Sean Erenstoft talks cyber crimes.
Cyber-crimes are on the rise. Whistleblower and civil rights advocate, Sean Erenstoft, has issued a number of comments about criminal litigation strategies designed to educate other attorneys about prosecutor mis-management in the handling of cases involving electronically stored information (ESI).
Erenstoft cited examples from his own practice pushing back against abuses by prosecutors who ignored defense calls for electronic discovery in connection with allegations against those accused of cyber-stalking.
While the Federal Rules of Civil Procedure are beginning to recognize the complications presented by electronic evidence, criminal defense attorneys and the prosecutors who complain against cyber-crimes are a decade behind and have no formal procedural guide for ensuring due process for the accused. Indeed, the consequences of a prosecutor’s willful refusal to tender (much-less preserve) critical electronic source evidence despite specific written requests, prove to deny defendants’ due process rights. “The problem is that prosecutors typically have exclusive access to computer data and evidence gathered by police; and the un-checked ability to hide such evidence.”
Often-times, a prosecutor can serve a subpoena to trigger an obligation to help avoid the spoliation of evidence. However, they rarely do so to ensure secrecy and to, unfortunately, save a buck. Once ESI evidence is invoked, prosecutors have a duty to preserve evidence. This involves serving subpoenas and warrants as required to ensure a clean chain-of-custody and to prevent spoilation. Those in possession of hard-drives and other ESI should be placed on notice and take prompt action to maintain such data.
As cyber-crimes are now proving to be a major threat, prosecutors need to formulate ESI preservation techniques. Currently, prosecutors are either reluctant to expend the resources required to do so or they remain overly confident that judges will bypass “hearsay” and “best evidence” objections by astute defense attorneys.
In support of his advocacy concerning the preservation of ESI, he cites the Federal Rules of Civil Procedure – notably Rule 26(f) which calls upon counsel to meet and confer to address and avoid ESI problems. In fact, many of the problems that a criminal attorney can encounter with ESI can be avoided by reference to the FRCP. Reference to the FRCP is needed at least until California’s Penal Code is amended to include references to the rights of the accused in acquiring ESI.
Erenstoft concludes that it is always best for defense attorneys to place their discovery requests in writing so as to ensure a clean record in making later motions to exclude evidence if a prosecutor should later attempt to introduce evidence not shared with defense counsel.