Friday, November 11, 2011

Digital evidence becoming central in criminal cases

This just in from MSNBC: "... Drew Findling, an Atlanta attorney and chairman of the National Association of Criminal Defense Lawyers’ Forensic Disciplines Committee, notes that e-evidence might just as easily create an unshakable alibi, which is why he routinely hires experts to examine equipment and data.

“You want to have the equipment examined to determine the reliability, both from a chronological and content standpoint,” he said. “And there are times when that evidence is of an exculpatory nature, so you want to make sure that you gain access to it – whether it’s a computer or an iPhone or whatever – and that you preserve that evidence immediately.”

Courts already are wrestling with the challenges presented in general by electronic evidence, which has become almost ubiquitous in both civil and criminal cases.

“Electronic evidence is admitted in almost every trial in America, whether it’s a phone bill or electric bill or a document that’s created, stored or transmitted electronically,” said Mark D. Rasch, director of cybersecurity and privacy consulting at the technology services company CSC and former head of the Justice Department’s computer crime unit. “… When you think about it, even a crime scene photograph is electronic evidence now ...”

They go on to say ..."Experts have different views of those to-and-fro battles.

Rasch, the former Justice Department official, said that courts often impose higher requirements on digital evidence than they do with physical documents, such as letters.

“We demand a (greater) degree of certitude for certain kinds of electronic evidence than is demanded in the physical world. … A lot of it has to do with the general unease we have with electronic evidence. We’re not sure it’s reliable, that it hasn’t been tampered with.”

But others worry that current laws – and the judges who enforce them – have failed to adequately consider that electronic evidence is “inherently malleable or ephemeral.”

Among them is Steven Teppler, a partner in the Chicago law firm Edelson McGuire and co-chair of the American Bar Association’s Digital Evidence Committee. He is part of what he describes as a growing movement within the legal profession to have digital evidence deemed “hearsay,” and thus generally inadmissible in legal proceedings unless its reliability can be demonstrated.

“Unless we change the rules of evidence to require a higher level of reliability, you have this built in problem where people say, ‘It comes out of the computer, therefore it must be reliable,’” he said.

But that doesn’t account for the fact that programmers create the software that instructs those machines to generate data, Teppler said ..." Read the whole story by clicking here.

Enjoy.

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