Judges' awareness, understanding, and application of digital evidence

TLDR: This study is the first in the U.S. to analyze judges and digital forensics, thus opening up a new avenue of research and demonstrating the applicability of that methodology to this discipline.

Abstract: As digital evidence grows in both volume and importance in criminal and civil courts, judges need to fairly and justly evaluate the merits of the offered evidence. To do so, judges need a general understanding of the underlying technologies and applications from which digital evidence is derived. Due to the relative newness of the computer forensics field, there have been few studies on the use of digital forensic evidence and none about judges’ relationship with digital evidence. This study addressed judges’ awareness, knowledge, and perceptions of digital evidence, using grounded theory methods. The interaction of judges with digital evidence has a social aspect that makes a study of this relationship well suited to grounded theory. This study gathered data via a written survey distributed to judges in the American Bar Association and National Judicial College, followed by interviews with judges from Massachusetts and Vermont. The results indicated that judges generally recognize the importance of evidence derived from digital sources, although they are not necessarily aware of all such sources. They believe that digital evidence needs to be authenticated just like any type of evidence and that it is the role of attorneys rather than of judges to mount challenges to that evidence, as appropriate. Judges are appropriately wary of digital evidence, recognizing how easy it is to alter or misinterpret such evidence. Less technically aware judges appear even more wary of digital evidence than their more knowledgeable peers. Judges recognize that they need additional training in computer and Internet technology as the computer forensics process and digital evidence, citing a lack of availability of such training. This training would enable judges to better understand the arguments presented by lawyers, testimony offered by technical witnesses, and judicial opinions forming the basis of decisional law. A framework for such training is provided in this report. This study is the first in the U.S. to analyze judges and digital forensics, thus opening up a new avenue of research. It is the second time that grounded theory has been employed in a digital forensics study, demonstrating the applicability of that methodology to this discipline.