As highlighted in the recent national news coverage of the Alex Murdaugh murder trial, prosecutors are increasingly relying on data recovered from cell phones in order to charge and convict people of crimes. One video recovered from one the deceased’s cell phone placed Mr. Murdaugh at the scene of the crime and was arguably the strongest piece of evidence against him, since he previously told investigators that he was never there that night. At another pivotal moment in the prosecution of this high-profile murder case, the prosecution referenced Mr. Murdaugh’s telephone records and his flurry of steps while on the phone in order to suggest that he frantically made a series of calls while pacing back and forth, which it argued was consistent with a guilty conscious. In order to support that prosecution theory, it used data collected from a health app and recovered from Mr. Murdaugh’s cell phone. They introduced evidence of his step count that was stored in his phone. Ignoring the constructed narrative and its potential flaws, studies have shown that depending on the model of phone, its location on a person, and the environment, raw data recorded through applications such as iPhone Health or “Steps” and its step count can be off by as much as 33%. In addition, distance measurements or distance traveled can vary widely depending on things like walking style. Prosecutors (or defense lawyers) who rely on cutting edge technology run this risk of mischaracterizing the strength of evidence when the purported infallibility of such technology is explored or exposed. This has also been the case with cell phone triangulation where law enforcement obtains historical cell data to attempt to pinpoint or triangulated the historical location of a suspect through their cell phone location. There are serious limitations on this so-called “science” and challenges have resulted in several convictions being overturned. In addition to high-profile murder cases, recently I have seen Title IX investigators on a college campus obtain Apple Health data during the course of sexual assault investigations.
The Increased Use of Potentially Illegal Surveillance by Law Enforcement
The Alex Murdaugh case highlights the recent noticeable uptick in law enforcement agencies utilizing location and cell phone data across the country, but doing so is not without criticism or questions surrounding the legality of obtaining that information and using it as evidence. An investigation into just one of the companies that runs an online webtool that allows warrantless tracking of cell phone location data revealed that over 18 agencies had a current or past relationship with the company, including the U.S. Marshall services, although there is evidence that the number of agencies is much higher. Many have been concerned with the legality of this technology, even leading to the resignation of an investigator who utilized the technology and raised concerns at his department. In recent years, the ACLU has sued the government over the purchase and use of location technology in an effort to curb its utilization. Such legal challenges should continue to mount as its use increases and location data technology develops in our ever-increasing digital world.
As an experienced criminal defense attorney involved in high stakes litigation, attorney Darryl Goldberg regularly confronts the use of cutting edge technology and creative law enforcement tools and often challenges the use or collection of such evidence. He has successfully challenged the use and collection of all sorts of digital and electronic evidence in both state and federal courts. If you are being investigated or accused of a crime and believe or learn that law enforcement is relying on digital evidence, call Darryl A. Goldberg for a no-cost consultation.
