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Never Assume. Be thorough.  

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hcso1510
(@hcso1510)
Active Member

I was wondering if others might have a story about working a case (CF, Mobile, Social Networking or whatever)when you or a partner initially assumed something, and later found it not to be, which saved the case or provided an alternate outcome than what was originally thought?

Last year I was working on a child abuse case. After the initial response we went back to the office. While searching some of the relevant phone numbers on the internet some sort of weird service providers name popped up. One of the guys in the office stated “That’s one of those damn throw phones. You won’t get anything back on it.” I could have taken his word for it, but I thought I needed to take the information I had and run it to ground.

By not assuming I checked and was able to find out that this pre paid phone was supported by the Verizon network. I called Verizon and they were able to tell me that this company “piggy backed” off their network and that they retained their SMS content for a short period of time like they do theirs.

Preservation letter sent. Search Warrant issued. Content received. “And it helped the case tremendously.”

Anyone else?

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Posted : 22/01/2011 9:02 pm
douglasbrush
(@douglasbrush)
Senior Member

Yup - recently, but from the opposing expert.

I think it is where people forget the science part of the methodology and the skepticism that has to be put forth in any claim you make to whether it is falsifiable.

Every assumption or claim that you make or come across has to be fully vetted by testing whether it is true by trying to demonstrate the degree by which it can not be true. Be vary wary of trying to prove your assertions without trying to disprove first.

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Posted : 24/01/2011 8:58 pm
samr
 samr
(@samr)
Active Member

I agree with Douglasbrush. Always look for the things that disprove your own claim/opinion because if you only look for things to prove it then chances are that's all you will find!

Assumptions are the bane of forensics - if you assume something isn't possible (or believe other people without thinking it through/testing it yourself) the chances are you will never do it or find evidence of it.

Kind regards

Sam Raincock

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Posted : 24/01/2011 9:08 pm
seanmcl
(@seanmcl)
Senior Member

I was wondering if others might have a story about working a case (CF, Mobile, Social Networking or whatever)when you or a partner initially assumed something, and later found it not to be, which saved the case or provided an alternate outcome than what was originally thought?

I, once, had a case which was complicated by the fact that the subject system had experienced problems just before being turned over for production, and the IT people (who were not really experienced in evidence handling) had made multiple attempts to try to correct the problems (against the advice of counsel but well within what was, then, safe harbor provisions of the FRCP).

To make a long story short, when the IT people learned that their actions might be considered spoiliation, they immediately clammed up about what they had done and, in one case, actually lied to counsel about whether they had installed the commercial version of a rogue anti-malware program which claimed to be able to erase tracks of the user's activity (the free version had no such capability).

Because I had been instructed to work on the assumption that my clients were being completely truthful, I did not look for evidence to contradict their version of events. At pretrial hearings the opposing expert was put on the stand and announced that he had recovered a fragment of the order page for the commercial version of the software from unallocated space and there was clearly a credit card number entered into the form (this had not been in his report and had not been disclosed to counsel for my client prior to the hearing, in clear violation of the stipulated, protocol).

Nonetheless this, literally, sent a shockwave through the court and though counsel for my client was clearly not aware of this, the damage had been done and the judged now assumed that my client was lying. As anyone who has testified knows, the minute the client loses credibility you are headed for an uphill struggle.

There are a few lessons that I learned from this.

First, in the words of Ronald Reagan, "Trust, but verify!" especially where critical elements of the case are involved. The problem was not only the loss of credibility but also that it allowed the opposing side to re-open discovery which cost the client lots of money.

Second, don't assume that discovery protocols are inviolable. In this case, the protocol and rules of procedure limited the evidence at hearing to what had been in the reports, depositions and prior testimony. Nonetheless, the "late breaking news" was admitted and had a devastating effect. In the words of Captain Barbossa "the code is more of what you'd call 'guidelines' than actual rules."

Third, a corollary of the first, never accept that a limited examination will be sufficient, especially if the other side has complete access to the evidence and unlimited time.

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Posted : 27/01/2011 3:58 am
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