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).

Air Force
​(Updated 18 November 2024)

United States v. Moore--a case to watch

In his appeal, Appellant challenges the legal and factual sufficiency of his sexual assault conviction. Specifically, Appellant argues that his conviction was legally insufficient because the Government violated his due process rights by conflating two different theories of criminal liability under Article 120, UCMJ, during his court martial. For the reasons set forth infra we agree.

Viewing this evidence in the light most favorable to the Prosecution and drawing every reasonable inference from the evidence of record in favor of the Prosecution, we find Appellant’s conviction legally insufficient because the Government in this case charged Appellant under one factual theory—sexual assault without consent (from a person capable of consenting)—and then proved the charged offense on a different factual theory—sexual assault when Appellant knew or should have known that the victim was asleep. After reviewing the totality of the record of trial, we cannot conclude any rational trier of fact could have found the essential elements of the crime as charged beyond a reasonable doubt. Here, the Government offered no evidence that AB was capable of consenting and did not consent. Instead, the Government’s evidence presented during Appellant’s court-martial was limited to the fact that AB was asleep, and therefore not capable of consenting when the sexual act occurred. This included testimony from multiple witnesses regarding AB’s sleep habits. Moreover, the Government’s closing argument was solely focused on the fact that AB was incapable of consenting because she was a “heavy sleeper” and was asleep while the sexual act occurred. For these reasons, we conclude Appellant’s conviction for sexual assault is not legally sufficient. Additionally, for the same reasons, after giving the appropriate deference to the factfinder, we are also clearly convinced the findings of guilty are against the weight of the evidence and therefore factually insufficient as well.

Has the prosecution charged appellant under one Article 120 theory of criminal liability and proved a different theory of liability at trial; and if so, does it matter. See United States v. Mendoza, __ M.J.___ , 2024 CAAF LEXIS 590 (C.A.A.F. 7 Oct. 2024).
In Mendoza, the Court of Appeals for the Armed Forces (CAAF) set aside the decision of this court affirming appellant's conviction on the grounds that appellant had been convicted of sexual assault while the victim was incapable of consenting under Article 120(b)(3)(A), UCMJ, despite being charged with sexual assault without consent under Article 120(b)(2)(A), UCMJ. The conflation of "two different and inconsistent theories of criminal liability" "rob[bed] the defendant of his constitutional 'right to know what offense and under what legal theory he [would] be tried and convicted" and therefore, violated appellant's due process rights. Id. at *3, 18 (citing United States v. Riggins, 75 M.J. 78, 83 (C.A.A.F. 2016)).
The CAAF held that a sexual assault under Article 120(b)(2)(A), UCMJ, "criminalizes the performance of a sexual act upon a victim who is capable of consenting but does not consent" whereas a sexual assault under Article 120(b)(3)(A), UCMJ, "criminalizes the performance of a sexual act upon a victim who is incapable of consenting to the sexual act." Despite the statutory distinction between the diverging theories of liability, however, the CAAF acknowledged that "offering evidence of an alleged victim's intoxication" could be used "to prove the absence of consent." Id. at *22.

[I]n this case, the evidence clearly proved the victim, through words and conduct, expressed her lack of consent to appellant before the sexual assault. While the victim may have been in and out of sleep at the time of the offense, the victim's clear manifestations of her lack of consent provide overwhelming evidence that she did not consent to the sexual act. Appellant was charged with a lack of consent offense, under Article 120(b)(2)(A), UCMJ, and the evidence at trial was legally and factually sufficient.

The good faith exception doesn’t apply where binding appellate precedence doesn’t specifically authorize the officer’s actions. And, as to inevitable discovery of defendant’s cell phone seizure, it was found speculative because he happened to be at the scene and they weren’t looking for the phone.

The Government must prove that discovery of the evidence by lawful means was inevitable by a preponderance of the evidence. Nix, 467 U.S. at 444. This burden is not met when the Government relies on unsupported assumptions to fill in the gaps of an undeveloped record. And here, the Government’s attempt to characterize Agent Rose’s investigation as a “routine procedure” that inevitably would have led agents to find the illicit images on Holmes’s social media accounts and cellphone simply is not supported by the record. This purported “routine procedure” is also of a different character than other procedures that we have held demonstrate inevitability. See Nix, 467 U.S. at 449; Andrade, 784 F.2d at 1433; Hylton, 30 F.4th at 848.

The Government also argues that the inevitablediscovery exception applies. The inevitable-discovery exception excuses warrantless searches where the government proves “by a preponderance of the evidence” that unlawfully obtained evidence “would have been discovered inevitably [through] lawful means.” United States v. Andrade, 784 F.2d 1431, 1433 (9th Cir. 1986). 

Inevitability is the key. There can be “no speculative elements” in showing that law enforcement would have obtained the evidence lawfully absent its unlawful actions. Lang, 149 F.3d at 1047 (quoting Nix v. Williams, 467 U.S. 431, 444 n.5 (1984)). Rather, this inquiry must “focus[] on demonstrated historical facts capable of ready verification or impeachment.” Nix, 467 U.S. at 444 n.5. We have also explained that “the fact or likelihood that makes the discovery inevitable [must] arise from circumstances other than those disclosed by the illegal search itself.” United States v. Boatwright, 822 F.2d 862, 864 (9th Cir. 1987).

The Government must prove that discovery of the evidence by lawful means was inevitable by a preponderance of the evidence. Nix, 467 U.S. at 444. This burden is not met when the Government relies on unsupported assumptions to fill in the gaps of an undeveloped record. And here, the Government’s attempt to characterize Agent Rose’s investigation as a “routine procedure” that inevitably would have led agents to find the illicit images on Holmes’s social media accounts and cellphone simply is not supported by the record.