Manual on Best Practices for Authenticating Digital Evidence
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Evidence History, the New Trace Evidence, and Rumblings in the Future of Proof Robert P
University of North Carolina School of Law Carolina Law Scholarship Repository Faculty Publications Faculty Scholarship 2006 Evidence History, the New Trace Evidence, and Rumblings in the Future of Proof Robert P. Mosteller University of North Carolina School of Law, [email protected] Follow this and additional works at: http://scholarship.law.unc.edu/faculty_publications Part of the Law Commons Publication: Ohio State Journal of Criminal Law This Article is brought to you for free and open access by the Faculty Scholarship at Carolina Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. Evidence History, the New Trace Evidence, and Rumblings in the Future of Proof Robert P. Mosteller* I. INTRODUCTION This paper is in two parts. The first part is about developments in the rules of evidence and particularly about developments in the Federal Rules of Evidence, which have had a major impact on evidence rules in many states. This part turns out to be largely about the past because my sense is that the impact of changes in the formal rules of evidence, which were substantial, are largely historic. In one area, however, significant future changes in the formal rules seem possible: those that may be made as a result of the Supreme Court’s decision in Crawford v. Washington,1 which dramatically changed confrontation and may unleash hearsay reformulation. The second part deals with my sense that technological and scientific advances may have a dramatic impact in altering the way cases, particularly criminal cases, are proved and evaluated in the future. -
Ohio Rules of Evidence
OHIO RULES OF EVIDENCE Article I GENERAL PROVISIONS Rule 101 Scope of rules: applicability; privileges; exceptions 102 Purpose and construction; supplementary principles 103 Rulings on evidence 104 Preliminary questions 105 Limited admissibility 106 Remainder of or related writings or recorded statements Article II JUDICIAL NOTICE 201 Judicial notice of adjudicative facts Article III PRESUMPTIONS 301 Presumptions in general in civil actions and proceedings 302 [Reserved] Article IV RELEVANCY AND ITS LIMITS 401 Definition of “relevant evidence” 402 Relevant evidence generally admissible; irrelevant evidence inadmissible 403 Exclusion of relevant evidence on grounds of prejudice, confusion, or undue delay 404 Character evidence not admissible to prove conduct; exceptions; other crimes 405 Methods of proving character 406 Habit; routine practice 407 Subsequent remedial measures 408 Compromise and offers to compromise 409 Payment of medical and similar expenses 410 Inadmissibility of pleas, offers of pleas, and related statements 411 Liability insurance Article V PRIVILEGES 501 General rule Article VI WITNESS 601 General rule of competency 602 Lack of personal knowledge 603 Oath or affirmation Rule 604 Interpreters 605 Competency of judge as witness 606 Competency of juror as witness 607 Impeachment 608 Evidence of character and conduct of witness 609 Impeachment by evidence of conviction of crime 610 Religious beliefs or opinions 611 Mode and order of interrogation and presentation 612 Writing used to refresh memory 613 Impeachment by self-contradiction -
Proving the Integrity of Digital Evidence with Time Chet Hosmer, President & CEO Wetstone Technologies, Inc
International Journal of Digital Evidence Spring 2002 Volume 1, Issue 1 Proving the Integrity of Digital Evidence with Time Chet Hosmer, President & CEO WetStone Technologies, Inc. Background During the latter half of the 20th century, a dramatic move from paper to bits occurred. Our use of digital communication methods such as the world-wide-web and e-mail have dramatically increased the amount of information that is routinely stored in only a digital form. On October 1, 2000 the Electronic Signatures in National and Global Commerce Act was enacted, allowing transactions signed electronically to be enforceable in a court of law. (Longley) The dramatic move from paper to bits combined with the ability and necessity to bring digital data to court, however, creates a critical question. How do we prove the integrity of this new form of information known as “digital evidence”? Digital evidence originates from a multitude of sources including seized computer hard-drives and backup media, real-time e-mail messages, chat-room logs, ISP records, web-pages, digital network traffic, local and virtual databases, digital directories, wireless devices, memory cards, and digital cameras. The trust worthiness of this digital data is a critical question that digital forensic examiners must consider. Many vendors provide technology solutions to extract this digital data from these devices and networks. Once the extraction of the digital evidence has been accomplished, protecting the digital integrity becomes of paramount concern for investigators, prosecutors and those accused. The ease with which digital evidence can be altered, destroyed, or manufactured in a convincing way – by even novice computer users – is alarming. -
Appendix a ARTICLE IX—AUTHENTICATION Sec. 9-1
Appendix A ARTICLE IX—AUTHENTICATION Sec. 9-1. Requirement of Authentication (a) Requirement of authentication. The requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the offered evidence is what its proponent claims it to be. (b) Self-authentication. Extrinsic evidence of authenticity as a condition precedent to admissibility is not required if the offered evidence is self-authenticating in accordance with applicable law. COMMENTARY (a) Requirement of authentication. Before an item of evidence may be admitted, there must be a preliminary showing of its genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings, sound recordings, electronically stored information, real evidence such as a weapon used in the commission of a crime, demonstrative evidence such as a photograph depicting an accident scene, and the like. E.g., State v. Bruno, 236 Conn. 514, 551, 673 A.2d 1117 (1996) (real evidence); Shulman v. Shulman, 150 Conn. 651, 657, 193 A.2d 525 (1963) (documentary evidence); State v. Lorain, 141 Conn. 694, 700–701, 109 A.2d 504 (1954) (sound recordings); Hurlburt v. Bussemey, 101 Conn. 406, 414, 126 A. 273 (1924) (demonstrative evidence). The category of evidence known as electronically stored information can take various forms. It includes, by way of example only, e-mails, Internet website postings, text messages and “chat room” content, computer-stored records, [and] data, metadata and computer generated or enhanced animations and simulations. As with any other form of evidence, a party may use any appropriate method, or combination of methods, described in this Commentary, or any other proof to demonstrate that the proffer is what the proponent claims it to be, to authenticate any particular item of electronically stored information. -
American Journal of Trial Advocacy Authentication of Social Media Evidence.Pdf
Authentication of Social Media Evidence Honorable Paul W. Grimm† Lisa Yurwit Bergstrom†† Melissa M. O’Toole-Loureiro††† Abstract The authentication of social media evidence has become a prevalent issue in litigation today, creating much confusion and disarray for attorneys and judges. By exploring the current inconsistencies among courts’ de- cisions, this Article demonstrates the importance of the interplay between Federal Rules of Evidence 901, 104(a), 104(b), and 401—all essential rules for determining the admissibility and authentication of social media evidence. Most importantly, this Article concludes by offering valuable and practical suggestions for attorneys to authenticate social media evidence successfully. Introduction Ramon Stoppelenburg traveled around the world for nearly two years, visiting eighteen countries in which he “personally met some 10,000 people on the road, slept in 500 different beds, ate some 1,500 meals[,] and had some 600 showers,” without spending any money.1 Instead, his blog, Let-Me-Stay-For-A-Day.com, fueled his travels.2 He spent time each evening updating the blog, encouraging people to invite him to stay † B.A. (1973), University of California; J.D. (1976), University of New Mexico School of Law. Paul W. Grimm is a District Judge serving on the United States District Court for the District of Maryland. In September 2009, the Chief Justice of the United States appointed Judge Grimm to serve as a member of the Advisory Committee for the Federal Rules of Civil Procedure. Judge Grimm also chairs the Advisory Committee’s Discovery Subcommittee. †† B.A. (1998), Amherst College; J.D. (2008), University of Baltimore School of Law. -
Evidence (Real & Demonstrative)
Evidence (Real & Demonstrative) E. Tyron Brown Hawkins Parnell Thackston & Young LLP Atlanta, Georgia 30308 I. TYPES OF EVIDENCE There are four types of evidence in a legal action: A. Testimonial; B. Documentary; C. Real, and; D. Demonstrative. A. TESTIMONIAL EVIDENCE Testimonial evidence, which is the most common type of evidence,. is when a witness is called to the witness stand at trial and, under oath, speaks to a jury about what the witness knows about the facts in the case. The witness' testimony occurs through direct examination, meaning the party that calls that witness to the stand asks that person questions, and through cross-examination which is when the opposing side has the chance to cross-examine the witness possibly to bring-out problems and/or conflicts in the testimony the witness gave on direct examination. Another type of testimonial evidence is expert witness testimony. An expert witness is a witness who has special knowledge in a particular area and testifies about the expert's conclusions on a topic. ln order to testify at trial, proposed witnesses must be "competent" meaning: 1. They must be under oath or any similar substitute; 2. They must be knowledgeable about what they are going to testify. This means they must have perceived something with their senses that applies to the case in question; 3. They must have a recollection of what they perceived; and 4. They must be in a position to relate what they communicated 1 Testimonial evidence is one of the only forms of proof that does not need reinforcing evidence for it to be admissible in court. -
Job Title – Department Senior Consultant Forensics and Technology
Job title here Job title – Department Senior Consultant Forensics and Technology Control Risks is a specialist risk consultancy that helps to create secure, compliant and resilient organisations in an age of ever-changing risk. Working across disciplines, technologies and geographies, everything we do is based on our belief that taking risks is essential to our clients’ success. We provide our clients with the insight to focus resources and ensure they are prepared to resolve the issues and crises that occur in any ambitious global organisation. We go beyond problem-solving and give our clients the insight and intelligence they need to realise opportunities and grow. From the boardroom to the remotest location, we have developed an unparalleled ability to bring order to chaos and reassurance to anxiety. Our people Working with our clients our people are given direct responsibility, career development and the opportunity to work collaboratively on fascinating projects in a rewarding and inclusive global environment. Location Shanghai Engagement Full-time Department Regional Technology (F&T) Manager Principal, Regional Technology To drive & manage the continued development of our digital forensic technology Job purpose capabilities in China Tasks Project Work and responsibilities Lead in the development and management of the team’s forensic technologies service offerings and capabilities. Play a supporting role in the management of complex fraud and corruption investigations, particularly those involving the use of forensic technologies. Consult and understand the requirements of clients in relation to computer forensics. Perform computer forensics activities including digital evidence preservation, analysis, data recovery, tape recovery, electronic mail extraction, and database examination. -
Consultant Vendor Service Rider Template
RIDER TO [CONSULTANT] [VENDOR] AGREEMENT Rider to [Consultant] [Vendor] Agreement dated _____________, 20____ (“Agreement”) by and between [FULL LEGAL NAME OF CONSULTANT OR VENDOR] [(“Consultant”)] [(“Vendor”)] and Pace University (“Pace”). The following clauses are hereby incorporated and made a part of the Agreement, to either replace or supplement the terms thereof. In the event of any conflict or discrepancy between the terms of this Rider and the terms of the Agreement, the terms of this Rider shall control. 1. Expertise. [Consultant] [Vendor] represents to Pace that [Consultant] [Vendor] has sufficient staff available to provide the services to be delivered under the Agreement and that all individuals providing such services have the background, training, and experience to provide the services to be delivered under the Agreement. 2. Expenses. Provided that Pace shall first have received from [Consultant] [Vendor] an original of the Agreement that shall have been countersigned by an authorized [Consultant] [Vendor] signatory, [Consultant] [Vendor] shall be paid, as its sole and exclusive consideration hereunder, the fee(s) described in the Agreement upon Pace’s receipt from [Consultant] [Vendor] of an invoice that, in form and substance satisfactory to Pace, shall describe the services that [Consultant] [Vendor] shall have provided to Pace in the period during the Term for which [Consultant] [Vendor] seeks payment. Except as specifically provided in the Agreement, all expenses shall be borne by [Consultant] [Vendor]. [Consultant] [Vendor] shall only be entitled to reimbursement of reasonable expenses that are actually incurred and allocable solely to the Work provided to Pace pursuant to the Agreement. [Consultant] [Vendor] shall provide such evidence as Pace may reasonably request in support of [Consultant’s] [Vendor’s] claims for expense reimbursement. -
Making Your Case Through Effective Direct Examination
Making Your Case Through Effective Direct Examination Paul K. Sun, Jr. & Kelly Margolis Dagger © Ellis & Winters LLP 20152018 What is direct examination? The examination of a witness you have called in the defense case. The witness could be your client, an expert, a law enforcement officer, a percipient witness, etc. © Ellis & Winters LLP 2015 Right to Present Witnesses “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” U.S. Const. amend VI. Remember to request trial subpoenas per Fed. R. Crim. P. 17, and do so early if you are asking the marshals to serve. © Ellis & Winters LLP 2015 Direct Examination—Overview A. Mechanics of Direct Examination B. Preparing Yourself for Direct Examination C. Preparing Your Witness for Direct Examination D. Conducting a Direct Examination © Ellis & Winters LLP 2015 MECHANICS OF DIRECT EXAMINATION © Ellis & Winters LLP 2015 Procedural Considerations—Rule 611 Fed. R. Evid. 611—Mode and Order of Examining Witnesses and Presenting Evidence (a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment. -
Collaborating with a Digital Forensics Expert: Ultimate Tag-Team Or Disastrous Duo? Sean L
William Mitchell Law Review Volume 38 | Issue 1 Article 8 2011 Collaborating with a Digital Forensics Expert: Ultimate Tag-Team or Disastrous Duo? Sean L. Harrington Follow this and additional works at: http://open.mitchellhamline.edu/wmlr Recommended Citation Harrington, Sean L. (2011) "Collaborating with a Digital Forensics Expert: Ultimate Tag-Team or Disastrous Duo?," William Mitchell Law Review: Vol. 38: Iss. 1, Article 8. Available at: http://open.mitchellhamline.edu/wmlr/vol38/iss1/8 This Article is brought to you for free and open access by the Law Reviews and Journals at Mitchell Hamline Open Access. It has been accepted for inclusion in William Mitchell Law Review by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. © Mitchell Hamline School of Law Harrington: Collaborating with a Digital Forensics Expert: Ultimate Tag-Team COLLABORATING WITH A DIGITAL FORENSICS EXPERT: ULTIMATE TAG-TEAM OR DISASTROUS DUO? † Sean L. Harrington I. INTRODUCTION ...................................................................... 354 II. ETHICS IN DIGITAL FORENSICS INVESTIGATIONS ................... 357 A. Ethical Rules Governing Digital Forensics Investigations ..... 357 B. The Lawyer’s Ethical Obligations While Working with Digital Forensics Examiners ............................................... 359 C. The Digital Forensics Examiner’s Obligations in a Litigation Support Role ..................................................... 367 1. Work Product Doctrine -
Authentication and Preservation of State Electronic Legal Materials Act
D R A F T FOR DISCUSSION ONLY AUTHENTICATION AND PRESERVATION OF STATE ELECTRONIC LEGAL MATERIALS ACT NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS MEETING IN ITS ONE-HUNDRED-AND-NINETEENTH YEAR CHICAGO, ILLINOIS JULY 9 - JULY 16, 2010 AUTHENTICATION AND PRESERVATION OF STATE ELECTRONIC LEGAL MATERIALS ACT WITH PREFATORY NOTE AND COMMENTS Copyright 82010 By NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS The ideas and conclusions set forth in this draft, including the proposed statutory language and any comments or reporter=s notes, have not been passed upon by the National Conference of Commissioners on Uniform State Laws or the Drafting Committee. They do not necessarily reflect the views of the Conference and its Commissioners and the Drafting Committee and its Members and Reporter. Proposed statutory language may not be used to ascertain the intent or meaning of any promulgated final statutory proposal. DRAFTING COMMITTEE FOR AUTHENTICATION AND PRESERVATION OF STATE ELECTRONIC LEGAL MATERIALS ACT The Committee appointed by and representing the National Conference of Commissioners on Uniform State Laws in drafting this Act consists of the following individuals: MICHELE L. TIMMONS, Office of the Revisor of Statutes, 700 State Office Bldg., 100 Rev. Dr. Martin Luther King Jr. Blvd., St. Paul, MN 55155, Chair JERRY L. BASSETT, Legislative Reference Service, 613 Alabama State House, 11S. Union St., Montgomery, AL 36130 DAVID D. BIKLEN, 153 N. Beacon St., Hartford, CT 06105 DIANE F. BOYER-VINE, Office of Legislative Counsel, State Capitol, Room 3021, Sacramento, CA 95814-4996 STEPHEN Y. CHOW, 125 Summer St., Boston, MA 02110-1624 VINCENT C. -
Legal Professional Privilege
Legal Professional Privilege: The influence of Jeremy Bentham and John Henry Wigmore on the judicial pronouncement of Lord Taylor of Gosforth in R v Derby Magistrates’ Court; ex parte B. Olivia Grosser-Ljubanovic Thesis submitted for the degree of Doctor of Philosophy Adelaide Law School The University of Adelaide April 2018 Contents CONTENTS Contents ............................................................................................................. iii Abstract ............................................................................................................. vii Declaration ......................................................................................................... ix Acknowledgements ............................................................................................ xi List of Publications........................................................................................... xiii Chapter I: Introduction ........................................................................................ 1 I Significance and Limits of this Study ............................................................... 4 II Methodology .................................................................................................. 6 III Structure ................................................................................................... 7 Chapter II: Derby: The Ultimate Arbiter of Legal Professional Privilege ........... 11 I Introduction ..................................................................................................