The Vital Role of Independent Digital Forensics in Modern Criminal Defense

Cellebrite’s 2024 Industry Trends Survey found that, of the over 2,000 criminal investigators, prosecutors, managers and digital forensic examiners worldwide surveyed, 60% believe “digital evidence is more important than DNA.” The same survey determined that 74% of respondents believed digital evidence increases the success of solving a case. If criminal investigators and prosecutors feel digital evidence is of the utmost importance, it behooves you as a defense attorney to treat it as important, as well.

So, let’s say you have received some form of digital evidence from the prosecution as part of discovery in your client’s case. In most instances, you will receive digital proof from opposing counsel in the form of a digital forensics report, typically created by a digital forensics examiner using a forensics program such as Cellebrite, Exterro’s AccessData Forensic ToolKit, or Magnet’s Axiom. However, you could also receive a forensic image and/or a cell phone extraction which would require an expert to process, analyze and interpret. Should you solely rely on the digital forensics reports provided to you by the prosecution? Now what?

What if I Receive a Forensic Image or a Cell Phone Extraction?

If you receive a forensic image or a cell phone extraction, you cannot view the data with your own computer. You will need a digital forensics expert with the knowledge, experience, and training to process the image or extraction with the appropriate tool, conduct a thorough analysis, interpret the analysis results and provide you with a forensics report and a written expert report.

What if I Receive a Digital Forensics Report and/or a Cell Phone Extraction Report?

At a minimum, it is in your client’s best interest to have an independent digital forensics expert review the prosecution’s forensics report and the written report. This review would provide valuable insight into the government’s procedures and methods for conducting the digital forensics examination. It may also give you the intelligence to decide whether you need to obtain a copy of the forensic image or extraction to conduct further examination through an independent digital forensics examiner.

Should I Accept the Opposing Counsel’s Digital Forensics Findings?

An independent digital forensics expert, who can analyze or extract forensic images, is highly beneficial to the criminal defense team. With the amount of data stored on digital devices today, there is an increasing chance that something was overlooked in the government’s analysis. An independent digital forensics expert analysis can uncover previously unknown information relevant to the case, such as data or an explanation for how the data came to reside on the digital device.

Withum’s Digital Forensics and E-Discovery Team is comprised of independent digital forensics experts that can help you answer several questions regarding a digital forensic exam conducted by the prosecution, such as:

  • Have the government’s examiners been adequately trained for the exam they conducted?
  • Were proper forensic procedures and processes followed while acquiring the image or extracting the cell phone data?
  • Did the opposing examiner follow their agency policies and procedures?
  • Was the exam within the scope of the search warrant?
  • Were any errors acknowledged and documented?
  • Did the opposing examiner locate exculpatory data?

Digital devices and systems, such as computers, smartphones, tablets, memory devices, and email servers are used by nearly every person on a daily basis. Digital devices, particularly smartphones, have become intrinsically linked to daily activities. That means your clients are not only using digital devices to store documents and communicate through texts and calls, but are also using apps to store data, socialize, research, entertain, and exercise, among multiple other uses. These devices are a treasure trove of evidence that can prove or disprove allegations of impropriety, whether criminal or civil. As a result, an independent digital forensics expert is necessary to analyze and interpret the vast data these digital devices contain. The data is far too extensive and vital to wholly accept the digital forensic reports and, therefore, the conclusions of opposing counsel.

Contact Us

Don’t hesitate to contact Withum’s Digital Forensics and E-Discovery Team to learn how we can assist you with your case.