You Be the Judge

When New Technology Becomes Evidence

MCLE July 29, 2019

Legal Principles to Keep in Mind

• evidence must be relevant to be admissible – i.e.,

has a “rational tendency to prove an issue in the

case”

• relevant evidence may be excluded if “its

probative value is substantially outweighed by a

danger of . . . unfair prejudice, confusing the

issues, misleading the jury, undue delay, wasting

time, or needlessly presenting cumulative

evidence”

• art. 14 is generally more protective than 4th Am.

.. Police Use Fitbit Data to

Charge 90-Year-Old Man in

Stepdaughter’s Killing

N.Y. Times, Oct. 3, 2018

Fitbit – People v. Aiello (CA)

• D told police

• was at victim’s house from 3:00-3:15 p.m.

• victim drove by at 5:00 p.m.

• video shows D’s car at house from 3:12–3:33

• police obtained warrant for V’s Fitbit records

• show “significant spike” in heart rate at 3:20 →

“rapid slowing” → stopped at 3:28

Assume the prosecution wants to admit the Fitbit data to

show a “significant spike” in the victim’s heart rate at

3:20, followed by a “rapid slowing,” and that it stopped

at 3:28, in order to argue that D was still there when she

was killed.

• assume the time his car is last seen on surveillance

video at the house (3:33) is accurate

• assume the video and Fitbit are in sync time-wise

(i.e., when Fitbit record says 3:00, video timestamp

is also 3:00)

How would you rule?

Fitbit – People v. Aiello (CA)

Cops Use Murdered Woman’s

Fitbit to Charge Her Husband

CNN, Apr. 26, 2017

Fitbit – State v. Dabate (CT)

• D told police victim got home 8:45-9:00 a.m.

→ went straight to basement and is shot →

D was then tied up and tortured, freed self

and hit alarm at 10:11

• last Fitbit movement 10:05 (assume Fitbit and

alarm times are in sync)

• Fitbit shows V traveled 1,217 feet

• D’s account has her traveling max 125 feet

Fitbit – State v. Dabate (CT)

Assume the prosecution wants to admit the

Fitbit data showing her last movement was at

10:05 to show time of death.

• D’s account → shortly after 8:45-9:00

• Fitbit → 10:05

#1 How would you rule?

Fitbit – State v. Dabate (CT)

Assume the prosecution wants to admit the

Fitbit data showing the number of steps taken

by the victim.

• D’s account → max 125 feet

• Fitbit → 1,217 feet

#2 How would you rule?

Police Think Alexa May Have

Witnessed a New Hampshire Double

Murder; Now They Want Amazon to

Turn Her Over

Washington Post, Nov. 18, 2018

Amazon Echo – State v. Verrill (NH)

• Echo in kitchen where one victim

apparently attacked

• Judge found PC that Amazon servers

contain info re: any cellular devices linked to

Echo

• Judge found PC they contain evidence of

attack and possible removal of body”

Amazon Echo – State v. Verrill (NH)

Assume the defendant files a motion to suppress

the recordings – and that he has standing,

contrary to the judge’s prior ruling – on grounds

that obtaining them was a 4th Am. search.

How would you rule on whether D has

a reasonable expectation of privacy

in the recordings?

Amazon Echo – State v. Verrill (NH)

Assume the attack occurred in the kitchen

(evidence of blood splatter).

How would you rule on whether there is

probable cause to believe the recordings

contained evidence of the attack?

Life360

Assume the defendant in a motor vehicle

homicide case had Life360 installed on his phone

while driving. The police, without a warrant,

obtain records from Life360 showing incriminating driving detail (speeding, “hard braking”).

How would you rule on whether art. 14

required the police to obtain a warrant?

Comm. v. McCarthy, no. SJC-12750

Issue = whether search warrant or court order

is required before police obtain automatic

license plate reader data from database

• police obtained historical and real-time (”hot

list”) data showing D driving to and from Cape

over several months

How would you rule?