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Blood is Thicker Than Ink: Familial DNA In The Evidence And Court Rooms.

familial-dna

This article in Wired got me hooked on all things “familial DNA”.  Here’s an intriguing excerpt and lead-in explanation to the concept:

From WIRED:

THE THREE MEN who showed up at Michael Usry’s door last December were unfailingly polite. They told him they were cops investigating a hit-and-run that had occurred a few blocks away, near New Orleans City Park, and they invited Usry to accompany them to a police station so he could answer some questions. Certain that he hadn’t committed any crime, the 36-year-old filmmaker agreed to make the trip.

The situation got weird in the car. As they drove, the cops prodded Usry for details of a 1998 trip he’d taken to Rexburg, Idaho, where two of his sisters later attended college—a detail they’d gleaned by studying his Facebook page. “They were like, ‘We know high school kids do some crazy things—were you drinking? Did you meet anybody?’” Usry recalls. The grilling continued downtown until one of the three men—an FBI agent—told Usry he wanted to swab the inside of Usry’s cheek but wouldn’t explain his reason for doing so, though he emphasized that their warrant meant Usry could not refuse.

The bewildered Usry soon learned that he was a suspect in the 1996 murder of an Idaho Falls teenager named Angie Dodge. Though a man had been convicted of that crime after giving an iffy confession, his DNA didn’t match what was found at the crime scene. Detectives had focused on Usry after running a familial DNA search, a technique that allows investigators to identify suspects who don’t have DNA in a law enforcement database but whose close relatives have had their genetic profiles cataloged. In Usry’s case the crime scene DNA bore numerous similarities to that of Usry’s father, who years earlier had donated a DNA sample to a genealogy project through his Mormon church in Mississippi. That project’s database was later purchased by Ancestry, which made it publicly searchable—a decision that didn’t take into account the possibility that cops might someday use it to hunt for genetic leads.

Usry, whose story was first reported in The New Orleans Advocate, was finally cleared after a nerve-racking 33-day wait—the DNA extracted from his cheek cells didn’t match that of Dodge’s killer, whom detectives still seek. But the fact that he fell under suspicion in the first place is the latest sign that it’s time to set ground rules for familial DNA searching, before misuse of the imperfect technology starts ruining lives.

Mitch Morrissey, Denver’s district attorney and one of the nation’s leading advocates for familial DNA searching, stresses that the technology is “an innovative approach to investigating challenging cases, particularly cold cases where the victims are women or children and traditional investigative tactics fail to yield a solid suspect.” Familial DNA searches have indeed helped nab people who might otherwise have evaded justice. In the most celebrated example, Los Angeles police arrested a man believed to be the Grim Sleeper serial killer after discovering that the crime scene DNA shared a significant number of genetic markers with that of a convicted felon—who turned out to be the man’s son.

Pitching forward to today when over the weekend, I caught this bit of news on the radio:

Bill Medley’s (of the Righteous Brothers) ex-wife’ s murderer was captured – 44 years later and via the use of familiar DNA – a suspect identified through examination of his family member’s DNA.

From the Washington Post:

Nearly 41 years to the day after the brutal death of Karen Klaas, her 1976 murder has been solved, according to the Los Angeles County Sheriff’s Department.

The case captivated the public four decades ago because of its shocking circumstances and a celebrity connection: Klaas had been attacked at her home in Hermosa Beach, a small oceanfront California city that even now sees only a handful of murders per decade.

Klaas also was the ex-wife of Righteous Brothers singer Bill Medley, whose voice had become ubiquitous in the 1960s with hits like “You’ve Lost That Lovin’ Feelin’ ” and “Unchained Melody.”

On Jan. 30, 1976, police found the 32-year-old Klaas unconscious at home. She had been sexually assaulted and strangled with her pantyhose, police said.

Klaas was taken to a hospital, where she remained comatose for five days. She died Feb. 4, 1976.

 

Her murder would remain Hermosa Beach’s longest-running cold case, detectives said in 2009, when they renewed their plea to the public for any witnesses to come forward, the Associated Press reported then.

At the time, detectives released new details about the suspected killer — a “shaggy-haired, bearded man in a trench coat and blue jeans” — based on two witnesses who said they had seen him leaving Klaas’s house, the AP reported.

Detectives had been able to obtain a DNA profile of Klaas’s murderer in the 1990s, but no profiles in the national DNA database were ever a match, according to the AP.

In statements over the weekend, the sheriff’s department did not name suspects or specify whether any arrests had been made — only noting that the case had been solved by using “familial DNA, which identified the killer.”

The use of familial DNA emerged over the past decade as a way for investigators to search for “close-to-perfect matches” among relatives of a convict, The Washington Post reported in 2008.

However, the technique has also attracted criticism and ethical questions from those who argue that family members could become “genetic informants” without consent.

“If practiced routinely, we would be subjecting hundreds of thousands of innocent people who happen to be relatives of individuals in the FBI database to lifelong genetic surveillance,” Tania Simoncelli, science adviser to the American Civil Liberties Union, told The Post at the time.

(We waited as long as we could for that update today but it was finally time to publish.  We will be updating this Bulletin accordingly this week.)

Truly life becomes a circle – with the present affected by the past for future outcomes (investigation, trial, sentencing) – with criminal evidence science.

We’ll keep you posted.

BNI Operatives: Situationally aware.

As always, be safe.

 

 

fMRIs In The Courtroom, Gaining Acceptability?

fmri

New News: President Donald Trump, by executive action, has pulled the United States out of the Trans-Pacific Partnership.

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For several years now, since reading the fascinating case out of India, wherein a woman was convicted of murder via fMRI (functional MRI) evidence, we have remained riveted on this relatively new neuro-imaging tool as it relates to courtroom application.

Below we bring you up to date on the use of fMRIs in US courtrooms and the arguments for its use in a legal venue.

fMRI Use in the courtroom: 

Grey Matters publication, Fall 2016

Neuroimaging evidence is a complex topic, and an important one to understand, considering how it could potentially alter the way cases involving the NGRI plea are tried. As demonstrated by the cases of Dugan and Hinckley, the legal system must now decide how to evaluate the potential neuroimaging offers.  Full article (starts on page 20)

In support of fMRIs in the courtroom:

One of the best arguments for continued research into the application of fMRIs (functional MRIs) in the courtroom comes from Sunaina Rajani, in the Kennedy School Review, (a Harvard Kennedy School student publication), October 2016:

(excerpt):

Objective Criteria of Criminal Responsibility

Robert Proctor, clinical instructor at the Harvard Law School’s Criminal Justice Institute, says that “expert opinion is often presented under a veneer of objectivity.” Norms, implicit biases, and lack of neuroscientific knowledge affect determination of criminal culpability, thereby increasing the chance of human error. Not only does this bias shape judges’ evidentiary calls but also their statutory interpretations. Often an expert’s evaluation entails a review of the defendant’s medical records, an interview of the defendant, and, if the defendant is lucky, essential interviews with witnesses and family members.  This evaluation, too, is ultimately subjective but could be enhanced by neuroscience.

In jury trials, determination of insanity remains a subjective conclusion that a jury may or may not accept. The question, then, is whether neuroscientific advances will be useful in the courtroom. Proctor adds, that we can help improve criminal responsibility analysis by “applying universally accepted scientific sources and methods of analyzing and interpreting the science of mental disease and defect” to ultimately will ensure fair access to justice in our criminal justice system.

In the neuroscientific sphere, fMRI studies have developed a robust composite of average brain activity that can be compared to a defendant’s state of mind. In doing so, courts might be able to assess capacity, impulsivity, and fear management through a more objective lens. For example, when one experiences fear, scientists can assess to what degree can one generally ‘distinguish right from wrong’ by comparing brain activity. Moreover, recent brain imaging techniques can assess impaired EF and other cognitive abilities, thereby improving a jury’s overall evaluation of the defendant’s ability to distinguish right from wrong.

It is important these neurotechnologies are applied not only in individual courts, but uniformly throughout the justice system. Depending on the justice system’s level of neuroscientific awareness and the court’s standards, judicial interpretations vary. Unfairly, similarly-situated defendants may receive different outcomes, especially in terms of sentencing. Setting standards using awareness of neuroscientific advances could ultimately help reduce these disparities and better tailor sentencing outcomes to minimize recidivism.

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Also in favor of fMRIs in the courtroom but from the perspective of mentally ill defendants is this well thought out piece from the Center For Law and Science

fMRI in the Courtroom: Brain Scans and Mental Illness

Published: June 5, 2015

One of the many obstacles facing juries throughout the history of the legal system has been the question of expert testimony. It has long been the practice of both prosecution and defense to hire professionals from any field to testify in hopes of tilting the case in favor of their client. However, deciding whether evidence presented by these individuals is actually “expert” frequently proves challenging. In the case of determining whether a defendant has a mental illness, juries have historically had to rely on the often-vague characterizations found in the DSM-IV and “expert” psychiatrists to interpret them.

Fortunately, breakthroughs in fMRI scanning may turn the tables on this highly subjective system and give juries something much more concrete to use. Over the past decade, many mental illnesses have been reliably localized by consistently abnormal hemodynamic response in various brain areas. This has not only allowed observers the ability to see general categories of mental disorder, but even to distinguish between various degrees and small variations within an individual disease’s spectrum. The most recent breakthrough happened this past September for Postpartum Depression, while researchers have been progressively better at localizing Bipolar Disorder and Schizophrenia.

It is my hope that an increased use of such fMRI evidence in the courtroom will lend jurors a much clearer view of mental illness, without the need of subjective interpretations from expert testimony. While these middlemen may understand the nature of mental illness, many lay people do not recognize that a mental disorder indicates structural abnormalities in the brain, not simple weakness in character. While our imaging technology may not be advanced enough to locate mental abnormalities in the same way that an X-ray would locate a fractured hip, I think that fMRIs will be continue to increase in accuracy and relevance to major courtroom issues.

However one stands on the ethics or scientific application involved in fMRI use in the courtroom, we cannot deny its inevitability.

BNI Operatives: Situationally aware.

As always, stay safe.

 

 

8 Ways That You Can Be Legally Tracked

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“But don’t they have to have probable cause to search my email or get my Facebook records?”  I can’t tell you how many phone calls we’ve received with that question  – and as we tell each caller, “We are not attorneys, judges or the court or the police department. But, uh, what happened?” (Who doesn’t want to hear a good story??)

(Anyhow, for the purpose of this article,  “they” means law enforcement.)

Here are the situations and the applicable laws:

1. Phone Records: Calls you have made and received

How they get it

Wiretapping is illegal without a judge’s warrant, however, police only require a subpoena from a court to obtain your phone scrolls (outgoing and incoming calls).

A warrant requires showing probable cause, a subpoena needs only to be relevant to an investigation, a much lesser standard of evidence.

Applicable law: 

Smith v. Maryland, a Supreme Court ruling in 1979, which found that the Constitution’s Fourth Amendment protection against unreasonable search and seizure doesn’t apply to a list of phone numbers.

2.  Location: Your phone is a tracking device

How they get it

Cell towers.

Applicable Law: 

The federal Electronic Communications Privacy Act (EPCA) cited by the police for these records dictates that the data must contain “specific and articulable facts” related to an investigation – again, that lesser standard of evidence.

3.  IP Addresses: Which computers you use

How they get it

Email providers such as Google, Yahoo, MS, etc.  amass tremendous amounts of data about our digital journeys. A warrant is needed to access some emails (see below), but not for the IP addresses of the computers used to log into your mail account or surf the Web. According to the ACLU, those records are kept for at least a year.

Applicable law:

U.S. v. Forrester, is a case involving two men trying to set up a drug lab in California.  Prosecutors successfully argued that tracking IP addresses was no different than installing a tracking device to a phone to track each number dialed by a given phone (which is legal).   Police only need a court to sign off on a subpoena certifying that the data they’re after is relevant to an investigation — the same standard as required for cell phone records.

4. Emails

How they get it

Prior to Sen, Leahy’s bill introduced earlier this year, only recent email required a warrant; email aged over 180 days required only a court subpoena related to an investigation.

Applicable Law

Once again, the ECPA comes into play.  The Leahy bill would require a warrant to get all emails regardless of age.

5. Email drafts: drafts are different

How they get it

Communicating through draft emails, à la David Petreaus and Paula Broadwell, seems sneaky. But drafts are actually easier for investigators to get than recently sent emails because the law treats them differently.

Applicable Law:

The ECPA distinguishes between communications — emails, texts, etc. — and stored electronic data. Draft emails fall into the latter, which get less protection under the law. Authorities needs only a subpoena for them. The Leahy bill would change that by requiring a warrant to obtain them.

6. Text messages: As with emails, so with texts

How they get it

Investigators need only a subpoena, not a warrant, to get text messages more than 180 days old from a cell provider — the same standard as emails.

Applicable Law: 

Currently being challenged in several states otherwise, the ECPA applies.

7. Cloud data: documents, photos, and other stuff stored online

How they get it

Authorities typically need only a subpoena to get data from Google Drive, Dropbox, SkyDrive, and other services that allow users to store data on their servers (aka, cloud storage).  EXCEPT: If that data is shared. (see below).

Applicable Law:

The ECPA defines cloud data the same way it does draft emails – as storage – making a warrant unnecessary. However, shared files, such as a collaboration through Google Docs is considered “communication” so a warrant is required.

8. Social media: Too new to tell

How they get it

Read your social network’s Terms of Service and Privacy Policy. (Stop laughing.) When it comes to sites like Facebook, Twitter and LinkedIn, the social networks’ privacy policies outline how cooperative they are in handing over users’ data to law enforcement. Facebook states it requires a judge’s warrant to disclose a user’s “messages, photos, videos, wall posts, and location information.” But it will supply basic information, such as a user’s email address or the user’s IP addresses under a subpoena.

Applicable Law:

Too soon to tell but we’re know that a Manhattan Criminal Court judge upheld a prosecutor’s subpoena for information from Twitter regarding an Occupy Wall Street arrest on the Brooklyn Bridge in 2011, marking the first time a judge allowed prosecutors to use a subpoena rather than a warrant to get the information.

Bottom Line: Assume that everything you write can and will, if necessary, be read by law enforcement so don’t do whatever it is that you haven’t done.

BNI Operatives: Situationally aware.

As always, stay safe and stop typing your life online.

Electronic Crime Scene Investigations; Evidence Collection. II/II

In Part I of our two-part Electronic Crime Scene Investigations series, we covered recognizing and securing an electronic crime scene.  In this post, we delve into the actual investigation itself.

First and foremost, now that you have identified and isolated all persons with access from the crime scene, please ensure that they provide your investigator with a release similar to the below.  (Please check with your local law enforcement on particular jurisdictional guidelines.)

CONSENT TO SEARCH ELECTRONIC MEDIA AND CLOUD STORAGE
I, __________________, hereby authorize __________________, who has identified himself / herself as an investigator lawfully engaged by _____________________, and any other person(s), including but not limited to a computer forensic examiner, he / she may designate to assist him / her, to remove, take possession of and / or conduct a complete search of the following: computer systems, electronic data storage devices, computer data storage diskettes, DVDs, or any other electronic equipment capable of storing, retrieving, processing and / or accessing data and any and all cloud storage accounts that may contain any company information, files and references.
The aforementioned equipment and storage will be subject to data duplication / imaging and a forensic analysis for any data pertinent to the incident / criminal investigation.
I give this consent to search freely and voluntarily without fear, threat, coercion or promises of any kind and with full knowledge of my constitutional right to refuse to give my consent for the removal and / or search of the aforementioned equipment /data, which I hereby waive. I am also aware that if I wish to exercise this right of refusal at any time during the seizure and or search of the equipment / data, it will be respected.

This consent to search is given by me this ________ day of, __________________
20__________, at ____________ am / pm.

Location items taken from: ____________________________________________
Consenter Signature: ________________________________________________
Witness Signature: _________________________________________________
Witness Signature: _________________________________________________

Evidence Collection
Handling digital evidence correctly is essential to preserving the integrity of the physical device as well as the information or data it contains. Turning off the power to a computer or other electronic device may cause the information or data stored on it to be damaged or lost.
If you are not trained in handling digital evidence —
• Do not attempt to explore the contents of a computer or other electronic device or to
recover information from it.
• Do not alter the state of a computer or other electronic device.
• Do not press any keys or click the mouse.
• If the computer or device is off, leave it off.
• Do not move a computer or other electronic device that is powered on.
• Do not accept offers of help or technical assistance from unauthorized persons.
• DO request technical assistance from personnel with advanced equipment and training in digital evidence collection.  See http://www.ecpi-us.org/Technicalresources.html for a list of available resources.

Assess the Situation

Before caputring digital evidence, make sure you have the legal authority to do so. Improper access to information or data stored on electronic devices may violate provisions of various local, sate and federal laws.

After securing the scene and identifying the computer’s power status, follow the steps listed below for the situation most like your own. (If the final suggestion in each situation is “Proceed to If Computer Is On” or “Proceed to If Computer Is Off.”, those two sections are posted on the bottom on this article.)

Situation 1: Monitor is on. Program, application, work product, picture, e-mail or Internet site is displayed.

1. Photograph screen and record information displayed.
2. Proceed to “If the Computer Is ON”

Situation 2: Monitor is on. Screen saver or picture is visible.
1. Move mouse slightly without depressing buttons or rotating wheel if present.
2. Note any onscreen activity that causes a change in the display.
3. Photograph screen and record information displayed.
4. Proceed to “If the Computer Is ON”

Situation 3: Monitor is on. Display is blank.
1. Move mouse slightly without depressing buttons or rotating wheel if present.
2. Display changes to login screen, work product, or other visible display.
3. Note change in display.
4. Photograph screen and record information displayed.
5. Proceed to “If the Computer Is ON”

Situation 4a: Monitor is off. Display is blank.
1. If monitor’s power switch is in off position, turn monitor on.
2. Display changes to a login screen, work product or other visible display.
3. Note change in the display.
4. Photograph screen and record information displayed.
5. Proceed to “If the Computer Is ON”

Situation 4b: Monitor is off. Display is blank.
1. If monitor’s power switch is in off position, turn monitor on.
2. Display does not change. Screen remains blank.
3. Note that the display does not change.
4. Photograph blank screen.
5. Proceed to “If the Computer Is OFF”.

Situation 5: Monitor is on. Display is blank.
1. Move mouse slightly without depressing any buttons or rotating the wheel if present.
2. If display does not change, confirm that power is supplied to the monitor.
3. If display remains blank, check computer case for active lights and listen for fans spinning or other indications computer is on.
4. If computer case gives no indication that it is powered on, proceed to “If the Computer Is OFF”.

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If the Computer Is OFF
For desktop, tower and minicomputers follow these steps:
1. Document, photograph, and sketch all wires, cables, and devices connected to the computer.
2. Uniquely label and photograph the power supply cord and all cables, wires or USB drives attached to the computer and the connection each of these occupies on the computer.
3. Remove and secure the power supply cord from the back of the computer and from the wall outlet, power strip or battery backup device.
4. Disconnect and secure all cables, wires and USB drives from the computer and document the device or equipment connected at the opposite end.
5. Place tape over the floppy disk slot if present. Ensure that the CD or DVD drive trays are retracted into place and tape across the drive tray to prevent it from opening.
6. Place tape over the power switch.
7. Record the make, model, serial numbers and any user-applied markings or identifiers.
8. Record or log computer and all cords, cables, wires, devices and components according to agency procedures.
9. Carefully package all evidence collected to prevent damage or alteration during transportation and storage.

For laptop computers follow these steps:
1. Document, photograph and sketch all wires, cables and devices connected to the laptop.
2. Uniquely label and photograph all wires, cables and devices connected to the laptop and the connection each occupies.
3. Remove and secure the power supply and all batteries from the laptop computer.
4. Disconnect and secure all cables, wires, and USB drives from the laptop and document the equipment or device connected at the opposite end.
5. Place tape over the floppy disk slot if present. Ensure that the CD or DVD drive trays are retracted into place and tape across the drive tray to prevent it from opening.
6. Place tape over the power switch.
7. Record the make, model, serial numbers and any user-applied markings or identifiers.
8. Record or log the laptop computer and all cords, cables, wires, devices and components according to agency procedures.
9. Carefully package all evidence collected to prevent damage or alteration during transportation and storage.

If the Computer Is ON
Removing the power supply is generally the safest option. If evidence of a crime is visible on the computer display, however, request assistance from personnel with experience in volatile data capture and preservation.

Immediate disconnection of power is recommended when —
• Information or activity on screen indicates that information or data is being deleted or overwritten.
• A destructive process appears to be in progress on the computer’s data storage device(s).
• The system is powered on in a typical Microsoft Windows® environment. Pulling the power supply cord from the back of the computer will preserve information about the last user account logged in, login time, most recently used documents, most
recently used commands, and other valuable information.

Immediate disconnection of power is NOT recommended when —
• Information or data of apparent evidentiary value is in plain view onscreen. Seek assistance from personnel with advanced training in digital evidence collection.
• Indications exist that any of the following are active or in use: Chat room(s), text documents, remote data storage, Instant Messaging (IM), child pornography, contraband, financial documents, data encryption and obvious illegal activities.
• The device is a mobile or smart phone. Leave mobile and smart phones in the power state in which they were found.

Improper shutdown of mainframe computers, servers or a group of networked computers may result in the loss of data, loss of evidence and potential civil liability. Secure the scene and request assistance from personnel with advanced training in digital evidence collection of large or complex computer systems.

(We suggest you print Parts I and II of this series into a manual format.)

BNI Operatives: Street smart; info savvy.

As always, stay safe.

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