Pacemaker data admissible in court?

[wiggin]

I haven't found a good story covering this, so apologies for the source, but this was an interesting story that cropped up:

https://www.cnet.com/news/judge-rule...nst-defendant/

Long story short, a judge in Ohio allowed pacemaker data to be used in an arson investigation to disprove a defendant's claims about what he was doing prior to the fire. While I am generally less concerned about allowing data from electronics such as cell phones, Amazon Echo/etc., and other devices, it seems problematic to allow data from implantable medical devices. Yet I'm not sure I can articulate exactly why it should be an issue. Thoughts?

[Loki]

A pacemaker is effectively part of your body. You can't search someone's body without a search warrant. I would hope judges would require something similar for pacemakers.

[LittleFuzzy]

That's. . . odd. Dr/patient confidentiality would/should apply but that doesn't protect legally gathered information from being analyzed by an expert witness not bound by that relationship. Their testimony can be questioned by the defense and challenged by their own expert witnesses. You would absolutely need a warrant to get the information, that's definitely something that would fall under rigorous due process but they seem to have received a warrant first. I'm not certain I can think of any particular reason why, if appropriate steps were followed, they shouldn't be able to use it. Not unless they need to do a surgical procedure to get the information off the pacemaker in the first place and I'm pretty sure that's not the case. My objection would be that trying to use recorded biorhythms as analyzed by a cardiologist (or similar expert) after the fact to prove or disprove someone's physical actions seems all kinds of sketchy and unreliably open to interpretation but that is, unfortunately, always going to be an issue left to the individual judge to decide if its just too ridiculous to waste time on or something which can just be rebutted at trial.

[Aimless]

That sounds like it was taken straight out of the plot for an episode of Bones. I would have issues with using that data to draw those conclusions. However, I think, on the whole, that retrieving such data in the course of a criminal investigation and using it against a defendant should not be any more problematic--in principle--than retrieving eg. fingerprints and DNA samples or phone location data, unless you can somehow construe it as a way to compel self-incriminating "speech". That's the one issue I can even imagine would present a problem when there's a warrant.

[wiggin]

A pacemaker is effectively part of your body. You can't search someone's body without a search warrant. I would hope judges would require something similar for pacemakers.

I believe they got a warrant.

That's. . . odd. Dr/patient confidentiality would/should apply but that doesn't protect legally gathered information from being analyzed by an expert witness not bound by that relationship. Their testimony can be questioned by the defense and challenged by their own expert witnesses. You would absolutely need a warrant to get the information, that's definitely something that would fall under rigorous due process but they seem to have received a warrant first. I'm not certain I can think of any particular reason why, if appropriate steps were followed, they shouldn't be able to use it. Not unless they need to do a surgical procedure to get the information off the pacemaker in the first place and I'm pretty sure that's not the case. My objection would be that trying to use recorded biorhythms as analyzed by a cardiologist (or similar expert) after the fact to prove or disprove someone's physical actions seems all kinds of sketchy and unreliably open to interpretation but that is, unfortunately, always going to be an issue left to the individual judge to decide if its just too ridiculous to waste time on or something which can just be rebutted at trial.

I actually think it's more or less being used to disprove that he was asleep ahead of time, which is probably fairly easy to do based on pacemaker data; more subtle analysis is not likely possible at the moment. Also, the data is routinely downloaded wirelessly so that would not be an issue.

So am I right in understanding from your post that, given a warrant, this would not be inadmissable? As our implantable devices get much more sophisticated in terms of what sensors they have and data they record, this is going to become a much bigger deal. I'm not sure I can articulate why, but it seems problematic to me. I guess a more sci-fi kind of question might be: assuming that our future akashic computers (Zindell reference ftw!) can model all of our previous memories noninvasively, would a court be able to issue a warrant to read your mind to determine guilt? This seems to be a logical extension of physiological monitoring, and it seems like it could conceivably run into 5th amendment issues. Maybe it's only problematic in context of data that has already been recorded for other purposes and is now sitting on a medical server somewhere.

[LittleFuzzy]

I believe they got a warrant.



I actually think it's more or less being used to disprove that he was asleep ahead of time, which is probably fairly easy to do based on pacemaker data; more subtle analysis is not likely possible at the moment. Also, the data is routinely downloaded wirelessly so that would not be an issue.

So am I right in understanding from your post that, given a warrant, this would not be inadmissable? As our implantable devices get much more sophisticated in terms of what sensors they have and data they record, this is going to become a much bigger deal. I'm not sure I can articulate why, but it seems problematic to me. I guess a more sci-fi kind of question might be: assuming that our future akashic computers (Zindell reference ftw!) can model all of our previous memories noninvasively, would a court be able to issue a warrant to read your mind to determine guilt? This seems to be a logical extension of physiological monitoring, and it seems like it could conceivably run into 5th amendment issues. Maybe it's only problematic in context of data that has already been recorded for other purposes and is now sitting on a medical server somewhere.

I'm having a hard time working my way around to seeing how this would be regarded as being a witness against oneself anymore than your recorded image on videotape is a witness against yourself. I understand where you're coming from and the way you're trying to fit it into the framework but it's just not fitting comfortably into that space for me. A recording made and kept at the time is not self-testimony. The physician/service holding that recording may have a leg to stand on in refusing to hand it over via established confidentiality rules, but technically a valid warrant will override that and they would be vulnerable to contempt of court. Recordings made during/as part of the investigation would be inadmissable. It seems to me that you're getting confused between the act and subsequent testimony about the act.

[Aimless]

It can be argued that a pacemaker is a part of the person in a way that a cellphone is not.

[wiggin]

I'm having a hard time working my way around to seeing how this would be regarded as being a witness against oneself anymore than your recorded image on videotape is a witness against yourself. I understand where you're coming from and the way you're trying to fit it into the framework but it's just not fitting comfortably into that space for me. A recording made and kept at the time is not self-testimony. The physician/service holding that recording may have a leg to stand on in refusing to hand it over via established confidentiality rules, but technically a valid warrant will override that and they would be vulnerable to contempt of court. Recordings made during/as part of the investigation would be inadmissable. It seems to me that you're getting confused between the act and subsequent testimony about the act.

Fair enough, that distinction makes sense. What about this: Data is not always downloaded and viewed. If it is internally recorded on the pacemaker but is specifically downloaded externally for the purposes of incriminating the suspect, is that something you could compel with a warrant?

[RandBlade]

It can be argued that a pacemaker is a part of the person in a way that a cellphone is not.

So's a fingerprint.

[Aimless]

So's a fingerprint.

As is DNA. But this borders on being forced to give self-incriminating testimony about what you were doing god knows how long ago, and that compelled testimony can be misused. It's scary for other reasons when you consider location tracking that can't reasonably be turned off and that is retrospectively turned into surveillance. The theoretical scenario of obtaining a warrant to read a cybernetic brain may seem unrealistic but illustrates a philosophical problem with using information recorded by and stored on implantable medical devices in this fashion.

[LittleFuzzy]

Fair enough, that distinction makes sense. What about this: Data is not always downloaded and viewed. If it is internally recorded on the pacemaker but is specifically downloaded externally for the purposes of incriminating the suspect, is that something you could compel with a warrant?

If downloading it is not unreasonable intrusive then yes. It would be similar to compelling a DNA sample. I'm not going to address hypothetical future scenarios and technology, we have a hard enough time keeping the law up to date with current technology as actually used. Straight-line projections from here to there are A) a slippery slope fallacy and B) ignore how emergent characteristics/contexts might be considered to change the framework.

[Lewkowski]

It can be argued that a pacemaker is a part of the person in a way that a cellphone is not.

Your blood is part of you and can be used in an investigation.