Discuss someof thedifferences you noticed between the laws that govern the search and seizure of traditional evidence and electronic evidence.
If a person is in possession of a cell phone at the time of arrest, do you believe that law enforcement has the legal authority to access the digital content of that phone in a search of possible criminal evidence? Use facts taken from the reading to support your position.
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Digital Evidence in the Courtroom: A Guide for Law Enforcement and Prosecutors U.S. Department of Justice Office of Justice Programs National Institute of Justice Special J A N . 0 7 REPORT Digital Evidence in the Courtroom: A Guide for Law Enforcement and Prosecutors www.ojp.usdoj.gov/nij U.S. Department of Justice Office of Justice Programs 810 Seventh Street N.W. Washington, DC 20531 Alberto R. Gonzales Attorney General Regina B. Schofield Assistant Attorney General David W. Hagy Deputy Assistant Attorney General, Office of Justice Programs and Principal Deputy Director, National Institute of Justice This and other publications and products of the National Institute of Justice can be found at: National Institute of Justice www.ojp.usdoj.gov/nij Office of Justice Programs Partnerships for Safer Communities www.ojp.usdoj.gov JAN. 07 Digital Evidence in the Courtroom: A Guide for Law Enforcement and Prosecutors NCJ 211314 David W. Hagy Deputy Assistant Attorney General, Office of Justice Programs and Principal Deputy Director, National Institute of Justice This document is not intended to create, does not create, and may not be relied upon to create any rights, substantive or procedural, enforceable by law by any party in any matter civil or criminal. Opinions or points of view expressed in this document represent a consensus of the authors and do not necessarily represent the official position or policies of the U.S. Department of Justice. The products, manufacturers, and organizations discussed in this document are presented for informational purposes only and do not constitute product approval or endorsement by the U.S. Department of Justice. This document was prepared under Cooperative Agreement #98–IJ–CX–K003 between the National Institute of Justice and the National Center for Forensic Science. The National Institute of Justice is a component of the Office of Justice Programs, which also includes the Bureau of Justice Assistance, the Bureau of Justice Statistics, the Office of Juvenile Justice and Delinquency Prevention, and the Office for Victims of Crime. Foreword Law enforcement agencies, prosecutors, and judges are overwhelmed by the amount of information required to keep pace with the rapid changes involving the computer and its associated devices and features. Criminals continually alter, revise, or create hardware, software, viruses, and other attacks in an effort to disguise criminal activity and thwart detection. In addition to being familiar with these changes in technology, law enforcement officers and prosecutors also must stay abreast of the latest revisions of applicable laws. To assist prosecutorial offices and associ ated law enforcement agencies, the National Institute of Justice (NIJ) has developed a series of guides dealing with digital evidence to address the complete investigation process. This process expands from the crime scene, through analysis, and finally into the courtroom. The guides summarize information from select groups of practitioners who are knowledgeable about the subject matter. These groups are more commonly known as technical working groups (TWGs). This guide is the fourth in this series. The other guides are: ❋ Electronic Crime Scene Investigation: A Guide for First Responders, www.ojp.usdoj.gov/nij/pubs-sum/ 187736.htm. ❋ Forensic Examination of Digital Evidence: A Guide for Law Enforcement, www.ojp.usdoj.gov/nij/pubs-sum/ 199408.htm. ❋ Investigations Involving the Internet and Computer Networks, NCJ 210798, www.ojp.usdoj.gov/nij/pubs-sum/ 210798.htm, publication pending. The remaining guides in the series will address: ❋ Using advanced technology to investigate. ❋ Creating a digital evidence forensic unit. Because laws continually evolve, the Technical Working Group for Digital Evidence in the Courtroom (TWGDEC) recognizes that its recommendations may not apply in all circumstances. The guide’s recommendations are neither mandates nor policy directives, nor do they represent the only correct courses of action. Rather, the recommendations discuss applicable laws combined with a consensus of the experience of the technical working group members to provide valuable insight into the important issues involved with using digital evidence in the courtroom. We hope these recommendations spark discussions about the practices and procedures that are best suited to a jurisdiction’s unique environment. iii NIJ also hopes that these materials will enable more of the Nation’s law enforce ment personnel and prosecutors to work effectively with digital evidence, maximiz ing its reliability to the benefit of criminal case prosecutions. NIJ extends its appreciation to TWGDEC participants for their dedication to the preparation of this guide. Their efforts are particularly commendable given that they participated in TWGDEC while continuing to carry out their duties with their home offices or agencies. Moreover, TWGDEC members had to attend numerous (and lengthy) guide preparation meetings held at locations far removed from their home offices or agencies. All of us at NIJ appre ciate the commitment made by the home offices or agencies of TWGDEC members in making their employees available for this work. David W. Hagy Deputy Assistant Attorney General, Office of Justice Programs and Principal Deputy Director, National Institute of Justice iv Technical Working Group for Digital Evidence in the Courtroom TWGDEC was a multidisciplinary group of practitioners and subject-matter experts from across the United States. Planning panel Abigail Abraham Assistant Attorney General Illinois Attorney General’s Office Chicago, Illinois Carleton Bryant Staff Attorney Knox County Sheriff’s Office Knoxville, Tennessee Stephen J. Cribari Defense Attorney University of Minnesota Law School Minneapolis, Minnesota Donald Judges Ben J. Altheimer Professor of Legal Advocacy University of Arkansas School of Law Fayetteville, Arkansas Robert Morgester Deputy Attorney General State of California Department of Justice Office of the Attorney General Criminal Law Division Sacramento, California Ivan Orton Senior Deputy Prosecuting Attorney King County Prosecuting Attorney’s Office Fraud Division Seattle, Washington Dick Reeve General Counsel Second Judicial District Denver District Attorney’s Office Denver, Colorado Fred Smith Attorney Santa Fe, New Mexico Richard Salgado Senior Counsel U.S. Department of Justice Criminal Division Computer Crime and Intellectual Property Section Washington, D.C. Additional TWGDEC members Additional members were subsequently incorporated with the planning panel members to create the full technical working group. The individuals listed below worked together with the planning panel to formulate this guide. Steven Beltz Washington State Patrol Olympia, Washington Robert Beitler Florida Department of Law Enforcement Computer Evidence Recovery Tallahassee Regional Operations Center Tallahassee, Florida John Boesman Prince George’s County Police Department Palmer Park, Maryland Don Buchwald Project Engineer Aerospace Corporation Los Angeles, California v Don Colcolough AOL Time Warner, Inc. Dulles, Virginia Kevin Comerford Erie County Police Services Buffalo, New York William Crane Assistant Director Computer Crime Section National White Collar Crime Center Fairmont, West Virginia Jeff Dort Deputy District Attorney Internet Crimes Against Children Task Force San Diego District Attorney’s Office Family Protection Division San Diego, California Donald Flynn, Jr. Attorney Advisor Cyber Crime Center U.S. Department of Defense Washington, D.C. William Fulton Texas Department of Public Safety Special Crimes Services San Antonio, Texas Mary Horvath Federal Bureau of Investigation Washington, D.C. Roland Lascola Federal Bureau of Investigation Washington, D.C. Barry Leese Detective Sergeant, Ret. Maryland State Police Computer Crimes Unit Columbia, Maryland Stacey Levine Criminal Division Computer Crime and Intellectual Property Section U.S. Department of Justice Washington, D.C. Jim May Prince George’s County Police Department Palmer Park, Maryland Justin Price Florida Department of Law Enforcement Computer Evidence Recovery Tampa, Florida Dan Purcell Investigator Seminole County Sheriff’s Office Economic Crimes Unit/Computer Forensics Sanford, Florida Chris Romolo United States Secret Service Washington, D.C. Joseph Schwerha, IV Assistant District Attorney Office of the District Attorney Washington, Pennsylvania Carl Selavka National Institute of Justice U.S. Department of Justice Washington, D.C. John A. Sgromolo Director of Investigations and Training LC Technology International Clearwater, Florida Todd Shipley Detective Reno Police Department Computer Crimes Unit Reno, Nevada vi Rebecca Springer Assistant Statewide Prosecutor Florida Office of Statewide Prosecution Central Florida Bureau Orlando, Florida Scott Stein Cybercrimes Unit Office of the U.S. Attorney for the Eastern District of Virginia Alexandria, Virginia Chris Stippich Digital Intelligence, Inc. Waukesha, Wisconsin Mike Swangler United States Secret Service Washington, D.C. Jeanette Supera Senior Investigator Office of the Attorney General State of Nevada Carson City, Nevada Wayne Williams Williams Enterprises Hyattsville, Maryland Terry Willis Computer Crime Unit Supervisor Los Angeles Police Department Los Angeles, California Facilitators John Bardakjy Project Manager National Center for Forensic Science Orlando, Florida Dale Heideman Deputy Director National Center for Forensic Science Orlando, Florida Anjali Swienton ACS Defense, Inc. Contracted to the National Institute of Justice U.S. Department of Justice Washington, D.C. and President and CEO SciLawForensics, Ltd. Germantown, Maryland Carrie Whitcomb Director National Center for Forensic Science Orlando, Florida Amon Young Program Manager National Institute of Justice U.S. Department of Justice Washington, D.C. vii Contents Foreword. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii Technical Working Group for Digital Evidence in the Courtroom. . . . . . . . . . . . . v Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi Chapter 1. Search and Seizure Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Chapter 2. Integrity, Discovery, and Disclosure of Digital Evidence . . . . . . . . . 15 Chapter 3. Courtroom Preparation and Evidence Rules . . . . . . . . . . . . . . . . . . 23 Chapter 4. Presentation of Digital Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Chapter 5. Application: Child Pornography . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Appendix A. Resources and Links. . . . . . . . . . . . . . . . . . .