In the twenty-first century, communications technology has offered both new opportunities and limits for criminal defense lawyers and prosecutors.
GPS technology, cell tower data, social networking, hard drive storage and digital cameras all lead to interesting challenges for the criminal defense lawyer. For example, a recent United States Supreme Court case raises the issue of whether a search warrant is necessary to attach a GPS tracking device to a person’s automobile. The monitoring may not be protected, but the attachment of a device requires a search warrant.
Courts are recognizing the right of a party to subpoena and use cell tower or EZpass records to establish whether a suspect took a particular route in order to prove or challenge evidence. Cell phone records can be subpoenaed for the same purpose to prove or disprove issues in a case. In cases of domestic violence, lengthy phone calls can help establish a defense, to a charge of making harassing phone calls, but multiple brief calls might prove harassment.
In many cases, especially those involving Internet child pornography, the police seize computers, and digital cameras. A search warrant may be necessary to view data and a successfully mounted challenge can keep damaging evidence from consideration by a jury.
Social networking media can lead to damaging evidence, but there are limits on the ability of both law enforcement and criminal defense lawyers to use subterfuge to access private information on social media sites.
Of course, there are still issues involving intercepted communication by police when the alleged victim of a crime consents to recording a conversation with the accused in which the government attempts to steer the suspect into damaging admissions.
The world of electronic communication presents challenges that require equally sophisticated responses by a dedicated criminal defense attorney.