How Lawyers Use Digital Evidence in Court

Web Admin - Tuesday, July 15, 2014

criminal defense digital evidenceThe advent of computer technology has reshaped the way that people communicate with each other, as well as how they treat information. This has created an interesting ripple effect in courts, which now have to deal with lawyers seeking to use digital evidence in court, which includes things like incriminating emails, computer files, and Facebook posts. 

The use of this sort of evidence comes with a variety of hurdles that an attorney must clear. The attorney must prove that the evidence is authentic and untampered with, as well as show that the records are acceptable as testimony. Prosecutors in a criminal case have a higher standard to meet, needing to show that their obtaining the evidence did not violate the defendant's privacy rights.

Hurdles to Using Digital Evidence

Lawyers face three hurdles in using digital evidence: authentication, hearsay, and privacy. Authentication refers to the need to demonstrate that the digital evidence is genuine and that no one fabricated or tampered with it. This is more difficult to show with things like emails than with physical letters because people can easily edit or alter the email's text to change the substance of the message. However, many courts still set a fairly low standard of authenticity for allowing the lawyers to present evidence to the jury; they leave the final determination of genuineness to the jury itself.

The next exception to the use of digital evidence is the rule forbidding “hearsay” testimony, which digital evidence often qualifies as. Hearsay is a statement made outside of a courtroom that the lawyer is attempting to use to prove the truth of whatever the statement is about. For instance, if a defendant is on trial for murder and one witness testifies that another witness told them they had seen the defendant commit the murder, that testimony would be hearsay since the testifying witness is just reciting an out-of-court statement.

Finally, in criminal cases, the prosecution must also show that the police obtained the evidence without violating a person's 4th Amendment rights. In many cases this means that the police must have received a warrant to perform the search, but there are exceptions to this. For instance, in the civil case of Largent v. Reed, the court determined that people do not have a “reasonable expectation of privacy” in regards to the things they post to Facebook, which would mean that a warrant would not be required to look through a person's Facebook profile.

How People Can Protect Themselves

Protecting online and digital information is a difficult prospect. Often, awareness of the public nature of things like Facebook posts, internet searches, and emails can help people stay alert to the fact that such things may be available as evidence in court. This can help modify people's behavior, and make them more careful about the sort of information that they make digitally available. Beyond that, there are some programs that can encrypt private data, but these can often be decrypted throughout the discovery process.

If you are concerned about the use of digital evidence against you in a trial, contact a Barrington criminal defense attorney today. Our firm represents clients across many northwest suburban towns like Rolling Meadows, Palatine, and Schaumburg.

About the Author: Founding partner of Drost, Gilbert, Andrew & Apicella, LLC, Colin Gilbert, received his J.D. from Chicago-Kent College of law in 2005. Colin argues cases across many practice areas including criminal defense, collections, civil litigation, real estate law, and corporate law. Colin is an active member of the Board of Governors of the Northwest Suburban Bar Association and the Illinois Creditors Bar Association. He is currently Vice President of the Arlington Heights Chamber of Commerce, and is a Commissioner for the Village of Arlington Heights. Colin has a 10.0 Attorney rating on Avvo, and was named one of the 2014 “Top 40 Under 40” Trial Lawyers in Illinois by the National Trial Lawyers Association.

Murder in the Mushroom Kingdom: Is Mario a Knight in Shining Armor or a Dangerous Fugitive?

Web Admin - Tuesday, March 25, 2014

illinois criminal defense lawyer mario murderSuper Mario Bros. is one of the best-selling video games of all time, and its story presents an interesting issue of criminal law. In the game, Bowser invades the Mushroom Kingdom, turns all of its inhabitants into inanimate objects, and kidnaps the princess in order to prevent her from undoing the spell. Then, Mario sets off on his quest to free the princess and the kingdom. At the end of the game Mario confronts Bowser, pushing him into a pit of lava to free the princess. This raises the question of whether Mario’s killing of Bowser was a crime or whether it was done out of necessity or self-defense.

The Crimes

After killing Bowser, Mario would likely be charged with some form of homicide. Illinois law breaks homicide down into four categories: first-degree murder, second-degree murder, reckless homicide, and involuntary manslaughter. Of these types of killing, Bowser’s would probably fall into either first or second-degree murder. First-degree murder occurs when a person kills someone either with the intent to kill them or do them serious bodily harm, or when a person kills someone by taking some action that they know will kill or seriously injure the person. Second-degree murder is the same, except that the killing is mitigated by the fact that the killer is either acting under extreme emotional provocation or that the killer has an unreasonable but sincere belief that they have a legal justification for the killing, such as self-defense.

In Mario’s case, it seems most likely that he would be charged with second-degree murder since Bowser had just turned everyone he knew into inanimate objects, which would definitely fall into the serious provocation version of second-degree murder. Furthermore, Mario probably has a strong legal defense to the killing, which he no doubt sincerely believed.

The Defenses

Mario could raise two defenses in his case that would probably allow him to escape with a not guilty verdict: self-defense and necessity. Both of these are covered by the justifiable use of force section of the Illinois Criminal Code. For the purposes of self-defense, a person is allowed to use deadly force only if they reasonably believe it is necessary to prevent “imminent death or great bodily harm” to themselves or another person. Since Bowser had kidnapped the princess and stolen her kingdom that would probably be grounds for reasonable belief that he was going to kill or seriously harm her.

Mario could also use a defense of necessity for the murder, and it would probably succeed. The concept of necessity allows a person to do something that would be criminal if the harm that arises from it is less that the harm that they prevent with the act. Since Mario’s killing Bowser freed the kingdom, and there were no members of law enforcement left, a court would likely find what he did to be necessary.

If, like Mario, you have recently been the subject of criminal charges, seek help from a criminal defense lawyer in Illinois today. We represent accused citizens in the northwest suburban area, including in Rolling Meadows, Arlington Heights, and Schaumburg.

About the Author: Founding partner of Drost, Gilbert, Andrew & Apicella, LLC, Colin Gilbert, received his J.D. from Chicago-Kent College of law in 2005. Colin argues cases across many practice areas including criminal defense, collections, civil litigation, real estate law, and corporate law. Colin is an active member of the Board of Governors of the Northwest Suburban Bar Association and the Illinois Creditors Bar Association. He is currently Vice President of the Arlington Heights Chamber of Commerce, and is a Commissioner for the Village of Arlington Heights. Colin has a 10.0 Attorney rating on Avvo, and was named one of the 2014 “Top 40 Under 40” Trial Lawyers in Illinois by the National Trial Lawyers Association.

The Case of Bear v. Goldilocks

Web Admin - Thursday, February 27, 2014

illinois criminal civil lawyerWhile people often see the story of Goldilocks and the Three Bears as nothing more than a children’s story, it can also act as a simple overview of the legal system. After all, Goldilocks commits a variety of different offenses, both civil and criminal, throughout the story. 

The difference between a civil case and a criminal case is that a civil case involves a dispute between two private parties, the Bears and Goldilocks, while the criminal case involves the state pursuing Goldilocks for her illegal actions. Of course, many of Goldilocks’ actions can give rise to both civil liability and criminal charges.

The Civil Case: Bear v. Goldilocks

The Bears have three claims for which they may be able to sue Goldilocks: trespassing on their land, conversion of the porridge, and conversion of the chair. The Bears can easily show that Goldilocks trespassed on their land, but they will likely not receive any money for doing so, since her act of trespassing did not appear to cause any actual damage on its own. 

As for the claims of conversion, the Bears must show three things: that they owned the porridge and chair, that Goldilocks took some act inconsistent with that ownership, and that their property was damaged by Goldilocks’ acts. Since Goldilocks ate the porridge, and then sat in and broke the chair, the Bears can show that she converted those items and recover their value from Goldilocks.

The Criminal Case: The People v. Goldilocks

The state could also bring criminal charges against Goldilocks for all three of those same actions. These charges would be criminal trespass to land, petty theft of the porridge, and criminal damage to property for breaking the chair. However, the state would not have as easy a case as the Bears did suing for those same actions.

Trespassing is a crime in Illinois punishable by up to a $500 fine and six months in jail, but in order to be guilty of trespassing, a person must enter the land after being warned not to, or they must stay on the land after being told to leave. Unless the Bears had posted a sign warning trespassers, it would only be a civil offense. On the other hand, if Goldilocks had entered the house with a plan to commit a crime, she would be guilty of burglary, a class 2 felony punishable by up to 14 years in prison.

The petty theft of the porridge is an easier case. She clearly steals the porridge by eating it, and in Illinois the seriousness of the theft is determined by the value of the item. Since the porridge was probably worth less than $500, it would be petty theft, a class A misdemeanor punishable by up to a $2500 fine and one year in prison.

The state could also press charges against her for criminal damage to property for her breaking the chair, but this would likely fail. In Illinois, a person must knowingly damage the property to be guilty of the criminal offense. Because Goldilocks did not know she would break the chair if she sat in it, that charge would probably fail.

If you have recently found yourself involved with criminal charges or civil litigation, contact an attorney today. A Rolling Meadows criminal defense or civil litigation attorney can put their knowledge and legal experience to work for you. Our team serves clients across the northwest suburbs, in areas such as Schaumburg, Palatine, Barrington, and Inverness.

About the Author: Founding partner of Drost, Gilbert, Andrew & Apicella, LLC, Colin Gilbert, received his J.D. from Chicago-Kent College of law in 2005. Colin argues cases across many practice areas including criminal defense, collections, real estate law, and corporate law. He is involved in his local Illinois community as an active member of the DuPage County Bar Association, Northwest Suburban Bar Association, and the Arlington Heights Chamber of Commerce. In 2012, Colin was nominated for 2012 Business Leader of the Year by the Chamber.

What Happens if I Get Caught Driving Without a License in Illinois?

Web Admin - Friday, December 13, 2013

By Colin H. Gilbert 



The State of Illinois takes driving without a license very seriously. The law does not view this like a mere speeding ticket or red light violation. Instead, the Illinois Vehicle Code allows the state to pursue criminal charges against drivers who get on the road without a license.

The law breaks down the seriousness of getting caught driving without a license into three separate categories depending on a variety of factors. These factors include whether or not the reason the person has a license, whether the person ever had a license, and the person’s age.

Driving without a license starts off as a petty offense. The law considers it a petty offense if the person had a license at one point in the past year, and merely let it lapse. In these cases the law limits the punishment to a $500 fine. If the person’s license expired more than a year ago, or if the driver in question is below the age to get a driver’s license then the law upgrades the crime to a class B misdemeanor. 

Class B misdemeanors can trigger punishments of up to $1,500 in fines, and 180 days in prison. However, jail time for unlicensed driving in this case is uncommon, and judges are allowed to sentence offenders to probation or community service instead. The law may also punish driving without a license as a Class A misdemeanor in the event that the driver committed the offense after the Secretary of State suspended or revoked their license. In these cases, the court may sentence the offender to up to a year in prison, along with $2,500 dollars in fines.

Additionally, people caught driving without a license face more than just criminal sanctions. The Secretary of State will also get involved by suspending their license. License suspensions can last anywhere from two months to a year depending on the number of convictions for driving without a license that a person has received. Also, license suspension affects even those people who never received a driver’s license, since they will be unable to get one for the length of their suspension. Furthermore, after a person’s fifth conviction, the Secretary of State can revoke a person’s driving privileges. In this instance, the state will not allow the person to drive until they have recovered their privileges in a formal hearing.


If you face criminal charges for driving without a license, you do not have to go through the process alone. Contact a Schaumburg criminal defense lawyer today. We serve many northwest suburban areas including Rolling Meadows, Arlington Heights, Barrington, and other nearby communities.

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