Internet History As Circumstantial Evidence

In June of 2014, Justin Ross Harris left his 22 month-old son in the backseat of his SUV on a scorching hot day in Georgia, while he went in to work. There, his son died, in an excruciating fashion, of hyperthermia. Harris is now facing eight charges, including malice murder and two counts of felony murder and cruelty to children in the first degree.

When this case first came to light, it was treated as other cases that had sprung up during that time: a horrible, awful mistake, that the parent’s would have to live with for the rest of their lives. But as a search warrant was executed at Harris’ home, evidence came to light that could help prosecutors prove this death may not have been a mistake or accident.  In fact, when police executed the search warrant they found crucial information pertaining to the case on Harris’ computer, including his online history. Harris had, just days before his son’s death, searched online about deaths of babies in hot cars. He also made an Internet search of “how to survive in prison,” and visited a “subreddit” called “child-free.”

While a defendant’s online search history cannot by itself prove that he is guilty of murder or many other crimes he might be charged of, it can be strong circumstantial evidence that prosecutors could potentially use in their case. As technology is something already so prevalent in every day life, the use of something like Internet history is something that will likely become more prevalent in cases as time goes on. Yet, this area of the law is still murky in how to proceed: will a judge even let in this type of evidence?

A California Court of Appeals upheld a trial court’s decision to allow Internet search history as evidence in a murder case. A woman and her four year-old daughter were walking down the street when she was shot and killed. Witnesses heard gunshots and saw a man jump into a black Toyota speeding away, a car that matched the one Manuel Mares was driving in the area not ten minutes after the incident. While Mares had gun shot residue on his clothes, Police could not locate a gun or any ammunition. Police executed a search warrant at Mares’ home, where they seized Mares’ computer. In a forensic analysis of the computer, Police were able to find that Mares had done Internet searches on “handguns,” and “firearms.” In addition, Mares had used the Internet to search information about “homemade silencers” and “how to make silencer,” which are used to reduce the noise the gun makes when it goes off. All of this information was presented at trial, along with the witnesses, laboratory reports on the gun shot residue, and other evidence. Manuel Mares was convicted of first-degree murder.

Mares appealed the conviction of the trial court, arguing that the Internet search history was unfairly prejudicial. The California Court of Appeals did not agree. It stated that the Internet search history was “pertinent to his state of mind regarding premeditation and deliberation, and evidence of the searches was properly admitted.”

Like Mares, many argue that the use of Internet search history is far too prejudicial to be used in a criminal case. So the question becomes, should Internet history be treated differently than any other evidence? Is it really any more prejudicial than, say, a defendant’s confession, that it would be bared just on its face? The prejudicial effect of letting in Internet history could be arguably high; Internet history could be taken by some jurors as some kind of admission of guilt of the defendant. However, I would argue that Internet history evidence should be treated like any other piece of tangible evidence: as long as it was obtained legally (not circumventing the Fourth Amendment) and the probative value of the evidence outweighs any prejudicial effect, then it should be allowed in.

There are many cases that show that Internet history isn’t 100% damning. For example, after police searched the home computer of Casey Anthony, they found “neck breaking” and “how to make chloroform” in her search history. In the case of her daughter’s murder, the state argued that Anthony had used chloroform to make her daughter unconscious before suffocating her with duct tape, placing it over her mouth and nose. Despite an overwhelming amount of circumstantial evidence, including the search history, Anthony was found not guilty in July of 2011.

There are other potential issues outside of prejudicial effect that may come with using Internet history as evidence. One could be for the prosecution in proving who actually performed the internet search. Another issue could be errors made by computer forensic analysts. This potentially happened in the Anthony case. The analyst admitted that he originally thought Anthony searched for the term “chloroform” 84 times, but later, after rebuilding the software, discovered that the term was only searched once.

Only time will tell how important Internet history will become in criminal cases and how the law will adapt to the use of this type of evidence. One thing, though, is likely certain: as people use technology more and more, incriminating evidence that likely exists in someone’s Internet history is going to increase. And the prosecution will want to use that evidence at trial.