Archive for the 'Evidence' Category

Can Social Media Impact Your Injury Claim?

Social media like Facebook, Twitter, and Instagram have completely changed how we communicate –not just with close friends and family, but with the world at large. Many people have found commercial and professional success thanks to these websites. About 65% of American adults use some form of social media. However, that same technology can also lead to the loss of thousands, perhaps even millions, of dollars.

In personal injury lawsuits, the plaintiff is expected to present evidence of injury. This includes the actual injuries, any loss of life enjoyment because of the injuries, doctor’s reports, etc. In contrast, the defendant’s role is to present evidence that these claims are not true or exaggerated at best. Before the internet, defense attorneys might hire private investigators to “dig up dirt” on the opposing party. With the invention of social media though, finding evidence to discredit opposing parties has never been easier.

social mediaIt’s trivially easy for defense attorneys to check an opposing party’s social media, like Facebook or Twitter, for incriminating evidence. Suppose that a plaintiff claims he was injured in an accident and is unable to return to work because his right foot was crushed during the accident. If the plaintiff has Facebook pictures of himself hiking or running a marathon, a defense attorney would use it against the plaintiff. Similarly, plaintiffs should avoid posting pictures of the injury or mention any doctor visits. If there are any doctor visits that the defense doesn’t know about, the defense can demand the results of those visits be made available to the defendant.

What Can I Do to Protect Myself?

If a defense attorney can use social media to undermine a claim, the plaintiff stands to lose a significant amount, if not all of, his or her recovery. The most obvious solution would be to avoid posting anything on social media until after the lawsuit is over. No postings about vacations, your medical condition, your case, or anything else that could jeopardize your case. It’s not always obvious what type of posts could harm a case though, so consulting a lawyer would be advisable under these circumstances.

If avoiding social media is not an option, there are a few other ways of guarding against incriminating social media. First, change your privacy settings. Websites such as Facebook allow users to change who can view their accounts. Changing your privacy settings from “public” to “friends only” would be a prudent first move. Similarly, you should also ask friends and family to refrain from posting any content about you. Remember, even something as innocent as a picture of a vacation to Disneyland can potentially be used as evidence that you are not injured as you claim.

The Future of Civil Asset Forfeiture

Civil asset forfeiture has long been a bipartisan issue that both sides of the country can unite behind. Democrats are in favor of undoing practices that indirectly target minorities and abuse criminal defendants. Republicans can rally against big government seizing property. Civil Asset Forfeiture has always been problematic as the practice allows law enforcement to seize property regardless of whether the defendant is even charged of a crime. The first cases testing the limits of Civil Asset Forfeiture are now in the Supreme Court and it’s no surprise that the Court frowns about asset forfeiture as much as voters and lawmakers do.

civil asset forfeitureWhat Happened?

In 2005, Shannon Nelson was convicted by a Colorado jury of two felonies and three misdemeanors relating to the alleged sexual abuse of her four children. The trial court sentenced her to 20 years in prison and ordered her to pay over $8,000 in court costs, fees, and restitution. Nelson appealed the conviction and the case was overturned. Nelson was later acquitted of all charges. Nelson asked the state to refund the amount she had already paid, but Colorado refused, citing the state Exoneration Act, which allowed Colorado to retain funds from convictions unless the defendant can prove in civil court that she is innocent by clear and convincing evidence. Nelson lost in the state Supreme Court, but the Federal Supreme Court overturned Colorado’s ruling.

In the 7-1 decision, Justice Ginsburg writing for the majority argued that since Nelson’s conviction had been overturned, her presumption of innocence had also been restored. Since the law presumes that criminal defendants are innocent until proven guilty, states cannot write laws requiring innocent people to prove they are not guilty. Since the law usually requires that parties return any payments they receive if a judgment is reversed, Nelson’s payment of the fines should have been returned when her conviction was overturned.

Justice Thomas’s lone dissent is based on the argument that Nelson has no right to the money she had already given to the state. The dissent’s argument is peculiar as it reasons that since Nelson had not attempted to collect her refund through a law that her attorneys challenged as unconstitutional, no rights have been violated and therefore Colorado doesn’t have to return the money.

What Does This Case Mean Going Forward?

The Nelson case is significant, as it signals that the Court is now ready to rule on civil forfeiture cases.  The Court had the perfect excuse not to hear the case, as Colorado changed the Exoneration Act prior to oral arguments, thereby making the case moot, but the Court chose to make a ruling anyway, paving the way for tighter restrictions on civil forfeiture by creating this precedent.

And the Court should create this precedent. Although civil forfeiture started with good intentions, it has morphed into a process by which police and prosecutors can take property from citizens without having to meet standards such as “guilty beyond a reasonable doubt.” It would be destructive to our rights – and has already caused significant loss of property – if the police could simply change the criminal standards by moving issues into a different court. Despite Justice Thomas’s arguments, seizing a person’s property by changing the requirements for due process is still a violation of the Due Process Clause.

Pleading the Fifth, What Does It Mean?

Former National Security Michael Flynn is pleading the Fifth Amendment in a bid to stop Congressional subpoenas into his documents and records regarding the 2016 election. The Fifth Amendment is one of the most important amendments in the Bill of Rights, as it protects criminal defendants from being forced to testify against themselves. Indeed, the famous “right to remain silent” is derived from the Fifth Amendment’s protection against self-incrimination. Legal experts are currently debating whether Flynn’s use of the Fifth Amendment is proper here. Regardless of Flynn’s legal standing, there are a few things that Average Joes can learn from this latest Trump debacle:

How Does the Fifth Amendment Work?

Like the right to remain silent, “pleading the Fifth” can only be used when the government is attempting to coerce a human being into testifying against him or herself. In other words, “pleading the Fifth” is a shield against government coercion.  A human being can only plead the Fifth in response to government inquiry; one cannot plead the Fifth in anticipation of a pending criminal case.

pleading the fifthIt is important to note that the Fifth can only be invoked if the government is actually trying to obtain information. Like the right to remain silent, being in government custody is not sufficient to plead the Fifth.  In other words, Flynn cannot invoke the Fifth in response to being pulled over by a police officer for running a stop sign. Likewise, Flynn cannot plead the Fifth just because the police officer arrests him.  Pleading the Fifth would only be relevant if the police officer begins asking questions about why Flynn ran the stop sign.

Finally, the Fifth Amendment can only be plead in response to individual questions. A defendant cannot plead the Fifth as a blanket defense. In other words, Flynn cannot tell the Senate he pleads the Fifth and then walk out the building. He must answer each individual question with “I plead the Fifth,” if he wishes to use the Fifth to answer each question.

What Is the Difference Between Pleading the Fifth and the Right to Remain Silent?

The two are very similar since they both come from the same source, the Fifth Amendment right against self-incrimination. However, since the right to remain silent is one aspect of the Fifth Amendment, pleading the Fifth is a much broader protection than the right to remain silent.

The right to remain silent only extends to verbal testimony. Pleading the Fifth, on the other hand, will protect a party from a demand to produce documents or other evidence which could incriminate the party. In Flynn’s case, he cannot exercise his right to remain silent in response to a subpoena, but he can plead the Fifth to stop the demand for his documents.

Are There Any Limitations to Using the Fifth Amendment?

The biggest limitation to the Fifth Amendment is that the Fifth can only be used as a shield against criminal prosecution. If a state sues a parent for child support, a civil action, the Fifth Amendment would protect the parent from accusations of child endangerment, but it would not protect the parent from wage garnishment or other child support collection.

The second limitation is that the Fifth Amendment only protects human beings. Corporations, despite their legal status as people, currently have no right to plead the Fifth Amendment. This distinction can be seen clearly in the Flynn case; although Flynn can plead the Fifth to protect himself, his businesses have no such protection.

What Your FitBit Can Say About You… In Court

Every day we share a tremendous amount of data without even knowing it, our wearable technology is no exception. In a recent Connecticut case, one man found this out the hard way after his deceased wife’s FitBit busted his alibi wide open and left him facing murder charges and $1M bail.

Richard and Connie Dabate lived in the small town of Ellington. After Connie was found shot to death in their basement, Richard told the police a story of how a masked man broke into their house. He claimed that after a vicious fight with the intruder, the man zip-tied him to a chair, stole his wallet and credit cards, slashed him across the face, then went down to the basement and murdered his wife.

However, Connie’s FitBit told a very different story. After looking at the data recorded on the device, the GPS data tracked by Ms. Dabate’s FitBit showed that during the time Mr. Dabate claimed he was struggling with the masked intruder Ms. Dabate had casually strolled 1,217 feet all throughout the house.

This evidence, along with a few other inconsistencies, harpooned Mr. Dabate’s alibi.  It also represents one of the earlier cases in something we will likely see much more of in the future–wearable technology testifying for or against its wearer.

FitBitWhat is a FitBit?

So first and foremost, for those unfamiliar let’s explain exactly what FitBits and wearable technology is.  A FitBit is a worn device which records your heartbeats, sleep schedules, location, distance traveled, and more.  It then transfers all this information to a cloud and organizes the information into digestible trends and data points for you to log into an account and track your health and progress.  You

They are the tip of the iceberg in a trend of wearable technology (a catch-all term for data enabled devices you wear on your body) from Google Glass and Google Watch to other fitness devices similar to the FitBit such as Garmin’s Vivofit.

Your FitBit Used Against You

You can see how the information stored in a FitBit, where you are, when you were there, how high your heart rate was, whether or not you were asleep, could be relevant evidence in either a criminal or a civil case.  It could kill an alibi or make it ironclad.

Mr. Dabate’s case is one of the earliest to use a FitBit in such a manner, but not the only recent case to take advantage of the data stored on a wearable.  In Pennsylvania, a Ms. Jeannine Risley got in trouble after her FitBit disproved a claim she made to the police that she had been raped.  Ms. Risley told authorities that an unknown man had pulled her from her bed and raped her in her bathroom. However, after the FitBit she claimed was lost in the attack was found in her room it revealed that she had been walking around the house the entire night. This, along with other evidence, lead to criminal false reporting charges  being brought against her. It’s worth noting here that, while this is an example of a FitBit being used as evidence, false reporting of rape is an incredibly rare occurrence as opposed to instances of genuine rape and sexual assault.

In Canada, a FitBit has also been used to establish how much less active a plaintiff in a personal injury case was after their injury than before. While this case is not out of the U.S., the data on a FitBit could easily be used in a similar manner here.

So you see how important this sort of information could be in any number of cases. Wearable devices like Google Glass collect even more information such as the internet searches you perform.  Where this data is relevant to a case, you could certainly be required to produce your FitBit or other wearable to the other side.

Similarly, the data constantly stored in cloud services could also be subpoenaed from the companies storing that data. Google receives countless data subpoenas every year. FitBit’s privacy policy, like nearly every privacy policy on the internet, states that it well release your data as “necessary to comply with a law, regulation, or valid legal process.”

This being said, there are a number of legal obstacles to using this data against you–although none of them are anywhere near foolproof. Many companies, such as Google, are resistant to data subpoenas as they undermine the public’s faith in their services. These companies will occasionally fight such a subpoena in court.

What’s more, this type of data’s relevance–something necessary to establish before the data or device may be required to be produced–can be undermined by challenging the accuracy of the data recorded or whether it was you using the device in the first place. There are also privacy considerations which may protect you against disclosing the data on a wearable device or device itself depending on how important the evidence on it may be to a case against you and which state you live in.

The truth is that the information stored on wearables, especially GPS location information, has so many potential applications in a lawsuit that it is only a matter of time until the use of such information becomes commonplace in both criminal and civil litigation. While you can delete much of the information stored through a FitBit if you wish, it’s more important to understand exactly what data you create and share about yourself on a daily basis. Any day now, that data could be your best friend or your worst enemy in a court case.

Rep. Devin Nunes: Understanding Rep. Nunes Fall From Grace

Another day, another scandal.  Temperamental tweets from Trump are becoming the norm, yet Trump’s recent claims that Obama wiretapped him prior to winning the election still came as somewhat of a surprise.

There were previous reports that, while monitoring Russians, the intelligence community may have intercepted communications from members of the Trump team, but Trump’s tweet claimed Obama specifically ordered the wiretapping.  That’s a pretty hefty claim to make and he did so without any substantiating evidence.  Then along came Devin Nunes, who recently held a press conference making statements that appear to somewhat validate Trump’s claims.  The Congressman has been under heavy scrutiny ever since and people are questioning his ethics.

Rep. Devin NunesLet’s Take a Step Back to Get Some Context

Earlier this year, the House Intelligence Committee was tasked with investigating whether there was Russian interference into the 2016 elections as well as collusion between Russia and Donald Trump’s campaign.  The House Intelligence Committee is led by chairman Devin Nunes, which, until recently, wasn’t necessarily a household name.

A week ago, Nunes held a press conference and, to keep it simple, he announced that an unnamed source had given him information that appeared to validate, at least somewhat, Trump’s wiretapping allegations.  Here’s what Nunes said:

“First, I recently confirmed that on numerous occasions, the intelligence community incidentally collected information about U.S. citizens involved in the Trump transition.  Details about U.S. persons associated with the incoming administration, details with little or no apparent foreign intelligence value, were widely disseminated in the intelligence community reporting.  Third, I have confirmed that additional names of Trump transition team members were unmasked.  Fourth and finally, I want to be clear. None of this surveillance was related to Russia, or the investigation of Russian activities or of the Trump team.”

Because Nunes says that the information wasn’t related to the surveillance on Russia and that it also wasn’t related to the Trump-Russia investigation, Nunes’ statements suggest that some of the members of the Trump transition team were in fact under surveillance.

Why All the Fuss?

Here’s a brief rundown of how it went down:

  • On March 21st Nunes made an unscheduled trip to the White House where an unnamed source provided Nunes with information about incidental collection of Trump and his associates. That information, according to Nunes’ press conference, contained unmasked names.
  • On March 22nd Nunes held the press conference with the statement above. Nunes claims the information came from FISA surveillance.  Nunes then went directly to the White House to brief Trump on the intelligence reports.  Adam Schiff, the ranking Democrat on the House Intelligence Committee, released a statement that Nunes did not share this information with other members of the Committee before going to brief Trump.

The press conference itself wasn’t necessarily the issue; the issue is where the documents came from and why did Nunes go to Trump with the information before his own Committee members?  Regardless of whether the information was unrelated to the Trump-Russia investigation, Nunes still should have presented the information to the Committee first.  Even after Nunes apologized for going to Trump first, the water has gotten even murkier on whether Nunes had any real evidence to support the statements as he has yet to release the documents to the Committee.

Actions Affect the Committee’s Investigation

Who did Nunes meet at the White House?  Why did Nunes need to meet his source at the White House?  Why didn’t Nunes take the information straight to the Committee?  These are the unanswered questions floating around that make what Nunes did suspicious.  The running theme coming from the Democrats is that, because Nunes was a member of Trump’s transition team, Nunes is improperly providing political cover for Trump’s claims that Obama wiretapped his phone.

Nunes’ actions do affect the House Intelligence Committee’s investigation because it tarnishes the office’s credibility.  Being chairman of the House Intelligence Committee holds certain responsibilities and, as a member of that Committee, Nunes’ loyalty should have been to the Committee, especially since Trump is currently being investigated.  Instead, Nunes claimed he felt he “had a duty and obligation” to tell Trump because “he’s [Trump] taking a lot of heat in the news media”.

If Nunes is covering for Trump, he’s not being an impartial member of the Committee.  Not only does it tarnish the creditability of the House Intelligence Committee, but it also jeopardizes the ongoing Trump-Russia investigation.  There’s also a good argument Nunes’ actions violate protocols for handling classified information, which is why he’s received numerous ethics complaints.

Despite statements that all the fuss is “entirely false and politically motivated”, Nunes has since stepped aside from the Trump-Russia investigation.