The Digital Evidence Trap: What Lawyers Keep Missing (and How to Fix It)

In this episode of the Law Practice Today podcast, we dive deep into the world of digital evidence and its critical role in criminal defense. Host Terrell and guest Cole Popkin, head of the Digital Forensic Examinations Division at Proven Data, discuss the intricacies of digital footprints, common mistakes lawyers make with digital evidence, and the impact of AI on forensic analysis. Cole shares insights from his extensive experience on both the prosecution and defense sides, highlighting the importance of creative problem-solving in forensic investigations. Tune in to learn how strategic digital analysis can significantly influence the outcomes of legal cases.

00:00 Introduction to Digital Evidence
00:09 Welcome and Podcast Overview
00:58 Importance of Digital Footprints
01:22 Guest Introduction: Cole Popkin
01:36 Cole's Background and Passion for Digital Evidence
03:18 Evolution of Forensic Technology
04:11 Starting Conversations About Digital Evidence
04:38 Civil vs. Criminal Cases in Digital Evidence
07:27 Attorney-Client Privilege and Digital Evidence
09:23 AI and Digital Footprints
11:10 Highlights from Cole's Article
15:52 Common Mistakes Lawyers Make with Digital Evidence
16:40 Case Study: Expert Height Analysis
18:30 Future of Digital Evidence and AI
20:24 Conclusion and Contact Information

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Transcript

SPEAKER_02 0:53

Ones and zeros really are probably the most clear form of evidence and therefore justice that you can really get in today's day and age. And it's on both sides. Like I've worked both with the prosecution at the state police on their ICAC unit, as well as doing more of the criminal defense side of things that I'm doing now.

SPEAKER_00 1:10

Welcome to the Law Practice Today podcast, where you will hear updates on hot topics, tips, and ideas that can help you run a more successful law practice. Now, this show is brought to you by the Law Practice Division of the American Bar Association. So that means the views and the opinions shared on this podcast do not represent the ABA or the Law Practice Division, but they are the views of each individual participant. And any products or services discussed do not represent any kind of endorsement from the ABA or the Law Practice Division. Now let's get back to the show.

SPEAKER_01 1:49

Welcome back to another episode of the Law Practice Podcast. Today we're going to be talking about something that every law firm should be keeping in mind. If you're in criminal defense, turn the volume up and really pay attention because this is probably going to hit home for you much faster than other practices. But that doesn't mean if you don't practice criminal defense that you shouldn't listen, I think there is enough in here for you as well. And we're going to be talking about what people usually get wrong when it comes down to digital evidence. And we brought Cole Popkin on. Welcome to the show, Cole. How are you? Hey, I'm doing great. Thanks so much for having me today. Absolutely. Now, before we jump into what people are getting wrong about digital evidence, tell us a little bit about your background and why this topic became a passion for you.

SPEAKER_02 2:40

Yeah, great question. I knew I always wanted to do something in the criminal defense field. And I think just various forms of social justice are really important to me. I was an inner city youth director and kind of saw some more ugly sides about how justice is often distributed or not distributed. And I think specifically, I saw a lot of lies and have seen a lot of lies just in litigation, in accusations. When I think what really got me into the digital side of things is when you know how to read them, ones and zeros really are probably the most clear form of evidence and therefore justice that you can really get in today's day and age. And it's on both sides. Like I've worked both with the prosecution at state police on their ICAC unit, as well as doing more of the criminal defense side of things that I'm doing now.

SPEAKER_01 3:31

I think this is such an important topic because at this point in our lives, there's no way getting around a digital footprint. Like all of us have multiple digital footprints everywhere. And no matter what type of case that you're going into court for, it's like there is a digital footprint attached to just about everything that we do. I think is it's a very good topic. So I guess going from that passion that you had about just the criminal defense, the criminal justice process, and all of the work that you had done before. It's just like, how does that evolve into what does your world look like now in the type of work that you do?

SPEAKER_02 4:11

Yeah, great question. Here's one of my favorite parts about the forensic field. It depends on who you ask. But my personal opinion, the field itself has really only existed for about 15 to 20 years. That's not a whole lot of time, and technology has obviously expanded and grown a lot quicker than that to where forensics is completely different from five years ago, from 10 years ago, to where it is now. So I think probably one of the biggest things that I find myself doing is creative solutions to different things. And I'm sure all my fellow analysts out there come up with various situations where it hasn't really happened before. It's a completely new scenario, which requires a new solution to be developed. You're not going to get very far if you're just relying on tools or various types of training. A lot of it really does require a creative mindset and out-of-the-box thinking.

SPEAKER_01 5:03

Gotcha. When it comes down to okay, all right, how do I find the evidence that I need to support the case that I'm bringing forward? How do you even start that conversation with a lawyer who's just, hey, we're trying to look for evidence. There's a million different places, let's say thousands to millions of places that you can look to even try to start. So, like, how do you even start that conversation with them?

SPEAKER_02 5:27

Yeah, it's a great question. I'm going to break that up into kind of two different sections because criminal law and civil law cases are going to be completely different. So take Civil, for example. Most of the various types of solutions out there are things that no one really knows exist. So the best thing that I usually do when a client brings me a civil solution matter, I'm like, start at the beginning. Tell me the more I know about the case, the more likely I can come up with a creative solution that's going to help you figure out what needs to be done here. I'll give you a brief example. We had an oil deal. There was some fraudulent safety checks that were conducted and then signed off on a couple of different PDF files. So it was starting off in a civil and then a likely will move into criminal in a number of years from now. But so from there, I'm like, okay, we have a PDF file, right? So the first step is what's the digital evidence here? And then more often than not, if it's a civil case, there's going to be some type of fraud that's existed, whether that's going to be the PDF file, so like the fraudulent signatures, you can actually reverse engineer a PDF file to determine when something was signed. I've had other scenarios where partners are concerned about their coworkers or partners embezzling money and switching things up on a Microsoft Excel sheet. There's also a way you can reverse engineer that and figure out what was done before. Now, criminal law is a little bit easier to start and then harder as things go. Because litigation 101, the burden of proof is on the prosecution. So the prosecution is typically the ones that are presenting the digital evidence for us to work with. If they didn't seize devices, that's usually where we'll start with okay, what's the best thing that we can do to build out a defense? But I can give a few more examples.

SPEAKER_01 7:29

I don't know if that fully answers your question or not. Gotcha. No, that I mean that I think that that starts to make some sense for me because I'll say, as a person who's never personally gone through the process, let's take, like I said, from a criminal defense standpoint, his case starts, people are trying to get evidence. And I've talked to enough criminal defense attorneys to where it's like a lot of times they're starting off by, okay, all right, their client is explaining to them what happened, knowing that, hey, there's probably a digital footprint for just about everything we do. It's just if a criminal defense attorney is like, all right, I have the testimony, the word of my client of what happened. And so if they wanted to start saying, okay, how do I start figuring out what digital evidence is out there around this? So in a situation like that, would they call a person like you to say, hey, I have the word of their testimony, but I need to find out what else is out there.

SPEAKER_02 8:20

Exactly. I feel, and that's a big reason why we typically will only sign an attorney as the client, because then we can report our findings directly to the attorney and not the defendant in the case. So I it seems like half of what I do is, you know, helping the attorney decide, okay, is this person actually telling the truth, yes or no? And then from there, it's okay, what's the validity? Or even are they telling the truth in some things and not telling the truth in others? That's often a big one that we'll dig deeper as time goes.

SPEAKER_01 8:52

Gotcha. So this brings me to another point that I'm very interested in is that when you show up to meetings, especially there's so much stuff that happens virtually, and some digital recording tool shows up to the meeting as well. How discoverable are those things? Because I've had some conversations with some lawyers, and or even just some people, they feel like, hey, I own this digital recorder, so no one else can look into that. It's not accessible anywhere else. So I wonder how true that is.

SPEAKER_02 9:23

Yeah, that's a good question. Another reason why we'll be attained directly by the attorney is through the crow letter is a precedent, legally binding thing. So essentially, say you're the attorney and you're telling about the case. Everything that me and you say is going to be covered under attorney-client privilege. Whereas, say I'm you're the defendant in this situation and you retain me directly, that can later be subpoenaed by the prosecution or any other party, should it be deemed relevant. So, like that potentially say someone confesses to something or gives up some critical evidence in an email or a recorded phone call or something like that, and I have to turn that over. The case is looking a little bit rough at that point. So, usually most in to answer your question, most of that is going to be covered under attorney client privilege through the croll letter. Gotcha.

SPEAKER_01 10:15

Okay. All right. So I guess when it comes down to this whole journey of there's digital footprints everywhere. And I'm thinking about now in situations where people are using AI more and more, does AI start to expand where your digital footprint is going? And it's like, how can you really tell, hey, if I'm using AI, like, where else is it spreading my digital footprint?

SPEAKER_02 10:43

Sure. Is it more of if I say something to Perplexity or Gemini or Chat GPT, is that part of a public data pool?

SPEAKER_01 10:52

Yeah. So it does it take it outside of my organization, which means like, hey, you're digitally, you're stepping in more places than you actually thought.

SPEAKER_02 11:02

That's a great question. From what I've heard, there is more accessible evidence that's being gathered through AI. Funny enough, I was actually just working on a case where I was going through, it was an employee misconduct case. So I was going through their Chad GPT history and seeing if there was any confessions in there because that is covered under what we're able to do as an analyst. So I guess my official advice is I would not trust any AI with any personal information. I would say even very limited information about your case is probably going to be the best. Because even if there is good privacy law in place right now, who's to know how long it's going to be there? So my professional opinion is I would I'd be very hesitant to consult with AI on your legal matters. Attorneys exist for a reason. I would say utilize them before you utilize anything with artificial intelligence.

SPEAKER_01 12:01

That makes a lot of sense. So I want to switch our attention a little bit to the article that you had written within one of the ABA publications. So if someone were to pick up that article, what are some of the top highlights that they should be like, hey, make sure you grasp these points by the time you get to the end of this?

SPEAKER_02 12:21

Yeah. Here's probably the most crucial one that I would say. There's a lot of analysts out there who know how to use tools. They know how to use Celebrate, they know to use Magnet Axiom, they can use Oxygen OS or you know any other big name forensic brands. That does not mean they're going to be certified and able to officially help you in your litigation proceeding. Most of what I do is the tools are there to help me, right? The tools work for me. I'll give you a little bit more of an understanding of what the tools really are. There's a term called parsing. It's a fancy term for it organizes data more clearly. So say I was to take your phone and I was to parse it through Celebrite. What Celebrite's going to do is it's going to get all of the raw data and then organize it for you. However, it's going to miss a lot of crucial elements of various forms of data. I'll give you an example. Essentially, we were trying to get location data to determine where someone was during a criminal incident. The initial cell phone dump didn't give us anything in regards to location. However, I did notice that they had installed a weather app on their phone. And then the way weather apps work is it pings a certain weather tower and you get that information from. So we were able to reverse engineer the specific database within the phone to determine which weather tower it was actually pinging off of. And then we were able to determine, okay, they're actually in a whole different region. They're not actually in the city where the crime had taken place. So that's just one example of the tools aren't going to pick up on all of the nitty-gritty things like that. Same for AI for that matter. AI is built to be a lab assistant, it's not built to be an analyst. There's a great film, uh Limitless, 2011. I don't know if you've seen it or not. Have you seen it? I'll give the premise of AI with forensic tools in one here. So you see that they in the movie, Bradley Cooper does really well at first when he takes that. I can't remember the name of the pill. I should probably remember that. He takes the pill, right? And it's like his mind is suddenly fixed, he can do everything properly, but then he becomes too dependent on it and he starts to crash out a little bit. And then later on in the movie, he learns to control it, not be super reliant on it. The same needs to happen for you know analysts with tools. Anyone can buy a relatively expensive celebrite license and then see what they can parse out with it. But a trained analyst who knows the bare bones of how the tools actually work, how the databases work, how the phones work, how the networks work, even, that's going to be the most important tool for you when it comes to. I'm sorry, that's gonna be the most important trait that an analyst needs to have to serve an attorney well.

SPEAKER_01 15:12

That makes a lot of sense because I think now we're in this phase where there's so much talked about AI and just how all powerful it is and all these amazing things. But I believe this, even from my aspect as an accountant, is just like you still need that strategic mind to be able to help you really cipher this because it may give you a lot of options, it may give you a lot of good data, but without the strategy to really bring it together, like I can understand why there's probably a ton of stuff that gets missed. Like you were saying, like with the cell phone, it's just like that cell phone data, like without a strategic mind, who would have thought the AI probably wouldn't, or the tool wouldn't have thought, hey, maybe we should look at this weather app and see where it's pinging.

SPEAKER_02 15:59

Exactly. The strategic is a great word for it, and I think I'm even gonna hint back at the AI is not creative. AI is inherently it takes away the creative problem solving. It can give you good suggestions, don't get me wrong. And I think it can be helpful, like I said, as a lab assistant type thing, more similar to how a paralegal will advise an attorney, but the paralegal isn't the person who's calling the shots in the case. That's the experienced professional.

SPEAKER_01 16:28

So I'm very curious as you think about the whole topic of digital evidence. We wrote the article on you know what lawyers are getting wrong when it comes down to digital evidence. If you had to summarize it, how would you summarize what are some of those things that lawyers are getting wrong when it comes to digital evidence?

SPEAKER_02 16:46

That's a great, there's a lot of various nitty-gritty type things with cases. I'll share most of my works in criminal defense. That's a little bit more where I'm geared toward. So here's the number one thing that I feel like attorneys often get wrong when it comes to handling evidence. So if someone pleads not guilty for something, most of the time the case is gonna hinder on where were they during the time of that incident? So we talked a little bit about location data, right, from the phones, and the tools aren't gonna pick up a lot of that. That's the number one thing that a lot of attorneys will miss out on is they don't know the various options that are available to determine where someone was during the time of crime or an incident takes place. Is that actually them at the crime scene? So I'll give you one of our most common services that I think is probably one of the things I geek out about and get the most excited about is in video footage, we do expert height analysis. So I'll tell you about a case that we had again, I can't remember the timeline. They'll blur together after a little while. But we had uh an armed robbery took place at a gas station. The video footage was from it, it was an Appalachi case. So it was we were appealing the verdict that had already been passed. The video footage was from, I believe, 2007, 2008. So it's incredibly grainy, it was relatively cheap. It was at a gas station and not the best part of town. Budget, budget cuts probably played a role in that. The video should have been thrown out as evidence. I don't know how they attributed to it being him in the video, but when we calculated the height of the person in the video, he was 5'11. Our client, according to his driver's license, was only 5'6. So there's no way that it could have been him. And this this poor, he's a great guy too, unfortunately had to serve I think he was five to ten years in prison for a crime that he very clearly didn't commit. And largely because the resources didn't exist at the time, and even just the attorneys, and no necessarily a fault of their own, weren't aware of various defense strategies that are actually available. So that's a big part of what it is that we do is we're creative problem solvers, right? You have a problem, you believe the client. Okay, how can we how can we prove this in court?

SPEAKER_01 19:05

I feel like that's gonna become so much more useful. And I think even just that case of just like, all right, you're in trial, someone brings in evidence, and not realizing, like, hey, there's ways we can validate whether this evidence is even legitimate for the case. Just imagine, like, with as big as what Surah has become with the digital fakes that are out there, I feel like there's gonna be such an even bigger need, people who understand how to validate this digital evidence before it gets brought into a case.

SPEAKER_02 19:41

Yeah, absolutely. And it's AI's fastly evolving. So it's one of those things where a tool can't really always detect if it's AI or not. However, what can detect if something's AI or not is gonna think how to best describe this. So humans read a language called ASCII or ASE2, which is alphanumeric, right? ABC D E F G 1, 2, 3, 4, 5, etc. Computers read binary, ones and zeros solely. There's this whole kind of in-between language called hexadecimal where you see the patterns of a file. That's where all the metadata exists in a file. Yes, Sora and I can't remember the names of the other ones. They make great, hilarious content that I love on Instagram Rails and so on and so forth, but they're not going to be able to hold up in court. And I think it's an uphill battle, but we as analysts, I'm pretty confident, are gonna be able to determine what is AI and what isn't going to be AI. Gotcha.

SPEAKER_01 20:41

I think about that from also the audio aspect as well. And even like you mentioned some of the basic examples of if someone, you know, doctors a PDF because they're PDF editors all over the place to where I can see definitely the need of having a good analyst that we can say, all right, we've been presented with this digital evidence. How do we determine whether this is legitimate or not? Absolutely.

SPEAKER_02 21:05

It's crucial. And if I could put an analyst on every single case, I would. Unfortunately, expenses and budget just isn't quite there for a lot of clients.

SPEAKER_01 21:16

Gotcha. Now, I know that there's probably so much more we could talk about on this topic, but if people want to learn more about this or find you online, where should they go to look for you and find you online?

SPEAKER_02 21:26

Yeah, absolutely. I'm pretty active on LinkedIn, so feel free to look me up. It's just Cole Popkin. And then my current place of employment that I will be at for quite a while is a company called Proven Data. There I serve as the uh division head of the digital forensic examinations division. Feel free to shoot me an email at cole at proven data.com. So C O L E at P R O V as Invector, E-N-D-A-T-A.com.

SPEAKER_01 21:53

Awesome. I love it. Cole, thank you so much for coming on and thank you for being an amazing guest. Thank you so much for having me.

SPEAKER_00 22:00

Thanks for tuning in to the Law Practice Today podcast, where we bring you conversations and tips on how to run a more effective law practice. Now, if you want to hear more, be sure to stop by the American Bar Association website to see more updates on new episodes as they come out and other awesome resources that are offered by the American Bar Association.

SPEAKER_01 22:25

Thanks for tuning in.