eDiscovery Daily Blog

Expanded Sources of ESI Show That Crime Doesn’t Pay: eDiscovery Trends

I love the TV show Forensic Files – it amazes me how many different ways that law enforcement entities have to identify, catch and convict criminals.  With that in mind, here are a couple of stories that show how expanded sources of ESI can be used as evidence in criminal cases.

US court allows Google Earth image as evidence (by John Ribiero of IT News): An appeals court ruled on June 18 that Google Earth images, like photographs, can be used as evidence in a court.

The U.S. Court of Appeals for the Ninth Circuit ruled on an appeal by Paciano Lizarraga-Tirado, who claimed that he was on the Mexico side of the U.S.-Mexico border when he was arrested by U.S. agents years ago on charges of illegal reentry.  He insisted that the Border Patrol agents must have accidentally crossed the border before arresting him, according to court filings.

One of the arresting agents had, however, testified in court that she recorded the coordinates of Lizarraga-Tirado’s arrest using a handheld GPS device. To illustrate the location of those coordinates, the government introduced a Google Earth satellite image.  Lizarraga-Tirado claimed that both the satellite image on its own and the digitally added tack and coordinates were impermissible hearsay, invoking a rule that bars admission of out-of-court statements to prove the truth of the matters asserted.

However, since the relevant assertion wasn’t made by a person but by the Google Earth program, the Ninth Circuit said that it was joining other circuit courts that have held that machine statements aren’t hearsay. A machine could, however, malfunction, produce inconsistent results or have been tampered with. “But such concerns are addressed by the rules of authentication, not hearsay,” according to the court.  Since Lizarraga-Tirado only raised an objection on grounds of hearsay, but didn’t raise an authentication objection at trial or at appeal, his appeal was denied.

Woman staged ‘rape’ scene with knife, vodka, called 9-1-1, police say (by Brett Hambright of LancasterOnline):

Police officers acting on a 9-1-1 dispatch found overturned furniture, a knife and a bottle of vodka inside an East Lampeter Township home on March 10 where a woman claimed she was raped by a stranger at midnight.  However, further investigating – including a review of a Fitbit activity tracker – enabled the police to determine that the scene was staged and 43-year-old Jeannine Risley knowingly filed a false report.

The device, which monitors a person’s activity and sleep, showed Risley was awake and walking around at the time she claimed she was sleeping.  Also, snow on the ground revealed no bootprints or any signs of anyone walking outside the home, according to the affidavit. The hard-surface floor in the bedroom also showed no evidence of bootprints.

Risley is now headed to trial on three misdemeanor counts for prompting the emergency response and manhunt for an intruder that allegedly never was.

Thanks, as always, to Rob Robinson’s Complex Discovery site and Sharon Nelson’s Ride the Lightning site for the tips on the interesting ESI discovery stories.

So, what do you think?  Have you been involved in a case that turned on a unique source of ESI?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.