Finding the criminal within: the use and meaning of digital evidence at trial

ABSTRACT

How are our digital footprints used and interpreted in the courts? To answer this question, I analyze over 2,500 pages of trial transcripts for a keystone case in the use of digital surveillance at trial. Much like its use on both the front- and back-end of the criminal justice system, I find that it is used to link past actions to future ones. However, unlike previous research, I show that these conclusions are not drawn from actuarial modeling. Instead, the data are used to reveal – or refute – the defendant’s true or innate self, free of outside influence. I identify five characteristics of digital evidence that are used to speak to both past criminal propensity, before clear signs of criminal intent emerge, or what I term criminal retrojection, and to future criminal engagement, or criminal projection. By examining the social capabilities, or affordances, ascribed to digital evidence in the adjudication process, we see how these data do more than sort an ever-growing pool of ‘risky' individuals. They also skirt thorny claims of innate criminality by providing a technoscientific basis for the impossible: foretelling inevitable criminal futures through our digital pasts.

KEYWORDS:

• Digital data
• surveillance
• narrative
• courts
• crime prevention
• affordances

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Case classifications of international counterterrorism cases, including stings, come from an open-source, online database compiled by investigative journalists Trevor Aaronson and Margot Williams, hosted by The Intercept. See "Trial and Terror." Last accessed on 18 July 2021 at https://trial-and-terror.theintercept.com/

2 Mohamud invoked his Fifth Amendment Right against self-incrimination, which allows defendants to refuse to testify at their own trials.

3 This is a common prosecutorial refrain in counterterrorism sting trials, although jurors have received it with greater skepticism in some instances, including the case of US v Batiste et al. (2007), which notably lacked digital evidence predating the sting (see Degenshein, 2024; Said, 2015).

Additional information

Funding

This work was supported by Office of Research and Sponsored Programs, Marquette University: [Grant Number ]; The Graduate School, Northwestern University: [Grant Number ].

Notes on contributors

Anya Degenshein

Anya Degenshein is an Assistant Professor of Criminology and Law Studies in the Department of Social and Cultural Sciences at Marquette University, where she is also affiliated with the Masters of Science in Data Analytics and the Race Ethnicity and Indigenous Studies (REIS) programs. Her current book project investigates the adjudication of the future in domestic terrorism stings.