Phone to be taken as evidence: Rights

errlloyd

A friend of mine made a complaint to the Gardai after being the victim of a very serious crime pre-Christmas. The details of the crime aren't too important here, other than it would be the kind of crime that goes directly to the high court if prosecuted, and the kind the defendant would certainly defend rather than plead guilty to.

Anyway, the detective investigating the complaint needs her phone as evidence and will hold it until court.

He was unsure of the details, but she was wondering does she have any rights here relating to these questions. I realise some of these are tech but not legal, but if anyone has gone through this before they might know.

• Does she need to give them her passwords etc.
• Does the warrant only cover messages between certain dates or does it cover everything on the phone.
• Will she need a new phone number for now until the trial (I imagine she isn't keen on explaining to her parents why her number has changed).
• She's paying a contract, is there a hold or something that can be put on it for the time being.

Sidenote, why can't the Garda just download everything on the device and give it back to her?

punisher5112

She could stay on contract and just change number if needs be.
All she has to say is was getting loads of spam etc and decided to change.

Nobody going to grill her for changing.

If she is asked for I.d. then give it.

If she feels she needs to best advice would be to contact a solicitor and talk it through with them.

errlloyd

I guess as a complainant she probably didn't think she'd need a solicitor?

Do people recommend complainants gets legal representation, I figured that would be a bit strange.

matrim

errlloyd wrote: »

A friend of mine made a complaint to the Gardai after being the victim of a very serious crime pre-Christmas. The details of the crime aren't too important here, other than it would be the kind of crime that goes directly to the high court if prosecuted, and the kind the defendant would certainly defend rather than plead guilty to.

Anyway, the detective investigating the complaint needs her phone as evidence and will hold it until court.

He was unsure of the details, but she was wondering does she have any rights here relating to these questions. I realise some of these are tech but not legal, but if anyone has gone through this before they might know.

• Does she need to give them her passwords etc.
• Does the warrant only cover messages between certain dates or does it cover everything on the phone.
• Will she need a new phone number for now until the trial (I imagine she isn't keen on explaining to her parents why her number has changed).
• She's paying a contract, is there a hold or something that can be put on it for the time being.

Sidenote, why can't the Garda just download everything on the device and give it back to her?

I would assume she could request a new SIM card from her provider in order to keep the same number. But she would need an alternate phone to use until the Gardai returned hers.

errlloyd

matrim wrote: »

I would assume she could request a new SIM card from her provider in order to keep the same number. But she would need an alternate phone to use until the Gardai returned hers.

Just on this, I guess more of a tech question really.

If she gets a new phone, same number, I think Whatsapp will automatically log out the other phone. Most of the evidence I believe the Gardai are looking at will be Whatsapp. Is that a problem for the Gardai, or are they more sophisticated than simply opening the phone and scrolling through.

punisher5112

errlloyd wrote: »

Just on this, I guess more of a tech question really.

If she gets a new phone, same number, I think Whatsapp will automatically log out the other phone. Most of the evidence I believe the Gardai are looking at will be Whatsapp. Is that a problem for the Gardai, or are they more sophisticated than simply opening the phone and scrolling through.

Contact the cop. WhatsApp is encrypted data so not saved so be best get phone to them asap if they want it.

errlloyd

Thanks folks, she will have to do that.

I guess this case could take years to get to court, she has a nice phone, it'll probably be obsolete by the time the case is over. Seems kind of mental.

MarkR

There must be a limited amount of info they need. Call logs, pictures maybe, details of communications between the two parties. All of that could be archived / screenshoted and stored off the phone maybe. Really your friend has to ask the questions. They can't be the only person who doesn't want to be down a phone.

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errlloyd

MarkR wrote: »

There must be a limited amount of info they need. Call logs, pictures maybe, details of communications between the two parties. All of that could be archived / screenshoted and stored off the phone maybe. Really your friend has to ask the questions. They can't be the only person who doesn't want to be down a phone.

Frustratingly she did get more info, and it appears they are going to digitally download and back up everything straight away - but they still have to hold the phone as the primary piece of evidence. Slightly ridiculous.

CIARAN_BOYLE

errlloyd wrote: »

Frustratingly she did get more info, and it appears they are going to digitally download and back up everything straight away - but they still have to hold the phone as the primary piece of evidence. Slightly ridiculous.

Unfortunately anyone could claim that the evidence was tampered with given the serious nature of the case.

errlloyd

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This post has been deleted.

I was actually only using the word mental in reference to the fact that I believe technology will become obsolete in the time it takes this case to reach court. I was never suggesting she shouldn't have to give up the phone for a while.


I think it is funny that when all the information they need is digital, she still has to permanently give up the piece of hardware that merely acts as a terminal for that information. I appreciate what Ciaran said about the original evidence, but I still find it kind of humorous that a phone is seen as the be all and end all for it.

However (and this is pure opinion for the sake of it) I also think reporting a crime shouldn't really cost money. IE victims shouldn't need solicitors, they shouldn't need to give up their personal belongings (where not necessary). It is already a difficult enough time and emotional commitment to actually follow through with reporting a crime.

Manach

From some of the earlier cases, especially in the US, it was a common problem that years would pass before IT equipment was returned. Offhand, the Jackson publishing house who had their PCs impounded for evidence is an example.
However now, from an IT perspective, I've read that there are were numerous tools to capture all data resident in a phone and to store the image in a secure fashion to meet evidential requirements. So, it would seem good practice to employ these practices and return the item back to the owner?

Mr. Incognito

errlloyd wrote: »

I was actually only using the word mental in reference to the fact that I believe technology will become obsolete in the time it takes this case to reach court. I was never suggesting she shouldn't have to give up the phone for a while.


I think it is funny that when all the information they need is digital, she still has to permanently give up the piece of hardware that merely acts as a terminal for that information. I appreciate what Ciaran said about the original evidence, but I still find it kind of humorous that a phone is seen as the be all and end all for it.

However (and this is pure opinion for the sake of it) I also think reporting a crime shouldn't really cost money. IE victims shouldn't need solicitors, they shouldn't need to give up their personal belongings (where not necessary). It is already a difficult enough time and emotional commitment to actually follow through with reporting a crime.

I don't find it funny. If she has accussed someone of a very serious crime then this needs to be investigaged thoroughly.

This consists of technical examination of the media which received the software. How much of an inconvenience is it for someone to be arrested and accused of a crime verses giving up your phone to verify your claims. Whether they have access to other areas of her phone is up to her and whatever is examined may be open to the Defence also.

The person accused also has rights. It's not a simple matter of simply reporting a crime and going on about your day.

She doesnt have to give up her beloningings where not necessary. This is necessary.

You seem to be very immature and not understanding of the gravity of being accused of a serious offence. This can affect someones life, career, liberty. Complaints shouldnt be frivilous or vexatious matters and if she is serious about her complaint she can live without her phone and get another one.

banie01

Manach wrote: »

From some of the earlier cases, especially in the US, it was a common problem that years would pass before IT equipment was returned. Offhand, the Jackson publishing house who had their PCs impounded for evidence is an example.
However now, from an IT perspective, I've read that there are were numerous tools to capture all data resident in a phone and to store the image in a secure fashion to meet evidential requirements. So, it would seem good practice to employ these practices and return the item back to the owner?

The current market leaders in mobile phone forensics and evidential imaging are Cellebrite.
This equipment is available to the Garda technical department and provides the Gardaí the option of cloning the phone.

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plodder

I don't see the need for a solicitor. It would be a lot cheaper to buy a new phone and might be better to keep in touch with the garda managing the case. As for the phone itself, I imagine that the defense might want to look at it, using their own experts etc.

errlloyd

Mr. Incognito wrote: »

I don't find it funny. If she has accussed someone of a very serious crime then this needs to be investigaged thoroughly.

This is exactly what I said;

"I think it is funny that when all the information they need is digital, she still has to permanently give up the piece of hardware that merely acts as a terminal for that information."

If from that you think it is necessary to call me immature for not understanding that the accused has rights, then I think you to check yourself. I clearly said that I think it is funny (peculiar, backward, strange) that digital evidence is collected via a piece of hardware that merely acts as a screen, but as you have decided to call me immature let me clarify; I don't think it is funny that a very close friend of mine was involved in a very serious crime. I don't think it is funny that conviction rates for those crimes are pathetic. I don't think it is funny that I have to use terms like "complainant" and "alleged crime" to describe a victim who something awful happened to. I practice using these around her to prepare her for the very high chance that the person who harmed her will walk away at the end of it, which isn't ****ing funny. I don't think it is funny that people on this thread are ALREADY highlighting the inconvenience this has caused to a man who in my eyes is already a criminal - as if I asked, which I didn't.

Please don't call me immature, because I know greater than anyone the seriousness of this whole situation. But I posted in a boards thread, to have an unrelated conversation about how the Gardai handle digital evidence, and you had to get you jab in.

seamus

CIARAN_BOYLE wrote: »

Unfortunately anyone could claim that the evidence was tampered with given the serious nature of the case.

This. If they were to download the contents of the phone and hand it back, that data could later be lost and the case is gone.

The defence team also have the right to have the evidence independently assessed to ensure that it's authentic, which requires having the phone available to them until the trial is concluded.

Mr. Incognito

errlloyd wrote: »

This is exactly what I said;



If from that you think it is necessary to call me immature for not understanding that the accused has rights, then I think you to check yourself. I clearly said that I think it is funny (peculiar, backward, strange) that digital evidence is collected via a piece of hardware that merely acts as a screen, but as you have decided to call me immature let me clarify; I don't think it is funny that a very close friend of mine was involved in a very serious crime. I don't think it is funny that conviction rates for those crimes are pathetic. I don't think it is funny that I have to use terms like "complainant" and "alleged crime" to describe a victim who something awful happened to. I practice using these around her to prepare her for the very high chance that the person who harmed her will walk away at the end of it, which isn't ****ing funny. I don't think it is funny that people on this thread are ALREADY highlighting the inconvenience this has caused to a man who in my eyes is already a criminal - as if I asked, which I didn't.

Please don't call me immature, because I know greater than anyone the seriousness of this whole situation. But I posted in a boards thread, to have an unrelated conversation about how the Gardai handle digital evidence, and you had to get you jab in.

Well thankfully the law is not a lynchmob who has already determined guilt. We have presumption of innocence.

The law applies the evidence to prove or disprove the allegation.

If your friend wants to make a complaint it requires proof of the complaint.

This requires her phone.

I dont see why you need to open a thread here. Its very simple. Hand over the phone or compromise the complaint.

Permabear

This post has been deleted.

errlloyd

Permabear wrote: »

This post had been deleted.

Her priority is knowing whether she needs to buy a new phone today, or whether she can use a spare for a few weeks. It would also help her if she knew if she needed a new number today, while she deals with her network, or if she can keep her own number. And for her own peace of mind I think she'd like to know if the phone itself is going to be handed over the defense, and if everything on that phone will be admissible (are they going to trawl her life), or only conversations / photos from around the time of the alleged crime.

I actually think those were pretty reasonable questions - and very much what I asked in the OP.

Atlantic Dawn

The Gardaí will obtain the text message and call data from the mobile provider so it would be irrelevant from both what is on the phone as it could be deleted. They can also get the mast data from the mobile provider to prove the location that the phone was in when it sent/received the call or text.

Messaging apps like Facebook, WhatsApp could be installed on the phone but again messages could be deleted on the phone so they will likely look for this data from the app provider also.

Photos could be on the phone but again these could be deleted and likely someone wanting to prove a case one way of the other would delete those that were not favourable.

I suppose the initial scan of the phone may provide the Gardaí with information that will help the case and they can later confirm the data is a true record of communications between parties. The phone will be taken for months and possibly years, she should get a new number and have that SIM set to PAYG.

errlloyd

Mr. Incognito wrote: »

The law applies the evidence to prove or disprove the allegation.

That is actually untrue. The law applies evidence to prove an allegation - but not to disprove. The burden of proof rests solely with the prosecution in almost all cases, (it can be reversed for a defendant proving they are insane, or in the case of legal documentation, like proving you have a drivers license). The burden of proof is beyond a reasonable doubt as decided by a jury, where a unanimous or near unanimous decision is required.

The law does not disprove allegations, and merely not being convicted of a crime does not mean you did not commit said crime. It is a good thing that the law is not a lynch mob, but the law is far from perfect at prosecuting certain types of crime.

I don't need a lecture on law, I had plenty of them during my four years studying it. I needed some pretty specific technical advice, so I could help a friend decide what action to take today in her normal life.

CIARAN_BOYLE

errlloyd wrote: »

Her priority is knowing (1)whether she needs to buy a new phone today, or whether she can use a spare for a few weeks. It would also help her (2) if she knew if she needed a new number today, while she deals with her network, or if she can keep her own number. (3)And for her own peace of mind I think she'd like to know if the phone itself is going to be handed over the defense, and (4)if everything on that phone will be admissible (are they going to trawl her life), or only conversations / photos from around the time of the alleged crime.

I actually think those were pretty reasonable questions - and very much what I asked in the OP.

1 Probably yes
2 Probably yes as use of an old number can effect data on the old phone
3 Probably yes, although not the defense itself but rather any expert examiners that the defense cares to hire
4 Probably will trawl through the phone itself however only relevant items are admissible in court.

Not a legal expert or working in the area just a human apply my knowledge and what I consider to be common sense.

Permabear

This post has been deleted.

hullaballoo

errlloyd wrote: »

That is actually untrue. The law applies evidence to prove an allegation - but not to disprove. The burden of proof rests solely with the prosecution in almost all cases, (it can be reversed for a defendant proving they are insane, or in the case of legal documentation, like proving you have a drivers license). The burden of proof is beyond a reasonable doubt as decided by a jury, where a unanimous or near unanimous decision is required.

The law does not disprove allegations, and merely not being convicted of a crime does not mean you did not commit said crime. It is a good thing that the law is not a lynch mob, but the law is far from perfect at prosecuting certain types of crime.

I don't need a lecture on law, I had plenty of them during my four years studying it. I needed some pretty specific technical advice, so I could help a friend decide what action to take today in her normal life.

If you are going to call someone out on a statement, it is in your interests to make sure you are 100% correct. But, of course, you are not.

Exculpatory evidence disproves an allegation. If exculpatory evidence is adduced, it can lead to a direction from the trial judge to the jury that they must acquit.

Four years of study isn't really enough for a field as nuanced as the law.

noble00

hi i had to do something like this before i just had to go to the station and then they downloaded the content that was needed, they will keep a copy and give you one it was all done within an hour in front of me no problems

Little CuChulainn

Atlantic Dawn wrote: »

The Gardaí will obtain the text message and call data from the mobile provider so it would be irrelevant from both what is on the phone as it could be deleted. They can also get the mast data from the mobile provider to prove the location that the phone was in when it sent/received the call or text.

Messaging apps like Facebook, WhatsApp could be installed on the phone but again messages could be deleted on the phone so they will likely look for this data from the app provider also.

Photos could be on the phone but again these could be deleted and likely someone wanting to prove a case one way of the other would delete those that were not favourable.

I suppose the initial scan of the phone may provide the Gardaí with information that will help the case and they can later confirm the data is a true record of communications between parties. The phone will be taken for months and possibly years, she should get a new number and have that SIM set to PAYG.

Deleting stuff doesn't mean it is not retrievable.

infogiver

errlloyd wrote: »

Her priority is knowing whether she needs to buy a new phone today, or whether she can use a spare for a few weeks. It would also help her if she knew if she needed a new number today, while she deals with her network, or if she can keep her own number. And for her own peace of mind I think she'd like to know if the phone itself is going to be handed over the defense, and if everything on that phone will be admissible (are they going to trawl her life), or only conversations / photos from around the time of the alleged crime.

I actually think those were pretty reasonable questions - and very much what I asked in the OP.

She's not getting that phone back. Forget about that phone. I'm struggling here to understand how an item that can be easily replaced is so important in the light of your friends allegation of having been the victim of a serious crime
It would be the last thing on my mind
If this matter is to reach a just conclusion she will have far more inconvenience between now and then then getting a new phone and changing her number!

errlloyd

Thanks for that infogive, I think we will have to proceed as such.

There will be bigger inconveniences to come for sure, and tbh there have already been bigger inconveniences. Some pretty invasive testing etc. Maybe a phone seems trivial to some, and in the grand scheme of things it certainly is, but she doesn't have the liquidity to replace it like for like. For someone who is trying to live a life and not dwell on a trauma, these small things are a reminder.

MarkR

No one is saying that it's unimportant to get the information. The issue I think is whether it is actually necessary to have the physical handset stored as evidence, or whether the date from within the handset would suffice. Perhaps it depends on the gravity of the situation, or on the knowledge of the people documenting the case. You have to leave it to the professionals once they've decided.

Mr. Incognito

Thanks for that infogive, I think we will have to proceed as such.

There will be bigger inconveniences to come for sure, and tbh there have already been bigger inconveniences. Some pretty invasive testing etc. Maybe a phone seems trivial to some, and in the grand scheme of things it certainly is, but she doesn't have the liquidity to replace it like for like. For someone who is trying to live a life and not dwell on a trauma, these small things are a reminder

"We will have to proceed"

"These small things are a reminder."

I think you might be blurring the line between supporting your friend and acting as some quasi legal advisor/ counsellor.

Have you recommended to your friend that she go seek professional help, i.e Take legal advice from someone who is qualified. Seek out support services.

You seem to be actively directing matters for someone who is pretty vulnerable at the moment and you have some really really strange ideas such as handing in a phone being a laugh/ ludicrious and that having to give up your phone is a reminder of a crime that has been alleged against her??

I think you'd be better off stepping back and letting someone who is suitably qualified and objective to support your friend in these various matters (legal) actually support her in respect of specific legal advice or councelling and you could perhaps take a deep breath and just be a friend rather than putting yourself right in the middle of this.

Little CuChulainn

infogiver wrote: »

She's not getting that phone back. Forget about that phone. I'm struggling here to understand how an item that can be easily replaced is so important in the light of your friends allegation of having been the victim of a serious crime
It would be the last thing on my mind
If this matter is to reach a just conclusion she will have far more inconvenience between now and then then getting a new phone and changing her number!

The phone likely contains a lot of personal information, some of it unrelated to the crime, and the owner might be simply uncomfortable or embarassed about it being examined by strangers. It's not unusual.

pilly

Who amongst us would like any Tom, Dick or Harry to read all the messages we ever sent? Come on, it's embarrassing at the very least.

I agree the phone has to be kept if the case is such a serious one but don't think it's fair to be demeaning the owner of the phone for worrying about it.

Mr. Incognito

pilly wrote: »

Who amongst us would like any Tom, Dick or Harry to read all the messages we ever sent? Come on, it's embarrassing at the very least.

I agree the phone has to be kept if the case is such a serious one but don't think it's fair to be demeaning the owner of the phone for worrying about it.

Delete the irrelevant data and apps before you hand it in?

Seriously. It's not rocket science this.

pilly

Mr. Incognito wrote: »

Delete the irrelevant data and apps before you hand it in?

Seriously. It's not rocket science this.

I presume from the opening thread that it's already been handed over and she won't get it back. Besides you couldn't delete apps that may have evidence on them.

It's not rocket science to actually read the OP's post either.

Little CuChulainn

Mr. Incognito wrote: »

Delete the irrelevant data and apps before you hand it in?

Seriously. It's not rocket science this.

That's certainly an easy way to screw up your own case.

infogiver

Little CuChulainn wrote: »

The phone likely contains a lot of personal information, some of it unrelated to the crime, and the owner might be simply uncomfortable or embarassed about it being examined by strangers. It's not unusual.

I know but if you want to make an omelette you have to break some eggs. The OPs friend will probably be eligible for a Legal Aid Board solicitor if it's the case that her financial situation is so dire she can't afford to replace her phone.

Little CuChulainn

infogiver wrote: »

I know but if you want to make an omelette you have to break some eggs. The OPs friend will probably be eligible for a Legal Aid Board solicitor if it's the case that her financial situation is so dire she can't afford to replace her phone.

Victims of serious crimes are rarely enthusiastic about breaking more eggs or making an omlette. Finances don't usually have anything to do with it.

CIARAN_BOYLE

Little CuChulainn wrote: »

The phone likely contains a lot of personal information, some of it unrelated to the crime, and the owner might be simply uncomfortable or embarassed about it being examined by strangers. It's not unusual.

Possibly more to the point if the defence gets to look at it are we in a position where someone accused of a serious crime can take a wander through family photos, nude pictures sent to a boyfriend/girlfriend, personal messages, credit card information, banking information etc on the phone of an accuser.
That's got to be unsettling for any victims of crime.
Having to change a number, pay phone bills (on a contract phone) and buy a new phone are other concerns. Not life changing and probably inconsequential compared to the grand scheme of things but still serious.

Veloce150

errlloyd wrote: »

Her priority is knowing whether she needs to buy a new phone today, .

There are regular stories in the news of backlogs of 4 years in examining digital devices. So that, plus any delay in getting the case to court would mean that she might get the phone back in 6 years or so.

Sleeper12

errlloyd wrote:

I guess as a complainant she probably didn't think she'd need a solicitor?

I wouldn't expect to either but then again I'd happily hand over my phone if there was evidence on it.

goz83

errlloyd wrote: »

This is exactly what I said;



If from that you think it is necessary to call me immature for not understanding that the accused has rights, then I think you to check yourself. I clearly said that I think it is funny (peculiar, backward, strange) that digital evidence is collected via a piece of hardware that merely acts as a screen, but as you have decided to call me immature let me clarify; I don't think it is funny that a very close friend of mine was involved in a very serious crime. I don't think it is funny that conviction rates for those crimes are pathetic. I don't think it is funny that I have to use terms like "complainant" and "alleged crime" to describe a victim who something awful happened to. I practice using these around her to prepare her for the very high chance that the person who harmed her will walk away at the end of it, which isn't ****ing funny. I don't think it is funny that people on this thread are ALREADY highlighting the inconvenience this has caused to a man who in my eyes is already a criminal - as if I asked, which I didn't.

Please don't call me immature, because I know greater than anyone the seriousness of this whole situation. But I posted in a boards thread, to have an unrelated conversation about how the Gardai handle digital evidence, and you had to get you jab in.

It must be awful that you witnessed such a crime and to know that the criminal is walking around free.

In fairness, I understand that you are supporting your friend and fair play to you. But unless you witnessed what your friend is alleging, then it is just an allegation. It's not uncommon for people to make false reports.

To your question. The Gardai need all items of evidence. It sucks that they can take a phone worth hundreds of euros, rather than clone the phone, but that's the way it is. The phone will be worth nothing if your friend ever gets it back. The Gardai will want to examine the whole phone, not just the parts your friend wants them to see. That means deleted messages being recovered. Otherwise, it would be too easy to frame someone. I am surprised it wasn't confiscated as soon as she made a complaint. Not saying she is hiding anything, but it would give her a chance to tamper with the evidence.

I hope everything works out though. Can't be a good time for anyone.

4ensic15

goz83 wrote: »

It must be awful that you witnessed such a crime and to know that the criminal is walking around free.

In fairness, I understand that you are supporting your friend and fair play to you. But unless you witnessed what your friend is alleging, then it is just an allegation. It's not uncommon for people to make false reports.

To your question. The Gardai need all items of evidence. It sucks that they can take a phone worth hundreds of euros, rather than clone the phone, but that's the way it is. The phone will be worth nothing if your friend ever gets it back. The Gardai will want to examine the whole phone, not just the parts your friend wants them to see. That means deleted messages being recovered. Otherwise, it would be too easy to frame someone. I am surprised it wasn't confiscated as soon as she made a complaint. Not saying she is hiding anything, but it would give her a chance to tamper with the evidence.

I hope everything works out though. Can't be a good time for anyone.

When the Garda get a digital device, they clone it and then searh in the clone for the evidence. the original phone must be retained to show the chain of evidence. A knife taken from a crime scene will be retained as will underwear taken from a rape victim. The jury will be shown all items and evidence will have to be given that they were taken from the crime scene and were not interfered with. The accused can ask for access to items of evidence so that they can be verified. A clone can't be produced as evidence because there is the possibility that it is not a true copy and there was some fault with the copying process or distortion occurring afterwards.

Samuel T. Cogley

This is eerily reminiscent of something someone asked me a few weeks ago, hopefully it's not the same people involved. The point I wanted to make was one that came up at the time, but one that seems worthy of discussion (perhaps some correction as to what my thinking on it was). it would seem to be advantageous in Ireland the state is responsible for carrying forward prosecutions, with the victim having very little say in the matter.

I don't think it's any secret what the alleged crime is in this situation. It seems utterly bizarre to me that someone would leave it to chance that someone else may fall victim to the alleged assailant over a phone.

pah

The device will be forensically examined but it must be retained as evidence so that if it were to be examined by the defence or a third party that the initial results can be reproduced and verified.