Description: Wichita, Kansas criminal defense lawyer represented the Defendant charged with sexual exploitation of a child.

In October 2019, Oath Holdings, Inc.-the parent company of Yahoo-sent a cyber tip to the National Center for Missing and Exploited Children (NCMEC) regarding suspected child-sexual-abuse materials detected in one of its accounts. NCMEC referred the matter to Detective Stephanie Neal with the Wichita Police Department, who then obtained a series of search warrants to investigate the matter. On October 29, 2019, Detective Neal obtained a search warrant for email and computer records from Oath Holdings, which is based in California. A legal analyst for Oath Holdings subsequently provided the documents sought by the search warrant-the contents of which are the subject of this appeal.

The legal analyst, Maria Abruzzini, mailed the records to Detective Neal on November 11, 2019, explaining in an accompanying letter that "Oath [Holdings] hereby produces the enclosed responsive data in accordance with state and federal law, including the Stored Communications Act. A declaration authenticating these records is also enclosed." This letter was Exhibit 22 at Kemp's trial.

In the business-records declaration, Abruzzini identified herself as the custodian of records for Oath Holdings. She explained that Oath Holdings was located in California and stated, "I make this declaration in response to a search warrant dated October 29, 2019 ('the request'). I have personal knowledge of the following facts . . . and could testify competently thereto if called as a witness."

The declaration then stated that the records included subscriber information, dates, times, and IP addresses for logins and authentication events, and content of the email account. The declaration also explained how the records were accurate copies and that the data was kept in the "regularly conducted business activity, as was made by Oath as a regular practice." Thus, it stated the declaration was intended to satisfy Rules 902(11) and 902(13) of the Federal Rules of Evidence. Lastly, Abruzzini signed the declaration "under penalty of perjury under the laws of the United States of America that the foregoing is true and correct."

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Legal issue Can out-of-state business records be admitted under the business-records exception to hearsay if the custodian's certification is under penalty of perjury under federal law rather than Kansas state law?
Headnote

EVIDENCE LAW. HEARSAY AND BUSINESS RECORDS EXCEPTION. The case addresses the admissibility of out-of-state business records as evidence in a criminal trial and whether a certification under penalty of perjury fulfills the requirements of K.S.A. 53-601(a)(1) to qualify for the business-records exception to the hearsay rule.

CRIMINAL LAW. PROSECUTORIAL MISCONDUCT AND BURDEN OF PROOF. The case evaluates the impact of prosecutorial error during voir dire in the context of discussing the standard of "beyond a reasonable doubt," specifically whether the prosecutor's comments diluted the State's burden to prove the defendant's guilt.

CRIMINAL PROCEDURE. CUMULATIVE ERROR. The court considers the application of the cumulative error doctrine, concluding it is inapplicable when there is only a single prosecutorial error identified during the trial.

Key Phrases Business-records exception. Out-of-state business records. Prosecutorial error. Beyond a reasonable doubt. Cumulative error.

Outcome: The Defendant was found guilty.

Affirmed

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Defendant's Experts:

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