Posted by MachIVshooter: One such ["very questionable case"] as the Larry Hickey case, where the physical evidence is not very conclusive, the majoriy of witness testimonies do not favor the defender, and in which the use of deadly force being necessary is not immediately clear.
I think, then, that
any shooting in which witnesses do not support the defender's account, and in particular, his account of what led
to a shooting, would be questionable by that standard. And I agree.
And that probably encompasses
most shootings that occur outside of the household, away from security cameras, and away from crowds.
Personally, I worry more about lack of supporting evidence more than anything else except risk to innocent third parties.
IMO, it's always going to be difficult to prove lethal force was justified when the attackers were unarmed, because proving a disparity of force (especially when you have very limited evidence of injury) really comes down to who is believed.
That is very true, but it is another subject.
And as I also said, even if it could be proven that the post is unaltered and originated from the defendant's computer, how would a prosecutor prove beyond a reasonable doubt that the defendant was the one actually sitting and typing those words? My computer is left on pretty much all the time, and I usually don't lock it down. It remembers my passwords here, so simply opening THR will automatically log someone in. Same with just about any other board, FB, etc. Now, I happen to live alone, and very few people other than me use my computer. But a lot of people have teenage kids, roommates, etc. So I ask again, how do you prove that the defendant actually typed the words? Short of a webcam recording who is at the computer at a given time, all the time, and keeping that video feed stored indefinitely, they can't. No amount of digital wizardry can prove what is unprovable. And when it is questionable whether or not a person actually said something, it becomes heresay.
That and similar arguments have been put forth often, trial courts have nonetheless admitted such as evidence, defendants have appealed with the argument that the trial courts erred in admitting the evidence, and those arguments have been rejected by appellate courts in rulings that have become the governing case law.
Two other things--(1) it has been ruled that the occurrence of
occasional, minor alterations do not constitute a basis for not admitting evidence, and (2) the fact that something is hearsay does not, in many cases, make it inadmissible.
This is not uncharted territory. The use of electronic media evidence in a defense of justification case is probably very rare, because such cases occur rather infrequently. There have, however, been numerous cases involving financial reporting, taxes, money laundering, insider trading, intellectual property theft, product liability, conspiracy, restraint of trade, Internet stalking, pornography, terrorism, and espionage, to name a few examples, so the subject of tracing and authenticating digital information for use as evidence is not a new one.
Even if it is ruled admissable, still have to get a Jury to believe it.
Very true.
Didn't really work out for the prosecution in the Hickey case.
Nor should it have, given the context, but for whatever reasons, Hickey failed to get an acquittal in two trials.
And digital evidence does often result in or help bring about convictions and success in civil suits.
Take me, for example: Say I one day ended up shooting a home invader. I'm sure I've said more than once here that I wouldn't hesitate to use deadly force against a home invader. Well, once they bring that in, my defense would then be able to put up the dozens of posts I've made in which I've said I'd rather not kill anyone,...
In my opinion, statements that are balanced by other statements should not prove a problem.
The problem will arise when someone who consistently comes across as a chest pounding "shoot 'em down on sight" personality who has made statements that we would call "blood lust" on more than one occasion, then has the misfortune to be involved in a use of force situation in which his prior comments could cause reaonable persons to qustion his possible state of mind.
That is what we are trying to caution against here.