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US Court ruling could place additional burden on computer forensics analysts

Voom Technologies : 09 July, 2009  (Special Report)
Voom Technologies examines a recent court ruling requiring live testimony from computer forensics analysts, potentially placing additional burden on over-stretched resources
If computer forensic analysts think they're bogged down in the lab, overburdened by the exorbitant 2000 percent rise in the number of cybercrime cases opened since 1996 as reported by the FBI, wait until they get to the courtroom. They may not see the lab again, according to Voom.

In a US Supreme Court ruling handed down last month in the case of Melendez-Diaz vs Massachusetts, the Court held that "certificates" of forensic findings were admitted in error. In a controversial 5 to 4 vote that reversed the judgment of the Massachusetts Appeals Court, the Supreme Court held that admission of notarized forensic analysts' reports violated the defendant's 6th Amendment right to confront witnesses against him under the Confrontation Clause. In the absence of live testimony by forensic analysts, such evidence was precluded.

Although the forensic evidence in question was drug-related, the Court's ruling was not limited to any particular discipline of forensics. In fact, referencing potential errors introduced through forensic analysts, Justice Scalia, who delivered the Court's prevailing opinion in this case, notes "The same is true of many of the other types of forensic evidence commonly used in criminal prosecutions." Given this and absent limitations, all forensic disciplines, including computer forensics, appear to be placed under the scope of this decision.

In the opposing opinion delivered by Justice Kennedy, dissenting Justices contend that the ruling "threatens to disrupt forensic investigations across the country." For instance, "The FBI laboratory at Quantico, Virginia, supports federal, state, and local investigations across the country. Its 500 employees conduct over one million scientific [drug] tests each year." This means that "before any of those million tests reaches a jury, at least one of the laboratory's analysts . . . must read aloud notes made months ago," with no reason to believe that a forensic analyst's live testimony will deviate from the report.

Dissenting Justices also point out that the ruling did not define the term "analyst." Further, the term "analyst" is not found in the Confrontation Clause, and there is no precedent on which to base the definition. Therefore, identification of anyone who qualifies as the analyst in any given case is left to the individual States. Thus, it appears this ruling will, indeed, require the forensic examiner performing the analytics to testify regarding the nature of the evidence as well as the forensic procedures involved, thereby significantly affecting analysts nationwide.

More on the ruling and related opinions:

Justice Scalia contends that "certificates" of evidence by forensic analysts that substantiate facts used by the prosecution against a defendant qualify as "testimony" against that defendant and thereby fall under the 6th Amendment Confrontation Clause. In dissenting opinion, it is argued that scientific evidence submitted to courts via analysts' certificates is offered by "unconventional" witnesses, in the sense that these witnesses have no personal knowledge of the defendant's guilt and merely present scientifically neutral facts. Accordingly, "Laboratory analysts are not 'witnesses against' the defendant," and, for this reason and others, certificates do not qualify as testimony.

Justice Scalia refutes this dissenting opinion, "The 'certificates' are functionally identical to live, in-court testimony, doing 'precisely what a witness does on direct examination.'" Justice Scalia explains that submissions of such testimony are not exempt from the Confrontation Clause solely based on their supposed scientific neutrality; scientific errors and fraudulent statements are made by analysts in some cases. The fact that this testimony is sworn to and signed in front of a notary only affirms the origin of the document and says nothing about the substance of the evidence. Therefore, testimony thus given requires, under the 6th Amendment, that the defendant be provided an opportunity to confront the witnesses.

Justice Scalia further explains that there are, in essence, two classes of witnesses covered under the 6th Amendment; witnesses for the defendant and witnesses against the defendant. Witnesses for the defendant are covered under the Compulsory Process Clause that "guarantees a defendant the right to call witnesses 'in his favour.'" Witnesses against the defendant are covered under the Confrontation Clause that "guarantees a defendant the right to be confronted with the witnesses 'against him.'" In the ruling it was asserted that merely being able to subpoena an analyst did not negate the defendant's right to confront that witness. Without the right of confrontation, a subpoenaed forensic analyst's "certificate" or affidavit could still be entered into evidence, even if that analyst failed to appear before the court. Dissenting Justices claim the Court's ruling is "windfall for defendants." According to their opinion, "Guilty defendants will go free, on the most technical grounds, as a direct result of today's decision."

Additionally, dissenting Justices claim that the Court's decision will place an onerous burden on taxpayers and on the prosecution, as well as the entire court system, including forensic analysts, who "already spen[d] considerable time testifying." According to this opposition, for instance, "Cleveland's district attorney prosecuted 14,000 drug crimes [alone] in 2007." Statistics indicate that "each of the city's 6 drug analysts (two of whom work only part time) must then testify in 117 drug cases next year." Justice Scalia refuted this argument indicating that "Many States have already adopted the constitutional rule we announce today, while many others permit the defendant to assert (or forfeit by silence) his Confrontation Clause right after receiving notice of the prosecution's intent to use a forensic analyst's report." Justice Scalia made it clear that, while the impact of any Supreme Court ruling should be considered, that consideration should not outweigh the Court's pure interpretation of the Constitution, nor should constitutional rights be compromised "because they make the prosecution's task burdensome."

"This clearly was a well-debated decision that was resolved on constitutional grounds," said Voom CEO David Biessener. "Although it seems as if this Supreme Court ruling will be yet another millstone around the necks of already over-taxed cybercrime examiners, only time will reveal the magnitude of its weight. Now, it is up to the States, in conjunction with cybercrimes labs, to effectively handle this potential new burden on computer forensic analysts."
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