Digital Evidence Generated by Consumer Products

doi:10.1017/9781009431453.013

9 - Digital Evidence Generated by Consumer Products

The Defense Perspective

from Part II - Human–Robot Interactions and Procedural Law

Published online by Cambridge University Press: 03 October 2024

Erin E. Murphy

Edited by

Sabine Gless and

Helena Whalen-Bridge

Show author details

Sabine Gless: Affiliation:
Universität Basel, Switzerland
Helena Whalen-Bridge: Affiliation:
National University of Singapore

Book contents

Summary

Historically, criminal offenses were proved through witness testimony, physical evidence, confessions, and rudimentary forensic techniques such as fingerprinting. But with the dawn of the digital era, prosecutors have increasingly relied on evidence gleaned from the modern arsenal of consumer technologies, such as cell phones or automated systems. Although much has been written about prosecutors’ use of such evidence to prove a defendant’s guilt, far less attention has been given to the challenges faced by the defense in accessing, presenting, or attacking forms of proof derived from sophisticated consumer technologies. This chapter aims to fill that gap, first by presenting a taxonomy of digital proof and then by isolating the critical characteristics of such evidence. The chapter suggests that this taxonomy can support efforts to formalize and standardize a defendant’s ability to marshal defense evidence for exculpatory and adversarial purposes as readily as the government does to inculpate.

Keywords

digital evidence defense technology digital proof location data electronic evidence

Type: Chapter
Information: Human–Robot Interaction in Law and Its Narratives
Legal Blame, Procedure, and Criminal Law
, pp. 193 - 220

DOI: https://doi.org/10.1017/9781009431453.013 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2024
Creative Commons: This content is Open Access and distributed under the terms of the Creative Commons Attribution licence CC-BY-NC 4.0 https://creativecommons.org/cclicenses/

I Introduction

In courtrooms across the world, criminal cases are no longer proved only through traditional means such as eyewitnesses, confessions, or rudimentary physical evidence like the proverbial smoking gun. Instead, prosecutors increasingly harness technologies, including those developed and used for purposes other than law enforcement, to generate criminal evidence.Footnote ¹

This kind of digital data may take different forms, including raw data, data that is produced by a machine without any processing; measurement data, data that is produced by a machine after rudimentary calculations; and evaluative data, data that is produced by a machine according to sophisticated algorithmic methods that cannot be reproduced manually.Footnote ² These distinctions are likewise evident in the array of consumer products that can now be tapped to produce evidence in a criminal case. A mobile phone can be used to track the user’s location via raw data in the form of a readout of which tower the cell phone “pinged,” via measurement data reflecting the triangulation of data towers accessed along a person’s route, or with evaluative data generated by a machine-learning algorithm to predict the precise location of a person, such as a specific shop in a shopping mall.Footnote ³ In all three forms, the use of such data presents new evidentiary challenges, although it is the evaluative data that raises the most issues as a result of both its precision and impenetrability.

As scholars begin to tackle the list of questions raised by these new forms of evidence, one critical perspective is often omitted: the view of the criminal defendant. Yet, just as digital evidence serves to prove the guilt of an accused, so too can it serve the equally important role of exculpating the innocent. As it stands now, law fails to adequately safeguard the rights of a criminal defendant to conduct digital investigations and present digital evidence. In a world increasingly reliant on technological forms of proof, the failure to afford full pre-trial rights of discovery and investigation to the defense fatally undermines the presumption of innocence and the basic precepts of due process.

Persons accused of crimes have two compelling needs with regard to digital evidence. First, criminal defendants must be granted the power to meaningfully attack the government’s digital proof, whether offered by the government to prove its affirmative case or to counter evidence tendered by the defense.Footnote ⁴ For example, the defense might challenge cell site location records that purport to show the defendant’s location at the scene of the crime. Or they might contest cell site records offered by the government to undermine a defense witness’s claim to have witnessed the incident. The defendant is attacking the government’s proffered digital evidence in both cases, but in the first variation, the attack responds to the government’s evidence in its case-in-chief, whereas the second variation responds to evidence proffered by the government to counter a defense claim or witness.

The defense’s use of digital evidence in this way differs from the second category, which might be called supportive defense evidence. A defendant must be able to access and introduce the defendant’s own digital proof, in order to support a defense theory or to attack the government’s non-digital evidence. For example, the defendant might use digital data to show that the defendant is innocent, to reinforce testimony offered by a defense witness, or to support a claim that another person in fact committed the offense. Classic examples of such use would be DNA evidence that proves there was another perpetrator, or surveillance footage that reveals the perpetrator had a distinguishing mark not shared by the defendant. A defendant might also use such evidence to bolster a legal claim. In the United States, e.g., the defendant might use digital proof to argue that evidence must be suppressed because it was obtained in violation of the Constitution.Footnote ⁵ Or a defendant might use digital evidence to attack the non-digital evidence in the government’s case, like a defendant who introduces the cell-site records that show that the government’s witness was not at the scene, or offers the victim’s social media posts to prove that the victim still possessed the property the defendant allegedly stole. What links these examples of supportive defense evidence is that the defense introduces digital proof of its own; it does not just attack the digital proof offered by the government.

In both cases – when the defense aims to attack government digital proof, or when it aims to introduce its own digital proof – the defendant cannot effectively mount a defense without access to and the ability to challenge complex forms of digital proof. Yet, in all too many jurisdictions, the legal system has embraced the government’s use of technological tools to inculpate a defendantFootnote ⁶ without reckoning with the equivalent needs of the accused.Footnote ⁷ Baseline principles such as those enshrined in the Fifth and Sixth Amendments to the US Constitution and Article 6 of the European Convention on Human Rights sketch broad rights, but how those rights are actually implemented, and the governing rules and statutes that embody those values, may vary dramatically.Footnote ⁸ In the United States, criminal defendants have few positive investigatory powers,Footnote ⁹ and are largely dependent on rules that mandate government disclosure of limited forms of evidence or the backstop of the constitutional rights of due process, confrontation, and compulsory process.Footnote ¹⁰

Even when the defense is entitled to certain information, existing legal tools may be inadequate to effectively obtain and utilize it. Criminal defendants must typically rely on either a court order or subpoena to obtain information from third parties, but both of those mechanisms are typically understood as intended for the purpose of presenting evidence at trial, not conducting pre-trial investigation.Footnote ¹¹ And even sympathetic courts struggle to determine whether and how much to grant requests. As one high court observed when addressing a defendant’s request for access to a Facebook post, “there is surprisingly little guidance in the case law and secondary literature with regard to the appropriate inquiry.”Footnote ¹²

Finally, generally applicable substantive laws may also thwart defense efforts to use technological evidence. For example, privacy statutes in the United States typically include law enforcement exceptions,Footnote ¹³ but as Rebecca Wexler has observed, those same statutes effectively “bar defense counsel from subpoenaing private entities for entire categories of sensitive information,” and in fact “[c]ourts have repeatedly interpreted [statutory] silence to categorically prohibit defense subpoenas.”Footnote ¹⁴

Without robust reconsideration of the rights necessary to empower defendants in each of these endeavors, the digitalization of evidence threatens to bring with it the demise of due process and accurate fact-finding. The first step in articulating these critical defensive rights, however, is to identify and classify the scope of such evidence and its pertinent features. Such analysis serves two purposes. First, it crystallizes the need for robust defense pre-trial rights, including rights to discovery, compelled process, and expert assistance, as well as substantive and procedural entitlements to confront such evidence and mount an effective defense at trial. Second, cataloging these technologies helps point the way toward a comprehensive framework for defense access and disclosure, one that can account for the many subtle variations and features involved in each technology – one that is wholly lacking now.

To facilitate deeper inquiry into the proper scope and extent of the criminal defendant’s interest in digital proof, this chapter presents a taxonomy of defensive use of technological evidence. Section II identifies and provides examples for seven categories of such data: location trackers, electronic communications and social media, historical search or cloud or vendor records, the “Internet of Things” and smart tools, surveillance cameras, biometric identifiers, and analytical software tools. Although the examples in this chapter are drawn primarily from legal cases in the United States, these technologies are currently in broad use around the world. Section III then considers ten separate characteristics that attend these technologies, and how each may affect the analysis of the proper scope of defense access. Section IV concludes.

II A Taxonomy of Digital Proof

The first step in articulating the issues that confound defense access to digital proof is to outline the general categories into which such technologies fall. Of course, digital information is used throughout the criminal justice process, e.g., in pre-trial bail and detention risk assessments and post-conviction at the time of sentencing. This chapter, however, focuses only on the use of such digital evidence to investigate and prove or disprove a defendant’s guilt.

In addition, although it might at first glimpse be appealing to attempt to draw sharp distinctions between consumer products and forensic law enforcement technologies, those categories prove illusory in this context.Footnote ¹⁵ The line between consumer and law enforcement either collapses, or is simply arbitrarily drawn, when it comes to defense investigation. For example, what difference does it make if law enforcement uses surveillance video from a police camera versus security footage from a Ring doorbell-camera or private bank? What does it matter if the facial recognition software is used on a repository of high school yearbooks versus police mugshots? Are questions of access so different when DNA testing was done via a public lab versus by a private lab, or whether the search was in a commercial versus law enforcement database?

Even if such a line were drawn, it may be difficult to defend in principle. Suppose law enforcement obtains data from an X (formerly Twitter) account, and then uses a proprietary law-enforcement software to do language analysis of the account. Is that a consumer product or law enforcement tool? Or if law enforcement secretly signs an agreement with a consumer DNA database to enable testing and searches for police purposes, is that a consumer tool or law enforcement tool? All too often, the lines between the two will break down as increasingly public–private cooperation generates evidence pertinent for a criminal case.

Of course, concerns about the reliability of evidence may differ when the evidence derives from a consumer product used by the general public as opposed to a forensic tool used only by law enforcement. Regulatory regimes and market incentives exercise an oversight function for commercial applications, and the financial incentives that ensure reliability for commercial products may be lacking in the law enforcement context. But those safeguards are not a substitute for a defendant’s opportunity to access and challenge technological evidence, because reliability of the government’s proof is not the only value at stake. The defense must have a meaningful right to access or challenge technological evidence, as a means of testing the non-digital aspects of the government’s proof as well as bolster its own case. Thus, in taxonomizing digital evidence, this chapter acknowledges but does not differentiate between technology created and used by general consumers versus those created primarily or exclusively by police.

II.A Location Data

The general label “location data” covers a wide array of technological tools that help establish the presence or absence of a person in a particular place and, often, time. Location evidence may derive from mobile phone carriers that either directly track GPS location or indirectly provide cell-site location services, license plate scanning technology, electronic toll payment systems, or even “smart” cars or utility meters that can indicate the presence or absence of persons or the number of persons in a particular space at a particular time.

The use of such technologies to implicate a defendant is obvious. Evidence that a defendant was in a particular location at a particular time may prove that a defendant had access to a particular place, support an inference that the defendant committed an act, or reinforce a witness’s assertions. For example, evidence that shows that the defendant’s cell phone was at that location where a dead body was found can strengthen the prosecution’s identification of the defendant as the perpetrator. But just as such evidence inculpates, so too might it exculpate. A criminal defendant might seek to introduce such evidence to contest a government victim or witness’s account, or prove bias or collusion by witnesses.Footnote ¹⁶

Location data also has supportive defense power, in that it could establish an alibi, prove the presence of an alternative perpetrator, or contradict a line of government cross-examination. A law enforcement officer or witness may be shown to have arrived at the scene after a pivotal moment, or left prior to a critical development. An alleged third-party perpetrator may be proved to have accessed a controlled site, or to have interacted with culpable associates.

The inability of defendants to access such information directly often leaves them reliant upon either the thoroughness of government investigators or the willingness of a court to authorize subpoenas for such information. For example, one police report described cases in which police used license-plate-reading cameras to support each defendant’s claim of innocence, and thus to exonerate individuals from false accusations.Footnote ¹⁷ But such open-minded and thorough investigation is not always the norm. In some cases, the government may have little incentive to seek information that contradicts the government’s theory or calls into question the government’s proof.

In Quinones v. United States,Footnote ¹⁸ the defendant alleged that his counsel was ineffective for failing to seek location data including both GPS and license plate readings that the defendant argued would support his claim that he had not been residing for months in the location where firearms were found, but rather had only recently visited. The court rejected the claim, stating that the defendant “fails to provide any indication that such evidence even exists, and if so, what that evidence would have revealed,” and that “[a] license plate reader would merely indicate that a certain vehicle was at a certain location at a specific time, but such would not conclusively prove the location of an individual.”Footnote ¹⁹ Another court likewise rejected a defendant’s claim that the defense attorney’s failure to seek such information constituted ineffective assistance, reasoning that the defendant had offered “no reason, beyond his own speculation, to believe that the GPS records would have bolstered his defense ….”Footnote ²⁰ The dismissive tone regarding the potential evidence in Quinones is also evident in other cases, such as People v. Wells. In that case, the court dismissed the significance of automatic toll records, noting that “[t]here was no individual camera for the FasTrak lane. These inherent limitations in the underlying videotape evidence made it possible for defendant’s car to pass through undetected ….”Footnote ²¹

But of course, the very point of investigation is to find information that is not already known, including information that impeaches or contradicts critical witnesses, and to present such evidence, even though it may be equivocal. As one law firm wrote in a post that underscored the importance of location records, obtaining the complainant’s location data aided the firm in convincing the government that the complaint was unfounded.Footnote ²²

The point of these cases is not so much that such evidence is always decisive. Rather, they highlight the discrepancy between the ease, even if not unfettered,Footnote ²³ with which courts recognize that access to and introduction of such evidence is critical to building a government case, while dismissing its importance in mounting a defense. One press report from Denmark noted, in connection with the revelation that up to 1,000 cases may have been tainted by erroneous mobile geolocation data which precipitated the release of 30 persons from pre-trial detention, the fact that such errors went unchecked is “obviously very concerning for the functioning of the criminal justice system and the right to a fair trial.”Footnote ²⁴ Yet the preceding discussion suggests that a court could well reject a defense request for such information out-of-hand.

II.B Electronic Communications and Social Media

The advent of mobile devices has changed the manner in which people communicate, and exponentially increased the amount of that communication. As one leading treatise puts it: “E-mail is inordinately susceptible to revealing ‘smoking gun’ evidence.”Footnote ²⁵ Email and text messages comprise a significant fraction of digital records of communication, but social media accounts on platforms such as Facebook, Snapchat, Instagram, and X (formerly known as Twitter) also provide fertile ground for data.Footnote ²⁶ Although criminal defendants typically have access to their own records, historical information including deleted material or material generated by other persons may not be as readily obtainable.

In one high-profile case in England, a man spent three years in prison in connection with a rape allegation. He contended the encounter was innocent, but it was only when his family was able to locate an original thread of Facebook messages by the complainant that it was revealed that she had altered the thread to make the incident appear non-consensual.Footnote ²⁷ In a similar case in the United States, the court dismissed as critical to an effective defense the effort to obtain Facebook evidence.Footnote ²⁸ Such discovery difficulties can occur even for high-profile defendants; the actor Kevin Spacey had trouble obtaining an unaltered copy of the complainant’s cell phone records.Footnote ²⁹

Not every court has disregarded defense requests. In another case, the defendant sought the complainant’s emails in part to dispute the prosecution’s characterization of him as a predatory sadist, but the trial court denied the request, asserting that the defendant could simply “obtain the information contained in the e-mails from other sources, i.e., speaking directly with the persons who communicated with the complainant in these e-mails.”Footnote ³⁰ In reversing, the appellate court observed that the evidence had particular power not only to undermine the prosecution’s depiction of the defendant, but also the complainant’s portrayal as a “naïve, overly trusting, overly polite and ill-informed” person.Footnote ³¹

Despite the critical role that written communications and correspondence can play as evidence, defendants often have trouble convincing courts of their value, and overcoming significant legal hurdles. Ironically, “[t]he greatest challenge may be ascertaining and obtaining electronic evidence in the possession of the prosecution.”Footnote ³² That is because, like location data, defendants often “must successfully convince the court that without ‘full and appropriate’ pretrial disclosure and exchange of ESI, the defendant lacks the ability to mount a full and fair defense.”Footnote ³³

In the United States, access to electronic communications is one of the few areas expressly covered by statutory law, but that law also restricts the defense. Only governmental entities are expressly permitted to subpoena electronic communications from the service provider; other persons are dependent on access to the records from the person who created or received the communication, who may not have the records or be reluctant to share them.Footnote ³⁴ There is also a demonstrated reluctance on the part of social media and other provider companies to support defense cases.Footnote ³⁵ One public defender described Facebook and Google as “terrible to work with,” noting that “[t]he state’s attorney and police get great information, but we get turned down all the time. They tell us we need to get a warrant. We can’t get warrants. We have subpoenas, and often they ignore them.”Footnote ³⁶ And in one high-profile case, Facebook accepted a $1,000 fine for contempt rather than comply with the court’s order to disclose information for the defense, citing its belief that the order contradicted the federal law on stored communications.Footnote ³⁷

Eventually, the California Supreme Court directly confronted the problem of defense access in its decision in Facebook, Inc. v. Superior Court of San Diego County.Footnote ³⁸ In that case, the defendant subpoenaed Facebook to obtain non-public posts and messages made by a user who was also a victim and witness in an attempted homicide case. Articulating a seven-part test for determining when to quash third-party subpoenas, the court also laid out a series of best practices for such requests that included a presumption against granting them ex parte and under seal.Footnote ³⁹ Although the court’s opinion offers a roadmap for similar cases in the future, it is remarkable that the availability of such a critical and important form of evidence remains relatively uncertain in many jurisdictions.

II.C Historical Search, Cloud, Crowdsourced, and Vendor Records

It is not only social media and electronic messaging services that retain records of individuals. A vast network of automated and digital records has arisen documenting nearly every aspect of daily life, including Google search histories, vendor records from companies like Amazon, find my iPhone searches, meta-data stored when files are created, uploaded, or changed, or cloud-stored or backed-up records.

These records are commonly used tools to establish a defendant’s guilt.Footnote ⁴⁰ But they might be equally powerful means of exculpating or partially exculpating an accused by identifying another perpetrator, undermining or disputing testimony by a government witness, or bolstering and reinforcing a defense witness, as in the case of a record showing that a phone’s flashlight feature was on, or history of purchases or searches, or crowdsourced data from a traffic app that proves the accident was the fault of a hazard along a roadway.Footnote ⁴¹

In one exceptional case, the defendant successfully defeated the charges only after his attorney – at New York’s Legal Aid Society, which unlike most defenders has its own forensic laboratory – was able to retrieve stored data that proved the defendant’s innocence.Footnote ⁴² The defendant was charged with threatening his ex-wife, but insisted he had in fact been on his way to work at the time. Fortunately, the Legal Aid Society had invested in its own digital forensics lab at the cost of roughly $100,000 for equipment alone. Using the defendant’s cell phone, the defense analyst produced a detailed map of his morning, which established that he was 5 miles from the site of the alleged assault. Software applications like “Oxygen Forensic Detective” provide a suite of data extraction, analysis, and organization tools, for mobile devices, computers, cloud services, and more,Footnote ⁴³ but it is safe to say that there are few if any defenders that could have performed that kind of analysis in-house, and only a handful that could have apportioned expert funds to outsource it.

II.D “Internet of Things” and “Smart Tools”

An emerging category of digital records that could be lumped under the prior heading of historical search records arises from the Internet of Things (IoT) and smart tools. This general heading encompasses a broad array of technologies. Some simply record and generate data from commonplace household items and tools, without any real evaluative function, including the following: basic “wearables” that measure one’s pulse or temperature; medical monitoring devices like pacemakers; personal home aids like Siri, Echo, or Alexa; basic automotive data such as speed or mileage indicators; or even “smart” toys, lightbulbs, vacuums, toothbrushes, or mattresses.Footnote ⁴⁴ These devices record everything from ambient sounds to specific requests, including passive and active biomedical information like weight, respiratory rate, sleep cycles, or heartbeat; and time in use or mode of use.

This category also includes tools that may have true evaluative function, including real-time analysis and feedback. For example, this category includes fully or semi-autonomous vehicles or medical instruments that do not just detect information and record it, but also process and respond to those inputs in real time.

Such information has a range of both inculpatory and exculpatory uses. The government readily accesses such information, and may do so even more in the future. For example, residents in Texas awoke one morning to find that their “smart” meters had raised the temperature overnight to avoid a burnout during a heat wave.Footnote ⁴⁵ Used selectively, this technology could aid law enforcement. As one report summarized:Footnote ⁴⁶

Everyday objects and devices that can connect to the Internet – known as the Internet of Things (IoT) or connected devices – play an increasing role in crime scenes and are a target for law enforcement. … We believe that a discussion on the exploitation of IoT by law enforcement would benefit from the views of a wide spectrum of voices and opinions, from technologists to criminal lawyers, forensic experts to civil society.

In one especially prominent case, James Bates was charged with strangling and drowning a man, based in part on evidence from Amazon Echo and a smart water meter. The water evidence presumably showed a five-fold uptake in usage that police said corresponding to spraying down the crime scene.Footnote ⁴⁷ But after reviewing the Amazon Echo evidence, prosecutors dropped the case, noting that they could not definitively prove that the accused had committed the murder.Footnote ⁴⁸ In Bates’ case, it was not clear that either the government or the defense could easily access the evidence, as Amazon initially refused its release to either party, but relented when Bates agreed to allow government access. In another case, investigators again sought Amazon Echo data in connection with a homicide; tellingly, the defense asked “to hear these recordings as well,” as they believed them exculpatory.Footnote ⁴⁹

Some data within this category may exclusively be held in the defense’s hand. For example, fitness or health data is often preserved on the user’s own devices, and thus could be shared with defense counsel without seeking the permission of either the government or the vendor. In one case, police used data from a complainant’s Fitbit to determine that the allegations were false,Footnote ⁵⁰ and in another, the government relied on the readings from a suspect’s health app to document activity consistent with dragging the victim’s body down a hill.Footnote ⁵¹ But it is just as easy to imagine that the accused might seek to introduce such evidence to show that they had a heart rate consistent with sleep at the time of a violent murder, or that sounds or images from the time of an incident contradict the government’s claim.

But of course, in other cases, the data will not be the defendant’s data. The accused may seek data from devices owned or operated by a witness, decedent, victim, or even an alleged third-party perpetrator. In the Bates case described above, Bates claimed to have gone to sleep, leaving the decedent and another friend downstairs in the hot tub. The friend claimed to have left just after midnight, and his wife corroborated that claim, thus ruling him out as a suspect. But suppose evidence from a device contradicted those claims? Perhaps the friend’s fitness tracker showed that in fact his heart had been racing and he had been moving around vigorously exactly around the time of the murder? Or maybe his “smart” door lock or lighting system would show he arrived home much later than he had claimed. Obtaining such evidence may be difficult for law enforcement, but it is all but impossible for the defense. Again, to quote one report, “[i]n criminal investigations, it is likely that the police will have access to more information and better tools than the witness, victim or suspect.”Footnote ⁵²

II.E Surveillance Cameras and Visual Imagery

The overwhelming presence of surveillance tools in contemporary society make visual imagery another critical source of digital defense evidence. In some cities, cameras record nearly every square inch of public space, and are particularly trained on critical areas such as transportation hubs or commercial shopping areas. There have even been reports of the use of drones to conduct domestic policing surveillance in the United States, and a federal appeals court recently ruled a municipality’s “spy plane” surveillance unconstitutional.Footnote ⁵³ Private cameras also increasingly record or capture pertinent information, as homeowners use tools like Nest or Ring and businesses install security systems. Individuals may also advertently or inadvertently generate visual records, such as the tourist snapping photos who accidentally captures a robbery, the film crew that unknowingly records a linchpin piece of evidence, or the citizen-journalist who records a police killing.Footnote ⁵⁴

In perhaps one of the most dramatic examples – so dramatic it inspired a documentaryFootnote ⁵⁵ – a man charged with capital murder was able to exonerate himself using media footage that established his alibi.Footnote ⁵⁶ Juan Catalan was charged with murdering a witness who planned to testify against his brother in a separate case, based on the testimony of an eyewitness to the killing. But Catalan explained that he had attended a baseball game at Dodger Stadium on the night of the killing. The prosecutor didn’t believe him, but his defense attorney did, and with permission of the stadium he examined all the internal camera footage from the game that night. Although none of that footage turned up evidence of Catalan’s presence, Catalan recalled that a film crew had been present that night, gathering footage for a popular television show. The show producers allowed the attorney to review their material, which revealed images of Catalan that corroborated his account. Based on that evidence, and cell phone records placing him at the stadium, the case was dismissed.

In Catalan’s case, the defense was able to secure voluntary compliance with private entities, the stadium, the television producers, and the cell phone company. But what if material is held by an entity that does not willingly share its data? For example, in many localities, law enforcement operates the public surveillance cameras, i.e., the very persons who are accusing the defendant of the offense. For good or bad reasons, law enforcement may act as gatekeepers of the data, but when they deny defense requests in order to protect privacy interests, they privilege their own assessment of the relevance of such data or simply act in self-interest to safeguard their case from attack.

In an example from New York, a defense attorney subpoenaed surveillance footage held by the New York Police Department to corroborate the accused’s exculpatory account. The prosecutor reluctantly disclosed a portion of the video, claiming that it was only required to disclose video as required by its statutory discovery obligations and the Brady rule,Footnote ⁵⁷ but the defendant asserted an “independent right to subpoena video that will exonerate her.”Footnote ⁵⁸ The court, reviewing the arguments, stated:Footnote ⁵⁹

[S]ince the inception of this case, the defense forcefully and persistently attempted to obtain surveillance footage that had the potential to “undercut” the complainant’s claims and to corroborate his client’s claim that she was not present at nor involved in any criminal activity … The defense, however, in contrast to Cruz, could not simply subpoena this potentially exculpating evidence because the footage was held by the NYPD …. Here, the defense compellingly argued that if immediate action was not taken, the recordings, which are maintained by the NYPD’s VIPER Unit for a period of no more than 30 days, would be destroyed.

Ultimately ruling on various motions in the case, the court held that the US Constitution and state laws supported the court’s preservation order, even if the state’s discovery rules did not.Footnote ⁶⁰ But the closeness of the fight demonstrates the extent to which the defense must overcome significant hurdles to access basic information.

II.F Biometric Identifiers

Biometric identifiers are increasingly used for inculpatory proof, but they also can exculpate or exonerate defendants. Biometrics include familiar techniques such as fingerprinting and blood typing, but also more sophisticated or emerging methods like probabilistic DNA analysis that relies on algorithms to make “matches,” iris scanning, facial recognition technologies, or gait or speech analysis.

This category of digital proof may be the most familiar in terms of its exonerative use and thus perhaps requires the least illustration. The Innocence Project sparked a global movement to use DNA testing to free wrongfully convicted persons.Footnote ⁶¹ But biometric identifiers might also be used by the defense more generally, such as to identify eyewitnesses or alternate suspects, or to bolster the defense. In a disputed incident, biometric evidence might support the defense version, e.g., DNA on the couch but not the bed, over that of the prosecution.

Because of the particular power of DNA, there have been extensive legal analysis of the myriad legal hurdles for the defense in preserving, obtaining, and testing physical evidence,Footnote ⁶² including the fact that physical evidence is typically in the hands of the government, and the tools and expertise required to analyze it may exceed the reach of even well-resourced defense counsel.

II.G Analytical Software Tools

The final category of digital proof overlaps in many ways with the preceding groups, and focuses primarily on the evaluative data generated by machines. The label “analytical software tools” generally describes computer software that is used to reach conclusions or conduct analyses that mimic or exceed the scope of human cognition.

By way of example, prosecutors often rely on artificial intelligence (AI) and machine learning to identify complex patterns or process incomplete data. Perhaps the most common form of such evidence is found in the “probabilistic genotyping systems” used by the government to untangle difficult or degraded DNA samples. An accused could likewise marshal those tools defensively, either to challenge the system’s interpretation of evidence or to uncover supportive defense evidence.

Defense teams have often sought access to the algorithms underlying probabilistic genotyping software that returns inculpatory results used by the prosecution. But companies typically refuse full access, raising trade secret claims that are accepted uncritically by courts.Footnote ⁶³ Such software might also be sought by the defense for directly exculpatory reasons, not just to call into question the accuracy of the government’s approach,Footnote ⁶⁴ but also to demonstrate that a different party perpetrated the offense or that another interpretation of the evidence is possible.Footnote ⁶⁵

DNA profiles are not the only targets for analytical software. Evidence from facial recognition software can cast new light on grainy surveillance video,Footnote ⁶⁶ or a speech pattern analysis. As one commentator explains:Footnote ⁶⁷

… in a blurry surveillance video or an unclear audio recording, the naked eye and ear may be insufficient to prove guilt beyond a reasonable doubt, but certain recognition algorithms could do so easily. Lip-reading algorithms might tell jurors what was said on video where there is no audio available. A machine might construct an estimation of a perpetrator’s face from only a DNA sample, or in other DNA analysis of corrupted samples.

Of course, the same could be true for the defense. Software could corroborate a defense claim or undermine the credibility of a government witness. It could also aid the defense in identifying other witnesses to the event or alternative perpetrators. In a case where inculpatory evidence was seized from a computer, the defense successfully argued for suppression of the evidence by obtaining information about how the software used to search the computer worked, thereby showing the search exceeded its permissible scope.Footnote ⁶⁸

III Characteristics of Digital Proof

The preceding section provides a general overview of the digital shift in evidence in criminal prosecutions, and identifies the ways in which such evidence might likewise be critical to the defense. And as the preceding section demonstrates, it is not the case that the data’s reliability is a defendant’s only concern. The defense also requires access to digital proof for the same reasons that the government does – because digital evidence can help find or bolster witnesses, establish a critical fact, or impeach a claim. But the preceding part also reveals just how little guidance exists, either as a matter of rules-based guidance or judicial opinion, for those attempting to craft a meaningful defense right to access and use this material. This part identifies the critical questions that must be answered, and values that must be weighed, in devising a regime of comprehensive access to such information for defensive or exculpatory purposes.

1. Who “owns” and who “possesses” the data. Perhaps the most important question with regard to technological forms of evidence is who owns and who possesses the data. Ownership is critical because, as with physical items, the right to share or disclose data often rests in the hands of the owner. Possession is also critical because, as with physical items, a possessor may disclose information surreptitiously without permission or knowledge of the owner.

The most straightforward cases involve physical items owned and possessed by the accused or a person sympathetic to the accused’s interest, in which the data is stored locally in the instrument. Such might be the case for a security camera owned by the defendant, or an electronic device with stored files. In these cases, the owner can make the evidence available to the defense.

But many technological forms of evidence will not be accessed so simply. As a general matter, ownership might be in public, governmental hands, such as police or public housing surveillance footage, or private hands, such as a private security camera. Even the category of private ownership is complex – ownership may be as simple as belonging to a private individual, or as complex as ownership held by a publicly traded large corporate entity. In some cases, ownership may even cross categories. Digital information in particular may have multiple “owners,” e.g., a user who uploads a picture to a social media site may technically own the intellectual property, but the terms of service for the site may grant the site-owner a broad license to use or publicize the material.Footnote ⁶⁹

When possession is divorced from ownership, a new suite of problems arises. Even when an owner is sympathetic or willing to share information with the defense, access may nonetheless be thwarted by an entity or person in possession of the data. Possession may also make access questions difficult because the reach of legal process may not extend to a physical site where information is kept. Possessors may also undermine the right of owners to exclude, e.g., if a security company grants visual access to the interior of a home against the wishes of the owner.

In both cases, obtaining data from third-party owners or possessors runs the further risk of disclosing defense strategies or theories. The government may have the capacity to hide its use of technology behind contracts with non-disclosure clauses or vague references to “confidential informants.” Human Rights Watch has labeled this practice “parallel construction” and documented its use.Footnote ⁷⁰ But a criminal defendant may not be able to operate stealthily, relying instead on the goodwill of a third party not to disclose the effort or a court’s willingness to issue an ex parte order.

2. Who created the data. In many cases, answering questions of ownership and possession will in turn answer the question of creation. But not always. An email may be drafted by one person, sent to a recipient who becomes its legal “owner,” and then possessed or stored by a third party. Or an entity may “create” information or data by collecting or analyzing material owned or possessed by another, e.g., a DNA sample sent for processing through analytical software; the data is created by the processing company, and the physical sample tested may be “owned” or possessed by the government.

Data created by the defendant perhaps poses only ancillary obstacles when it comes to a defendant’s access to information. If anything, a defendant’s claim to having created data may bolster their claim to access, even if they neither own nor possess it.Footnote ⁷¹ Some jurisdictions even specifically bestow upon an individual the right to access, correct, and delete data.Footnote ⁷² But it may also be the case that the diffusion of claims in data may complicate rules for access and use by the defense. Imagine a piece of technology or evidence possessed by one party, owned by another person, and created by still another person – with disputes between the parties about whether or not to release the information.

3. For what purpose was the data created. Another factor that must be considered in contemplating defense access is the source of the data and the purpose for which it was created. Much of the information that the defense may seek to access for exculpatory purposes will have likely been created for reasons unrelated to the criminal matter. For example, an automated vacuum may record the placement of the furniture in the room so that it can efficiently clean, but such data might be useful to show the layout at the time of the robbery. Or a search engine may store entered searches to optimize results and targeted advertising, but the record may suggest that a third party was the true killer. Such purpose need not be singular, either. The person searching the internet has one goal, but the internet search engine company has a different objective. The critical point is that the reason the information is there may help shed light on the propriety of defense access.

By way of example, the most compelling case for unconstrained access to the defense might be for data that was created specifically for a law enforcement purpose. In the national security context in the United States, a statutory frame exists to resolve some of these claims.Footnote ⁷³ Conversely, the most difficult case for access might be for information privately created for personal purposes unrelated to the criminal case. Although no single factor should determine the capacity and scope of access, the extent to which data or information is created expressly with a criminal justice purpose in mind may shed light on the extent to which such information should also be made accessible to an accused.

4. With what permissions was the data created. A related point arises with regard to how much of the general public is swept into a data disclosure, and the extent to which participants implicated by its disclosure are aware of the risks posed by broader dissemination. Open access to surveillance footage is troubling because it has the potential to implicate the privacy rights of persons other than the accused, who have no relation to the crime and who may not even know that they appear in the footage. Although we might tolerate those rights being compromised when it is only law enforcement who will access the information, or when used by a private operator with little incentive to exploit it, giving access to defense attorneys may create cause for concern. Persons in heavily policed neighborhoods may fear that, after viewing an image in surveillance, attorneys will be incentivized to accuse a third party of the crime simply out of expedience rather than in good faith. But such concerns may be minimized when creators or owners voluntarily provide data to law enforcement for law enforcement purposes.

5. How enduring or resilient is the data and who has the authority to destroy it. A central concern about defense access to data is that, without prompt and thorough access, such data will be destroyed before the defendant has a chance to request its preservation, if not disclosure. Some forms of evidence may be incredibly resilient. For example, cloud computing services or biometric identifiers of known persons may be highly resilient to destruction or elimination.

But other forms of data may be transient in nature, or subject to deliberate interference by an unwilling owner or holder of the data. Surveillance cameras notoriously run on short time loops, automatically erasing and retaping data in limited increments. Social media or other sites may promise total erasure of deleted material, not just superficial elimination from a single device.

Meaningful defense access to technological tools for exculpatory purposes requires attentiveness to timing, such that a defendant is able to access the material before its destruction. Even if the entitlement extends no farther than preservation, with actual access and use to be decided later, that would significantly impact a defendant’s capacity to make use of this information.

6. The form, expertise, and instrumentation required to understand or present the data. Generally speaking, evidentiary form is likely to be a less pertinent consideration in any framework for defense access than are questions related to ownership or possession. What import is it if the data is on a hard drive or flash drive? What matters is who owns it and who has it.

Nevertheless, any comprehensive scheme for meaningful defense access must consider form inasmuch as certain forms at the extreme may entail greater or lesser burdens on the party disclosing the information. Data diffused over a large and unsearchable system may provide important information to a defense team, but even turning over that data may present a significant challenge to its holder. In the Catalan case above, the surveillance video that exonerated him was physically held by the stadium officials and the production company. Fortunately, it was rather confined, as it covered one day and one game. It was the defense attorney who pored through the footage, isolating the exculpatory images.

But what if the records go beyond a single episode, or require special instrumentation to interpret. Information that requires that a holder devote significant time or resources to make the data available, or that is not readily shareable or accessible without expertise or instrumentation, may pose much more significant hurdles to open defense access. Some defense claims may actually be requests for access to services, rather than disclosure of information. For example, a defense request to run a DNA profile in the national database or to query a probabilistic genotyping system with a different set of parameters is less about traditional disclosure than about commandeering the government’s resources to investigate a defense theory. The same could be true for location data from a witness’s phone or search records from a particular IP address. The sought information is less an item than a process, a process to be conducted by a third party, not the defense.

7. What are the associated costs or expenses, and are there even available experts for the defense. A critical logistical, if not legal, hurdle to defense access to digital and technological evidence is the cost associated with seeking, interpreting, and introducing such evidence. Most of the forms of evidence described require some degree of expertise to extract, interpret, and understand, much less to explain to a judge, attorney, or juror. To the extent that the information also seeks an operational process or other search measure, the owner or possessor of the information may justly charge a fee for such services. Even more troubling, some vendors may restrict access to the government, or there may not be an available defense expert to hire given the lack of a robust market.

In this way, cost alone can preclude equitable access. For example, even assuming the defendant could get access to the probabilistic software used to interpret a complicated DNA crime sample, and assuming the vendor who contracted with the government would agree to run a defense query, the vendor may nonetheless charge for the service. Routine costs like copying fees or hourly rates can quickly put even routine investigative efforts beyond the capacity of a criminal defense lawyer, as the vast majority of defendants are indigent and there may be insufficient public funds available or such funds may be jealously guarded by judicial officials.Footnote ⁷⁴

The introduction of this evidence also may require payment of expert fees so that the attorney is able to understand and clearly present the findings. Such costs can make defense lawyers reluctant even to pursue exculpatory evidence, because actually obtaining and using it appears insurmountable.

One still more troubling possibility is that some subpoenaed parties will actively choose to defy orders rather than comply. As discussed above, social media companies Facebook and Twitter (now X) both refused to turn over posts requested by the defense in a criminal case, leading the judge to hold them in contempt and fine each $1,000 – the maximum allowed under the law.Footnote ⁷⁵ With fines capped statutorily, a company wealthy enough or unlikely to be a repeat player might simply choose non-compliance.

8. What are the privacy implications of divulging the data. Perhaps the most apparent and central concern raised by defense access to digital data relates to privacy. The nature of the material sought and the scope of what it reveals, along with the number of persons implicated by defense disclosure, is perhaps equal only to concerns about unnecessary “fishing expeditions” or wasted resources as a basis for the reluctance to provide generous access to the defense. Whereas the government is bound to act in the interest of the public, and thus in theory should minimize harm to innocent third parties in the course of its investigations, the defense is entitled to act only in furtherance of the interest of the accused.

At one end of the spectrum, some technological evidence will reveal deeply private or personal data belonging to a person wholly unrelated to the criminal offense. The DNA sequence or entire email history of a witness, or extensive public surveillance of a small community, obviously implicate profound interests. But at the other end of the spectrum, discrete bits of information created by the defendant him- or herself pose little concern when sought by the same defendant.

And of course, non-digital forms of evidence can raise the same concerns. As such, there are already mechanisms available to limit the privacy impact of revealing information to the defense. In prosecution investigations, it is not unusual to have a “taint team” that reviews sensitive information and passes along only the incriminating material to the prosecutor in the case. Or a judge can take on the responsibility to review material in camera, i.e., outside of the view of the parties and their attorneys, and disclose only evidence that is relevant to the defense.

In short, privacy is understandably a central and driving concern, but it should not be a definitive reason to close the door on broad defense access to exculpatory or defensive material.

9. What legal restrictions, whether substantive, procedural, or jurisdictional, limit access or use. The final critical inquiry incorporates some aspects of the privacy concerns just discussed, but goes beyond them. Namely, any comprehensive effort to provide defense access to digital and technological evidence must square with existing legal regimes surrounding disclosure and use of such evidence, whether as a matter of comprehensive or targeted privacy laws, intellectual or physical property, trade secret, or evidence. At a basic level, the data may straddle jurisdictions – created in one place, processed in another, and then used somewhere else. Legal restrictions may also be loosely lumped into substantive and procedural limitations, differentiating between substantive constraints such as privacy laws and procedural impediments such as jurisdictional rules.

Background statutory regimes that may conflict with defense access are imperative to consider, because jurisdictions increasingly have adopted such restrictions in response to complaints about privacy.Footnote ⁷⁶ Although law enforcement is routinely afforded exceptions to privacy statutes,Footnote ⁷⁷ there is rarely any mention of any equivalent route of access for a criminal defendant.Footnote ⁷⁸ Moreover, even outside the realm of privacy law, there may be other statutory limitations on disclosure or access, such as legal non-disclosure agreements. Or jurisdictions may point to regulatory regimes aimed at reliability as sufficient to safeguard all of the defendant’s interests.Footnote ⁷⁹

IV Conclusion

Digital proof is here, and it is here to stay. Such proof has already assumed a prominent place in the prosecution of criminal suspects. But all too often, the ability of the defense to access and utilize such evidence depends on happenstance rather than formal right. By cataloging and characterizing this critical form of proof, the chapter hopes to support efforts to formalize and standardize a defendant’s ability to marshal defense evidence for exculpatory and adversarial purposes as readily as the government does to inculpate.

Footnotes

^* I am deeply grateful to Safeena Mecklai for her outstanding research assistance.

¹ See e.g. Ian N. Friedman & Eric C. Nemecek, “#Trending: Traditional Crimes Meet Nontraditional Evidence” (2018) The Champion 20; Erin Murphy, “The New Forensics: Criminal Justice, False Certainty, and the Second Generation of Scientific Evidence” (2007) 95:3 California Law Review 721 at 729–730.

² See Chapter 8 in this volume.

³ See e.g. Haiyang Jiang, Mingshu He, Yuanyuan Xi et al., “Machine-Learning-Based User Position Prediction and Behavior Analysis for Location Services” (2021) 12:5 Information 180.

⁴ See Chapter 7 in this volume (recognizing five key rights of the accused).

⁵ United States v. Scott, No. 2:17-CR-20489-TGB, 2018 WL 2197911, at *5 (ED Mich. May 14, 2018).

⁶ The Electronic Frontier Foundation and the Reynolds School of Journalism created a database of police surveillance technologies, which is a helpful compilation of some police surveillance practices. See Atlas of Surveillance, https://atlasofsurveillance.org/.

⁷ See e.g. Rebecca Wexler, “Privacy Asymmetries: Access to Data in Criminal Defense Investigations” (2021) 68:1 UCLA Law Review 212 [“Privacy Asymmetries”]; Sabine Gless, “AI in the Courtroom: A Comparative Analysis of Machine Evidence in Criminal Trials” (2020) 51:2 Georgetown Journal of International Law 195; Rebecca Wexler, “Life, Liberty and Trade Secrets: Intellectual Property in the Criminal Justice System” (2018) 70:5 Stanford Law Review 1343 [“Life, Liberty”]; Andrea Roth, “Trial by Machine” (2016) 104:5 Georgetown Law Journal 1245 [“Trial by Machine”]; Andrea Roth, “Machine Testimony” (2017) 126:1 Yale Law Journal 1972; Erin Murphy, “The Mismatch between Twenty-First-Century Forensic Evidence and Our Antiquated Criminal Justice System” (2014) 87:3 South California Law Review 633; Joshua A. T. Fairfield & Erik Luna, “Digital Innocence” (2014) 99:5 Cornell Law Review 981 [“Digital Innocence”] at 1056; Brandon L. Garrett, “Big Data and Due Process” (2014) 99 Cornell Law Review Online 207; Erin Murphy, “Databases, Doctrine and Constitutional Criminal Procedure” (2010) 37:3 Fordham Urban Law Journal 803.

⁸ See generally Wayne R. LaFave, Jerold H. Israel, Nancy J. King et al., Criminal Procedure, 4th ed. (St. Paul, MN: Thomson Reuters, 2015) [Criminal Procedure] at ss. 20.2(c) and 20.3.

⁹ Ion Meyn, “Discovery and Darkness: The Information Deficits in Criminal Disputes” (2014) 79:3 Brooklyn Law Review 1091 at 1095–1096 and 1108–1114.

¹⁰ Footnote Ibid. at 1113–1114.

¹¹ Criminal Procedure, note 8 above, at s. 20.2(d).

¹² Facebook, Inc. v. Superior Court, 471 P.3d 383, 387 (Cal. 2020) [Facebook v. Superior Court].

¹³ See e.g. Erin Murphy, “The Politics of Privacy in the Criminal Justice System: Information Disclosure, the Fourth Amendment, and Statutory Law Enforcement Exemptions” (2013) 111:4 Michigan Law Review 485 [“Politics of Privacy”].

¹⁴ See e.g. “Privacy Asymmetries”, note 7 above, at 215.

¹⁵ See Chapter 8 in this volume, and regarding the limited reach of the Fourth Amendment of the US Constitution to state agents and not private actors, see Chapter 11.

¹⁶ Kathleen McWilliams, “New Haven Man Jailed for 17 Years Freed after Judge Vacates Murder, Robbery Convictions,” Hartford Courant (April 25, 2018), www.courant.com/breaking-news/hc-br-vernon-horn-released-wrongful-conviction-20180425-story.html.

¹⁷ Press Release, “Grosse Ile Police Department Exonerates Two Individuals Using Fixed License Plate Reader Cameras,” Vigilant Solutions (February 4, 2016), www.police1.com/police-products/traffic-enforcement/license-plate-readers/press-releases/grosse-ile-police-department-exonerates-two-individuals-using-fixed-license-plate-reader-cameras-SyndPZ00572XK92v/.

¹⁸ 2020 WL 1509386 (SD W. Va. Jan. 9, 2020) (slip copy) [Quinones v. United States].

¹⁹ Quinones v. United States, note 18 above, at *9. See also Harrison v. Baker, No. 3:18CV85-HEH, 2019 WL 404974, at *4 (ED Va. Jan. 31, 2019); Blackman v. United States, No. CIV.A. 2:12-02509, 2014 WL 1155444, at *4 (DNJ Mar. 21, 2014); United States v. Medina, 918 F.3d 774, 786 (10th Cir.), cert. denied, 139 S.Ct. 2706 (2019).

²⁰ Cooper v. Griffin, 16-CV-0629 (VEC) (BCM), 2019 WL 1026303, at 11 (SDNY Feb. 11, 2019), report and recommendation adopted, 16-CV-0629 (VEC), 2019 WL 1014937 (SDNY Mar. 4, 2019).

²¹ People v. Wells, No. A112173, 2007 WL 466963, at 6 (Cal. Ct. App. Feb. 14, 2007), as modified on denial of reh’g (Mar. 13, 2007); Jackson v. Lee, 10-CIV-3062 (LAK) (AJP), 2010 WL 4628013 at 13 (SDNY Nov. 16, 2010), report and recommendation adopted, 10-CIV-3062 (LAK), 2010 WL 5094415 (SDNY Dec. 10, 2010).

²² “The Importance of Subpoenaing Cell Phone GPS-Data Records in California Criminal Cases,” HG.org, www.hg.org/legal-articles/the-importance-of-subpoenaing-cell-phone-gps-data-records-in-california-criminal-cases-51299.

²³ See e.g. Carpenter v. United States, 138 S.Ct. 2206 (2018); Case C-623/17, Privacy International v. Secretary of State for Foreign and Commonwealth Affairs and others; Joint Cases C-511/18, La Quadrature du Net and others, C-512/18, French Data Network and others, and C-520/18, Ordre des barreaux francophones et germanophone and others.

²⁴ “Danish Data Retention: Back to Normal after Major Crisis,” EDRi (November 6, 2019), https://edri.org/our-work/danish-data-retention-back-to-normal-after-major-crisis/; see also Lene Wacher Lentz & Nina Sunde, “The Use of Historical Call Data Records as Evidence in the Criminal Justice System – Lessons Learned from the Danish Telecom Scandal” (2021) 18 Digital Evidence and Electronic Signature Law Review 1 (“To support the ability of the defence to challenge the evidence, the prosecution must provide a transparent presentation of the data and the processes as a whole, with all the inherent risk of errors and uncertainties”).

²⁵ Monique C. M. Leahy, “Recovery and Reconstruction of Electronic Mail as Evidence” in American Jurisprudence Proof of Facts, 3d at section 1, vol. 41 (Rochester, NY: Lawyers Cooperative Publishing, 2020).

²⁶ Emily R. West, “Nolensville Homicide Suspect Wants Snapchat in Trial,” Tennessean (August 22, 2019), www.tennessean.com/story/news/local/williamson/2019/08/22/nolensville-murder-robert-ward-jonathon-elliott-snapchat/2083867001/ [“Nolensville”].

²⁷ Matthew Diebel, “Man Convicted of Rape Is Freed after Sister-in-Law Finds Deleted Facebook Messages that Prove His Innocence,” USA Today (January 3, 2018), www.usatoday.com/story/news/world/2018/01/02/man-convicted-rape-freed-after-sister-law-finds-deleted-facebook-messages-prove-his-innocence/995197001/.

²⁸ Williams v. Davis, No. 3:15-CV-331-M (BH), 2017 WL 1155855, at *7 (ND Tex. Feb. 13, 2017), report and recommendation adopted, No. 3:15-CV-331-M, 2017 WL 1155845 (ND Tex. Mar. 27, 2017). See also “Nolensville”, note 26 above; In the Interest of R.A.P., a Minor Appeal of R.A.P., No. 930 WDA 2019, 2020 WL 1910515, at *10 (Pa. Super. Ct. Apr. 20, 2020).

²⁹ “Spacey’s Defense Claims Deleted Text Messages Will ‘Exonerate’ Him,” NBC Boston (June 2, 2019), www.nbcboston.com/news/local/spaceys-defense-claims-deleted-text-messages-will-exonerate-him/108067/.

³⁰ People v. Jovanovic, 176 Misc.2d 729, 730 (NY Sup. Ct. 1997), rev’d 263 A.D.2d 182 (NY App. Div. 1999).

³¹ Footnote Ibid., 263 A.D.2d 182, 200, 700 N.Y.S.2d 156, 170 (1999). See also “Nolensville”, note 26 above.

³² Daniel B. Garrie, Esq., The Honorable Maureen Duffy-Lewis, & Daniel K. Gelb, Esq., “‘Criminal Cases Gone Paperless’: Hanging with the Wrong Crowd” (2010) 47:2 San Diego Law Review 521 at 523.

³³ Footnote Ibid. “ESI” refers to electronically stored information.

³⁴ Jenia I. Turner, “Managing Digital Discovery in Criminal Cases” (2019) 109:2 Journal of Criminal Law and Criminology 237 at 262; “Digital Innocence”, note 7 above, at 1055.

³⁵ Andrew Cohen, “How Social Media Giants Side with Prosecutors in Criminal Cases,” The Marshall Project (January 15, 2018), www.themarshallproject.org/2018/01/15/how-social-media-giants-side-with-prosecutors-in-criminal-cases; “Digital Innocence”, note 7 above, at 1056.

³⁶ Kashmir Hill, “Imagine Being on Trial. With Exonerating Evidence Trapped on Your Phone,” The New York Times (22 November 2019), www.nytimes.com/2019/11/22/business/law-enforcement-public-defender-technology-gap.html [“Being on Trial”]. See also Jeffrey D. Stein, “Why Evidence Exonerating the Wrongly Accused Can Stay Locked Up on Instagram,” The Washington Post (September 10, 2019), www.washingtonpost.com/opinions/2019/09/10/why-evidence-exonerating-wrongly-accused-can-stay-locked-up-instagram/.

³⁷ See generally Maura Dolan, “After that $5 Billion Fine, Facebook Gets Dinged Again: $1000 by Judge Overseeing Murder Trial,” Los Angeles Times (July 26, 2019), www.latimes.com/california/story/2019-07-26/facebook-twitter-fined-private-postings-gang-trial [“$5 Billion Fine”].

³⁸ Facebook v. Superior Court, note 12 above.

³⁹ In re. Facebook (Hunter), 417 P.3d 725 (Cal. 2018). An ex parte proceeding or ruling is made without notice to or response from the opposing side.

⁴⁰ See e.g. Walters v. State, 206 So. 3d 524 (Miss. 2016) (admitting Google Earth images); “Ellington Husband Accused of Killing Wife Searched ‘Poison’ Online: Court Documents,” NBC Connecticut (January 3, 2020), www.nbcconnecticut.com/news/local/ellington-husband-accused-of-killing-wife-searched-poison-online-court-documents/2205136/ [“Ellington Husband”].

⁴¹ See e.g. Sabine Gless, Xuan Di, & Emily Silverman, “Ca(r)veat Emptor: Crowdsourcing Data to Challenge the Testimony of In-Car Technology” (2022) 62:3 Jurimetrics 285.

⁴² “Being on Trial”, note 36 above. Cf. State v. Bray, 383 P.3d 883 (Ct. Ap. Oreg. 2016).

⁴³ See e.g. Oxygen Forensics, www.oxygen-forensic.com/en/products/oxygen-forensic-detective.

⁴⁴ “With My Fridge as My Witness?!” Privacy International (June 28, 2019), https://privacyinternational.org/long-read/3026/my-fridge-my-witness [“Fridge as My Witness”]; “Ellington Husband”, note 40 above; United States v. Smith, 2017 WL 11461003 (D. NH 2017); Lauren Pack, “Defense Wants Middletown Man’s Pacemaker Evidence Tossed in Arson Case,” Journal News (June 6, 2017), www.springfieldnewssun.com/news/crime--law/defense-wants-middletown-man-pacemaker-evidence-tossed-arson-case/jZeYV7KjWdncLIZqNbYW2I/; Stephen Jordan, “Apple Health App Data Being Used as Evidence in Murder Trial in Germany,” Digital Trends (January 14, 2018), www.digitaltrends.com/mobile/apple-health-app-murder-germany/.

⁴⁵ Tyler Sonnemaker, “Texas Power Companies Automatically Raised the Temperature of Customers’ Smart Thermostats in the Middle of a Heat Wave,” Business Insider (June 21, 2021), www.businessinsider.com/texas-energy-companies-remotely-raised-smart-thermostats-temperatures-2021-6.

⁴⁶ “Fridge as My Witness”, note 44 above.

⁴⁷ Sara Jerome, “Smart Water Meter Data Considered Evidence in Murder Case,” Water Online (January 3, 2017), www.wateronline.com/doc/smart-water-meter-considered-evidence-murder-case-0001; Dillon Thomas, “Bentonville PD Says Man Strangled, Drowned Former Georgia Officer,” 5 News (February 23, 2016), www.5newsonline.com/article/news/local/outreach/back-to-school/bentonville-pd-says-man-strangled-drowned-former-georgia-officer/527-0e573fa0-4ff9-457d-8ed1-b4c27762e189; Kathryn Gilker, “Bentonville Police Use Smart Water Meters as Evidence in Murder Investigation,” 5 News (December 28, 2016), www.5newsonline.com/article/news/local/outreach/back-to-school/bentonville-police-use-smart-water-meters-as-evidence-in-murder-investigation/527-e74e0aa5-0e2a-4850-a524-d45d2f3fd048.

⁴⁸ Colin Dwyer, “Arkansas Prosecutors Drop Murder Case that Hinged on Evidence from Amazon Echo,” NPR: The Two-Way (November 29, 2017), www.npr.org/sections/thetwo-way/2017/11/29/567305812/arkansas-prosecutors-drop-murder-case-that-hinged-on-evidence-from-amazon-echo.

⁴⁹ Minyvonne Burke, “Amazon’s Alexa May Have Witnessed Alleged Florida Murder, Authorities Say,” NBC News (November 2, 2019), www.nbcnews.com/news/us-news/amazon-s-alexa-may-have-witnessed-alleged-florida-murder-authorities-n1075621.

⁵⁰ Criminal Complaint: Affidavit of Probable Cause Continuation, and Order from Pennsylvania v. Risley, http://online.wsj.com/public/resources/documents/2016_0421_PAvRisley.pdf (Fitbit data contesting victim’s account).

⁵¹ Philip Kuhn, “Die Version vom Handeln im Affekt ist mit dem heutigen Tag obsolet” (The Option of Acting in Effect Is Obsolete Today), Welt (August 1, 2018), www.welt.de/vermischtes/article172287105/Mordprozess-Hussein-K-Die-Version-vom-Handeln-im-Affekt-ist-mit-dem-heutigen-Tag-obsolet.html.

⁵² “Fridge as My Witness”, note 44 above.

⁵³ See Leaders of a Beautiful Struggle and others v. Baltimore Police Department, 2 F.4th 330 (4th Cir. 2021) (en banc), https://law.justia.com/cases/federal/appellate-courts/ca4/20-1495/20-1495-2021-06-24.html; Cade Metz, “Police Drones Are Starting to Think for Themselves,” The New York Times (December 5, 2020), www.nytimes.com/2020/12/05/technology/police-drones.html?action=click&module=News&pgtype=Homepage. But see Timothy M. Ravich, “Courts in the Drone Age” (2015) 42:2 Northern Kentucky Law Review 161 at 164, n. 5.

⁵⁴ See e.g. “Darnella Frazier,” The Pulitzer Prizes: The 2021 Pulitzer Prize Winner in Special Citations and Awards, www.pulitzer.org/winners/darnella-frazier.

⁵⁵ Christopher Campbell, “New Netflix True-Crime Doc Shows How ‘Curb Your Enthusiasm’ Saved a Man from Death Row,” Thrillist (September 29, 2017), www.thrillist.com/entertainment/nation/netflix-documentary-long-shot-curb-your-enthusiasm-death-row.

⁵⁶ Kirsten Fleming, “How ‘Curb Your Enthusiasm’ Saved This Man from Prison,” New York Post (September 23, 2017), https://nypost.com/2017/09/23/how-curb-your-enthusiasm-saved-this-man-from-prison/.

⁵⁷ Brady v. Maryland, 373 U.S. 83 (1963) (requiring the prosecutor to disclose of exculpatory information to the defense). But see Angela J. Davis, Arbitrary Justice: The Power of the American Prosecutor (New York, NY: Oxford University Press, 2007) at 130–131.

⁵⁸ People v. Swygert, 57 Misc. 3d 913 (NY Crim. Ct. 2017) [People v. Swygert] at 921–922. See also J. W. August, “Attorney: Security Video Exonerates Dina Shacknai in Death of Rebecca Zahau,” NBC San Diego (April 20, 2017), www.nbcsandiego.com/news/local/security-video-dina-shacknai-in-death-of-rebecca-zahau/12795/; People v. Butler, 61 Misc.3d 1009 (NY Sup. Ct. 2018).

⁵⁹ People v. Swygert, note 58 above, at 922. See also Beth Schwartzapfel, “Defendants Kept in the Dark about Evidence, Until It’s Too Late,” The New York Times (August 7, 2017), www.nytimes.com/2017/08/07/nyregion/defendants-kept-in-the-dark-about-evidence-until-its-too-late.html.

⁶⁰ People v. Swygert, note 58 above, at 923–924.

⁶¹ Innocence Project, www.innocenceproject.org/.

⁶² See generally Brandon L. Garrett, “Towards an International Right to Claim Innocence” (2017) 105:4 California Law Review 1173; Brandon L. Garrett, “Claiming Innocence” (2008) 92:6 Minnesota Law Review 1629. See generally Erin E. Murphy, Inside the Cell: The Dark Side of Forensic DNA (New York, NY: Nation Books, 2015).

⁶³ See e.g. “Life, Liberty” and “Trial by Machine”, both note 7 above.

⁶⁴ See e.g. United States v. Gissantaner, 417 F. Supp.3d 857 (WD Mich. 2019) (holding the government’s probabilistic DNA results evidence inadmissible because they lacked reliability).

⁶⁵ See e.g. Katherine Kwong, “The Algorithm Says You Did It: The Use of Black Box Algorithms to Analyze Complex DNA Evidence” (2017) 31:1 Harvard Journal of Law & Technology 275 at 287–288 (citing defense uses of TrueAllele).

⁶⁶ See e.g. Ben Fox Rubin, “Facial Recognition Overkill: How Deputies Cracked a $12 Shoplifting Case,” CNET (March 19, 2019), www.cnet.com/news/facial-recognition-overkill-how-deputies-solved-a-12-shoplifting-case/.

⁶⁷ Patrick W. Nutter, “Machine Learning Evidence: Admissibility and Weight” (2019) 21:3 University of Pennsylvania Journal of Constitutional Law 919 at 921.

⁶⁸ Jack Gillum, “Prosecutors Dropping Child Porn Charges after Software Tools Are Questioned,” ProPublica (April 3, 2019), www.propublica.org/article/prosecutors-dropping-child-porn-charges-after-software-tools-are-questioned.

⁶⁹ See e.g. Instagram, “Terms of Use,” https://help.instagram.com/.

⁷⁰ “Dark Side: Secret Origins of Evidence in US Criminal Cases,” Human Rights Watch (January 9, 2018), www.hrw.org/report/2018/01/09/dark-side/secret-origins-evidence-us-criminal-cases#.

⁷¹ Cf. O’Grady v. Superior Court, 44 Cal.Rptr.3d 72 (2006).

⁷² Pollyanna Sanderson, Katelyn Ringrose, & Stacey Gray, “It’s Raining Privacy Bills: An Overview of the Washington State Privacy Act and Other Introduced Bills,” Future of Privacy Forum (January 13, 2020), https://fpf.org/2020/01/13/its-raining-privacy-bills-an-overview-of-the-washington-state-privacy-act-and-other-introduced-bills/ [“Privacy Bills”].

⁷³ Cf. “Digital Innocence”, note 7 above, at 1045–1048.

⁷⁴ See e.g. Stephen A. Saltzburg, “The Duty to Investigate and the Availability of Expert Witnesses” (2018) 86:4 Fordham Law Review 1709 at 1720 (“[R]eluctance to appoint defense experts is rooted in cost to the government and inertia; i.e., a history of not routinely providing defense experts at the request of defense counsel”).

⁷⁵ “$5 Billion Fine”, note 37 above.

⁷⁶ See e.g. Paul M. Schwartz, “Global Data Privacy: The EU Way” (2019) 94:4 New York University Law Review 771; Electronic Privacy Information Center, “Face Surveillance and Biometrics,” https://epic.org/issues/surveillance-oversight/face-surveillance/; “Privacy Bills”, note 72 above.

⁷⁷ See generally “Politics of Privacy”, note 13 above.

⁷⁸ See generally “Privacy Asymmetries”, note 7 above.

⁷⁹ See e.g. Federal Institute of Metrology METAS, “Legal Metrology – Regulating Measurement and Ensuring Its Binding Implementation,” Swiss Confederation, www.metas.ch/metas/en/home/gesmw/gesetzliches-messwesen---messen-regeln---.html.