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>>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

>>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).

rayiner 12y ago
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."
- torkins 12y ago
  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.
- bluecalm 12y ago
  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" ?

rayiner 12y ago

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."

torkins 12y ago
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.
bluecalm 12y ago
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" ?