by Jo Ellen Nott
In an open access article first publishedonline on April 20, 2023, in The International Journal of Evidence & Proof, researchers from England and New Zealand discuss the challenges defense attorneys face when accessing and reviewing evidence from phones and computers.
The largest challenges identified after surveying 70 criminal law attorneys were (1) gaining access to data complicated by limited or late access, (2) the time needed to access and identify the relevant information because of the large volume of material, (3) the ability to use the data in the format provided, and (4) the difficulties processing and understanding data. Defense attorneys are hampered by tight turnaround times when confronted by these challenges.
Attorneys responding to the survey mentioned that even 1GB of data provides “unmanageable amounts of evidence to review.” This places defense attorneys at a disadvantage when they cannot examine all the evidence presented by the prosecution and are forced to rely on summaries the prosecution has prepared.
Because of the volume of material and the usual time constraints defense counsel must contend with, they cannot perform independent checks. The inability to independently fact check can lead to omitting important details that “could lead to miscarriages of justice,” according to the study’s authors.
Even if expert witnesses for the defense are found to interpret the digital data despite budget and time constrains, “access to other relevant data held by the police depended largely on the goodwill of the prosecution and would typically occur too late to be able to undertake any meaningful analysis.”
Another stumbling block in the process is that digital evidence provided to defense teams “often lacked detail and context or was so heavily redacted that it was impossible to follow.”
Researchers Dana Wilson-Kovacs, Rebecca Helm, Beth Growns, and Lauren Redfern recommend “more clarity and transparency around the collection and analysis of digital evidence and the streamlining of the format and presentation of information” due to its increasing use in criminal trials.
If the criminal justice system can learn to manage digital evidence more quickly and effectively, it will help ensure that justice is served. Survey respondent Professor Helm advised: “There is a widespread need to raise the levels of understanding of digital evidence by all, including how it is gathered and when and how it may be challenged. Improving lawyers’ own digital literacy is key to ensuring they can adequately represent the interests of their clients.”
Source: University of Exeter News
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