Lawyers who practice criminal law are finding that “great pressure [has been placed on them] to master the lexicon of integrated technologies”. It’s hard to find a lawyer who isn’t computer savvy, but, as Ken Strutin, Law.com blogger says, “[c]ommon place devices with computing capacities have the power to expand personal information and activities into a virtual realm.” This enlarges the scope and definition of many everyday modules and devices, especially when used to illustrate evidence of a crime.
The advanced capability of today’s chips and computers has had a wide impact on criminal law and procedure. In the U.S. District Court for the Western District of Missouri, a defendant pled guilty to transporting a minor in interstate commerce with illicit intent (see blog for citation and footnote.) As part of the allocution–the process of admitting guilt in open court as a formal statement—the defendant admitted to using a cell phone to make calls and send text messages to the victim prior to the event.
Under the Sentencing Guidelines, says Strutin, the offense “called for a two-level enhancement” because a computer was used to commit the crime. (Although a cell phone isn’t normally considered a computer, in this case, a “preponderance” of evidence indicated that it, indeed, was.) This raised the amount of jail time that was handed down.
Now readers may think that a commonplace device ought to be categorized according to its original purpose, but courts have not always found that to be the case. “[W]hether such a device ought to be treated as something more than it was originally designed to be depends on the presence and purpose of the computing elements within,” says the author.
For instance, the functionality of cars hasn’t changed much since the introduction of the Ford Model T, but what has changed is a vehicle’s informational capabilities. Their “electronic sensors and safety devices, such as air bags,” have almost—depending on the purpose–reclassified them as computers due to their information processing and storage units.
Even so, there are instances when items are found to be no more than they were originally constructed to be. As an example, Strutin points to the black box used in vehicles. Essentially, this is a device used to inform a navigator or passenger when an airbag should be deployed. Recently, the ability of the block box to record and store data has led to its becoming a device of great interest in accident cases.
Indeed, this “creates a new witness whose testimony can only be understood outside its safety enhancing function”—or when it’s functioning or “witnessing” as a computer.
The author notes a case that appeared before California’s Superior Court early this year where the defendant was accused of drunken driving, and charged with leaving the scene of an accident. Although speed might have been a factor, “the investigating detective was able to determine that it, indeed, wasn’t, due to an accident reconstruction analysis and eyewitness statements.”
Additionally—and this was the key factor–the pedestrian had limited visibility upon entering the walkway where he was hit.
However, to demonstrate how a “computer” may change what some might call a cut-and-dry case, a year later, the DA requested that the police examine the black box from the defendant’s vehicle. It took this long to see the connection because it was at first erroneously believed that, unless deployment of an air bag occurred, the device did not record information.
The new data revealed that the defendant had, in fact, been traveling at a high rate of speed just prior to the accident. The trial judge held that the car was an “instrumentality” of the crime and that the black box was searchable without a warrant. However, an appellate court disagreed. “[T]he data produced and preserved… was intended for safety purposes…”, it ruled.
The ruling called the closer look a “new and different intrusion”. In this case, the lesson was that computer functionality should be assessed in light of the item’s intended purpose.
As Strutin points out, “We live in an era in which society must learn to balance the computerization of humans with the humanization of computers.” What’s required, he says, is a knowledgeable (or “fair…and accurate…”) interpretation of “computer” as it relates to human behavior. For more on this, go here: http://bit.ly/igXGhu