what testimony is introduced must (if the defendant objects) be introduced live.
Minneapolis, MN (Vocus) July 16, 2009
The U.S. Supreme Court handed down a controversial 5 to 4 ruling on the Melendez-Diaz v. Massachusetts case (No. 07-591. Appeals Court Of Massachusetts) last month in which the Court determined that a forensic analyst's affidavit of findings could not be admitted as evidence, absent the analyst's testimony at trial. In the Court's opinion, "what testimony is introduced must (if the defendant objects) be introduced live." Upholding the Constitution's 6th Amendment, Justice Scalia, who delivered the Court's opinion, declared that any forensic analyst must be subject to confrontation by the defendant even "if all analysts always possessed the scientific acumen of [Madame] Curie and the veracity of Mother Theresa."
Voom Technologies, Inc., (http://www.voomtech.com ), a computer forensic hardware engineering and production company, noted that the Court did not limit the interpretation of the 6th Amendment's Confrontation Clause to any particular forensic discipline. Thus, it can be concluded that computer forensics, as well as other disciplines, fall under the scope of this ruling. Dissenting Justices reveal this as problematic, pointing out that "even in the narrow category of scientific tests that identify a drug, the Court cannot define with any clarity who the analyst is. Outside this narrow category, the range of other scientific tests that may be affected...is staggering." In their opinion, forensic analysts "now bear a crushing burden" and must appear for numerous cases unnecessarily, disrupting forensic investigations nationwide.
While this may be true, there is help available in the form of technology. According to David Biessener, C.E.O. of Voom Technologies, Voom's Shadow 2 could be utilized in any computer crime lab (or even right at the crime scene) to speed up the gathering and processing of evidence. Referring to a FBI statement released earlier this year indicating cybercrime labs were already backed-up approximately nine months, Biessener noted that once the analyst actually begins to examine the contents of a suspect hard-drive, that analyst typically spends approximately two months sifting through data and compiling related reports. Will Docken, a computer forensic expert, states "What can typically take weeks or months using traditional forensic methods can be accomplished in a day with the Shadow."
Biessener explained that instead of having potential evidence sitting on hard-drives awaiting analysis, cybercrime labs could be structured in an "expedited" triage fashion. Biessener indicated that, while triage is frequently done in order to prioritize drives from "high" to "low", it can be done faster using the Shadow. With the Shadow, triage can be conducted on-site, when analysts have very limited time to collect and analyze evidence. In the lab, given a detailed description of current triage procedures, the process could be honed using the Shadow so that incoming hard-drives could be processed and evidence obtained more quickly than is currently the case.
For instance, the Shadow allows the forensic analyst to operate the native computer system, eliminating the need to create a virtual viewing environment in which the analyst attempts simulated operation of the suspect computer in order to gather evidence. Further, the Shadow eliminates the necessity of imaging and reimaging the drive as the investigation unravels which, in and of itself, can take hours upon hours. With the Shadow, the forensic examiner can reinvestigate the drive as necessary; no reimaging required. Thus, the evidence culled from the Shadow can be presented swiftly to the prosecution and defense so that the legal quagmire in which the defendant finds himself is clearly understood. The suspect then may be encouraged to accept a plea bargain, instead of waiting for further, lengthy and potentially more damaging investigative results to be presented at trial, saving the court system (and thus the taxpayers) time and money.
"In court," Biessener added, "the forensic analyst's testimony can be carried out more expeditiously, as well." He explained that Voom's Shadow can be used at trial to present live, real-time computer forensic analytics in front of the judge, jury, suspect and court attendees in a fashion that is easily understood by laypersons. This method eliminates the need for lengthy and tiring forensic explanations and thereby reduces the time and effort an analyst must spend in court testifying. Biessener cited the Mark Jensen murder trial held in Walworth County, Wisconsin, in January/February, 2008, in which the actual suspect computer was brought into the court and hooked up to the Shadow. That which would have appeared on the monitor was projected onto a screen for viewing. According to a Kenosha News article (2/8/08) by Jessica Hansen, "Jurors peered over the shoulder of the unknown user," via a "computer shadowing tool" as the forensic analyst demonstrated which links were followed, scrolling through various links to poisons, including antifreeze (the decedent was found to have antifreeze in her blood stream at the time of death). In this case, defense tactics aimed at suggesting suicide were thwarted by the defendant's own words, indicating his wife was completely bedridden for three days prior to her death, while the Shadow revealed that the sites in question had been accessed during that timeframe. The accused was ultimately convicted of murder, and the jury cited the computer forensic evidence (presented with Voom's Shadow) as one of three key pieces of evidence that led them to their decision.
In an interim period that may last for years during which individual States will determine how they respond to the Supreme Court's ruling regarding the testimony of forensic analysts, Voom's patented technology seems to have presented at least one solution that will help the discipline of computer forensics reduce the time and money needed to uphold this decision.
Voom Techologies, Inc.
Maureen T. Aro
maureenta (at) voomtech.com