Question 1 - Give an example of terminology that could be confusing between a digital forensic expert, a lawyer, judge, and potential jurors. In your opinion, how could this potential issue be reduced? Can we ever eliminate this issue?
The terminology I chose on is exhibit or evidence. Computer forensics utilizes electronic information that is legally referred to as exhibit or evidence in courts. Computer forensic examiners discover the evidences that may be hidden or deleted from a digital medium. The evidence can come from PCs, external hard drives, USB drives, mobile phones, tapes, floppy disks and others. As such, the issue of exhibit in computer forensic revolves around electronic media.
On the other hand, lawyers, judges, and jurors mostly interpret evidence to be a tangible thing that can be moved from one place to another (Sheetz, 2007). As such, the implied meaning of the word “evidence” or “exhibit” from the two sides in a case can be confusing, especially in courts where lawyers and judges are used to physical entities as exhibit for a crime committed (Maras, 2011). Still, computer forensic examiners normally use electronically stored information as exhibits for the crime. In cases where a forensic examiner presents a document in CD format as evidence, defense lawyers may not be in a position to ascertain the authenticity of the electronic media because of technicalities involved in preparing the medium (Casey, 2011).
In my opinion, this problem can be solved by putting a requirement on law firms, lawyers, judges, and jurors who want to be involved in a case that includes forensic analysis to have Information Technology certifications as part of the requirement for them to sit in the case. Additionally, these professionals should consider hiring IT experts as part of the staff to assist them in accessing and interpreting legal documents that come from forensic examiners. Moreover, computer forensic examiners should be given opportunities to brief the lawyers, judges, and jurors with their findings before relaying the same in the court of law to avoid confusion and misunderstanding. With convergence of technology, the problem of confusing terminologies between computer forensics and lawyers will be eliminated because either side will access the information that each side is doing and even seek for clarification instantly where the information presented is not clear (UMUC, 2011).
Question 2- Why is testifying and/or writing a report such a critical part of the computer forensics experts job?
The work of forensic experts would be in vain if their findings were not used in a court of law to incriminate or discharge someone facing a case. Thus, testimonies and reports by computer forensic experts are important elements that have great influence on the decisions that the judge is going to take in a case. However, testifying in a court is not an easy task as the witness is subjected to sustained personal attack during the process of cross-examination (Ciolino & Castle, 2000).
Testifying and writing a report from the work of computer forensic analysis is then important and critical because of the attention that it receives from the defense lawyers and judges. A computer forensic expert may have done a good job and come up with evidences beyond doubt that a crime did or did not actually occur, but the method of presentation of this information to the jury becomes challenging because of the hostile environment in courts. In giving a testimony, the computer forensic expert should be articulate with clear and well expressed terms that will leave no doubt in the minds of defense lawyers. This will save defense lawyers from accusing the forensic expert of inarticulation, incompetency, and providing of misleading information (Nelson, Olson & Simek, 2006). The expert has the burden of ensuring that the defense lawyers and the judge comprehend every terminology and phrases that are used as people are testifying.
Furthermore, testifying or writing a forensic report is critical because of the requirements placed on the computer forensic experts before they are allowed to present their evidences to the attorney or defense lawyers. Expert testimony or reports must contain information that goes beyond personal knowledge and observation in order to give technical opinion on the issues in hand. Computer forensic experts are, thus, mandated to testify and write reports that present their findings “on a very technical discipline in a simplistic manner” (Smith & Bace, 2002). All in all, a computer forensics examiner testimony or report must meet the admissibility threshold that is set by law if there is any hope that it will be acceptable in a civil or criminal case.