Open Source (UK Judge)

There was a Law Commission review in 2009. (Try googling 'Admissability of evidence'.)

It will always be the right of the defence to ask for evidence not to be put in front of a jury if they believe there is a problem with it.

The prosecution can agree to evidence being omitted or if they disagree with the defence they can put their arguments before a judge to decide.

Appeals can be made both before a trial and after the trial.

Hope this helps.

I would argue that OS software is probably more admissible in court because you have the source code, the actual code that shows how the software works.

Is a £1000 piece of software any more valid than a free piece of software, the £1000 software you have the manufacturers word for, the other piece of software you can break down piece by piece and document how it arrives at your evidence.

Currently, assuming you're engaged as an expert under Part 33 of the Criminal Procedure Rules (http//www.justice.gov.uk/criminal/procrules_fin/part_33.htm), it's not particularly specific.

It's down to you as the expert to ensure that your methods and tools are fit for purpose. This is the same whether your tool of choice is proprietary or open source. I guess the main difference will be the amount of primary research and testing that you may need to undertake with an open source tool to satisfy yourself that it is fit for purpose. You should also be discovering whether it has been exposed to any peer review through testing and application.

Also bear in mind the following;

Experts are no longer protected from from being sued by their clients as a result of alleged failings on their part when giving evidence or conducting expert witness-related work (judgment in Jones v Kaney 30 March 2011).

A new draft bill (for criminal expert work) titled Criminal Evidence (Experts) Act 2011 was proposed on 22rd March 2011 to move the admissibility of expert evidence in UK criminal courts towards the US approach of "reliability". This bill refers specifically to "experimental or other testing". (http//www.justice.gov.uk/lawcommission/areas/expert-evidence-in-criminal-trials.htm)

The one thing about computer based evidence is that all computing relies on basic fundamentals that are universally agreed on. If you compare this to say pathology or other scientific based areas of evidence there are huge areas of uncertainty and interpretation.

If we are to go down the line of not accepting evidence because it uses Open Source software to arrive at its conclusion or if the technique was "experimental" then we are on a very slippery slope towards never convicting anybody.

I think that pretty much all of the forensic examiners I know are good, open minded and subjective people who if there is doubt about something they will quite clearly document this and seek advice from those who will know for certain what they are.

if the technique was "experimental" then we are on a very slippery slope towards never convicting anybody.

Just to be clear, the new draft bill expects "experimental or other testing" where an "opinion based on a hypothesis"…"has not been subjected to sufficient scrutiny."

I don't observe anything in the new bill that a decent expert would not currently be doing anyway, rather it simply formulises the definition of "reliability" and wraps some proceedural guff around it.