Exposure Expertise Is Screwing Criminal Defendants and their Appeals
And my longest investigative footnote to date
“I don’t believe Mr. Seitz understands how the term ‘hacking’ is used in common language…”1
“…this [investigation] is a fishing expedition…”
“…I think to the extent that there are further delays going down that rabbit hole, that those delays be unnecessary and I’d-I’d call off your expert [yours truly] on that particular front.”
Yep, they’re all talking about me. Me and my relative lack of expertise, or apparently, my command of the English language. It’s also demonstrating a strange form of cognitive bias that I have no psychology degree to explain.
I’ll do my best though…
Herein lies the problem with what I call ‘exposure expertise’ — that being someone (usually a lawyer or judge) who is simply exposed to a technology makes them an expert at it. Or in common legal parlance, that the judge or lawyer would possess technical knowledge that an average juror would not.
I can tell you, this is objectively not true in any case I have ever worked.
Ever.
Before we get to my thicc-boi-footnote, let’s slow the conversation down a whole lot.
How could a Court even understand what would define a ‘fishing expedition’ or ‘rabbit hole’, for an expert conducting a technical investigation?
Wouldn’t that opinion from the Court itself require expert guidance first?
As someone who investigates shit for a living, I usually associate ‘rabbit holes’ and ‘fishing expeditions’ with thoroughness at best, resource mismanagement at worst. The latter referring to the real risk of a rabbit hole — that if you’re in the wrong one and you run out of time or resources on your case, then you fucked up. You may, in the Court’s eyes, also be wasting their time and money.
Plain and simple.
Experience teaches you that you can dive deep enough, but still crawl out to make sure every rabbit hole gets at least a peek. Contemporaneous note-taking, information synthesis and continued report drafting help to slow you down, to contemplate and incorporate.
So I would hope that we can all agree: it’s unwise to point to another person’s investigation and apply a label such as ‘fishing expedition’ without having any expertise in what that person is doing in the first place, right?
We can agree on that part, yes?
Ignorance isn’t a defense.
So let’s get to the footnote.
A Simple Expertise Test
After sealing a 19,000-word report on a wrongful conviction in Kansas, it was not the heft of the report but a single footnote that I felt was most illustrative of the problem in this case, and numerous others.
The case involved a DHS ICE agent who was a digital forensics practitioner. Already a level of expertise above the average juror. However, the judge intercepted the expert certification of this witness and just decided that the officer was a ‘fact witness’ simply speaking to what he was seeing on a compooper.
Now, that is batshit. It is one thing to bring documents, a timeline, and exhibits and lay them out as a fact witness. As soon as “MD5” or “Encase” is uttered, that is not a fact witness. Unless that fact witness is synthesizing the work of an expert, and that expert has already laid down a foundation for that fact witness. The foundation must be built upon the expert’s training, expertise, and the application of the same to the case at hand. One would hope you have a properly formed expert report as well, something that is truly deficient in a high number of cases.2
Why is that?
Well here is where the thicc-boi comes in, which I have modified slightly for readability:
A simple test that I often offer to those who feel that the ‘average juror’ understands as much as the average computer specialist is to pose the question to them: Describe to me in as many steps and detail as possible, including any network protocols, encryption or other technologies involved , that occur when I browse to Google[.]com with my laptop.
The true answer covers multiple textbooks, years of schooling, and likely is not feasible to understand at every level by a single human being. A computer expert will be able to explain a significant number of steps in detail – and a sign of their expertise is their clear assertion they couldn’t know all the details, of course. A ‘computer nerd’ might be able to answer in some level of detail, generally not to the scope of an expert.
The average juror, including the defendant, judges, lawyers, and clerks have no idea, other than perhaps the basics of interacting with the software such as the computer itself, or opening a web browser. However, an average juror may not even understand the definitions of some of the words posed in the question itself.
These reasons are precisely why computer evidence and corroboration evidence requires expertise. It is not a ‘nice to have’.
Alternatively, another and more modern analogy is: simply because one owns and carries around a cellphone in their pocket, in no way means that the same person has an inkling of how it works.
Make sense, doesn’t it? It’s not about neckbeards at Comicon in a dick-measuring contest over who knows more. It’s truly crucial for criminal cases. Not a ‘nice to have’.
It’s not just at trial time in front of a jury, either, when this can really screw a defendant’s case.
It’s much worse at appeal and during post-conviction work.
The Appeal Snowball
“As trial counsel said, the Facebook messages were of no use to….”
I don’t even have to finish the sentence, do I?
Trial counsel.
Not ‘the expert witness at trial’.
Trial counsel.
A lawyer.
This is the wee little trial snowball that gets pissed on and slowly starts making its way down Sentencing Hill.
I’ve never met a lawyer who’s told me every possible way that Facebook messages can be used in a criminal investigation. Just like they’ve never had me tell them how to file an appeal.
The difference is that I don’t walk around with an ‘Appeal Court’ in my pocket, which makes me feel pretty comfortable talking about it3 — I am not constantly exposed to the ‘Appeal Court’ in this example. I don’t get random Friend requests on an Appeal Court. I don’t feel the ‘Appeal Court’ buzz at me from my sweatpants — take that to mean whatever you want.
But judges have cell phones. Lawyers run YouTube channels. They all type on compoopers. Many have Facebook accounts. This exposure, driven by a juror-like ‘lived experience’ principle, is fine when you’re at the pub, but it completely invades the territory of an expert the minute you utter it in Court or put it in a filing.
If you can’t convince a single trial judge, now you’re looking at an Appeal Panel.
That piss-stained snowball starts hurtling down the hill, picking up dogshit, sticks, and more snow. Every appeal that carries the incorrect statement makes the snowball bigger; it yellows it further. The farther that snowball is allowed to go, the harder it is to stop, and the less willing anyone is to touch it.
You start running into truly illogical arguments, such as: “The Facebook messages are a settled matter, and you are not getting an expert appointed.”
Yep, the snowball is now a block of immovable shit. Your only hope is to melt the whole thing down with a blowtorch, put on your gloves, pick through the shit and pull out the digital evidence that proves they’re wrong.
It is hard, thankless, ugly, messy work — all because of one little snowball, one little sentence uttered at trial.
No expert in sight?
No justice.
Just because you carry something around in your pocket does not mean you know a goddamn thing about it.
I do know compoopers. That was just mean.
Another strange thing here is that the infamous NAS 2009 report, which defense counsel love to cite in their Daubert hearings — absolutely eviscerated report writing across all fields. Why we are pissing around with scratches on metal when there’s not even an expert report describing the scratches is a truly confounding concept to me. I do spout off about this in High Spirits 12.
For years, I would randomly yell, ‘objection!’ under basically any social circumstance. For ‘shits and gigs’ as the kids say. Then, thinking I was pretty smart, I figured it was because of, well, objectionable shit, being said at trial. Right? Objection! Who even knew (lawyers, law school students, many people except for me at the time, they all knew…) that objections are how to preserve issues for the Appeal Court to review? Who even knew. If only.