June 2023: Juries, Judgments, and Credibility
Where tech and the law meet over the horizon lie dragons: the unknown of what it all means to society. Follow us as we navigate!
In June, forensic horizons touched off a new series on building credibility in digital forensics. As with so much in this industry, a lot is going on under the surface, so what started as one article grew to… well, I’m not sure yet. The problem with ADHD is that our brains tend to go until they lose interest.
Anyway, our two articles last month were:
- A Juror’s Perspective of Digital Evidence
- Can a Statistical Technique Improve Digital Forensics’ Credibility?
These choices follow May’s newsletter, which asked whether incarceration was really the answer to property crimes, relative to a solution more like diversion. That question came in part from the use of “creative” investigative solutions, such as third-party genealogical research data, to solve cases.
In fact, according to one of the articles referenced in my article on likelihood ratios, most “forensic” sciences evolved from investigative creativity rather than science. “Thus, admissibility of such evidence rightly or wrongly created judicial precedent in decisions that often did not — or could not — involve the level of research that would today be needed to establish scientific validity,” the authors observed.
That was in 2016, seven years after the National Academy of Sciences observed “faulty forensic science analyses” and “imprecise or exaggerated expert testimony” as factors behind wrongful convictions. Flash forward another seven years, and as I wrote in “A Juror’s Perspective,” jurors are finding themselves still confused about how (digital) forensic evidence fits into a case being tried.
That was behind the solo article I published last month, written for a lay audience: What Is Digital Forensics, and Why Should You Care? In it, I described how my neurodivergent approach to life had led many, many neurotypicals to conclude that “I mask well, but fundamentally am incompetent, self-absorbed, and careless,” and how this impacted the way I handled life in the middle of divorce.
The key word to all this is “judgment.” We judge, and are judged by, others by fairly arbitrary standards according to we think society should look like or perhaps according to how we want to belong. These standards include laws, but also rules of evidence, rules of procedure, and things like dress codes and manners: you don’t wear shorts or flipflops into a courtroom, you address the judge as “Your Honor,” “sir,” etc.
All of this very straightforward, or so we think. Because it becomes a lot more nuanced when “other” enters the picture. We judge each other based on how well we conform, so when someone doesn’t look, speak, dress, or act like we expect, we judge. Legitimate cultural or developmental differences barely enter the picture. As I wrote:
“But neurodivergence is just one of the many complexities in our world that ‘the system’ seems, well, ill equipped to handle. We need justice systems, and people within them, that can account for those complexities — starting with digital evidence.”
In other words: the social standards we use to judge one another are arbitrary enough as it is. We’re just needlessly complicating matters when we introduce evidence that may or may not have been treated with a standard set of processes. This can look dangerously like a system that’s working as designed.
Not just the evidence, but also the experts chosen to testify to it, is part of this. Presentation counts for a lot, but it should never be the end goal. In April’s newsletter, I linked to a piece about Richard Walter, the purported criminal profiler whose confidence fooled a lot of professional gatekeepers in the criminal justice system.
When it comes to scientific evidence, then, there isn’t — or shouldn’t be — a lot of margin for error. Yet technology continues to rely on a certain “wow factor” to convince users not to look for the man behind the curtain. Elcomsoft’s Vladimir Katalov wrote about this in his two-part blog series, “What Forensic Vendors Don’t Like to Tell Their Customers”:
“In their pursuit of customers, manufacturers have started behaving rather unethically, concealing shortcomings and limitations (which inevitably exist) while significantly exaggerating capabilities. This “competition” is absolutely detrimental to the cause….
“Manufacturers take advantage of their monopolistic position in certain markets and the fact that users have become accustomed to their solutions, making it difficult for them to switch to alternatives.”
Katalov (himself the head of a manufacturer) strongly advocated for users “to verify and compare claims made by vendors,” saying that a vendor’s refusal to disclose crucial information prior to securing a deal “should raise concerns about their transparency and reliability.”
Tool and version testing and evaluation are a given, and we’ll delve more into those processes in forthcoming articles. Meanwhile, another good resource is here:
Author Brandeis Marshall is quick to point out that her list isn’t exhaustive. Nonetheless, it’s a great start for anyone seeking to become more digitally literate.
What we’re working on next
- At least one upcoming installment of our credibility series will discuss how practical challenges with digital evidence — including its volume, as well as its variety — further complicate efforts to calculate certainty.
- As well (possibly in another piece), we’ll cover some of the digital forensics-specific research along with alternatives to likelihood ratio calculation.
- We’re still crunching on our piece about how digital forensics labs support both cybercrime and e-discovery investigations, and how the two workflows might converge.
Plus more research in the hopper. Check back next month for more details!
Where are you healing?
Previous newsletters asked where you’re finding joy, and where you’re finding peace. This month’s question is — for those who have experienced both direct and vicarious trauma — where are you healing?
The “where” can be inside, and/or outside. For example, I’ve been working on healing deep wounds with roots all the way back in childhood. But a lot of this healing work is facilitated in spaces that help me feel a little lighter: my home, my yard, my city’s inaugural JazzFest, a meditation circle among new friends.
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