Judge to decide if Fitbit evidence to be used in Burch murder trial

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

GREEN BAY (WLUK) – How reliable are Fitbits? And could the tracking and health information help support or undermine an accused murderer’s defense?

Those are the questions facing a Brown County judge in the case of the murder of Nicole VanderHeyden.

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

Burch has been granted permission to argue to the jury that VanderHeyden’s boyfriend, Douglass Detrie, is actually responsible for the murder. The defense claims Burch and VanderHeyden were in Burch's vehicle, Detrie came outside and struck Burch in the back of the head. When Burch gathered himself, Detrie was holding a gun to his head and VanderHeyden was unconscious and beaten. The claim states Detrie used his gun to order Burch to drive him and VanderHeyden's body to the Bellevue field where she was eventually found dead.

Prosecutors have said that Detrie was wearing a Fitbit monitoring device, and the prosecutors say records show he was sleeping at the time of the murder – evidence which could undermine Burch’s story.

Defense attorney Lee Schuchart argued in court Friday that the data collected by Fitbit is unreliable, and since prosecutors can’t prove its accuracy, the evidence shouldn’t be allowed at trial.

District Attorney David Lasee said the state is more interested in showing that the Fitbit data doesn’t support Burch’s claim Detrie would have walked four miles back to his home from the field. And, there’s such a wide difference between a few steps and several miles that the data is reliable enough to allow before a jury.

The two sides will submit written arguments to Judge John Zakowski. Arguments are scheduled for Jan. 19.

Detrie was originally arrested for VanderHeyden’s murder, but he was never charged.

In the criminal complaint against Burch, investigators say they found Burch's DNA on VanderHeyden's body, clothes, and evidence found at the alleged murder scene outside VanderHeyden's home. The complaint also states Burch's cell phone records put him at the murder scene and the Bellevue field.

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