Equal Access to Digital Forensics Expertise

In 2009, the National Academy of Sciences released its Report "Strengthening Forensic Science in the United States: A Path Forward." The Report highlighted several issues facing forensic sciences. One statement stood out:

"Forensic science serves more than just law enforcement, and when it does serve law enforcement, it must be equally available to law enforcement officers, prosecutors, and defendants in the criminal justice system."

Nearly 15 years have passed since this Report's release, yet arguably the availability of forensic science is still not equitable for defendants, including access to digital forensics expertise.

The use of digital evidence is common in all cases. We live in an incredibly connected society. With our smart phones, smart watches, social media accounts, and IoT devices, it is hard to imagine cases where digital evidence would not be important!

Prosecutors get access to highly trained and equipped digital forensics labs and investigators, but  what about the defendants who cannot avail themselves of law enforcement or government labs? The private sector digital forensic firms are not cheap to hire. The software used to conduct investigations is very expensive, and the amount of training that forensic technicians require to be proficient is very costly. The cost of hiring a good private digital forensics company is beyond the resources of many defendants. The budgets that public defender offices receive often preclude in-depth analysis of any digital evidence, allowing only for a cursory examination at best.

We have a broken model. This is why neutral entities like universities with the expertise and resources to conduct digital evidence analysis must step up and provide services equally to law enforcement and the defense.

When discussing digital forensics with students, I always emphasize that we work for the truth in forensic science. It makes no difference if the request for assistance came from law enforcement or the defense; we are neutral (as much as possible).

Anecdotally, I can attest that being seen as neutral and a free resource for law enforcement and the defense increases the reputation of university labs and programs; so does providing training for law enforcement/prosecutors and defense lawyers. While having access to proper tools and trained technicians/investigators is vital to ensure equity in the legal justice system, so is having legal counsel that understands digital evidence, its strengths, and its limitations. Without adequate knowledge regarding digital evidence, legal counsel will be hard-pressed to mount a proper defense or prosecution.

It does not appear that the government has any plans to address the existing inequities, so this must be a grassroots effort. The cyberforensics lab at Purdue University has existed for over 17 years. We set up the lab from the beginning to provide services to law enforcement and non-law enforcement, such as defense lawyers. We offer training, investigative resources, and expert testimony across all sectors. This has not negatively impacted our relationships with federal, state, or local agencies. Nor has it prevented defense lawyers and the public defenders' offices from seeking our services. We have often heard from prosecutors that they were glad we were involved in the defense, as they could trust that our conclusions and findings were based on facts and evidence and not because we were the proverbial "hired guns" for the defense.

Our cyberforensics lab is just one example of what can be done to try and level the playing field for everyone involved in the criminal justice system. However, until such time that our highest levels of government provide a solution, it is a step in the right direction.​