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Online Documents as Evidence, Software License, Case Notes  

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icyalkn1
(@icyalkn1)
New Member

Hey Guys & Gals,

Could any of you help me out on a few of things? (1) I have a client that is working with a local attorney that says online documents are not admissible in court. Not even documents printed from the DOJ, NIST, FBI or Microsoft websites. Is this correct? I have read the rules of evidence (from rule 101 to 1103) and I am still confused. I would assume that a document listed on a government website would be admissible in court, but I could very easily be wrong.

The second thing is that during my investigation, I trashed my case notes (hand written notes that I took during the examination). I am being asked to turn them over, but like I said I trashed them. They are claiming that I destroyed evidence and my examination should be thrown out. Is this correct?

Lastly, I was given an older copy of FTK by a friend several months back. I do not have a license for it and he said he was never asked to provide his during years of use. I didn't use the software in this case but I am worried if I use it in the future. If I do use it and cant provide the license can my examination get tossed?

Please save the keystrokes, I know I made some mistakes but I am just starting out in this field. I am learning and I will never make the same mistake twice.

Thanks Again in advance for any insight.

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Posted : 20/08/2013 6:32 am
EricZimmerman
(@ericzimmerman)
Active Member

to point 1, what documents? how could they not be admissible? its a copy of a document and that should be fine. can they be more specific as to WHY its not admissible?

http//en.wikibooks.org/wiki/Federal_Rules_of_Evidence/Documents#Rule_1003._Admissibility_of_Duplicates

http//corporate.findlaw.com/litigation-disputes/summary-of-the-rules-of-evidence.html

its not like you can get the original from NIST, the FBI, etc.

the exam should stand by itself. did you prepare a report? i can only think someone would look at your notes vs your exam for discrepancies.

as to FTK, i dont recommend using any version of that software. =) in your friends case, where did he get the license and did he transfer it to you vs copying it and now you are in a position of having not paid for it?

if you dont have a valid license for FTK, dont pursue one. it will cost you far too much money for what you get in terms of the software and the minimum hardware requirements are downright insane.

ReplyQuote
Posted : 20/08/2013 8:34 am
icyalkn1
(@icyalkn1)
New Member

Thank you for the reply. I have printed documents about some of the procedures for first responders from the DOJ, along with some documents from Microsoft, US.gov on evidence collection and chain of custody. They have not made the final ruling but when we said we plan to introduce documents from these sites, the judge said we have to have some for of authentication or they wont be allowed.

They asked for the case notes and I told the attorney I had trashed them. He said the prosecution said those notes are part of evidence, thus I destroyed evidence. He has not ruled on that yet either.

The software was giving to me as a copy. I did not pay for it but I know he did a while back. He just does not have the license to give me. I don't really care much for it but it was free and I am just trying to get my feet wet. But if the court would throw out a case for using unlicensed software then I will toss it.

Again, thanks for the response. I planned to hear words like idiot, rookie, dumbazz, ext.

LOL.

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Posted : 20/08/2013 8:54 am
EricZimmerman
(@ericzimmerman)
Active Member

think about what would happen if you were on the stand and were asked by the defense

1. what software you used
2. if you had a valid license for it

1 is easy to answer.

2 will end your career if you used pirated software. your friend did not do you any favors in giving you a copy.

i would take a step back and look for a local mentor that can help you get started in this field. as you are seeing already there are certain rules of the road you must follow or your career as an examiner will be short lived.

if i may ask, what is your background and education as it relates to being a forensic examiner?

ReplyQuote
Posted : 20/08/2013 8:59 am
Bulldawg
(@bulldawg)
Active Member

I don't see why online documents would be inadmissible unless the attorney is claiming they are hearsay. However, if you’re qualified as an expert in the case, you can testify to hearsay. Maybe the documents could be thrown out, but you could testify to the contents of the documents.

Don’t destroy your notes, even if you create a digital copy of them, keep the original. You can’t cure this problem, so you’ll just need to work with the attorney who hired you to work through this problem. I won’t say your notes are evidence, but you still don’t want to destroy anything related to the examination. Your examination report should be enough, but the other attorney obviously doesn’t want what you found to be admissible.

There is no such thing as a free version of FTK. I’m sure FTK is widely pirated, but using a pirated version of FTK may get your entire examination thrown out. It’s fortunate you didn’t use it in this case, but you should remove it and never use it without a valid license.

Let me give you a little insight into what’s happening to you. Ninety-nine percent of the time your notes and the source of your research will never be an issue in a case. But, when you have found something that is damning to the other side and they choose to fight rather than settle or plea, they will use every means available to get your testimony thrown out. The other attorney is throwing everything against the wall and seeing what will stick. That’s his job. Don’t take it personally, but do prepare for it.

Let’s say you get past this stage, and the judge allows the case to continue. When you get to the trial phase you will be challenged. This is commonly called a Daubert challenge. These challenges take place just before trial so that if you are thrown out as an expert your side will have no opportunity to replace you. If you want to see one that goes badly for the expert, take a look at this one

http//www.wral.com/specialreports/nancycooper/video/9469091/#/vid9469091

I’ll agree with Eric again. Get yourself a mentor—preferably someone local who can help guide you through getting started in this field. As you’ve already seen, it’s easy to make little mistakes that become a big problem.

I strongly suggest you attend the NACVA’s Expert Witness Bootcamp. ( http//www.nacva.com/CTI/CTIExpertWitnessBootcamp.asp ) It does a good job of preparing you to testify and how to avoid the pitfalls that can open you up to a successful Daubert challenge.

ReplyQuote
Posted : 20/08/2013 8:27 pm
mscotgrove
(@mscotgrove)
Senior Member

FTK imager is free

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Posted : 20/08/2013 11:28 pm
icyalkn1
(@icyalkn1)
New Member

Guys thank you soooo much for the advice. I will do as you recommend. I will also toss FTK since I don't have a license for it. Again, thank for the help. I will also look into taking that class. It seems extremely useful.

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Posted : 21/08/2013 1:29 am
EricZimmerman
(@ericzimmerman)
Active Member

FTK imager is free

yea but you dont do exams with FTK imager (i would argue you shouldnt do them with FTK at all, but thats another post ) )

ReplyQuote
Posted : 21/08/2013 4:28 am
armresl
(@armresl)
Community Legend

OP,

None of us who replied are JD's, and IMHO most of the questions that you are asking are legal related and should 100% be answered by counsel.

Bulldawg,

I don't agree with
"Let me give you a little insight into what’s happening to you. Ninety-nine percent of the time your notes and the source of your research will never be an issue in a case. But, when you have found something that is damning to the other side and they choose to fight rather than settle or plea, they will use every means available to get your testimony thrown out. The other attorney is throwing everything against the wall and seeing what will stick. That’s his job. Don’t take it personally, but do prepare for it."

There are all kinds of variables that we don't know. He sure isn't an expert, but for this lets say he is. Is he a consulting expert, is he a testifying expert, is he an investigator working for the attorney? Is he in a state where he needs a PI license? Depending on the answers to those and many more questions, his bench notes, notes, software output results, notes made within software, etc. can be discoverable. Maybe this is the 99% you were talking about, and if so, I agree with the chance for variables.

Other than what I posted, I'll agree with E and B, as well as the replies.

P.S. As far as the webpage, etc. you're prolly dealing with a Best Evidence issue there, but again, not something for you to research, counsel should be well versed in how to handle those objections and the appropriate filing of appeals for evidentiary matters.

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Posted : 22/08/2013 1:08 pm
Bulldawg
(@bulldawg)
Active Member

OP,

None of us who replied are JD's, and IMHO most of the questions that you are asking are legal related and should 100% be answered by counsel.

Bulldawg,

I don't agree with …

I should have prefaced it with I'm not an attorney, and you're right, I don't know the situation completely. Since the attorney is trying to get notes and questioning the source of documents, I made the assumption that the OP is being put forth as a testifying expert. If done properly, the opposing attorney shouldn't even know who a consulting expert or investigator is.

The 99% I'm talking about are all the cases that never go to trial and all the cases where the opposing counsel doesn't make an issue of the little things. What I hope we all realize is that the 1% where the case does go to trial and the attorney does make an issue of the little things, then those little things can become very big problems for us and for the case. Make a big enough mistake, and it will follow you through your entire career, and could limit your ability to do this work in the future.

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Posted : 22/08/2013 6:43 pm
pbobby
(@pbobby)
Active Member

Hey Guys & Gals,

.

This sounds like a theory crafting set of questions from a course exercise.

ReplyQuote
Posted : 22/08/2013 7:05 pm
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