If you’ve read any of my previous blogs, you may have noticed that I tend to focus on cutting edge issues, reflected in “hot-off-the-presses” journal articles and cases. Today, I’d like to focus on a trend that I believe litigation attorneys are going to confront more and more frequently.
There was a time when a medical expert witness could testify from charts and examinations, a forensic accountant could examine books and records kept in the “ordinary course of business,” and, for the most part, it was then up to the jury to determine whose analysis seemed most plausible. While that approach will likely remain the same for the foreseeable future, there is a new issue that is lurking in the very near future: digital forensics.
Digital forensics is a relatively new field and consequently doesn’t have as many pre-existing rules and regulations regarding admissibility and reliability. While this issue seems straightforward enough, its implications may be extraordinary.
As digital software and hardware change and improve on a daily basis, the standards are in a constant state of flux. Imagine the medical imaging software from 2010 – fairly recent – being upgraded in 2013 and suddenly it is both obsolete and unreliable. Or the forensic accountant who testifies that certain records are maintained in the regular course of his business, but as it turns out, the underlying software is flawed and thus creates unreliable anomalies. Can an attorney rely exclusively upon the testimony of the accountant expert witness when the principal issue may be about the software?
State and local police forces have had to deal with this issue for years. If you’re caught speeding, any attorney worth his salt is going to ask the officer to provide a certified copy of the sheet that purports that the radar detector recently passed inspection. And of course that means more people to examine and cross examine to “guarantee” the reliability of the primary source of the evidence: the radar gun.
The point I am making isn’t that technology is inherently unreliable or that we should somehow return to the halcyon days of green ledger sheets and simple x-rays. What I am suggesting is that we may be on the precipice of a new era in expert testimony. As far fetched as it may seem, we may be on the verge of having to have a technology expert testify alongside most experts of other disciplines. In other words, having a microsurgery expert testify about the techniques used may require a technology expert to discuss the reliability, limitations and currency of the particular device or software used as well.
Technology is advancing at an unprecedented pace; and being current has never been as difficult a task as it is today. If you want the jury to believe your expert’s conclusion, you may need to augment his testimony with an expert in the technology used by your expert.
By: Ian Heller, Attorney at Law