How To Navigate Through The Digital Era: A Review of Digital Evidence: A Practitioner’s Handbook

Advocacy is not simply a creature of the courtroom but is, in essence, a state of mind informed by legal principles and enhanced by strategic and tactical concerns. A skilful advocate will be able to approach each case with a tactful mindfulness, which will start from the moment the client calls to the moments after the case is decided. There are many such legendary advocates such as Clarence Darrow,G. Arthur Martin, and Eddie Greenspan. Natural talent does make a difference but truly what separates the great from the good is the desire to be continually curious about the craft. This continual renewal means being on the cutting-edge of the law. Today, such a skilful advocate melds old school advocacy with knowledge and appreciation of what’s next. What’s next, and actually already here, is technology as a legal platform. In criminal law, this means technology is not just a place people do business but a space in which people live. The key is to superimpose skilful advocacy onto the circuit board of the future. To help us successfully navigate through the digital era isDigital Evidence: A Practitioner’s Handbookby Gerald Chanand Susan Magotiaux,from the Emond’s Criminal Law Series, specially written with the technologically inclined skilful advocate in mind.

The lawyer by nature is a multi-tasker: trained to see the trial not as a linear exercise but as a multi-layered, multi-dimensional entity in which all of the moving parts of a case must be artfully molded into a workable case to be persuasively and successfully presented to the court. Throw into this delicate mix new age technology and you have, not a work of art, but a machine. Digital evidence in the courtroom re-constructs the traditional case – essentially taking a file from the Clarence Darrowinspired Inherit the Windbased on the Scopes “Monkey Trial” of 1925and plunking it down into the delightfully digital melange of Blade Runner 2049.  The Handbook appreciates the nuances of this task and is a helpful “all in one” guide for the practitioner faced with the challenge such digital cases bring. 

The practitioner bent is nicely explicit throughout the book as it continually and consistently metes out trial advice not as an afterthought to the law but as a practical outcome of it. For example, in the opening pages of the chapter on reasonable expectation of privacy, the authors remind the practitioner to focus on what was seized digitally as opposed to emphasizing the static location of the hardware. Of course, this focus on content over form just happens to be consistent with the focus of the Supreme Court in recent decisions on technology-based searches. In this way, these trial tips sharpen the law into a useable trial tool. But the Handbook does more than offer tools. Throughout the Handbook, the authors provide suggested factors to consider in dealing with the various in and out of court issues, which may arise in such cases. This attention to everyone means that the trial tools are “non-denominational” as they are useful for every player in the justice system defence, Crown, police and even judge. Essentially, the Handbook endeavours to create a virtual tool box that can be custom made for whomever has the need to create a case. Better yet, these tools are not saved into an outbox folder for view at the end of the book but reside within each discussion byte-point as the digital journey proceeds in the Handbook. 

Even if you are attracted to the Handbook purely for the tips, you will certainly read it, cover to cover, for the more traditional discussion of the various legal issues engaged by digital evidence. With a “bit to byte” approach, the Handbook is a smart guide on all of the technological dimensions of a criminal case from Part I on search and seizure, to Part II on disclosure, and finally ending in Part III on the use to be made of the evidence. These Parts divide the Handbook into three conceptual areas: the investigative stage, the pre-trial or case building stage, and concluding with the trial stage where digital technology is used both within the trial process as evidence and as part of the trial process as a tool for presenting that evidence. 

Each Part is further divided into discrete chapters. I am particularly impressed with the opening chapter on the Reasonable Expectation of Privacy in Digital Data. I agree with the authors that reasonable expectation of privacy (REP) “opens and ends the s. 8 analysis” (page 4). Actually, I would go further and suggest REP is theplace in which s. 8 resides (although that depiction may be too ‘territorial’ in aspect for some) and as such is the lens through which digital evidence must be viewed throughout any analysis, be it for legal commentary or trial use. Then there is the less esoteric but equally important chapter 7 in Part II Disclosure on Practical Constraints on Crown and Defence. This chapter is a tell all discussion of how to maneuver through disclosure undertakings, the real cost burden of giving and receiving digital disclosure and the myriad of access to justice issues resulting from the thousands of pieces of data disclosure connected to these files. This big-picture through a magnifying lens approach to digital evidence strikes the right balance between practice and principle – just what a skilful advocate needs and wants. 

Another highlight of the Handbook is the high-level discussions of technological terminology such as the “chipping” and “parsing” required to extract and copy data from a smart phone (page 168). Or the introduction to the “thumbnail” database (page 202) as an indicator someone has viewed a particular computer file. My favourite techie talk is the “Trojan Horse defence,” wherein the defence position goes “viral” by suggesting illegal computer data was parachuted onto the computer through the back door by a hacker or by the use of malicious software. 

If there is a weakness to the Handbook it comes by it honestly. Although Canadian case law does not have the high-speed energy of sci-fi movies, it does have a large and I mean a mega large pool of case law on the use and misuse of digital evidence. The downside to the book, which is not a failing of the authors, is the sheer number of cases which now engage digital evidence. In fact, the book just missed the release of the Supreme Court’s pronouncements in Marakahand Jonesand as such the book, although in sentiment is reflective of these seminal cases, cannot reference them directly. This is where perhaps the publisher might want to use some digital magic of their own by turning the book into a digitally interactive hyperlinked online e-zine that can be updateable by a click of a mouse. Perhaps it will become an App, accessible on your smart phone or iPad. 

Whatever the format, this book truly is a “how to” guide to the digital world, reminiscent of the Hitchhiker’s Guide to the Galaxy, the subtext is - read this book and “Don’t Panic.” More accurately, read this book and you will become more skilful at technological advocacy.

 

What is Advocacy?

December is a time for reflection. Law classes are over and marking begins in earnest. It also a time of anticipation as I ready myself for the University of Calgary, Faculty of Law Advocacy “block” weeks starting the first week in January. This is a compulsory program for the 3Ls, which originally was taught over the course of an intensive week to introduce students to fundamental trial skills. Two years ago, I was approached by Alice Woolley, the then Associate Dean, to take on the program as part of the faculty’s curriculum renewal involving the integration of experiential learning and performance-based studies into the regular law school offerings. The advocacy program was already just that - hands on and practice orientated - but it needed something else to make it unique and to make it the capstone course for the new curriculum.

To do this, we placed those fundamental skills in the context of a real trial scenario. In the past, at the end of the block week, the students would present their case before a “trial judge.” The focus then was not on the trial itself but on the presentation of the trial skills. After the course revision, the trial became more than the vessel for the skills, it became the culmination of those skills. Instead of the students performing in court, they interacted with the case in a meaningful way. They learned to appreciate the effort required to take on a complex file for a client. They began to recognize that being a lawyer does not entail simply getting up on your feet and performing. Rather, the students understood that being an effective lawyer involved connecting the fundamental skills with legal knowledge, common sense and ethical obligations of the profession. They realized that the skills themselves are but a piece of the trial puzzle.

I like to think the advocacy course is not about advocacy skills but is about being a skilled advocate. This concept is best explained by Justices Cory, Iacobucci, and Bastarache in R v Rose. The issue in the case involved the timing of a jury address in a criminal case. Pursuant to s. 651 of the Criminal Code, the defence, if they chose to lead evidence, would be required to address the jury first. In the case of Rose, the Crown, who addressed the jury last, impugned the accused’s credibility leaving the defence unable to respond to the allegation. On Rose’s appeal against conviction for second degree murder, the defence argued the jury address requirement under s. 651 infringed section 7 as it denied the accused’s right to make full answer and defence.  The SCC was split 5 to 4 on the decision with Cory, Iacobucci, Bastarache JJ writing the slim majority decision (although Gonthier J concurred with them, Madame Justice L’Heureux-Dube wrote her own concurring judgment) made the following general comments on advocacy in paragraph 108:

“Skilful advocacy involves taking the information acquired as a result of the trial ‑‑ the evidence, the other party’s theory of the case, and various other, intangible factors ‑‑ and weaving this information together with law, logic, and rhetoric into a persuasive argument.”

The trio acknowledged the role of persuasive advocacy in a jury trial, but in their view, addressing the jury last would not give the accused a persuasive advantage.

Although, it is the sentiment of the court in this above quoted sentence, which rings true to me and frames my approach to the advocacy course, I would be remiss if I didn’t refer to the dissent decision in Rose authored by Justice Binnie on behalf of Lamer CJC, McLachlin J and Major J. The dissent also refers to the “skillful advocate,” but in their view, skillful persuasion can mean the difference between guilt and innocence. Justice Binnie explains this position in paragraphs 18 and 19:

18 While it would be comforting to think that in a criminal trial facts speak for themselves, the reality is that “facts” emerge from evidence that is given shape by sometimes skilful advocacy into a coherent and compelling prosecution. The successful prosecutor downplays or disclaims the craftsmanship involved in shaping the story.  Such modesty should be treated with scepticism. The rules of “prosecutorial” advocacy have not changed much since Shakespeare put a “just the facts” speech in the mouth of Mark Antony:

 

For I have neither wit, nor words, nor worth,

Action, nor utterance, nor the power of speech

To stir men’s blood; I only speak right on.

I tell you that which you yourselves do know,

Show you sweet Cæsar’s wounds, poor poor dumb mouths,

And bid them speak for me.

 

Julius Cæsar, Act III, Scene ii.

19 While few counsel would claim Shakespearean powers of persuasion, the fact remains that in an age burdened with “spin doctors” it should be unnecessary to belabour the point that the same underlying facts can be used to create very different impressions depending on the advocacy skills of counsel.  In the realities of a courtroom it is often as vital for a party to address the “spin” as it is to address the underlying “fact”.  As was pointed out by the late Justice John Sopinka, in “The Many Faces of Advocacy”, in [1990] Advocates’ Soc. J., 3, at p. 7:

Notwithstanding that your witnesses may have been reticent and forgetful, and your cross-examinations less than scintillating, the case can still be won in final argument.

Certainly, there is a difference of opinion in the power of persuasion. Yet, I believe both the majority and the dissent are right about the importance of a skillful advocate at trial.

The quote from Shakespeare (as an aside read my previous posting on the use of verse in court decisions – Poetic Justice) leads me even further back in time to find support for the skillful advocate. Socrates, famous for his unapologetic jury address and his wit, employs persuasion in both senses as described in the Rose decision, albeit ultimately to no avail. The ancient Greeks and Romans were of course the masters of rhetoric. Although some may question their form over content approach, it is useful to recall Quintilian, the Roman rhetorician, offering advice to the new orator. In book 3.5 of the Orators Education, Quintilian suggests there are three aims of the orator: to instruct (docet), to move (moveat) and to delight (delectrat).  Cicero, who is Ancient Rome’s best known orator, left many examples of his skillful advocacy in his writings on oratory. Although his advice, to the modern reader may appear at times contrived and overly formalistic, his emphasis on invention, preparation, and strategy is still relevant today. Hortensia, also an admired Roman orator, further enhanced the ancient art of advocacy by imbuing it with a sense of social justice.  

Yet, there is no need to go so far back in time to find examples of great advocacy: Queen Elizabeth I and her rousing Tilbury speech, the deliberate yet inspirational speeches of Abraham Lincoln, Clarence Darrow’s home spun ingenuity, the fictional flare of Atticus Finch, the legendary appellate lawyering of J.J. Robinette, the written advocacy of Madame Justice Wilson, the consummate advocate G. Arthur Martin, and of course, the courtroom “pugilist” Eddie Greenspan. These are just a few of those skillful advocates who can inspire us to think beyond what is possible and be humbled by the power of persuasion.

What is advocacy? It is a mixture of knowledge, preparation, and persuasion. It requires a clarity of thought and a need to have the courage of your convictions. It requires vision, professionalism and passion. This is what I hope our new law school graduates will achieve in January 2017.