Interpreting and using electronic evidence in the courtroom

Criminal investigations are more complex than ever with so much information now exchanged electronically. Forensic evidence was once limited to physical items and attributes, such as carpet fibers and fingerprints, but now appears in digital form as well.

Digital forensics involves the preservation, recovery and study of electronic evidence. It helps determine the who, what, when, where and how related to cybercrimes. The basics of this developing field were discussed by a panel during “Digital Forensics: From Investigation to the Courtroom,” at the second annual National Institute on CyberLaw last month.

Digital forensics can be useful in both litigation and non-litigation cases. For example, in a data breaching case, digital forensics can determine when documents were last accessed and by whom. It may also be needed for identity theft cases. If someone hacks into a credit card company’s database, digital forensics may be used to find out whether the hacker obtained customer social security numbers and other confidential information.

Besides determining data usage, practitioners of digital forensics can also determine if electronic data has been deleted, hidden or manipulated. They may also find particular data needed for a case with tools to enable searches filtered by keyword or timeframe.

In short, digital forensics help lawyers collect evidence and build a narrative that can be used in court.

However, when electronic data is evidence in a case, the biggest challenge is proving its authenticity. To help, digital forensics practitioners use hashing encryption, which is an algorithm employed to ensure that codes and/or password strings on the original and extracted document match.

While digital forensics practitioners extract and interpret electronic information, lawyers must still educate themselves to be able to properly ask for what they need and to make strategic decisions about the use of digital evidence. Panelists suggested two publications that may be helpful in learning more about electronic evidence: The Electronic Evidence and Discovery Handbook: Forms, Checklists and Guidelines by Sharon D. Nelson, Bruce A. Olson and John W. Simek and E-Discovery: A Special Publication of the Section of Litigation edited by Steven A. Weiss and David Coale. Additionally, the Department of Justice also has guidelines posted on their Web site.

The second annual National Institute on CyberLaw was sponsored by the Criminal Justice Section, Section of Science and Technology Law, Section of Business Law, Section of Intellectual Property Law and the ABA Center for Continuing Legal Education.

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