Lay Admissibility of Google Location Business Records & Curable “Prior Arrest” References in Criminal Trials (N.H.)

1. Introduction

In State of New Hampshire v. Christopher C. Crosby (N.H. Feb. 25, 2026), the New Hampshire Supreme Court affirmed a criminal trespass conviction arising from an October 29, 2021 intrusion into an apartment in Durham. The State’s proof included Google-provided business records indicating that two Google accounts associated with the defendant were in use on a device located inside the apartment at the relevant time.

The appeal presented two evidentiary/trial-management issues: (1) whether a police officer—without specialized expertise in Google’s location technology—could testify as a lay witness about what Google’s business records showed regarding device/account location; and (2) whether a mistrial was required when the officer briefly relayed that the defendant asked if the call concerned his “past arrests in Durham,” after which the trial court struck the testimony and instructed the jury to disregard it.

2. Summary of the Opinion

The court affirmed. It held that the trial court acted within its discretion in admitting the officer’s testimony as lay testimony because the officer largely described (a) the process of requesting Google business records pursuant to a warrant and (b) his personal observations of what those records stated—matters the court deemed understandable to an average juror without technical explanation of how Google’s tracking works.

The court also held that the trial court properly denied a mistrial. The brief reference to “past arrests” did not unambiguously convey specific prior criminal conduct, charge, or conviction, and any prejudice was adequately addressed by striking the testimony and providing a curative instruction.

3. Analysis

3.1 Precedents Cited

Discretion and evidentiary review

  • State v. DePaula, 170 N.H. 139 (2017): Provided the governing standard for reviewing evidentiary rulings—reversal only if the ruling is untenable or unreasonable and prejudicial. It also framed the lay-versus-expert boundary and the “elementary concepts” inquiry.
  • State v. Boulton, 174 N.H. 470 (2021): Reinforced that trial courts have broad discretion over admissibility decisions, supporting the Supreme Court’s deferential posture.

Lay testimony vs. expert testimony

  • State v. Cochrane, 153 N.H. 420 (2006): Supplied the core limitation that lay testimony must be confined to observations any lay person could make, while also illustrating that officers may testify to use of tools/tests (field sobriety test, radar gun) as lay witnesses so long as they do not explain technical/medical mechanisms beyond common knowledge.
  • State v. DePaula, 170 N.H. 139 (2017): Distinguished. In DePaula, witnesses testified about cell-site/cell-tower mechanics and record interpretation grounded in specialized training and experience. In Crosby, the court emphasized the officer did not offer technical explanations of Google location tracking; he simply reported what the records said and the steps he took to obtain them.

Business records and accuracy challenges

  • State v. Wall, 154 N.H. 237 (2006): Supported the court’s treatment of accuracy and interpretive critiques as weight issues, not admissibility issues. The court relied on Wall to reject the argument that the State had to prove the Google business records were accurate before admitting testimony about them.

Mistrial standard and prior-bad-acts prejudice

  • State v. Willey, 163 N.H. 532 (2012): Set the mistrial standard—only when improper evidence/comment is so prejudicial that it causes irreparable injustice that cannot be cured by instructions—and recognized that incurable prejudice may occur when a jury learns of a defendant’s prior criminal offense.
  • State v. Turcotte, 173 N.H. 401 (2020): Supplied the “unambiguously conveyed” test and the principle that mistrial concerns increase when the prior act resembles the charged offense.
  • State v. Russo, 164 N.H. 585 (2013): Provided the close analogy: a brief, isolated reference (there, parole status) that does not identify a specific charge/conviction may be curable and not require mistrial. The Crosby court relied on Russo to conclude the “past arrests” remark did not unambiguously convey specific prior criminal conduct.

Disposition without extended discussion

  • Vogel v. Vogel, 137 N.H. 321 (1993): Cited to justify declining further discussion of remaining arguments.

3.2 Legal Reasoning

(A) Officer testimony about Google location-related business records as lay testimony

The court’s reasoning turns on how it characterized the testimony. It treated the officer’s statements as:

  • a description of the warrant-driven process for requesting “Google subscriber information” linked to devices within a defined geographic “box” at a particular time; and
  • a report of what the records themselves represented (two Google accounts in use on a device located in the apartment area at the relevant time; later records linking those accounts to the defendant).

Under State v. Cochrane, lay testimony is proper if it is confined to observations a lay person can make. The court concluded an average juror could understand these “elementary concepts” (borrowing the framing from State v. DePaula), and that the officer did not need “specialized training and experience” to read the records and relay their contents.

The defendant’s cross-examination concern—lack of officer knowledge about Google’s underlying technology—was treated as a weight issue. Using State v. Wall and State v. Cochrane, the court explained that perceived limitations (potential inaccuracies, lack of technical foundation, or inability to probe internal mechanisms) generally go to how persuasive the evidence is, not whether it is admissible in the first place.

(B) Denial of mistrial after “past arrests” reference

Applying State v. Willey, the court asked whether the remark created irreparable injustice that could not be cured by instructions. It then applied the “unambiguously conveyed” test from State v. Turcotte.

The court found no irreparable injustice because the testimony:

  • was brief and isolated;
  • did not identify any specific prior charge, conviction, or criminal conduct; and
  • therefore did not unambiguously tell the jury the defendant committed a particular prior crime.

Relying on State v. Russo, the court held the trial court appropriately used the lesser remedy—strike the testimony and instruct the jury to disregard—rather than the extraordinary remedy of a mistrial.

3.3 Impact

The decision is likely to matter most in cases involving digital location evidence sourced from third-party providers:

  • Lower threshold for “reader-of-the-records” testimony: Prosecutors may more readily present officer testimony summarizing what provider business records “show,” without qualifying the officer as an expert, so long as the officer avoids technical explanations of how the location system functions.
  • Sharper line between “what the record says” and “how the system works”: The opinion signals that testimony veering into methodology, error rates, signal processing, geolocation inference, or internal provider processes could still trigger expert requirements under the logic of State v. DePaula.
  • Trial-management guidance for inadvertent prior-history references: The opinion reinforces that a fleeting, nonspecific reference to “arrests” may be curable through striking and instructions, absent details that unambiguously convey prior criminal acts or resemble the charged offense.

Practically, the ruling incentivizes defense counsel to focus on (a) motions in limine that define the permissible scope of lay testimony about digital records, and (b) targeted cross-examination or competing evidence to attack reliability, completeness, and interpretation—recognizing the court’s view that such disputes typically affect weight rather than admissibility.

4. Complex Concepts Simplified

  • Lay witness vs. expert witness: A lay witness testifies from ordinary perception (what they saw/read/did). An expert explains specialized principles (how technology works, why it’s reliable, what inferences should be drawn). Here, the officer was treated as a lay witness because he reported what Google’s records stated, not the technical mechanics behind them.
  • Business records: Records kept in the regular course of a business’s activity (here, Google), often admitted because they are routinely created and relied upon. A party generally need not prove perfect accuracy to admit them; claimed inaccuracies usually affect how much the jury should believe them.
  • “Weight” vs. “admissibility”: “Admissibility” asks whether the jury gets to hear the evidence at all. “Weight” asks how convincing the evidence is once admitted. The court treated reliability and interpretive challenges to Google’s records as weight issues.
  • Mistrial: A do-over of the trial. Courts reserve it for serious, incurable prejudice. If a judge can cure the harm by striking testimony and instructing jurors to ignore it, a mistrial is usually not required.
  • “Unambiguously conveyed” prior criminal conduct: The key mistrial question is whether the jury clearly learned the defendant committed a specific prior crime. Vague references (like “past arrests”) may not meet that standard if no charge/conviction or criminal act is identified.

5. Conclusion

State of New Hampshire v. Christopher C. Crosby affirms two practical trial rules: (1) an officer may give lay testimony describing the procurement and apparent contents of Google location-related business records when the testimony stays at the level of ordinary, “elementary” understanding and does not purport to explain underlying geolocation technology; and (2) a brief, nonspecific mention of a defendant’s “past arrests,” promptly struck with a curative instruction, does not necessarily require a mistrial absent an unambiguous disclosure of prior criminal conduct.