Supreme Court of Kentucky Finds Raw, Machine-Extracted Data Does Not Implicate the Confrontation Clause
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that the Confrontation Clause is violated by the admission of testimonial hearsay by a declarant unless (1) the declarant is unavailable; and (2) the defendant previously had an opportunity to cross-examine her. So, is machine-extracted data hearsay, and does it implicate the Confrontation Clause? This was the question of first impression addressed by the Supreme Court of Kentucky in its recent opinion in Baldwin v. Commonwealth, 2025 WL 2671451 (Ky. 2025).
In Baldwin, “Jason Baldwin was convicted of one count each of first-degree rape; first-degree sodomy; distribution of obscene material to a minor; use of a minor in a sexual performance; and first-degree sexual abuse.”
At trial, Baldwin’s physical cellphone and…sixty-eight images of child pornography found on it via the data extraction were admitted into evidence….The Commonwealth did not call the Cellebrite analyst that extracted the raw data to testify.
Before the trial court, Baldwin objected to the photographs being admitted based on a lack of proper authentication. He further asserted that the Confrontation Clause required the Commonwealth to make the Cellebrite forensic specialist who extracted the raw data available for cross-examination.
After he was convicted, Baldwin appealed, renewing his Confrontation Clause claim. In rejecting this appeal, the Supreme Court of Kentucky ruled as follows:
The first question we must address, then, is: who is the alleged declarant here? It cannot be the Cellebrite analyst who conducted the extraction, as that individual made no “statement.” KRE 801(b). He or she simply extracted the data, placed it on an encrypted drive, and mailed it back to the requesting officer. The analyst did not make any written, oral, or nonverbal assertions regarding the data. KRE 801(a)(1)-(2). Indeed, the analyst would have likely been unable to make any assertions or conclusions about the data because it had not yet been “translated” into a readable format by Physical Analyzer. And while we do not know what process the analyst used to bypass the passcode on Baldwin’s cellphone, that process would not have altered the data that was already present on the phone; it simply opened the door to it. And with that door opened, the only thing left to do was extract the data. Tpr. Gabhart testified that in the absence of a passcode, performing an extraction is as simple as plugging the phone into Cellebrite’s forensic equipment and downloading the extracted data to a computer. The analyst simply had no part in creating the data or drawing conclusions about what it contained.
Consequently, the only other possible “declarant” is the computer the Cellebrite analyst used to extract and download the data. But to conclude that the computer was the declarant, we would have to hold that a computer is a person. KRE 801(b) (“A ‘declarant’ is a person who makes a statement.”). We decline to do so as KRE 801 is plainly limited on its face to statements made by human beings. Consequently, we hold that the raw data extraction was not a hearsay statement, and that the Confrontation Clause was not implicated by the admission of the photographs obtained from it.