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Judge will allow some Fitbit evidence at murder trial

George Burch in Brown County court, December 8, 2017. (WLUK)

GREEN BAY, Wis. (WLUK) – A judge will allow prosecutors to introduce some -- but not all -- of the fitness tracker evidence it has at George Burch’s upcoming trial for the murder of Nicole VanderHeyden.

Burch is scheduled to go on trial Feb. 16 for the May 21, 2016, murder of VanderHeyden, whose body was found in a Bellevue field.

Burch’s defense will be allowed at trial to argue that Douglass Detrie -- VanderHeyden’s boyfriend -- is actually responsible for her murder. Detrie was arrested in the case but never charged. Burch claims Detrie discovered the two of them together, killed VanderHeyden, and forced Burch to help him dispose of the body.


Prosecutors asked for permission to introduce data from Detrie’s Fitbit, showing that he was asleep at the time -- and didn’t walk three miles home from where her body was found. Burch’s lawyers objected, saying the Fitbit evidence wouldn’t be reliable and the state can’t show otherwise.

In a 21-page ruling, Brown County Judge John Zakowski ruled prosecutors can introduce the evidence as it pertains to step-counting, Burch’s lawyers can try to discredit it, and the jury will have to weigh the value of the evidence.

Not only will Burch have the opportunity to cross-examine Detrie with regards to the reliability of his Fitbit, but it appears Burch intends to call his own expert witness to rebut Detrie’s testimony as well. Truly, all of Burch’s objections go to the amount of weight and credibility that should be afforded to the evidence, which is best left to the fact-finder’s determination.

However, prosecutors will not be able to use Fitbit data relating to if Detrie was asleep at certain times. The judge noted a pending lawsuit about this type of data.

Given that this current pending lawsuit calls into question the reliability of the sleep-monitoring data of the Fitbit Flex, the Court finds the prejudicial nature of this evidence, coupled with its, at best, questionable reliability, is outweighed by its probative nature and thus is inadmissible.


Burch’s attorney, Lee Schuchart, declined to comment on the decision itself, but said “we will explore all legal avenues with our client.” That could include appealing the decision to the Court of Appeals before trial, but he wouldn’t identify any specific course of action.

Brown County District Attorney David Lasee had no comment on the ruling.

In other news from the case Wednesday, Lasee filed a reponse to a defense motion asking that tracking data from Burch's cell phone not be allowed at trial.

The parties are expected back in court Thursday for a motions hearing.

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