Evidence ch 12 & 13

4th Amendment Concerns

-Particularity & Overbreadth -Level of specificity is not concrete in computer cases -Third Party origination -Warrantless searches & Computers -Consent -Plain view -Exigent Circumstances and Emergency Situations -Destruction of evidence -Locating a missing child

What are some evidentiary concerns?

-Physicality of Evidence & Jurisdictional Concerns --Intangibility of activity and lack of physical location --Not provided for by traditional statutes, case law, or the Constitution -The fact that a legal element is vicinage (which requires a physical crime scene) -Whose jurisdiction it is

Types of Authentication

-Testimony of witness with knowledge -Nonexpert opinion on handwriting -Comparison by trier or expert witness -Distinctive characteristics -Voice identification -Telephone conversations -Public records or reports -Ancient documents -Process or system

1st Amendment Concerns: when it comes to Child Pornography

-erosion of protection for children- osborne to free speech coalation -child pornography protection act- conveys the impression of or appears to be -state laws vary

Chain of custody exception

-not all items require chain -the chain of custody requirement is satisfied when it is demonstrated by the proponent of the evidence that the item is what it is intended to be

US Patriot Act (2001) said:

-reduced or eliminated privacy expectations developed by PPA & ECPA -reduced standard to "reasonable suspicion" -provided for "sneak and peak" warrants without contemporaneous notification

Authentication

A demonstration of the truthfulness (validity) of an item in order for the item to be admissible as evidence

What is documenting chain of custody?

A description and explanation as to where and how the proffered item was found, collected, and preserved before courtroom introduction

What are fingerprints?

An impression of the intricate design of friction skin ridges found on the palmar side of a person's fingers or thumb

What is voiceprints?

An individually distinctive pattern of certain voice characteristics that is spectrographically produced

What is cybercrime?

Any criminal activity involving a computer or computer system that results in a direct or concomitant loss

What is a questioned scientific evidence document?

Any object with graphic markings whose authenticity is in question, such as a personal diary, international newspaper, or even neighborhood graffiti

Requirements for videotapes as evidence:

Capability and mechanical soundness of device Competency of the operator of the recording device Authenticity and accuracy of the recording Method of preservation of the recording Identification of the speakers Voluntariness of the testimony Uncorrupted state of the recording

What are types of trace evidence?

DNA, Hair, Fabric

What are self-authenticating documents?

Documents accepted on their face without demonstration of their authenticity, such as certified public documents, newspaper articles, photographs, radiographs (x-rays), and videos

What is fungible evidence?

Evidence that can be manipulated, altered, substituted, or contaminated, includes several categories -biological, -chemical, -digital, -other trace evidence

What is cyber evidence?

Evidence that exists primarily in electronic form and is accessed solely through electronic means, such as text from e-mails and the history of Web sites a person accesses

What is demonstrative evidence?

Evidence that illustrates or clarifies oral testimony in a criminal proceeding, such as computer-generated charts, images, and models

What does chain of custody attach to?

Fungible evidence

A questioned document examination may require analysis, which include:

Handwriting or signature analysis Ink or paper analysis Document content analysis Electronic document authentication

What are 3 non-evidentiary concerns?

Inadequate police resources Lack of reporting Stereotypes and apathy in law enforcement and the community

Problems with prosecution of computer crime:

Inadequate resources Lack of reporting Stereotypes of perpetrators and perceived insignificance Dearth of legislation and criminal statutes Intangibility and volatility of evidence Prosecutorial reluctance and judicial ignorance Jurisprudential inconsistency

Proffering of Physical Evidence What happens first?

Laying the foundation- demonstration of authenticity and relevance of a proffered item of evidence

Parole evidence rule

Legal assumption that a written agreement or contract is the final expression of that agreement and may not be modified, contradicted, or otherwise considered by outside statements, whether oral or written

Best evidence rule

Legal concept that the best evidence is the original version, rather than copy of the original version

What are two motions?

Motion in limine (exclude) Motion to strike

Challenges to the admissibility of a particular item are initiated by the proponent of the exclusion and take one of two forms:

Motions Objections

Requirements for computer graphics, simulations, and animations for evidence:

Must depict a relevant fact Must be understood by a witness Must be authenticated as an accurate representation of the fact at issue Must not constitute hearsay unless an exceptions exists

Types of latent prints:

Plastic Visible Invisible

Requirements for photographs as evidence:

Relevancy, materiality, competency Accurate representation of the scene or object in question Timeliness of item Introduction and Authentication by witness Unbroken Chain of Custody Satisfaction of the Best Evidence Rule

What is motion to strike?

Request made to the court to eliminate a legal pleading, either in part or in entirety

What is motion in limine?

Requests made at the beginning of a trial for certain pieces of evidence to be ruled inadmissible. Motions in limine are always discussed outside the presence of the jury

What is documentary evidence?

The category encompasses a range of communications that includes any medium in which data is collected or information is stored

In the best evidence rule, the original is required unless:

The original is lost or destroyed - unless the proponent of said evidence acted in bad faith The original is not obtainable The original is in possession of the opponent The document is not closely related to a controlling issue

Firearm Identification and Ballistic Evaluation is?

The science of firearm identification is based on the premise that projectiles may be matched to the weapon that fired them because of unique characteristics. -class characteristics -individual characteristics

What is a motion?

a formal request submitted to the court that a specific judgement or order be made

Miller v California

a material may be considered obscene and prohibited by law if: th work depicts , in an offensive way, sexual conduct specifically defined by state law that the work lacks serious literary, artistic, political, or scientific value

Types of documentary evidence:

audio recordings digital media printed emails or personal writings transcripts

What is the two fold process of voice recognition?

aural comparisons visual comparisons of graphs

What is scientific evidence?

defined loosely as any physical evidence that involves theories, processes, experiments, empirical analyses, or results and requires the testimony of a qualified expert

Graphics and Animation uses in court are to do what?

depict the crime scene

Electronic Communication Privacy Act (1986) said:

expanded PPA and applied Title III of Omnibus to non-aural electronic communications

What is an objection?

legal protests made by the opposing side during the questioning of a witness

Privacy Protection Act (1980) said:

may not seize evidence which might be punishable in the absence of probable cause

Four Areas of interest in documentary evidence:

parole evidence best evidence authentication hearsay

What occurs during laying the foundation?

request for marking by clerk present to opposing counsel if no objection- formally entered into evidence

What are class characteristics, and when is this important?

rifling, caliber, make, model, etc. important when there is no suspect gun

Advantages to LE of Patriot Act:

roving wiretaps application of pen register provisions to Internet national search warrants

Simulations are used in court to do what?

show conclusions or deductions

What are the individual characteristics and when are these important?

striations important because if there is a suspect gun, we can compare

What can you object to?

the materiality, competency, and relevency or unfair prejudice

In computer evidence, what is one thing you never do to the original?

you don't touch it! you preserve the original so you can duplicate it over and over