Computer Forensics And Electronic Evidence - Failure of Competent Computer Forensic Analysis And Other Computer-Related Acts As Ineffective Assistance Of Counsel

Abstract

American defendants have the right to the effective assistance of counsel in criminal prosecutions pursuant to the Sixth Amendment to the U.S. Constitution. We examine how the effective assistance of counsel addresses competence and expertise with computer and digital forensics and electronic evidence. There is a floor of competence in modern litigation requiring competence as to the use of computer forensic services, at least in cases where electronic evidence is used. This is an area that is only now developing and which will continue to evolve. Examination of reported United States cases show a significant increase in the referenced use of computer forensics from 2004 through 2010, indicating significant growth in the use of digital forensics. Digital forensics has also been referenced by the courts, thought to a lesser degree. There are also the first reported cases to appear that assert defense counsel was ineffective for not using such counsel, asserting that counsel was not competent in that failure. The numbers of such cases, though, are too small to indicate anything other than the appearance of this concern as a matter required of competent counsel. Nonetheless, it may indicate a growing use and expectation of competence in the use of computer and digital forensic expertise in the analysis of electronic evidence.