The Courts
Digital forensic investigations may be carried out with a variety of objectives, including those that are internal to an organization, such as responding to a network intrusion event or determining whether or not a former employee might have taken company secrets. However, many investigations are performed with the ultimate objective of bringing a case to court, whether in a civil or criminal trial. Even if an investigation does not begin with such an objective, the evidence may show civil or criminal liability, changing the ultimate outcome. For this reason, all forensic investigations should be conducted using procedures that are acceptable to the courts, so that evidence resulting from the investigation will be admissible, or permitted by the judge. It is therefore useful to understand a little bit about the court systems in which the evidence might ultimately be presented.
Video Lecture
Jurisdiction
All courts are bound by jurisdiction, which collectively is the limit of a court’s authority. One limitation that forms part of a court’s jurisdiction is geography. A state court in North Carolina, for example, cannot generally rule on a case involving only parties from South Carolina where the matter before the court occurred in South Carolina. Similarly, a court in Canada cannot generally rule on a matter exclusively within the United States, since the two individual countries do not share a common legal system. Within the federal court system inside the United States, a court is generally limited to ruling on matters within a certain region, or district.
In addition to geographic limitations, courts also have limits on the types of cases they accept. One big distinction among different levels of court systems is whether or not a court has original jurisdiction in a matter. If a court has original jurisdiction, then new, unheard cases may be filed directly with the court for consideration. On the other hand, a court that only has appellate jurisdiction can only consider a case that has already been decided by another court, and where a party associated with the case is asking the appellate court to overturn part or all of the other court’s decision. Some courts, like the South Carolina Supreme Court, may have both original and appellate jurisdiction.
With some exceptions created by Congress, a state court usually does not have original or appellate jurisdiction over any matter of federal law. Similarly, federal courts generally do not have original jurisdiction over matters that fall exclusively under state law, unless the constitutionality or legality of the state law is in question.
Some courts are specialized and have jurisdictional limits established by statute. Specialized courts include courts that only hear civil cases, courts that only hear criminal cases, family courts, probate courts, and so forth. In addition, some state and federal statutes direct that certain cases will be held in a particular court, limiting original jurisdiction for specific types of disputes.
Adversarial Procedures
In the United States, most real courts (not the ones made for television) operate using adversarial procedures. With adversarial procedures, two opposing parties meet in court and present their cases, arguing opposing positions before the judge and jury. The objective of each party is to convince the jury (in the case of a jury trial) or the judge (in the case of a bench trial, in which only the judge makes the final ruling) that their argument is stronger than the opposing argument. After hearing the arguments, the jury deliberates (or, in a bench trial, the judge makes a decision), and the court makes a ruling in the matter (called a verdict when a trial occurs).
Other countries in the world use different systems. For example, an alternative to the adversarial system is the inquisitional system, where a judge or panel of judges asks questions of the parties in court, potentially rendering partial decisions as the case moves forward. This is the type of court system frequently portrayed on television court shows, in which the judge questions each side of the case to decide upon an outcome.
When adversarial procedures are in use, it is the duty of the attorneys representing each side of the case to challenge the evidence presented by the other side. Therefore, any evidence derived from a digital forensic investigation will be challenged if the case goes to trial. Similarly, reports by forensic examiners, and even the examiners themselves, will be challenged by the opposing party. This is not personal: it is simply the way our system is designed to work.
Parties to a Case
Adversarial systems always have two opposing parties in a case: the plaintiff (sometimes also called a complainant) is the party that brings the case to court, while the defendant (also called a respondent) is the party that is called to court to answer the complaint. A defendant is legally required to answer the complaint brought by the plaintiff and is also typically responsible for his, her, their, or its (in the case of a corporation) own attorney and legal fees. An indigent defendant charged with a crime may be provided with an attorney at public expense.
Criminal Cases
In a criminal case, the defendant is accused of a crime, which is a violation of the law for which a person may be punished with fines, imprisonment, community service, probation, or death. Such a case normally begins whenever the defendant is arrested, and the plaintiff is an authorized government official who can try the case. For minor cases, like traffic infractions, the plaintiff might be the police officer that issued the ticket. More serious cases generally have a dedicated prosecuting attorney, which would be a United States Attorney at the federal level, or a Solicitor (or the Attorney General’s office, in rare cases) in the State of South Carolina. Other states frequently refer to their prosecuting attorneys as District Attorneys.
Civil Cases
Civil matters are disputes between parties that are not outright violations of the law for which criminal penalties apply. If one party is harmed by another, the harmful act is known as a tort instead of a crime. The plaintiff in a civil case is the party who initiates the case, typically by filing a lawsuit for compensation or relief against the other party (the defendant). Such compensation could be monetary or in the form of property (damages), while relief often comes in the form of an injunction, or an order by the court directing a party in the case to perform some action or refrain from action. A party that fails to comply with an injunction may be held in contempt of court.
Presumptions
In the United States of America, a defendant is legally presumed innocent until proven guilty beyond a reasonable doubt.
There is no presumption about the defendant’s liability in a civil case. Instead, the trier of fact in the case (either a jury or a judge) decides which party prevails based upon the preponderance of evidence presented in the court.
Trials and Settlements
Once the parties in a court case begin presenting their arguments, a trial has started. After both sides have presented their cases, the finders of fact (jury or judge) render a verdict based upon the arguments presented. Trials are expensive, as both sides must pay attorneys considerable sums of money for trial services. These expenses only grow larger as the length and complexity of the trial increases.
As a way of saving time and money, a settlement may be reached in lieu of taking a case to trial. In a civil case, the parties may agree to exchange money or change their actions instead of waiting for a decision from the court. A settlement is generally far less expensive than a civil trial, and the defendant frequently is not required to admit wrongdoing.
Settlements also occur in criminal cases, where they are called plea bargains. With a plea bargain, a defendant agrees to plead guilty, sometimes to a lesser offense, in exchange for some type of reduction in punishment. In contrast to civil cases, defendants accepting plea bargains are more frequently required to allocute, or admit the details of the crime in open court.
Appeals
A party that disagrees with the outcome of a proceeding may appeal to a higher court. In an appeal, the party asks the higher court to reconsider or reverse the decision of the lower court. Appeals are common in both civil and criminal cases, and they add significantly to legal costs incurred by both sides of a case.
There is an ultimate level above which no more appeals are possible. At the South Carolina state level, the final level of appeal is the South Carolina Supreme Court. The final level of appeal at the federal level is the United States Supreme Court.
Contempt
A party that disobeys a court order or behaves disruptively or disrespectfully in court may be held in contempt of court. Contempt is generally punished at the discretion of the judge and may result in fines and/or jail time.
Court Systems
Additional details of the court systems of the United States and South Carolina will be covered in the following pages:
