January 14, 2014
In last week’s installment, I discussed the meaning of “digital forensics” and touched on the reigning case in scientific evidence admission, Daubert v. Merrell Dow Pharmaceuticals Inc. The Daubert decision resulted in a set of standards used by judges to determine whether scientific evidence is admissible in federal court. It applies to any scientific procedure used to prepare or uncover evidence and comprises the following factors:
1. Testing: Can and has the scientific procedure been independently tested?
2. Peer Review: Has the scientific procedure been published and subject to peer review?
3. Error rate: Is there a known error rate, or potential to know the error rate, associated with the use of this scientific procedure?
4. Standards: Are there standards and protocols for the execution of the methodology?
5. Acceptance: Is the scientific procedure generally accepted by the relevant scientific community?
The Daubert test provides judges with an objective set of guidelines for accepting scientific evidence. Following Daubert, the Kumho Tire v. Carmichael decision extended the Daubert guidelines with its interpretation of Federal Rule of Evidence (“FRE”) 702, which provides guidelines for qualifying expert witnesses. It states that the expert can have “scientific, technical, or other specialized knowledge”, thereby extending the Daubert standard beyond scientific knowledge.
There are a number of practical points that both attorneys and judges will benefit from knowing, in order to meet the guidelines set forth in the standard. This article’s goal is to elucidate those practical high-level points, thereby allowing counsel or the bench to review technical expert reports and spot potential weaknesses.
In the next installment of this article, I’ll go into how best to review the qualifications of a digital forensics expert.