As technology becomes more complex, it gets used in more insidious ways around the world to achieve illegal means and commit crimes. This is an undisputed fact. this presents a dilemma for law enforcement because they are left scrambling to catch up. When they do catch up, they are often reluctant to reveal exactly how they were able to access the information they used to crack a case. After all, magicians never reveal their tricks to the crowd.
But in a recent controversial case, that same refusal to reveal their methods has left the FBI with an empty basket when it comes to evidence. In a recent case taking place in Vancouver, Washington, a middle school teacher accused of possessing child pornography may have a more favorable trial than he bargained for. The FBI has refused to reveal to the court how they acquired their evidence against him and the court has tossed that evidence!
According to the FBI, Jay Michaud visited sites on the dark web, which is where he allegedly purchased the child porn, and where the agency was able to gather evidence against him using the Network Investigation Technique, also known as NIT. Federal agents are alleged to have used the technique to infiltrate a child porn website on the dark web and then track the computers who visited it.
As a result of the evidence gathered this way by the FBI, police were able to get a warrant to search Michaud’s home. There they found a cell phone and two thumb drives, all of which allegedly contained child pornography. But because the FBI has refused to reveal how they went about hacking the original kiddie porn website, a federal judge has decided that any evidence gathered as a result of that hack should be excluded from the trial.
‘Fruit of the poisoned tree’ is what keeps tainted evidence out of court!
In the written opinion handed down by Judge Robert J. Bryan of the US District Court for the Western District of Washington, he explains it like this. “Evidence of the NIT, the search warrant issued based on the NIT, and the fruits of that warrant should be excluded and should not be offered in evidence at trial.” Criminal defense attorneys call this “fruit of the poisonous tree.”
There has been significant concern over whether or not the software used in this and other similar cases has implicated innocent people. Judge Brian has already insisted that the FBI hand over it’s code but the US Attorney has requested that he reconsider his request, citing the illegal files that were found independently of, but as a direct result of, the FBI’s hacking software.
“Any concern about corruption or other errors that might cast doubt on the accuracy of the information obtained through the NIT…can be addressed by review of the information that was actually collected.” he said.
As experienced criminal defense attorneys, we are well versed in the Fruit of the Poisonous Tree doctrine, which holds that most evidence gathered with the assistance of illegally obtained information must be excluded from trial. If you have been accused of a crime based on evidence that was gathered by illegal means, or your rights have been violated, contact our criminal defense attorneys promptly. We can help you. Our phones answer all day, every day at 1 866-766-5245.