I'm familiar with a licensing board and minimum standards (given that I'm licensed to practice law in two states).
Do you have primary case-law in the US that can be referred to regarding computer forensics that is applicable to all States or is the case-law applicable only on a State by State basis?
reverendlex - goes to show you can't tell from forum names what peoples' employment might be. I thought your forum name was perhaps a reference to you being a high technology computer forensic Church Minister.
Hey! wait-a-minute got a novel idea give parishers Wii to lash the sinners and hit the skivvers with sermons recorded on iPods. Now is that high tech Gospelling or what? (COPYRIGHT trewmte 2007)
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Do you have primary case-law in the US that can be referred to regarding computer forensics that is applicable to all States or is the case-law applicable only on a State by State basis?
I'll give the proper legal answer It depends.
Actually, our system is less fractured than it might seem. While we have 50 states, a handful of territories, the Federal Circuits, and the Armed Forces and DC courts as well, courts tend to listen to one another and follow consensus.
Expert testimony in US law tends to follow two precedents
Frye 293 F. 1013 (DC Circuit court),
Daubert 509 U.S. 579 (U.S. Supreme Court)
Some U.S. states (including my own of Pennsylvania) use the older and less stringent Frye test. The Federal courts and other US states use Daubert.
I'd happily explain the differences but someone else has done it in a much better manner.
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If you're looking for specific case law holding CF admissible, let me know and I'll see if I can pull them.
reverendlex - goes to show you can't tell from forum names what peoples' employment might be. I thought your forum name was perhaps a reference to you being a high technology computer forensic Church Minister.
That would be so much cooler than what I am.
I'll give the proper legal answer It depends.
So reverendlex, help the examiner community with an issue. Many examiners are concerned about using procedures, SOPs, checklists, or anything else that defines the process they use. The rational often cited is that opposing counsel will attack their examination citing "missed steps" unless they follow the "checklist" to the "t". I suspect the average examiner would say that each step in a process is an "it depends" and that the decision how to or if to execute any given step depends on the specifics of the case.
Given your experiences and training, what would you suggest examiners do, use, etc to handle this issue?
If you're looking for specific case law holding CF admissible, let me know and I'll see if I can pull them.
Thanks for your kind offer and if I can reciprocate on my side (although I am not a lawyer) please let me know.
For example, an important decision by the Court as a test of admissibilty of computer evidence is noted in R .v. Minors [1989] 1 WLR 441 and the insightful comments of His Honour Judge Steyn (now Lord Steyn) "…if computer evidence cannot be used, much crime would be immune to prosecution also."
I'll give the proper legal answer It depends.
Given your experiences and training, what would you suggest examiners do, use, etc to handle this issue?
I started writing a response, but I want to think more on some parts of it. It's an interesting question.
My initial reaction is to say that a good SOP is valuable. It not only prevents error (especially in team environments), but it forecloses attacks from the other side.
If you didn't follow a step, you'd need a good articulable reason.
I've found that technical knowledge actually reduces the questions that you'd ask an expert witness. If I'm on the opposing side, there are only two reasons I want you to talk- either to have you validate my alternate theory or to make you look stupid.
If the opposing attorney isn't technical and they're not prepared, they're going to ask you lots of questions about following the SOP. If you're prepared and articulate, you're going to bolster your credibility during the cross.
I'll think of possible 'gotchas' and post later.