When you hear the word “FitBit,” you usually associate the physical activity monitor with fitness; however, after a recent case in Canada, FitBit might very well be associated with personal injury evidence used in Litigation.

In a personal injury case in Calgary, Canada, the law firm of Mcleod Law is using the plaintiff’s FitBit activity to support her personal injury claim. The plaintiff, who was a personal trainer, was injured in an accident four years ago. The attorneys representing her are seeking to demonstrate that her activity levels are lower than the baseline of a woman her age and profession, in order to prove damages. Among other things, Fitbit monitors physical activity by measuring steps taken by the individual wearing the device. The plaintiff’s attorneys hope to formulate a ‘quantitative representation of the claimant’s activity during their normal weekly routine.’

Logistically, the law firm is not using the raw FitBit data, but will be using analytics company Vivameterica to analyze such data. This company will analyze the plaintiff’s information and compare the data to other databases showing average activity of an individual with similar weight, age, gender, body mass index, etc.

This case is the first of its kind in that it could set a precedent for evidence of personal data collected through wearable devices in personal injury cases; however, there are many out there who are skeptical of this type of data being used in the courtroom.

Skeptics are concerned that this kind of data could lead to potential manipulation on the part of the plaintiffs, as well as false representations of activity. For example, if a plaintiff knows their FitBit data will be analyzed in court, they might be overly active so that there wearable device could pick up on such activity, in order to prove damages. In the alternative, individuals take off their Fitbit device throughout the day for various reasons. This could lead to a false read of an individual’s true physical activity.

Although this type of evidence does raise some issues, it could be an excellent tool for attorneys in proving damages, or in the alternative, for mitigating such damages. As technology advances, so too must our litigation system. It is very possible that we will be seeing data from wearable devices being used in the future.

Melissa Klafter

Melissa Klafter has a JD from St. John’s University School of Law and plans to pursue a career in Personal Injury Law. You can find her binge-watching her favorite TV shows, rooting for the Wisconsin Badgers, and playing with her kitty, Phoebe. Contact Melissa at staff@LawStreetMedia.com.

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Is it Thursday yet? #Serial

— Frank Lantz (@flantz) October 22, 2014

You’ve probably come across a tweet like the above on your timeline recently.  You click on that hashtag and fall down a rabbit hole. For the uninitiated, Serial is a podcast from the producers of This American Life that takes one true story and methodically unpacks it, week after week, immersing the listener and letting us in on narrator Sarah Koenig’s inner reflections, doubts, and evolving theories. It has brought about the phenomenon of mass binge-listening that, as the Wall Street Journal noted, harkens back to “the golden age of radio.”

In the first season that started in October, Serial delves into the 1999 murder of a Baltimore high-school student, Hae Min Lee, and the conviction of her ex-boyfriend, Adnan Syed, a seemingly exemplary student-athlete, for first degree murder. In episode one we learn that Syed’s conviction rests almost entirely on the (inconsistent) testimony of a friend named Jay, who pled guilty to an accessory charge for helping Syed bury the body. In interviews with Koenig 14 years after his conviction, Syed maintains his innocence and emphatically defends this position pointing to the prosecution’s lack of physical evidence tying him to the murder.  As each episode peels back a layer and reveals more, your conscience is yanked between disbelief that Adnan is capable of such a crime and the realization that he may, in fact, be guilty.

While this tension drives compelling “true crime” stories, the success of Serial is equally attributable to the fact that it challenges our understanding of how the justice system works. There’s a moment in episode eight of Serial where Koenig asks a former D.C. homicide detective, Jim Trainum, why detectives seemed to dismiss the inconsistencies in Jay’s testimony. Trainum says, “You don’t want to do something if it’s going to go against your theory of the case.” He tells Koenig, who is now incredulous and wondering where the truth fits in, “Rather than trying to get to the truth, what you’re trying to do is build your case and make it the strongest case possible.”

Ignoring inconsistencies when a witness’ story jibes with law enforcement’s theory of the case is what’s known as a ‘verification bias.’ The question then becomes how much of that bias is informed by stereotypes? Syed is a Muslim-American of Pakistani descent and the prosecution’s theory invoked his religious upbringing to suggest that he was torn between two worlds, and that he could be “possessive” and “controlling.” To a jury, the narrative that emerged may have resonated with stereotypes it had about Muslim men being controlling, and tipped the scale in favor of erasing any reasonable doubt of his guilt. In episode seven, Deirdre Enright, a lawyer with the Innocence Project, echoes this concern and her team notes several pieces of evidence found at the scene of the crime that were not subjected to forensic analysis.

At Syed’s sentencing on June 6, 2000, the Baltimore Sun reported that Baltimore Circuit Court Judge Wanda K. Heard, acknowledging Syed’s charisma and popularity, said: “You used that to manipulate people. Even today, I think you continue to manipulate even those who love you.”  Serial may never confirm Judge Heard’s intuition but it does make one thing profoundly clear: our need to make sense of a senseless tragedy can cause us to manipulate facts along the way, turning the quest for justice into a mirror that, in the best case, reflects a distorted version of the truth which validates our own prejudices.

Kesav Wable

Kesav Wable is an attorney practicing in New York, as well as an accomplished actor and writer. His short film For Flow, an HBO American Black Film Finalist in 2011, was broadcast on HBO/Cinemax, and he continues to develop scripts for the stage and screen. Contact Kesav at staff@LawStreetMedia.com.

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Uncle Ben warned Spider-Man, “With great power comes great responsibility.” Our social network activity similarly generates limitless potential and mammoth responsibilities. Besides bridging the gap between cultures, social media offers both unexplored terrain and worrisome perils from a legal persepctive.

Facebook provides a “check in” option, which discloses not only your location but also how far away you are and where you’ve been lately. Snapchat allows a user to share a photo with another user and then have that photo disintegrate into cyberspace. These alternate realms of reality allow people to show who they think they are and who they want you to think they are. The metes and bounds descriptions of our cyber property interests are blurred. But to what extent? Until now, the judiciary seemed ill-equipped to deal with issues presented when someone was charged and later convicted based on information — photos, comments, public statements — shared virtually. Should a defendant’s social media presence be admitted into evidence? Read on and find out.

Social Media in the Courtroom

Inquiring into evidentiary issues requires a snapshot of criminal procedure jurisprudence. There are certain advantages and good policy reasons for accessing social media evidence used in criminal proceedings. Photos, for example, can be uploaded quickly and shared within seconds. They can alert authorities to crimes in progress, those about to be committed, or those already commissioned. Moreover, Police Departments now manage Twitter accounts, which highlight their day-to-day victories, reminding citizens to trust that they are on patrol. But when did these technologies become social norms? We all want to be protected, but at what cost?

When did technology become an issue in criminal proceedings?

Until recently, the government consistently retrieved any information from third parties without a neutral and detached magistrate issuing a warrant. The groundbreaking decree came in 1971 when the Supreme Court decided that recording conversations between an individual and agents, via a radio transmitter and without a warrant, did not violate the 4th Amendment of the United States Constitution. However, this was decided in a time when social media didn’t exist, or at least where speaking face to face was not uncommon:

Social media use in the United States alone has increased by 356 percent since 2006. Currently, 52 percent of Americans have at least one social media profile more than one billion people use Facebook actively each month, and Twitter has over 140 million active users posting 340 million Tweets a day.

Every minute, social media users create massive amounts of data: Facebook users share 684,478 pieces of content; Tumblr blog owners publish 27,778 new posts; YouTube users upload 48 hours of new video; Foursquare users perform 2,083 check-ins; Flickr users add 3,125 new photos, and Instagram users share 3,600 new photos. In addition, there are hundreds of other social networking websites, each catering to a different demographic.

Recent Changes

With new ideologies come new rules to constrain them. The Supreme Court tackled the technology and privacy issues head on after wrestling with Riley v. California, after a defendant’s phone was searched without a warrant. In Riley, the Defendant was stopped for a traffic violation, which resulted in his arrest. Upon searching the defendant pursuant to the incident to arrest exception for searches, the police officers removed his phone from his pants pocket. Based on photos and videos found within the phone, the state sought an enhanced sentence for gang association. The Supreme Court Majority had this to say:

The Court did not uphold the warrantless search of Riley’s cell phone; however, the Court was reluctant in transcribing a per se rule, and instead recognized circumstances in which data retrieved from a cell phone would be necessary to combat an unforeseen exigency. Thus, although the incident to an arrest exception would not suffice for searches of a defendant’s cell phone, the Court reserved its discretion as judicial intermediary.

I imagine lawyers will soon use the rules to their advantage and argue that individuals “checking in” to locations on sites such as Foursquare are not hearsay but “present sense impressions,” and that tweets are admissible under the “state of mind” exception.

Not all Courts treat this type of evidence the same way, however. In Miles v. Raycom Media, the Court found that a Facebook page containing unsworn statements from third parties that were offered to prove the truth of the matter asserted constituted inadmissible hearsay under Federal Rule of Evidence 801. Thus, the court restricted the scope of Facebook profile admissibility.

On the one hand, we are presented with judges who may not understand the significance of our social network privacies and the public diaries we divulge. On the other we have judges willing to apply (make) exceptions to what we post, which they use to incriminate us later. I say “us” because it is our online activities and trends that shape these realities.

Social Policies

As we can see, courts are conflicted as to whether admitting this evidence upholds our notions of truth, justice, and fairness. It’s a cycle. First, our social network activity creates criminal proceedings because defendants also use social networks. These proceedings then generate different approaches in judges handling evidence issues. Finally, these issues lead back to defendants, which prompts changes to our social networking habits after we notice our information is no longer private. Meanwhile, the people play pawns: citizens lose privacy and people get arrested. Nevertheless, Snapchat offers grounds for alarming disagreement, debate, and policy.

Snapchat lets people share secret photos with one another, which disappear upon the recipient’s retrieval. It makes sense that a defendant may want to broadcast his new kill or fashion his new stolen watch. Using Snapchat, he can send a picture to his gang or girlfriend, showcasing that he pulled it off.

Show-offs never get away with it. In fact, when you join Snapchat, you authorize it to “process and store” the nature of your contents. So while you think the picture of that hot new bathing suit you stole and sent your boyfriend won’t be found, it’s actually being saved. Moreover, Snapchat’s policy provides that:

We may share information about you as follows or as otherwise described in this Privacy Policy:

• In response to legal process or a request for information if we believe disclosure is in accordance with any applicable law, rule, or regulation, or as otherwise required by any applicable law, rule or regulation;
• In order to investigate or remedy potential violations of our user agreements or policies, or to protect the rights, property and safety of Snapchat, our users or others;
• In connection with, or during negotiations of, any merger, sale of company assets, financing or acquisition of all or a portion of our business to another company; and
• With your consent or at your direction.

Conclusion

Many people join Snapchat because they can send and receive photos and videos that they don’t want others to see. Although we already submit some of our privacy to online networks when we subscribe, if Congress statutorily enacts that any posts on social media can be used as evidence, then people would be deterred from joining the sites in the first place. This could limit the amount of people sharing dumb photos or implicating themselves. Juxtaposed, a statute like this could offer broader criminal tactics, or it could prevent defendants from implicating themselves. A lot of Snapchat and social media in general is based on our heightened expectations that what we do, send, or comment on, won’t be available for use against us. Alternatively, what we do, send, or comment on, is nevertheless saved in case something happens. Is that fair? Perhaps social media giants operating under the false pretenses of security should be exposed once and for all.

Resources

Primary

Snapchat: Privacy Policy

EFF: The Stored Communications Act

Additional

Bloomberg BNA: Social Media Evidence in Criminal Proceedings

American Bar Association: Admissibility of Social Media Evidence

Evangelos Siozios

Evangelos Siozios is a student at New York Law School focusing on family law and real estate transactions. He is a 2012 Baruch Honors College Graduate whose interests include writing, exercising, and solving TV mysteries. Contact Evangelos at staff@LawStreetMedia.com.

The post Social Media in the Courtroom: What is Admissible? appeared first on Law Street.

So let me drop a lyric: “I meet aggression with aggression, I learned that on the streets” by 50 Cent. What does this lyric conjure?

Let us all admit that when we hear rap lyrics like this one, not all of us automatically get a warm fuzzy feeling in our hearts. In fact, many rappers are criticized for producing overly aggressive lyrics about controversial topics; the objectification of women; and violent threats towards individuals who have wronged them. Most of us consider the lyrics of rappers to be more of a style choice — the way in which they want to market themselves to their prospective audience rather than an autobiographical representation. But now a question: Have you ever considered the rap lyrics coming through your headphones to be a confession to a crime? The United States Court System has.

In the past several years, rap lyrics have been used against the accused as evidence to support their criminal actions. In 2013, it was found by the American Civil Liberties Union of New Jersey that in 18 cases, rap lyrics were considered as possible evidence and were used in trial 80 percent of the time. When these rap lyrics are shared in court, it can be detrimental to the accused. 

A study conducted in the late 1990s explored if rap lyrics used during a trial swayed jurors’ opinions. Participants were given basic biographical information about a hypothetical 18-year-old black male, and some were shown a set of his explicit rap lyrics. Those who read the lyrics were significantly more likely to believe that the hypothetical accused would have committed a violent crime.

This bias regarding artists who express themselves through rap lyrics has repeatedly displayed itself in court, stirring debate as to whether these lyrics should be used as a form of evidence.  It is doubtful that when Vonte Skinner first wrote the lyrics, “Look in my palms. You can see what I’m gunnin with,” he would foresee their use against him in court. However, Skinner was placed on trial in 2008 for possible involvement in the shooting of Lamont Peterson in 2005. Skinner, also known by his rap name Threat, was found guilty after the prosecution read 13 pages of his violent lyrics — similar to those mentioned above. It is speculated that these lyrics have contributed to the charge and conviction against Vonte for attempted murder. This conviction was later overturned on appeal, and will be officially decided by the New Jersey Supreme Court in March.

This case presents the idea that rap lyrics can be used to misrepresent the accused as a horrible or violent person. In reality, Skinner’s lyrics were written long before the shooting and subsequent paralysis of Lamont. In fact, the lyrics did not mention the victim or even specific details regarding the crime. Thus, lyrics can be used when minimal evidence is available, in order to turn the tides of a case. This exact situation occurred again when Los Angeles rapper Lil Boosie was accused of paying a hit man, Mike Loudon to shoot and kill Terry Boyd in 2009. With no physical evidence linking Boosie to the crime, prosecutors built their case around his rap lyrics. Despite the objections of the defense attorney, prosecutors went ahead and presented lyrics from songs such as “Bodybag,” claiming it was a representation of evidence to tie Boosie to the murder. Luckily, the jurors were not convinced by the lyrics. While Lil Boosie escaped conviction and Vonte Skinner will have a second chance through the Supreme Court, the issue becomes whether courts should be allowed to utilize rap lyrics as evidence.

Many believe that this “alternative form of evidence” should not be considered evidence at all. As a genre, rap is a form of entertainment, one that uses exaggerative and figurative language. Often rappers use lyrics as a form of artistic expression and this is how we should view them. Instead of taking rap for what it is — an art form — prosecutors present the lyrics of rappers as an autobiographical expression or admission to illegal behavior. Defense attorneys often object to the use of lyrics, as courts typically do not allow the presentation of evidence meant to damage a defendant when it is not directly related to a crime. However, the presiding judge over a case has the ultimate decision and rap seems to have become an exception, as many judges have allowed the use of rap in court.

Then why do rap lyrics keep presenting themselves in court? The rap industry has become synonymous with criminality, as more and more artists are going on trial and lyrics become more explicit. To this extent, it is less than surprising that musicians find their own lyrics used against them. However, the courts should find stronger evidence to tie an accused to the crime rather than obscure lyrics taken out of context. Why would anyone willingly incriminate themselves? Clearly, just because a lyric is violent, does not mean it is a confession to illegal activity. The hearing of Skinner’s case in the Supreme Court can turn the tides for rappers, and possibly end the use of lyrics as evidence in trial.

[New York Times] [North Carolina Criminal Law] [The Roott]

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Taylor Garre (@TaylorLynn013)

Featured image courtesy of [Susanne Davidson via Flickr]

Taylor Garre

Taylor Garre is a student at Fordham University and formerly an intern at Law Street Media. Contact Taylor at staff@LawStreetMedia.com.

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