By Elizabeth Echard, Staff Writer
Could Fitbit’s, Amazon Echo’s, and other devices be the newest tools in solving crime? On December 23, 2015, Connie Dabate was shot and killed in her home.[1] When detectives interviewed her husband, Richard Dabate, he stated that he put his two children on the school bus that morning, waived goodbye to his wife as he left for work, and that soon thereafter, Connie left for a fitness class at the YMCA with a Fitbit on her wrist.[2] Richard stated that he turned around and went home when he realized he had forgotten his laptop.[3] Once he was back in his home, Richard told detectives that he heard a noise and went upstairs to investigate, which is when he spotted an intruder.[4] Richard stated that as soon as he spotted the intruder, he heard his wife return home and yelled for her to run.[5] Richard then stated that a struggle ensued and his wife, Connie, was shot and killed by the intruder.[6]
During the investigation, detectives looked to IP addresses, Richard’s emails, and Connie’s Facebook, but the most skewing factor to Richard’s story was Connie’s Fitbit.[7] Connie’s Fitbit recorded that she moved a distance of 1,217 feet from the time she returned home until the movement stopped (when her death occurred).[8] Detectives measured the Dabate’s home and found that, had Richard’s claims been correct, Connie would have only moved 125 feet from her vehicle to where she died in the basement.[9] Ultimately, Richard Dabate was charged with Connie Dabate’s murder.
Similarly, in 2018, San Jose police used data from a Fitbit to prove that Karen Navarra was killed by her 90-year-old stepfather, Anthony Aiello.[10] Navarra was found slouched over in a kitchen chair with a knife in her hand, appearing to have committed suicide.[11] Video footage from a security camera confirmed that Aiello was at her home for a considerable period of time that night.[12] During the time that Aiello was present at Navarra’s home, the heart rate feature on her Fitbit showed a sharp spike in her heart rate and then a rapid decline, most likely indicating the time of her death and putting Aiello at the scene.[13]
Additionally, in 2015, an Arkansas man was accused of killing his friend after a night of drinking and football.[14] James Bates and his friend, Victor Collins, were relaxing in Bates’ hot tub during a night of drinking.[15] Bates fell asleep and when he awoke, found Collins face down in the hot tub.[16] It was originally believed that Collins’ death was a tragic accident due to his night of drinking and the high level of alcohol found in his blood.[17] The prosecutor in this case had sought the recordings from Bates’ Amazon Echo in order to obtain possible evidence of how the events transpired that night.[18] Although some privacy concerns exist, Bates voluntarily turned over the recordings to the prosecution.[19] The prosecutor, however, dropped the charges after receiving the recordings due to lack of proof required to meet the criminal “beyond a reasonable doubt” standard.[20]
Finally, in 2016, when Ross Compton’s house nearly burnt to the ground, he told investigators that he was sleeping when the fire broke out and that he packed as much as he could in a bag and climbed out his bedroom window.[21] Some facts in the investigation were not adding up and investigators dug deeper.[22] Compton had been telling the police about his medical issues and the police, creatively, got a warrant to check Compton’s pacemaker.[23] Compton claimed he was asleep, but the pacemaker showed that he was active at the time the fire broke out.[24] A cardiologist reviewed the data from Compton’s pacemaker and determined that Compton’s account of the events could not be accurate based on the retrieved data.[25] The cardiologist further concluded that it was highly improbable that Compton would have been able to collect, pack, and remove the items from his house, exit his bedroom window, and carry the items to the front of his residence during the short period of time he indicated due to his medical conditions.[26] As a result, Compton was indicted on charges of aggravated arson and insurance fraud.[27]
The common link between all of these cases is the modern technology used to prove, or in some instances disprove, that crimes were committed and who was responsible for those crimes. Could these technological devices be admitted into evidence in a criminal trial? Under the Federal Rules of Evidence (FRE), the two main components to admissible evidence are relevance[28] and reliability[29]. FRE 401 states, “Evidence is relevant if: (a) it has any tendency to make a fact more or less probative than it would be without the evidence, and (b) the fact is of consequence in determining the action.”[30] In these cases, the data retrieved from these devices fell within the relevancy prong of this rule. In fact, in some cases, the data directly lead to convictions or acquittals.
However, the reliability question remains. FRE 901(a) provides, “In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.”[31] Subsection (b) of FRE 901 gives examples of evidence that satisfies the requirement, specifically 901(b)(9), Evidence About a Process or System, which includes, “evidence describing a process or system and showing that it produces an accurate result.”[32]
In 2012, a study was conducted to evaluate Fitbit’s accuracy and validity.[33] This study concluded that Fitbit’s ability to correctly identify and register the wearer’s actions was somewhat poor.[34] Fitbit, the company itself, even concedes, “Fitbit does not represent, warrant, or guarantee that its trackers can deliver the accuracy or sophistication of medical devices or clinical sleep monitoring equipment.”[35]
However, some studies found that all models of Fitbits showed high accuracy when it came to the number of steps taken.[36] One study consisted of participants wearing a Fitbit and a research-grade accelerometer while walking on a treadmill.[37] During this study, the Fitbit showed a high correlation with steps recorded by the accelerometer.[38] Another study found that the Fitbit’s step count was within 9% of the actual steps taken, unless the accelerometer was placed in a pocket, in which case the accuracy significantly decreased.[39]
On the other hand, in one study, Fitbit output for distance traveled did not match treadmill output, however this effect was also dependent on speed.[40] Another study found that the faster the walking speed, the greater the error in the measure for distance.[41] This error, conversely, may be partially due to the fact that unless you specify a stride length in your Fitbit account, Fitbit picks a default for you based on your height, which may skew the calculations for distance covered.[42]
This discussion raises great debate over the admissibility of new technology in criminal trials. These types of technology seem to meet the relevance requirement, but the reliability is still up in the air. Sometimes the Fitbit is accurate and sometimes it is not. Many factors play into this determination, so much that this would almost have to be determined on a case-by-case basis. Pacemakers, being medical grade equipment, may be more reliable than Fitbits, however everything has its flaws and Fitbits are much more plentiful in society than pacemakers. As far as Amazon Echo’s are concerned, the recordings may be more reliable than other types of technological data. As technology advances, the question of admitting these types of evidence is going to become more prevalent. Maybe in the future, as technology improves and advances, admitting these types of evidence may be more accurate and uniform. Currently, it seems that the admissibility rests on a case-by-case analysis of the reliability of the data collected on a specific device, from a specific person, and its relevance in a specific case.
Sources:
[1] Amanda Watts, Cops Use Murdered Woman’s Fitbit to Charge her Husband, https://www.cnn.com/2017/04/25/us/fitbit-womans-death-investigation-trnd/index.html (April 26, 2017).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Brett Molina, Police Use Fitbit Data to Arrest Man, 90, in Killing of His Stepdaughter, https://www.usatoday.com/story/news/nation-now/2018/10/03/fitbit-data-used-murder-case-against-san-jose-man-90/1510555002/ (October 3, 2018).
[11] Id.
[12] Id.
[13] Id.
[14] Brett Molina, Police Use Fitbit Data to Arrest Man, 90, in Killing of His Stepdaughter, https://www.usatoday.com/story/news/nation-now/2018/10/03/fitbit-data-used-murder-case-against-san-jose-man-90/1510555002/ (October 3, 2018).2017).
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Nicole Chavez, Arkansas Judge Drops Murder Charge in Amazon Echo Case, https://www.cnn.com/2017/11/30/us/amazon-echo-arkansas-murder-case-dismissed/index.html (December 2, 2017).
[21] Amanda Watts, Pacemaker Could Hold Key in Arson Case, https://www.cnn.com/2017/02/08/us/pacemaker-arson—trnd/ (February 8, 2017).
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
[28] Fed. R. Evid. 401
[29] Fed. R. Evid. 901
[30] Fed. R. Evid. 401
[31] Fed. R. Evid. 901
[32] Id.
[33] Nicole Chauriye, Wearable Devices as Admissible Evidence: Technology is Killing Our Opportunity to Lie, Catholic University Journal of Law and Technology, Volume24, Issue 2, Article 9, Pg. 501-502, https://scholarship.law.edu/cgi/viewcontent.cgi?article=1018&context=jlt (2016).
[34] Id.
[35] Id.
[36] Mikel Delgado, How Fit is That Fitbit?, Berkley Science Review, http://berkeleysciencereview.com/fit-fitbit/ (2014).
[37] Id.
[38] Id.
[39] Id.
[40] Id.
[41] Id.
[42] Id.
