Social Media Evidence in Criminal Proceedings: An Uncertain Frontier

By Justin P. Murphy and Adrian Fontecilla, Crowell & Moring’s Washington

Social media has evolved into a fundamental pillar of communication in today’s society, revolutionizing how the world does business, learns about and shares news, and instantly engages with friends and family. Not surprisingly, this exploding medium significantly impacts government investigations and criminal litigation because social media factors into the majority of cases in some respect.

Social media evidence can include photographs, status updates, people’s location at a certain time, and direct communications to a defendant’s social media accounts, among others.

Complete article on Bloomberg Law

Complete article in pdf version

KY COA - Burton - Expert Testimony - DRE

Commonwealth v. Burton - Affirming

 The Commonwealth appealed the trial court’s refusal to allow the testimony of Dr. Greg Davis as to whether or not the defendant’s behavior after the car wreck was consistent with intoxication.  The Court of Appeals, in a to-be-published opinion, held the trial court did not abuse its discretion in disallowing Dr. Davis’ testimony because his opinion as to the defendant’s behavior was equivocal—the defendant’s behavior was consistent with drug use, or trauma, or both.

                

The Commonwealth also sought to use the testimony of a Drug Recognition Expert (DRE) to explain to the jury the factors it uses to determine if someone is impaired.  The COA held the trial court did not abuse its discretion because the DRE did not personally observe the defendant nor did the DRE subject defendant to drug recognition testing.  

Margot Merrill argued the case before the trial court and Shannon Smith briefed the case on appeal. 

Contributed by Jason Apollo Hart

KY COA - Harriston - Court Costs for Indigent

Harriston v. Commonwealth  – Not to be published opinion reversing, in part, for trial court ordering court costs when Mr. Harriston was found to be indigent.  

Karen Maurer represented Mr. Harriston on direct appeal in the Kentucky Court of Appeals.  Wendy Craig was the trial attorney. 

Contributed by Jason Apollo Hart

Governor Holds Signing Ceremony for Bill that Makes Major Improvements to Post-Conviction DNA Access Law

NEW YORK, NY;  (Monday, March 25, 2013)- Governor Steve Beshear held a signing ceremony today to celebrate a recently passed law that improves access to the state’s post-conviction DNA testing statute. The legislation (HB 41) passed unanimously through both houses of the Kentucky legislature, and was signed by the Governor this past Friday, March 22nd.

Under Kentucky’s previous law, only those serving on death row have a statutory right to access post-conviction DNA testing. Of the 49 states with post-conviction DNA testing laws, only Kentucky and Alabama restricted access in this way. With the Governor’s signature, HB 41 now allows most Kentuckians convicted of violent crimes access to DNA testing if such testing can provide probative evidence of innocence.

HB 41 was sponsored by Representative Johnny Bell (D-Glasgow), who has long advocated for reform of Kentucky’s DNA testing laws. Though Representative Bell introduced similar pieces of legislation during previous sessions, the bills ultimately never became law. This year’s efforts gained momentum with the support of Senator John Schickel (R-Union), who championed a similar post-conviction DNA testing bill (SB 23) in the Senate.

“Thanks to the bipartisan efforts of Representative Bell and Senator Schickel, wrongly convicted Kentuckians will soon have greater opportunity to prove their innocence through DNA testing,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “We owe them a great deal of gratitude, and thank the Governor for recognizing the importance of this bill by signing it into law. We also must thank Kentucky Public Advocate, Ed Monahan, who advocated tirelessly for the bill’s passage.”

HB 41 represents a major improvement to Kentucky’s post-conviction DNA access law. Prior to the bill’s passage, wrongly convicted Kentuckians in non-capital cases were forced to rely on judges and prosecutors to grant access to DNA testing, meaning testing was often granted in an inconsistent manner. For instance, a local judge recently granted access to testing to Kerry Porter, which ultimately exonerated him as the perpetrator of a 1996 murder. Meanwhile, another local judge recently denied testing to Kentucky inmate, William Virgil, though such testing could exonerate him as the perpetrator of a 1987 rape and murder.

“HB 41 will ensure wrongly convicted Kentuckians have fairer access to DNA testing,” said Joe Blaney, Director of State Legislative Reform at the Innocence Project. Blaney also credited Kentucky’s leadership with helping win final approval of the bill. “This effort would not have succeeded without the support of Speaker Greg Stumbo and Senate President Robert Stivers and the strong support of Commonwealth Attorney Thomas Wine and former Commonwealth Attorney David Stengel. We also commend the Commonwealth Attorneys Association for its cooperation in finding a compromise that allowed this bill to pass.”

Though HB 41 is a major improvement over current law, the final bill was amended to exclude those who pled guilty from accessing testing. However, of the 303 people to be exonerated by DNA testing nationwide, just under 10 percent pled guilty to the crime of which they were convicted. “Though it might be hard to understand why an innocent person would plead guilty to a crime they did not commit, it isn’t all that uncommon,” Blaney said, noting innocent people pled guilty in many instances in order to avoid a harsher sentence. “We hope the legislature will revisit this issue in the future.”

Since the advent of DNA testing in forensic investigation in the late 1980s, DNA testing has evolved into a powerful tool for helping to establish guilt or innocence in criminal cases. Nationwide, 303 people have been exonerated through DNA testing. In about half of those instances, the real perpetrator was subsequently identified. With the exception of Oklahoma, every state in the nation has passed laws allowing for post-conviction DNA testing.

Since 2000, 14 people have been wrongfully convicted of serious felony offenses in Kentucky, the most recent being Kerry Porter exonerated in December 2011 after 14 years in prison. These individuals spent an average of 8 years in prison before they were released from custody.

The Innocence Project, which is affiliated with Cardozo School of Law, is a national litigation and public policy organization dedicated to exonerating wrongfully convicted individuals through DNA testing and reforming the criminal justice system to prevent future injustices. For more information on the Innocence Project, visit www.innocenceproject.org.

KY COA - Hawk - Sex Offender Registration

Daniel Hawk v. Commonwealth - 3/15/13 - Reversing and Remanding

Hawk was convicted of failure to register as a sex offender, second offense, because he had one prior offense for failing to register in Michigan.  Hawk argued that the state specifically required a prior conviction in Kentucky to be guilty of failure to register, second offense.  

The Court of Appeals agreed. “We must agree with Appellant that the plain language of KRS 17.510 requires a prior conviction under the current Kentucky statute, or a prior version of such, to sustain a conviction for failure to register, second offense. If the legislature had intended to punish someone who has a prior offense in a foreign jurisdiction as a second time offender, it would have been so stated in the statute.” 

Bob Ganstine argued the case before the trial court and Erin Yang briefed the case on appeal. 

Contributed by Jason Apollo Hart

KY COA - Wright - CI issues

Floyd Wright v. Commonwealth, 2011-CA-000759-MR To Be Published

Opinion by Vanmeter, Caperton and Lambert Concur

            Wright was convicted of complicity to first degree trafficking in a controlled substance.  Wright was at another man’s house and a CI came over to buy drugs from the other man.  Wright and the other man went into the kitchen and the other man came back with the drugs.  The CI asked why the drugs were cold and claimed Wright said “we had put them in the freezer.”

After trial, the jury wanted to listen to the audio recording again.  The judge allowed them to take the prosecutor’s laptop into the deliberation room with them to listen to it.  Giving jurors unrestricted and unmonitored access to a party’s laptop, outside the defendant’s presence, is highly improper and the likelihood of prejudice is very high.  This was an abuse of discretion and violated RCr 9.74.  

It was also error for a detective to interpret the audio recording of the undercover CI drug buy for the jury and to vouch for the credibility of the CI.

Contributed by Steven Buck