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Should Google search histories be admissible as evidence in a criminal trial?
Legally speaking, what's the difference between being convicted based on the history of your Google searches and being compelled to testify against yourself? Seems like a pretty gray area to me (though I'm no legal expert), even if your search history makes it clear that you thought you were guilty of a crime 
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Should search histories be admissible as evidence in a criminal trial?
I would say the simple answer is yes.
Let's compare search histories to a piece of physical evidence. Let's suppose I have a notepad on which I have scribbled some thoughts. Let's supposed I have done the physical equivalent of password protection by locking the notepad in the drawer, or better still, a safe. Now what are the rules about the admissibility of the notepad?
1) You can't enter my home and come looking for things unless you have a search warrant, or I agree to let you in. So before you can even come looking you must have some other grounds for suspicion.
2) Assuming that you have a proper search warrant, and you ask to open my safe, am I entitled to say "I exercise my right not to tell you the combination of my safe?" Well, maybe lawyers can argue anything, but I would say that it more or less defeats the point of having a search warrant if I can stop you looking in certain parts of my house. Therefore I'd say probably I don't have the right to not open the safe. And if I do, I would say that it's not unreasonable for the authorities to forcibly open the safe.
3) Ok, so you have discovered a notebook in my safe, and it has some scribbles in it that might indicate my guilt. Let's say I scribbled something like: "Auto repairs - go out of state?" Perhaps I even scribbled a to-do entry, "Check hit and run laws". Should these notes be inadmissible because they might have other interpretations than the ones that suggest my guilt?
I would suggest that they should be admissible, and at trial my lawyer is welcome to question if they mean what the prosecution claim, and propose alternative interpretations. For example, he may claim I intended to write an article on hit and run accidents. Or that I thought I might get a better deal on auto repairs out-of-state, and anyway I was going to visit my sister in the next state, so why not get the repairs done there? And for that matter, my lawyer might even try to argue that other people use my safe, and maybe even use that very notepad, so I might not have been the one that made those particular notes in the first place.
Personally I see nothing problematic about the admissibility of the notepad, even if one can ask questions about what the scribbles in it might prove or not prove.
Now is anything different because instead of a notepad in a safe we're talking about data on a computer?
I would say not. Sure, there may be more room for alternative interpretations of the evidence, for example arguing that some malware on my PC caused the data to be as it was, and I had nothing to do with it. But again that is for my lawyer to argue at trial, not a reason to rule out the evidence altogether.
An important point here is no one could be convicted solely on the basis of a search history or scribbles on a notepad. In fact, that evidence couldn't even be obtained unless there were other grounds for suspicion in the first place.
Note that in the Harbert case, the Appeal Court did not rule mainly on the basis of the search history, which was a minor element in the case. It ruled that the evidence showed the accident victim came up over the hood of Harbert's car with such force as to shatter the windshield and crumple the hood ornament. And that being so, Harbert's claim to have not known that he hit a human being rather than a deer was not at all plausible. The search history was just one more part of the evidence that also suggested Harbert knew what he'd done.
So while lawyers may be able to raise all sorts of technicalities, speaking from the standpoint of what is just and fair, and what I think *should* be the law - yes, search histories and other data on my computer should be admissible, providing they are lawfully obtained.
I would say the simple answer is yes.
Let's compare search histories to a piece of physical evidence. Let's suppose I have a notepad on which I have scribbled some thoughts. Let's supposed I have done the physical equivalent of password protection by locking the notepad in the drawer, or better still, a safe. Now what are the rules about the admissibility of the notepad?
1) You can't enter my home and come looking for things unless you have a search warrant, or I agree to let you in. So before you can even come looking you must have some other grounds for suspicion.
2) Assuming that you have a proper search warrant, and you ask to open my safe, am I entitled to say "I exercise my right not to tell you the combination of my safe?" Well, maybe lawyers can argue anything, but I would say that it more or less defeats the point of having a search warrant if I can stop you looking in certain parts of my house. Therefore I'd say probably I don't have the right to not open the safe. And if I do, I would say that it's not unreasonable for the authorities to forcibly open the safe.
3) Ok, so you have discovered a notebook in my safe, and it has some scribbles in it that might indicate my guilt. Let's say I scribbled something like: "Auto repairs - go out of state?" Perhaps I even scribbled a to-do entry, "Check hit and run laws". Should these notes be inadmissible because they might have other interpretations than the ones that suggest my guilt?
I would suggest that they should be admissible, and at trial my lawyer is welcome to question if they mean what the prosecution claim, and propose alternative interpretations. For example, he may claim I intended to write an article on hit and run accidents. Or that I thought I might get a better deal on auto repairs out-of-state, and anyway I was going to visit my sister in the next state, so why not get the repairs done there? And for that matter, my lawyer might even try to argue that other people use my safe, and maybe even use that very notepad, so I might not have been the one that made those particular notes in the first place.
Personally I see nothing problematic about the admissibility of the notepad, even if one can ask questions about what the scribbles in it might prove or not prove.
Now is anything different because instead of a notepad in a safe we're talking about data on a computer?
I would say not. Sure, there may be more room for alternative interpretations of the evidence, for example arguing that some malware on my PC caused the data to be as it was, and I had nothing to do with it. But again that is for my lawyer to argue at trial, not a reason to rule out the evidence altogether.
An important point here is no one could be convicted solely on the basis of a search history or scribbles on a notepad. In fact, that evidence couldn't even be obtained unless there were other grounds for suspicion in the first place.
Note that in the Harbert case, the Appeal Court did not rule mainly on the basis of the search history, which was a minor element in the case. It ruled that the evidence showed the accident victim came up over the hood of Harbert's car with such force as to shatter the windshield and crumple the hood ornament. And that being so, Harbert's claim to have not known that he hit a human being rather than a deer was not at all plausible. The search history was just one more part of the evidence that also suggested Harbert knew what he'd done.
So while lawyers may be able to raise all sorts of technicalities, speaking from the standpoint of what is just and fair, and what I think *should* be the law - yes, search histories and other data on my computer should be admissible, providing they are lawfully obtained.
source(s):
http://www.mahalo.com/Lee_Harbert
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/01/15/BAK515BHS8.DTL
http://cbs5.com/local/moraga.hit.run.2.909504.html
http://www.mahalo.com/Lee_Harbert
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/01/15/BAK515BHS8.DTL
http://cbs5.com/local/moraga.hit.run.2.909504.html
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Very thorough take on the situation. You've convinced me.
Great question.
I can definitely think of reasons for and against allowing google histories, but in the end I think my answer would be no.
For one, they are hearsay issues. Just because you searched for "how to hide a body" doesn't mean that you had a body to hide and introducing your search would only be for the purpose of proving that you did.
There is also the 5th amendment issue as you mention in your question. It is still up in the air, but some jurisdictions have found that forcing you to reveal a password violates the 5th amendment and based on that I think this would violate your rights as well. The difference here is that the statements were already made whereas the password itself is a new statement you are making.
I can definitely think of reasons for and against allowing google histories, but in the end I think my answer would be no.
For one, they are hearsay issues. Just because you searched for "how to hide a body" doesn't mean that you had a body to hide and introducing your search would only be for the purpose of proving that you did.
There is also the 5th amendment issue as you mention in your question. It is still up in the air, but some jurisdictions have found that forcing you to reveal a password violates the 5th amendment and based on that I think this would violate your rights as well. The difference here is that the statements were already made whereas the password itself is a new statement you are making.
source(s):
Law School
Law School
It guess it depends if I'm the one on trial. In that case no,in any other circumstance, yes.
source(s):
tinycomb.com
tinycomb.com
The 5th is about self incrimination. In other words, the court can't ask you what you looked up on Google. Searching your Google records is different, more like looking through phone logs. That is often done in court cases.
Recently in Louisiana a few dim-bulb KKK types got caught after a murder when they aroused suspicion by asking at a convenience store for the best thing to remove bloodstains. I think that if a court subpoena got records of bloodstain removal searches that could be entered in court, although of course it would only be one item of evidence to weigh.
Recently in Louisiana a few dim-bulb KKK types got caught after a murder when they aroused suspicion by asking at a convenience store for the best thing to remove bloodstains. I think that if a court subpoena got records of bloodstain removal searches that could be entered in court, although of course it would only be one item of evidence to weigh.
Shouldn't the histories tied to a gmail user account be password protected requiring you to give up your password?
Even if you don't have gmail and the only connection is by IP address then there is even less proof who was sitting at the computer and actually performed the search. At least if you are logged in to your gmail account there is something to connect you (or whoever has your password) to that computer and those searches.
Even if you don't have gmail and the only connection is by IP address then there is even less proof who was sitting at the computer and actually performed the search. At least if you are logged in to your gmail account there is something to connect you (or whoever has your password) to that computer and those searches.
A search history is similar to a phone call, with one important exception. A person generally has to physically pick up the phone to make a call. All kinds of programs can execute searches on your behalf, often without you even knowing. This is just a subset of the browser history/cookie/cache issue, where third-party sites can set cookies/load pages without your consent.
Yes.
They shou;ld be admissible just as any other evidence. Whether it can support the case being made is another matter.
They shou;ld be admissible just as any other evidence. Whether it can support the case being made is another matter.
I am not a legal expert either, just a Master's student and Legal and Ethical Studies. From what I've seen and from my understanding of the 5th Amendment, the only way a search engine history could cross into that territory is if it can be proved that it was the accused who conducted the search. Computer forensics can prove the search occurred, but there must be other evidence to prove that it was the accused who conducted the search, such as a login or that person has the only access to that computer.
However, you also have to remember that other things you have done, as the accused, can be used against you as well (phone bills, credit card statements, bank statements, etc.). These are all histories of things you've done. Although you did them, it is up to the prosecutor to prove that the sum of those actions proves beyond a reasonable doubt that you committed a crime.
But, many of these types of evidence have been allowed as a matter of legal precedent. I would see that only a compelling argument in front of the Supreme Court would get this type of evidence ruled as inadmissable because it violates your rights under the Constitution
However, you also have to remember that other things you have done, as the accused, can be used against you as well (phone bills, credit card statements, bank statements, etc.). These are all histories of things you've done. Although you did them, it is up to the prosecutor to prove that the sum of those actions proves beyond a reasonable doubt that you committed a crime.
But, many of these types of evidence have been allowed as a matter of legal precedent. I would see that only a compelling argument in front of the Supreme Court would get this type of evidence ruled as inadmissable because it violates your rights under the Constitution
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