I find evidence from mobile phones to be potentially problematic. If they track your position, you could just leave your mobile phone home when doing crimes, and say that you are home (You can tape it to your dog to make more realistic movement). If they track activity (but not content), you can make a program which sends empty messages to another mobile phone, or calls another mobile phone at some specific time. Finally, if you track content as well, create the content of the messages while you define when to send them, or make a predefined sound record which you transmit when the phone call is coming up.
You could be in a one hour phone call while the robbery you performed happened, and that phone call had your voice in it, and you were home while you called. Isn't that quite the alibi?
A couple things. First of all, the elaborate fabrication you're talking about is possible with all kinds of evidence, not just cell phone records. You could go around leaving misleading physical clues. You could take photographs that have an intentionally mis-set clock in the background. You could bribe or intimidate people into lying on the stand. etc. etc.
Second of all, the kind of fabrication you're describing is much more difficult to pull off than you realize. There are lots of different kinds of evidence and you would have to have some serious foresight to fabricate it all in a way that is consistent. For example, here's a case of someone who took a lot of effort to fabricate evidence of a rape against an ex-boyfriend. She did such a convincing job that he was jailed for a while, but eventually the truth came out.
Most criminals (or false accusers) don't have nearly this level of planning. The defendant in my case was actually a really smart guy, and had spun a story that cleverly was corroborated by the cell phone records of his accuser. But he was caught in a trap when his own cell phone records showed calls that the other phone didn't show. And he had had weeks to create this false story.
Framing someone (or hiding your crimes) is harder than it sounds. In most cases, the simplest explanation is the right one.
>Framing someone (or hiding your crimes) is harder than it sounds.
Is that why ~30-40% of murders in the USA are unresolved (IIRC) ? I'd say that unless you are a known criminal being monitored or an obvious suspect you will get away with it just fine, without thinking too much about CSI show style clues.
Ah, I see. So this falls into the category of "very hard to fabricate"-evidence, if I get you right. Then, that makes it reasonable to use it as evidence.
Just a though experiment: Would a mobile phone with these possibilities (sending messages with specific data at a specific time, or calling another phone of this type and transmit preproduced sound input, all without being able to distinguish between a "timed" message/call and a normal one) be a legal electronic device? If so, will they change how the law looks at evidence of this kind?
This is not legal advice. Please don't try to build one of these devices. I haven't researched this answer. But off the top of my head:
My guess is it's legal to have a phone that can be programmed to perform activities at specified times. You'd essentially just be making robo-calls/robo-texts, which lots of people do. For example, I get a lot of texts from political campaigns, and I wouldn't be surprised if these were written then scheduled to automatically go out at a certain time.
That being said, fabricating evidence is clearly a crime. So, I suspect that you could legally build and possess such a device, but could be guilty of a crime depending on how you use it. The same could be said of probably any non-contraband object.
Again, don't build one of these on my say-so. I'm just speculating.
As to the second part of your question--how the law would look at this kind of evidence in light of the possibility of fabricating it--that really depends on the jury. As it would play out in court, the party presenting the phone evidence would try to convince the jury that it's authentic, e.g. with expert testimony. Likewise, the other party could try to raise doubts as to its authenticity, perhaps by bringing expert witnesses of their own, who would testify about how easy it is to fake and such. And then it would be the jury's decision to give the evidence as much or as little weight as they see fit. So, there's no one-size-fits-all answer. It would depend entirely on the case each side makes and the whims of the jury.
Adding to your “how the law would look at this kind of evidence in light of the possibility of fabricating it--that really depends on the jury”: making the case that the evidence was fabricated would probably not be too difficult looking at the accused’s normal call patterns (from which this “night of the crime” will probably deviate), no incoming calls (or worse; a missed incoming call), testimonies from the people called by the accused at the night of the crime, asking questions about the alleged conversation etc.
For a fake alibi, making fake calls at the night of the crime is probably not the best option.
They just need one camera that caught you outside your house to shatter all that work. There are so many cameras that it's very difficult to hide from them all. If the crime you commit is serious enough to go through strapping your phone to your dog, the police will scour lots of cameras in te area.
Have you seen the typical quality of cctv footage?
A lot of the time, if I had strong circumstantial evidence that I was at home, I'd quite likely get away with a fair bit of "heavy set person in a black hoodie seen leaving the crime scene" cctv video.
You could be in a one hour phone call while the robbery you performed happened, and that phone call had your voice in it, and you were home while you called. Isn't that quite the alibi?
Hard? Sure thing. Impossible? Nope.