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In
litigation or arbitration, it is
increasingly probable that digital
evidence will be an integral part of
your legal documentation strategy.
The need to present digital proof or
otherwise of
file transfers, the existence of
documents, relevant emails,
internet use, voicemails, databases and
other digital artifacts has transformed
our traditional notion of legal
documents. In criminal
and civil proceedings we can and do make
use of evidence revealed by computers
and other electronic devices.
 Given,
that lawyers are generally not computer
forensic practitioners, a computer
forensic expert will
be required to testify or provide a
report as to the who, where, why and
how surrounding the existence or absence
of digital evidence. Like most
expert reports, they are often
susceptible to challenges, arising from
questionable methodology, faulty premise,
prejudiced investigation and
unsubstantiated conclusions.
It is a known fact that computer
forensics is not a lawyers forte; how
then does an attorney conduct an
examination in chief, cross examination
and re- examination without a grasp of
the technical intricacies associated
with Computer evidence ?
There are several options for a
lawyer to adopt : ignore digital evidence
because of the attendant cost or because
they consider it an unknown territory;
or the lawyer can rely solely on the
conclusions of a forensic expert.
Non of these options is ideal.
Do lawyers fully
comprehend the forensic experts
technical report? How does the substance
of the report support a specific case strategy
or derogate from it ? How does the
lawyer proactively incorporate digital
evidence as a component in the case
theory?
In the absence of proper technical
training, it is a tall ask to expect a
lawyer to conduct a meaningful or
probative examination in chief or cross
examination of a computer forensic
expert witness.
Even more remote and frustrating is the
lawyers inability to personally
review the experts report for errors in
procedure, methodology and findings-
resort usually is to another expert for
explanation.
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We carry out independent
review of forensic evidence in
our own Laboratory,
