Paul McManigal — Direct/Cross/Redirect/Recross/Voir Dire (Recall)
283 linesJUDGE NEWMAN: You may call your next witness.
MR. CONRAD: State calls Paul McManigal.
The witness, PAUL MCMANIGAL, was first duly sworn and testified as follows:
COURT CLERK: If you would, please be seated. State your full name for the record, and spell your last name, please.
PAUL MCMANIGAL: Paul McManigal, M-c-m-a-n-i-g-a-l.
VOIR DIRE EXAMINATION
BY MR. CONRAD:
MR. CONRAD: All right. Good afternoon Sergeant McManigal, correct?
PAUL MCMANIGAL: Yes, sir.
MR. CONRAD: And you're employed with the Charleston County Sheriff's Office?
PAUL MCMANIGAL: I am.
MR. CONRAD: And you testified previously in this trial, correct?
PAUL MCMANIGAL: Yes, I have.
MR. CONRAD: Just briefly remind the jury exactly what topic you testified on earlier. Briefly, please.
PAUL MCMANIGAL: I was tasked with redacting Alex Murdaugh's cell phone records to remove any possible attorney/client and attorney privileged information.
MR. CONRAD: All right, and during that testimony, you were not qualified as an expert, correct?
PAUL MCMANIGAL: That is correct.
MR. CONRAD: But you have been qualified in previous trials.
PAUL MCMANIGAL: Yes, I have.
MR. CONRAD: And approximately how many times have you been qualified as an expert previously in other trials?
PAUL MCMANIGAL: About ten.
MR. CONRAD: Ten times. Okay, and is that in cell phone forensics?
PAUL MCMANIGAL: Part of it was about -- if I may refer to my notes?
(Break in proceedings.)
PAUL MCMANIGAL: Six times of that was in cell phones. The other ones was in crime scene investigation.
MR. CONRAD: Okay. All right, and then let's briefly go down, as quick as you, can let's go through your training and experience in cell phone forensics briefly.
PAUL MCMANIGAL: I'm currently assigned to the United States Secret Service Cyber Fraud Task Force, which is where I received most of my training. I have been trained in basic computer evidence recovery, advanced computer forensics, Oxygen Forensic Suite training, Blacklight examiner, advanced mobile device examiner. Cellebrite physical and logical examination, XR light certification training, Macintosh triage and imaging, Apple I device forensics, Cellebrite advanced J Tag extraction, network intrusion response, vehicle forensics, digital video recorder evidence and recovery, ransomware investigation response training, and several other webinars.
MR. CONRAD: At this time the State would seek to admit Sergeant McManigal as an expert in cell phone forensics.
MR. BARBER: No objection.
JUDGE NEWMAN: So qualified.
DIRECT EXAMINATION
BY MR. CONRAD:
MR. CONRAD: Sergeant McManigal, last week you were present when a gentleman named Micah Sturgis testified for the defense, correct?
PAUL MCMANIGAL: That is correct.
MR. CONRAD: And specifically he testified about this feature in an IPhone known as wake --
PAUL MCMANIGAL: Raise to Wake.
MR. CONRAD: Raise to Wake, correct?
PAUL MCMANIGAL: Yes, sir.
MR. CONRAD: And briefly explain to the jury what that function is, and what it serves as in the cell phone, or the IPhone, excuse me.
PAUL MCMANIGAL: Raise to Wake is when the cell phone is laying down and you pick it up, it realizes that somebody is picking up the device. It tries to assist by turning on the display so that you can possibly unlock it with your face on it.
MR. CONRAD: All right. Or read the notification possibly if there's a notification on it?
PAUL MCMANIGAL: That's correct.
MR. CONRAD: And so it's designed to turn on that screen and to think someone is picking up the phone to look at the screen, correct?
PAUL MCMANIGAL: That is correct.
MR. CONRAD: All right, and there's been previous testimony, I think, by Mr. Sturgis and other experts in this case that the IPhone, if the screen is still off, it will not record an orientation change, correct?
PAUL MCMANIGAL: If the screen is off, it will not record an orientation change.
MR. CONRAD: You agree with that.
PAUL MCMANIGAL: I agree, yes.
MR. CONRAD: And you were asked after Mr. Sturgis's testimony to investigate a little bit more about this Raise to Wake feature, correct?
PAUL MCMANIGAL: I was.
MR. CONRAD: And specifically, you know, as demonstrated with the jurors, the screen is going to turn on when the phone is picked up gently, correct?
PAUL MCMANIGAL: That is correct.
MR. CONRAD: Because the phone thinks it's being picked up to be looked at, correct?
PAUL MCMANIGAL: That is correct.
MR. CONRAD: You were asked to investigate with a test device whether that screen lights up every time the phone is picked up in a more violent fashion, or a quicker fashion, correct?
PAUL MCMANIGAL: Correct. When the phone is picked up more aggressively, or moved more aggressively, the device will not turn on the screen.
MR. CONRAD: And that's because of the Raise to Wake feature is based off of what in the cell phone? What's telling it to wake up?
PAUL MCMANIGAL: The accelerometer primarily.
MR. CONRAD: And so the accelerometer is sensing motion, correct?
PAUL MCMANIGAL: Correct.
MR. CONRAD: And so if it senses a slight amount of motion, it's going to turn the screen on because it thinks someone is picking up the phone?
MR. BARBER: Objection, Your Honor. Leading.
JUDGE NEWMAN: You can't lead the witness.
MR. CONRAD: And so if the cell phone detects a slight amount of motion, what does it do? What does the IPhone do?
PAUL MCMANIGAL: So if the IPhone registers a slight amount of motion, it thinks it's being picked up, so it will turn on the screen. But if it's being picked up more aggressively it won't, and that's a battery protection feature. If you have the IPhone in your pocket and you were jogging, you don't want the screen to stay on the whole time. So when the phone is moving more aggressively, the screen is not turned on.
MR. CONRAD: And so you were asked to do some tests in your lab with a test device, correct?
PAUL MCMANIGAL: That is correct. I obtained an IPhone 11 Promax, which is the same make and model as the phone that Maggie had.
MR. CONRAD: And what software version was it on your test device?
PAUL MCMANIGAL: The software that was on my device is IOS 14.8; the one that was on Maggie's was IOS 14.6. So, the IOS that was on my device that I tested was slightly newer.
MR. CONRAD: Okay, and did you perform a series of tests in -- with the various motions and various throws with this phone to determine -- were you able to develop an opinion of when the screen light comes on and when it did not?
MR. BARBER: Objection, Your Honor.
JUDGE NEWMAN: Basis for the objection?
MR. BARBER: Rule 5. This is an experiment performed on the evidence, and we have not been provided this.
JUDGE NEWMAN: The objection is overruled. Rule 5 does not apply.
MR. CONRAD: Thank you, Your Honor.
MR. CONRAD: So, you -- so, you did perform a number of tests, correct?
PAUL MCMANIGAL: Yes, sir. I performed many, many, many tests over the weekend. I would pick it up and shake it, pick it up and throw it. I threw it off of my desk. I knocked it off of my desk. I tried to flip it end over end. I tried to through it like a frisbee. I did each one at least ten to twenty times.
MR. CONRAD: Okay, and were the results 100 percent conclusively? I mean, did the phone do the same thing every time?
PAUL MCMANIGAL: No, not at all. Sometimes the screen would turn on when I threw, land face up, and then the screen would turn on. But a lot of times I would throw it and the screen would not turn on. It depends on how that accelerometer registered that movement.
MR. CONRAD: So based off of your tests, is it your opinion that an IPhone of the same make and model as Maggie's could be thrown and the screen not turn on?
MR. BARBER: Objection to the leading.
JUDGE NEWMAN: Can't lead the witness.
MR. CONRAD: Did you develop an opinion about whether the screen would turn on every time a phone was thrown?
PAUL MCMANIGAL: If the phone is thrown, the screen does not always turn on. In my experimentation, I determined that when the phone is thrown more like a frisbee, nine out of ten times the screen does not turn on. The times that it did turn on most often was when I pick it up and tried to shake it, then the screen would come on briefly.
MR. CONRAD: But nine out of ten times when you would toss the phone like a frisbee, the screen would not turn on, correct?
PAUL MCMANIGAL: That is correct.
MR. CONRAD: Nothing further from the State.
JUDGE NEWMAN: By the defense?
CROSS-EXAMINATION
BY MR. BARBER:
MR. BARBER: Good afternoon.
PAUL MCMANIGAL: Good afternoon.
MR. BARBER: When you performed these experiments, did you record them in any way?
PAUL MCMANIGAL: I did not.
MR. BARBER: You didn't? Did you record doing any of this?
PAUL MCMANIGAL: I did not.
MR. BARBER: Did you consider video recording any of these experiments?
PAUL MCMANIGAL: Actually it never crossed my mind.
MR. BARBER: You just did the experiments and then just sort of orally relayed when you could have had a video to show us?
PAUL MCMANIGAL: That is correct.
MR. BARBER: If you were going to throw a phone out of a moving vehicle, wouldn't you need to pick it up to toss it?
PAUL MCMANIGAL: Certainly.
MR. BARBER: And if I understand your previous testimony, when you pick it up, the screen comes on.
PAUL MCMANIGAL: When you pick it up gently.
MR. BARBER: So, if you pick it up to toss it out the window while you're driving, you've got to pick it up. Is that correct?
PAUL MCMANIGAL: Correct, and if you pick it up aggressively, it will not.
MR. BARBER: But not always.
PAUL MCMANIGAL: Not always.
MR. BARBER: It sometimes will, sometimes won't.
PAUL MCMANIGAL: Correct.
MR. BARBER: According to the experiments that you conducted since -- when did you do these experiments?
PAUL MCMANIGAL: I started it Friday afternoon and into Saturday.
MR. BARBER: So, you did these experiments this week -- this last weekend?
PAUL MCMANIGAL: Correct.
MR. BARBER: Did not record any data.
PAUL MCMANIGAL: I did not.
MR. BARBER: You just played with the phone and are coming here to express your observations.
PAUL MCMANIGAL: That is correct.
MR. BARBER: Do you have the phone that you used to do these experiments with you?
PAUL MCMANIGAL: No, I don't.
MR. BARBER: Are you aware of how the phone, Maggie's phone in this case, how it -- when it was located what its position was? Have you seen the photos?
PAUL MCMANIGAL: I have.
MR. BARBER: And was the screen up?
PAUL MCMANIGAL: It was screen up.
MR. BARBER: Would you agree, then, that it had to be thrown from a screen up position because if it was screen down and you turned it over to throw it out, the screen would come on.
PAUL MCMANIGAL: Of course not. It didn't tumble through the air.
MR. BARBER: So, if the phone was screen down in the car and it ends up screen up over here, it has to turn over, right?
PAUL MCMANIGAL: At least one time, yes, sir.
MR. BARBER: And you, I guess, disagreed with the previous testimony demonstration that when you take the phone and turn it over, the screen comes on.
PAUL MCMANIGAL: No. When you pick it up gently, the screen does come on.
MR. BARBER: You said pick it up. If you rotate it on that axis so that it's screen down to screen up, does the screen come on?
PAUL MCMANIGAL: If I pick it up gently and rotate it, the screen comes on. If I pick it up aggressively, it does not.
MR. BARBER: And if it's facing you and rotates 90 degrees, does the screen come on?
PAUL MCMANIGAL: Only if you do it gently. Again, if you do it aggressively --
MR. BARBER: How gently? Did you measure any of these forces?
PAUL MCMANIGAL: I did not.
MR. BARBER: You just threw the phone around in your office?
PAUL MCMANIGAL: Absolutely.
MR. BARBER: So, you didn't record what you were doing, and you did not measure any data --
PAUL MCMANIGAL: I did not.
MR. BARBER: Is this because you were afraid that you would have to disclose that data if you recorded it?
PAUL MCMANIGAL: Of course not, no.
MR. BARBER: Do you normally do experiments and don't record any data or video or record anything?
PAUL MCMANIGAL: It never crossed my mind to record video.
MR. BARBER: Do you believe that you would have to disclose that data if you had recorded it?
MR. CONRAD: Objection, Your Honor.
JUDGE NEWMAN: Overruled.
PAUL MCMANIGAL: I believe so, yes, sir.
MR. BARBER: So, the reason you didn't record data was that it would have to be produced, and then we could examine it and discover whether or not it was accurate.
PAUL MCMANIGAL: No, sir.
MR. BARBER: And you avoided that by not recording anything, correct?
PAUL MCMANIGAL: No, sir, that's not correct.
MR. BARBER: Why didn't you record any data?
PAUL MCMANIGAL: It did not cross my mind to video record my experiments. I just did the experiments to determine whether or not the screen would turn on.
MR. BARBER: You didn't -- it didn't occur to you to measure how fast you were moving the phone, maybe to even find out what is that threshold you claim where the phone goes from turning on to not turning on. Exactly when does that happen? You have no idea, do you?
PAUL MCMANIGAL: No, sir. It would take me much longer to do these experiments to determine the exact speed and force required to turn the display on versus not.
MR. BARBER: Did you discover any -- or did you attempt to locate any documentation regarding the Raise to Wake feature on the IPhone?
PAUL MCMANIGAL: I did. I tried extensively. I reached out to several different forensic focus groups that I'm a part of, and we were not able to find any white papers on the subject.
MR. BARBER: So, you were unable to find any actual data on it, so you resorted to throwing your phone around alone. Was anyone with you when you did this?
PAUL MCMANIGAL: No, sir, I was alone in my office.
MR. BARBER: So, you were alone in your office throwing the phone around, taking no measurements, recording nothing over the weekend, and then you come in here and testify as an expert as to what the phone will do?
PAUL MCMANIGAL: That's correct.
MR. BARBER: And testify that it's different than what we've seen it do right here in this courtroom.
PAUL MCMANIGAL: That's correct.
MR. BARBER: Have you ever done this -- anything like this before? You've mentioned testifying six times before. Did you ever -- was this your expert testimony in any other case?
PAUL MCMANIGAL: My expert testimony in other cases was always about cell phone reports and the data contained therein. I've never actually done physical experimentation and come up with a realistic result.
MR. BARBER: So, your previous experience was extracting data from cell phones. Is that accurate?
PAUL MCMANIGAL: Correct.
MR. BARBER: Is that what you're trained to?
PAUL MCMANIGAL: Yes, sir.
MR. BARBER: The training that was listed was to extract data from the cell phone?
PAUL MCMANIGAL: Yes, sir.
MR. BARBER: Are you an engineer?
PAUL MCMANIGAL: No, sir.
MR. BARBER: Do you have any certification in engineering?
PAUL MCMANIGAL: No, sir.
MR. BARBER: Do you have any degree, academic qualifications in engineering?
PAUL MCMANIGAL: No, sir.
MR. BARBER: Have you ever worked as an engineer?
PAUL MCMANIGAL: No, sir.
MR. BARBER: You're trained in extracting data from a cell phone.
PAUL MCMANIGAL: That's correct.
MR. BARBER: And when it comes to tossing it around and seeing how it moves, you don't know anything more than anyone else, do you?
PAUL MCMANIGAL: No, sir.
MR. BARBER: So, you have -- this --
MR. BARBER: Your Honor, based on the previous answer, I would move to strike the expert opinion.
JUDGE NEWMAN: On what basis?
MR. BARBER: The witness just testified he has no expert -- expertise in this. He just said he has no more knowledge about this than anyone else in the courtroom, that his expertise is in extracting data from the cell phone, and this opinion is, therefore, outside of his expertise and this is inadmissible --
JUDGE NEWMAN: Well, you previously stipulated that he's an exert.
MR. BARBER: Yes, sir, Your Honor, in extracting data from the cell phone, which was before we got to this testimony.
JUDGE NEWMAN: All right. What says the State.
MR. CONRAD: Your Honor, this witness performed a series of tests --
JUDGE NEWMAN: We know that.
MR. CONRAD: I'm sorry?
JUDGE NEWMAN: We know that. He's testified to that.
MR. CONRAD: Right, and he's expressed his opinion of what the phone would do in these series of tests. It's not an absolute opinion. But I think he can give his opinion on when the screen would light up as something he tested and something he can testify about.
JUDGE NEWMAN: Anything further?
MR. BARBER: Your Honor, simply that he was proffered as an expert before this testimony. It was in extracting data from a cell phone, not in engineering -- electrical engineering, which is where he's gone now.
JUDGE NEWMAN: The objection is overruled.
MR. BARBER: So, you just testified you have no more knowledge about engineering the IPhone than anyone here, correct?
PAUL MCMANIGAL: I know more about how the IPhone works, but no, sir, I'm not an engineer.
MR. BARBER: You're not an engineer. When you said that the accelerometers are what trigger this feature, how do you know that?
PAUL MCMANIGAL: That's from data that's on Apple's website.
MR. BARBER: So, you found something on the Raise to Wake that says that the accelerometers are what trigger this feature.
PAUL MCMANIGAL: No, sir. That's the only thing that is capable of detecting motion on the phone beside GPS.
MR. BARBER: And you have no idea how much motion is required because you didn't measure it, correct?
PAUL MCMANIGAL: No, sir, I don't know the threshold.
MR. BARBER: You this weekend sat around your office by yourself recording nothing, tossing the phone around here, and are now reporting those results as an expert in what?
PAUL MCMANIGAL: In cell phone forensics. I understand how cell phones operate more than most people.
MR. BARBER: Do you understand electrical engineering? Do you have any background?
PAUL MCMANIGAL: I am not an engineer, no, sir.
MR. BARBER: Do you know how accelerometers in the IPhone work?
PAUL MCMANIGAL: Not exactly, no, sir. But I know that they exist and I know that that's how the IPhone determines function.
MR. BARBER: So, there is an unknown device within the phone that detects motion in a way that you don't understand, and some amount of motion that you don't know how much because you didn't measure it does something that only you saw in your office this weekend.
PAUL MCMANIGAL: Well, no. I know what that is. It's the accelerometer, and the accelerometer is what detects the motion, and that's what causes the IPhone to Raise to Wake.
MR. BARBER: How did an accelerometer detect motion?
PAUL MCMANIGAL: I'm not an engineer. I don't know how it detects motion. I just know that it does.
MR. BARBER: But, sir, you really haven't said anything you couldn't quickly find out on Google. Isn't that correct?
PAUL MCMANIGAL: Probably, yes, sir.
MR. BARBER: So, you have no expertise in this.
PAUL MCMANIGAL: I have expertise in how cell phones work.
MR. BARBER: What do you mean by that, how cell phones work?
PAUL MCMANIGAL: So, I can tell you all about the KnowledgeC databases. I can tell you about the ways IPhones -- not IPhones. I can tell you the way some software is written, what kind of code it's written in. I can tell you how data is stored on a cell phone, the programming that's involved with the IOS feature, and the different databases that are involved.
MR. BARBER: Can you tell us that if somebody was driving down the road, picked up a phone that was either on the seat or pulled it out of a pocket or something like that, and while continuing to drive threw it out the window that the screen did not come on if it landed face up?
PAUL MCMANIGAL: I cannot tell you that it will not come on. I can tell you that it might not come on.
MR. BARBER: Because when you were alone throwing your phone around, you think it didn't come on sometimes.
MR. CONRAD: Objection. Asked and answered.
JUDGE NEWMAN: The objection is sustained.
MR. BARBER: No further questions, Your Honor.
JUDGE NEWMAN: Anything further?
MR. CONRAD: Just real quick.
REDIRECT EXAMINATION
BY MR. CONRAD:
MR. CONRAD: When Mr. Barber was asking you about picking up a phone and then possible -- by the Raise to Wake, what Mr. Sturgis demonstrated to the jury was a gentle pick up, correct?
PAUL MCMANIGAL: That is correct.
MR. CONRAD: And you tested a more violent pick up, or a more aggressive pick up, and then moving to a throwing motion, correct?
PAUL MCMANIGAL: Yes, sir. I just picked it up and threw it.
MR. CONRAD: All right, and based off of what you tested and you observed, the screen does not come on most of the time.
PAUL MCMANIGAL: When you throw it like a frisbee, it's most of the time -- when you throw it end over end it's -- more than half the time it will not come on.
MR. CONRAD: All right, and Mr. Barber asked you several times whether you knew more than anybody else about these cell phones, correct?
PAUL MCMANIGAL: Correct.
MR. CONRAD: And in particular, in this instance, you do know more than most because you performed a series of tests, correct?
MR. BARBER: Objection. Leading.
JUDGE NEWMAN: The objection is sustained.
MR. CONRAD: You performed multiple tests over the weekend, correct?
PAUL MCMANIGAL: That's correct.
MR. BARBER: Objection. Leading.
JUDGE NEWMAN: The objection is sustained.
MR. CONRAD: What did you do this weekend?
PAUL MCMANIGAL: This weekend I performed multiple tests on a device matching that same make and model as Maggie Murdaugh's to determine whether or not the Raise to Wake feature would always enable the screens to come on whenever the phone was thrown.
MR. CONRAD: And Mr. Barber asked you several times about being an engineer, correct?
PAUL MCMANIGAL: Correct.
MR. CONRAD: And did you hear anything out of Mr. Sturgis last week that indicated he was an engineer?
PAUL MCMANIGAL: No, sir.
MR. CONRAD: And you testified you don't know exactly how the accelerometers works, correct?
PAUL MCMANIGAL: That is correct.
MR. CONRAD: And is that knowledge necessary to observe when the screen turns on and when it does not turn on?
PAUL MCMANIGAL: No, sir.
MR. CONRAD: Nothing further from this witness.
JUDGE NEWMAN: Anything further?
MR. BARBER: Beg the Court's indulgence.
(Break in proceedings.)
MR. BARBER: One question.
RECROSS-EXAMINATION
BY MR. BARBER:
MR. BARBER: How many times do you have to run this experiment for your results to be statistically reliable?
PAUL MCMANIGAL: I'm sorry, say that again.
MR. BARBER: How many times do you have to run this experiment for your results to be statistically reliable?
PAUL MCMANIGAL: More than ten.
MR. BARBER: And your basis for that is?
PAUL MCMANIGAL: That it doesn't take that long to figure out that sometimes it turns on and sometimes it doesn't.
MR. BARBER: Do you know how to measure reliability using statistics?
PAUL MCMANIGAL: I took statistics in college, yes, sir.
MR. BARBER: Do you know how to measure reliability using statistics?
PAUL MCMANIGAL: Yes, sir.
MR. BARBER: How do you do it?
PAUL MCMANIGAL: Well, you have to have a -- to perform the sample, you have to have a default group that is -- that has no change to it, and then you have to have your sample group that would actually perform a change. You take the data, you put it into a formula, and it gives you a degree of reliability.
MR. BARBER: Did you do that here?
PAUL MCMANIGAL: No, sir.
MR. BARBER: No further questions.
JUDGE NEWMAN: You may step down.
(The witness exited the stand.)
JUDGE NEWMAN: You may call your next witness.