Group 14: Criminal Law: Evidentiary Issues
Regulating the Retention of Digital Data in Criminal Investigations
Jonathan Kerr, University of Baltimore
For most of this country’s history, information was seized by law enforcement in the form of the “papers” referred to in the text of the Fourth Amendment. The digital age has led to an exponential increase in the degree of information that can be seized, retained and then searched in criminal investigations. This has led to what has been described as ‘digital rummaging’ through data in search of evidence relating to different, unrelated crimes.
Courts have begun to recognize and grapple with questions arising from this. Once an investigation or prosecution for which data has been seized has been concluded, can the data be retained? If so, for how long and for what purpose? A consensus has yet to develop, but a pattern has emerged of treating digital data differently depending on whether it has been obtained by warrant or by way of a ‘consensual’ search. Legislatures that have begun regulating the destruction or sealing of seized electronic information have concentrated on information obtained pursuant to a warrant – including from third parties – and have again excluded that seized by consent.
This paper makes the case that standards are required to govern how digital information seized by law enforcement – whether by warrant or consent - should be regulated after it has been collected and used in the criminal investigation and/or prosecution for which it was originally sought. It will argue that such standards are necessary as part of the movement to adjust Fourth Amendment rules for the digital age.
Examination by Automation: A Critical Look at Emerging Technology in Forensic Firearm Evidence
In the late twentieth century, the boom of forensics in criminal prosecutions aided the rise of mass incarceration to an all-time high in the United States. In the decades that followed, scientific and legal inquiries revealed a disturbing truth – that the majority of forensic disciplines accepted routinely in criminal courts are entirely lacking in empirical support or scientific foundation. As the curtain was pulled back, champions of maligned forensic disciplines turned to novel technology. From facial recognition tools to DNA genotyping software, where we once saw police officers donning lab coats and microscopes, we now see computer algorithms, costly equipment, and proprietary trade secrets. But technology has masked rather than cured the fatal infirmities in these forensic fields. This article examines the trend of increasingly automated forensics through the lens of a specific discipline — emerging technology in firearm toolmark examination. First, this article demystifies how the technology works and places it in the historical context from which it evolved. Next, the article explores how the technology fails to correct for the foundational flaws in firearm examination methodology and instead obscures existing shortcomings while adding sources of mechanical and algorithmic error. Third, it surveys the landscape of legal challenges. Finally, the article proposes a path forward through legislative, evidentiary, and procedural reforms to further the integrity of forensic firearm evidence and protection of the rights of the criminally accused.