In today’s ‘wired world’ it is unusual to come across a person who does not own a computer, PDA or mobile phone. For this reason, electronic devices are being admitted as evidence in an increasingly large proportion of legal cases. As technology progresses apace, and analysis becomes more complex, the question arises: how ‘computer literate’ do a judge and jury need to ensure a safe verdict?
Computer forensic analysts are experts in the examination of computers and other electronic equipment for the purposes of producing evidence that is admissible in a court case or employment tribunal. Typically, such an expert will also be required to testify in court as to their findings. Since the jury and judge will not typically be well versed in computer technology, it is the job of the expert witness to ensure the evidence is presented in layman’s terms.
After a verdict is given on a case involving computer forensics, it is not uncommon to hear complaints that the jury were ‘blinded by science’ or that the jury had been convinced of the infallibility of forensic science by television dramas such as CSI, and as a result were more likely to accept the evidence at face value, rather than assessing it critically.
However, it is generally the responsibility of the lawyer for the opposing side to question the validity of the evidence during cross-examination and attempt to interpret the ‘expert testimony’ into natural language to influence the jury. Accordingly, it is the judge’s role to ensure the translation is legitimate so as to allow the jury to make an informed decision. As such, it has been suggested that if a judge is not well versed in the technical details being presented, they will not be in a position to prevent unsubstantiated testimony from passing as fact.
Despite these concerns however, it is clear that the part of the judge’s role is to understand the facts of any case which passes before them. As such, if presented with a case beyond their technical understanding, it seems likely that a judge would simply take sufficient time to acquaint themselves with the technical aspects of the case.
Some argue that a judge should at least possess a level of technical knowledge in line with that of a typical ‘man on the street’. Such a need was highlighted in 2007 during the trial of three men accused of inciting terrorism via the internet when Judge Peter Openshaw admitted that he was struggling to understand terms such as ‘website’.
However, it could be argued that such a lack of knowledge is in fact an advantage to the legal process because, whereas a technologically savvy judge may not require every computer related phrase to be explained, a judge who requires explicit definitions of technical concepts actually reduces the likelihood of the jury being baffled by science.
It seems then, that a computer literate judge and jury is not essential to ensuring a valid verdict. Rather, it is a case of applying the same tests of validity and transparency as would be applied to any form of evidence, so that in fact, a competent judge should be able to ensure a fair trial is conducted, irrespective of their prior technical knowledge, or that of the jurors.