Losing Ambiguous Text Messages Does Not Violate Due Process

A defendant's due process rights were not violated when the government failed to preserve text messages he had sent regarding the assault.

 

United States v. Harry, 2016 BL 58901, 10th Cir., No. 14-2160, 2/29/16

     During an investigation, incoming text messages were recovered from the defendant's phone, but the prosecution was unable to obtain any outgoing text messages. The defendant argued that the outgoing messages were exculpatory, and the prosecution's failure to preserve them violated his due process rights.

     The court ruled that the failure to preserve evidence violates due process only if the evidence was exculpatory and its exculpatory value was apparent before its loss. If the evidence was not obviously exculpatory but "potentially useful" the failure does not violate due process, absent bad faith. Here, the exculpatory value was not apparent, and there was no evidence of bad faith.

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Harry_No_142160_2016_BL_58901_10th_Cir_Feb_29_201?1457718203

Computer Search Techniques Need Not Be Explicit

The forensic search methods that will be used in a computer search need not be outlined in a warrant.

 

United States v. Mulcahey, 2015 BL 415955, D. Mass., No. 1:15-cr-10112, 12/17/15

    The defendants moved to suppress evidence found on the hard drives of a computer seized, with a warrant, from their business premises, arguing that the warrant was defective because it authorized only the seizure and not the search of the hard drives.

    The district court found that the warrant was proper because the language clearly identified the property to be searched and seized. The court indicated that the defendants failed to identify what conditions might be given to limit the search, and how those conditions would be applied. The court referred to a 2013 ruling from the Supreme Judicial Court of Massachusetts which rejected the idea that advanced approval of particular forensic examination methods of computers is necessary.

http://www.bloomberglaw.com/public/desktop/document/USA_v_Mulcahey_et_al_Docket_No_115cr10112_D_Mass_May_05_2015_Cour/1?1452611588