technology in criminal cases

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Technology inCriminal Cases

2016 Criminal Law Conference October 13-14, 2016

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Riley v. California, 134 S.Ct. 2473 (2014).

“Cell phones differ in both a quantitative and aqualitative sense from other objects that mightbe kept on an arrestee’s person. . . Many ofthese devices are in fact minicomputers thatalso happen to have the capacity to be used as atelephone.”

Evan’s Law


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The Internet of Things




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Internet Protocol (IP)

24.73.102.186

IPv6

3FFE:F200:0234:AB00:0123:4567:8901:ABCD


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Social Media


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Social Media

Social Media

Social Media


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Social Media

Social Media

Social Media


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Social Media

Social Media

Social Media


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Social Media

Social MediaDanziger Bridge shootings

“The government additionally asserts . . . that nojuror or potential juror was actually prejudiced byany pretrial publicity . . . [showing of prejudice isnot necessary] where the integrity of theproceeding is so infected with a pattern ofdeliberate and especially egregious prosecutorialmisconduct, such that due process may be deniedby the government’s failure to obey its ownregulations, and/or where a miscarriage of justiceoccurs.”

United States v. Bowen, 969 F.Supp.2d 546, 619 (E.D. La. 2013).

Social Media


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Social Media“Defendant argues that social media postings bythe district court judge demonstrate judicial bias.During the pendency of the trial, the district courtjudge posted to his election campaign Facebookpage discussions of his role in the case and hisopinion of the outcome. Although we need notdecide this issue because we reverse onconfrontation grounds, we take this opportunity todiscuss our concerns over the use of social mediaby members of our judiciary.”

State v. Thomas, 376 P.3d 184, 198 (N.M. 2016).

Social Media

Social Media

Chace v. Loisel, 170 So.3d 802 (Fla.Dist.Ct.App. 2014) (Motion to disqualify should have been granted where judge sent friend request to litigant).

Youkers v. State, 400 S.W.3d 200 (Tex.Ct.App. 2013) (Recusal not warranted where trial judge and victim’s father were Facebook friends).

Domville v. State, 103 So.3d 184 (Fla.Dist.Ct.App. 2013) (Judge should have been disqualified because he was Facebook friends with prosecutor).


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Social Media

People v. Klein, 396 Ill.Dec. (3rd Dist. 2015).

People v. Schiller, 2012 Ill.App.2d 110677 (2nd Dist. 2012).

Social Media


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FindingSocial MediaAccounts

“Where Facebook privacy settings allowviewership of postings by ‘friends,’ theGovernment may access them through acooperating witness who is a ‘friend’without violating the Fourth Amendment.”

United States v. Meregildo, 883 F.Supp.2d 523 (S.D.N.Y.2012).


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7.7 billion search requestsper day


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“Person’s Name” site:facebook.com


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“Person’s Name” site:twitter.com


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Search.fb.com


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Findmyfbid.com


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Google shall provide subscriber information for any Google accounts linked to the account [email protected] by cookies, recovery email address, or telephone number.


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Images.google.com


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https://www.social‐searcher.com/google‐social‐search/



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Microsoft v. United States, ‐‐‐F.3d ‐‐‐‐ (2d Cir. 2016) (Searchwarrant invalid where it directed Microsoft to seize thecontents of its customer’s communications stored inIreland).

Preservation


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Attribution

Look at yourprivacy settingsand content


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Jurors &Social Media


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VOIR DIRE“In this case, we are called to review a novel issuein Indiana—whether a juror, who was apparentlynot asked about her Facebook usage or friendships,engaged in juror misconduct when she did notdisclose during voir dire that a witness’s relativewas among her expansive list of Facebook friends.”

Slaybaugh v. State, 44 N.E.3d 111, 2015 WL 5612205 at *1 (Ind.Ct.App. 2015).

“Finally, the Bar also bears some responsibility. During voir dire, attorneys should routinely question jurors on their Internet usage and social networking habits. . . Counsel must expand the voir dire questioning to include inquiries into online activity.”

United States v. Fumo, 655 F.3d 288, 333 (3d Cir. 2011)(Nygaard, J., concurring in part and dissenting in part).


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Investigating Jurors

VOIR DIRE

2014 Federal Judicial Center report:

“[M]ost judges do not know whetherattorneys are accessing potential jurors’social media profiles during voir dire, andmost judges do not address the issuewith attorneys.”

VOIR DIRE


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VOIR DIRE

FJC Report:• 26% did not permit attorneys to use social media during

voir dire• 5% permitted• 69% did not address the issue with attorneys

Carino v. Muenzen, 2010WL3448071 (N.J. Super.Ct.App.Div. 2010) (Trial court erred by prohibiting attorney from conducting internet search of prospective jurors).

VOIR DIRE

Oracle v. Google, ‐‐‐ F.Supp.3d ‐‐‐‐, 2016 WL 1252794 (N.D. Ca. 2016) (Proposing procedures for Internet research on the venire and empaneled jury).

Improper ResearchZana v. State, 216 P.3d 244 (Nev. 2009) (No prejudice where juror unsuccessfully attempted to look up website mentioned during trial).

Wardlaw v. State, 971 A.2d 331 (Md.App. 2009) (Reversed and remanded where juror conducted internet research on Oppositional Defiant Disorder).

State v. Abdi, 45 A.3d 29 (Vt. 2012) (Reversed and remanded where juror conducted internet research on Somali culture).


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Improper CommunicationState v. Smith, 418 S.W.3d 38 (Tenn. 2013) (Remandedwhere juror sent Facebook message to pathologist witness).

People v. Rios, 26 Misc.3d 1225(A) (N.Y. Sup. Ct. 2010) (Jurorsent two Facebook friend requests to firefighter witness,including during deliberations) (reversed on other grounds).

Improper CommunicationUnited States v. Fumo, 655 F.3d 288 (3d Cir. 2011)(Conviction affirmed where juror posted about trial on bothFacebook and Twitter).

United States v. Ganias, 755 F.3d 125 (2d Cir. 2014) (Jurorposted on FB the evening before the start of evidence: “Juryduty 2morrow. I may get 2 hang someone … can’t wait”).

Eskew v. Burlington Northern, 354 Ill.Dec. 683 (1st Dist.2011) (Affirming verdict where juror blogged details of thecase and deliberations).


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United States v. Juror Number One, 866 F.Supp.2d 442 (E.D. Pa. 2011) (Upholding $1,000 fine against juror who discussed via email her opinion on defendant’s guilt with other jurors).


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Jury Instructions

Ensuring an Impartial Jury in the Age of Social Media,11 Duke L. & Tech. Rev. 1 (2012)

Once you start deliberating, do not communicate about thecase or your deliberations with anyone except other membersof your jury. You may not communicate with others about thecase or your deliberations by any means. This includes oral orwritten communication, as well as any electronic method ofcommunication, such as by telephone, cell phone, smartphone, iPhone, Blackberry, computer, text messaging, instantmessaging, the Internet, chat rooms, blogs, websites, orservices like Facebook, Google+, Skype, MySpace, LinkedIn,YouTube, Twitter, or any other method of communication.

‐‐7th Circuit Pattern Criminal Jury Instruction 7.01


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POSSIBLE PREVENTIVE MEASURES:

• Consult with opposing counsel and the Court prior to jury selection concerning review and/or monitoring of juror social media communications

• Voir dire: ask about usage, contacts

• Review jurors’ social media presence, including during trial

• Jury Instructions

• Reminders early and often

• Explain specific conduct prohibited and reasons why

• Judicial Conference Committee

• NYSBA Social Media Jury Instructions Report

• Warn of potential sanctions

• Social media warning poster in jury room

Should jurors be told that they will be researched? General warning that social media communications are frequently viewable by the public


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Archive.orgThe Wayback Machine


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Archive.org

Archive.org

Archive.org


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Archive.org

Archive.org

Archive.org


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Archive.org

Archive.org

Archive.org“Courts have taken judicial notice of the contents of web pages available through the Wayback Machine as facts that can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned, see Fed.R.Evid. 201.” Hepp v. Ultra Green Energy Services, LLC, 2016 WL 1073070 at *2, fn 1. (N.D. IL March 18, 2016).


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Google Maps

“We have taken judicial notice of – anddrawn our distance estimates from –images available on Google Maps, a sourcewhose accuracy cannot be reasonablyquestioned, at least for the purpose ofdetermining general distances.”

Cloe v. City of Indianapolis, 712 F.3d 1171, 1177, fn. 3

(7th Cir., 2013) (citation and internal quotation omitted).

“Moreover, case law supports the proposition that information acquired from mainstream Internet sites such as Map Quest and Google Maps is reliable enough to support a request for judicial notice.”

People v. Clark, 346 Ill.Dec. 386, 397 (2nd Dist. 2010).


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“The distances are as calculated by GoogleMaps driving directions.”

Stormans, Inc. v. Wiesman, 136 S.Ct. 2433 (June 28, 2016).


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Tracing IPs


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Internet Service Providers

ISP Server

24.73.102.186

IP Address ≠ 1 computer


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Router

Public IP Address

PrivateIP Address

• Wifi• NAT• War-driving• Proxy or VPN

Pitfalls

VPN or ProxyServer

ProxyIP Address

User IP Address


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Bodie Haxall(312) 353-8728

[email protected]


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technology in criminal cases

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