A [Standard Operating Procedure [SOP] is sufficient to create a duty. The documentary evidence and testimony regarding the SOP and how it is carried out on a daily basis was sufficient to establish a duty in this case.

Every defendant has the absolute right not to testify. A defendant may choose not to testify for any number of innocent reasons, including a fear of not coming across well due to poor self-presentation skills, nervousness about public speaking, or because their lawyer has advised them not to testify for reasons unrelated to their guilt or innocence in this case. When you decide the case, you must not consider the fact that the defendant did not testify. It must not affect your verdict in any way.

A duty to Google

Attorneys have a professional duty to investigate relevant facts about the matters on which they work. There is no specific rule or statute requiring that an attorney perform an internet search as part of this investigation. Yet attorneys have been found by judges to violate a “Duty to Google” when they have failed to conduct an internet search for relevant information about, for example, a claim, their own client, and even potential jurors in a trial.

So much information is now available to attorneys so easily in electronic search results, it is time to wonder where, when, and how much attorneys should be searching. This Article examines the following questions: is the “Duty to Google” merely yet another example of how attorneys must become proficient in technology to meet their professional ethical obligations? Or is it something more? Where should this duty be codified, if anywhere? At what point does technology like a search engine become so “mainstream” that attorneys have a duty to use it or face allegations of malpractice? How will attorneys know how much Googling is enough?

This article explores an attorney’s duty of investigation and notes that this duty has been, like the rest of legal practice, forever changed (and ever changing) by technology. It examines the potential sources of a Duty to Google and argues that this responsibility is poorly defined. Accordingly, this article argues for a better-defined duty of investigation, codified in a rule of professional conduct. The article concludes by looking to the future and suggesting industry-wide changes to better prepare attorneys to meet their (better defined) obligations of technological competency.

Air Force

United States v. Goodwater

We agree with Appellant that one of the prosecution exhibits was erroneously admitted during the findings portion of the trial on the distribution specification (Specification 2 of the Charge) in that it contained testimonial hearsay.
. . .
[T]he National Center for Missing and Exploited Children (NCMEC) received a report from the social media platform related to a suspect with a certain username and a certain email address which uploaded child pornography to the social media platform server. After receiving this report, NCMEC representatives generated a “CyberTipline report.” This report contained the unaltered information submitted from the reporting individual from the social media platform. The report was forwarded to the Las Vegas Metropolitan Police Department as well as the Air Force Office of Special Investigations (OSI) along with the suspected image of child pornography as submitted by the social media platform.
. . .
The Government called BA, a division director from NCMEC, to testify at trial. Trial counsel sought to admit the NCMEC CyberTipline report and the accompanying image during this testimony. Additionally, trial counsel offered a business record affidavit from the individual who oversaw the NCMEC CyberTipline to establish the foundation for the admission of the report for this case. Trial counsel did not present any testimony from a representative from the social media platform. Trial defense counsel objected to both admission of the report and of the accompanying image, arguing that they contained testimonial hearsay from the social media platform.

​“Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because—having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009). “To rank as testimonial, a statement must have a primary purpose of establishing or proving past events potentially relevant to later criminal prosecution.” Bullcoming v. New Mexico, 564 U.S. 647, 659 n.6 (2011) (internal quotation marks and citations omitted).