Tagged: internet search history

Caveat Chatter: Digital Communication and Mens Rea in United States v. Valle

POST WRITTEN BY: Jake B. Sher (’16), Pace Law School

JSher_valle imageIn a recent post, we discussed issues of mens rea as they related to internet search history. Digital communications, however, have also recently come under scrutiny. In the hands of an adroit prosecutor, they are equally as revealing and equally powerful evidence as an individual’s internet search history.  Yet, when the prosecution relies exclusively on online communications to prove a defendant’s mens rea beyond a reasonable doubt, a skilled defense team may be able to raise issues surrounding the actual context of the communications that may preclude a conviction.

In an opinion and order issued on June 30, 2014 Judge Paul Gardephe of the Southern District of New York conditionally granted former NYPD Officer Gilberto Valle’s motion for a new trial on his conviction for conspiracy to commit kidnapping. The prosecution relied heavily on a mountain’s worth of digital communications between Valle and his alleged co-conspirators. Unfortunately, none of the evidence against Valle had any corroboration outside of the electronic world, and Valle never finalized any of his alleged “plans.” As a result, Valle’s defense counsel contended that his online activities constituted morbid fantasy role-playing, not conspiracy. The government conceded that some of Valle’s communications were fantastical, but argued that some were manifestations of Valle’s specific intent to commit the alleged crime of kidnapping.

Judge Gardephe observed that “Valle’s depraved, misogynistic … fantasies about his wife, former college classmates, and acquaintances undoubtedly reflect a mind diseased.” United States v. Valle, No. 12 Cr. 847 (PGG), 2014 WL 2980256, 2014 U.S. Dist. LEXIS 89650 (S.D.N.Y. June 30, 2014). His observation notwithstanding, however, the judge granted Valle’s motion for a new trial. He did so based on the theory that the government neither demonstrated proof beyond a reasonable doubt that Valle’s chats reflected true criminal intent as opposed to fantasy role-play, and that the government’s evidence was insufficient to distinguish the real communications from the conceded fantasy communications. (emphasis added). In Valle, the Court wrote:

Valle’s visits to Internet sites devoted to death, violence, and kidnapping; his possession of images depicting acts of sexual violence against women; his computer searches regarding kidnapping methods; and his 89 computer folders containing Facebook images of women he knew, all graphically illustrate his depraved interests.  The Government did not, however, meet its burden … the Government offered no evidence that would have permitted a reasonable juror to determine whether someone who is truly interested in kidnapping a woman would be more likely to engage in these activities than someone who is merely interested in fantasizing about kidnapping and committing acts of sexual violence against women.

Even digital communications that may appear damningly unassailable require corroboration or further investigation. As Learned Hand once ruminated, “it does not follow, because a jury might have found [the defendant] guilty of the substantive offence, that they were justified in finding him guilty of a conspiracy to commit it.” United States v. Crimmins, 123 F.2d 271, 273 (2d Cir. 1941).

Proof of mens rea may require something more than digital evidence alone, even if a jury is convinced of a defendant’s guilt. As a result, the prosecution in Valle fell short of building their case for a conviction as a matter of law, a fact that Valle’s attorneys managed to exploit in floating an argument sufficient to warrant a re-trial.

Cases and Related Readings:

The Electronic Footprints of the Mind: Justin Ross Harris, Search History, and Mens Rea

POST WRITTEN BY: Jake B. Sher (’16), Pace Law School

ImageThe District Attorneys of the Information Age have a new tool at their disposal: the internet search histories of their defendants. Used correctly, this tool can grant unprecedented insight into an individual’s mental state regarding an alleged crime. The most recent debate on the issue involves Justin Ross Harris, whose high-profile case about his son’s death by exposure initially suggested a negligent mens rea at best. Investigators got a hold of the internet search history and cell phone data, finding evidence that Harris was communicating with several women while his son was still alive in the vehicle, and allegedly had looked at websites that advocated against having children. Harris’ acts have subjected him to murder charges.

The use of internet search history to secure a conviction is undoubtedly a powerful tool, and its use is nothing new. For instance, Melanie McGuire’s searches for “how to purchase guns?” and “how to commit murder;” Steven Zirko’s extensive search history, or Jared Lee Loughner’s “assassin” research.

Taken in context, internet searches can give important insights into the mind of the individual conducting the search. Taken out of context, however, a person’s internet search history may result in a wrongful conviction. The Eastern District of Wisconsin granted a prisoner’s habeas corpus petition, releasing him from a life sentence for his wife’s murder where his alleged internet search history for “ethelyne glycol poisoning” occurred on the morning of his wife’s death.  The District Court cast doubt on the reliability of the search history for purposes of determining intent, particularly in the context of letters and reports to police suggesting Mrs. Jensen’s concerns about his internet search history. The District Court determined that the admission of such evidence to the exclusion of evidence suggesting Mrs. Jensen was suicidal and had access to Mr. Jensen’s computer at the time that the internet search occurred constituted a violation of the defendant’s Sixth Amendment rights:

… viewed in isolation, the State’s computer evidence against Jensen was quite convincing. But that was not the only evidence the jury heard about the computer. The jury also heard Jensen’s statement to one of the investigators in which he denied any knowledge of the searches for poison and claimed that Julie also used the computer and accessed the internet, information that was confirmed by one of Julie’s friends … Jensen told the investigator that the computer was not password protected and that Julie entered information on a financial program called Quicken and was interested in medical information. … The defense pointed out evidence in the internet history of a search for “suicide” on November 10, 2008, which was also the first day on which the word ethylene glycol appears in the internet history.

Jensen v. Schwochert, No. 11-C-00803, 2013 WL 6708767, 2013 U.S. Dist. LEXIS 177420  (E.D. Wis. Dec. 18, 2013). (Court’s Official Copy)

Searches by individuals online create inadvertent communication between the searching individual and the corporation owning and operating the search engine. It is important to note that the evidence unearthed from internet data may provide just enough information to obfuscate the truth. As Orin S. Kerr stated with regards to digital evidence,

communications normally will not indicate who or what sent or received them, or the context in which they were sent or received.

While internet search histories are helpful tools for obtaining circumstantial evidence regarding the individual’s state of mind conducting the search, they are imperfect vehicles in that process; courts must balance their admission against the Constitutional Rights of the individual conducting the search. In our continued pursuit of the equitable administration of justice in the Internet Age, the words of Justice Cardozo remain resonant:

When the risk of confusion is so great as to upset the balance of advantage, the evidence goes out.

Shepard v. United States, 290 U.S. 96, 104 (1933).

Related Readings: