The use of digital evidence in criminal cases has evolved over time as technology has advanced and now constitutes 90% of current cases.
This information aims to provide an overview of the use of digital evidence in criminal cases, highlight the number of wrongful convictions associated with digital evidence, and explore areas where new technology can be used to uncover additional evidence.
The Early Days
The field of digital forensics emerged in the 1980s as a response to the increasing adoption of personal computers and the corresponding need to investigate computer-related crimes.
1982
The FCC approved commercial cell phones.
1983
In March, Ameritech introduced 1G cell phones in the US.
AT&T engineered the first commercial cellular system in Chicago and Baltimore D.C. on behalf of Bell Co.
1984
There were 25,000 cell phone users in the United States.
The Bell Company was split into seven smaller companies: Ameritech, BellSouth, Pacific Telesis, Southwestern Bell, Bell Atlantic, NYNEX, and U.S. West.
Cellular technology evolved into the cell carriers we know today as AT&T, Verizon, and T-Mobile.
1G – Cell phones could only make voice calls – providers began to cover the country with cell sites. Cell phone companies created their own Wireless Infrastructure network by building as many towers as possible.
The FBI Laboratory and other law enforcement agencies began developing programs to examine computer evidence. The FBI established the Computer Analysis and Response Team (CART).
1985
In 1985, there were just 340,213 mobile phone subscribers.
The FCC reallocated spectrum at 2 GHz for emerging digital mobile services.
1990s
By 1990 there were more than 5 million mobile phone subscribers
1991
The second generation (2G) of cell phones was introduced, featuring encrypted calls, enhanced sound quality, and improved data transfer capabilities.
2G began with the introduction of text messaging and SMS.
1992
In 1992, Qualcomm successfully launched the first cellular system using Code Division Multiple Access (CDMA) technology. CDMA is a wireless communication method that enables multiple signals to share the same frequency band without causing interference.
1993
The FBI hosted an International Law Enforcement Conference on Computer Evidence, where it was determined that there was a significant need for established standards in computer forensic science, which were largely lacking at the time.
1994
The Communication Assistance for Law Enforcement Act (CALEA) requires telephone companies to modify their network architectures, making it easier for law enforcement to conduct wiretaps on digital telephone calls.
1995
The U.S. Secret Service reported that 48 percent of law enforcement agencies had established computer forensic laboratories.
1996
On May 10, 1996, the Wayback Machine web archive was launched. The site allows investigators to view snapshots of websites at specific dates and times, providing a record of how the site has changed over time.
1997
The Postal Inspection Service Laboratory established a Computer Forensic Unit
The federal crime laboratory directors in the Washington, DC were instrumental in forming what is now known as the Scientific Working Group Digital Evidence (SWGDE).
The FBI hosted an International Law Enforcement Conference on Computer Evidence which resulted in the formation of the International Organization on Computer Evidence (IOCE) and a Scientific Working Group on Digital Evidence (SWGDE).
1998
June 17,1998, the Technical Working Group Digital Evidence (TWGDE) held their first meeting.
August 1998 SWGDE began to draft definitions. These definitions, as well as standards, were presented at the International Hi-Tech Crime and Forensics Conference held in London in October 1999 (SWGDE/IOCE, 2000).
The forensic software EnCase was created in 1998. This software is used to forensically collect, preserve, and analyze, electronic evidence from many different digital devices. The Encase Certification became a minimum standard for computer forensic experts to achieve.
1999
January 24, 1999
Vernon Horn and Marquis Jackson wrongfully convicted
After spending 18 years in prison, Vernon Horn and Marquis Jackson were exonerated in 2018 with the help of exculpatory cell site location data that had not been disclosed to the defense. After five appeals, the exculpatory cell site records were finally discovered in the possession of a retired police detective.
February 1999, TWGDE was changed to SWGDE. The Scientific Working Group Image Technology (SWG-IT) is closely associated with SWGDE and was originally part of SWGDE.
2000s
The International Association of Computer Investigative Specialists (IACIS) and the National Institute of Standards and Technology (NIST) started providing guidelines and best practices for digital investigations.
2001
In Kyllo v. United States, the Supreme Court of the United States found that it was unlawful and against the Fourth Amendment to aim a thermal-imaging device at a private home from a public street without a warrant.
The third generation (3G) of cell phones was deployed, which had four times the data transfer capabilities of 2G.
June 30, 2001
Leigh Stubbs and Tammy Vance convicted
After spending 12 years in prison, Leigh Stubbs and Tammy Vance were released in 2012 due to the failure to disclose an FBI report analyzing exculpatory surveillance video evidence.
USA PATRIOT Act – Congress enacted the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act. The act expands the government’s authority to monitor phone and email communications.
2002
August 16, 2002
Lisa Roberts wrongfully convicted
After spending nearly 10 years in prison for manslaughter, Lisa Roberts was released in 2014 due to the defense’s failure to investigate cell site location data evidence.
2003
April 3, 2003
Alfred Brown wrongfully convicted
After spending 10 years in prison on a murder charge and facing the death penalty, Alfred DeWayne Brown was exonerated in 2015 with the help of exculpatory cell phone record evidence that had been withheld from the defense by the prosecution..
Cell phone number portability becomes the Law – The Federal Communications Commission (FCC) implemented rules allowing consumers to retain their cell phone numbers even when switching service providers. This portability law enabled larger entities to acquire smaller carriers and their tower leases, contributing to the creation of extensive nationwide wireless infrastructure networks.
Room 641A – AT&T’s telecommunications interception facility, known as Room 641A, began conducting warrantless surveillance of internet activity, both domestic and international, but its existence was not revealed until 2006.
2004
February 4, 2004
Facebook Launched in 2004. As of Q4 2023, Facebook had 3.065 billion monthly users. These statistics make it the mostly used app.
Julie Amero
Julie Amero, a teacher from Connecticut, was accused of showing pornographic images to middle school students on their computers. It was later proven that the school’s antivirus software was outdated and hadn’t been updated. The school computer was running expired anti-malware software and a Windows 98 operating system. This case demonstrates why having an expert testify is essential.
The Communication Assistance for Law Enforcement Act (CALEA) was expanded by the Federal Communications Commission (FCC) to include Internet service providers (ISPs) and some VoIP services.
Mid 2000s
The increase in mobile devices and digital media storage prompted analysts to develop techniques for extracting evidence from a variety of devices, including cell phones, USB drives, and portable memory cards.
2006
Room 641A – Whistleblower and AT&T employee Mark Klein revealed the existence of an AT&T telecommunications interception facility called Room 641A.
August 24, 2006
Giovanni Hernandez wrongfully convicted
After spending 25 years in prison, Giovanni Hernandez was released and exonerated in June 2023 due to the defense’s failure to independently investigate exculpatory cell site location data evidence.
Hassan Bennet wrongfully convicted
After spending 13 years in prison on a murder charge, Hassan Bennett was released and exonerated in 2019 due to the defense’s failure to independently investigate exculpatory cell phone records.
2007
First Apple iPhone was released there were 1.39 million sold.
May, 25, 2007
Google Street View was launched and initially available only in five major cities: San Francisco, Las Vegas, Denver, Miami, and New York City.
Cellebrite Reader, part of the mobile forensics division, was launched in 2007. This tool, which includes UFED, allows investigators to extract data from mobile devices, even data that has been previously deleted or is password-encrypted. Cellebrite is now the leading cell phone forensic extraction tool used by law enforcement.
2008
Apple iPhone sales were 11.6 million for the year.
Olin “Pete” Coones wrongfully convicted
After spending more than 10 years in prison and being charged with murder, Pete Coones was released and exonerated in 2017 due to the defense’s failure to independently investigate exculpatory digital evidence.
Section 702 was passed as part of the Foreign Intelligence Surveillance Act (FISA) Amendments Act and authorizes the collection of foreign intelligence from non-Americans located outside the United States.
2009
Apple iPhone sales were 20.7 million for the year.
February 24, 2009
Patrick Murray wrongfully convicted
After spending almost 5 years in prison facing charges of conspiring to create marijuana, manufacturing marijuana near a school, and endangering human life while creating marijuana, Patrick Murray was released in November 2013 due to the police’s misuse of cell site location data evidence.
Jerome Loach wrongfully convicted
After spending 11 years in prison, Jerome Roach was released in 2020 due to the defense’s failure to independently investigate exculpatory cell phone and location data alibi evidence.
The Wayback Machine – by the end of 2009 the Wayback Machine (Website archives) had saved more than 38.2 billion web pages.
2010
This year, there were 59 million cell phone users, which is equivalent to 23% of the U.S. population.
Apple iPhone sales totaled 39.9 million for the year.
Magnet Axiom forensic software was founded in 2010. Its features include the ability to analyze, report, and manage evidence from various technology sources.
October 6, 2010
Instagram was launched, and it keeps a digital history, including messages, logins, photos, timestamps, and account details. The number of users on Instagram since its launch is:
- Day one: 25,000 users
- One week: 100,000 users
- Three months: One million users
- Six weeks: Two million user
India Spellman wrongfully convicted
After spending 13 years in prison facing murder charges, India Spellman was released and exonerated in 2023 due to the defense’s failure to independently investigate exculpatory cell site location data evidence.
2011
Apple iPhone sales were 72.3 million for the year.
It was reported that there were 234 million cell phone users for the year.
George Cortez wrongfully convicted
After spending 5 years in prison facing murder charges and a sentence of life without parole, George Cortez was released and exonerated in 2016 due to the defense’s failure to independently investigate exculpatory cell phone video evidence.
Donovan Cadogan wrongfully convicted
After spending more than 5 years in prison facing charges of possession and distribution of child pornography, with a sentence of life without parole, Donovan Cadogan was released and exonerated in 2017 due to the defense’s failure to independently investigate exculpatory digital computer evidence.
Herbert Alford – Wrongfully Convicted
After spending 5 years in prison facing charges of murder, Herbert Alford was released and exonerated in 2020 due to new cell site location data evidence.
2012
Apple iPhone sales were 125.0 million for the year.
Leigh Stubbs and Tammy Vance wrongfully convicted
After spending 12 years in prison and facing charges of assault, theft, and drug possession, Leigh Stubbs and Tammy Vance were released due to the failure to disclose the FBI report analyzing exculpatory surveillance video evidence.
United States v. Jones – In United States v. Jones, the Supreme Court of the United States ruled that using Global Positioning System (GPS) tracking devices without a warrant violated the Fourth Amendment and was unconstitutional.
2013
There were 326.4 million mobile phone subscribers in the U.S. alone.
Apple iPhone sales were 150.2 million for the year.
Snowden Revelations – Edward Snowden leaked information from the NSA about their collection of phone records from millions of cell phone customers and internet users, based on their Facebook and Google usage.
The National Domestic Communication Assistance Center (NDCAC) adds a database of cellular site locations for law enforcement when investigating cell provider records. Cellular providers were not keeping historical data for cellular sites making it hard to investigate crimes using cellular tower usage data leading to wrongful convictions.
Christopher Lyman wrongfully convicted
After spending 8 years in prison facing charges of murder and a sentence of life in prison, Christopher Lyman was released and exonerated in 2023 due to the defense’s failure to independently investigate exculpatory digital computer evidence.
Derrick Harris wrongfully convicted
After spending 7 years in prison facing charges of robbery, Derrick Harris was released and exonerated in 2020 due to the defense’s failure to independently investigate exculpatory cell phone records and cell site location data evidence.
Darryl Williams wrongfully convicted
After spending 9 years in prison facing charges of robbery, Darryl Williams was released and exonerated in 2022 due to the defense’s failure to independently investigate exculpatory cell site location data evidence.
November, 2013
Patrick Murray wrongfully convicted
After spending almost 5 years in prison, Patrick Murray was released due to the police’s misuse of cell site location data evidence.
2014
July 2014 – Digital Innocence Article Published
An article written by two law professors from Cornell University, Joshua A.T. Fairfield and Erik Luna, discusses various tools such as Big Data, data mining, ubiquitous consumer tracking, and digital forensics. These tools can be used to prevent wrongful convictions and provide real proof of actual innocence for those already convicted.
Apple iPhone sales were 169.2million for the year.
Riley v. California, 573 U.S. 373, the Court ruled that the warrantless search and seizure of the digital contents of a cell phone during an arrest is unconstitutional under the Fourth Amendment.
Lisa Roberts released
After spending almost 10 years in prison, Lisa Roberts was released due to the defense’s failure to investigate cell site location data evidence.
2015
For the year, 59.4% of the US population had a cell phone.
Apple iPhone sales were 231.2 million for the year.
July 23, 2015 Summer – Google Maps Timeline started
This setting allows GPS location data to be tracked by Google. The retention of this data can go back to when the account was first created and represents a possible area of where new location data evidence could be found.
Alfred Brown released
After spending 10 years in prison, Alfred DeWayne Brown was exonerated with exculpatory cell phone record evidence withheld from the defense by the prosecution.
The USA FREEDOM (Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring) Act replaced the USA PATRIOT Act, limiting the government’s authority to collect data.
2016
81% of the US population were mobile phone users.
Apple iPhone sales were 211.8 million for the year.
George Cortez released
After spending 5 years in prison, George Cortez was released and exonerated due to defense failure to independently investigate exculpatory cell phone video evidence.
Maurice Bradford wrongfully convicted
After spending 5 years in prison facing charges of a violent felony, Maurice Bradford was released in 2021 for defense failure to independently investigate cell site location data evidence.
2017
91% of the US Population were cellphone users.
Apple iPhone sales were 216.7 million for the year.
Feature (Burner) Phone – Kai OS Launched
KaiOS Technologies Inc., a Hong Kong-based company, developed the operating system that runs on burner cell phone models such as TracFone, Nokia, and Alcatel, selling millions of devices across the U.S. This operating system was not supported by digital forensic extraction tools, and no data could be forensically obtained from cell phones running KaiOS until Cellebrite’s update in 2020.
Olin “Pete” Coones released
After spending more than 10 years in prison, Pete Coones was released and exonerated due to failure by the defense to independently investigate exculpatory computer digital evidence.
Donovan Cadogan released
After spending more than 5 years in prison, Donovan Cadogan was released and exonerated due to the defense failure to independently investigate exculpatory computer digital evidence.
2018
95% of the US population were cellphone users for the year.
Apple iPhone sales were 217.7 million for the year.
Vernon Horn and Marquis Jackson released from prison
After spending 18 years in prison, Vernon Horn and Marquis Jackson were exonerated with exculpatory cell site location data evidence not disclosed to the defense.
Carpenter v. United States, the Supreme Court of the United States found that the use of historical cell-site location information (CSLI) without a warrant was in violation of the Fourth Amendment.
2019
81% of the US population owned mobile phones.
Apple iPhone sales were 187.2 million for the year.
Hassan Bennet released
After spending 13 years in prison, Hassan Bennett was released and exonerated due to defense failure to independently investigate exculpatory cell phone records.
2019 Nijeer Parks
In 2019, Nijeer Parks of Woodbridge, NJ, was placed in jail for the time period of 10 days based on unreliable facial recognition software.
May 2019, Michael Oliver
In Detroit, Michael Oliver was accused of a felony charge for reaching into a teacher’s vehicle, grabbing a cellphone, and damaging it along with the protective case. The teacher had called 911 because students were fighting and wrestling. He used his cellphone to record the incident, and the recording continued as another student (not Michael Oliver) reached in and grabbed the phone. Michael Oliver had multiple tattoos on his arms, which were visible in the video, but the person who snatched the phone did not have any tattoos. The police used both facial recognition and the teacher’s response in the photo lineup to proceed with arresting Michael Oliver. However, it was clear from the video that it was not Michael Oliver who had reached into the vehicle. He was charged with felony larceny, but the case was later dismissed when the video and the photo of Michael Oliver were presented to a judge. The teacher later confirmed that there had been a misidentification.
2020
Apple iPhone sales were 196.9 million for the year.
Jan 21, 2020 – Cellebrite Announces Update
First-time decoding support for devices running the KaiOS operating system, such as TracFone, Nokia, and Alcatel. Until this release, there was no forensic tool that could extract and decode data from cell phones running KaiOS. Since its release in 2017, millions of cell phones running KaiOS have been sold across the U.S. and can now be extracted using the latest Cellebrite software.
January 29, 2020 Cellebrite Checkm8 Launches
The Checkm8 update for Cellebrite’s report launches. This software now allows much more data to be recovered from iPhone models as far back as the iPhone 5s, which was released in 2013, than what was previously recoverable.
January 2020 Robert Williams
In January 2020, Robert Williams was detained for a total of 30 hours under suspicion of robbery, based on grainy surveillance footage provided to law enforcement, which was run through facial recognition software and matched to an expired driver’s license photo. Mr. Williams was the first documented case of wrongful arrest due to the use of facial recognition technology (FRT).
Jerome Loach released
After spending 11 years in prison, Jerome Roach was released due to the defense’s failure to independently investigate exculpatory cell phone and location data alibi evidence.
Herbert Alford released
After spending 5 years in prison, Herbert Alford was released and exonerated due to new cell site location data evidence.
Derrick Harris released
After spending 7 years in prison, Derrick Harris was released and exonerated due to the defense’s failure to independently investigate exculpatory cell phone records and cell site location data evidence.
2021
Maurice Bradford released
After spending 5 years in prison, Maurice Bradford was released for defense failure to independently investigate cell site location data evidence.
Apple iPhone sales were 242.0 million for the year.
2022
97% of the US Population owned a cellphone for the year.
Apple iPhone sales were 232.2 million for the year.
Darryl Williams released
After spending 9 years in prison, Darryl Williams was released and exonerated due to defense failure to independently investigate exculpatory cell site location data evidence.
Randal Reid November 25, 2022- December 01, 2022
Police officers in Louisiana were found to rely too heavily on facial recognition when they arrested Randal Reid. He was in jail for a week after a false facial recognition match led the officers to issue a warrant for his arrest.
Spring 2022 Alonzo Sawyer
Alonzo Sawyer was wrongfully accused of assaulting a bus driver near Baltimore and stealing their smartphone. Since the bus had CCTV footage, the police used this footage with facial recognition technology, which later labeled Alonzo Sawyer as a possible match. He was in jail for nine days and missed work, including construction contracts.
2023
97% of the US Population owned a cellphone for the year
Apple iPhone sales were 231.3 million for the year.
Christopher Lyman wrongfully convicted
After spending 8 years in prison, Christopher Lyman was released and exonerated due to defense failure to independently investigate exculpatory digital computer evidence.
February 16, 2023Porcha Woodruff
Jailed at 8 months pregnant and held for 11 hours because of false facial recognition, Porcha Woodruff was charged with carjacking and robbery and had to post a $100,000 bond to be released. After her release, Ms. Woodruff had to be treated at the hospital for pregnancy complications. The case was dropped a month later because the Detroit police made her arrest solely based on the faulty AI facial recognition match. Porcha Woodruff is at least the sixth person to report being falsely accused of a crime as a result of facial recognition technology. All six individuals have been Black.
India Spellman released
After spending 13 years in prison, Indian Spellman was released in exonerated due to failure by the defense to independently investigate exculpatory cell site location data evidence.
June 2023
Giovanni Hernandez released
After spending 25 years in prison, Giovanni Hernandez was released and exonerated 2023 due to defense failure to independently investigate exculpatory cell site location data evidence.
2024
FISA Expiration – Section 702 of the Foreign Intelligence Surveillance Act (FISA) is set to expire on April 19, 2024, but the program has been authorized to continue operating until April 2025. Under the law, the surveillance activity can continue as long as there are active court orders allowing it.
Mass v Michael Fiola – The Commonwealth prosecuted Michael Fiola based on a finding that he allegedly downloaded child pornography to his computer. Authorities did not consider that Mr. Fiola’s computer had been infected with spyware. Independent experts hired by the defense eventually caused the Commonwealth to drop the charges.
CONCLUSION
Misapplied Forensics / Weak Defense– Cell Site Data
According to the Bureau of Justice Statistics (BJS), approximately 11 million people go through the justice system in the United States each year, and more than 90% of criminal cases now involve some form of digital evidence.
Our study of public defenders in Connecticut, who received digital evidence training and resources, showed that a significant number of pre-trial wrongful convictions were prevented.
This demonstrates the need for a national minimum standard of training and highlights the positive impact that expanding resources nationwide can have.
Need for Nationwide Minimum Standard of Training
There is an urgent need for standardized training across the nation. By establishing minimum standards that must be met for defense, it ensures that every accused person has a fair chance.
It also guarantees that the Sixth Amendment right to fair and competent legal representation is upheld, eliminating claims of inadequate defense altogether.
These standards would ensure that each case is handled ethically and correctly.
Uncovering New Digital Evidence
New software, such as Checkm8, the KaiOS operating system, and Google Maps, can be essential in proving actual innocence. Both Checkm8 and the KaiOS operating system were developed by the company Cellebrite.
Checkm8 now allows data to be recovered from iPhone models as far back as the iPhone 5s, which was released in 2013. Cellebrite’s KaiOS software enables extractions from phone models like TrackPhone, Nokia, and Alcatel.
This software allows for the extraction of more data from a wider range of phone types. As for Google Maps, location data is retained on the device for 90 days, and the Google Maps timeline can provide access to this data within that period.
AI/Facial Recognition
There are at least seven confirmed cases of misidentification due to facial recognition technology, six of which involve Black individuals who were wrongfully accused and reported. This revision simplifies the sentence structure and clarifies the meaning.
Access to Big Data
In 2013, Edward Snowden revealed secret NSA surveillance programs such as the Hemisphere Project, which assists both local and federal law enforcement in analyzing a massive database of call records, including the time, date, and length of calls.
This project has access to telecommunication switches. Additionally, the Co-Traveler Project helps identify and track individuals who carry a cell phone across the nation.
These projects, which gather and store what seems to be all or most of the data of Americans, are commonly referred to as Big Data. Access to Big Data for the defense can prevent wrongful convictions and provide proof of actual innocence for those already convicted.
Need for Post Conviction Review
More people have been wrongfully convicted based on digital evidence than most realize. The National Exoneration Registry reveals that a significant number of exonerations were caused by digital evidence, much of which was not tracked in the registry and dates back to 1999.
A leading cause of these wrongful convictions was weak defense regarding cell site location data records, highlighting the urgent need for post-conviction review. Since 1997, over 499 million cell phone subscriptions and phones have been sold in the U.S., with approximately 11 million people passing through the justice system each year.
This suggests that a significant number of wrongful convictions, influenced by digital evidence, may remain unrecognized, underscoring the need for nationwide post-conviction review.
