In my last post, I wrote about how a party might authenticate a Facebook direct message or other text-based electronic communication. That post focused on how the proponent of the evidence might establish who wrote the message, i.e., authorship. But what if a party wants to introduce a photograph that was posted on a social media platform? The concept of authorship doesn’t really apply, and in the age of Photoshop and AI-generated images, courts may have serious concerns about the accuracy of online images.
Jeff Welty
News Roundup
The state legislature continues to be in full swing. While much talk here on campus centers on a bill that would eliminate academic tenure, the criminal justice community is likely more interested in legislation that would expand warrantless cell phone surveillance. WRAL reports here that “[p]olice could track people’s cell phones in real time — without a warrant — under a bill that passed a state House committee Wednesday.” The bill in question is H719, and at a glance, it would allow the SBI to use a pen register or trap and trace device without court approval for up to 48 hours to find a runaway child or missing person, or when there is “immediate danger of death or serious bodily injury.” The bill has passed out of a House committee but its ultimate fate is uncertain. Keep reading for more news.
News Roundup
WRAL reports here on renovations at the State Crime Laboratory. The renovations, supported by a $5 million appropriation, include “a new design for the Drug, Chemistry and Toxicology wing” that allows more space for analysts and scientific work. The idea is to improve workflow and reduce backlogs – a goal on which virtually everyone can agree. Keep reading for more news.
How Can a Party Show Authorship of a Social Media Post or Other Electronic Communication?
Suppose that a defendant is charged with possessing fentanyl with the intent to sell it. The state’s evidence includes a Facebook direct message, purportedly from the defendant to an informant, saying “just got some China Girl, you want any?” An officer took a photograph of the direct message as it appeared on the informant’s smartphone, and everyone is satisfied that the photograph fairly and accurately depicts the message. But the defendant objects to the introduction of the message on the grounds that there’s no way to be sure that he wrote it. How might the state respond?
News Roundup
A 21-year-old Massachusetts man has been arrested in connection with the recent leak of classified documents concerning the war in Ukraine. His name is Jack Teixeira, and he is an IT specialist and a member of the Air National Guard. WRAL reports here that “Attorney General Merrick Garland said he is to be charged with removing or transmitting classified national defense information, a crime under the Espionage Act.” Keep reading for more news.
Guilty Knowledge and the Possession of Controlled Substances
When a defendant is charged with a crime involving the possession of a controlled substance, what kind of knowledge or intent must the prosecution show? Must the state prove that the defendant knew that he or she possessed the substance? That the defendant knew that the substance was legally controlled? That the defendant knew the particular identity of the substance? Given the proliferation of controlled substances and the fact that many cannot be distinguished without laboratory equipment, these are important questions.
Artificial Intelligence and the Practice of Criminal Law
You’ve probably heard of ChatGPT, the artificial intelligence chatbot built by the company Open AI. The most recent version of Open AI’s product, GPT-4, “scored in the 88th percentile on the LSAT . . . and did even better on the [Uniform Bar Exam] by scoring in the 90th percentile.” More details here, but this might reasonably make criminal lawyers wonder whether we could be replaced by AI.
News Roundup
A bill was introduced at the General Assembly this week to prohibit certain pet leasing agreements. H226 would make it a class 2 misdemeanor to lease or sell a cat or dog pursuant to an agreement in which the animal is subject to repossession in the case of a missed payment. I had not heard of such agreements, but according to this Business Insider article, they are legal in 42 states and are not uncommon. Typically they are used when a person wants to buy a pet but can’t pay the entire amount up front and so enters into a lease-to-own or installment purchase agreement that carries the risk of repossession. A bill to address pet leasing was previously introduced in 2021, but that bill (H849) did not advance out of committee. Keep reading for more news.
News Roundup
In January, actor Alec Baldwin was charged with involuntary manslaughter after fatally shooting a cinematographer on a film set in New Mexico. There is no suggestion that the shooting was intentional but the prosecution contends that Baldwin and others were grossly negligent in their handling of firearms. The local district attorney asked that a special prosecutor be assigned to the case. Andrea Reeb, a former district attorney who was elected to the state legislature in 2022, was appointed. In February, Baldwin moved to disqualify her, arguing that having a legislator exercise “either the executive power or the judicial power” as a special prosecutor violated separation of powers principles. Although the court has not yet rule on the motion, Reeb stepped down this week, saying that she “will not allow questions about [her] serving as a legislator and prosecutor to cloud the real issue at hand.” The Associated Press has more here. Keep reading for more news.
Women in Policing
Think about the officers involved in some of the recent high-profile incidents involving police use of excessive force. The officers involved in George Floyd’s death were Derek Chauvin, Alexander Keung, Thomas Lane, and Tou Thao. The officers involved in Tyre Nichols’s death were Tadarrius Bean, Demetrius Haley, Emmitt Martin, Desmond Mills, and Justin Smith. Walter Scott was shot by Michael Slager. These officers vary in age, race, and education. But they have one thing in common: they’re all men.