Digital Evidence in Criminal Law – a New Tool for Understanding Courtroom Technology

Digital Evidence in Criminal Law is hot off the presses — the first in Canada to deal with digital evidence in a criminal law context. The book is so recent that I had to review a digital copy — rather fitting under the circumstances.

Released in late April 2011 it is destined to become the bible of digital evidence for criminal law litigators. Civil lawyers will also find it helpful reading even in their watered-down-rules-of-evidence world.

A wee caveat before I launch into the review: author Dan Scanlan has been my colleague in the Victoria Crown Counsel Office for the last year. But that has not dulled my enthusiasm for the book!

Dan wealth of practical and policy experience in the digital world is reflected in the book. Before joining the Victoria prosecutor’s office Dan was in charge of all things high-tech at BC’s Criminal Justice Headquarters. He advised police and Crown Counsel throughout BC on electronic evidence and disclosure. He headed up the introduction of the Ringtail data base software used in BC’s mega-cases, of which there have been many. He’s lectured many times on digital evidence to lawyers and police in BC and Ontario. He has hands on experience with electronic evidence as a trial lawyer too. In short Dan is a walking encyclopaedia of digital evidence which he has masterfully crammed into a mere 330 pages.

To augment his years of practical experience Dan pursued a Computer Based Information Systems certificate at the University of Victoria. All this has given Dan the practical, legal and technological insights that make this a terrific book.

It took Dan over a year and a half to marshal the material and write Digital Evidence. While not the kind of text you curl up with in front of a cosy fire it is an excellent source of information for the busy criminal lawyer preparing a technology-rich trial, which in this day and age means virtually every major case. Over the last few years there has been a sea change in the way evidence is ferreted out by the police – the first place they often look is in an accused’s computer, Blackberry or Facebook pages.

The book sets out the technological knowledge that all criminal lawyers need to know – from hash (not the smoking variety) values to metadata, from Peer-to-Peer chat software to social networking ‘walls’ and bulletin boards and from digital forensics to computer experts. It even deals with Malware such as viruses, worms, and trojans (the electronic version of Greek guys inside a large wooden horse).

This book for the most part does not keep readers on the edge of their seats. Nor is there much of a build-up of excitement as the book works it way through what are pre-trial and trial essentials for criminal lawyers. The explanations and helpful illustrations Dan provides make the technology easy to understand for non-techies. For instance the first chapter deals with essential aspects of electronic evidence that will allow lawyers to transition from the traditional use of hardcopy evidence to documents and evidence in the digital age.

After the initial introduction to the basics of electronic evidence Dan structures the rest of the book more or less along the lines of the evolution of a criminal investigation and prosecution. Firstly he examines the collection of evidence by police and the unique issues that arise with electronic evidence, whether it is data or interception of Peer-to-Peer chats. Following evidence collection Dan explores the forensic analysis back at the police station and what experts can determine below the surface of the data. For example there’s a discussion on recovering deleted files that a suspect mistakenly thought were permanently wiped clean.

The chapter entitled “Types and Sources of Electronic Evidence” is an important building block for criminal lawyers to fully grasp the modern world of crime. The chapter provides a useful review of the vast array of electronic evidence that now pervades the criminal courts; digital images and videos, data bases, emails and internet derived evidence.

Despite Dan’s background as a prosecutor he has presented a balanced perspective which will make this text useful to both defence and Crown.

And for those that think digital evidence is mostly presented in child exploitation cases such as child porn, luring and the like, think again. Digital evidence is gathered in an increasing number of cases. In serious urban car accidents the police gather digital videos from stores near the scene, in drug cases police will examine a drug dealer’s mobile device and in murder cases an accused’s laptop can provide damning evidence. In a section on metadata (creation data undisplayed ‘behind’ a document) Dan gives an example of a murder suspect who was convicted of first degree murder based in part on the metadata of a note found on his computer. The metadata revealed when the document had been created which in turn pointed to the murder being planned and deliberate.

In the final chapter there is a very helpful section on selecting computer experts for your trial.

There is going to be one drawback to Dan’s work as a hard bound version as opposed to an ‘updateable’ loose leaf service: obsolescence.

Some sections of the book will be out of date quickly as technology and case law advances. For instance on May 5, 2011 the BC Court of Appeal released R. v. Ballendine, 2011 BCCA 221, that court’s first post-Morelli decision (2010 SCC 8, [2010] 1 S.C.R. 253). The BCCA opted for a common sense approach deciding that Morelli did not impose a more stringent threshold for reasonable and probable when it comes to computer searches.

There will also be unforeseen changes in the habits of the criminal-minded as they get wise to the risks of storing their ‘work’ on local devices and are moved to seek out other approaches such as cloud computing. Oh what a brave new world we live and compute in!

Digital Evidence in Criminal Law

By Daniel M. Scanlan
published by Canada Law Book

price: $109.00
ISBN: ISBN 978-0-88804-502-7