Category Archives: Admissibility

e-Evidence Insights: Mars Needs Moms; But Science Needs Humans


"It's an inexact science."  We've heard that phrase often.  But, how often have we heard it in reference to DNA?  Usually, we hear it more in terms of how it identifies a particular suspect with astronomically-high odds, such as, 'one-in-a-million'.  In other words, it must be him because mathematically, it couldn't possibly be anyone else.

Consider the very bad luck of our suspect in today's story:


  • A murder was committed.
  • The suspect's DNA was found on tape used to gag the victim.
  • Based on this evidence, he was promptly arrested.

Now, factor in the very good luck of our suspect in today's story:

  • He had an alibi.
  • He was able to prove it beyond all doubt (i.e, it wasn't his mother claiming that he'd been with her the entire time – he was in a hospital).

In fact, he was nowhere near the scene at the time of the murder; nor was he ever at the scene.  Yet, he spent five months in jail before he was eventually exonerated.

This appears to be a bizarre case of transference.

Furthermore, DNA is not necessarily like snowflakes; sometimes, two samples are identical (at least within the range that law-enforcement would feel comfortable arresting and prosecuting a suspect).

The moral of this story?  We rely on science; but sometimes, science must also rely on us.

California’s SB 1303 Shines a Red Light on Challenging Traffic Camera Evidence as Hearsay

MP900401489Folks, I think this post is as simple as having you read this excerpt from Senate Bill 1303(3):

“(3) Existing law,
known as the hearsay rule, provides that, at a hearing, evidence of a
statement that was made other than by a witness while testifying at the
hearing and that is offered to prove the truth of the matter stated is
inadmissible, subject to specified exceptions. Existing law provides
that a printed representation of computer information, a computer
program, or images stored on a video or digital medium is presumed to be
an accurate representation of the computer information, computer
program, or images that it purports to
This bill would provide
that this presumption applies to the printed representation of
computer-generated information, video, or photographic images stored by
an automated traffic enforcement system. The bill would expressly state
that the printed representation of computer-generated information,
video, or photographic images stored by an automated traffic enforcement
system does not constitute an out-of-court hearsay statement by a

eDiscovery California: USDC – Northern District of California – Publishes New ESI Guidelines

MP900400507This news is so important to me – and most likely, to you as well – that I actually dropped what I was working on so I could bring it to you asap!  I wanted to make sure you’re aware of the implementation of these new ESI guidelines, which took effect yesterday.  Here’s the press release, and here’s a direct link to the guidelines page which includes a checklist and model stipulated order.

Attack on Mobile Location-Privacy ‘Warrants’ Review

MP900302888I always chuckle when I hear people refer to California as the 'land of fruits and nuts' and loudly proclaim that it's a 'liberal state'.  I concede, the state is blue – at least when one examines it at surface level – but when you drill down a little further, it's not quite that simple.

Example?  As far as privacy is concerned, you'd have better luck in Ohio (State v. Smith)…

Based on two events that took place this week, it's clear that California (or more accurately, the Governor of California) and the Federal government appear to be in lockstep re their attitude toward location privacy; they don't believe you're entitled to it.

Politics?  Of course, that always plays a role.  Lack of understanding of technology?  Let me put it this way; a lot of the arguments I see in support of the position against requiring a warrant go something like this:

"People are aware that their cellular devices disclose their location and, therefore, have no expectation of privacy."  Yes – in the same way that people who drive cars know how to rebuild the engines.  It's a self-serving argument, at best.  For the average Joe, a more honest side-by-side comparison is that people know how to plug in a charger about as well as they know how to insert a gas nozzle.

If you're worried about location privacy, I have two words for you – coarse location.

Case Got Your Tongue? Court Cases Aren’t Horse Races

MH900228831I understand we live in a ‘first-to-press’ world, and I further understand that – most of the time – it’s important to get a story out as soon as possible.  But, that doesn’t mix too well with judicial decisions.  In my view, you should treat them like a fine meal.

Allow some time to digest them.

So, this is why I didn’t jump on the predictive coding decision by Judge Peck in Monique Da Silva Moore, et al., v. Publicis Groupe & MSL Group, Civ. No. 11-1279 (ALC)(AJP) (S.D.N.Y. February 24, 2012).  The odds were, it would be contested and it is being contested; in rather strong language, I might add.  A lot of that language is being directed at the alleged misconduct of Judge Peck, himself, among others.  I’ve seen Judge Peck speak.  Water off a duck’s back, I suspect.

As some of my colleagues would say, “That’s litigation.”

Temper, Temper…

MP900149066Let's begin with the premise that the Internet makes it easier to…

Does your mind automatically think of positive attributes such as, 'communicate with others', 'market your business' or 'research virtually any topic'?  You'd be right about all of them.  Unfortunately, the Internet also makes it easier to:

Defame others.

There have been a trifecta of such cases in Georgia; and juries haven't been shy about awarding substantial (six-figure) damages.  What's the commonality?  They're all blogging cases.  The highest award of the three is $900,000 (The article says it's nearly ten-times what the plaintiff's sought – $48,000 – but isn't that nearly twenty-times?  Must be that new math…)

Yikes!  Did I mention how much I love you all?

People are taking – what used to be – vicious 'water cooler' gossip at worst and posting it online.  Unfortunately, in the eyes of the law, that creates an important distinction.  It changes an old case of slander (spoken statement, aka 'to the ear') into a new case of libel (written statement, aka 'to the eye').

Hint – libel is usually considered more serious.  Never mind the evidentiary advantages (you put your comments in writing), but people are much more apt to believe something written rather than spoken.  Why?  Because the perception is that someone wouldn't put an item in writing unless they had a reasonable level of confidence that it was true.

I guess they haven't been watching the primary contest, lately…

Four/Fifths of a Decision by the #SCOTUS

MP900403729OK; all of my chapters for the California State Bar book are submitted, I've returned from my trip to San Francisco for the Section Leadership Conference, and you all know what that means!

[Somebody, please tell me what it means…]

In theory, what I *think* it means is that I'll be able to resume posting relevant content two to three times per week.  In practice?  Stay tuned…

If you're a follower of the Supreme Court, and you're also someone who is very interested in rulings that affect privacy, and depending on which side you're on, then this week, you are either:

  • Happy that the 4th Amendment was protected, but angry that the 5th Amendment wasn't, or,
  • Angry that the 4th Amendment was protected, but happy that the 5th Amendment wasn't, or,
  • Happy about both, or angry about both.

It all depends on the facts.  In the Jones case, aka, the "GPS" case, the court decided that a physical intrusion onto private property to attach a GPS tracking device to a vehicle was a search as defined under the 4th Amendment.  Note the word, "physical".  If only it were that simple

What about tracking a GPS-enabled device?  That issue wasn't addressed, here (except for comments on it in concurring opinions).  If one enables GPS to drive to a location, is that a voluntary disclosure?  That'll be the next frontier.

In a lower-court decision, a federal judge in Colorado ordered a defendant in a criminal case to decrypt her laptop, stating that she was not afforded 5th Amendment protection against self-incrimination, setting off another round of debate – and an examination of conflicting rulings – that will likely meander its way to the Supreme Court.

The logic is of the kind that only law afficionados may appreciate; defendant doesn't technically have to give up her password because she only has to enter it into the system without divulging it to anyone.

In other words, "Don't give up your password…just give us access to everything the password protects."  That, along with the "All Writs Act" of 1789, should afford you some interesting reading on the case.

An interesting week for the Bill of Rights and privacy, indeed…

Fine’s ‘Old Ball & Chain’ May Result in a New Ball & Chain

By now, most of you are aware that the wife of assistant-basketball-coach Bernie Fine of Syracuse was recorded in what is the now-infamous, "I knew everything!" debacle.

MP900315546Didn't I just caution about the people closest to you?  Folks, the old world is over.  No matter the circumstances, you must always assume that you're being watched, recorded or tracked; even in the so-called privacy of your own home.  I've reached the point where I believe you must ask yourself, "Am I about to say/write something that could be construed as harmful?" before ever opening your mouth or sending a text or email.

It's impossible for me to get inside the head of a person to figure out what they were thinking – and if we delved into the moral aspects we'd never come to any resolution – but take this as another extreme example of what happens when private thoughts become public.

Think broadly.  This isn't just about one person.  The recording was made in 2002 and has apparently been in the possession of authorities for years.  It's Penn State all over again.

Heads will roll…and perhaps they should.

License to Pry

GR-RRR!Back to the future.  All-of-a-sudden, the term "1984" has become quite popular in the news, on TV and on a certain blog & Twitter feed you may be reading at the moment.  It started with the U.S. v. Jones case regarding warrantless GPS tracking.

But 'Jones' is child's play compared to what the District of Columbia is doing on a daily basis.  At least in Jones, the issue revolves around the government tracking specific vehicles for specific purposes.  In DC, they track the license plates of all of the vehicles, all of the time.  Not only that, they retain the database, sometimes for years.

I don't know whether to be in awe or appalled!  As a techno-weenie, I can't help but be fascinated by technology that can accomplish this; but that doesn't mean I lose sight of the obvious risks to privacy.  Examples?

The Good:  A crime is committed, a witness jots down a license plate and the authorities are able to input said plate into the database and locate the perpetrator.

The Bad:  A husband calls police to report his wife missing.  They input her license plate into the database, locate her vehicle in front of an apartment building – and discover she's having an affair.

The Ugly:  Talk amongst yourselves…

As has been the case so many times before, this capability may be used for good, evil, or with good intent that becomes inherently evil.

Of course, the same could be said of chocolate cake.  In moderation, it's great; but eat too much and you can make yourself sick.  The question is, who's going to be responsible for making sure we don't overindulge?