Alexa Koenig and Lindsay Freeman

Volume 73, Issue 5, 1233-1254

The increased use of digital technologies in daily life has led to a steep rise in the introduction of highly technical evidence and expert witness testimony in criminal and civil litigation. The growing use of novel, quickly-developing investigation methods for digital evidence presents several challenges related to the difficulty lay persons have in judging complex forensic methodologies. The lack of judicial and legal training in the underlying methods and their potential vulnerabilities can result in fact-finders who over-rely on experts’ conclusions without properly interrogating the evidence themselves.

While many of the scientific and analytical methods employed by digital investigators can be promising additions to investigative toolkits, enthusiasm for these techniques should be tempered with healthy skepticism—and knowledge of the most helpful questions to ask about new investigative processes. In this Article, we identify the very real vulnerabilities in digital open source investigations and encourage careful analysis of each component in order to mitigate the risks. We recommend that investigators preserve digital material according to established forensic standards and carefully record the steps of their online investigation and analysis. Expert witnesses should be strictly prohibited from giving opinions on matters that stretch beyond the scope of their education, training, and well-established expertise. Lawyers and judges must be prepared to ascertain the reliability and validity of digital open source investigations and their findings through thorough interrogation of the underlying data. As a best practice, digital evidence should be triangulated with physical, testimonial, or other documentary evidence whenever possible. If conducted carefully and professionally, digital open source investigations can offer tremendous value for both civil and criminal proceedings.