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How Technology will Affect the Practice of Law in Nevada

January 09, 2018
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The below essay was from one of two runner up  prize winners of the First Annual Benson & Bingham Scholarship Contest.  Submitted by Olivia  Campbell, a current law student at the University of Nevada Las Vegas, we are proud to showcase why attorneys Joseph Benson and Ben Bingham selected Ms. Campbell as one of the recipient's of the $250 runner-up scholarship awards.   Her essay discussed her views on How Technology will Affect the Practice of Law.

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As a future Chief Deputy District Attorney, technology is extremely concerning when it comes to future crimes that may occur. While we understand that the law needs to keep up with technology, that is not always the case. After all, the wheels of progress, like justice, turn slowly.  There are an array of crimes that technology makes worse, or that create new crimes. These crimes include, but are not limited to, cyber stalking, harassment, cyberbullying, and the unapproved image capture of another person’s private area. However, not every aspect of technology involving crime is a bad thing.

We are now seeing the crime of “revenge porn” more than ever in our society. This shows how the laws need to keep up with technology. Revenge porn has become widely publicized with celebrities publishing explicit images of their former significant others. As of October 1, 2015, thanks to Assembly Bill 49, it is a Category D Felony to post an intimate image with the intent to harass, harm, or terrorize another person by selling the image or electronically disseminating it without prior consent. An intimate image can be a photograph or a videotape that shows a fully exposed female nipple or one person, or more, engaged in sexual acts. If convicted, a person faces one to four years in the Nevada Department of Corrections and paying a fine of $5,000.

Nevada Revised Statute 200.604 deals with the crime of capturing image of private area of another person. This statute defines a person’s “private area” as naked genitals, pubic area, buttocks or the breasts of a female. The elements of the crime are that the defendant knowingly and intentionally captured the image of another person’s private area, the victim did not give consent and the victim had a reasonable expectation of privacy. If a person is convicted only once of capturing image of private area of another person, they will have a gross misdemeanor conviction on their record and will have to serve 364 days in jail and pay a fine of $2,000. If they have a second or subsequent conviction, they will be convicted of a Category E Felony. The defendant will then spend between one to four years in the Nevada Department of Corrections and will have to pay a fine of $5,000. Usually, when a person is charged with this offense they used an item of technology, like a cell phone, hidden camera, or an iPad to take the illicit image.  An example of this crime would be the case of Dani Mathers, who is a former Playboy model. While in a gym locker room in California, she took a Snapchat photo of a seventy year old nude woman, and broadcasted it for all of her followers to see. The state of California charged her with invasion of privacy, which she pled guilty to. If something similar were to happen in Las Vegas, can see the Clark County District Attorney bringing charges of Capturing Image of Private Area of Another Person against an individual with similar conduct.

A “Peeping Tom” law is also on the books in Nevada. Nevada Revised Statute 200.603 refers to peering, peeping or spying into a dwelling, like a “Peeping Tom” is known to do. The elements of this statute are that the defendant knowingly entered a property, while concealed or attempting to be concealed, and with the intent to peer, peep or spy through a window, door or other opening of the property. Additionally, the defendant did not have permission to do so. If an individual is convicted of peering, peeping or spying into a dwelling they will have a misdemeanor conviction. This means that the defendant will spend up to six months in jail and pay a fine of $1,000.

The law that refers to stalking is Nevada Revised Statute 200.575. Stalking is defined by this statute as a person who, without lawful authority, willfully or maliciously engages in a course of conduct that would cause a reasonable person to feel terrorized, frightened, intimidated, harassed or fearful for the immediate safety of a family or household member, and that actually causes the victim to feel terrorized, frightened, intimidated, harassed or fearful for the immediate safety of a family or household member. A first conviction of stalking is a misdemeanor offense. Any subsequent conviction is charged as a gross misdemeanor. Nevada has chosen to recognize cyberstalking as a crime. Under NRS 200.575(3), cyberstalking occurs when a person engages in stalking as defined by NRS 200.575, but uses internet, electronic mail, text messaging or another electronic form of communication to publish, display or distribute information in a manner that substantially increases the risk of harm or violence to the victim.

It is very important that crimes like cyber stalking are taken seriously in the legal community. The internet allows criminals to have the guise of anonymity. Websites such as “ask.fm” or “formspring.com” make it extremely easy for cyber stalking, and even harassment, to occur. Websites such as the two referenced above are especially prominent among youths, who are also dealing with the effects of cyberbullying.

Nevada has taken note that cyberbullying is an issue in our beloved state. Under Nevada Revised Statute 388.122, 388.123, cyberbullying is bullying committed through the use of electronic communication. Bullying is a verbal, physical or written act that is intentional, or a course of conduct that repeatedly exposes the victim to one or more negative actions that is highly offensive to a reasonable person. Under this statute, bullying is designed to cause or actually causes the victim harm or serious emotional distress, exploits an imbalance in power between the bully and the victim, inflicts harm or poses a threat of immediate harm to another person, places another person in reasonable fear of harm or serious emotional distress, or creates a hostile school environment by interfering with a student’s education.

Under the law, teachers and other staff are required to report any instances of bullying, whether it is done electronically or in person. The school staff member must tell the principal, who is to open an investigation. The investigation must be completed within ten days and must contact the parent or guardian of every child involved in the bullying incident. If the investigation proves that an act of bullying or cyberbullying occurred, then disciplinary actions must be taken. While cyberbullying is not technically a crime under this statute, it does require that a minor student be punished for his or her actions which is extremely important and a great development to have in case, one day, cyber bullying does become a misdemeanor offense.

It is very easy to harass people over the internet. Harassment is defined by Nevada Revised Statute 200.571 as a person, without lawful authority, knowingly threatens to cause bodily injury in the future to the person threatened or to any other person; to cause physical damage to another person's property, to subject the individual threatened to physical confinement or restraint, or to do any act which is intended to substantially harm the person threatened with respect to his or her physical health, mental health or safety and the person by words or conduct places the person receiving the threat in reasonable fear that the threat will be carried out. Once again, using the anonymous websites or phone applications like “Yik Yak”, an individual can be harassed almost constantly thanks to technology. However, it may be easier for law enforcement and prosecutors to prosecute a person who is charged with harassment thanks to technology.

A prosecutor may be able to subpoena a person’s phone, and their phone records. Subsequently, they may be able to find even more evidence of the harassment occurring and make sure that the case can be proven, beyond a reasonable doubt. This may include a person having Yik Yak installed on their phone, or the texts message sent to the victim. If convicted of harassment, a person faces spending up to one year in jail, as a first offense is a misdemeanor.

Any additional conviction of harassment will be a gross misdemeanor. Technology is not completely evil when it comes to the law. Technology, in some aspects, is extremely useful in terms of crime and the practice of law. Police officers, prosecutors and criminal defense attorneys have all benefited greatly from the implementation of certain forms of technology being brought into the litigation process. Further, technology is able to detect and prevent some crimes, such as driving under the influence.

A breathalyzer may not be what first comes to mind when you think of technology. However, it is! For chronic offenders of drivers under the influence, who have been convicted of three or more offenses, a breathalyzer is installed into their car. Before the car turns on, the person must blow into the breathalyzer. If any alcohol is detected, the car will not start. This technology, in this instance, is able to prevent a driving under the influence crime from occurring.

Technological advances, such as latent prints and DNA testing has helped advance the world of criminal law and criminal trials. When a person’s fingerprints and DNA, either in the form of spit, blood or hair, are found at a crime scene it can help a prosecutor build a strong case against a person in our community who should be behind bars. Conversely, in this world of technology, if police officers and crime scene analysts are unable to recover any fingerprints or DNA from a crime scene that link an accused person to the crime in question, it will be beneficial for the criminal defense attorney. The criminal defense attorney will be able to bring forward reasonable doubt, by pointing the fact that nothing “concrete”, like DNA, can link the accused person to a crime. If the accused person is truly not guilty, this will be a great thing as an innocent, wrongly accused person will be able to return home to his or her family. Not to mention, technology is helpful to both sides, depending on what is depicted, when you are able to watch surveillance video recordings. It may prove that the accused is at the crime scene, or prove that the accused is not.

 At the end of the day, technology is something that has happened so quickly to our society that sometimes, the law cannot keep up. In some ways, technology can be used for bad in terms of cyberbullying and revenge porn. On the other hand, technology is very beneficial to keeping our community safe in terms of breathalyzers. It is also important in ensuring that our justice system remains just and that the guilty get convicted, while the innocent do not. As with everything in life, it all depends on how you use it. There are negatives and positives to how technology is used but at the end of the day, the positives outweigh the negatives in light of all that technology can do for those pursuing a career in criminal prosecution.

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