Friday, November 14, 2008

How can you defend those people?

Yes, I stole the title from Mickey Sherman's book. I did buy it and read it and found it quite entertaining.

From time to time, people ask me what I do, and I tell them I am a digital forensics consultant. Which normally elicits a blank stare, so I elaborate and tell them I do forensics on computers and cell phones. Invariably they respond with, "You mean like on CSI?"

Since I have answered this question so many times, now I just go with, "Yes, just like that." If the conversation proceeds beyond that point, they normally ask me what kind of forensics work I do.

And I tell them that I work on everything from murder cases to intellectual property cases to child pornography cases

"So you help to catch people by looking at stuff on their computers?", they ask.

That is where I get to tell them that I specialize in helping to defend people charged with murder or child pornography, by looking at stuff on their computer.

And many times I get the question, "How can you help defend those people?"

So I explain, that to begin with, not everyone who is charged with a crime is guilty. My job is to make sure that all the facts come out and are put into proper context. Few of my questioners understand that the prosecution will always have an expert on their side who has examined the computer evidence and made certain claims about the evidence.

And that if the defense does not have an expert on their side, at least to advise them on how to interpret the forensics report they got from law enforcement, they can be at a serious disadvantage in defending their client.

Interpreting computer evidence is not a simple statement of facts in most cases. Those facts need to be verified and put into the proper context. It's complicated.

When they ask me why I chose to focus so much on the criminal defense side, I explain that in my opinion, that the system is out of balance. That if someone is charged with a serious crime, they are entitled to the best defense they can get since it is going to impact the rest of their life. And in some cases, it can mean the end of their life if they are facing the death penalty.

Coupled with that, if you consider that the majority of attorneys I speak to have little idea about computer forensics, defense attorneys are in dire straits without a defense expert. I have spent the last several years teaching private attorneys and public defenders about computer forensics and the impact that it can have on their cases.

There is a serious knowledge gap in existence in regard to computer forensics in the legal community and that needs to change quickly to make sure that innocent people don't go to jail because the defense counsel didn't understand that a computer forensics report is not always a clear statement of facts. Or because the defense counsel didn't understand the need to employ an expert, even if the expert only reads the report to advise them, without doing a separate analysis.

In many instances, attorneys don't even know that defense experts exist for computer forensics.

Unlike some of the other forensic sciences that deal with other types of evidence, such as DNA, computer forensics can reach into all corners of a case, especially a murder case or conspiracy to commit murder case. I have worked and continue to work on many of these cases. Every time I work a new case, I find that the need for a defense expert is not only a nice to have, but a must have, if the defense is going to be able to properly understand the ramifications of what the law enforcement computer forensics analyst has reported in the case.

When you stop to consider how much information people process through their computers and cell phones these days, realizing that this is a rich source of evidence to be used for or against someone is vital in properly preparing a case, on both sides of the aisle.

While I do other types of cases, civil and domestic and employment, my focus has been and will continue to be in the criminal defense arena.

How can I help defend those people? Because someone must or the system will simply be too lopsided for justice to be served.

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