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Can I be placed at a crime scene with nothing more than cellphone records?


Yes, you can. However, the use of cellphone records to place suspects at or near crime scenes is coming under attack in courts nationwide. Cellphone records are often used as evidence, relied upon to trace which cell tower was used to make or receive a call and then determine a caller's whereabouts. But experts say that using a single tower to precisely locate where someone was at the time of a crime has severe limitations. And while good criminal defense lawyers now recognize the problems with such evidence, the FBI continues to rely heavily on this form of 'evidence' in its investigations. As a Jacksonville criminal defense lawyer, I have argued the unreliability of this type of evidence.

In fact, the FBI wants to expand its full-time team of 32 agents dedicated to the analysis of cell-site data and it has trained more than 5,000 state and local police investigators in the basic methodology. But the expert testimony in court is often incorrect and judges are starting to rule that the analysis of cellphone records is not scientifically valid or reliable in locating people, in part because investigators have overstated its accuracy.

The courts, telecommunications and forensic experts point to the case of Lisa Marie Roberts, wrongly imprisoned for nearly 12 years after both Portland prosecutors and her defense lawyer misunderstood cellphone evidence, as an example of how the methodology can be misused. "Complicated telephone technology is frequently oversold and under-defended in the courtroom", says Michael Cherry, a former Bell Labs and NASA consultant. When both prosecution and defense have an equal understanding of cellphone technology-issues which are now much disputed in the courts- then the end result will be a much better understanding of cell-tower technology and better use of cellphone evidence.

In 2012 alone, federal and local law enforcement agencies made more than 1.1 million requests for the personal cellphone data of Americans for a variety of investigative reasons. But that may become more difficult. A federal appeals court ruled, in August of 2014, that law enforcement agencies must obtain a search warrant for cellphone location data.

But how trustworthy is the data? At the heart of the controversy is a debate about how cellphone calls are routed and the range of the cell towers with which the phones connect. Law enforcement maintains that they can place a suspect in a particular area because a cellphone, when making or receiving a call, usually selects the closest tower with the strongest signal and that most towers have a range of no more than two miles. However, numerous experts and telecommunications workers say the FBI analysis techniques are wrong: cellphone signals do not always use the closest tower when in use but instead are routed by a computerized switching center to the tower that best serves the phone network based on a variety of factors. In addition, the range of cell towers varies greatly and tower ranges overlap significantly. One forensic expert stated that "I've seen proof that two individuals, subscribed to the same cellular provider, standing next to each other-on surveillance -can get different towers".

Consider the case of Lisa Roberts. In the summer of 2002, she was thrown in jail in Portland, Oregon and charged with the murder of her girlfriend, who had been found strangled and dumped in a park. Roberts strongly maintained her innocence and demanded a trial. On the eve of her trial the prosecutors revealed new evidence: her cellphone records, showing she used her phone near the park where her body was found. Without examining the evidence, her lawyer advised her to plead guilty, saying the records could "pinpoint" her near the crime scene. Roberts reluctantly accepted a plea bargain for manslaughter and a 15 year sentence. Years later, new lawyers examined her phone records and discovered that the prosecution's cellphone evidence was thoroughly flawed. A judge later threw out her conviction and released her from prison after nearly 12 years behind bars.

Lesson Learned:

Never trust a prosecution expert witness regarding cellphone tower evidence. This evidence is not reliable or scientific and must be challenged by a lawyer who understands this type of evidence. Better yet, if faced with this evidence, hire an expert of your own to contest it. It may be expensive, but it may well mean the difference between freedom versus prison.

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