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If an image of a perpetrator exists on a cellphone camera, video surveillance, body camera footage or social media, law enforcement can use facial recognition software to attempt to identify the person in the photo. Defense attorney Kaitlin Jackson discusses the limitations of facial recognition, and she explains how to determine if police used facial recognition in a defendant’s case. Facial recognition software is difficult to challenge, but ways exist to attack its reliability.
Due to the increased push for prosecutions in drug-related deaths, it is more important than ever for criminal justice system stakeholders to have access to accurate, standardized, and professional death investigation and death certification. Amy Hawes and Denise Martin share some of the common pitfalls in drug death investigations, discuss national recommendations for coroner and medical examiner investigations, and set forth the qualifications death investigation experts should possess.
Smartphones can create a detailed record of what their users have been doing. Wisconsin litigator Peyton Engel focuses on the traits smartphones have in common with general-purpose computers and the implications from a digital evidentiary perspective. He discusses retrieving evidence from smartphones, extracting information from cloud storage, finding evidence of a secret or hidden phone, wearable tech, issuing subpoenas for social media records, and using apps to collect evidence.
Probabilistic genotyping software is used when DNA evidence is a mixture of contributions from several people, when only trace amounts are collected, or when the evidence has been degraded by elements such as sunlight, moisture, and bacteria. Scientists developed probabilistic genotyping software programs to analyze these complex mixtures. Are these software programs accurate? How can lawyers challenge the admissibility of the programs under Frye and Daubert standards? When should defense counsel bring an “as-applied” challenge?
Probabilistic genotyping (PG) is a new computer technology for interpreting complicated DNA profiles. It represents a paradigm shift in the way DNA profiles are interpreted and reported. Attorneys who have specialized in DNA cases by grappling with both molecular biology and statistics will now have to learn to talk about computer science, or at least ask questions about it. They must ask how PG was used in a defendant’s case, and they must make sure that the hypotheses and assumptions run through the PG program were appropriate.
Dr. Mark Perlin reviews the history of failed DNA mixture interpretation. He begins in 1985, at the start of the genomics revolution, discussing the origins of modern DNA testing. Proceeding in five-year increments, he outlines missed opportunities and policy failures. Perlin offers recommendations to help overcome long-standing DNA interpretation problems.
Forensic software is used in the criminal justice context to make assertions about the presence and nature of DNA, to deploy police resources to certain areas, or to guide bail and sentencing determinations. Software, however, is far from impartial or infallible. The authors explain why law and public policy require disclosure to the public and independent experts of the software source code and other software development records, including training data sets.
When someone has been accused of causing the death of another person, what information should defense attorneys expect to see in an autopsy report? What is the role of a second autopsy? What are the concerns when an autopsy has been delayed? Forensic pathologists Evan Matshes and Sam Andrews answer these questions and discuss the lack of uniformity in autopsy reports.
ShotSpotter is acoustic gunshot detection and location technology that detects gunfire using GPS-enabled microphone sensors installed on rooftops and utility poles. According to ShotSpotter, the sensors can result in the placement of a fixed point on a map (within a few feet) where a gunshot event happened. However, are the sounds always gunshots or are they sometimes vehicles backfiring or fireworks? How accurate is ShotSpotter? Preliminary reports suggest a level of geographic precision that does not withstand the company’s own detailed analysis.
In Riley v. California, the U.S. Supreme Court held that law enforcement must obtain a warrant to search digital information on cellphones that are seized during a lawful arrest. Does the Riley holding prohibit warrantless searches of digital devices at the border or ports of entry? Customs & Border Protection has continued its practice of searching laptops and computers at the border without a warrant and, in many cases, without any suspicion. Aisha Dennis provides an overview of Riley and litigation post-Riley. She includes takeaways to assist attorneys who may be litigating this issue.
In order to be prepared, defense lawyers must seek evidence from sources beyond Snapchat and Twitter. Ian Friedman and Eric Nemecek consider the increased reliance on information derived from portable electronic devices, including Fitbit and Garmin fitness trackers. In addition, they discuss the difference between “precision” and “accuracy” as those terms relate to geo-location information provided by applications such as Foursquare and Google Maps. They point out that, as with any source, collecting information presents concerns regarding how to verify its accuracy.
How far is the government willing to go to investigate internet crimes? As part of “Operation Pacifier,” the FBI seized a website called Play-pen and launched a computer hacking campaign pursuant to which it distributed at least one million illicit pictures and videos. Colin Fieman, who helped defend several Pacifier cases, offers an overview of the litigation and the kind of sophisticated malware and hacking operations defense lawyers can expect to see with increasing frequency.
Emails, texts, and tweets have become ubiquitous in modern communication. Particularly in white collar cases, email messages are proving to be a critical piece of evidence in government prosecutions. Moreover, the government usually has no difficulty getting such material admitted as an admission of a party opponent or a co-conspirator statement. But when the defense has exculpatory evidence to present, the hurdles are much higher and there is no guarantee that an email, no matter how important to the defense, will be admitted.
By using cloud-based resources, lawyers can better find and protect client information, better collaborate and communicate with clients and colleagues, and save time and money. Which cloud-based services should a lawyer use? Professor Dane Ciolino offers digital workflow rules for lawyers transitioning into the cloud and provides common sense suggestions concerning security measures to employ when storing confidential information in the cloud.
Defense counsel should be wary when the defendant’s case involves a seized cellphone that may be introduced into evidence. Are the jurors going to take the phone into the jury room? Is the cellphone inoperable? What should the defense team do if it is blindsided by jurors accessing the cellphone during deliberations? It is crucial to examine the cellphone carefully to make sure it contains no unexpected incriminating information. In addition, defense counsel should check for deleted or normally hidden information that might be restorable by a tech-savvy juror.
In a case that involves electronic data, a properly conducted cross-examination of a computer forensics expert can go a long way in creating reasonable doubt about the integrity of the government’s investigation and the evidence the government derived from it. Using examples from an actual trial transcript, Joshua Horowitz discusses (1) how to attack the methodology used by the government’s technical witnesses when they obtained computer forensic evidence and (2) how to use the experts’ purported knowledge against them.
No police technology is more commonly used — and more shrouded in mystery — than the cell site simulator. Commonly called a StingRay, the device mimics a cellphone tower and electronically forces all cellphones in an area to communicate with it. This communication can reveal critical information to police, including the phone number, the phone’s serial number, and the precise location of a phone inside a building (within an accuracy of six feet). Does the use of a StingRay device constitute a Fourth Amendment search?
The results of the first phase of a project to review FBI microscopic hair analysis testimony and lab reports produced the staggering revelation that FBI examiner testimony in at least 90 percent of the trial transcripts analyzed contained erroneous statements. This development likely will serve as a milestone in the quest for forensic science reform.
The use of DNA in criminal cases has improved the ability to associate individuals with crime scenes and to associate individuals with each other. Advancing technologies, however, may threaten privacy. DNA analyses have the potential to reveal information about one’s health, one’s family, and one’s future health. Statutes mandating the gathering of DNA from individuals merely arrested but not convicted are ripe for a legal challenge.
Jurors who enter a courtroom are familiar with DNA evidence and possess preconceived notions of the role this evidence plays in the criminal justice system. In fact, jurors are likely to think that if there is DNA evidence, then the defendant must be guilty of the crime. Instead of focusing solely on battling the scientific validity of the DNA evidence itself, the defense team should consider challenging the logical, inferential connections between the DNA evidence and a finding of guilt. The authors discuss a 2013 trial to illustrate this strategy.
Defense attorneys engage in some tasks that are repetitive, but most require a unique blend of research, investigation, and know-how. Jeff Adachi is an advocate of using checklists because they maintain consistency and provide the essential steps needed to accomplish a task. While a defense lawyer should not use a checklist without independent thought or connecting to the client as an individual, checklists can be beneficial to new attorneys and can help more experienced attorneys make sure they have not overlooked anything.
Helen Sailor, 94 years old and blind, lived at the Waterfall High Rise apartment complex for the elderly, disabled, and handicapped in Elkhart, Ind. On Nov. 28, 2002, Sailor spent Thanksgiving Day with relatives who drove her back to her apartment that evening. The next day, her home healthcare provider and two of Sailor’s relatives entered her apartment and made a terrible discovery. Helen Sailor was dead; her body had been badly beaten. The forensic pathologist ruled it a homicide with strangulation as the cause. Two years later, police filed murder charges against Lana Canen.
Defense attorneys representing defendants at Guantánamo Bay realized they could not rely on the government’s IT network when the government, in trying to replicate files, lost 7 GB of data – including mitigation investigation notes and potential witness and expert resource files. Later, defense attorneys learned that their Internet usage was being tracked.
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