November 18, 2015 Ingrid Vinci

Cell Phones in Expert Testimony

When was the last time you left home without your cell phone? Did you turn around and go back to get it, or decide to ‘tough out’ the day without it? I’m going to guess the majority of you turned around to get your phone; how would you survive the day without it!? It’s hard to believe these gadgets only became commonplace in the past fifteen years, considering how we can’t go more than an hour (depending on the person) without checking it in today’s constantly connected world.

Cell phones have become increasingly prevalent in the courtroom. While it normally takes a search warrant to read the contents of a cell phone (such as text messages, call logs, browser search history, and contents on apps installed on the phone), there is just as much data available outside of the phone. Experts are receiving detailed reports from cellular providers to analyze the whereabouts of clients and victims. They can estimate location based on cell phone towers and location coordinates, such as global positioning systems (GPS), for the beginning and the end of the call. An expert can also obtain raw billing data which is linked to the cell phone number and with that, analyze the date, time, duration and direction (incoming or outgoing) of the call. Your phone can be used to show you were or were not at a scene of a crime around the same time as the crime, and that you did or did not contact someone else believed to be involved in the crime. It’s almost as if the cell phone gives someone all the pieces of the puzzle, and it’s up to them on how to assemble the pieces.

Aside from analyzing cell phone usage from the provider, there is a wealth of information to be found in the public domain. It still amazes me that people think information in cell phone applications is actually private. A friend of mine was investigating an employee on multiple HR-related matters at her company. The final matter in question was when an employee said he could not fulfill his duties because he was at a family funeral in Atlanta, but the company was led to believe that was untrue. My friend did not know the employee, but she was able to sleuth her way around the company’s not-so fool proof blocking of Facebook at the office (by using her personal cell phone instead of the computer connected via the company intranet), find the employee in question’s Facebook account, and despite them not being connected on the Facebook app as ‘Friends’, she saw that the employee ‘checked in’ to multiple resorts, nightclubs, and bars in Cancun, Mexico, instead of being in Atlanta. Unfortunately, the employee insisted he was in Atlanta during the time in question until he was shown pictures of himself with time, date, and location information from Cancun, which he willfully provided to the Facebook app, complete with self-titled captions to explain his activities. He thought that because he did not befriend any colleagues on Facebook, that no one at the office could see his activity. This is not true.

As cell phones become more prevalent in our daily life, we’ll see their corresponding participation in the courtroom to help and hurt cases. Cell phones hold the names and telephone numbers of all of our friends and family, our calendars, our work and personal emails, our personal text messages, photographs, GPS coordinates of every place we’ve visited, application data, and much more. They also send information to other companies, such as signals to cell phone towers, which is traceable. Some of this information requires an expert’s analysis, but some of it is already in the public domain. Be mindful of both when preparing your case; you can bet your opposition is already doing the same.

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