Arguments made whether Fitbit data can be used at Burch's murder trial

George Burch listens to arguments during his motion hearing on January 19, 2018. (Photo: WLUK)

BROWN COUNTY (WLUK) -- Prosecutors say a Fitbit can prove George Burch is lying about what happened the May 2016 night Nicole VanderHeyden was murdered.

Burch is charged with her murder.

Burch claims VanderHeyden’s boyfriend, Doug Detrie, knocked him out after finding him with VanderHeyden outside the couple's Ledgeview home. Burch says when he gathered himself, Detrie was holding him at gunpoint, forcing him to drive three miles to a Bellevue field to dispose of VanderHeyden's body. Burch says at the field he was able to get away from Detrie. That means Detrie likely would have had to walk the three miles home.

“The Fitbit device is registering only 30 or 40 steps during that entire timeframe, clearly rebutting the defendant’s position,” said David Lasee, Brown County District Attorney.

“I haven't heard a single piece of admissible evidence to lay the foundation of why that evidence is reliable,” said Lee Schuchart, Burch’s attorney.

Burch's defense team contends prosecutors need a Fitbit expert to prove the device's reliability.

“If you're pessimistic or you're at least viewing it from the defense's standpoint, there is multiple civil lawsuits pending against Fitbit showing that it's not reliable, showing they've misled the consumers,” said Schuchart.

Lasee says it's a resource issue, and while a Fitbit expert would be preferred, it isn't necessary. The state says video from a bar and police interviews show Detrie taking steps, which matches data from Fitbit.

“So you have video evidence that corroborates the accuracy of that very device,” said Lasee.

Judge John Zakowski says he hopes to make a decision this weekend on whether the Fitbit argument will be allowed at trial. Jury selection is set for Feb. 16.

Detrie was originally arrested for VanderHeyden’s murder, but was released without being charged.

Investigators say DNA evidence puts Burch at the murder scene outside the Ledgeview home and the Bellevue field where she was found.

They say Burch's phone records also put him at those spots, as well as the bar where VanderHeyden was last seen alive.

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