Thursday, 10 January 2008

More PI FUD

“Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)”, and
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), from Kumho Tire Co., Ltd. et al. V. Carmichael,119 S.Ct. 1167 (1999)

The argument being proposed in SC in the paper (http://www.sled.sc.gov/documents/PI/prireq.pdf) sent is that analysis of the drive is consulting, but waking into the office and doing the copy requires a PI will fail. An expert is required to view the seen in some cases. This is mirrored in the Daubert Case. This opinion fails the Frye, Daubert and Kumo tests. As such it is invalid. Further, the opinion is not law and nor is it even considered influential to the courts.

There was disagreement as to if Daubert applied to "experience-based testimony" as against to testimony based on strict research methodologies. In Kumho, the Court addressed these questions and extended the Daubert analysis to all expert testimony.

Also check out;
Mason v. Home Depot, S07A1486

Next quote:
"In the view of evidence now entertained by the best authorities, it is settled that a jury should be allowed to have placed before them all the means of knowledge which can be had without involving the danger of leading them to form conclusions not based on solid truth and not reliable as reasonably certain
-Justice Campbell, Evans V. People, 12 Mich. 36 (1858).

Next there is the Frye rule;
"Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stage is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while the courts will go a long way in admitting expert testimony deduced from a well-reasoned scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs."
Frye, 293 F. at 1014.

The Frye rule was fairly much shot down by Duabert, but some states still support it.

And
“the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, expertise, training, or education, may testify thereto in the form of an opinion or otherwise”. Fed R. Evid. 702.

And,
Among other things, the judge may consider:
“1. Whether the scientific theory or technique can be and has been tested;
2. Whether it has been subject to publication and/or peer review;
3. The known or potential rate of error:
4. The existence and maintenance of standards controlling the technique's operation; and
5. General acceptance in the scientific community”.
Daubert V. Merrell Dow Pharmaceuticals. 113 S.Ct. 2728, 125 L.Ed. 2d 469, 482-485 (1993).

Most US states have either adopted or based their own evidentiary rules on the Federal Rules of Evidence and/or the Frye rule.

Cavallo v. Star Enterprises, et al., 892 F.Supp.756 (E.D. Va. 1995)., the District Court for the Eastern District of Virginia applied the Daubert standards.

Aparicio v. Norfolk & Western Railway Co., 874 ESupp. 154 (N.D. Ohio 1994)., the District Court for the Northern District of Ohio granted the defendant's motion for a directed verdict after finding the plaintiff's experts were insufficient.

The District Court for the Middle District of Florida applied the Daubert criteria to an electromagnetic field (EMF) case in Reynard v. NEC Corporation, 887 F.Supp. 1500 (M.D. Fla. 1995).

Some US States are still applying the Frye rule:
Alaska, Arizona, California, Florida, Illinois, Kansas, Massachusetts (Daubert factors as a guide to application of Frye rule), Maryland, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New Mexico, New York, Pennsylvania,

States adopting Daubert outright:
Connecticut, Delaware, Georgia, Indiana, Kentucky, Louisiana, North Carolina, Ohio, Oklahoma, Oregon, Rhode Island, South Dakota, Tennessee, Vermont, Washington, West Virginia, Wyoming

States that have adopted rules similar to Daubert:
Alabama, Arkansas, Colorado, Hawaii, Idaho, Iowa, Maine, Montana (only to "novel" evidence), Nevada, Texas, Utah

State evidence law in Tx is based fairly closely to Daubert and reflects Fed evidence law in Rule 702.

The issue is- (from both Daubert and Kumo) whether the process used in forensic capture is a “testable theory or technique?”.

In such a case, the jurists need to warrant that an expert, whether formulating testimony derived from professional studies and research or their personal experience and history, pays an equal intensity of intellectual rigor in the process of bearing witness that s/he would do in the process of performing a task that is irrelevant to the litigation.

In the situation where the expert's data, principles, methodology, or application are satisfactorily brought into question, the jurist is required to conclude that the testimony has a dependable foundation in the understanding and knowledge of the pertinent scientific discipline and that the expert's methodology is consistent when applied to the explicit subject to be determined in the case. (Kumo expanded this to certain non-scientific disciplines as well).

I know what I do is. I can replicate my data and processes. SANS with the GCFA, ISFCE with the CCE and various other methodologies are a systematic process.

So now that I am not responding from the phone, I will again state that the PI rules are positioning and FUD. There are over 100 current cases involving “computer investigations” in Texas alone occurring at the moment. Most involve personal who are not trained in digital forensics at all.

In the cases throughout the US, there is not a single case of a conviction for not being a PI. There are convictions for fraud for individuals who have lied as to their skills. This means that there is just FUD as to the requirement to be a PI.

So the question is not if you need to be a PI, but are you a professional of some type at best. I would prefer to see qualified engineers and scientists doing this work over CFE’s (accountants effectively) with no training (or at least get the CFE’s trained).

Regards,
Dr Craig Wright (GSE-Compliance)

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