Computer Law - Digital forensics

The Daubert and Frye standard

Daubert and Frye standards are two major standards that relate to the admissibility of scientific testimony in legal trials and expert witness evaluation(Writer, 2020). These two standards are found in the two seminal cases which are :

• D.C. Circuit case: Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)
• U.S. Supreme Court decision: Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)

According to Cappellino(2020), the federal court system mainly follows Daubert while the state courts are divided between both of them.

FRYE TEST

Introduced in 1923, the Daubert test is being used in law courts ever since 1993(Anderson, n,d,). Thus standard states that an expert opinion is admissible in court as long as the scientific technique in which the opinion is based on is widely accepted as reliable in the relevant scientific community (Cappellino, 2020).

DAUBERT TEST

The Supreme court overruled Frye in federal courts saying that the law was inconsistent with the applicable evidentiary rules which are Rule 702 of the Federal Rules of Evidence(Cappellino, 2020). In other words, as stated by Cappellino(2020): "In Daubert, the Court held that the twin standards of Rule 702—relevance and reliability—are incompatible with the stricter “general acceptance” test".


However, the Daubert standard later on evolved to be applicable to expert testimonies that are not scientific. The range of cases that Daubert covers are broadened and was held by the supreme court that it is applicable to witnesses that have non-scientific specialised knowledge which is specified in Rule 702(Cappellino, 2020).

                                                          (Brooks , n.d.)

In relation to Digital Forensics

Both of these rules could relate to Digital forensics:

       FRYE TEST

1. In relation to the Frye test, evidence could be accepted in court as long as the tools and techniques used by the forensic analyst are reliable and widely accepted within the Digital Forensics community.
2. Moreover, the judge in charge of the trial might also ask about the investigators' reliance on the application of digital forensics principles and whether the investigator relied on his/her skills and experience or not(Meyers and Rogers, 2005).

        DAUBERT TEST

1. In relation to the Daubert test, commercial toolsets used by analysts must provide strict details of the known error rates.
2. However, as some vendors do not publish the information regarding the error-rates or some third party products may have limited testing for error rates, an investigator is still expected to generate a hash value(digest) for the actual evidence. This hash-value could prove as an assurance that the digital image has not been corrupted and is actually a true copy(Meyers and Rogers, 2005). 

References:

Anderson, P., (n.d). Difference Between Daubert And Frye. [online] Stepbystep.com. Available at: <https://www.stepbystep.com/difference-between-daubert-and-frye-104996/#:~:text=Frye%20test%20is%20related%20only%20to%20scientific%20knowledge%2C,as%20the%20authentic%20way%20of%20producing%20scientific%20evidence.> [Accessed 2 December 2020].

Brooks, I., (n.d.). Chapter 6 Judicial Notice And Privileges Of Witnesses. - Ppt Download. [online] Slideplayer.com. Available at: <https://slideplayer.com/slide/6232801/> [Accessed 11 December 2020].

Cappellino, A., (2020). Daubert Vs. Frye: Navigating The Standards Of Admissibility For Expert Testimony. [online] Expert Institute. Available at: <https://www.expertinstitute.com/resources/insights/daubert-vs-frye-navigating-the-standards-of-admissibility-for-expert-testimony/> [Accessed 2 December 2020].

Meyers, M. and Rogers, M., (2005). DIGITAL FORENSICS: MEETING THE CHALLENGES OF SCIENTIFIC EVIDENCE. [ebook] pp.44-45. Available at: <https://link.springer.com/content/pdf/10.1007%2F0-387-31163-7_4.pdf> [Accessed 11 December 2020].

Writer, S., (2020). What Are Frye And Daubert Standards?. [online] Reference.com. Available at: <https://www.reference.com/world-view/frye-daubert-standards-604b657fb1211d94> [Accessed 2 December 2020].