Thursday, November 06, 2014

Is DA's office right place for digital forensics?

Grits can't decide whether or not I approve of the Dallas DA creating a digital forensics division. Certainly, big-city law enforcement needs such capabilities. But I generally believe forensic analysis should be divorced from law enforcement, which to my mind includes the DA's office just as much as the police department.

Perhaps one could argue that digital forensics are different - that the requirements for objectivity when searching someone's phone or computer for evidence differ from the hard sciences. OTOH, the day accusations arise of evidence tampering, the fact that the forensic analyst is situated in the prosecutor's office may become a problem. Also, a DA's office isn't set up to manage an evidence room - which would be required to maintain a legitimate chain of custody for seized electronic items - the way police departments and crime labs routinely do. There are a lot of ways this could get screwed up.

I can't think of any other forensics activities based out of the DA's office, maybe that's for a reason! I'm not certain at first blush this is the right location for such a division and wonder about how the decision was made. In any event, I'd like to hear that debate. Offer your own opinions in the comments on the pros and cons of putting digital forensics under prosecutors' direct control.

MORE: Sky Chadde at the Dallas Observer's Unfair Park blog followed up with a post riffing on these themes.

6 comments:

Robert Langham said...

In general, statewide, the DAs have very low levels of trust at this point, due to their own actions and choices. They aren't looking to solve crimes nor punish actual guilty folks, just looking for a scalp, any scalp, to hang on a wall. They use jail detention and over-charging to coerce guilty pleas, even from the innocent. Why would ANYONE trust them with additional power?

Anonymous said...

Ok, so now when the defendant claims there is deleted or edited video the DA will have their experts "fix" things to cover the ass of their testiliars. I had a case where the officer coerced the defendant to take a breath test. That part of the intox room video was not on the video which took us forever to get a copy of. They were so busy making up testimony to fight our claim of editing the video that they testilied themselves into a corner; they inadvertently made the case that the 15 minute observation period was only 9 minutes, making the breath test invalid. No I don't trust the DA with control over the digital experts with access to evidence that shows the states witnesses are liars. Why should we trust these people who will fight tooth and nail to convicted a civilian with flimsy evidence of a victimless crime, but avert their eyes when it is a cop that they rely on to win their cases.

Anonymous said...

The BEST thing for Texas is to have Rick Perry convicted. Then and only then will both Dems and Repubs agree on the need for prosecutorial reform. The founding fathers never meant for a single individual(DA) to wield so much unchecked powers. Power corrupts, absolute power corrupts absolutely.

Jennifer Laurin said...

I would be cautious about overstating how comparatively "objective" digital forensic analysis is, as justification for housing it on one side of the adversary divide. It strikes me that retrieval strategies - particularly prioritizing or sampling from a digital trove that's too large to assess in its entirety - as well as analysis could be shaded by partisan priorities. Imagine, e.g., the discovery of url info for "how to make a bomb," but perhaps elsewhere, unretrieved, is info demonstrating the user's purely academic interest in jihadi activity. Analysts might analyze more or less data, or consider their task "done," or might reach particular conclusions, against a backdrop of prosecution priorities. In any event, the defense will want to and should be entitled to conduct its independent analysis of the raw material. And then of course there will be questions about possible loss or change of data in the retrieval process - whether accidental or not. In any event, I don't see that the arguments for laboratory independence are much weaker in this context. (The only distinction I might make is that my impression is that there is more of a digital forensics industry that has cropped up in the private sector somewhat independently of law enforcement interests, which at least increases defense access to non-partisan experts . . . if they have the cash to hire those folks. But that industry might have more law enforcement ties than I realize.)

Michael Lowe said...

Texas Rule of Professional Conduct 3.08 known as the "Lawyer As Witness" rule says that that a Lawyer can't be a witness in his or her own case. However, this rule only applies to lawyers, not non-lawyer employees. The only way to stop this would be to disqualify the DA's office from prosecuting any case wherein their office conducts the forensic computer examination. The ONLY way to do this successfully would be to demonstrate that a lawyer in the same office became a substantial fact witness concerning a real contested matter due to the in-house "lab." That would be tough, but not impossible. This is a trend all across the country. In fact, the State isn't even required to have a "certified lab."

I understand that the DA's office is getting frustrated with the FBI lab's delays. I've had FBI lab results that took a year to come back; even on Federal Child Porn cases (which are a priority for the Feds). This is an interesting area of law and no doubt some smart criminal defense lawyer will attempt to call the DA's office as a witness in the case and then move to disqualify the office. This has to be done carefully though since rule 3.08 comment 10 warns against using it as a "tactical weapon." Maybe it can be used more like a land mine and not a "tactical weapon." :-)

Vinegaroon said...

Seems to me this equates with the old saying about putting the fox in charge of the henhouse. Without regard to any overt attempt on the part of the supervising authority, I believe it would be considered generally accurate to state most employees tend to try to meet the expectations of their supervisors and that DA's in general are happier with solving and prosecuting cases as quickly as possible as opposed to results which might exclude their current or favored suspect(s). We expend considerable efforts related to the chain of custody in an attempt to eliminate or show the opportunity for mischief in the handling of evidence. We already have too many proven situations where DA's have intentionally withheld or manipulated evidence and convicted persons eventually proven to be innocent. Digital forensics lends itself to manipulation of the evidence and if the person who did the manipulation is in charge of the evidence and as such, the person testifying about the evidence, it is not reasonable to expect them to be truthful and testify they altered the evidence. I submit the persons performing the examination of digital and other evidence should not be in the chain of command of the DA's or in a position where the DA's can adversely affect their performance evaluations or budget other than to hold the analysts accountable for the true quality and performance of their work through their respective supervisors.