The Expansion of Digital Evidence in Criminal Prosecutions and Defense

The Expansion of Digital Evidence in Criminal Prosecutions and Defense

Over the years, we have become increasingly reliant on technology to assist us with the most minute and, at times, most essential tasks. Whether or not we understand it, many of these tasks require the collection of extensive amounts of data about the most intimate details of our lives. Smartphones feature GPS location services to provide directions and suggest nearby restaurants, stores, and places of interest. New technology even allows phones to tailor their suggestions to mimic our most frequented establishments—such as one’s favorite restaurants, coffee shops, or boutiques. In order to provide location services, however, our phones must collect data on exactly where we are throughout our entire day. Other devices, personal wearable activity trackers made by companies like Fitbit and Garmin, record our movements and sleep patterns not only for our benefit, but to contribute to private metadata aggregates on public health and wellness.

Such technology has also been transformative for criminal proceedings, as both prosecutions and defense attorneys have utilized data from smartphones and other devices as evidence to assist in their cases. For example, in April 2017, police in Ellington, Connecticut claimed to have solved the December 2015 murder of Connie Dabate due to contradictions between her husband’s testimony and the story told by digital evidence related to the case.

Connie Dabate’s husband, Richard Dabate, claimed that a masked intruder to their home had killed his wife. Richard alleged that while he was driving to work one morning, his cell phone alerted him that his home’s burglar alarm had been triggered. He then claimed that he pulled over on the side of the road and emailed his boss from his cell phone to say that he would be late to work. Afterwards, Richard claimed to drive home and to arrive at approximately 9 a.m., when he encountered the intruder. Richard said that during his brief struggle with the intruder, he heard his wife come in the garage door and he yelled at her to run. He said that during the fight, he was briefly incapacitated. It was after he recovered that Richard claimed he ran after the intruder, only to see the intruder shoot and kill his wife.

To verify Richard Dabate’s story, however, police obtained warrants to several digital sources, including the couple’s phone records, Richard’s computer records, Facebook records for Richard, Connie, and Richard’s girlfriend, various text messages, and Connie’s Fitbit records. When police combed through the extensive amount of digital data, they discovered several discrepancies between the data and Richard’s story.

While Richard claimed his home’s burglar alarm was triggered before 9 a.m., data from the home’s alarm system indicated it hadn’t been activated until 10:11 a.m.—when Richard pressed the panic button on his car key fob to alert the police. Also, geo-location data revealed that the email Richard sent to his boss explaining that he’d be late for work was actually sent from his laptop—not his cell phone, as he alleged. Surveillance camera footage at the local YMCA, data from the home’s alarm system, Connie’s Facebook data, and data from Connie’s Fitbit proved that after leaving her fitness class at the YMCA at 9:18 a.m., Connie arrived home at 9:23 a.m. It wasn’t until 10:05 a.m., however, that Connie’s Fitbit registered her last movement—about an hour later than the time Richard said Connie was killed. The use of digital evidence—that of GPS location tracking, the Dabates’ home alarm system’s log, Facebook data, and that of Connie’s Fitbit—allowed the Ellington, Connecticut police to create an extensive case against Richard Dabate. Richard has now been charged with murder, evidence tampering, and making a false statement.

In an article by Tracy Connor from April 29, 2017, NBC News quoted Jonathan Rajewski, a digital forensics instructor at Champlain College in Vermont, as saying, “Ninety-nine percent of crime will now have a digital component…we have these little sensors all over. We’re wearing them and they’re in our homes.” And now with the increasing popularity of Amazon Echo and other electronic personal assistant smart speakers, which record audio when prompted by “hot words,” and the Amazon Echo Look, outfitted with a camera—which records video in addition to audio—massive amounts of digital data will be increasingly utilized as evidence in court proceedings by both prosecution and defense attorneys. When combined with other forms of digital evidence—for example, e-mails, computer memory and back-ups, Internet browser histories, ATM transaction logs, and electronic door locks and doorbells—attorneys must adjust to the ever-increasing surge of digital evidence by remaining up-to-date with technological advancements and by refining the manner in which they analyze and utilize digital evidence in the courtroom.

For an attorney who is on the cutting edge of advancements in technology and the increasing use of digital evidence in the courtroom, contact the Peter J. Johnson Law Office, PLLC, a leading criminal defense attorney in Berrien County, at 269.982.1100 or visit www.AttorneyPeterJohnson.com.