheduling or meeting or hey, can we meet at this time or show up here? I just don't have a habit of keeping that type of text. He's not my friend, sir. So, you didn't delete texts. I I think I just told you that yes, I did delete the text. You didn't tell me, but you just did now. Thank you. objection. So, next question. No comments, Mr. Um, how many texts did you delete in communications with the defense? I don't I don't know the number, sir. You don't know the numbers? I don't have the text. So, so you're asking me over a year ago almost about text messages. I don't recall how many there were. All right. Was there 10, 100,000? How many were there of ones that I sent? Either No, not just what you sent. Either way, back and forth. Probably I don't know, maybe around 100 or so. And when did you delete those over a 100 texts between you and the defense? As I mentioned, I think the the last text that I remember was Mr. Jackson texting uh me just thanking me for my time coming up here after the trial. Again, that was in at the end of June. And then I didn't hear from him and and at some point I don't know specifically when it would have been last year but I I deleted those texts. There was no reason for me to keep those. Sir, do you remember about when you made the affirmative intentional effort to delete around 100 text messages between you and the defense? It it would have been sometime after the trial, probably before I got my new phone in November, but it it would have been probably in the month or two after the trial. So where were you when you were deleting this text? Were you at your office at home? Do you remember sitting down and deciding intentionally you were going to delete over a 100 texts? Where did that decision happen? I have no idea. Sir, you can't remember deleting over a 100 texts where you were. I I just said I delete text routinely. I You're asking me to specifically give you a location and a time when I deleted those? I I don't recall that. You said it was after the trial. Yes. And out of the so 100 texts or so, who were you texting on the defense team? I believe it would have just been Mr. Jackson on that. Did you ever communicate by any other means like signal or an application during the time of the trial? Anytime? Yes, sir. With the defense? Yes. Is it typical for a biomechanical engineer to use an application like Signal to talk to an attorney on a case? Sure. You know the benefit of Signal, don't you? I I mean it's a messaging platform. Yes. Encrypted app, isn't it? What's that? Encrypted? I don't know, sir. It keeps no record of the communication when you use an application like Signal, does it? I I don't know, sir. Well, you used it. Did you have it on your phone that you were using it with other people? Uh, no. I don't believe so. So, the only time that you used Signal in your career is when you were dealing with this defense team? Yes. It would have it was in earlier this year. Mr. Jackson had communicated with me indicating that it was his preferred method of communication. So yes, we did exchange some messages on signal, but this was at no point in time during the first trial using the Signal app. Was that your suggestion? Uh, no. Again, I think it was Mr. Jackson that said it was his preferred method. Is that standard in your industry to use Signal when you're talking to clients? I don't know that there's a standard out there, sir. I'm asking about your standard. Is it your standard to use an encrypted act when you're talking to attorneys? If if the client has that preference, I don't have a problem with it. Sir, how many times have you done it other than this defense team? Again, as I just mentioned, it was the first time. How many conversations did you think you had with the defense team by signal? Again, it would have been just Mr. Jackson and like I said, it was it was really, I think, just in the month of of March of of this year, but it was brief. I know that we I think we exchanged a couple phone calls and I remember the call quality was terrible. So, it we really didn't use it that much. Okay. You're saying a lot of things. You're saying you think I want to know your best memory. I don't want you to think. If you don't know, you don't know. How many times did you use signal with the defense to talk about this case? Objection, your honor. Going to allow it. From what I recall was probably a handful of times. When you say if what you recall, are you purposely being vague in case there's records or do you not remember? I I don't remember, sir. As you mentioned, it doesn't keep a log of it. So, I I just don't recall. Well, you cannot you don't have to rely on a log. You can rely on your actual memory. Right. I'm just I'm telling you that I I didn't keep track of it. So, I don't know the specific number. How many times do you think you talked by signal? As I just mentioned, I think it was a handful of times. I don't know what a handful means. Probably four to five. Well, was it four or was it five? It was probably four to five. It's the best estimate I can give you. How long were the conversations on signal? The four to five times? Uh, I think they were pretty brief. I'd say probably around 5 minutes or so. You think each one was 5 minutes? Probably 5 minutes. Yes. Were you putting it on a timer? Each one had to be a maximum of 5 minutes? No, I'm just giving you my best estimate, sir. Mhm. Um, how certain are you that the signal calls were four to five minutes? Again, I just told you I'm providing my best estimate. How confident are you the times are between four and 5 minutes? That's the best answer I can give you, sir. I'm giving you my best estimate. I'm asking you how confident you are. Objection, your honor. Can you answer that? How confident are you, Dr. W? I can't answer that anymore. Okay. When you were required by court order to provide all of the records to your honor, you knew that one of the important things you need to respond to were communications between you and the defense for her honor to consider, right? Yes. Okay. And signal is a communication, isn't it? Certainly. You looked at all your records and knew listed the text messages and the phone calls. You knew that, right? Yes. Yes. You knew that was going to be a representation that you were making to the court about your communications with the defense. You understood that, didn't you? Yes, sir. And you wouldn't want to mislead the court, would you? No. Which is why I told you. I asked. You didn't put anywhere in your response to the court order that there were communications beyond text messages and phone calls. You never ever alerted the court or anybody to that, did you? Again, because I have no record of it. I I have no way of being able to tell when those took place or how many there were. The question I asked you is when you responded to the court order to provide all communications. All communications. And you responded by offering text messages and you responded by listing phone calls. You knew that your signal calls were communications, didn't you? I provide everything that I had in my possession, sir. That's not what I'm asking you. You knew the signal calls were communications, didn't you? Yes. Okay. And you never informed in your response that there were phone calls through Signal as part of your communications, did you? Again, because I had no I didn't have any record like I do with the Verizon uh entries as well as the emails. I could not I there's nothing I had in my possession, sir. Mhm. Um you've read this court order, haven't you? Yes. Did you understand when the court was looking for all communications, it meant all communications? and and I've provided everything that I have in my possession. Sir, during those four to five signal communications, um, did any of these occur before the end of the last trial? I'm sorry, can you repeat that? Did any of these signal communications happen before the end of the last trial? No, they like I said, they were all this year. You sure about that? Yes. Now, at some point, did the defense send you a retainer agreement? for this year? Nope. Prior to the end of the last trial, did you ever get a retainer agreement? No, there was no contract and retainer for the first time. There wasn't a contract. Did you ever receive a retainer agreement? No, I don't believe so. Okay. When you came out to the last year and the last trial, did you have an agreement with any entity that was going to pay for your costs? No, sir. So, you had no agreement that you were going to be refunded or compensated for your costs? No. Did you have any agreement that you were going to be compensated for your time? No. So, when you were asked to come out and testify in this case, tell me, did you think that the defense was going to compensate you for the cost of you coming out here? I had no idea who was ultimately going to pay the invoice, if an invoice was even sent. Did you think that you were coming out here to testify for free? Again, I don't know who was going to pay the bill. I'm not That's not what I'm asking you. I want to know after having these conversations with the defense and they asked you to come out here. Did you expect to be compensated for your time? Again, I'm a salaried employee, so I it it doesn't matter to me. I'm sure my boss would like us to get paid, but no, I did not know ultimately who would pay an invoice if an invoice was sent after the trial. Well, you were keeping track of your billing, weren't you? I was keeping track of my time. Yes. And you kept track of your costs, didn't you? The company does that. Yes. Did you? Again, I I enter my time so that the company can keep track of my time. Yes. When you came out here and made travel arrangements, did you have any conversations with anybody from the defense? About the travel arrangements? Yes. Yes. And as far as the travel arrangements, who on the defense was trying to help you with travel arrangements? Uh, I believe it was Mr. Jackson. Okay. Was there other people, associates, colleagues that were helping you as well? None that I had direct communication with. I I don't know if he communicated with others after that. Was there a person named Cat? You ever hear that name before? Uh, I believe that. Yeah, she may have escorted me into the the courtroom. I think Well, you don't believe because that's a pretty particular name. So, when you use words like you believe, you know, you know. So, did you meet a person by the name of Cat? Robertson, I'll allow it. I I think when I arrived here, yes. Without qualification, the simple question is you've met Cat, haven't you? I think I met her. It was either at the Vadier day or the trial day. Yes. Now, does Cat work for the defense? I have no idea who she is. Well, how did you know who she was? How was the introduction? How did that go down? I just mentioned I think she escorted me here to the courtroom. Escorted you from where? I think I arrived I drove here and I arrived I believe in the church parking lot across the street and I think she walked me over and then ultimately when I was done I think she walked me back to the lot. Do you have conversations with anybody for the defense about how you'd get here and and why it is in particular you would park at the church parking lot? Because I had no idea where to go. But who told you where to go? Like like I mentioned, I communicated with Mr. Jackson who provided that information to me. Okay. And did you have any significance about the the church parking lot? Did that mean anything to you? No, he had just indicated, I think, that they had reserved it and it was a spot that I could park my vehicle. Okay. And when you got there, did you meet with anybody from the defense? I can't recall if they were they were standing out there and we walked in together. I I don't recall. Well, I'm asking if you've met them, not whether you walked in together. I'll ask it again. When you arrived after these plans were made, did you meet with the defense before you came into court on the voadier day? I don't believe I can't recall if the defense was out there. I I think on the day of trial, I think I met Mr. Jackson and and maybe a couple other members of the defense team. Well, when you say you think this was a pretty remarkable event coming to this trial, wasn't it? Objection. Your honor, going allow it. Pretty remarkable event, this trial, wasn't it? It's unique. Yes. Yeah. It's unique. And so when you came here, having had all these conversations with attorney Jackson, you don't remember if you met him before you came in for Vader or came in for trial. You don't remember if you met him? Well, like I said, I think for the voadier, I think he was already I believe in the courthouse. So I I think the first time I actually shook his hand and met him was was the day of the trial if I'm not mistaken. Okay. And tell me, is that near the church parking lot that you met with them? I'm sorry. What was your question? Was it near the church parking lot where you met with them? Yes. Okay. He shook his hand. This is meeting face to face, right? Yes. Yes. Did you have a conversation about the case? I I don't believe so. No. When you say you don't believe so, do you think you had a conversation about the case at that point in time? No. I was getting ready to take the stand, so I I I don't think we had a conversation about it. You were speaking to the defense or attorney Jackson on June 10th, 2024. That was before you testimony, correct? I believe so. Yes. And do you remember what those conversations were about? I presume it was about the logistics of of when we were needed and then I know that ultimately I served as kind of the primary point of contact where I think Allan would reach out to me. He would give me some information about the scheduling and and kind of when we would be needed. Then I would check in with with Dr. Wrenchler and then I would get back to Mr. Jackson. So there was kind of that channel of communication to try to figure out when we were to arrive and and where we were supposed to go. You're not saying that all your conversations with Allen were just logistics, were you? I believe for the most part, yes. So, it took hundreds of texts, 100 texts for logistics. Absolutely. I And I can certainly go into the day before my trial testimony, which was a very extensive travel day where I don't even think I left the Philadelphia Phil Philadelphia airport. We're going to get there, but we're going to get there, but there's a lot more communications before we get even close to that. Okay. Do you remember on June 10th having conversations with Attorney Jackson? Uh, I do remember that there was conversations. Yes. Now, June 10th is 8 days before your testimony. Did you ever talk about an outline of your testimony or what your testimony would be? No, sir. Okay. You ultimately um have more conversations on June 16th. You remember those conversations on June 16th? Not specifically. No, you don't remember them specifically. Do you remember um whether or not you talked about the case with attorney Jackson on June 16th? We did not talk about the case. No. Did you ever email with attorney Jackson around that time? In June in June 10th before your vaire? I don't believe so. No. Okay. So everything from your mind was just logistics at that point? Yes, sir. Okay. And then you came in for June 17th. I believe the voadier was the 18th. Okay. Do you remember having phone calls on the 18th with the Tony Jackson? The day of the voadier? Yes. I could have to let them know that I arrived. So you check in with a client, tell them you're on their way even even though you're not going to meet them. To let them know that I'm coming to court. Okay. And so when you testified in the vaire then did you have further conversations with attorney Jackson after the vaireier? Yeah. Yes. And did you talk about the case? No sir. You had to testify or you came and you testified on the 24th. That sounds right. You had a number of phone calls before the 24th. You had a series of phone calls on the 17th, two on the 18th, two on the 19th. Do you know what any of those were about? I think it was about the logistics of arriving here because I know that I was going to, as opposed to driving, I know I was going to fly in this time. Okay. How about the 21st and 23rd? There's a call on the 21st and two on the 23rd. Talk did you talk about the case? I No. And so when you came into trial to testify, you were just relying on the opinions you had already provided in the past that were written in the February 12th report of 2024. Yeah. Yes. And you had not talked about the case with attorney Jackson or any member of this team? No, it was it was all in the report and that's ultimately what I testified exactly to at the time of trial in the budier, sir. And you did not talk to attorney Jackson or anybody else about the case? No, sir. May approach. Yes. Showing you an email. Do you recognize that? Yes. From you to who? Uh to Mr. Jackson. Okay. And what's it labeled as? Uh Wolf Direct. And that's before you testified on trial by the board before the court. It's at 6:00 p.m. the night before I testified. Yes. So, it's before you testified. Yes. Okay. Let me show you this document. Do you recognize that one? Yes. What's that? Uh that is the attachment to the doc to the email. Okay. Um you recognize reading that? Yes. Do you recognize discussing the case before you testified on June 24th, 2024? I never discussed this with him. This is something that I sent to him that I did on my own and that I sent to him. But he never asked this of me and we never discussed it. So you sent him what you thought would be the best questions and answers for him to ask you when you testify. So this is something I routinely do when I work with attorneys. Okay. I prepare this on my own to prep myself and prepare for trial. that please. There's a email with a document. I'd like to attach this as an exhibit. Okay. Exhibit one. One. So, you assisted the defense before your testimony. Hold on. Where's the one with the confidence on? [Applause] Thank you. So, you assisted the defense in anticipation of your testimony by sharing with them the questions and answers you thought would be most helpful. Again, as I mentioned, this is something that I do internally to prepare. I sent that to him the evening before I testified at 6 p.m. I presume that he already had his his direct examination done at that point. So I sent that to him. Yes. That's a lot of answers other than the one for my question. The one for my question. Hold hold the comments, please. The my question was you had communications offering information to the defense before you testified in a way that you thought would help the testimony, didn't you? Well, first off, I have no idea if he even read it or utilized anything from it. But that's not really answering the question I just asked, is it? Can you repeat the question? Of course I can. So, when you sent a direct examination to Attorney Jackson before your testimony, you communicated with Attorney Jackson providing information that you thought would best help your testimony in court? Well, I think ultimately it's it's to help the jury understand my report and my analysis. Do you think it's helpful not answering the question and just diverting every time I ask you something? Do you think that's helpful? Do you want to answer my question or do you want me to move on? I think I answered your question. I don't think you did. So, I'll ask it one more time. Objection, your honor. All right. No comments, please. Do you think that providing a direct examination to the defense before you testified is in any way assisting preparing for your testimony? Again, I don't know if he even utilized it, sir. And certainly, if the Commonwealth had reached out, they could have gotten a copy of that as well. It would have been the same exact outline whether I testified on behalf of the defense or behalf of the Commonwealth. You don't want to answer my question. Objection, your honor. Did you ever make any comments or discuss the outline that you provided to the defense to help better the testimony for the defense? I did put comments. Yes. When I just showed you that document and you said you just sent it because this is a standard thing. Why didn't you just tell us that you made comments that would assist the defense? Why didn't you share that when I just asked the question? I I don't understand your question. You don't understand my question. I asked you about the outline, the direct examination you provided to the defense. and you gave me a response that this is something typical, but it's just an outline. You wouldn't answer whether it would help the defense or not. But the reality is you weren't assisting the defense, isn't it? Ejection going to allow that. You were making suggestions to help the defense, weren't you, sir? It it it wasn't to help the defense. It it wasn't to help anyone but the jury understand things. As I just mentioned, that outline, if it was asked of if I had sent one to the Commonwealth, you would have gotten the exact same copy. You didn't send one to the Commonwealth. The Commonwealth never reached out to us, sir. So, what you said in this is there was a question about So, not being able to inspect the vehicle is something that is not uncommon in your line of work and you wrote back absolutely not. Correct. Correct. And you made a comment to assist the jury according to you only to assist the jury. Not sure if you want to put this somewhere in the direct examination. I have a feeling they're going to argue I didn't personally inspect the vehicles. I had enough information from the material I reviewed, so it wasn't necessary. Need to show jury it doesn't matter in this case. Were those your comments to the defense before your testimony? Absolutely. And it it would have been the same argument probably from the defense if if you had called me a witness about not being able to inspect the vehicle. I wanted the jury to have an understand that for the analysis I undertook, it did not matter that I did not physically inspect the vehicle, sir. So when you're telling us here under oath before this court that you did nothing to assist the defense, you do not think that you making these suggestions on how to better the testimony for the defense. You don't think that's helping the defense? No. Okay. You said not sure if you want to put this somewhere in the direct examination. So you're making suggestions to the defense about what you think could be helpful in the direct examination. Correct. Sir, there were never any conversations between me and Mr. Jackson about what questions to ask, what not to ask. Again, I prepared that internally on on my behalf and sent that to him. Whether he utilized it or not, I have no idea. Not my question. Not my question. What I'm asking you is when you wrote to the defense and said, "Not sure if you want to put this somewhere in the direct examination." Do Yes. Slow down. Sorry. When you wrote and offered unsolicited according to you to the defense. Not sure if you want to put this somewhere in the direct examination. Um, weren't you trying to help, sir? I don't believe so. No, sir. And then when you wrote, I have a feeling they are going to argue. I didn't personally inspect the vehicles. Who's they? Well, it would have been the prosecution in this case, but you're not taking sides. You're totally objective, right, sir? That that is a question that's routinely raised when I testify about whether or not we inspected the vehicle. So I know it would be a potential issue that would be raised by either side. So you were alerting the defense that you thought that this may become an issue, weren't you? It was more or less to make sure the jury had an understanding that because I didn't physically inspect the vehicle, it did not matter for my analysis. Sir, I wanted to make sure the jury understood that. Don't hide behind the jury. I'm talking about your communications with the defense. I'm asking you specifically about your conversations with the defense. That's two questions. Ask one question. You wrote, "I have a feeling they are going to argue I didn't personally inspect the vehicles." That's what you wrote, correct? Objection, your honor. The tone in the argumentation. Did you write that? Yes. Right. And when you said they, you're referring to the opposition, the Commonwealth. Correct. Correct. Right. And you offer an explanation or a way to deal with what the Commonwealth may confront you with, don't you? You make a suggestion to help the defense, don't you? Again, it it was to help the jury understand that because I did not physically inspect the vehicle, it did not matter for my analysis. That was the point I was trying to make. I had enough information from the material I reviewed, so it wasn't necessary. Need to show the jury it doesn't matter in this case. That's what you wrote, right? need to show the jury. That's what I was trying to make sure that that point was understood to the jury in your collaboration with the defense. That's not all you wrote, is it? You gave them discretion about things that you should or shouldn't say in front of that jury who you say you want to hear everything, didn't you? There were other comments. Yes. If you want the jury to hear everything, you wouldn't be relying on the defense to tell you what to say and not say, would you? I don't know if I understand your question. Okay. You'll understand if I read this number 19. Would it be fair to say that because you do a lot of nighttime visibility work, your cases frequently involve pedestrians? You remember that one? Yes. And then you wrote back, yes. Unfortunately, there is a direct correlation between the time of day and pedestrian fatalities. You remember that? Yes. Statistically speaking, most pedestrian fatalities occur during the evening and night hours. You remember that? Yes, sir. So may my specialty in the area of lighting and human factors result in a lot of my cases involving pedestrians. Yes. Yes. And then do you defer to the defense, not the jury, trying to give the full story to the jury. Do you defer to the defense in exercising discretion on what you will or will not say to this to the jury back then? Well, allow me to explain if you will. I'm asking you a question. Let me explain. No, I'm asking you. Did you defer? Answer the qu answer the question first. Did you defer to the defense on what information they wanted you to put in front of this that last jury or not? I didn't defer to them. The reason for that comment is a few reasons. Sir, let me read it and then you can give any explanation you want. Hold on. Hold on. Hold on. Hold on. Hold on. Next question. Mr. Brennan and you answer. Dr. Wolf. You said if you don't want me to say this, that's fine. Are those your words? Yes. Allow me to explain because for one, I want the jury to have an understanding again, the jury to have an understanding of my background and lighting and human factors and how it relates to me seeing a lot of pedestrian impacts, right? So, I want them to have that understanding. At the same time, I don't want them to get caught up in a statistic that just because there's more pedestrian impacts at night that this alleged incident must have occurred because of that statistic. Question 31. Have you been qualified as an expert in court before? And you wrote back yes. Remember that? Yes. And then you made another comment. Do you remember that? Yes. I realized in my testimony I said about 20 times when you asked how many times I've been qualified. You were referring to your VAR testimony. Correct. Correct. I misinterpreted your questions which was my fault. But in looking at my DNT lists, it's 11 trials and seven depositions, 18 testimonies total. Correct. Correct. Not sure if you want me to clear this up or just leave it. Wouldn't you want to clear up a misstatement when you realize you had made a mistake? Wouldn't you want to inform the court? I stated qualifications I didn't have. It was unintentional, but it was a mistake. Well, that's exactly why I put the comment in there. Sir, you put the comment You didn't put the comment to the Commonwealth, did you? Again, you all never contacted us, sir. Did you comment to the court who you made the representations in front of? Did you let the court know that you made a representation that was inaccurate? Again, that's why I put the comment in there to Okay. Did you inform the court about your misrepresentation? No, I did not inform the court. You relied on the defense and gave them the discretion whether they were going to clarify the record or not. Correct. But I provided the clarification. Yes. Mr. Brenn, could you move along, please? [Applause] As you sit here today, you don't really know how many communications you had with the defense before your last testimony, do you? For trial one? Yes, trial one. I I think it's all memorialized in the records and the emails that were produced. The ones that were produced, but not things that were lost or destroyed or deleted. Correct. Again, there are records, even though the physical texts aren't there, there's certainly records of the calls incoming and outgoing, as well as texts. Do you remember when you testified in the VA, you were asked that before that morning when you walked into court, you had never met Attorney Jackson face to face? Correct. Um, but you met him in court that day, right? I believe I met him that day. Yes. You were asked whether or not you had ever discussed at trial. Now, after the VAR on June 24th, you were asked whether you ever discussed the substance of any of your testimony. You remember that? Correct. And so, when you shared questions and answers and suggestions by email, um, was the statement under oath, you and I have never discussed the substance of the testimony. Is that still truthful? We never discussed it, sir. Again, I sent it to him on my own behalf. There was no discussion that took place between Mr. Jackson about that. Um, you made comments after this was exchanged. That was sent with the comments, sir. And then you were asked whether you had ever been paid by the defense. You said no. You were later paid by the defense, weren't you? ARCA did send an invoice afterwards. Yes. Did you talk to ARCA about that? About the billing in this case? No. You submitted your bill. Yes. ARCA submitted the bill. Yes. Yes. Mr. Klein, he was involved in the um testing you did, wasn't he? Yes. Why is it that Mr. Klein didn't come in and join you? Who made that decision for trial? Well, I think it was around again when we were talking about those June calls. I think that there was some discussion between Mr. Jackson and myself uh about Mr. Klein's involvement and ultimately he's also an ax reconstructionist. So, it essentially would have been duplicative testimony. So, we didn't feel or Mr. Jackson, I don't think felt it was necessary to call Mr. Klein as well. That sounds like a little bit more than just scheduling, doesn't it? I would describe that as logistics, sir. Logistics. You had to describe what Mr. Klein's role was or wasn't in that report, didn't you? Again, I went over his background as an accident reconstructionist. Yes. Well, so you only talked about background and from that the decision was made not to call him. Or did you talk about his role in your testing and in your opinions? I didn't talk about his role, sir. the I think ultimately the decision obviously was made by Mr. Jackson, not I understand that, but I want to know what the conversation was that led to the decision not to call Mr. Klein. It wasn't simply logistics. What was the discussion you had? Well, I I told him that again we were we're both accident reconstructionist. Dr. Wrenchler is a biomechanical engineer, so there would have been essentially duplicative testimony from both of us. Well, your report's not very clear who did what. Would you agree with me the report is a general report that has Jaws, Dr. and Dr. Klein's name on it. Would you agree with me? All three of our names are on it. Yes. It doesn't distinguish who did what in that report, does it? Correct. But I think it it certainly was testified to at the Vadier in in the time of trial before the voadier. When you spoke to the defense, did you explain to them what the different roles were for the different people that led to the decision not to call Mr. Klein? Again, we we went over our backgrounds and I think from that you can deduce that. I don't know what that means. Well, if if you're familiar with what an accident reconstructionist does and you're familiar with what a biomechanical engineer does, then you would be able to understand that. Well, it would be easy to understand if you could just tell us what the conversation was. That's what I'm asking you about. Objection, your honor. I'll allow it. When you had a conversation with the defense, did you tell them the role that Mr. Klein played in your investigation and in your conclusions? Again, I I told him that we are both accident reconstructionists. Okay. And he chose you instead of Mr. Klein. Did you say there was a difference between you and Mr. Klein and what you did? No, I again we were both a part of the testing. We were both a part of the review. So, we had exactly the same role essentially. Did you tell him that? No. I again I told him that we were both accident reconstructionists. And you remember that's all you said about it? Yes. Okay. Um, during the vaire and the trial, did you get to watch any of the Commonwealth experts? No, I don't believe so. Did you ever communicate with the defense about any questions and answers that could or should be asked? No, but I will note that during the entirety of the first trial, the Department of Justice was closely watching it and we had a certainly a direct line of communication with them that they were giving us and providing us information about the trial as it was ongoing. Did you ever communicate with the defense about questions and answers to ask? No, sir. Did you ever see anybody's testimony at any time during the first trial? I don't I I might have seen a few news clips, but I didn't watch any specifically. No. Did you ever watch anybody's testimony? Did you ever watch any of the reconstructions testimony? No, sir. Did you after the trial um spend any private time with the defense? No, I I left town. Okay. You didn't go to lunches or parties or anything like that? No, I went straight to the airport. Okay. And sir, is there any other communications that you've had with the defense that you didn't tell us about outside the texts and the phone calls and the signal calls? Are there any other communications that you can think of that you had with the defense? No, sir. I've provided everything I have in my possession. I have no further questions. Mr. Leie, do you have anything? I sure do. Your honor, thank you. We going to get to Dr. Wrenchler today or not? Well, you know how much time Mr. Brennan's uh just I'm just asking you. I hope so. Okay, mayor approach. Yes. Your honor, may I uh approach the witness for the document? Yes. Thank you. Dr. Wolf, I am uh providing you with a document. Uh do you recognize it? Yes. What is it? Uh it is the order for production of records. And is that an order from this court? Yes, sir. And is this the order that you were provided with in response to uh recent matters with regard to this court and what you should or should not be keeping in terms of records and what you should be producing with regard to records? Yes. Could you please read the uh well uh excuse me at this time your honor I have it in front of me. Okay. Well it's it's it's I understand. Um so if your honor has it I'm would like it to be part of the hearing. wink. Yeah, it's exactly. Thank you. Two. Thank you. I offered it into evidence, your honor. Okay. May I allow the witness to have that, please? Thank you. Take that. You're with me, your [Applause] honor. Dr. Wolf, I realize that the the court has a copy of this, but I'd like you to uh please uh read the first sentence in the indentation at the top after following. Okay. All records within ARCAS or its owners, partners, employees, or representatives, possession, custody or control in whatever format kept that reflect or in any way relate to work performed or contemplated and related in any way to billing, payment, compensation, andor reimbursement of any kind in connection with Commonwealth versus Karen Reed. Did you and to the best of your knowledge everyone associated with Arker comply completely with this order with regard to the records that are requested in it? Yes. Everything I had in my possession and that Arca had in our possession, we produced. What I'd like to do is to go back in in time with regard to your interactions with the United States Department of Justice in February of 2024. Were you under was ARCA under a contract with the United States Department of Justice? Yes, sir. Was there a contract number assigned to that contract? Yes. Was there an internal number at ARCA for which all time was built for your work on that matter in February of 2024? Yes. Did that contract number that began in February of 2024 ever change in ARCA? Well, let me just clarify something real quick. So, the the original case when it came in from the Department of Justice was in the the year of 2023. So, when that project was opened with the Department of Justice, we assigned a project number to it. That project number from the original case with the Department of Justice remained the same all the way through the trial. And now let's go from in the trial in June of 2024. Correct. Correct. Yes. From June of 2024 to the end of December of 2024, did that contract number ever change? No. To your knowledge, when you were entering time under that contract number for your work, did you understand that that time was going to be build to that contract number with the US government? That was my assumption. Yes. Did you have from any time in 2024 any understanding that any of your time that you were entering was to go to be build to the defense team in this case? No sir. Let's now go to your first interactions with the defense. as I understand it. Uh well, why don't you tell me what was the first date of your understanding of interactions with the defense? Uh I believe it was sometime in in mid to to end of March of 2024. Again, that would have been uh over a month from when we uh issued our report a report to the Department of Justice. Your honor, may I uh approach the witness? Thank you. Thank you. You're welcome. Your honor, may uh what I have is the entire production that ARCA made. I think it would ease in terms of the Sure, he can have it. Thank you. Is that uh pursuant to the subject of the honor's permission to answer any of my questions if you need to. Okay. Now, uh, in March of [Music] 2024, had your final report been issued, the final report that you prepared for the US government? Yes, that was issued on February 12th of 2024. From February 12th of 2024 until you sit here today, has there been any change whatsoever to that report? No. Have the conclusions in that report stayed the same since it was finalized for the US Department of Justice in February of 20124? Yes. And and that was testified to at the voadier and certainly at the time of trial. Did the defense at any time have any discussions with you about the substance of that report to the United States Department of Justice? No, we we had no idea who the defense was or the Commonwealth for that matter. And when you took the stand in the voadier testimony in the first trial, before you took the stand, did you have any discussions with any member of the defense about the substance of that report? No sir. Did you have any discussions with any member of the defense before the voadier testimony other than discussions about background in qualifications? Other than again some logistics about how to get up here, where to go, things of that nature. But beyond that, no. Other than logistics, how to get up here, when you were coming, background qualifications, did you have any discussions with any member of the defense of any kind with regard to the report to the US Department of Justice? No, sir. Did the defense ever try to get you to improve or change any aspect of the report you had issued to the Department of Justice? No. At the time you were that ARCA was working for the United States Department of Justice, do you know whether ARCA could have been retained by any other party for any aspect related to the February 2024 report? I'm not sure I understand your question. In 2024, did the federal government prevent ARCA from entering into any contract with any other party with regard to your report of February of 2024? So we we were again because we were still under contract with the Department of Justice, we could not uh have any other formal agreements, contracts, retainers, any of anything of that nature uh because we were still under contract with the Department of Justice. Now let's go to the emails that were discussed with you starting with March 20, 20124 and then the subsequent email of March 22nd, 2024. Okay. Are you there, sir? Yes, I think so. Okay. Well, let's let's test to make sure. Uh March 20, 2024, 10:49 a.m. from Alan Jackson to Daniel Wolf. Do you have that? Yes. And that email uh states uh in substance, thank you so much for taking the time to get on with the phone this morning. Pursuant to our conversation, please feel free to forward an engagement letter to this email address. I will get that counter sign and return to you forth with along with your retainer as required. As of March 20th, 2024, was there any understanding that ARCA would be compensated by the defense for any aspect of current or future work? No. Was there any understanding or discussion that ARCA would receive any reward or payment or compensation for any contemplated work with the defense? No. The discussions that you had with Mr. Jackson that are the subject of this March 2024 email. Were there any inducements to ARCA from the defense? No, sir. After that email was received by you, did you have any understanding or expectation of any kind that ARCA would be compensated for any work associated with this case? No sir. was what was briefly the essence of that conversation that's discussed in the March 20, 2024 email. Well, if it it it correlates to when I'm I'm looking back at this phone record log. Uh there was an incoming call to the Arkham mainline on March 20th, 2024 at 7 a.m. and that's Pacific Standard Time. So that would have been at 10:00 a.m. Eastern time. So that call lasted for 39 minutes and and as I mentioned earlier with Mr. Brennan. I think that was a conversation about Allen trying to get in touch with with me letting us know that hey, we've received your all's report as part of this federal investigation. You know, how can we go about utilizing you guys to come testify at trial? Can you guys come testify at trial? So, and then as I mentioned, I went over him uh with our our typical, you know, protocol for when a case comes in and a client wants to utilize us to testify, which is certainly outlined in that email. Um, but obviously given the very unique nature of this case, I had no idea if that was something that was okay, if it was allowed, what to do. So, subsequent to that email, I then reached out to the Department of Justice to get clarification on what the guidelines would be to move forward. I'm going to come back to these emails, but I want to go right to the July invoice from ARCA to Worksman Jackson firm. So, do you can you locate that? Is that in your production? It's the July [Applause] invoice. Yes. I I have it located. Yes. Do you did you ever have any discussion of any kind with any member of the defense team about that invoice before July 12th of 2024? No, sir. And I will note I am not a part of the invoicing or accounting at ARCA. when a bill goes out, how much it goes out for, who it goes to. I'm not a part of that at all. For each and every entry on that invoice, did you have any understanding that the defense team, as you're making each of those entries, any understanding that the defense team was going to be paying for any of that work? No. Again, I think it my boss wants to know what I'm doing with my time, right? What am I working on? I was sitting there twiddling my thumbs or am I am I working on a case? So that's the purpose of of tracking time, sir. So can you please describe how it is you enter time and what it is what your thought process is as you're entering each of those time entries? Not each one, but just collectively. How do you do it? Why do you do it? And how does that work in your firm? So again, there there's usually just a spreadsheet. Sometimes I'll write it down. maybe my project manager will enter it. But ultimately I again I keep track if if I've got you know an 8 n hour day right I'm I'm working on multiple cases that day right so I figure out all right did I I have a telephone call did I work you know work on a report for this long right so I keep track of my time in in a spreadsheet so that ultimately again my boss and the accounting department knows what what was Dr. Wolf doing on this day this month? Let's take the first entry on May 1st, 2024. You see that? Yes. Did you have any understanding when you made that entry that the defense was going to be paying for that time? No. 69204. Did you have any understanding when you made that entry that the defense was going to be paying for that time? No. for any entry on this invoice. Did you understand have any understanding that the defense was going to be paying for this time? No, sir. When you're entering this time, if you had any understanding, was your understanding that this time was under the contract with the US government? Yes, because that's the project number that I put that time towards. So, at the time you're making each one of these entries on this entire invoice, what project number are you billing to and which one do you have in mind at that time? I don't recall it off the top of my head. I I I know it was the project number for the Department of Justice case, though. Right. I I'm sorry. I wasn't asking about the specific number, but the the ultimate client when you're making each of these entry, who is it? It's the Department of Justice. Is it the defense in this case? No, sir. Did you ever have any discussion at all with any member of the defense team that this invoice was going to be sent to the defense? No. And for any entry on this invoice, did you ever have any belief that you were retained or engaged by the defense? No. And as I mentioned earlier again, the Department of Justice forbid that. So we we we could not be retained or or in a contract with the defense. I would like to now go back to the emails we were talking about specifically. We left off with the March 20, 2024. I want to now go to the March 22nd, 2024 email. Um, I'm just going to shorthand that, refer to it as the pause email. What had happened between March 20th, 2024 and March 22nd, 2024? Do you have the tab for that? The email that you're looking at? Sorry. Tab one, please. Tab. [Applause] Right. So, the the the first email that we were talking about on March 20th, 2024 from Mr. Jackson to to myself, it looks like the next email was from me to Mr. Jackson. 2 days later, March 22nd, 2024, at 6:00 a.m., I sent an email saying, "Hi, Alan. Subsequent to our conversation on Wednesday, the US District Attorney's Office has asked that we pause on any further conversation until we receive additional information from their office regarding our involvement moving forward. I will provide you an update when I have it. Uh, so what it sounds like and from what I recall is that between March 20th, 2024 and March 22nd, 2024, I had reached out to the US Department of Justice and the US Attorney's Office to get clarification on again moving forward with potentially testifying in the case. And what did the United States Department of Justice tell you? They said to wait basically until they internally figured it out. So what was your conclusion from that conversation as to whether you could do any work on the this case at that point? At that point I I didn't even know if we were going to be allowed to testify. I know that from my conversation with the Department of Justice, I I knew that there was a great deal of confusion on their end on on whether or not, you know, as expert witnesses involved in a federal investigation if we would be even allowed to testify in the state matter. So they their legal teams were trying to I think figure out what the the road forward looked like. And were you entering time under that uh US contract matter in March of 2024? Yes. And do you know where that time was being built to? I would Well, it would have been the same project number as the Department of Justice, right? It that time was not to your knowledge being build to the defense, was it? No. Again, there was through the entirety from again when the case from the Department of Justice came in in 2023 till the the trial concluded, all of the time was was put to that one project number. In March of 22nd of 2024, was any engagement letter sent to the defense? No. As of March 22nd, was there any retainer sent to the defense? No. there there was never a contract or retainer sent to the defense in 2024 at all. So in terms of the discussion in the March 2024 um email about engagement letter and retainers, were any of those ever sent? No, we were not allowed. And and let's go back to that discussion of March 20th about engagement letter, retainer letter. Was that discussion where you were talking specifically about what you were going to do with the defense in terms of that relationship or was it a general specific type discussion of the policies and billing procedures of ARCA? Certainly, as is alluded to in the email was I I prescribed to him our typical operating procedure for when a case comes in. Um, but again, there was I remember a part of that call there was a great deal of confusion about what do we even do from here? So as of March 22nd, 2024, can you just briefly describe whether there was any further activity at all by ARCA with regard to the defense? No, I I don't believe so. I don't think that anything there was no communication, I don't think, until about a month later in April after I had received that clarification. Now, let's go to April. Let's go to the uh uh voadier hearing of April. When you sat on the stand under oath for the voadier hearing, had there been any substantive conversations about the topics in the February report to the Department of Justice? No, sir. None at all? None. What briefly were the substance of the conversations you had with the defense team as of the moment you sat for the voadier hearing in April of 2024? Again, they were all scheduling logistics. And when I look at these records here, you know, I see a phone call for for 3 minutes, 5 minutes, 6 minutes, 6 minutes. There's a few that are for one minutes which I think again we were just maybe just plain phone tag but again these calls are are very short in nature. So again it was just trying to figure out I mean obviously I know that this was a a large trial a lengthy trial a lot of witnesses things are fluid so I know that uh Allan ultimately I think would reach out to me and then like I said I would he would give me an idea hey do you guys can you come this day right and then I would relay that to Dr. Wrenchler and say yeah that works for me so that I would get back to to Allen. So that's that's what those conversations were. Again, coordinating our testimony to appear for the voadier. It might appear to some that there were a number of conversations before in communications with the defense before you sat for the Vader hearing. Were those conversations about logistics, background, and qualifications, or did those conversations entail other topics? No, it it it's what we've covered again. That March 20th, 2024 phone call, the very first one of 39 minutes, again, was us trying to figure out what the heck to do. The May 1st phone call which was 40 minutes again was me going over my background, the work that I do, my qualifications, education. Other than that there are very short phone calls like I said of of 6 minutes, 3 minutes, 1 minute, 9 minutes, right? And again that was in preparation to appear in terms of scheduling, logistics, timing for the voadier at the voadier hearing. Do you recall the Commonwealth asking you any questions at all about whether you were being compensated by the defense? I don't recall a single question by the Commonwealth in that. No. Did the Commonwealth ask you any questions at that Vadier hearing about whether you had any substantive discussions with the defense about your February report to the United States Department of Justice? I don't believe they asked. No. Did the Commonwealth at that voadier hearing ask you any questions about whether you had any promises or inducements from the defense before you sat down for that voadier here? No. Now let's go to the next tab. Um, with regard to the outlines that you were asked on direct examination by attorney Brennan, you've described this situation. Well, you describe how it is you viewed this situation. You ever been in this situation before where you're under contract with the federal government, there's rules of the road, so to speak, is what you can do, what you can't do, and then you've got a a private defense team. Have you ever been in that situation before? No. I think it's truly one of a kind, and I I don't know that that'll ever happen again. And have you ever been in a situation like that since? No, sir. Did that cause you to have to have more or less communications with Mr. Jackson to figure out what it is you were going to do or not do? Sure. Yes. In terms of your uh outlines that you sent to Mr. Jackson, did he ever broach in any way at all any idea of you sending him an outline? He never asked. No. Was there even any discussions that you might send an outline? No. As I mentioned, it's it's something that for me is customary as I'm preparing internally for trial, right? I'm not going to come to trial, not review anything, not look over my notes, right? It's something I do internally so that I can have an understanding how how do I want to try to answer questions that might be posed to me such that I can have the jury understand how did I arrive at my opinions. Was it important to you before you sent that email with that those outlines? Was it important to you that the jury got a fair and accurate presentation of the work you had performed in association with your February report? Yes, I I think that this my job. Is was there any other motivation that you had in sending that outline and that email to Mr. Jackson, other than making sure testimony was elicited that would make your perspective clear to the jury. No, that was the only reason. Were you trying to in any way favor the defense, give the defense any favor with regard to that trial? Absolutely not. What was your goal both with sending the outline and the testimony at trial? What was your goal? Again, as I mentioned, I think it's it's to help the jury understand the report, the analysis, what I did, what I reviewed. Did the defense ever ever ask you to communicate to the jury about any aspect of your report in any way? No, sir. And did you in fact communicate to the jury what it is you intended to affectuate the goal that you just explicated? I think so. Yes. And with regard to the comments that were in those outlines, what was your intention in putting in those comments? Again, it was is to provide the jury again like for example with the nighttime pedestrian statistic, right? It was to have them have an understanding that I wanted them to have an understanding that I do a lot of nighttime invisibility work, right? So therefore, I see a lot of pedestrian impacts, but again, I don't want them to to take that statistic and be and say, well, we have this alleged incident. There was bad weather conditions. It was nighttime. Uh, therefore, we should give that more weight. And is that desire of yours in your mind to help the defense more than to help the Commonwealth? No, it's it's impartial. And I will note I give numerous presentations and I think slide two or three on presentations I give, it's going over that very same statistic. I I would never shy or hide away from that statistic. And I believe I testified to that very statistic or that comment at the voadier and in my trial testimony. In terms of the after you sent the emails with calls and uh issues pertaining to direct testimony, did you ever have any communication of any kind whatsoever with the defense team? No, he he didn't. Mr. Jackson didn't even respond. And I think when I sent the uh direct outline, it was it was Sunday evening before I hopped on a plane. And I think by the time I got into Boston, it was like 1:00 a.m. So, I didn't even have a chance. When you took the stand to testify the next day in that trial, had you had one word of a conversation with Mr. Jackson or any other member of the defense team about the substance of your upcoming testimony? No, sir. So, you went and sat during that trial and gave testimony to the jury without ever having talked to a member of the defense team about the substance of your February 2024 report. Correct. Do you recall any member of the Commonwealth asking any questions at all during your trial testimony about whether you had been compensated by the defense? No. Do you recall the Commonwealth ever asking any questions at all whether you had communicated with any member of the defense with regard to your testimony while uh during your trial testimony? I don't think that was asked. Did you rec do you recall any convers any questions from the Commonwealth about whether back in March or any other time you had been promised or induced by the defense? Do you remember any of those questions? No. Do you remember any questions by the Commonwealth at either the voadier or the direct testimony about whether you had had conversations with the defense? No. Do you remember any uh questions of the Commonwealth at all before you sat down and after you sat down for trial about whether you had any text communications with any members of the defense? No. At the end of the trial, did you have any understanding whatsoever that Arca was going to be compensated by the defense? No. At the end of the trial, did any member of the defense ever say to you, "We're now going to compensate you for any of your work up to the time of your trial testimony." No. And and the records certainly reflect that I never spoke to Mr. Jackson after the trial in 2024. There was no conversations between us. Well, let's go beyond Mr. Jackson. Let's go to any human being. Did you have any discussions with any human being as to whether the defense was going to compensate you for any work, travel, expenses, dispersements that you had or incurred up to and through your trial testimony? No. And at that time, were you still under contract with the United States Department of Justice? Yes. Now, let's proceed to December of 2024. Were there any conversations from the end of the trial until December of 2024 other than logistics? Uh well, was there any conversations of any kind? And please state summarize briefly what they were or texts. The the only communication that I had with the defense was Mr. Jackson after I took the stand. I think that he sent me a text just thanking again for my time traveling up here. I said it was, you know, it was it was great and then we left and that was it. I did not communicate with Mr. Jackson for the remainder of 2024. Now let's go to recent communications in 2025. Did you have any communications with any member of the defense with regard to the potential? Well, let me go backwards. Let me go to the invoice. Let me go to the July invoice. Okay. How did you learn that that invoice was paid? If you learned at all, how did you learn that that invoice was paid? I didn't learn. I didn't know that it was paid. I didn't even know it was sent. Now, let's go to this year. Did the defense approach ARCA to see if they might be able to testify in this trial that's currently pending? Well, I think that the first communication of 2025 that happened between myself and Mr. Jackson was in February February 13th of 2025. Uh there was two calls, 25 minutes and 5 minutes, but it looks like just because there was a a disconnect. So it was about a 30-minute call with him in February of this year. And what was the uh substance of that call? Well, I think back to that time frame, I became aware that I think that there were there was a motion or two regarding ARCA and potentially excluding our testimony uh for the the upcoming trial. Um, I also know that around that time I unfortunately I ended up getting a significant amount of of harassment uh through emails uh and unfortunately even spread into my personal life where uh my wife was affected. There were they were posting pictures of my four kids all over the internet. So um it was somewhat of a difficult time on my end and and I I think what prompted me to reach out to Mr. Jackson was to figure out what's going on. Why why is my family all over the internet? You know why why are they talking about me? Why am I getting all these hate emails? Uh so is it, I think, a conversation to to figure out, hey, you know, there's been several months that have passed. Uh it looks like there's some motions pending against us. I I'm getting a bunch of harassment. What's going on? Do you have an understanding of why you were getting hate mails, uh uh hate emails, hate communications, your wife, your children? What did you conclude was the reason why you were receiving that? I I honestly don't know. I I'm I presume it was about comments made to me uh in court or that were represented about ARCA or myself. So just so so I'm clear on that. It was you believe regarding comments about ARCA and whether and what can you be a little more specific what your understanding was? Well, I I know that I I received several emails that, you know, insinuated that I perjured myself on the stand. Um, like I said, it just and a lot of hateful comments just about me and and the work that I do. Um, so I received several emails with respect to that. Sir, do you believe you have ever made an an untruthful statement at all with regard to this matter? No, sir. Have you done your best to try to provide accurate and truthful information in this matter? Yes. Now to the last part, which is did the defense contact you with regard to potential further work? I want to separate out now and move on from the work that you did with regard to the US Department of Justice, your February 2024 report. We went all the way through the trial in that matter. We went to the end of 2024. Now I want to come to 2025 in a different subject matter which is communications with the defense about doing further work for this trial. Yes. What was the nature of the communication and so we can move through this rather quickly but importantly I want to get it complete and accurate. just describe what the communications were on a timeline basis, subject matter and with regard to your understanding of why you were contacted. So, subsequent to that that February 13th call, as I mentioned, Allan had indicated, Mr. Jackson had indicated that he preferred to utilize Signal to communicate. So, we we exchanged a few messages and and phone calls on that. Like I said, they were rather short. I'm going to I'm going to interrupt you for for there a bit. Was there any discussion about the reason for signal because the prosecution had been subpoening the im the phones of Mr. and doc Mrs. and Dr. Reid subpoening and seizing the phone of Miss Reed that that um phones of defense attorneys had been requested to be looked at. Was there any understanding in your mind that there was a need to go to signal to protect the defense and the integrity of the defense? I I didn't know that was happening, but but I like I said, I I did not have a problem with communicating. To me, it was just another messaging app. I know people use all different types of applications, so I didn't have a problem with it. Was there anything in your mind nefarious or underhanded about using Signal? No. And you you my understanding is it's the first time you used a Signal app with regard to a matter professionally. Is that correct? Correct. Yes. Did you get any understanding from communications with the defense that there was anything at all untored about communicating through signal? No, I was not aware of any issue with using that communication. Was there any communication whatsoever that you can recall on Signal that you have any concern about as you sit here today? No. And what were the majority of the communications as best you recall with the defense on Sigma? Well, as I described, I know that at that po and like I said, it was primarily confined to a pretty short window in in March, but Mr. Jackson had indicated that around that time, I think ARCO was being litigated by this court in terms of our involvement in the case. Um, I know that they had started to, I think, receive discovery as it relates to the Commonwealth's accident reconstructionist and and biomechanist. Um, so they were, I think, interested in utilizing us potentially in the second trial. So I think that they had submitted a letter to the US attorney's office to try to to be able to work with us. Um, I said that on my my end I could reach out to them because I hadn't heard from them in in months. So uh, I I think it was around mid-March I had reached out to the US attorney's office to try to get my own clarification on whether or not we could move forward. All right. So I want to I want to stop you there. Apologize for interrupting you, sir, but what was the date that you reached out to the US Department of Justice to see if you could participate in the second trial? Probably around mid-March, maybe March 18th, March 15th. Did you have an understanding at that time that the Commonwealth had retained an entirely new firm and expert in the area of accident reconstruction? I think Mr. Jackson had indicated that there had been some material disclosed, but I think it was I think it was just a simple report or something of that nature at that point in time. Was it a report just like a page and a quarter or so of findings and conclusions and then a slide presentation? Is that what it was? Yes, that sounds right. Was any of that information at all helpful or meaningful to you in your ability to respond to that and to determine what was done and what ARCA might want to do in response? Well, certainly not the report. Uh the the report was very very brief. The PowerPoint somewhat hard to follow, but again, it it it really didn't provide a complete picture. And in terms of scans, electronic data, uh, etc., do you recall when you when you finally got that information? Well, I think that would have been after the defense officially retained us on March 26. I think that's when we received that information. So, so in terms of the information that you received, those scans, etc., Did that allow you to proceed with any meaningful work? Well, it it gave us again a better insight into the the foundation or the basis for the analysis. Yes. Could you have proceeded with a contract with anybody, not just the defense, but anybody with the level of information you had before you got the scans and the data? I think it would be very difficult to do so. Could you have even created a scope of work based upon that report and that PowerPoint presentation? Most likely not just because some of the areas that that Dr. Wrenchler and myself are are particularly interested in are extremely vague in that report in PowerPoint. Once you got the level of information that you have now, what is the ordinary time it would take in the regular course of ARCA's business to evaluate that information and prepare your own report analysis and finding in the ordinary course? How much time would it take ARC to do that? Well, certainly for the nature of this case, uh, as I mentioned, we we were officially retained by the defense in March on March 26, 2025. As I mentioned, I myself just got word from the Department of Justice just a day or two, I think, prior to that, that we could move forward. So, immediately once Mr. Jackson. Uh I indicated to him on the 26th that we did have authorization to move forward. He immediately asked that I send over again our typical procedure with the contract and retainer. And I think that same day at the 26th or the 27th, his office sent over I believe links to notices of discovery I believe 1 through 62 which I think encompassed about 800 gigabytes worth of of information and data. How much in in relative to 800 gigabytes is that a little data, medium amount of data or a lot of data? Voluminous. A lot of data. Uh so we we immediately started to review that and and again I feel like maybe I speak for most experts. One thing we always want is more time, right? Uh so in a case like this, I mean ideally we would be talking months uh to be able to to sift through all of that information. Um be able to do analysis, be able to do testing, be able to write a report, right? So I think certainly we are on the order of of months not weeks. What did you do however if anything to try to expedite the work and get it done as quickly as you could once you got the level of information you had from Aperture? Certainly. So uh I certainly understood that the the trial was was eminent. So I worked as quickly as I could along with Dr. Wrenchler to to review that material and certainly in in parallel try to determine, okay, what what testing do we need to do to effectively evaluate and potentially come up with opinions for this case? Did you put other work aside at ARCA to work on this matter? Absolutely. Work and personal things. Um, and personal things. What did you put aside? Just one example. Uh, so the other week, uh, my wife and I, we celebrated our our 10y year anniversary. So, all of us. Thank you. So it affected his personal life. I understand. Okay, I'll move on. Your honor, with regard to the work, you performed it on an expedited basis as you said. You shortened the time period down as much as your firm possibly could. Is that correct? Correct. You said you would like to have had more time. Correct. Correct. But I I understood your honor's order and and I wanted to beat that deadline. So I worked as quickly as I could over the last week to ensure that again we could respect that deadline and we completed our testing. And with regard to the testing now that you've worked on that you just described, does that testing relate to any previous work or is it all in response to the new expert for the Commonwealth, Aperture, and the new information from Aperture that came uh in iterations through the month of February. It would be in response to to Dr. Welchure's work. Certainly, much of what was alluded to in his report in PowerPoint was was not discussed in the first trial. Could you have done any of the work you've been working on the past month or so? Could you done any of that work without receiving the Aperture report and slides and scans? No. I I I don't even know what we would be responding to then. So you needed the aperture information before you could even start working. Correct. Correct. Do you have in mind or does ARCA have in mind any further testing that you need to do or have you completed what ARCA needs to do with regard to fairly and properly responded to the new work of Aperture? I think we we're satisfied that we've completed that testing. Yes. And what if any more work do you contemplate that needs to be done from as you sit here today going forward? Well, as I mentioned all all the testing is done. So I think the analysis and the report to follow. Yes. To use uh expert uh uh engineering type is it QAQCing the report? Is it putting it putting all the information together in a compilation so everybody can understand what you've done and make clear your findings and conclusions? Is that what's left to do? Yes. And and I will note obviously as the court is aware, we we've produced all of that raw test data, photographs, video. So, it's it's all there. The the basis and the foundation for what the report will lay out uh has all been provided to the court. you got ahead of me and thankfully to the my my next question which is there's nothing that you have that that you've done that hasn't already been produced to pursuant to the court's order. Is that correct? No. I I think that we've responded to the court's order. Yes. How long on an expedited basis? Well, let me ask in the ordinary course, how long would it take you to do this last part of your work in the ordinary course? Uh probably again it can vary up maybe around a month would be fair. However, it would take a month in the ordinary course. How quickly can you get that work done fairly? I'm hoping if it pleases the court hopefully May 7th will work. And so you believe everything would be completed by May 7th. Correct. That's all I have at this point, your honor. Right, Mr. Doctor, you're suggesting that it's going to take until May 7th for you to complete your reports in this case and the analysis. Yes. Do you know when this trial started? Uh I think like a week or so ago you provided raw data last Friday. Yes. But you would agree you still have not provided any reports. Correct. You said if you were notified or received information you could have your testing and opinions done within a month. Correct. Potentially. Again, it would also depend on when we got authorization from the Department of Justice, which as I mentioned was at the very end of March. I understand that. We're going to talk about that separately. I'm talking specifically about how long it would take if you received the information. You said that you could have the testing and reports done in one month. Correct. I don't know. I said the testing, the reports, and everything. Would it take longer than a month? Ideally, I think it depends on what kind of a report that we're talking about. I think if it's if it's something along the lines that Dr. Welchure uh produced. I think it could be pretty quick. You said March 26 is when you received authorization and you're going to have things done by May 7th. So that's a month and a week. Sounds about right. Okay. Do you know when the Commonwealth in this case turned over Dr. Welch's information to the defense? Do you know? I don't know. No. Did you know that it was turned over and report on January 30th? Just the report? Yes. I I didn't know that. And the file in its entirety was turned over by February 5th. Did you know that, Judge? Your honor, do you know that? I don't, your honor. And if you had a month from February 5th to complete your testing report, you could have been done by March 5th or even the second week of March, couldn't you? Presuming we we had authorization, the defense had authorization from the Department of Justice as well as ARCA. Yes. putting aside the authorization. I'm going to ask you about that, but just the time you need to test. If you knew or received the information by February 5th, you could have been done by March 5th or mid-March, couldn't you? Potentially. Yes. Well, you're going to get it done that quickly now. So, wouldn't that be an accurate guide to when you could have done it then? It's certainly not ideal, but we we certainly are working as quickly as we can. I know it's not ideal, but isn't it the same time frame? Whatever it's going to take you from March 26th, you could have done from February 5th. True. Again, I I don't know the timeline in terms of of what exactly was produced when from Dr. Welchure. So, I I'm not aware of that, but I'm not asking about the timeline. I'm talking about the time needed to deal with this information you said you could have done in around a month. I think a month or more. Yes. So, um, your contract with the federal government ended, Arers did, in June of 2024, didn't it? I believe it was sometime last year. Yes. Do you know the Commonwealth notified the defense that they were going to have a new expert back in October of 2024? No. Are you aware of any effort by Arker or the defense to try to facilitate an agreement that the defense could use Arer's witnesses back in October or November of 2024? No. Are you aware of any efforts by the defense to try to notify the federal government to be able to use Arcer in December or January? No. And so as far as you knew, this came out of nowhere in March that the defense wanted to use ARCA or specifically you and Dr. Wrenchier in late March of 2025. No, I think again it was uh like I said around February of 2025. I I know that like I said when I spoke to Mr. Jackson that he had indicated that that the ARCA issue was being litigated and I think that like I said there was I think multiple motions petting against us and and he didn't even know if he could move forward with us at that point in time. Do you know why the defense waited until February 2025 to even seek permission from the federal government to retain you and Dr. Wrenchler so you could review the materials? Objection, your honor. Do you know do you happen to know that? I don't know. No. Next question. You shared with us communications you had with the United States Attorney's Office. Were you receiving information in this case since the last trial from the defense or from the United States Attorney's Office? What do you mean with respect to information? Evidence, discovery, information from the Department of Justice? Anybody? No. Not until recently. No. So, you haven't seen any discovery until after February of 2025. Isn't that fair to say? Correct. Okay. Now, when you were um involved in this case before trial last year, we talked about your communications and conversations with the defense. Was anybody giving you information as an intermediary? Is anybody updating you on the defense of the case or giving other information to you? Yeah, I think I previously testified that the Department of Justice was closely watching the trial and providing us information. What information were they providing you about the trial? Uh, I think that they provided information regarding the uh some of the witnesses that had testified with respect to I think the reconstructionist and I think some of the evidence. So, when the Department of Justice was giving you information during the trial about witnesses, what witnesses do you remember? they were giving you information about. The one that comes to mind was, and I don't even recall his name, it would have been the the accident reconstructionist. Is it a coincidence that when you were receiving information from the Department of Justice about particular witnesses testifying in this case, is it a coincidence that your phone calls and text messages are more frequent? Is it a coincidence? Yes, I presume so. Well, when you were receiving information from the Department of Justice about witness testimony in this case, was that part of the catalyst for you to either call or text the defense and ask questions? No. Did you ever share any of the information you received from the Department of Justice with the defense? No. When you receiving information from the Department of Justice about witness testimony, that was before you testified. Correct. Correct. And part of that when they were giving you information, did they ever give you any live video? No, it was just verbal communication and they were giving you updates and summaries of testimony. I I wouldn't say summaries. They they just pointed out some key things I think that came out. What were the key things they were talking about with the reconstructionist testimony? What were they telling you? Uh I think it was as it relates to the the arm being outstretched and I think some of the the kinematics of the pedestrian. I also think there was some mention of potentially some DNA evidence. And is that how at trial, even though you had no evidence that was produced as part of your report or to consider for your report that you knew that there was DNA evidence because of the intermediary because of the Department of Justice? Yes. Yes. Did you know there was a sequestration order in this case that you were not supposed to consider or review other witnesses testimony or information? Did you know that? I was never made aware of that. Nobody made you aware about a sequestration order in this case? No. But you did in fact receive information about other witnesses testimony before you testified in this case in front of the jury, didn't you? From the Department of Justice. Yes. What other witnesses were you advised about their testimony and issues in this case before your testimony in this case? That's all I recall. Well, you said it was more than one. You said some witnesses. Take a moment, think back. What other witnesses stand out that you were offered information from the Department of Justice about this case before you testified? As I mentioned, it would I I don't know which witness provided the DNA information, but I would presume that that's the other witness. Yes. So, you heard information, you learned that there was information and testimony about DNA. Yes. And certainly when you took that information before you testified, you considered it when you testified, didn't you? No, because again our our report was already solidified. So I it didn't change my opinion in any way. Well, not about whether it changed your opinion. You testified about DNA, didn't you? I don't believe that I did. No. I'm going to approach, if I may, your honor. Okay. This is your outline with your comments. You recognize this? Yes. I like to exhibit, please. Thank you. Exhibit three. So, as an expert, when you receive information, you need time to look at the raw data, don't you? Potentially. Yes. You need time to look at the report of of another expert, don't you? Potentially. And then you got to consider whether or not you think that their testing is accurate. You can test their testing, can't you? You can. Yes. And you can also generate new tests based on what you've read if you think that there is some explanation needed. Yes. Perhaps. Yes. And then you could write a report. Yes. So it's fair to say when a expert introduces new information, testing materials, it takes about if not at least a month to process through that information, vet it, and then consider your own testing. Well, if if they've already authored a report and done their own testing, that should be solidified and memorialized already. Well, if there's new testing, if a new expert does something new and an expert wants to look at it, you would agree to sift through that much information and consider and vet it and then do independent testing. It could take over a month, couldn't it? If it's necessary, and it would be the expert that determines whether or not that was necessary, wouldn't it? Sure. And if your report is not due until May 7th, is that what you said? May 7th. Yes. May 7th. Um, it could take an expert if they wanted to do testing based on new testing that you provided over a month, couldn't it? It depends. I I can't answer that. When you wrote that initial report and you provided the the report, how many pages was it? 10, 12 pages. The original DOJ report, the report that you produced in this case with your opinions. Yes, that sounds about right. Okay. You never gave the raw data for that report, did you? No, it was all protected. It was all what? It was protected as classified. Did you have you been asked for it? Has there been a request made for all the raw data that form the basis of your opinions of those initial opinions? My understanding from communication with the Department of Justice is that all communication and work product is protected and and cannot be disclosed. So that raw data that's necessary to you for your evaluation and your testing, that wasn't provided in this case, was it for the first trial? Yes. No. and videos of the demonstrate. You built like a potato cannon, right? I'm sorry, what? Potato cannon. If that's how you want to characterize it. Sure. Okay. Did you take videos of it when you were doing your demonstrations and tests? Yes. You never turned over those videos, did you? Again, this we're talking about trial one, as I mentioned, for for trial two, we trial one. So, no, I I want you to focus on Okay. No, that was not produced. No. You never turned over any of that those videos, did you? Again, we we were not able to. And was there any failed testing the first time around? No. In addition to videos, I'm sure you had other raw data, notes, photographs, right? Yes. And so when you look at a report, so for example, you saw Dr. Welch's report and you had access now to his file and data. Correct. Correct. You reviewed that, didn't you? Yes. Because to be fair, you need to review not just the report. That's just someone's opinion. You need to review the raw data, don't you? To get an accurate understanding of an opinion, right? Which we have already provided in response to Dr. Welchure. Without video and without the raw data as an expert, there's no ability to really vet the reliability of your first experiments that led to your testimony in trial one, is there? I think you might be confused. Again, our role for this round any objection, your honor, you should be allowed to answer. I don't think I'm confused. I'm talking about trial one, right? You had a 12-page report. You provided no video, no raw data, no notes. Correct. Correct. But for this trial, sir, we are being asked to respond to Dr. Welchure. Okay. We have provided everything that he would need to evaluate the testing that we have done. That's not what I'm asking. What if he wants to evaluate the testing you did the first time? Are you going to come into court? Do you hope to testify about the opinions you gave the first time about those four opinions? I don't know what the defense's plan is for us. My understanding is that it's to evaluate and respond to Dr. Welchure. All right. With with that, I need to see counsel with that. You're all set. And let's bring Dr. Wrenchler in here, please. Thank you, your honor. Okay. Follow me, sir. Thank you. raise your right hand. Do you solemnly swear that the testimony shall give to the court and the matter now in hearing shall be the truth, the whole truth, and nothing but the truth of God? I do. All right, Dr. Wrench, this is going to be very quick. Go ahead, Mr. Brennan. We just need his name. Good afternoon, doctor. Good afternoon. Could you please state your name for the record and spell it? Uh, Dr. Andrew John Wrenchler. A N D R E W J O H N R E N T S C H L E R. You've testified before in this case? I have. Yes, sir. At a last vaire in a past trial. That's correct. Okay. Did you have conversations and communications with the defense before your last testimony? I did. Yes. Did you use text messages to communicate? I believe there was maybe one text message. Okay. How about phone calls? There was uh maybe one or two phone calls, I believe. Okay. Would it be fair to say there was six text messages for you? Yeah, I believe I sent one and then there were five sent to me. And were there 23 phone calls? No, I don't believe so. Have you looked at the records outlining the phone calls that supposedly you made to the defense? I looked at the records uh from the defense, but then I looked at my own records which indicate a different number. Only three phone calls, I believe. Okay. So, the 23 phone calls that are summarized, you don't think you made those phone calls? No. If you look at them, it's like 1 minute, 2 minute, 3 minute. And in that time period, according to to my phone records, I have like a 21minute phone call that encompasses most of that time. Okay. Um, did you discuss with the defense before your testimony anything about this case? I don't believe so. No. Wouldn't you say you don't believe so? Do you remember speaking to them about this case at all? I remember speaking about my qualifications and my background and I believe that's it. Did you ever use any other medium to have conversations with the defense other than texts or emails or phone calls? No, sir. Did you ever communicate with them on signal? No, sir. Why not? There was no reason to. As an expert, when you communicate with uh clients, there's no concern about having it in writing, is there? I'm so when I keeping a record whether it's a phone call or a text message or an email there's no concerns when you're dealing with clients having a record of that is there I don't believe that ARC has any specific policy for that no sir um did you keep track your hours prior to your testimony I did yes and when you before you testified did you have conversations with people from the department of justice about this case yes I did they inform you about witness testimony they did in inform informed me yes about uh testimony and situations and events that came forth in the in the trial that I was not aware of. Who decided whether it was going to be an issue worthy of talking about before trial with the DOJ? You mean? Well, that certainly that would have been up to the DOJ. I mean, we had I would have had conversations with them. I don't believe that I asked or requested anything, but they were called to update us about what was going on. Do you know why they were calling and raising certain issues with you? I do not know. No, sir. And by calling and raising issues and telling you information even if you weren't requesting it, it helped prepare you for your trial testimony, didn't it? It would certainly help prepare me to understand what was going on during the trial. Yes. Did you know there was a sequestration order that there was supposed to be no discussion of testimony and issues that were occurring in the courtroom before you excuse me before you testified? I'm going to allow it. Were you aware of that, sir? No, I was not. Okay. After you testified, did you um well before you testified, did you get a chance to meet anybody from the defense? Uh just when I came to court, I think for the voadier is the first time I met anybody. Did you just spend time with the defendant and the defense after your testimony? Uh well, after my testimony at trial on the 24th, uh yes, I I was provided a ride back to the airport and I believe I was the last witness. So before my ride to the airport, they said, "There's a lunch next door. We need to get somebody else to take to the airport. Come over, have lunch." I had lunch, stood in the corner, and then got a ride back to the airport. Spend time with a defendant and her family. Oh, they were certainly there. Did you talk to them? Uh, well, they talked to me. As I said, I ate my lunch and then I actually went and stood in the corner and then I believe some people came over to talk to me and approached me. So, you spent some time with them? Uh, certainly. Yes. Okay. And sir, um I understand the report is not going to be ready until May 7th or after. Uh I believe currently that's what the the estimated deadline is. Yes. And so in evaluating Dr. Walter's materials, you want to look at the raw data, the conclusions, the findings, the PowerPoint, all the materials, right? I would. Yes. You'd like to review all the materials before coming up with an opinion. You can make a decision on what you think is appropriate to contest or maybe agree with and then do your own test if necessary. Correct. to to be able to respond to what those opinions and allegations are. Yes, sir. And it's taken you at least a month to fairly do that, hasn't it? Well, I believe that's I mean that's what we've had a month. I I don't know if it's taken us a month. That's basically all we've had up to this point to to do that. And it's still not done. Uh no, not yet. That's correct, sir. All right. Is that it, Mr. Brennan? Excellent. Thank you. All right. Can you get that report and everything completed before the 7th if I order you to do so? If you if you order me to do so, I mean I could I I could certainly try and expand again. All right. I appreciate that. Thank you very much. You're all set, sir. Thank you, All right. Want to see council at for one All right, that's it. Thank you. All eyes for the court, please. Goodbye. Hey there, Karen Reed, trial watchers. You know what? A lot of the trials we cover remind me of that the world is unfortunately very unpredictable. And I'll tell you what, having a great lawyer matters so much. That is where a great partner and sponsor Morgan and Morgan comes in. This is a firm with over a thousand attorneys. You know why? Because they win a lot. In the past few months, Morgan and Morgan secured a $9.3 million verdict for a car crash victim in Florida, a $5.6 million verdict for another car accident victim in Atlanta, and not to mention $1.8 million in Kentucky after insurance offered them a mere $5,000 in that case. And even if you think your case, you know, isn't worth millions of dollars, why not start a claim and fight for what you deserve? 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