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Apple's Bark is Worse than its Bite

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Jessica Ford, MJLST Staff

Apple's iPhone tends to garner a great deal of excitement from its aficionados for its streamlined aspects and much resentment from users craving customization on their devices. Apple's newest smartphone model, the iPhone 6, is no exception. However, at Apple's September 9, 2014 iPhone 6 unveiling, Apple announced that the new iOS 8 operating system encrypts emails, photos, and contacts when a user assigns a passcode to the phone. Apple is unable to bypass a user's passcode under the new operating system and is accordingly unable to comply with government warrants demanding physical data extraction from iOS 8 devices.

The director of the FBI, James Comey, has already voiced concerns that this lack of access to iOS 8 devices could prevent the government from gathering information on a terror attack or child kidnappings.

Comey is not the only one to criticize Apple's apparent attempt to bypass legal court orders and warrants. Orin Kerr, a criminal procedure and computer crime law professor at The George Washington University Law School, worries that this could essentially nullify the Supreme Court's finding in Riley v. California this year which requires the police to have a warrant before searching and seizing the contents of an arrested individual's cell phone.

However, phone calls and text messages are not encrypted, and law enforcement can gain access to that data by serving a warrant upon wireless carriers. Law enforcement can also tap and monitor cellphones by going through the same process. Any data backed to iCloud, including iMessages and photos, can be accessed under a warrant. The only data that law enforcement would not be able to access without a passcode is data normally backed up to iCloud that still remains on the device.

While security agencies argue otherwise, iOS 8 seems far from rendering Riley's warrants useless. Law enforcement still has several viable options to gain information with a warrant. Furthermore, the Supreme Court has already made it clear that it does not find that the public's interest in solving or preventing crimes outweighs the public's interest in privacy of phone data, even when there is a chance that the data on a cell phone at issue will be encrypted once the passcode locks the phone,

"[I]n situations in which . . . an officer discovers an unlocked phone, it is not clear that the ability to conduct a warrantless search would make much of a difference. The need to effect the arrest, secure the scene, and tend to other pressuring matters means that law enforcement officers may well not be able to turn their attention to a cell phone right away . . . . If 'the police are truly confronted with a 'now or never' situation,' . . . they may be able to rely on exigent circumstances to search the phone immediately . . . . Or, if officers happen to seize a phone in an unlocked state, they may be able to disable a phone's automatic-lock feature in order to prevent the phone from locking and encrypting data . . . . Such a preventive measure could be analyzed under the principles set forth in our decision in McArthur, 531 U.S. 326, 121 S.Ct. 946, which approved officers' reasonable steps to secure a scene to preserve evidence while they awaited a warrant." (citations omitted) Riley v. California, 134 S. Ct. 2473, 2487-88 (2014).

With all the legal recourse that remains open, it appears somewhat hasty for the paragon-of-virtue FBI to be crying "big bad wolf."

Jennifer Warfield, MJLST Staff

In "Constitutionalizing Email Privacy by Information Access" from Volume 9, Issue 1 of the Minnesota Journal of Law, Science, & Technology, Manish Kumar discussed the unique Fourth Amendment issues raised by governmental access to electronic communications, specifically emails. Similar privacy issues are now being analyzed and reviewed by the Supreme Court in the context of warrantless searches of cell phones by law enforcement in two cases: Riley v. California, No. 13-132 and United States v. Wurie, No. 13-212.

The courts have traditionally allowed warrantless searches pursuant to the Search of Person Incident to Arrest (SPIA) exception to the Fourth Amendment. Under this doctrine a police officer may search an arrestee's person incident to the arrest and seize and search any personal property in his or her possession at the time of the arrest. Such searches are justified under the theory that they protect officers by allowing them to search for weapons and preserve evidence. The Fourth, Fifth, Seventh, and Tenth Circuits have upheld warrantless searches of cell phones under the SPIA doctrine on the grounds that a cell phone is analogous to a container like a backpack or wallet, which the Supreme Court has long deemed searchable. Other courts have held that modern cell phones cannot be compared to traditional containers given the vast amount of sensitive data contained within them, and that less intrusive measures can be used in the name of data preservation such as Faraday Bags or "airplane mode," which both prevent internet signals from reaching a phone to prevent remote wiping.

The specific issues before the Supreme Court in Riley and Wurie are respectively: 1) whether the Defendant's Fourth Amendment rights were violated when he was convicted for attempted murder based on the police's search of his smartphone after he was pulled over for having an expired auto registration; and 2) whether evidence gathered after the police inspected a drug dealer's call log should have been thrown out by the federal appeals court in Boston. These cases provide the Supreme Court an opportunity to clarify the meaning of the Fourth Amendment in the age of smartphones, and will shed light on how similar devices like tablets and laptops will be treated by courts and police officers in the future.

Crime and Treatment: A Creative Drug Policy

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by Shirshira Kother, MJLST Staff

In our society, it seems as though drug addiction is a commonality for prison inmates. It tends to play some role in every crime scene and horrific headline that we hear about. Drugs have been a driving force for many criminals because it significantly alters their decision-making and ultimately affects their actions. While there is no mistake that those who act under the influence of drugs will be subject to justice system, there perhaps a better way to discourage this behavior by redefining addiction.

An article titled Why Neuroscience Matters for Rational Drug Policy in volume 11 of the Minnesota Journal of Law, Science and Technology, explores the possibility of addiction as a neurological problem that may be solved by specific treatment to rewire an individual's brain. David M. Eagleman, Mark A. Correro & Jyotpal Singh analyze how consistent use of chemical substances destruct areas of the brain that control voluntary actions.

by Becky Huting, UMN Law Student, MJLST Staff

In MJLST Volume 14, Issue 2, Rachel Diasco-Villa explored the evidentiary standard for arson investigation. Ms. Diasco-Villa, a lecturer at the School of Criminology and Criminal Justice at Griffith University, examined the history of arson-investigation knowledge, and how the manner in which it is conveyed in court can mislead, possibly leading to faulty conclusions and wrongful convictions. The article discussed the case of Todd Willingham, who was convicted and sentenced to death for setting fire to his home and killing his three children. Willingham had filed numerous unsuccessful appeals and petitions for clemency, and several years after his execution, a commission's investigation concluded that there were several alternative explanations as to the cause of the fire, and that neither the investigation nor the evidence testimony were compliant with existing standards.

During the trial, the prosecutor's fire expert, a Deputy Fire Marshall from the State Fire Marshall's Office, testified as to why he believed the fire was set by arson. Little science was used in his explanation:

Heat rises. In the winter time when you are going to the bathroom and you don't have any carpet on the rug. . .the floor is colder than the ceiling. It always is. . . So when I found that floor is hotter than the ceiling, that's backwards, upside down. . .The only reason that the floor is hotter is because there was an accelerant. That's the difference. Man made it hotter or woman or whatever.

The expert went on to explain that fire investigations and fire dynamics are logical and common sense, such that jurors themselves could evaluate with their sense and experiences to arrive at the same conclusions. All samples taken from "suspicious" areas of the house tested negative for any traces of an accelerant. The expert explained the chemical results: "And so there won't be any -- anything left; it will burn up."

Fire and arson investigation has traditionally been experiential knowledge, passed down from mentors to their apprentices without experimental or scientific testing to validate their claims. Fire investigators do not necessarily have scientific training, nor is it necessary for them to hold a higher educational degree beyond a high school diploma. The National Academy of Science released a report in 2009 stating that the forensic sciences needed standardized reporting of their findings and testimony, and fire and arson investigation was no exception. The International Association of Arson Investigators has pushed back on such guidance, having filed an amicus brief arguing that arson investigation is experience-based and not novel or scientific, so it should not be subjected to higher evidentiary standards. This argument failed to convince the court, which ruled that fire investigation expertise should be subject to scrutiny under the Daubert standards that call for exacting measures of reliability.

Ms. Diasco-Villa's note also considers the risk of contextual bias and overreach, should these experts' testimony be admitted. In the Willingham case, the expert was given wide latitude as to his opinion on the defendant's guilt or innocence. He was allowed to testify as to his belief that the suspect's intent "was to kill the little girls" and identify the defendant by name as the individual who started the fire. Under Federal Rules of Evidence section 702, expert witnesses are given a certain degree of latitude in stating their opinions, but the author was concerned with the risk of jurors giving extra weight to this arguably overreaching testimony by expert witnesses.

She concluded by presenting statistics concerning the vast number of fires in the United States each year (1.6 million), and the significant quantity that are classified as having been intentionally set (43,000). There is a very real potential that thousands of arrests and convictions each year may have relied on overreaching testimony or evidence collected and interpreted using a defunct methodology. This state of affairs in arson investigations warrants continued improvements in forensic science techniques and evidentiary standards.

by Sabrina Ly

Thumbnail-Sabrina-Ly.jpg On February 25, 2013, an article was published in The Dartmouth describing the implementation of its Committee for the Protection of Human Subjects. The purpose of the committee is to answer ethical questions and review proposals regarding human subjects participating in research at Dartmouth College. The committee is comprised of experts and community members "who analyze the risk posed to participants by Dartmouth-affiliated researchers' studies." The timing of its creation could be coincidental, but may have been in response to legal action taken against Boston College subpoening confidential data provided by research participants in the "Belfast Project" in 2012.

Prior to interviews taking place as part of the Belfast Project, researchers promised interviewees that their identities and information contained in the transcripts would not be released until after their deaths. However, upon discovering the existence of the transcripts, British law enforcement worked with the U.S. Department of Justice to subpoena the transcripts to use in its criminal proceedings. This raised significant ethical issues pitting the needs of law enforcement against the need for participant confidentiality in certain research that benefits the public.

by Eric Maloney, UMN Law Student, MJLST Staff

Thumbnail-Eric-Maloney.jpgFacebook has become a part of everyday life for people around the world. According to Mark Zuckerberg and Co., over one billion people (yes, with a "B") are active on Facebook every month, with an average of more than 600 million active users every day in December 2012. Disregarding bogus or duplicate accounts, that means roughly one-seventh of the entire human population is active on Facebook every month (with the world population currently sitting somewhere in the neighborhood of seven billion people).

Apparently, Facebook has become so commonplace and ingrained in the daily routine of some that they feel the need to use the social networking service from the privacy of their prison cells.

Chimeras in DNA Forensic Testing: What to do?

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by Ryan J. Connell, UMN Law Student, MJLST Staff

Thumbnail-Ryan-Connell.jpgThe answer as suggested in an essay titled Chimeric Criminals by David H. Kaye in the current issue of the Minnesota Journal of Law, Science and Technology is not to worry about it too much.

The article criticizes the book Genetic Justice: DNA Databanks, Criminal Investigations, and Civil Liberties by Sheldon Krimsky and Tania Simoncelli. The book has latched on to a particular genetic anomaly referred to as chimerism. Chimerism denotes the presence of two genetically distinct cell lines in the human body. The authors of Genetic Justice want to use this rare condition to show that the supposed assumption that DNA profiling is infallible is incorrect.