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Comment by autoexec | Hacker News Reader

> I guess don't bring your phone to a bank robbery.

You should also make sure not to bring your phone to anywhere where a nearby crime is happening because that's all it takes to make you a suspect and force you spend a bunch of money defending yourself. https://www.nbcnews.com/news/us-news/google-tracked-his-bike...

Hopefully rulings like this make that scenario a little less likely to happen, but it doesn't stop it entirely, it just means that the police need to spend 15 minutes to get a rubber-stamped warrant before they turn everyone within a few miles of crime into a suspect.

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one of the more fun things I learned during criminal court in Texas is that the absence of forensic evidence cannot exonerate an individual. The prosecutor and the judge covered that despite not having any forensic evidence, the jury would still be expected to be able to convict the defendant. If you weren't OK with that you weren't eligible to serve on a jury.

They are trying to avoid a situation where you end up with one juror who watches a lot of CSI and insists that they need forensic evidence to convict, despite having a dozen eye-witnesses. If a juror cannot imagine a circumstance where the evidence could be beyond a reasonable doubt based on non-forensic evidence, then they aren't suitable to be a juror.

For example, if you're sitting in your living room with a bunch of other people, many of whom know each other, and two people start fighting, you are all witnessing a crime and you can also all identify the two people fighting. It would be ridiculous to require DNA evidence in that situation.

At the same time though, a bunch of people who know each other and the people allegedly involved could very easily share the same incorrect testimony. You wouldn't believe in bigfoot if 5 guys drinking beers swore they saw him while they were camping. Sending someone to prison or worse is much higher stakes. DNA evidence might be too extreme, but I'd expect some sort of evidence to back up a testimony. "What if the witness was wrong" just seems like always a reasonable doubt, or at least the number of witnesses who would need to corroborate something such that it ceases to be a reasonable doubt is impractically high.

It's a nitpick, but testimony under oath is evidence to US courts. All evidence is either testimonial or circumstantial.

An old lecture on unreliability of witnesses:

https://youtu.be/GrAME1p2Ijs

Courts are not solving math equations and despite the popular belief to the contrary, most lawyers and judges are not bumbling fools. But to use math as an example of why you don't need an "impractically high" number of witnesses:

  - Let's assume "reasonable doubt" is 0.1%, so you need to be 99.9% sure someone is guilty before voting them guilty
  - Let's assume a random witness to a random crime has a 5% chance of getting some material fact wrong through no fault of their own
  - Let's assume that if you are on trial, there is a 20% chance you are guilty, based on the assumption if you're guilty and know you're cooked you're more likely to plea out, so the people remaining at trial are the truly innocent, the guilty who think they can beat the case, and the guilty who are just rolling the dice.

You still only need 3 witnesses telling the same story to reach >99.9% assurance of guilt. The odds of an innocent person getting convicted with 3 witnesses under this standard is 1 in 8,000.

In reality, witnesses are probably more than 95% accurate with material facts, especially when these are collected in isolation at different times, probably by different police officers.

And if we're being honest with ourselves, a lot more than 1 out of 5 people on trial are guilty of what they're being charged with. The bar for a DA to bring charges is very high, their entire careers are based on conviction rate.

Damn its almost as if juries exist to act as the sovereign so the violence which sustains the law can be vested in a general public that cannot be held accountable as a whole, similarly to how at least one member of a firing squad always has a blank.

Or perhaps the standards of evidence established for a pre-industrial society when eye-witness testimony was the best that could reasonably be achieved is not necessarily the optimal system for a digital society where everyone carries a high definition video camera in their pocket at all times.

Yes a high definition video camera that is slowly becoming indistinguishable (and has always been subject to tampering regardless) from an artificially generated version. We never have anything beyond judgement.

This is why crimes used to have prosecution time limits. Nobody expected eye witness accounts to surface after 40 years. But DNA is eternal.

DNA is not eternal, but neither is anyone's memory trustworthy for that long.

Prosecution time limits and those pesky rights people have is why so much stuff that would've been simple misdemeanors 70+yr ago is now "administrative" and "civil" law.

But in what way do you believe these standards are inadequate? Video from phones is used in courts when available and admissible.

I think the idea is to test (with the jury as a sample) if the evidence is compelling enough for society at large to agree with the verdict. It's rarely going to be 100% clear cut so the jury has to use their judgment.

> I think the idea is to test (with the jury as a sample) if the evidence is compelling enough for society at large to agree with the verdict.

Exactly. It's all about consent of the governed. We need the government to prove that they've got a valid reason to take someone's freedom before we let them do it. That's also why jury nullification is so important. It's another check on government to make sure that we feel that the laws we're being held to and the punishments we'll face when they are broken are acceptable.

Jury nullification is a double edged sword. There are near countless examples of a jury determining a white man killing a black man isn’t a valid reason to take the white man’s freedom.

Eye-witness evidence: so unreliable it's an active insult that people gesture towards it as one of the pinnacle forms of evidence.

Reminds me of the Norm Macdonald bit where he says he would not convict someone based on DNA evidence. The punch line is something like "I'm not a scientist, what do I know about DNA?"

Was your prior assumption that forensic evidence must exist in every case—and that if it doesn’t, then there’s no way to convince a jury of someone’s guilt?

As in, as long as I clean up really well afterward, I can pretty much do what I want?

I think you're missing the slippery slope that this goes down. The criminal charges were way too low, given the alleged actions. The state admitted it had absolutely no forensic evidence. The judge was perfectly fine with this and selecting a jury that was OK convicting in this circumstance. This pretty quickly pretty us down a path of "you're guilty of at least one crime since you've been indicted, maybe a more serious one if we have some evidence".

Does that mean that every single conviction from before the days of forensic evidence is necessarily invalid?

If the argument is that forensic evidence decreases uncertainty, well, it certainly doesn’t eliminate uncertainty.

Convicting anyone of anything is a slippery slope. The only way to be truly sure is to never do it, ever.

The standard of both investigations and the effectiveness of mostly part time police were pretty low. Most police were elected or appointed officials with deputized staff. The levels of training and professionalism were poor.

Why do you think many places would execute petty thieves? So few were caught generally speaking the punishment had to be severe.

The case was a shooting. It seemed remarkable they had neither a gun, spent cartridge cases, blood, flesh, wounds, or anything in the way of physical evidence.

The question remains what they did have.

presumably the local noble didnt like them, and the jury knew to follow along.

the south is also known for putting people in prison without even having a charge. just a guilty result

In terms of physical evidence? None.

Evidence, not physical evidence. The instructions seem entirely reasonable.

There is no hard rule for physical evidence. If other evidence is enough to convince 12 jurors beyond a reasonable doubt, it could be very significant.

Individuals don’t require exoneration in court.

The prosecution, regardless of unethical grandstanding, have a duty to prove the case without any resaonable doubt. They hold the burden of proof.

I would, of course, agree with them as physical evidence isn’t necessarily a requirement to prove a case beyond a reasonable doubt. But I would certainly draw my own inference from their mendacity if they used those words.

Your duty as a juror is to make a determination of fact and apply the law as guided by the judge to reach a verdict. When the prosecutor gives you some blabber approaching instructions, that’s an attempt to influence you.

Five (or fifty-five) people giving unambiguous eyewitness testimony that clearly identified the defendant and the crime he committed, with them all keeping their stories consistent under hostile cross-examination has exactly zero forensic evidence... but if you, as a juror, found all of that persuasive, it sounds like it should be enough to convict.

> If you weren't OK with that you weren't eligible to serve on a jury.

same reason they are really out to disqualify jurors who know about jury nullification https://en.wikipedia.org/wiki/Jury_nullification

I'm surprised they'd even need to say that, let alone people who heard it were just learning it. I would imagine the overwhelming majority of cases don't involve forensic evidence. I've only had close involvement in a handful of cases that resulted in a conviction, but none involved forensic evidence. In one they took fingerprints (and the handle to our cash drawer, which they never returned), but that didn't result in a conviction.

This just means that you can't insist someone is innocent despite overwhelming evidence just because they didn't leave any forensic evidence behind which is completely reasonable.

I mean...yeah?

If someone commits a crime and ten people in the room say they were also in the room and that person did it, that shouldn't get thrown out because the suspect didn't leave a fingerprint.

I think he’s saying that if the 10 people witnessed a murder via gunshot that it would be mighty suspicious if the state didn’t bother to bring any forensic evidence of the shooting to court and instead relied solely on those eyewitness testimonies. At some point the absence of forensic evidence might look more like a deliberate attempt to keep exculpatory evidence out of reach of the defendant than a good faith attempt to prosecute.

Perhaps, but that coin has two sides. A lot of people have watched a ton of crime shows and that warps their sense of what "reasonable doubt" is.

I mean of course if not 10,000 people could stand in a room, watch someone murder another, and then all 10,000 come and testify exactly who it was and what the jury would not be allowed to convict?

If 10000 people witnessed a crime for which there was no physical evidence present, yeah I'd say something is very suspicious and would not convict.

If 10,000 people witnessed someone pushing someone off a rooftop, you wouldn't convict that person?

How about one person and a rape accusation from 20 years ago?

A rape accusation just under the statute of limitations is going to require more than just a single accusation. Obviously physical evidence is impossible but they usually go on any information the victim shared with associates ("she told me he raped her the previous night" or there's an authenticated diary detailing the crime), the closeness of the suspect and victim (they knew eachother and likely were in close proximity), any corroborating witness testimony ("I saw him follow her home that night after the party"), and any character witnesses that may have shared similar experiences ("he was rough in bed and wouldn't take no for an answer"). It's difficult to convict on old crimes like this so a DA is going to be very selective on choosing to prosecute, they aren't going to waste their time if the accusation is paper thin or the victim is unreliable. Of course it's entirely possible everyone involved is lying but again, a careful DA is going to do their research before trying the case.

A suspect is under no obligation to prove their innocence but when it comes to circumstantial witness testimony, the suspect absolutely must do everything they can to fight the narrative.

That's the purpose of statute of limitations.

Didn't many states eliminate or raise those for large categories of violent crimes? This means that a rape today for example could be prosecuted decades from now

Absence of evidence is not evidence of absence.

The expectation of evidence makes its absence significant, but not definitive.

>You should also make sure not to bring your phone to anywhere where a nearby crime is happening because that's all it takes to make you a suspect

Proximity to a crime makes you a suspect even without the phone, right?

A one hour period and 150 meter radius of a bank surrounded by cornfields? sure.

A one hour period and 150 meter radius of a bank surrounded by high-rises and public transit? no.

I think you might be confusing what the issue is.

As we see in this case, the (likely) person in this case was actually found from the relatively small number of people who fit this criteria, so police were (likely) right to suspect these people.

The issue is not who the police may or may not suspect. it is about reasonable expectation of privacy. If they had obtained this exact same list of people who were near that bank for that time by a means that did not violate their reasonable expectation of privacy, then the evidence couldn't be challenged on that basis.

I’m fully aware of the privacy concerns here; but that wasn’t the topic I was engaging in.

I’m saying that practically, being within a radius as the bird flies does not make you functionally “within the area” when there’s a huge z axis in a city.

When someone robs the retail of the ground floor of a high rise, there are many people who were right on top of the crime scene measured by lat/lon but were actually 10 minutes away by foot, hundreds of feet away in actual distance, and in no way aware it was even happening.

> reasonable expectation of privacy

That cracks me up honestly.

Imagine in the 1980s if every citizen was compelled to carry a ghetto blaster with 100W amplifier and speakers that relentlessly blared our SSN, phone number, home address and bank accounts.

In biblical times, of course, lepers were legally compelled to identify themselves and warn others with analogous methods.

Now today we all voluntarily carry around radio transceivers that loudly blare unique identifiers, perpetually, omnidirectionally, to anyone and anything that will listen.

Wired connections are so aggressively deprecated that we’re also perpetually exchanging every private conversation, and every secret SMS MFA code, and every DNS lookup, over public airwaves.

It’s not our fault and it’s beyond our control, but if you carry such a ghetto blaster, don’t cry to us about expecting privacy.

>A one hour period and 150 meter radius of a bank surrounded by high-rises and public transit? no.

Two weeks of no leads and that no is gonna start looking an awful lot like a yes.

Picking 1000+ people at random doesn’t fix that problem

Surely one of those thousand can be made to look guilty enough for a prosecution. Solves the problem of looking like you're doing something real well.

The system does not care about prosecuting criminals. It cares about prosecuting people for crimes. While it may prefer to prosecute criminals for their specific crimes that is by no means a hard requirement.

Only if it's known that you were ever there in the first place, and people that typically wouldn't ever be considered, like someone who is quietly visiting in the living room of someone who lives nearby, will fall under scrutiny when police are just getting the data of everyone in a certain radius.

I've been just leaving my phone at home lately. I recommend it.

There's no indication that this guy had to hire a lawyer or actually do anything. The same location data that put him near the scene/time of the crime would also absolve him. I guess it's sad that he felt the need to pay for a lawyer.

Google told him that he would have to go to court to block the release of his identifying data to the police. He was not told what the request was about. At that time, he could only guess that it was related to the break in that happened near his home almost a year ago.

A lawyer at that point was a very good idea. Especially since all it takes is an arrest to cause you to lose your job and make it very difficult to get another one. It wasn't until after his lawyer got involved that the state attorney’s office contacted the police and told them this guy wasn't a likely suspect.

He would have used the same data Google already gave the police to win his case in court anyway, but it's a very good thing he managed to avoid having to deal with any of that before things went any farther.

Wouldn't the police have just looked at his location data and see that he lived nearby and rode his bike by often, and that he never stopped at the house?

The absolutely should have, but they didn't bother. They didn't even need to go back to review his history to figure out his patterns of activity. At the day of the crime he never stopped at the house and was in continuous motion.

I mean in this case it would also have helped not to have $100k in cash from a bank robbery laying around.

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