Thursday, July 9, 2009

Sometimes a burden is worth it.

I just read this legal opinion from Voom about a recent Supreme Court decision. This quote sums up article fairly well.
In a U.S. Supreme Court ruling handed down last month in the case of Melendez-Diaz v. Massachusetts, the Court held that "certificates" of forensic findings were admitted in error. In a controversial 5 to 4 vote that reversed the judgment of the Massachusetts Appeals Court, the Supreme Court held that admission of notarized forensic analysts' reports violated the defendant's 6th Amendment right to confront witnesses against him under the Confrontation Clause. In the absence of live testimony by forensic analysts, such evidence was precluded.
The Voom analysis indicates that there is a likelihood that this decision will add an undue burden to forensic analysts around the country. The ruling was not limited to "conventional" forensics like what you see on CSI either, it also includes digital forensics. So it is possible that whenever a lab produces a report of its findings, an analyst may have to show up in court to defend it. I would like to go on record saying that I support this decision, and I think that in the long run it may work to REDUCE burden on forensic workers.

A while back I was commenting on whether people should sue PCI QSA's that report incorrect findings, and I said that I think that is a good thing too. The reason is because it protects the integrity of our field. If a QSA has subpar practices they would hopefully be sued out of business and the whole field would be better off. If QSAs ever gained a repution for being expensive people that you can pay to say anything then you would have a couple bad things happen. First a "race to the bottom" with other people coming in and agreeing to say anything for a little less than the last new entry in the QSA field. Followed up quickly with PCI moving away from QSAs in favor of some other group that doesn't have a bad reputation. So while it is burdensome for QSAs to face litigation over their decisions, it is less burdensome than going through a few years of declining profits followed by searching for a new job.

Some of these principles apply in the case of digital forensic work too. I don't think there is anyone in the digital forensics field that would argue with me when I say that the integrity of the profession and the public perception of that integrity is one of the top five most important things to the continued success of the field. How do you gain integrity? By withstanding scrutiny time and time again. Now as it stands today, there isn't a great deal of competition in the digital forensics field. It would be difficult to call up the FBI lab at Quantico, Virginia and pressure them to find evidence that supports your case with the threat that you'll take your business elsewhere. There aren't many other places that you can take your case, but that is quickly changing as the availability of education increases and demand continues to stay high. If we were to bless all of our forensic professionals with the ability to write a report and not have to face cross examination then you would invite less honest people into the field, and eventually for a price you could get someone to say anything. Finally we would reach a place where prosecutors and defendants each show up to court with their notarized certificates from the lab of their choice and both would be worthless. Even if the prosecutor got his certificate from an honest lab, it would be cancelled out by the dishonest report issued by some other lab. The way we deal with that now is through cross examination and if this Supreme Court decision had gone the other way we might have lost that valuable check on our field. And before we get to that place we have people that will be sent to jail because of a report from someone that doesn't have to come to court and face cross examination.

Does this decision add more work for forensics professionals? Yes it does, but probably not as much as you might think at first glance. Quantico deals with a million cases every year, but the vast majority of them do not make it to trial because of plea bargaining. Most of the time, the crime lab will submit a written report and that will be presented to the defense and they will say "let's make a deal." Sure, if even 10% of those cases go to trial you end up with 500 employees having to deal with 100,000 trials. But I think it is less burdensome than allowing the integrity of the profession to rot and then having to deal with the consequences of that. Also, by placing more work on our forensic professionals we will increase demand for more of them, which will lead to higher salaries and more job security. That is also good for the field.

So maybe I'm wrong about this, but I'm not terribly upset with the Supreme Courts decision. If you think I'm wrong, feel free to leave a comment and set me straight.

1 comment:

Maureen T. Aro said...

First, I'd like to say, on behalf of Voom Technologies, that Voom whole-heartedly supports the Court's ruling on Melendez-Diaz v. Massachusetts. Anytime the Supreme Court upholds constitutional rights over other considerations it's a win for this country. I also agree with you, and Justice Scalia who states in the Court's opinion that "confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well." While, our experience has been that the analysts' performance and knowledge is excellent, this ruling will help to keep it that way. Additionally, though Voom offered an analysis of the Court's ruling as well as the supporting and dissenting opinion, the dissenting Justices do, in fact, state emphatically that this will be severely burdensome on crime labs and analysts nationwide. Voom tends to agree with that statement. You ask if the burden is worth it. It certainly is. This country was built upon creative people developing effective solutions that address burdesome issues like this and others. We believe the Voom Shadow 2 helps to address this very issue, and we expect to see more innovations in technology as a result of this ruling.

Maureen T. Aro
Voom Technologies, Inc.