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Digital evidence becoming central in criminal cases

This story is originally part of MSNBC's Open Channel investigative blog

By Mike Brunker
msnbc.com writer and editor
 
If you are unfortunate enough to land in court after a serious automobile accident, the star witness against you may not be an eyewitness or even a human being. It could be your car.

Today’s high-tech automobiles increasingly rely on computers to maximize performance and monitor operating systems. But while the under-the-hood computers are doing that, they may also be recording data about your driving.

Typically, that information is collected by a vehicle’s “event data recorder,” or EDR, a computer module that is often compared to the “black box” on a commercial airliner. Among other things, EDRs are capable of recording a number of driver behaviors, including brake application, steering, speed at time of impact in the event of a crash and whether the driver and passengers were using seatbelts.

Such information is primarily intended to help improve federal safety standards, but increasingly it is being used in court cases in which vehicles were involved in a serious accident or the commission of a crime.

For example, electronic evidence played a key role in a criminal case at the center of Friday night’s “Dateline NBC” (10 p.m. / 9 p.m. Central). The case involves a heartbroken Montana teenager, a dangerous stretch of highway and some ominous text messages.

Justine Winter's mother, father, and brother talk about the girl they know and love, and how this tragedy will affect the rest of her life.  This web exclusive is part of the Dateline report 'Crossing the Line' from Friday, November 11.

“Essentially, vehicles nowadays are a huge conglomeration of computer chips and modules,” said Mike McCullough, a retired Phoenix police detective who investigated serious crashes for many years. “And the electronic data they collect is going to become more and more common as evidence down the road.”

Among the drivers of that anticipated growth are new National Highway Traffic Safety Administration regulations that take effect next year.

The rules do not require EDRs – already in use in more than 85 percent of U.S. vehicles – but they mandate that in cars that have them, the devices must capture and preserve at least 15 types of crash data, including pre-crash speed, engine throttle, changes in forward velocity and airbag deployment times. And one day, the agency noted in its final rule, they may even play a role in getting emergency medical service quickly dispatched to the scene of an accident by automatically sending a 911 alert.

'Staggering' amount of information
Even now, however, such information could be cross-checked with information from devices like cellphones and GPS units to build what could be an air-tight court case.

“Now you’re in a situation where, if someone has the time and expertise, they can say you drove from here to there at this speed, you parked at Whole Foods, here’s what you bought, then you got back in your car and drove here and made a call to this number,” said Dean Gonsowski, eDiscovery counsel with Clearwell, which is part of the security firm Symantec. “... It’s staggering how much information can be collected.”

Drew Findling, an Atlanta attorney and chairman of the National Association of Criminal Defense Lawyers’ Forensic  Disciplines Committee, notes that e-evidence might just as easily create an unshakable alibi, which is why he routinely hires experts to examine equipment and data.

“You want to have the equipment examined to determine the reliability, both from a chronological and content standpoint,” he said. “And there are times when that evidence is of an exculpatory nature, so you want to make sure that you gain access to it – whether it’s a computer or an iPhone or whatever – and that you preserve that evidence immediately.”

Courts already are wrestling with the challenges presented in general by electronic evidence, which has become almost ubiquitous in both civil and criminal cases.

“Electronic evidence is admitted in almost every trial in America, whether it’s a phone bill or electric bill or a document that’s created, stored or transmitted electronically,” said Mark D. Rasch, director of cybersecurity and privacy consulting at the technology services company CSC and former head of the Justice Department’s computer crime unit. “… When you think about it, even a crime scene photograph is electronic evidence now.”

New layers of complexity
The increasing use of digital evidence has spawned a new legal specialty – e-discovery – and has added layers of complexity that didn’t exist when cases were won or lost on paper documents. In some cases – particularly those involving corporations – the amount of digital data that must be retrieved and sorted through prior to trial is immense.

“State crime labs are adding high-tech pieces, but if you think it’s hard to examine urine and blood samples, try working through a zip drive, a hard drive or an iPhone,” said Findling, the defense attorney.

Evidentiary laws also have failed to keep pace with rapidly changing technology, said Rasch.

 “We changed the discovery laws eight or 10 years ago, but we need to change a bunch of different laws, including electronic privacy laws,” he said. “And we need to continue to tweak the laws on chain of custody, validation and verification, authentication, corroboration and the scope and extent of discovery.”

While lawmakers struggle to catch up, judges and courts are taking wildly varying positions on the reliability and admissibility of digital evidence.

“Right now it depends on the state, depends on the judge,” said McCullough, president of the Southwestern Association of Technical Accident Investigators. “A lot of information has to be established to show that it’s reliable.”

Gonsowski said much of the variation is attributable to the differing technology comfort levels among judges, prosecutors and defense counsels.

“You see some inconsistent decisions because a case may require that the litigants and the judge all understand how Facebook works, for example,” he said. “…  So there’s a lot of sort of groping around – not quite the blind leading the blind, but folks wrestling with these new technologies as they apply to traditional legal concepts.”

Stricter rules for digital evidence
Experts have different views of those to-and-fro battles.

Rasch, the former Justice Department official, said that courts often impose higher requirements on digital evidence than they do with physical documents, such as letters.

“We demand a (greater) degree of certitude for certain kinds of electronic evidence than is demanded in the physical world. … A lot of it has to do with the general unease we have with electronic evidence. We’re not sure it’s reliable, that it hasn’t been tampered with.”

But others worry that current laws – and the judges who enforce them – have failed to adequately consider that electronic evidence is “inherently malleable or ephemeral.”

Among them is Steven Teppler, a partner in the Chicago law firm KamberEdelson and co-chair of the American Bar Association’s Digital Evidence Committee. He is part of what he describes as a growing movement within the legal profession to have digital evidence deemed “hearsay,” and thus generally inadmissible in legal proceedings unless its reliability can be demonstrated.

“Unless we change the rules of evidence to require a higher level of reliability, you have this built in problem where people say, ‘It comes out of the computer, therefore it must be reliable,’” he said.

But that doesn’t account for the fact that programmers create the software that instructs those machines to generate data, Teppler said.

“Computers will repetitively create bad information if they are programmed incorrectly,” he said. “Just because a computer generates it doesn’t mean it’s true.”