Ride the Lightning
Cybersecurity and Future of Law Practice Blog
by Sharon D. Nelson Esq., President of Sensei Enterprises, Inc.
MUCH ADO ABOUT NOTHING? COMPUTER FORENSICS AND THE MELENDEZ-DIAZ CASE
July 13, 2009
There has been a lot of chatter on the airwaves about the June 25th decision of the U.S. Supreme Court in Melendez-Diaz v. Massachusetts (the case can be found here). Is it worth all the hullaballoo? Not in my judgment, at least not where computer forensics is involved.
Mind you, it is a very significant case for forensics generally, especially in those areas of forensics where labs have been allowed to produce "certificates" showing results of lab work. In this case, state lab analysts submitted sworn certificates as to the quantity, quality and composition of cocaine connected to the petitioner.
In short, the Court held that allowing such certificates in evidence without an analyst present to testify violated the petitioner's Sixth Amendment Right to confront the witnesses against him. It was a close call, 5-4, with some unusual alliances amongst the Justices.
So, yes . . . this is going to cause overburdened forensics labs a lot of heartburn, as valuable time will have be allocated to being present in court. But probably not computer forensics labs.
I cannot think of any case I have ever heard of or been a part of where a computer forensics report was in issue without experts testifying about the report. Whether it is a local police officer or an FBI CART agent, they must come. What we do for a living is not "neutral lab work." We work for one side or the other. Computer forensics is both art and science – and skill levels vary widely. We cannot simply weigh something on a scale or apply a solution and measure composition.
Our work is far more akin to the expert aviation engineer who examines the evidence to prove how the plane went down or the doctor who examines a patient and opines that he is insane. We are called upon to testify how a document came to be backdated, or an entire database transferred out of a corporation or whether electronic evidence was fabricated or deliberately spoliated.
We will always be present in court, irrespective of Melendez-Diaz. For us, I don't think this opinion has changed a thing.
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