New layers of complexity
The increasing use of digital evidence has spawned a new legal specialty – e-discovery – and has added layers of complexity that didn’t exist when cases were won or lost on paper documents. In some cases – particularly those involving corporations – the amount of digital data that must be retrieved and sorted through prior to trial is immense.
“State crime labs are adding high-tech pieces, but if you think it’s hard to examine urine and blood samples, try working through a zip drive, a hard drive or an iPhone,” said Findling, the defense attorney.
Evidentiary laws also have failed to keep pace with rapidly changing technology, said Rasch.
“We changed the discovery laws eight or 10 years ago, but we need to change a bunch of different laws, including electronic privacy laws,” he said. “And we need to continue to tweak the laws on chain of custody, validation and verification, authentication, corroboration and the scope and extent of discovery.”
While lawmakers struggle to catch up, judges and courts are taking wildly varying positions on the reliability and admissibility of digital evidence.
“Right now it depends on the state, depends on the judge,” said McCullough, president of the Southwestern Association of Technical Accident Investigators. “A lot of information has to be established to show that it’s reliable.”
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Gonsowski said much of the variation is attributable to the differing technology comfort levels among judges, prosecutors and defense counsels.
“You see some inconsistent decisions because a case may require that the litigants and the judge all understand how Facebook works, for example,” he said. “… So there’s a lot of sort of groping around – not quite the blind leading the blind, but folks wrestling with these new technologies as they apply to traditional legal concepts.”
Stricter rules for digital evidence
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.
“Computers will repetitively create bad information if they are programmed incorrectly,” he said. “Just because a computer generates it doesn’t mean it’s true.”
via Open Channel – Digital evidence becoming central in criminal cases.
