Here is a recent Daily Record column. My past Daily Record articles can be accessed here.
Fitbit Evidence Provides Alibi For Victim’s Boyfriend
Last week, I wrote about a recent case where Fitbit data was used in a California case to convict the defendant, the victim’s step-father, of her murder. In that case, the victim was wearing a Fitbit and her heart rate data obtained from the device conflicted with the defendant’s version of events, ultimately resulting in his conviction.
That wasn’t the first time I covered the impact of wearable devices in court. in 2015, I wrote about two cases where Fitbit data was used in litigation: one where it was offered as evidence to support a personal injury claim and the other where it was used to disprove a complainant’s rape allegations. Then in 2017, I covered a case where Fitbit data and other digital evidence was used in a Connecticut murder prosecution to convict the defendant of murdering his wife.
Another criminal case from earlier this year in Wisconsin that I haven’t yet covered was notable because it involved Fitbit data being used as alibi evidence. In that case, the defendant, George Burch, alleged that the victim’s boyfriend, Doug Detrie, had forced him to commit the murder at gunpoint. However, a host of evidence, digital and otherwise, belied his assertion.
A good portion of the digital evidence used to pinpoint Burch’s movements on the night of the murder was obtained from his cell phone and Google Dashboard. By using that data, expert witnesses were able to show the jury that Burch was at the scene of the murder on the morning in question and then subsequently traveled to the location where they body was disposed of after the murder was committed.
Burch’s defense was that although he committed the murder and disposed of the body, he did so because Detrie held him at gunpoint and forced him to commit those acts. Fortunately for Detrie, he was wearing a Fitbit at the time of the murder and the Fitbit data contradicted Burch’s claims.
Not all of the Fitbit data was admissible, however. Specifically, the data that showed that Detrie was sleeping at the time of the murder was held to be inadmissible due to scientific disagreement regarding the reliability of that specific data. Other Fitibit data was deemed admissible, however, and that data provided an alibi that made all the difference in this case.
According to the Fitibit data, Detrie didn’t take nearly the number of steps required on the evening of the murder for his activity levels to comport with the movements alleged by Burch. The Fitibit data showed that Detrie took 20-30 steps at approximately 4 a.m. on the morning of the the murder. He asserted that he went to the bathroom at that time. Burch’s claims would have required Detrie to walk at least 2 or more miles on the evening of the murder.
After hearing the testimony and considering the evidence, the jury concluded that Burch was wearing his Fitbit on the evening of the murder and that the data obtained from it was accurate - and provided him with a much-needed alibi. The jury thus discounted Burch’s version of events and convicted him of the murder.
This is yet one more example where data from a wearable device provided crucial evidence that made all the difference in the outcome of the case. It’s also further proof that the devices we rely on and carry with us 24/7 collect a wealth of information about our movement and activities, all of which is readily accessible by law enforcement, sometimes with, and other times without, a warrant.
Certainly this should give you pause, and if nothing else, you might want to check the privacy settings of your smartphones, wearable devices, and the online accounts that sync with your mobile devices. Ascertain what type of data is collected and for what purpose, and then determine the value of the services provided using that data. If it’s not all that important to you, then switch off the ability to collect that data, to the extent that it’s possible.
No doubt there are plusses and minuses to living in the 21st century. The benefits include convenience, flexibility, and 24/7 access to information, but when balanced with the loss of privacy, are sometimes outweighed. The good news is that in some cases, the digital data can be your friend and provide you with an alibi, but that’s not always the case. The decision regarding how much privacy to sacrifice in order to take advantage of the positive aspects of living in the digital age is a personal one.The choice is yours, and it’s not always an easy one to make.
Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase law practice management software. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at firstname.lastname@example.org.