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Bar News - October 22, 2004 Common Mistakes in Using Electronic Evidence By: Sharon D. Nelson & John Simek How do you avoid sand traps involving electronic evidence in the courtroom? Believe it or not, the most common mistake is failing to designate the expert. The number of times this happens is truly amazing. Occasionally, you will find a judge so eager to hear the expert that he/she will do an end run around procedure and let the evidence testify as a fact witness, but that is far and away the exception. Right on the heels of that error in prevalence is the failure to lay a proper foundation for the expert's testimony. As an example, suppose you are in a custody battle and the electronic evidence manifests an obsessive interest by the husband in bondage and discipline. Since that interest, assuming all the models are 18, is perfectly legal, you are going to need to lay a foundation by, for instance, having the children's therapist testify that the father is tying them up, locking them in dark rooms, holding pil lows over their faces, etc. before your expert can then tie the bondage and discipline obsession to the way the father is interacting with the children. Another astonishing failure is the failure to prepare the expert. Regardless of the expert's skill, the absence of preparation time with the attorney can be catastrophic. For some reason, this task is almost always left until the bitter end, and is often given short shrift, if it is done at all. Likewise, if electronic evidence is at issue, why would an attorney fail to prepare for cross-examination of the opposing expert without consultation with his/her expert? As silly as it sounds, the failure to maintain a proper chain of custody frequently comes into play. The smartest move, once you know electronic evidence is involved, is to get it into the hands of your expert, sign a chain of custody form, have the evidence forensically imaged, and then return the original evidence, again with the chain of custody form. Once the expert has imaged the original evidence, it doesn't matter what happens to the original that is returned - and the expert will carefully keep the imaged evidence under lock and key. Returning the original also helps to defuse the business impact argument. Electronic evidence is just plain difficult to explain in lay language. It is important to get your expert, who undoubtedly speaks "geek speak" very well indeed, to speak English, and in simple declarative sentences. Even more helpful is coming up with images and analogies that are easily comprehended by both judges and juries. Judges are frequently as confounded by electronic evidence as juries and often pepper the expert with questions in an attempt to make sure they understand the true nature of the testimony. Keep the expert's testimony as short as possible. Dragging out technical testimony will make the listeners' eyes glaze over. Your expert is not there as a soporific, but hopefully to provide illumination. If you have a great expert, the other side will quickly stipulate to qualification as an expert. Don't let that deter you from deftly sliding in your expert's qualifications wherever possible, particularly in a jury trial. Hearing that your expert has written and spoken on particularly relevant topics or holds certifications that are directly pertinent to the case will make a jury find your expert more credible. Attorneys should remember how much they don't know and how much trouble ignorance can cause. An electronic evidence expert should be questioned from a script and not on the fly. Heaven help the attorney who starts thinking he or she knows more than he/she actually does and decides to ad lib a question to which he/she does not know the answer. In one case, we watched in horror as an attorney did a marvelous job establishing that the prosecution's expert had totally failed in his official report to validate the date and time of the computer that was the source of his evidence. It was a good place to quit, but, sensing advantage, the attorney couldn't let it go. He asked how the jury was supposed to consider the dates and times relevant at all given the report's complete failure to validate them. The witness was then able to point out to great effect that, notwithstanding the expert's omission, three different server logs all corroborated the dates and times. Oops. The world of electronic evidence contains a lot of quicksand. But just as most encounters with quicksand are not ultimately fatal, attorneys can survive the encounter if they proceed slowly, carefully and with a plan. Just as with quicksand, it is those who thrash and flail in panic that sink. Sharon D. Nelson, an attorney, and John Simek are the president and vice president of Sensei Enterprises, Inc., a computer forensics and legal technology firm based in Fairfax, VA. Contact them at sensei@senseient.com or at http://www.senseient.com. Copyright 2004 Sensei Enterprises, Inc.
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