Digital Evidence and Your Court Martial Defense

In the typical case, your command escorts you to CID’s office for questioning.  Since you have spoken with a civilian defense attorney, you understand your rights and have no intention of answering any questions.  The CID agent reads you your rights on a DA Form 3881.  As instructed, you check the box that states you do not want to answer any questions and that you want to have an attorney.

At this point, you think everything is over and you will be allowed to leave.  You are surprised when the CID agent hands you a piece of paper that authorizes him to seize your cell phone, computer, external hard drive and/or iPad as evidence.  The agent asks you for the passwords for your digital evidence.  He tells you that if you don’t provide the password to the device it is much more likely your electronic device will be permanently damaged by the investigation process.  What should you do?

The answer is simple.  You should refuse to give him the password to your device.

In many cases, forensic digital evidence can make all the difference between winning and losing a court martial.  If there is properly collected, stored, and tested forensic digital evidence that helps prove the government’s case, it is likely you will be convicted.  However, if forensic evidence is missing, is inconclusive, was mishandled, lost, or not even collected when it was available, then your civilian court martial lawyer has an important issue to investigate that could lead to a full acquittal.

Computer, internet, and cybercrime investigations oftentimes involve complicated legal issues, such as preservation, chain of custody, verification, and documentation.  Law enforcement agents frequently use digital forensic experts skilled in the collection of digital evidence.  These experts use unique data collection tools, such as EnCase for computer forensics, Cellebrite for cellphone forensics, and Blackthorn for GPS device forensics.  The type of tool used depends on the digital evidence device in question.

An effective court martial defense attorney must not only be familiar with the different types of forensic evidence and data collection tools, but must also know the procedural issues and applicable law governing digital evidence – such as admissibility and whether certain evidence can be suppressed.  The following lists common questions your civilian court martial attorney should considering when evaluating how digital evidence was recovered:

  • Does the case involve digital evidence such as recorded phone calls, surveillance video, emails, chat logs, text messages, social media sites, or downloaded explicit imagery?
  • If so, were the proper protocols for collecting, preserving, and storing electronic evidence followed?
  • Can the evidence to be admitted in court be authenticated?
  • If a recorded phone call was made, are the voices on the tape audible?
  • Is the government able to identify the voice on the recording as yours?
  • How did law enforcement learn of the existence of the electronic evidence?
  • Where was the electronic evidence collected and stored?
  • Was it copied from an electronic device?  If so, was the original electronic device also collected and stored?
  • Is the electronic evidence relevant to the case?  What does it prove, what does it disprove?
  • Is there proof that you were the sender or receiver of the evidence?
  • Is there proof that you knew or should have known of the existence of the evidence on your electronic device?
  • Has your computer been droned by a hacker to store explicit imagery without your knowledge or permission?

From the beginning stages of your case, Mr. Coombs can utilize his experience and professional expert assistance in investigating your case.  If you are facing a court martial where digital evidence might be used, it is vital that you have a court martial attorney that understands how to defend you.  Mr. Coombs has successfully defended hundreds of court martial clients just like you.

Call the Law Offices of David E. Coombs today for a free consultation.

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