Pending New Jersey Criminal Case Highlights The Need For Clarity On What Aspects Of Digital Forensics Evidence Are Admissible Without Expert Testimony


Imagine DNA evidence without a scientist explaining it to the finder of fact? Face it- alleles, reference samples, and the fine line distinctions between mitochondrial DNA and nuclear DNA are not the things that most cocktail party conversations are made of. When DNA evidence is examined in the courtroom, it is done with the guidance of expert witnesses.

Nearly two decades ago, when the public's understanding of the internet was as primitive as that memorable, yet now extinct dial up noise that we all heard before making a connection the "information superhighway" through our telephone lines, the world was fixated with the O.J. Simpson trial. Beyond the fact that every move at the trial was nationally televised such that the players became household names, the CSI generation was born out of this case, dubbed the trial of the century.

In People of the State of California v. Orenthal James Simpson, the government attempted to complete the logical connect the dots exercise between droplets of blood found at the gruesome scene of a double homicide with fresh wounds found on the hands of a retired football hero turned movie star, sideline reporter, and national pitch man. Defense lawyers picked apart the government's handling of the blood evidence, effectively demonstrating an alternative hypothesis for the presence of the victim's blood in places where it was inconceivable for it to be, absent some involvement by the defendant, on its way toward building the reasonable doubt necessary to acquit Mr. Simpson. Today, DNA evidence is used routinely to successfully exonerate individuals whose liberty has been wrongfully taken from them, and, accordingly, it has earned its hallowed place as an instrumentality for ensuring that justice is served.

DNA evidence is to helping solve biological phenomena what digital forensic evidence is to helping answer questions about matters concerning the digital universe of connectivity that dominates our contemporary way of life. The nature and character of DNA evidence is such that it must generally be explained through the carefully elicited testimony of a competent expert witness. As many episodes of CSI as one might watch, it does not truly make someone versed enough in the science to fully grasp the relevancy and implications of the evidence. Digital forensic evidence is, in many ways, very similar. While many of us have a general understanding of how our "digital DNA" burns its way across cyberspace in the form of emails, text messages, and social media posts, retroactively reconstructing an event through digital forensics - at least competently and reliably - still involves significant skill, proven methodologies, and specialized tools. For instance, imaging a computer hard drive or a computer server, to be done properly, must be done using a write block device. If a...

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