Nothing else of significance…

Posted on July 31, 2011. Filed under: forensic | Tags: , , , , , , , |

This week I was approached to quote for a defence case. Helpfully, the solicitor sent me a copy of the prosecution statement so I could prepare a realistic quote. Unfortunately, for the “other side”, I’ve spent most of the week working on a couple of proposals for new ISO standards – including something on content of reports for various purposes – so was particularly sensitive to languages issues.

As soon as I saw the source of the statement, I knew I was going to find a phrase that troubles me – and there it was, near the end “Nothing else of significance was found”.

The report details the material upon which the case is based, but gives little in the way of context or other material found. It builds the case for the prosecution solicitor nicely, but doesn’t allow anyone else to form an opinion about the significance of the material because it doesn’t actually give any detail of anything except the “significant” material as determined by the report’s writer.

It’s a format and form of words that I’ve seen several times over the years, and every time I see it, it sounds an alarm.

I’ve always been told that my responsibility as an “expert witness” is to the court (or whoever is going to make a final judgment based on all the reports submitted), and is to state the facts and my interpretation as best I can based on the information available to me. If I find evidence of guilt, I should state it, if I find evidence of innocence, I should state that. I also believe that I should try to make as much information as possible available so that a proper judgment can be made.

To this end, I don’t just list things of “significance” but I try to give an indication of the context in terms which a non-practitioner can understand.

For example, if an email relates directly to the case, I don’t just list that email. I give the total number of emails found and the number found which involve the same people in the “significant” one. If illegal images are found, I try to determine how they have been downloaded, whether they’ve been deliberately saved or just cached, and whether there’s a pattern of searching or browsing that relates to them.

I try never to build a case directly myself but I will, quite happily, poke holes in someone else’s case – especially if they are concealing, deliberately or accidentally, useful information behind statements like “nothing else of significance was found”.

In my book, saying something like that is almost tantamount to dissembling. A digital evidence examiner rarely has the full facts and circumstances of the case available. A prosecution examiner or first responder will have no idea of possible defences or excuses. Limiting the report to the most damning evidence doesn’t help anyone.

Well – it doesn’t help anyone except the “other side”. A good independent examiner will read that sort of report and realise that there’s a lot more work they could do, and SHOULD do, to determine if a proper rebuttal can be produced – and that means more time and bigger fees. I’m not a fan of the use of Bayesian ratios in reports because I know how few people really understand them, but I know why some forensic disciplines use them – they force the reporting scientist to think about the evidence and alternative explanations, resulting in a closer examination of “insignificant” material at times.

At a time when pressure is on to reduce spending on legal aid, perhaps it’s time someone looked more closely at standard reports coming from both sides to see if they are really fit for purpose ? The better those reports are, the less work needs to be done performing re-examination, re-analysis and re-interpretation.

n-gate ltd.

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    About

    This is the weblog of Angus M. Marshall, forensic scientist, author of Digital Forensics : digital evidence in criminal investigations and MD at n-gate ltd.

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