Is There Such Thing as Too Much Evidence?

Assembling the case against Dzhokhar Tsarnaev won't be as simple as it appears from the news.

It's possible that every inch of Copley Square was captured on camera in the moments after the Boston Marathon bombing. But it wasn't due to some Big Brother network of municipal cameras. It was the camera phones. In the hours and moments after the attacks, perhaps the largest crowd-sourced investigation ever began, with the FBI receiving a flood of images and tips.

"Every reason that gave that site an attractive place for a terrorist’s bomb also made it easier for law enforcement to figure out who did it," says Howard K. Stern, who was the U.S. attorney for the Massachusetts district from 1993 to 2001.

A massive crowd means a massive pool of witnesses. But this also puts forward new challenges when the issue comes to court. For instance, is a Twitpic a reliable source of evidence?

Recently, I spoke with Stern on the phone about how the U.S. Attorney's Office might proceed with a terrorism case, and what role social media and crowd-sourced tips can play in a conviction.

The following interview has been edited for clarity and length.

From all the evidence, all the photos, all of the witnesses on the scene, it might seem like this is an easy case for the U.S. to prosecute. But does this flood of information complicate matters at all?

Sometimes the media or the average citizen will put together a couple of random facts and reach some conclusion, and that might make even some common sense. But still, there’s some evidentiary hurdles that the prosecutor has to show.

So let’s say someone posted on the Internet a photo of this guy with the backpack. The defense lawyer is going to ask: When was the photo taken? Who took it? How do we know that it is accurate? How do we know it wasn’t Photoshopped?

That’s an example of where, just because something looks one way, you still have to prove it in evidence. I do think that’s one of the reasons why some people have asked me, "Why didn’t the government release all the video footage they had of the bombing?" They only released the photos of the two guys. I think they wanted to keep the witnesses or the potential witnesses as uninfluenced as possible by what they might see in the media.

That’s a big challenge. We’ve all been saturated with news, but you want the witnesses' unvarnished memory of what happened that day, not based upon or influenced by some blog or some media story.

I’m sure one of the arguments the defense lawyers will make as they did in Oklahoma City is that the trial should be moved. That it shouldn’t be in Boston, it should be someplace else.

News outlets have covered this story from every possible angle, interviewing friends and relatives of the suspects and many who were witnesses to the blast. For instance, The New York Times tracked down and recorded runners who were just finishing the race as the blast occurred—all witnesses to the crime. Does this help or hurt the investigation?

It’s both a blessing and a curse if you are a prosecutor, because obviously, you’ve got hoards of enterprising reporters out there trying to dredge up [information]. On the other side, prosecutors generally don’t like a whole lot of statements that witnesses have made other than statements they make to the government agencies. Because I don’t care how good of a memory you have, no two statements are exactly the same. They can’t be.

If The New York Times [for instance] interviews someone and they say, “Well, I bumped into someone right before the blast, and he gave me a strange look.” And then they are interviewed by the government. Or put it the other way around.... The lawyer on cross-examination can say, “Isn’t it possible you were bumped into by somebody else? You gave conflicting accounts, didn’t you, when you bumped into the guy—what do you mean?” So the defense lawyer puts some seeds of doubt into the minds of a jury. It’s a blessing and a curse. It’s great that there are people out there, and it’s a free country, they’re free to talk to reporters, but it can complicate the case.

Does the flood of information make the job of the U.S. attorney harder or easier?

That’s a great question, let me think about that for a second.

I don’t know. In some respects it’s easier, there’s information that can be gleaned from the computer that you otherwise wouldn’t get. So, for example, if the press accounts are accurate about the brother who died had posted some things on a YouTube account, that may give a window into certain things that you might not have if he had read a book, took a book out of the library.

On the other hand, yeah, there’s such a thing as too much information. I’m sure the FBI is going nuts with all the leads and the photos that are being sent into them and people putting things on Facebook.

At the end of the day, a lot of the important photographs will be introduced. A lot of them come from either people that have now self- identified themselves and they will testify that they took this picture, some of them will come from pole cameras and things like that, which will be authenticated by the owner of the store. At the end of the day, this evidence will come in. But what the prosecutor has to think about is not just what the evidence is, but how do we admit it into evidence? Get it to be legitimate evidence that the jury can hear, as opposed to what the newspaper chooses to print. Those are totally different things.

Michael Sullivan, another former U.S. attorney from the Massachusetts district (and current Senate candidate), has called for Tsarnaev’s citizenship to be revoked. Could this happen? And what would happen if it did?

It would be very rare for something like that to happen before someone was convicted, number one. And number two, if he was convicted and received the kind of sentence that is likely to result in a conviction of terrorism, the government is not going to revoke his citizenship and deport him. They are going to make sure his sentence is carried out in the United States.

On what grounds could the government, in theory, revoke his citizenship?

I’m not an immigration expert. But there are situations. Because you have to disclose certain facts when you apply for citizenship and if you lie on that application, or if you fail to disclose some information, there are situations where you can have your citizenship revoked.

It strikes me, the defendant is going to care more about the penalty he’s facing rather than if he’s a U.S. citizen or not.

How does the terrorism charge change the way this case is prosecuted?

It changes it in the sense that there will be much more involvement from the the Department of Justice in Washington. Not only the terrorism section, but the deputy attorney general and the attorney general will be much more heavily involved in key decisions, strategy decisions. It also in a case like this—and all I know is what I read in the newspapers—it could well be that as the case gets under way, and as they learn more facts, there will be information that is gathered from intelligence agencies like the CIA. In one sense it’s good to be sharing information. But sometimes it presents challenges in how that gets handled in court. There’s a way to handle classified information. That can create complications.