2.Juror 551 Illness, COVID Concerns, Courtroom Space and Seating, and Exhibit-List Submission

MR. JAY: Thank you.

What I'm having Madam Clerk mark as D for identification for purposes of this hearing is what has been provided to the defense as the very narrowed-down portion of the phone extraction carve-out. What it has is what -- and we were even so specific that we labeled one part of the PDF Case in Chief Pages, of which there are 59. We labeled Rebuttal Pages, of which there are 108. Attachments that go to the case in chief timeline count up as 80 photographs and videos. Attachments in Rebuttal count up as 147 photographs and videos.

There is metadata that comes with all those files, so there is a date stamp and timestamp on each of those files. For instance, 12/25/2019, 1:10 p.m. Another one might be 10/26/2019, 6:06 p.m. They all have file names. Providing context would be the PDF outlook -- or PDF outline of the phone extraction, of which the State will now move into evidence so that the Court can consider this as State's 4 for the purposes of these hearings.

MR. JAY: And so just to give the Court an example, on page 49 of 59 of the PDF labeled Case In Chief, entry 31107 in this PDF from the phone extraction is labeled, Videos, 2/23/2020, 11:12 p.m., 45 seconds, UTC minus five, which means corrected to Eastern Standard Time for that time of year, and it's image_1062.mov. So that sort of information is going to be there for the majority of these files. The ones that end up getting recovered from unallocated deleted space are sometimes not going to be there, but there will be contextual clues as to the relevance. The Court will be able to see that. So, for instance, that image is the two-minute infamous video of Mr. Torres being in the suitcase that started at 11:12 p.m., 45 seconds, on February 23rd.

So there is context that can be used, both on the metadata that's in the file when you list these files by details instead of by icon, and then within the timeline. And what we have carved out is, the Case In Chief Timeline has a conversation that begins on Christmas of 2019, and it starts with Moe, presumably the decedent's brother, having a conversation with Sarah Boone, the owner of the phone. And it culminates in, Hide-and-seek, I shall. That's the context of that conversation on December 25th.

Then it goes down to a conversation that's going on January 12th, into the 13th of January of 2020. Culminates in a text from the owner of the phone Saying: And bless you and all of you too. I'll get -- capitals -- rid of him.

So that's the context of those portions of our Case in Chief PDF.

And then there's just the timeline that starts with February 23rd, 2020, at 8:35 in the morning and goes through the entire day to give context of what is going on with her on the phone. Is she using it? When is she presumably awake? That's the context of that file.

The Rebuttal file, which is, again, 108 pages, it starts -- and it basically involves with conversations with or about the decedent, conversations with his family, which I anticipate the defendant is going to testify she was terrified of and there was problems with all the time. It's going to give some context to those things.

It mentioned when they became a relationship on Facebook, March 8th of 2018, to give context as to when, perhaps, this relationship started or not. And then there's a timeline that starts from May 21st, 2019, that is filled with conversations about and with the decedent. At that point in time he had his own phone and then at some point he doesn't, and the discussions and the arguments between him and the family with the defendant.

And then the images that are associated in the folders, Case in Chief and Rebuttal, are the ones that are associated in these time frames. I have cleared out the vast majority of them. The vast majority of them were just icons and things that belonged to games and nonsense. I cleared out all the photographs of Mr. and Mrs. Boone's child, any of the child's friends. There's no need for any of the pictures of the children.

It's mostly photographs of the decedent and the defendant, but there's also just pictures of art and them going out, because it gives context. You know, if she's in the middle of an argument, for instance, with the family, you know, one might expect there to be pictures of injuries, instead there's pictures of art. So we did our best to select which photographs and videos were pertinent within these time frames. We did our best to narrow it down to what time frames we said we believe will give a good rebuttal picture after she testifies about his family and her relationship with him. So that's where we're at.

So as far as the relevancy -- the general relevancy objection that was made, there was no specificity as to what particular entries in the PDFs are objectionable for any particular reason. We believe that everything is relevant. Again, we are submitting it for the Court's review.

I know that we're in the third day of jury selection, which will apparently resume in 81 minutes. If there's an authenticity issue -- because one of their objections was relevancy, foundation, unknown origin date, hearsay, and Crawford issues. I'm submitting for the Court, if I can approach the Court --

MR. JAY: -- Gilbert vs. State, 324 So.3d 598, from the Second District Court of Appeal, decided in 2021; Lamb vs. State, 246 So.3d 400, from the Fourth District Court of Appeal, decided in 2018; Gayle, G-a-y-l-e, vs. State, 216 So.3d 656, a Fourth District Court of Appeal case as well from 2017.

The basics of these three cases are just the very low bar for authenticity. As Professor Ehrhardt from Florida State University would tell us, authenticity is a very low bar for the Court. It is generally considered a matter of weight for the trier of fact. And with this digital evidence, it can be established and authenticated in a variety of ways.

What the State expects the evidence is going to be is that the defendant's phone was taken from her home by law enforcement, as we know from the motion to suppress, and it was provided to a digital forensic examiner who was able to use the defendant's passcode to unlock it and perform a digital extraction. So that should clear up most of the authenticity issues as to who the owner of the phone is.

The State readily concedes and has provided context by using extra pages of conversations that at some point the decedent no longer had his own phone and was using Ms. Boone's phone from time to time. And, in fact, that is part of her allegations about pornography and contacting other women, but I believe the context of those conversations makes it clear who was using the phone and who was not using the phone.

So we believe that there is no foundation issue. We believe based on the defense they are raising, that there is relevancy. We have split it up to the case in chief and the rebuttal. We are specifically only entering the two incriminating statements and the context of those incriminating statements about hide-and-seek and getting rid of him, plus the timeline of the date of the offense.

Then the rebuttal, we have carved it out as best we could to present a picture of the conversations and the tone, as much as tone can be inferred from texts, and how the relationship was with the family and who may or may not have been the psychological aggressor.

As far as hearsay and Crawford issues, I am unclear if they are talking about just, in general, the digital forensic extraction report itself. One of the cases I gave to you makes it clear that machines are not humans. They do not get subjected to Justice Scalia's version of the confrontation clause that he outlined in Crawford vs. Washington in 2004.

What he also talked about, though, and what has had some discussion since the Crawford decision was, what's hearsay versus testimonial hearsay? Obviously, there's no testimonial hearsay in these phone extractions. There is no implication that any of these statements made by any of the participants in the text conversations were doing so with an eye towards litigation or prosecution.

So it's the State's position, number one, that the extraction itself and all the data that is coming from it is not hearsay and is not testimonial hearsay, much less. And the conversations that are going on with the other people, the statements that other people are making back to the defendant in the carve-out that we've provided aren't being offered for the truth of the matter asserted. There is no hearsay issue. It is to provide the context of the things that the defendant is saying; I'm gonna go bond Jorge out, I'm gonna go to the Public Defender's Office and get this taken care of, or screaming at his family, so on and so forth. Demanding immediate responses when somebody is cutting hair and keeps on telling her repeatedly, I can't respond to you, can't respond to you, I'm working. So those sorts of things, it's the State's position, aren't being offered for the truth of the matter asserted.

As far as the unknown origin date, I think it's pretty clear from the PDF timeline that there is a date and timestamp to every single entry from this phone extraction, and that corroborates with the images -- most of the images, some were from unallocated space, but it corroborates the metadata for these images. So we're asking for -- that their motion -- or their objection to be denied preliminarily. Obviously, we have to lay the predicate properly at trial, but now the Court has a copy. And hopefully we can get advice from the Court if the Court is believing that there are sustainable objections before we swear in the jury so that the State can pull any photographs or videos or we can have at least a discussion about those specifics. And then after discussing those specifics, the State can pull those out before burning a DVD to provide the jury. We also have the ability to black out entries in the PDFs.

Again, no specific objections were made, so it would be our position that they're waived. There was a generalized objection, but -- so that we're not doing this when the jury is out. Trial is busy enough, trial is tedious enough to not be conducting discovery and doing redactions during the nights and mornings of trial.

MR. JAY: Judge, we're just -- I believe we're trying to treat this like a video interview redaction issue. Like, it takes time to go back and pull out pictures and pull out videos or black out lines or remove pages. That's all we're trying to do is do that today. I don't know what the defense expects to be different at trial, what more information they're going to learn from the digital evidence.

I mean, the foundation for this evidence is going to be the law enforcement officer that took the phone that is pictured in the CSI photos out of Ms. Boone's apartment. It's right on the nightstand next to the Suitcase. And then that person is going to have to testify, Well, I gave it to Junella Uadan. And then Junella Uadan is going to come in and bring the phone with her and say, This is the phone that I plugged into my magic Cellebrite software, or whatever she used on that particular day, and this is how Cellebrite works, this is my educational background, blobbity, blobbity, with the software and I pulled this extraction out. Mr. Jay sent me this carve-out of this extraction before trial. In fact, she picked it up yesterday, and I believe -- you know, I'm going to testify that this is part of the larger carve-out, this is from her phone.

That's going to be the foundation. The rest of these things are things that we should be able to have an intelligent discussion about today with specificity about, this line of text isn't okay, this particular photograph is not okay for this reason. That's what we were hoping for.

MR. JAY: One moment.

I don't believe so in either of the folders. I don't have any independent recollection if I tied it up more than when I gave them what I believe the exhibit to be a week or two ago, but I don't see any.