England and Wales dropping rape inquiries when victims won’t hand in phones
theguardian.com
theguardian.com
If a complaining witness refuses to cooperate in an investigation by handing over relevant information, it would be inappropriate for the government to proceed toward a prosecution.
In the United States, there is case law requiring the prosecution to turn over exculpatory material known to the government. In my jurisdiction, that specifically includes the existence of relevant exculpatory material held by a complaining witness.
The fact that the only person capable of providing that evidence refuses to do so allows the drawing of an adverse inference, which means it's presumptively exculpatory. Refusal to turn over exculpatory evidence is per se a violation of the defendant's rights.
Sexual assaults of all kinds are horrific, and we should generally do a better job investigating and prosecuting them, but not at the expense of basic due process rights. Everyone deserves a fair trial.
Perhaps you stopped reading the article part way through?
> Olivia (not her real name) reported being drugged and attacked by strangers. Police asked for seven years of phone data, and her case was dropped after she refused. “My phone documents many of the most personal moments in my life and the thought of strangers combing through it, to try to use it against me, makes me feel like I’m being violated once again,” she said.
“This isn’t about trying to stop the police from putting together the facts of the case. This isn’t about objecting to the police downloading information from the time that it happened. This is about objecting to the police downloading seven years of information that pre-dates the event and therefore has zero relevance.
“I kept trying to ask them if the data that they took could be restricted just to the period of time of relevance to what actually happened, and they said no.
“They told me that if I didn’t consent, they may just drop the case and may not proceed with it. They have now dropped the case citing one of the reasons being that I have not handed over seven years of my personal life which is of complete and utter irrelevance to that one night.
“I am willing to hand over the information that is relevant to what happened – I’m not willing to hand over seven years’ worth of information that is totally and utterly irrelevant.”
In the US, you would probably still have to get it all, but the prosecutor would likely be able to limit what was turned over to the defense. And if the defense wanted more, they might be able to get a neutral third-party to look at the data and decide whether it should be turned over (or the judge might do this). I don't know if the UK has something similar where the prosecutor can avoid turning all data over to the defense.
It might be that there is no good way to handle this type of case.
https://en.wikipedia.org/wiki/Brian_Banks_(American_football...
In no sane world should the victim be expected to expose ALL of her private information. It's the digital equivalent of getting robbed in a dark alley, and the cops telling you they will drop the case unless you allow them to search your home.
As a general rule, the proponent of a claim bears the burden of proving it. This general rule is even more important in the context of criminal allegations. I don't think there should be an exception just because of the sexes of the complaining witness and the subject of the complaint.
I don't know where on earth you got that from. The police can and do need to get a warrant in order to confiscate or search the accused person's devices or belongings. The warrant needs to explain with probable cause, why those specific devices/belongings are relevant to the case and need to be searched. If the cops can't provide probable cause for searching a device, they aren't allowed to do so.
> the proponent of a claim bears the burden of proving it
Hence why I said that it is the accuser's responsibility to provide any and all relevant evidence. You are going one step further and saying that the accuser should give up all claims to privacy, in the entirety of their life. Ie, if I want to press charges against someone for robbing me in a dark alley, I need to allow the police to search my house. This is a ridiculous way to structure any criminal justice system.
Thank you for the explanation. In my 11 years as an attorney, my experience has been that warrants are issued freely based on a complaining witness's statements. Has your experience been different?
> You are going one step further and saying that the accuser should give up all claims to privacy
I don't believe I claimed that at all. Productive conversation is easier if both parties fairly characterize one another's positions.
Enjoy the rest of your day.