Criminal defense lawyers must look at how a lewd or lascivious battery case is effected by the influence of emails and instant messaging. Like text messages exchanged via cellular networks, emails and instant messaging can be retrieved by issuing a subpoena duces tecum.
However, unlike text messages, emails and instant messaging is stored for a much greater period of time, unless deleted by the user. Once deleted, the data is only retrievable by the email or instant messaging provider for a short period of time before it is lost.
Most people do not know this, but many instant messaging providers offer a feature that records all instant messaging in chat logs. These logs record every word that was entered into the chat by both parties. In fact, these logs look like a transcript.
Depending on the chat service provider, this feature may be enabled as a default setting. In other services it may be a specific setting that a user has to intentionally enable.
Regardless, contrary to both party’s knowledge, their entire chat conversation may be recorded by one of or both parties. Because of the nature of these chat logs, law enforcement has three opportunities to obtain chat logs. They can be retrieved from the alleged victim, from the defendant, and from the chat service provider.
Chat logs can be very incriminating or they can be very exculpatory… depending on what was said. Sometimes chat logs will establish that the alleged victim and defendant engaged in compromising conversations about sex or about making plans to meet and have sex. In yet other instances, chat logs can be shown to contradict a claim previously made by an alleged victim or other witness. Sometimes victims will lie about what happened not realizing that chat logs would later be revealed. Sometimes such lies can unravel an entire case for prosecutors.
Pictures and Videos Taken on Smartphones
Given the huge popularity and technical capabilities of smartphones, electronic evidence in the form of photos and videos are becoming more and more common in lewd or lascivious battery prosecutions. Unbelievably, many offenders have been caught on camera while engaged in the sex act with the teenager. When prosecutors obtain such evidence, either from the alleged victim or from the actual phone, it can be very devastating for a defendant.
However, that does not mean there is no recourse or no defense. When such images are taken from the defendant’s phone, Constitutional privacy laws apply. In other words, if police obtained the videos or pictures from an illegal search and seizure, the images would become inadmissible at trial.
Pursuant to the U.S. Constitution, each and every person has a right to privacy. Law enforcement is not allowed to search your private property without warrant issued by a judge, absent specific circumstances.
For example, if exigency exists, police are allowed to enter private property and conduct a search. Any evidence they discover pursuant to a search premised on exigency would be admissible. Exigency can occur when a life or death situation ensues. For example, if 911 gets a all from a home that a burglar broke in, police are allowed to enter the property to make sure everyone is ok. If they enter the property under these circumstances any evidence they find is admissible.
When it comes to images on cellular phones, it is unusual to encounter a case that involves exigency. However, that does not mean that police cannot obtain a search warrant to look inside the phone. With a search warrant, police would be able to look inside the phone and gather information from call logs, chat logs, emails, and any other information contained in the phone.