The issue of what exactly makes someone an “expert” witness took up some of the time in Department 106 at the South County Courthouse in Morgan Hill on Tuesday.
Deputy District Attorney Jason Malinsky asked Judge Javier Alcala to recognize Fernando Ramirez Jr., a criminalist with the DA’s office, as a “digital forensics expert.”
Anthony Becker’s lawyer, Deputy Public Defender Chris Montoya, objected. He said Ramirez has never served as a digital forensics expert before.
“[There’s] gotta be a first time,” said Judge Alcala from the dais before allowing Montoya to question the witness’s credentials.
Ramirez has degrees in biology and criminal justice. He does not have technical degrees in software, computer science or computer programming. He has never published research and has never worked on research.
Ramirez joined the DA’s office in April 2019. Before then, he had never worked in digital forensics. He is not certified in digital cell phone forensics and does not have certifications from the International Association of Computer Investigation specialists. He has not attended any conferences specific to digital extractions of cell phones.
He is not certified with “Gray Key” or the Magnet Axiom software, both of which were used on Becker’s electronic devices.
Ramirez has testified in court four times before, never as an expert and never in digital forensics.
Malinsky said Ramirez has over 300 hours of training and his work is subject to peer, technical and administrative review.
Judge Alcala deemed Ramirez an expert in digital forensics. He explained to the jury that an expert is someone who can “help a layperson understand.”
What the Crime Lab Found on Becker’s Devices
Ramirez inspected the devices of Becker and former 49ers’ public relations head Rahul Chandhok. He talked the court through how he obtained the data and turned it into documents for investigators.
Malinsky asked about what happens to the data when a third-party app is deleted. Ramirez said there may be “remnants,” but not everything.
Attention then turned to the Signal app. Ramirez testified there were remnants after Becker uninstalled Signal on Dec. 28, 22 at 9:09:51 a.m.
Malinsky entered several of these remnants into evidence to show you could send photos and documents through Signal, choosing specific pieces to enter into evidence.
One remnant was a photo from May 2022 that showed a group of people in front of Levi’s Stadium.
The defense objected citing lack of foundation. It was overruled.
Malinsky continued his questioning and Judge Alcala interrupted to ask if Malinsky would show the photo. Malinsky agreed and put the photo on the screen.
Judge Alcala asked the prosecution to make it bigger. Malinsky questioned Ramirez about when the image was sent and other details about sending the image but never addressed the image itself or its relevance to the case.
Montoya also objected to a “remnant” submitted from Oct. 5, 2022 at 12:14 p.m. The Signal message included a document. It was presumably supposed to show that Becker could send documents.
The judge overruled the objection. Montoya asked for a sidebar. He was told, “No.” He persisted and said the prosecution was trying to submit evidence other than the simple Signal communication. Judge Alcala begrudgingly allowed both parties to approach the bench.
Following the meeting, Judge Alcala told the jury both sides stipulated that while a document was sent on Oct. 5, 2022, it was not the civil grand jury report.
It was not clear if this document was sent by Becker or received by Becker and who it was to/from.
Malinsky also asked Ramirez for clarifications on how Signal worked. Montoya objected, citing Ramirez’s earlier testimony that he hadn’t heard of Signal prior to Becker’s case. The judge overruled the objection.
Ramirez said to check his findings, he wiped an iPad, installed Signal, uninstalled Signal and then performed a data extraction. It had similar results to what was found on Becker’s phone.
Montoya objected and said an iPad is a different device than the iPhone 13 Pro Ramirez was investigating. Judge Alcala overruled the objection and told Montoya to take it up on cross-examination.
Montoya objected again when a document submitted into evidence included a photo added by the prosecution. Montoya said it was not an “accurate” Axiom depiction.
Malinsky said it was the same photo added into evidence earlier. Judge Alcala overruled the objection.
More than a dozen other times, Montoya objected. He was overruled every time.
At one point, after several overruled objections, Montoya asked for a sidebar. Judge Alcala said “no.”
Neu’s Testimony Concludes
Tanya Neu, a criminalist with the DA’s lab, returned to the stand on Tuesday morning. Neu talked about how she extracted data from two devices in the case, Rahul Chandhok’s iPhone and a MacBook Pro.
Neu said the devices were stored in Faraday bags, which shields them from receiving a signal. When the device is turned on, it is placed into airplane mode before it is connected to a device that downloads the data.
The data is stored in binary format. Neu performed a test to confirm the data was accurately transferred. She then loaded the data onto data tapes that were stored in evidence.
During cross-examination, Becker’s pro bono attorney Shavon Henry tried to explore potential errors in the process. When she asked if Axiom could not “fully process” some of the messages on Chandhok’s iOS messages, Neu agreed that she had received an error message.
However, when Henry tried to probe further, Malinsky shut down all avenues of inquiry through multiple objections, saying it was “beyond the scope.” The issue was eventually brought to Judge Alcala in a sidebar.
After the sidebar, Henry tried to pursue the line of questioning, looking into the process of spot checking and whether it occurred. Malinsky again objected.
At the break, Malinsky went on the record to say Neu was only there to testify to step one in the process, data extraction. Ramirez would have to address other concerns.
He put on the record that the continued line of questioning after the sidebar was designed to make it look like he was trying to hide something.
Henry argued Malinsky was trying to hide something.
Henry said Neu engaged in a comprehensive review of the devices and encountered issues with the Magnet-Axiom software. Neu’s report showed she had frequent talks with the software company about the issues.
Malinsky said the next criminalist could address the issues.
Henry said that Ramirez never addressed the software issues or fixes in his report.
Judge Alcala determined they would have to question the second witness, Ramirez, before deciding if the software issues were relevant. He decided that if it were, Neu could be recalled as a witness.
Chandhok’s “Unusual” Relationship with Local Reporter
Before sitting the jury for the day, the court went through a 15-page document with a string of texts between San Jose Spotlight founder Ramona Giwargis and Chandhok.
Becker’s pro bono attorney, Grant Fondo, told Judge Alcala the texts show “coordination” between the prosecution’s “star witness” and a reporter who is “central” to the case. The defense wanted to show the “unusual” relationship between Giwargis and Chandhok.
While most of the exchange was redacted, it showed the two texted extensively about the release of the civil grand jury report “Unsportsmanlike Conduct” and how to respond. They worked together in some capacity on the email response Chandhok sent to the civil grand jury and the City of Santa Clara.
Judge Alcala agreed to allow some of the text messages prior to those admitted into evidence by the prosecution.
Ramirez’s testimony is expected to continue tomorrow morning. That afternoon, Santa Clara City Council Member Suds Jain is expected to take the stand for the prosecution.
Silicon Valley Voice’s Continuing Becker Trial Coverage:
Day 7 Becker Perjury Trial: Civil Grand Jury Overseer Testifies
Day 6 Becker Perjury Trial: Prosecution Enters Becker’s Grand Jury Testimony
Day 5 Becker Perjury Trial: Damage Control And Campaign Financing
Day 4 Becker Perjury Trial: Fmr. City Attorney Steve Ngo Take the Stand
Day 3 Becker Perjury Trial: Defense Tries to Paint Chandhok as the Focal Point
Day 2 Becker Perjury Trial: Chandhok Testimony Resumes
Destroyed Evidence Discussed on Morning of Becker Perjury Trial
Day 1 Becker Perjury Trial: Opening Statements, Chandhok Testimony
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