Modern technology has allowed our generation to thrive in a digital world. Countless people, businesses, trade markets and various influential institutions are driven by technology while using its global presence to compete and succeed. Social media has also become a platform for news reporting, advertising and simply staying connected with the world. However, cybercrime remains a silent threat to all, but prosecuting it proves challenging despite attempts at collaboration among all law agencies, because of legal restrictions on forensic evidence handling, authenticity and admissibility (Carter, 2007; Feulner, 2017; Liston, 2016; Rosichan, 2017).
Not too long ago, the struggle to morph digital evidence into real evidence that could hold weight and probity in a courtroom could prove daunting; most key courtroom players struggled to understand the science behind something foreign. Expert witness testimony was often needed to explain the science behind the evidence, most of which was vaguely understood leaving many jurors, attorneys and even judges confused. Additionally, obtaining expert witness testimony could prove to be logistically and financially challenging, not to mention time consuming on the witness stand. Nearly a decade has passed since such issues were strictly examined by a focus group led by the National Institute of Justice. That focus group brought attention to the need for further educating every person involved in the court process on forensic evidence, its methods of evaluation, its preservation and its lawful application.
Technology continues to evolve and inspire cybercriminals to find digital loopholes for staying under the radar. This often leaves our legislation and justice system struggling for innovative ways to criminalize emerging forms of cybercrime, ease the job for law enforcement personnel and speed up the courtroom process when digital forensics are involved: This is where the new additions to the Federal Rules of Evidence (FRE) for Rule 902, could help (McClure, 2007; Feulner, 2017; Carter, 7017).
Currently, FRE Rule 902 holds that certain documents that fall within the realm of certified copies of public records, official publications, and various types of government documents are self-authenticating in that no evidence is required to certify their authenticity during a trial. This means that digital evidence still requires expert witness testimony to be authenticated in court. However, as of December 1, 2017, the new amendments to this rule, specifically amendment 13 & 14, will allow any electronic evidence that has been certified by a “qualified person”, (Carter, 2017), to be admitted at trial without requiring expert witness testimony concerning the science behind its authenticity.
The new certification amendments call for the certifier to elaborate on the process that was used and explain the basis for authenticity within the certification report. Furthermore, to meet the needs of evolving technology, the new provisions do not restrict authentication to any one process or science. This change does not affect the adversarial courtroom process either because, attorneys or parties to a civil suit will still retain the right to raise challenges to any presented evidence. These amendments are mainly expected to accelerate digital evidence authentication for trials or other legal cases by eliminating the need for law enforcement forensic technicians to waste time testifying in court on behalf of every piece of digital evidence, easing the logistical and financial burden of securing the presence and testimony of privately hired forensic experts and significantly reducing backed-up dockets for judges and courtrooms by eliminating the need to hear testimony (Carter, 2017; LII, n.d.).
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Carter, J. (2017, August 15). FRE Rule 902 Amendments: A game changer for digital evidence. CIO from IDG. Retrieved October 10, 2017, from https://www.cio.com/article/3215138/it-industry/fre-rule-902-amendments-a-game-changer-for-digital-evidence.html
Feulner, N. (2017, May 5). Why fighting cybercrime is so hard. East Bay Today, Retrieved October 10, 2017, from https://www.ebtoday.com/stories/why-fighting-cybercrime-is-so-hard
Legal Information Institute (LII). (n.d.). Rule 902. Evidence that is self-authenticating. Cornell Law School. Retrieved October 10, 2017, from https://www.law.cornell.edu/rules/fre/rule_902
Liston, P. (2016, August 4). It’s social media’s world, and we’re just living in it. BLASTmedia. . Retrieved October 10, 2017, from https://www.blastmedia.com/2016/08/04/social-medias-world-just-living/
McClure, D. (2007, November). Focus Group on Scientific and Forensic Evidence in the Courtroom. National Institute of Justice. Retrieved October 10, 2017, from https://www.ncjrs.gov/pdffiles1/nij/grants/220692.pdf
Rosichan, W. (2017, March 07). How connected is our world online?. Signal Group. Retrieved October 10, 2017, from https://signalgroupdc.com/connected-world-online/