What kind of ‘Black Mirror’ sorcery is this? This fascinating story can leave anyone feeling a bit spooked if you watch the Netflix series ‘Black Mirror.’ Imagine a world where everyone wears a device that tracks our heart rate, vitals, physical activity, etc. A court could convict a suspect by studying the contents of their Apple watch or phone app. In a ‘Black Mirror’ universe, a chip installed in our body would have an automatic recording when your heart rate increases. The former scenario I speak of is happening. We are in the future.
In Germany, police charged Hussein Khavari with the rape and murder of 19-year-old medical student Maria Ladenburger. Investigators say that Khavari disposed of her body in the German Dreisam River. The murder occurred in October 2016 and the trial began September 2017.
The accused had an iPhone which included Apple’s health app. After police gained access to the phone, the app showed how many steps he took that day and his activity on the day of the murder. Data revealed two peaks of strenuous activity and noted it as “climbing stairs.” Police believe this is when the suspect dumped the body and climbed the stairs from the Riverbend.
An investigator with a similar build as the accused went to the scene of the crime to recreate the murder. Surprisingly, the investigator’s health app results echoed the accused health app. Fascinating, isn’t it? Technology has increasingly played a role in criminal convictions leaving courts scrambling to keep up.
So, how do you admit phone data in Court?
Non-legal scholars may think that admitting evidence in a courtroom is as simple as just letting the judge know it exists. It’s a little more complex than that. There’s authentication, relevance, foundation, hearsay rules, witnesses, etc.
With data from an app, authentication will likely prove to be the more difficult step of the process. Under Fed. R. EVID. 901, evidence must show that it is what it claims to be. You must prove that text messages are from Sally and not Bob. With data from an Apple Watch or Apple’s Health app, the same standards will apply.
The prosecution must produce substantial evidence to show that the accused had possession of the cell phone on that particular day and time. Associating an app with a phone is much easier than trying to prove that a particular person sent a specific text. Calling the officer who retrieved the phone from the person of the accused as a witness should satisfy this requirement.
“The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances,” is also a way of authenticating the data.
Proving the app’s reliability and accuracy is where things get more technical but would only go to the weight of the evidence.
Advantages of using technology to solve crimes
In Pennsylvania, a woman called 911 and told police an intruder raped her as she slept. Investigators examined her Fitbit which showed she was awake and walking around instead of sleeping. She then faced charges of multiple misdemeanors. The possibilities of solving crime through technological advances are endless but they can also be frightening.
For this reason, the Supreme Court has ruled that people have a reasonable expectation of privacy with their cellphones and police must have a search warrant to examine its contents.
In 2018 police investigators can determine our location and look at our health vitals because of the small computer we carry around. Welcome to the future.