In this case, everything revolves around a fact that cannot be directly measured: the father's state of mind when he left his child in the hot car. Depending on that fact, the exact same physical acts could be anything from premeditated murder to negligent homicide to no crime at all.
State of mind has always been proven through this sort of circumstantial evidence. In the pre-internet days, the sort of evidence the police would've used would be his comments to neighbors and others prior to the incident. If he had asked a veterinarian about how long it would take to kill an animal in a hot car, that sort of evidence would be admitted as evidence of his state of mind. A WebMD search should be treated no differently. It's ridiculous to say that web searches aren't highly relevant to a person's state of mind. Heck, that's the foundation of Google's whole business model!
> This case aside, is there anyone reading this whose e-mails, text messages, and web searches couldn't be cherry-picked to portray any state of mind a prosecutor might want to portray?
Schneier ignores the temporal dimension. The prosecutors can't just cherry-pick some text messages and web searches to portray a particular state of mind. They have to pick records that can be strung together into a coherent narrative that is consistent with the timing of the internet activity and the timing of the crime.
They have to pick records that can be strung together into a coherent narrative that is consistent with the timing of the internet activity and the timing of the crime.
This idea is so bad that it has a specific term: confirmation bias.
If you have enough facts, you can cherry-pick them to suit almost any coherent, consistent narrative. Web browsing especially delivers enormous amounts of content from which to cherry-pick to suit a narrative.
IMO storytelling, and wholesale embracement of confirmation bias, is probably the biggest weakness of adversarial justice. I think it turns justice into a game of who's the better storyteller.
Confirmation bias is defined as (OED): "The tendency to interpret new evidence as confirmation of one’s existing beliefs or theories."
The adversarial justice system is expressly designed to avoid confirmation bias. That's the whole point of the "adversarial" part. While the prosecution might be prone to selectively interpreting the facts to confirm its own beliefs, the defense counsel is tasked with poking holes in that interpretation. That's why defense counsel has the independent opportunity to present evidence, and to cross-examine the prosecution's witnesses to poke holes in their story.
>>The prosecutors can't just cherry-pick some text messages and web searches to portray a particular state of mind. They have to pick records that can be strung together into a coherent narrative that is consistent with the timing of the internet activity and the timing of the crime.
Can the defenders do the same as prosecutors and use lack of WebMD "how long does it take to die in car" search as evidence as well ? Are they going to get access to internet search history of the accused ?
They supposedly obtained the information from seizing and browsing of the computer. In that case it won't be very convincing if accused use the same method: "here, go seize my computer and see there is nothing there!".
That creates asymmetry: one kind of evidence could potentially be used to make given hypothesis more believable but lack of the evidence couldn't be used against it.
It seems to me, it's very dangerous state of affair. Especially if it's police/prosecutors who get easier access to this kind of evidence (the defenders would have to for example ask NSA for search history to make it believabl while prosecutors only need to seize the computer and if they do seize it an find nothing their case won't be any weaker as they just won't present the fact).
Yes, defense counsel would have access to the evidence the prosecution is using against the defendant, and has powers to get other relevant evidence. And they would make that argument. In a jury trial, web search history would usually be presented by a police investigator. The prosecutor will ask him questions to elicit the picture the prosecution wants to paint, while defense counsel has the opportunity to cross-examine the witness to poke holes in that picture.
Say the investigator testifies that the defendant searched for: "how long does it take for a dog to die in a car?" On cross, defense counsel would definitely point out: "but the defendant didn't search for how long it would take for a baby to die in a car, and he did have a dog he might have been worried about leaving in the car."
Yeah I understand that defense has resources when the argument about intent/state of mind is already made based on search history but I am interested what happens if prosecution searched the computer, haven't find anything and didn't even mention that or flat out refused to seize the computer (because maybe they had reasons to suspect there is nothing to be found).
Can the defense say: "there is nothing suspicious found in the searches so that's evidence the accused didn't plan on killing his child" ?
Minor point but the hearing where this evidence was presented was actually a probable cause hearing, not the trial. Still, the defense can inspect these searches in discovery (fairly sure that's so in Georgia though not a lawyer) and rebut the narrative of the prosecution.
It is possible that some of those searches were done to see how to avoid having harm come to the child (e.g. knowing what temperature is dangerous so that you could keep the temperature below that point at all times). You would also need to know the state of mind when the search was made.
State of mind has always been proven through this sort of circumstantial evidence. In the pre-internet days, the sort of evidence the police would've used would be his comments to neighbors and others prior to the incident. If he had asked a veterinarian about how long it would take to kill an animal in a hot car, that sort of evidence would be admitted as evidence of his state of mind. A WebMD search should be treated no differently. It's ridiculous to say that web searches aren't highly relevant to a person's state of mind. Heck, that's the foundation of Google's whole business model!
> This case aside, is there anyone reading this whose e-mails, text messages, and web searches couldn't be cherry-picked to portray any state of mind a prosecutor might want to portray?
Schneier ignores the temporal dimension. The prosecutors can't just cherry-pick some text messages and web searches to portray a particular state of mind. They have to pick records that can be strung together into a coherent narrative that is consistent with the timing of the internet activity and the timing of the crime.