Everything you say...

[RNB65]

It's called e-discovery - a procedural process to discover electronic documentation about you: Every website you surf, every e-mail you send, every bulletin board/social networking message you post, every on-line chat you have, every item you purchase on-line, etc.

E-discovery is still somewhat limited. The laws regarding e-discovery are in their infancy and most companies are confused about exactly what they're supposed to be capturing and archiving. But sadly, Big Brother is watching the Internet closer and closer all the time. E-discovery will definitely play an increasingly important role in both criminal and civil litigation in the 21st century.

 

[RNB65]

And they would know it was indeed you who made those posts how?

In a criminal investigation, they would execute a search warrant and seize every electronic device you use (PC's, disk drive, thumbdrives, etc.) in both your home and workplace. Then go thru them with a find toothed comb until they can match the on-line activity with what they find on your computers. It's really not difficult to do. Quite easily, actually.

Windows (and even Mac OSX and Linux to a lesser extent) has a silly little habit of recording all types of interesting stuff in little temp files which are very difficult to locate unless you know exactly where they are and how to get rid of them. Those files can remain out there for a long, long time. And even when they are deleted, they can still often be recovered by someone with the right computer forensics tools. Deleting a file does not physically remove it from the harddrive.

It never occurs to most folks who do silly crap on-line that their computer may be sitting on the desk of a computer forensics expert one day. Once they hand you the search warrant, it too late to try to cover your tracks.

 

[JohnnyGrey]

This is why you should be done with it and just encrypt your hard drive. There are some not very nice people out there who wouldn't mind planting some illegal material on your PC.

 

[DRYHUMOR]

Hard drives save everything, everywhere you went, all you wrote or looked at.

Deep background checks look at the sites you may have visited, your shopping habits, phone habits, anything out of the "norm" for what is the acculmulation of "you"

There really is no privacy, unless you are completely off the grid.

However, unless you have said something out of the "norm", you are just another one of the millions of entities that are out there. Living life, paying taxes, and growing older.

 

[RacingJake]

I re-format the hard drive every year, helps clean things up and the computer run better, cause the wife and kids like to download alot of junk :banghead:

 

[crimsonaudio]

No, you guys missed my point - without a witness testifying they physically saw you post it (and not someone else from your computer with your login info), I can't see how it would be admissible...

 

[FCFC]

No, you guys missed my point - without a witness testifying they physically saw you post it (and not someone else from your computer with your login info), I can't see how it would be admissible...

Passworded transactions...

 

[crimsonaudio]

Passworded transactions...

What does that mean?

If you are referring to posting on a website such as this that requires a password, I'll bet most people have theirs saved so they don't have to log in every time - IOW, anyone with access to their computer could post anything...

 

[JohnKSa]

I can see your point, but even with all the braggadocio, if your assailant dies as a result of you defending yourself, unless you empty a couple of mags into him at point blank range, or roll him over and place one up into his brain from the base of his skull, there would be little if any weight placed upon what you "espoused" on the Internet.

Remember, not going to jail is good, but not going to court is better. And even if you aren't charged or prosecuted you still may have to deal with a wrongful death suit in civil court.

People take homicide very seriously, making statements about how you intend to kill someone (vs stopping a crime in self-defense) is not likely to be laughed off by the courts.

Do you see some benefit in making statements like the one I mentioned? I'm not saying people don't have the right to make such statements, so there's no need to argue from that standpoint. I'm saying that it's not smart and that it could come back to haunt a person. Do you think it IS smart or advisable? If not, I'm curious as to why you're arguing the point.

If you are referring to posting on a website such as this that requires a password, I'll bet most people have theirs saved so they don't have to log in every time - IOW, anyone with access to their computer could post anything...

Sure, if a person logs on to a website and makes a single post then you could make a case for that. If a person visits a website for a period of years then it's easy to prove that it's them and not someone who just happened to find their computer logged on and posted something. Remember, civil cases don't need to be proved beyond a reasonable doubt, they only have to be proved by a preponderance of the evidence. If 50.0001% of the evidence says it's you and 49.9999% says it's not then you're guilty in civil court. Not at all the same as in criminal court.

The original post on this thread is "a word to the wise". Obviously it's not going to resonate with everyone...

 

[RNB65]

No, you guys missed my point - without a witness testifying they physically saw you post it (and not someone else from your computer with your login info), I can't see how it would be admissible...

Judges typically allow computer forensics evidence to be presented if it is relevant to the case, the prosecution's expert witness is able to defend its reliability, and a documented chain of custody exists. It's up to the defense attorney to attack the credibility of the evidence.

The problem the defense has is that the average juror's computer knowledge doesn't go beyond the point-and-click level. They're probably going to believe whatever they're told by the prosecution's expert witness -- the computer forensics examiner.

Also, understand that the standard of proof in a criminal case isn't absolute doubt, it's only reasonable doubt. Plenty of people have gone to the electric chair based on purely circumstantial evidence. The standard of proof in a civil case is even lower.

 

[crimsonaudio]

Judges typically allow computer forensics evidence to be presented if it is relevant to the case, the prosecution's expert witness is able to defend its reliability, and a documented chain of custody exists. It's up to the defense attorney to attack the credibility of the evidence.

The problem the defense has is that the average juror's computer knowledge doesn't go beyond the point-and-click level. They're probably going to believe whatever they're told by the prosecution's expert witness -- the computer forensics examiner.

Also, understand that the standard of proof in a criminal case isn't absolute doubt, it's only reasonable doubt. Plenty of people have gone to the electric chair based on purely circumstantial evidence. The standard of proof in a civil case is even lower.

Ahh, very good - thanks for the explanation. IANAL ("obviously" cheers the crowd), so I'm trying to figure out how this works. Appreciate your time!

And FWIW, I'm not one to make stupid claims or comments (beyond the basic stupidity I show in my normal posts), so I've got little to worry about...

 

[ConstitutionCowboy]

People take homicide very seriously, making statements about how you intend to kill someone (vs stopping a crime in self-defense) is not likely to be laughed off by the courts.

I can understand how such statements as these could be brought up. That still does not relieve the prosecution of their burden of proof that in a righteous self defense killing that the victim fully intended to kill his assailant rather than simply defend himself.

Do you see some benefit in making statements like the one I mentioned? I'm not saying people don't have the right to make such statements, so there's no need to argue from that standpoint. I'm saying that it's not smart and that it could come back to haunt a person. Do you think it IS smart or advisable? If not, I'm curious as to why you're arguing the point.

No, I haven't said that at at all. I wouldn't say it is advisable, or that there might be some benefit to making such statements; just that it's a person's right as you have agreed.

So many times you hear people say, "Make sure you drag the corps into the house," or some such thing. Saying it doesn't mean said person did that unless said person actually did do that. That could show prior intent.

All I'm arguing is that it's the prosecution's burden of proof to show some intent beyond self defense - beyond what was necessary to defend oneself in a particular situation. How far one must go to defend oneself is up to the aggressor.

Can the prosecution prove less force would have been sufficient? Drugs and alcohol can alter more than just a person's mind and make them damn near impervious to pain and result in aggression continuing to the moment such a person actually bleeds to the point of unconsciousness or death. All the intended victim knows is that his life is still in jeopardy. That's the reason you often hear of the "Two in the center of mass, then one in the head," tactic. If the assailant is down but still firing, a victim must shut down the control center. Sure, if an intended victim can find sufficient cover, or otherwise make an effective positive escape from the downed assailant - unless, of course, it's happening in your own home or other place you have a right to be and expect safety - killing is out of the question, and what you have said previously probably can be used against you.

I don't think the simple fact that a person may have said something "beyond the pale" is cause enough to cast doubt upon a righteous self defense act that might end in the death of the aggressor.

Woody

 

[JohnKSa]

All I'm arguing is that it's the prosecution's burden of proof to show some intent beyond self defense...

True, and documented statements about how your goal is to kill someone vs stop an attack will make their burden of proof much lighter. After all, if they have a statement from you indicating that your intent was to kill the assailant, not just stop the attack then how hard is it going to be for them to prove that your intent went beyond self defense?

Can the prosecution prove less force would have been sufficient?

They can certainly show by the use of statements like the one I posted as an example that a person's response was not based purely on the circumstances of the situation. That's pretty incriminating--nearly every lethal force law states that the defender must be convinced that lethal force is immediately necessary and that it's the only reasonable alternative. If you've stated ahead of time that you are going to kill the attacker then you're clearly not basing your decision to use lethal force on whether it's immediately necessary or reasonable for the existing circumstances.

I don't think the simple fact that a person may have said something "beyond the pale" is cause enough to cast doubt upon a righteous self defense act that might end in the death of the aggressor.

Again, this is likely (but not certainly) true in a criminal case unless the circumstances are already somewhat in question. But in a civil case, the burden of proof is MUCH lighter and such a statement could certainly make the difference between winning and losing.

 

[ConstitutionCowboy]

They can certainly show by the use of statements like the one I posted as an example that a person planned kill regardless of the level of force that would have been sufficient.

The prosecution would still have to prove that excessive force was actually used to make such a statement relative. Postmortem wounds would be sufficient evidence. Security camera recordings could provide evidence. Enough witnesses could provide such evidence. Saying something on a web site is not enough evidence unless something like what I mentioned has occurred to show the ill intent. Otherwise, isn't it only hearsay? Nothing you post on a web site is a sworn statement.

Woody

 

[JohnKSa]

The prosecution would still have to prove that excessive force was actually used to make such a statement relative(sic).

The fact that you killed someone in a given situation would make any statement you've made about your intent to kill someone in that situation pretty darn relevant.

Saying something on a web site is not enough evidence unless something like what I mentioned has occurred to show the ill intent.

What could possibly prove ill intent better than a person's own statement of ill intent?

Hearsay is someone repeating what they heard from someone else, what you say yourself about what you plan to do is not hearsay.

You are correct that what's posted online is not sworn testimony, but I'm not sure why you think that would make a difference. Do you believe that only what you say as sworn testimony is admissible as evidence? That's not correct at all.

 

[ConstitutionCowboy]

Well, it wouldn't have near the weight of a sworn statement. Then too, I wonder about the admissibility of a statement made that wasn't Mirandized. Without Miranda making the statement admissable, all you have left is hearsay which will get tossed by a competent judge anyway.

Woody

 

[hvengel]

IOW, anyone with access to their computer could post anything...

Why would someone else have access to your account on your computer?

Do you have individual accounts on your computer for each authorized user?

Are all of those accounts secured by a password that is known only to the owner of that account?

Do you have things setup to require hard to break account passwords (IE. must be changed regularly, requires a minimum length and all passwords must be a mix of characters that includes letters and numbers...)?

Do you have your administrative (root) account password secured so that only you or whoever handles administrative duties for the computer knows the password?

If you answered anything other than yes to any of the last four questions then you need to spend some time making your computer secure. Doing these things is only the starting place for having a secure computer system but I would bet dollars to donuts than at least half of the users who post here have not taken care of these very basic security issues.

 

[Bartholomew Roberts]

Then too, I wonder about the admissibility of a statement made that wasn't Mirandized.

You are only entitled to a Miranda warning if you have been arrested. You are free to make all the voluntary, incriminating statements you want prior to your arrest and this includes posting in public forums.

Without Miranda making the statement admissable, all you have left is hearsay which will get tossed by a competent judge anyway.

Statements by a party-opponent (i.e. you) are not hearsay. Also not falling under the category of hearsay are prior consistent or inconsistent statements by a witness. It would be pretty easy to fit a post made on THR into one of those categories in the event of a shooting, I think.

Even if you somehow managed to avoid those issues, there are many exceptions to hearsay including statements against interest and reputation that may be allowed in some cases.

 

[ConstitutionCowboy]

Well, with Miranda blown out of the water, it wouldn't be necessary to have such a statement entered by a third party who saw it on the Internet and, therefore, no hearsay would come into the picture in the first place.

... You are free to make all the voluntary, incriminating statements you want prior to your arrest and this includes posting in public forums.

How very true. But, what about a response that you were exercising your freedom of speech? You wouldn't be threatening anyone in particular. You wouldn't be slandering or libeling anyone. To say such a statement was meant to apply to a certain person who died as a result of you defending yourself would constitute an abridgment of what you said.

I'll still lay the burden of proof upon the prosecution and limit the charges to what was actually done and provable, and not on a general statement. If you say, "The next time So'n'so punches me in the nose, I'll kill him!", and he punches you in the nose and you kill him, yes, I'd say what you said could certainly be brought up to show some form of prior intent.

But, as you all say, what you do post could very well be introduced, or the attempt made to introduce what you have said. I still contend that it is up to the prosecution to prove it was actually prior intent and that such an act of "self defense" was actually carried out to include that intent in the execution of the self defense and the harm inflicted wasn't actually necessary to stop the attack.

Woody

 

[JohnKSa]

But, what about a response that you were exercising your freedom of speech?

A response like that would be considered meaningless, or at best irrelevant. The fact that you have the right to free speech doesn't mean that you are free to say whatever you want with impunity from any consequences whatsoever. The government can not restrict what you say, but the idea that you can say whatever you want and it will never have any consequences at all is not reality.

You wouldn't be threatening anyone in particular. You wouldn't be slandering or libeling anyone. To say such a statement was meant to apply to a certain person who died as a result of you defending yourself would constitute an abridgment of what you said.

Woody, I don't mean this in an insulting or unpleasant way, but I don't think you have any idea what you're talking about. You're using words (e.g. abridgement & hearsay) in ways that makes it plain you don't understand what they mean and you're making comments that are either meaningless or totally irrelevant (e.g. relevance of Miranda & freedom of speech).

The bottom line is that you need to do some more research on this topic, your understanding of it is badly flawed, and the consequences of not understanding this topic could be quite serious.

 

[ConstitutionCowboy]

Oh, I understand fully what all this entails. You made a statement that ignores what I said about slander, libel, and abridgment and said I'm not free to say anything I want with impunity. My mention of slander and libel proves I understand otherwise.

Now, how about you backing up your claims with an actual case or two where something someone said about how they would defend them self was used against them in court ... or are you just speculating?

Woody

 

[Bartholomew Roberts]

Sorry Woody; but I have to go with JohnKSa on this one. You are using terms with specific legal meanings; but the way you are using the terms, I have no idea what it is you are actually trying to say.

Freedom of speech is not a defense to either an incriminating statement at a criminal trial nor to a defamation case in a civil trial.

I still contend that it is up to the prosecution to prove it was actually prior intent and that such an act of "self defense" was actually carried out to include that intent in the execution of the self defense and the harm inflicted wasn't actually necessary to stop the attack.

As near as I can tell, nobody is arguing anything different with you. What they are pointing out is that statements on the Internet (i.e. "I have nothing to be afraid of!I will kill anybody who sets foot in my house.") can be used to help meet that burden of proof. They likely will be discovered in a criminal or civil trial and they likely will be admissible.

 

[ConstitutionCowboy]

I'll ask you the same question I asked JohnKSa, Bart: Can you list a self defense case or two where something said by the defendant on the Internet was used against them?

Woody

 

[crimsonaudio]

hvengel, thanks for the topical yet unnecessary advice. My Macs all have individual (non-admin) user accounts and quite frankly, I work at home, so this isn't an issue for me anyway. I'm posting potential 'what ifs' that show that anything posted to an internet forum can't possibly be proved to have been written by anyone. I'd say better than 90% of the computers I've ever come across in people's homes were totally unsecured and could easily be used to post whatever one wished...

 

[mbt2001]

If today, I braggadociously depict how I'd deal with this situation or that, and tomorrow I am forced to "empty a mag into" some BG on the street, what then? The local prosecutor will surely capitalize on my loose tongue.

Well, at the end of the day, you either were justified or unjustified. So I am not sure how relavent this is.