This article is written specially for Belkasoft by Kevin Stenger, a digital forensic examiner who investigated the case of Casey Anthony
The Casey Anthony case occurred back in 2008 when her 2-year-old daughter Caylee was first reported missing and, half a year later, found dead. The mother's behavior was suspicious from the beginning, and she was arrested the day after her child was reported missing.
You can familiarize yourself with the story in our previous article "The case of Casey Anthony".
In this article, Kevin Stenger, a digital forensic examiner who investigated the Casey Anthony case, shares legal issues that arose during the trial and strives to prevent DFIR experts from experiencing disarrange in the future.
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The Casey Anthony case generated a significant amount of comment from various digital forensics "experts". Unfortunately, the majority of commentary was lacking in facts regarding the issues and circumstances surrounding the case which they were not aware of. In addition, the majority of both digital forensic and even legal "experts" failed to note two fundamental legal issues which impacted what was observed in and out of court.
The first basic concept is Discovery. Multiple comments suggested that the Defense did not have access to various digital forensic evidence. There was no basis in this. Florida has very liberal discovery rules. In fact, the Defense team was supplied with the full and complete forensic image of the family's hard drive that was used by law enforcement. In addition, the Defense had copies of every report provided to the Prosecution by law enforcement regarding the digital forensic exams. To my knowledge the only thing that was not provided to the Defense was how the Prosecution planned on presenting the evidence nor were they entitled to such information.
Among the Defense team were two digital forensic examiners. One of the examiners was well known to the law enforcement team as he was a Professor of Computer Science at the University of Central Florida, one of the founders of the Digital Forensics graduate program at the University and a volunteer at the law enforcement digital forensics lab. The fact that he was a volunteer at the lab was well as a professor to the Prosecutions digital forensic team was well known to the Defense.
As can be seen the Defense had access to the complete evidence images and had the services of competent examiners. The Defense did not choose to utilize their forensic team as witnesses in the trial.
The second fundamental concept which perhaps had the most impact and which was totally ignored by all the outside observers and experts is The Rule of Sequestration. The Rule of Sequestration or more commonly referred to as "The Rule" is an order by the court restricting what witnesses can discuss outside of the courtroom. The Rule of Sequestration, ensures that witnesses do not discuss the facts of their cases and/or their testimony with other witnesses prior to their testimony at trial. The Rule is described in Florida Statute 90.616. Witnesses may ONLY discuss the case with the Judge or attorneys involved in the case until such time as the witness is dismissed as a witness by the attorney who subpoenaed him or her.
The use of The Rule is common in criminal cases in Florida. Once The Rule has been invoked a lay or expert witness may NOT under ANY circumstance discuss the case with other witnesses or any other person whether involved in the case or not outside of the judge or attorneys. In addition, the witnesses were forbidden to view or hear in any form the testimony of the other witnesses on Radio, TV, Internet or printed formats. Violating The Rule is punishable as contempt or by other sanctions such as exclusion of testimony.
A large number personnel from the Orange County Sheriff's Office were subpoenaed as witnesses including the digital forensic unit. So many personnel were subpoenaed that the Sheriff via memo and via the chain of command issued specific rules for the entire department regarding the case. During the course of the trial all televisions in every office and building were to be turned off. Personnel could not have a radio on tuned to any news station. Personnel who were found to have violated the rule were subject to immediate termination.
Complicating the use of The Rule in this case was that the Defense had subpoenaed the Prosecutions witnesses as Defense witnesses. This required that both the Prosecution and Defense release the witness before The Rule no longer applied.
As a result of the application of The Rule the Prosecution witnesses were not aware of what was occurring with the testimony in court unless the attorneys contacted them. A fact which was generally not known outside of the attorneys and judge was that a digital forensic examiner from an outside jurisdiction was utilized in court as a special advisor during the technical testimony by the Prosecution. As a part of the Prosecution team and since he was not a witness, he was permitted to remain in the courtroom during all the witness's testimony. He also had access to the evidence which was being displayed by the attorneys to the jury on the screens and was not visible to the media or court gallery.
Only after the digital forensic team was dismissed by both attorneys teams was the digital forensic team allowed to discuss what had occurred in the courtroom with each other as well as the outside advisor.
It was disappointing that no outside digital or legal "expert" was seemly aware that The Rule has been invoked or how that might affect the trial and testimony.
Neither of the concepts had an effect on the outcome of the trial. What it did show was a lack of understanding of basic law and courtroom procedures by forensic examiners acting as experts for the media. The lack of correct information led to misunderstandings of what occurred in the case. Digital forensic examiners have a responsibility to provide the same level of professionalism when providing opinions out of the courtroom as they do inside.
Know the difference between an "expert opinion" and being an "expert with an opinion".