Tagged: evidence

Amazon Echo and Privacy Issues: What You Can Say Can Be Used Against You

WRITTEN BY: Anjelica Cappellino, Esq. & Prof. John Meringolo, Esq.

The Amazon Echo, a “smart speaker” device responsive to voice commands, was one of Amazon’s best selling products this holiday season. With millions sold worldwide, the Echo, and other similar “smart home” products, are becoming mainstays in any tech-savvy home. But while the Echo has many uses – it streams music, reads audio books, tells the weather forecast, and syncs to nearly any other electronic device you can think of – it is also potentially causing serious privacy concerns. Strangely enough, a murder case in Arkansas, to which the Echo may have been a “witness,” is bringing the issue of “smart” devices and privacy to the forefront of criminal and constitutional law.

In 2016, the body of Victor Collins was found floating in a hot tub at a friend’s home in Arkansas. The friend, James Andrew Bates, was charged with murder. An Echo device was found on Bates’ property, and prosecutors requested the court to compel Amazon to provide data from the Echo that may reveal more information about the events that led up to Collins’ murder. In August 2016, the judge signed a search warrant requesting all “audio recordings, transcribed records, text records and other data” on Bates’ Echo, however Amazon has yet to fully comply. An Amazon spokesperson released a statement that the company “will not release customer information without a valid and binding legal demand,” and it objected to “overbroad or otherwise inappropriate demands as a matter of course.”

Whether Amazon produces the requested data might have far-reaching implications regarding the privacy of the millions of people that use the Echo. As a case of first impression, the issues surrounding this criminal prosecution will set precedent for how future criminal matters will handle the discovery and admissibility of such information.

What Can the Echo Uncover?

The Amazon Echo offers a wide variety of functions by voice command. Responding to the name “Alexa,” the user can ask the device simple questions (such as the weather report) or more involved queries (such as recipe instructions). Once the Echo hears “Alexa” (or another activation phrase set up by the user), it begins to record. The user’s commands or questions are then sent to Amazon’s cloud servers, where the recorded snippet is run through a speech-recognition neural network. At that point, a response to the user’s command or query is sent back through the Echo. Amazon keeps all of the recordings of the user’s questions and commands. However, audio is only saved after the keyword – usually “Alexa” – is spoken and triggers the recording device. Users can elect to delete their old voice recordings on Amazon’s website or through the Echo app on their phone. In addition, the Echo has a “hard mute,” which physically disconnects the microphone, making it impossible to record audio.

Amazon does not have a stated policy about how long it holds onto such data. The Echo itself does not have large hard drive space, so only very little information is stored on the actual device. Therefore, the only means of obtaining any pertinent data from the device is through Amazon and its cloud storage.

Constitutional Implications

There are many constitutional implications of such a device being used against a person in a court of law – the first and foremost concern being one’s reasonable expectation of privacy in his home. As most citizens are aware, the Fourth Amendment protects against unreasonable searches and seizures. But what constitutes unreasonable in the case of electronic devices in the home? A search is considered reasonable if the government obtains a valid search warrant and demonstrates probable cause that the search is sufficiently particular. This showing is beyond a mere suspicion and must be based on reasonable grounds. As we have seen in the past decade or so, search warrants for cell phones and social media accounts (i.e., Facebook, Twitter, and Instagram) have composed a large portion of search warrant requests. Some proponents of releasing the Echo’s data would argue that the device is no different than the other electronic devices and applications that have come before it. However, it is important to note that unlike a cell phone or Facebook account, the Echo’s main purpose is not to communicate with others. Rather, it is more autonomous, focusing only on the user’s own commands, queries, and personal home activities. While search warrants usually request cell phone records and Facebook information to ascertain a person’s communications with others, the Echo device is a record of the owner’s communications with himself. To argue a sufficiently particular reason why the Echo would contain incriminating evidence against another is essentially saying opening the door for the discovery of any other form of home monitoring.

If the Echo can solve a murder, many would argue Amazon’s release of such information would be a noble cause. And if the courts can narrow the application of such search warrants so that they are sufficiently particular to the information sought (i.e., a recording of the suspect and victim), then even better. However, the multitude of the Echo’s uses can lead down a slippery slope beyond murder investigation, resulting in unreasonable invasions of privacy. Depending upon one’s tech savvy, some Echo devices are used to regulate nearly every function of the home. For example, the Echo integrates with a variety of other home automation smart devices, which enables the user to control a range of utilities in the home such as lighting, security systems, and electricity. If the Echo is connected to these devices, it can contain vast information that may be used in the prosecution of crimes. Incidentally, in the Bates’ case, information obtained from his “smart meter” showed that he used “excessive amount of water” during the time of the victim’s death. But such circumstantial evidence need not be used only in murder investigations. Potentially, with such information readily available and streamlined to one’s device, an Echo can just as easily expose its owner for far lesser offenses such as meter tampering and illegal cable rigging, just to name a few. Could it get to a point where Echos are routinely sought in civil proceedings as well?

The technological advancements we have witnessed in the past decade alone are astonishing. And understandably so, such innovations may need to be considered for evidentiary purposes in a court of law. Whatever Amazon chooses to do with the Echo’s data will be just the beginning. It is incumbent upon the courts to ensure that production of information is narrowly applied to fit the particular circumstances of the case. Otherwise, the threat of unreasonably invading one’s privacy in the home will become imminent.

Federal Monitoring of State Prosecutors: Who Will Guard the Guardians?

juvenalPOST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

The lead editorial in the New York Times of June 6, 2016 addresses an important issue: the all-too-frequent failure or resistance of prosecutors to comply with their constitutional obligation to produce to the defense evidence in their possession that is potentially exculpatory or mitigating for a defendant. To address this issue, the editorial suggests that the United States Department of Justice should monitor the practices of district attorneys’ offices in which such problems have arisen in the past.

This proposal may have merit, but it contains at least one troubling issue indicated in the editorial’s title: “To Stop Bad Prosecutors, Call the Feds.” This title and the editorial’s text suggest that the problem at issue is entirely or primarily the fault of local district attorneys’ offices and that such problems are absent or de minimis in the offices of federal prosecutors.

The editorial’s concern for fairness to individuals facing state criminal charges is to be applauded, but its proposal raises questions regarding federal prosecutors, who themselves are members of the Department of Justice, the department that would conduct the oversight. Will federal overseers, eager to advance their careers, monitor prosecutors in their own department as carefully as they review prosecutors in state offices? Will the Department’s oversight mandate be limited to local district attorneys’ offices? If so, will this foster an idea that federal prosecutors are exempt from scrutiny regarding their compliance with Brady v. Maryland?

In considering the editorial’s proposal, it is perhaps worth remembering an old question asked by the Roman poet Juvenal: Quis custodiet ipsos custodes? Who will guard the guardians?

Related Readings:

NYCA Upholds Use of Prior Bad Act Evidence to Rebut EED Claim

POST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

Pursuant to N.Y. Penal Law § 125.25 (1)(a), a defendant charged with intentional murder may present an affirmative defense that at the time of the killing he suffered from an “extreme emotional disturbance” (EED) for which there is “a reasonable explanation or excuse.” If a preponderance of evidence supports this defense, defendant will be convicted of manslaughter, rather than murder.

The NY Court of Appeals has reviewed a dozen or so cases on the potential merits of an EED claim. Most of these presented the issue of whether the trial judge erred by declining defendant’s request to charge the jury on an EED defense. In a November 18, 2015, decision the Court of Appeals reviewed the case of People v. Israel, 2015 N.Y. Slip Op. 08370, in which the trial court did charge the jury on defendant’s EED claim, but the jury rejected it.

The key facts in Israel were that in June 2007 the defendant, upon seeing a friend chased and threatened by several men, fired a gun multiple times at the pursuers, killing one of them. With respect to the killing, the prosecution introduced alternative counts of intentional murder and depraved indifference murder. Note, however, that Penal Law permits an EED defense for an intentional murder charge but not for depraved indifference murder.

At trial in support of his EED claim, the defendant called a psychiatrist, who opined that defendant suffered (untreated) post-traumatic stress disorder (PTSD) as a result of an altercation defendant had with two men in October 2005, during which defendant was stabbed eight times in the back. The expert testified that defendant reacted violently in June 2007 because his PTSD was triggered when he saw his friend being chased and attacked. The expert further testified that defendant was “not a violent person by nature” and had no “significant history of having done violent acts.”

To contest the claim that defendant’s action in June 2007 was attributable solely to the PTSD, the prosecution cross-examined the psychiatrist about two incidents prior to the stabbing and about one that occurred in 2010, in all of which defendant reacted violently with little or no provocation. Regarding the 2010 incident, the prosecution subsequently called to the stand a corrections officer, who testified that while defendant was incarcerated in August 2010, he smashed an inmate telephone in anger and threatened the officer.

In People v. Israel, the jury rejected defendant’s EED argument and convicted him of intentional murder for killing one of his friend’s pursuers and of attempted murder for firing at police officers who came to the scene.

The issue on appeal at the Appellate Division, First Department was whether the trial judge erred by allowing the prosecutor to cross-examine witnesses about the defendant’s other bad acts and to present testimony about the 2010 prison incident. As I wrote earlier, to be admissible such evidence must relate to a material issue and must not be used to show defendant’s propensity to commit wrongful acts.

The Court of Appeals unanimously held that by making an EED claim, defendant raised a material issue about his state of mind at the time of the killing and thus “opened the door” to rebuttal about whether PTSD was the sole reason for his actions at that time. Noting that objection to evidence of one of the two prior bad acts had effectively been waived at trial, the Court found that the prosecutor’s questions about defendant’s other bad act prior to his stabbing were for consideration, as the trial judge made clear in limiting instruction to the jury, only to the issue raised by defendant about his state of mind at the time of the killing and not for evidence of propensity.

The Court did agree with defendant that the trial court erred in admitting evidence of the 2010 prison incident (three years after the crime charged) because the focus of an EED defense must be on whether defendant was suffering from an EED at the time of the crime charged. This evidence should have been excluded as pointing only to propensity, but the Court held this error harmless because other admissible evidence showed “overwhelming” proof and affirmed defendant’s conviction.

Related Readings:

NY Court of Appeals Decision on Evidence of Prior Bad Acts

POST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

Federal and state law demand careful scrutiny of a prosecutor’s attempt to introduce evidence of a defendant’s bad acts committed prior to, and unrelated to, the crime charged. Such scrutiny is necessary because of the danger that the prior bad act will be taken as proving the defendant guilty of the crime charged, simply because of defendant’s purported propensity to commit crime, thus taking attention away from the evidence relating to the specific charge under consideration. Caution regarding prior bad act evidence is especially necessary in jury trials, but the law imposes cautionary rules even when the fact finder is a judge.

The New York Court of Appeals has confronted this issue many times and did so again recently in People v. Denson. In this case, the prosecution pursued charges against a man who made repeated attempts to meet with a ten-year old girl who lived in an apartment in a building in which the defendant worked. These attempts included defendant’s offer to provide the girl with the keys to his apartment; this offer, and all defendant’s other offers to meet – made on at least thirty occasions – were rejected by the girl.

The prosecutor obtained a grand jury indictment against the defendant on charges of attempted kidnapping in the second degree under N.Y. Penal Law §§ 110.00 and 135.20, and endangering the welfare of a child under N.Y. Penal Law § 260.10(1). To support the intent element of the attempted kidnapping charge, the prosecutor sought to introduce evidence of defendant’s 1978 sodomy conviction relating to sexual abuse of his stepdaughter. The prosecution’s theory was that because the victim of the prior case and the potential victim in the case at hand were both young girls and because the prior case involved sexual abuse, the evidence of defendant’s prior conviction was probative to show that he intended to abduct the girl in the case at hand for similar sexual abuse.

Upon the trial judge’s initial rejection of this evidence, the prosecution renewed its request through a hearing in which it presented expert testimony in support of the theory that defendant’s actions in the prior case and in the case at hand showed a pattern of criminal conduct with criminal intention against young girls. The defense provided testimony of its own expert in rebuttal. After the hearing, the judge admitted the evidence of the 1978 conviction, finding it probative evidence of intent, which the law allows as an exception to the rule against evidence of prior bad acts.

After trial in which, among other testimony, both experts testified, the judge, as fact finder in this nonjury trial, convicted the defendant on both charges. On appeal to the Appellate Division, First Department, the convictions were affirmed by a divided vote.

In a decision issued on October 27, 2015, a 5-1 majority of the New York Court of Appeals affirmed the convictions, concluding that the trial court did not abuse its discretion by considering evidence of defendant’s prior conviction. The majority considered that the judge had reason to find this evidence as probative for the issue of defendant’s intent and that such evidence outweighed the danger of prejudice based on propensity.

Judge Eugene Pigott dissented. In his view, the trial court abused its discretion in considering the 1978 sex crime conviction because in the case at hand “no sex crime was involved or charged.” Judge Pigott added that the prior conviction could not be “relevant to show that defendant intended to kidnap the child, as his prior conviction did not include any kidnaping.”

Related Reading:

NY Court of Appeals Overturns a Murder Conviction Because of Ineffective Assistance of Counsel

POST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

On July 1, 2015, the N.Y. Court of Appeals issued a 5-1 ruling regarding a prosecutor’s comments on summation that may overstate the probative value of DNA evidence presented at trial and defense counsel’s obligation to object to such comments. People v. Wright, No. 109, 2015 N.Y. Slip Op. 05621 (July 1, 2015).

The case involved the murder and alleged rape of a woman in Rochester, N.Y., who was found dead of strangulation by means of a ligature, shortly after she had sexual intercourse. A Monroe County prosecutor pursued charges of intentional murder, felony murder, and rape. Defense counsel admitted in opening statement that defendant had intercourse with the victim around the time in question, but argued that this intercourse was consensual. Counsel also vigorously opposed the murder charges.

In its case in chief, the prosecution called three expert witnesses who testified about the potential scientific value in general of the different methods of DNA testing they employed. The experts also carefully explained the limited probative value that could be deduced from their analysis of the ligature and items relating to the victim’s sexual intercourse.

The jury rejected the rape and felony murder charges, but convicted the defendant of intentional murder, pursuant to Penal Law § 125.25(1). The trial court imposed a sentence of 25 years to life. By a 3-2 vote, the Appellate Division affirmed. People v. Wright, 982 N.Y.S. 2d 219, 115  A.D. 3d 1257 (App. Div. 4th Dep’t 2014).

In the July 1 ruling, all six Court of Appeals judges who participated in the case (including especially dissenting Judge Eugene Pigott) credited defense counsel for effectively eliciting from the prosecution’s expert witnesses during cross-examination the limited probative value their testimony provided regarding identifying the defendant as the person possibly responsible for the murder. The appeal therefore focused decisively on statements made by the prosecution on summation and defense counsel’s response (or lack thereof) to such comments.

Upon review of the record, the Court’s majority held that during summation the prosecution prejudicially overstated the probative value of the DNA evidence its own witnesses provided relating to the circumstances of the case. The Court identified several instances in which the prosecutor told the jury that expert testimony conclusively showed that defendant’s DNA was a match for that found on the ligature. The Court noted that these comments contravened what the experts had in fact stated: that DNA analysis was only able to show that the defendant’s DNA could not be excluded from that found on the ligature.

The Court determined that the prosecutor’s “apparent intent was to persuade the jury that the DNA established that defendant had committed the rape and murder, when the evidence did not, and could not, dispositively establish his guilt.” The Court further held that defense counsel provided ineffective assistance because it could not identify any tactical reason to excuse counsel’s “multiple failures” to object to the prosecutor’s “numerous misrepresentations of the evidence.”

In support of its ruling, the majority noted the significant impact that DNA evidence may have on a jury’s deliberations. It further concluded that aside from the expert testimony, evidence produced at trial was insufficient to support defendant’s conviction for second degree murder. Accordingly, the Court reversed the Appellate Division and remanded the case for a new trial.