Case Law Database

Acknowledging and understanding the relevant North American case law is a core component of the Digital Records Forensics project. It is necessary to know how the courts have addressed matters of authenticity of evidence, expert witnesses, disclosure of documentation, privacy, and other related topics as they apply to digital records. This database offers abstracts of some of the most interesting and current cases addressing these issues. The database also includes statutory provisions and tribunal decisions. Readers should be aware that this database is not exhaustive and will be updated on a regular basis.

To access the database, click on the appropriate primary category and then select the sub-category of your choosing. The number in parentheses represents the number of cases currently in that area.

Cases on Expert Testimony

Canada
USA
  • Canada
    • Case Name: R. v. Braudy
    • Case Citation: 2009 CanLII 2491
    • Decision Date: January 2009
    • Court: Superior Court of Justice
    • Link(s) to Case: http://www.canlii.org/en/on/onsc/doc/2009/2009canlii2491/2009canlii2491.html
    • Abstract: The defendant accused of possessing child pornography. One of the primary issues in this case was if the Crown could prove that the child pornography found on the hard drives and CDs seized by police from the defendant’s spouse whom had moved out of his home but took the computers with her were in the defendant’s possession. Ms Braudy took the computers on the advice of her lawyer as their contents may be useful in providing information about job searches and parenting issues. She also believed that there might have been child pornography on them. At one point, the police seized the computers and obtained a search warrant to conduct a forensic examination of them. The defence counsel objected to the police officer who conducted the analysis arguing the was not a neutral party. While the judge conceded this point, he argued that the testimony was supported by “printouts confirming the information” the officer provided and there was no evidence refuting the testimony. In allowing the testimony of the expert witness the Court would find the defendant guilty of possessing child pornography.
    • Keywords: computer forensic, expert testimony
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    • Case Name: R. v. Baxter
    • Case Citation: 2009 ONCJ 16
    • Decision Date: January 2009
    • Court: Ontario Court of Justice
    • Link(s) to Case: http://www.canlii.org/en/on/oncj/doc/2009/2009oncj16/2009oncj16.html
    • Abstract: The defendant was accused of distributing child pornography from his computer at work; he denied these accusations. The defendant argued that though his computer was used to distribute the pornography, it was not him and someone else did so from his computer. The Crown called a computer forensics expert to testify about the time stamps of the documents in question, the computer’s usage, and the Internet usage of the computer in question. At issue in this ruling is the expert’s qualifications and if the expert was biased against the defence. The defence argued that the expert lacked publications and lectures in the field, nor did he have a degree or diploma from a university or community college. Also, the defence believed the expert was biased in favour of the Crown because all the courses he took to obtain his computer forensic knowledge and certification were taught by police officers. Drawing on R. v. Marquard the Court noted that in the overall context of the case and subject matter, the education and publication record of the witness may not be the determining factor for the admissibility of the expert’s testimony, rather, these matters would go to weight. The Court also did not believe the expert would be biased against the defence since police officers commonly serve as expert witnesses. The Court dismissed the defence’s objections and allowed the witness.
    • Keywords: computer forensics, expert testimony
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    • Case Name: Catalyst Fund General Partner I Inc. v. Hollinger Inc.
    • Case Citation: 2005 CanLII 2309
    • Decision Date: January 2005
    • Court: Ontario Superior Court of Justice
    • Link(s) to Case: http://www.canlii.org/en/on/onsc/doc/2005/2005canlii2309/2005canlii2309.html
    • Abstract: In addition to criminal proceedings, civil litigation resulted from Conrad Black’s transactions.  In connection with the civil litigation, a major shareholder obtained the court appointment of an inspector under federal companies legislation, to examine the transactions of Hollinger Inc.  The inspector sought a court order appointing a firm to assist with forensic inquiry into Hollinger’s electronic records. The expert was hired to assist in processing electronic images and to lease certain software and hardware.  A shareholder objected to the cost and delay resulting from the terms of appointment of the forensic expert.  The judge noted that the objection came from a shareholder that was implicated in the alleged wrongdoings, and granted the order appointing the expert.
    • Keywords: electronically stored information (ESI), expert testimony, forensic analysis, cost, time
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  • USA
    • Case Name: Frye v. United States
    • Case Citation: 293 F. 1013 (D.C. Cir. 1923)
    • Decision Date: December 1923
    • Court: Court of Appeals of District of Columbia
    • Link(s) to Case:
    • Abstract: Though overruled by the Daubert standard, this case continues to be referenced by the courts addressing expert testimony of scientists. This case specifically involved the result of a systolic blood pressure description test. The Court ruled that expert testimony when the scientific evidence, principle, or discovery has “gained general acceptance in the particular field in which it belongs.”
    • Keywords: authentication, evidence, expert testimony
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    • Case Name: Daubert v. Merrell Dow Pharmaceuticals, Inc.
    • Case Citation: 509 U.S. 579 (1993)
    • Decision Date: June 1993
    • Court: United States Supreme Court
    • Link(s) to Case:
    • Abstract: Overruling the Frye standard, this case established a four-factor test for establishing a reliable foundation and the relevance of expert testimony of scientists; these factors include: (1) whether the evidence has been subjected to peer review, (2) whether the expert’s theories and methods can be tested, (3) the error rates in studies and test results, and (4) the degree of acceptance of the expert’s theories and methods.
    • Keywords: authentication, evidence, expert testimony, relevance
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