The Infeasibility Of Self-Kept Circumstantial Evidence (ignoring forgery and provenance issues)

With the emphasis on: you realize your business partner, old flame, etc. could turn on you years later; how are you going to defend yourself?

Consider the defense against theft: you don’t have the money, because you didn’t steal it. So, if the assumption were e.g. guilty until proven innocent, your defense is going to be based on reconstructing your actions:

  • You have a pile of calendar invites, etc.
  • You have your own phone’s geolocation data, phone call list, etc.
  • You have bank statements and business documents

The existence of calendar invites merely proves you schedule a bunch of meetings; it doesn’t mean you attended any of them. You would call upon witnesses to vouch for your punctuality; how many witnesses are you going to have to call upon to prove that you attend 99% of your meetings? Dozens? At that point, you almost have a reverse denunciation rule going, where the sheer number of people willing to vouch for your credibility, outweighs that of your accuser. At that point, your calendar invites are not the deciding factor.

You can have an immaculate phone with tons of records; but you also could have another phone that you use for your criminal activity. The only way your phone could save you, is if it had an essentially complete trace of activity, that did not in any way overlap with the asserted claims of the robbery; that is, your phone can show you never went to the convenience store which people claim you robbed. In any typical financial crime, where you touch the money at some point, it doesn’t exonerate you; likewise, if your business associate is accusing you of misdealing, of course you have called them enough to establish nexus. Nor does this consider the possibility that you didn’t carry your phone when you committed the crime.

The question of your _own_ bank statements and business documents (again, considering that you have not doctored them), is whether those documents are complete. If they truly were complete with regards to the accuser’s money/property, then you would be able to point out the exact moment at which you had disposed of the property, and where the investigation should go next; but if you are the person accused of stealing the property, then that means the notional counterparty (the accuser or a third party) claims that those records are inaccurate, as the property is not where the records say it is. You can’t dispose of the matter even with perfect recordkeeping – you can only indicate where to search.

As for the metric of completeness – one would consider that a proper audit (where you actually find all the referenced money/property) would validate the general completeness and good record-keeping practice. The asserted defense, then is that because 99+% of your records are auditable, that you can’t be held accountable for stealing less than 1% of the property. Even if your own employees are stealing, your business suffers weather damage, etc. that claim about the property existing because most records are auditable, is fallacious.

But even if it’s just you – the way you would argue it, is that your accusers/other third parties, don’t keep as good of records (and one could consider that an audit of their records would be the means to establish that). Then it becomes a battle of dueling audits – but remember that the audit no longer is relying on circumstantial evidence as the authoritative metric: a proper audit is going to find all the property, not just the ones referenced in your books. Your business records are helpful in making the audit cheaper, but a meaningful audit is sufficient to reconstruct the same accurate books. Consequently, from an evidentiary perspective, your records, are, in the main, superfluous.

In the matter of personal crimes (e.g. murdering your spouse), your whereabouts are the primary exclusionary factor, and so the circumstantial evidence above, largely won’t exist; your phone, far and away, will be the most significant item of evidence you keep. So, in order to provide records of the desired completeness, you have to do two things:

  • Keep a super detailed log of all activity, including that with your significant other
  • Maintain that log well beyond any breakup or change in the relationship

Not only it is it an infeasible time burden to create these records, it also establishes a pattern of an unhealthy level of obsession and lack of trust in your spouse, which the prosecution easily can cite as motive to kill, since you kept all the records. Moreover, consider a “healthy” relationship – you wouldn’t keep every last receipt, old phones, etc.; when you break up with someone, sometimes you would want them out of your life and mind. That would lead you to neglect and destroy all these records – making them unavailable to defend yourself in any future case. It is not obvious that attempting to hold an exonerating amount of circumstantial evidence, even would be to your non-harm in court, let alone that it sway the outcome of the case in your favor.