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Evidence suggests potential snags in forensic use of social media

It’s one thing to hear lawyers talk about the “CSI effect,” where jurors expect to see prosecutors present the high-tech evidence that regularly cracks cases on television.

Judge Paul W. Grimm

Judge Paul W. Grimm (Danny Jacobs/The Daily Record)

It’s another thing to hear one of the foremost authorities on evidence and discovery say it.

“It’s more powerful than a great opening statement or a tear-inducing closing,” U.S. District Court Judge Paul W. Grimm told a packed seminar during the Maryland State Bar Association’s Annual Meeting in Ocean City.

The Criminal Law and Practice Section’s panel mixed a discussion of the newest technologies with references to Popeye, Mr. Peabody and several utterances of the phrase “if you are of a certain age.”

Those of a certain age could recall where prosecutors needed someone on the witness stand to identify the suspect as the person who committed the crime.

Now, “cell phones are the new, best way to solve crimes,” said Baltimore County State’s Attorney Scott Shellenberger. The first three questions investigators ask a suspect is for his name, if he has a cellphone and if he always has his cellphone on him, he added.

Shellenberger described a case where four people were convicted in connection with a murder based on a suspect’s cellphone address book and recent calls. Surveillance cameras helped corroborate the defendants were at the scene of a crime.

In another case, Baltimore County prosecutors were able to obtain a murder conviction by mapping the victim’s and defendant’s cellphone “pings” to cell phone towers to prove they were in the same location at the same time.

“Technology not only solved the crime, it proved the crime,” he said.

Shellenberger also discussed how investigators are using Facebook, YouTube and other forms of social media to catch sexual predators and burglars.

Defense attorneys, of course, have access to the same technology. Lawyers for the Duke lacrosse players accused several years ago of sexually assaulting a woman at a party were able to use social media to prove their clients were not at the location of the assault at the time it took place, said Andrew D. Levy, of Brown Goldstein & Levy LLP in Baltimore.

Perhaps the bigger challenge for prosecutors is authenticating social media evidence. Levy cited a Court of Appeals decision overturning a murder conviction because prosecutors did not authenticate composite video surveillance used a bar. (The bartender could verify the equipment was installed but no one adequately explained how the composite images were produced, Levy said.)

The state’s top court in another case said there was a higher level of authentication required for social media because it is “published for all to see” and not sent directly to another person. (The case, Griffin v. State, was the topic of much discussion and confusion by lawyers and judges in attendance.)

Grimm said an advisory committee for the Federal Rules of Civil Procedure he is serving on will meet later this year to review if any changes are needed to reflect new technologies.

The answer is pretty clear, but Grimm cautioned not to expect wholesale changes to the Rules because of how much technology might advance in the next few years.

“When was the last time you heard about MySpace?” Grimm asked.

For more from the MSBA Annual Meeting, visit the On the Record blog.

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