Is there a need for a CF innocence project?

There doesn't have to be an innocence project, just overzealous DA's, AUSA's, cops, etc. who might have made a mistake need to step up to the plate and say hey there was a mistake here. We all make mistakes but it's a real person who can step up and free a person and cite that they made a mistake.

If you talk about innocence, then you need to address mandatory minimums and the toll it takes on lots of innocent people every single day.

Lots of people cry innocent, and it would take some weeding through, but if you freed one innocent person, wouldn't all the time you spent be worth it? If the answer is no, then by all means don't volunteer any time on any case as you would do the incarcerated person a great disservice.

Innocence and guilt are not the job of forensics. Our job is to bring to light facts which might not without the underlying science or technology be available to the court.

Additionally, as I learned in law school, the simple existence of adverse facts does not make a person guilty of a specific charge. As a lawyer, your client might tell you they killed someone, but that doesn't make them guilty of murder. They may have been acting in self defense which makes them innocent, or they may have other facts such as BWS or a recent emotional trauma which lessens from murder to manslaughter because of the inability to form the requisite mens rea.

Conversely, some defendants even knowing that the facts will go against them once discovered will still insist on their innocence, because they would rather roll the dice and hope that the evidence is missed in this case. They will plead innocence right up until the evidence is presented to them, and then they will admit guilt. They could have saved everyone a lot of time, energy and cost by pleading up front, but they won't.

There is no way to pick the truly innocent before you conduct the examination, and expend the time, energy and money.

I'm not saying that it's a waste of time. I would personally be willing to donate my time to say one case a year if I felt that there was a reasonable chance that there was legitimate forensic issue. The real difficulty would be picking who to spend that effort on for that once case a year.

One case a year? WOW.

One case a year? WOW.

I think one case a year is a pretty generous offer. Do you realize how much real time could be tied up in such an effort? That means the time a machine or machines is tied up, the time for an examiner to be tied up, the research time, possible travel, time in the box . . .

I've been asked to do some research for a friend of mine on whether or not there's a need for a digital evidence 'Innocence Project'.

I'm sure we've all heard about Julie Amero and Michael Fiola, who were (falsely) accused of computer related sex crimes.

IMHO, it is a bit of a jump from the facts of each case to conclude that either party was "falsely accused". In Amero's case, she plead guilty to a lesser charge and in Fiola's case, the investigation was closed and the only published information is the report prepared by the defense expert who has made her reputation with the malware defense. The attorney general's office, which declined to prosecute, has declined to comment on the case so that the only "evidence" comes from the defense.

In any event, failure to establish the facts beyond a "reasonable doubt" is hardly the same as falsely accusing someone. In most published cases regarding the malware defense, the difficulty in prosecution lies in the fact that the prosecution experts failed to perform a detailed analysis of the computers. Since possession, itself, is a crime, prosecutors have frequently relied on the presence of CP to make their case. Because of high profile cases like those that you mentioned, things are changing and prosecutors are much more inclined to thoroughly vet the evidence before putting on a case.

In your opinion(s), is this a real problem, or is this unicorn insurance? Are there people imprisoned/convicted incorrectly because of faulty interpretation of CF evidence?

Again, IMHO, I suspect that this is rare. Most of the criminal "innocence" projects rely on one of 1) suppression of evidence, 2) new techniques not available at the time of conviction, 3) failure to interview/present exculpatory evidence and 4) inadequate defense. In the digital forensic criminal cases with which I am familiar, the defense frequently has the upper hand in creating reasonable doubt (which is not to say that this establishes innocence).

If so, how would one pick out the 'truly innocent' from the guilty looking for an appeal?

That's the million dollar question in all appeals, isn't it?

Would an innocence project be something one would volunteer for?

Actually, I be more inclined to volunteer my time to support law enforcement and prosecutors by helping them to examine and refute possible lines of defense. The presence of a Trojan Downloader does not, in my experience, establish innocence and would not be sufficient to establish reasonable doubt if appropriate testing were done but many departments lack the resources to do this. It doesn't benefit any of us who are serious professionals to have junk science triumph simply because the prosecution didn't have the resources to defend against.

If you look at the CBS News "investigation" on virus downloads of CP, http//www.cbsnews.com/stories/2009/11/09/tech/main5589403.shtml?tag=cbsnewsLeadStoriesAreaMain;cbsnewsLeadStoriesHeadlines, you'll find that nearly all of the "proof" comes from the expert that I mentioned, above, with the exception of one statement from a Harvard expert which said little more than it COULD happen.

From my perspective, the media has overhyped the issue of whether the computer did it. While I know, for certain, that millions of PCs are woefully underprotected and tens of thousands of these are unwitting participants in BOTnets, I have yet to see a convincing case of someone falsely accused and convicted for something that their computer most certainly did and for which they were completely unaware.

I'm not saying that this doesn't happen. I am saying that I haven't see the actual evidence to prove this.

One case a year? WOW.

I think one case a year is a pretty generous offer. Do you realize how much real time could be tied up in such an effort? That means the time a machine or machines is tied up, the time for an examiner to be tied up, the research time, possible travel, time in the box . . .

I agree with this. In one of the cases mentioned in the CBS News story, the defense expert quit because the judge refused to order the prosecution to pay for her bills (estimated to be tens of thousands of dollars). These are opportunity costs in a highly competitive environment.

For someone to donate their time to one case a year is, IMHO, generous.

I had no doubt…..

Of course it was you or someone you knew or even a person you cared about, I have a feeling that your help the police refute defense claims would change very quickly.

We all know you have taken on every kind of case in the world, I can't post something here where you would say, that is new to me, so the fact that most defendants in Federal court 97% will be convicted and do time, and that it's trial by ambush sure lends itself to wanting to help them get that extra 3% huh.

Actually, I be more inclined to volunteer my time to support law enforcement and prosecutors by helping them to examine and refute possible lines of defense. The presence of a Trojan Downloader does not, in my experience, establish innocence and would not be sufficient to establish reasonable doubt if appropriate testing were done but many departments lack the resources to do this. It doesn't benefit any of us who are serious professionals to have junk science triumph simply because the prosecution didn't have the resources to defend against.

If you look at the CBS News "investigation" on virus downloads of CP, http//www.cbsnews.com/stories/2009/11/09/tech/main5589403.shtml?tag=cbsnewsLeadStoriesAreaMain;cbsnewsLeadStoriesHeadlines, you'll find that nearly all of the "proof" comes from the expert that I mentioned, above, with the exception of one statement from a Harvard expert which said little more than it COULD happen.

From my perspective, the media has overhyped the issue of whether the computer did it. While I know, for certain, that millions of PCs are woefully underprotected and tens of thousands of these are unwitting participants in BOTnets, I have yet to see a convincing case of someone falsely accused and convicted for something that their computer most certainly did and for which they were completely unaware.

I'm not saying that this doesn't happen. I am saying that I haven't see the actual evidence to prove this.

We all know you have taken on every kind of case in the world, I can't post something here where you would say, that is new to me, so the fact that most defendants in Federal court 97% will be convicted and do time, and that it's trial by ambush sure lends itself to wanting to help them get that extra 3% huh.

Ignoring the dig at the opening of this paragraph, you missed the point that I made regarding "junk science". The goal in assisting law enforcement would not be to increase the conviction rate but to assure that all available forensic expertise was available to LE and the prosecution in deciding whether to proceed with the case. If there truly is reasonable doubt that the suspect actually and deliberately stored or viewed the images on the device, why take the case to court where the media would chalk it up as one more "My computer did it!" example.

In fact, I was involved in an alleged murder case where the computer evidence was exculpatory and had the prosecution been aware of it, they very likely, would not have pressed forward with a charge of murder. It only got to trial because the evidence was found on the victim's computer and because the prosecution elected not to use anything from it, it wasn't turned over to the defense until just before the trial was to begin.

By not addressing potential mitigating circumstances prior to trial the risk is increased that junk science, or oversight will substitute for reasonable doubt. I can fully imaging the following line of questioning of prosecution witnesses by the defense

Q Were you aware that 21 different instances of malware were found on the suspect's machine?
A No.
Q Did you verify that an antimalware solution was installed on the suspect's machine and that it was running and up to date?
A No.
Q Are you aware that there have been cases where malware was determined to have been a potential culprit in the downloading of child pornography?
A Yes.
Q So, can you say, today, to a reasonable degree of forensic scientific certainty, that malware was not responsible for the downloading of child pornography in this case?

I've been asked to do some research for a friend of mine on whether or not there's a need for a digital evidence 'Innocence Project'.

Innocence Projects do exist. For the UK project see www.innocencenetwork.org.uk/.

They exist to re-investigate cases, with experts from all disciplines (including CF) approached to either advise on a pro-bono basis or to undertake fully funded expert undertakings.

I have given up a small amount of time for the former in the UK.