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Good discussion re disclosure of digital evidence in the UK

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(@pbeardmore)
Posts: 289
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Well worth a watch IMHO

https://goo.gl/w85FJ7

 
Posted : 16/05/2018 4:38 pm
(@trewmte)
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Pat, I had watched it and found the discussion from all three presenters to be very interesting. Clearly, their working perspective is similar to others experiences; but it is the solutions being put forward as probable answers to existing problems that raise even more questions.

It does seem strange…

Where they stand
(1) FSR has pushed for compulsory ISO17025 and that has public sector costs (e.g. tax payers money) associated with it.

(2) Law enforcement has to equally buy the forensic tools and other items to gather the evidence and that has public sector costs (e.g. tax payers money) associated with it.

(3) The system then falls down (as we learned from the discussion) as the analysis of the evidence isn't complete due to lack of money and staff time, etc.

What might become of it
(4) The discussion raises the proposition, should the defence expert have all the digital material, which introduces the notion if evidence is missed or overlooked in a sea of terabytes of data who would be liable then? This is without the implied reduction in costs to defence experts?

(5) With all the terabytes of data to hand would the defence expert now have an obligation to the prosecution to act (pro-tempore) to bring evidence to the table that the prosecution missed to support their case? Would the defence expert be paid for that bifurcated obligation as well?

 
Posted : 17/05/2018 2:27 pm
Jamie
(@jamie)
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Well worth a watch IMHO

https://goo.gl/w85FJ7

Agreed - many thanks for sharing.

 
Posted : 17/05/2018 6:55 pm
(@dandaman_24)
Posts: 172
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Also this from BBC in UK https://www.bbc.co.uk/programmes/b0b228hf

 
Posted : 17/05/2018 8:26 pm
(@pbeardmore)
Posts: 289
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Glad you found the link of interest.

My own position would be very similar to Peter Sommer's in disclosing everything (if requested). As soon as you go down the route of not disclosing everything, you are putting the prosecution in a very tricky position re their decision making process.

Part of the issue seems to be that disclosure is not built into either quality systems or the "mind set". A discloure list, bundle or set of drives should be building up as the investigation advances rather than a last minute "treasure hunt" to track things down.

Having said that, when you have multiple parties (conspiracy etc), then there are obvious issues re privacy and I honestly dont see any easy solutions with that.

On a wider note, I do wonder if (even on a subliminal level) , disclosure is seen as "helping the bad guys" and, therefore, does not get the focus it deserves. I dont want to sound preachy (is that a word?) but we should all think of ourselves on the same side in terms of establishing facts rather than a "them and us" culture. I have had cases where I have tracked down fragments of data that have helped greatly assisted the defence (whilst working for the prosecution) but I am just as pleased with the level of work. Not sure if this is the same within the Police?

 
Posted : 18/05/2018 9:49 am
(@ludlowboy)
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Disclosing all digital evidence can have problems when there are multiple defendants. If a person has been charged on the basis of evidence found on a co-defendants computer how much of the data are they entitled to?

 
Posted : 18/05/2018 7:02 pm
(@trewmte)
Posts: 1877
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Disclosing all digital evidence can have problems when there are multiple defendants. If a person has been charged on the basis of evidence found on a co-defendants computer how much of the data are they entitled to?

Yes good point ludlowboy. Also some defence may not want this in cut throat defence cases

 
Posted : 18/05/2018 7:32 pm
(@athulin)
Posts: 1156
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On a wider note, I do wonder if (even on a subliminal level) , disclosure is seen as "helping the bad guys" and, therefore, does not get the focus it deserves.

Or perhaps, in some parts of the world, 'does not help me to win'.

Noted this some time ago http//www.governing.com/gov-criminal-justice-reform-Brady-evidence-lc.html?utm_term=More%20States%20Force%20Prosecutors%20to%20Hand%20Over%20Evidence%20--%20Even%20When%20It%20Hurts%20Their%20Case&utm_campaign=More%20States%20Forcing%20Prosecutors%20to%20

I suspect there is a difference between adversarial judicial processes and inquisitorial/nonadversarial, but I'm not sure I've seen any studies of if it has any effects on disclosure.

 
Posted : 19/05/2018 9:23 am
minime2k9
(@minime2k9)
Posts: 481
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Also raised was the effect on a victim of 'disclosing everything'. Should a suspect on a rape or domestic abuse case have the entire contents of the victims phone available to them?

 
Posted : 19/05/2018 6:10 pm
(@ludlowboy)
Posts: 71
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Under the Criminal Procedures Investigation Act it defines what is Sensitive Material. This includes ‘Material relating to the private life of a witness’. (Right to privacy under ECHR legislation).
The advice is that this type of material should Not be disclosed.
It seems that you are dammed if you do and dammed if you don’t!

 
Posted : 20/05/2018 8:43 am
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