How Rule 902 Actually Makes Your Life Easier
Digital Forensics | Feb 9, 2017
The Judicial Advisory Committee recently issued new rules regarding admission of electronic evidence that will go into effect on December 1, 2017. The amendment to US Federal Rule of Evidence 902 promises to save everyone a significant amount of time, money and effort.
The amendment (14) stipulates that in-person testimony will no longer be required to establish the authenticity of electronic evidence. Investigators can instead submit written certification. The receiving party obtains a notice to permit time to challenge the authenticity of the evidence. But barring a challenge, expert witnesses will no longer need to appear in court, eliminating travel, scheduling and other burdens.
As Forensic Focus points out, “While Rule 902(14) will technically become effective on December 1, 2017, there is a ‘retroactive’ aspect to this amendment, as electronic evidence collected in a Rule 902(14) compliant manner any time prior to the rule’s effective date can be admitted under the new provisions. This is important, because digital evidence is routinely collected well in advance of trial.”
The rule also reinforces the role of certified digital forensic investigators. Forensic Focus continues, “the Advisory Committee notes specifically reference the importance of computer forensics experts, noting that a ‘challenge to the authenticity of electronic evidence may require technical information about the system or process at issue, including possibly retaining a forensic technical expert.’”
Fantastic, right? Too often, forensic investigators are required to appear in court, requiring significant time, travel obligations and additional costs. The rule also helps reinforce the need for proper evidence collection procedures and personnel. The US Court’s Agenda Book on Evidence, includes specific scenarios and examples of how various forms of evidence can be admitted under the amendment (beginning on page 275).
The expertise, methods and tools used by forensic investigators will be critical under the new amendment. The rule calls for a “qualified person” to complete the written certification, and as always, investigators will need tools and training to continue to collect and preserve digital evidence in a legally defensible manner.
Guidance Software’s EnCase® Forensic is the undisputed market leader in court-proven digital investigation software. Both the law enforcement and business communities recognize our EnCe certification as a standard of profound computer forensics knowledge. Courts worldwide have recognized EnCe as an indicator of technical proficiency and expertise.
For more information on the suggested rule change, see:
- Forensic Focus - New Federal Rule of Evidence to Directly Impact Computer Forensics and eDiscovery Preservation Best Practices
- Commentary on Amendments to FRE 902 - Mary Mack, Executive Director at Association of Certified E-Discovery Specialists (ACEDS)
Raj Udeshi is a Product Specialist at Guidance Software. Raj is responsible for marketing strategy and communications for EnCase Forensic as well as market research and competitive analysis for the Guidance Forensic Security suite of products