Don't Push That Button!

I hope there’s more to this March 6, 2008, Spokesman-Review story headlined “Phone evidence accidentally erased”. In case the story link won’t connect (I’m not a subscriber to the S-R), here are the basic facts.

A man on trial for vehicular homicide was allegedly using his cellular telephone when the car he was driving collided with another vehicle. Five occupants in the other vehicle were killed. The cellular telephone, more accurately the information stored electronically in the telephone’s circuits, was likely to be evidence at the man’s trial.

But approximately a month ago prosecutors, accident investigators and attorneys for the defendant met at the Washington State Patrol’s Spokane office to examine evidence for defendant’s upcoming trial. During the course of that examination, defense counsel was allowed to handle the cell phone. The cell phone was then plugged in to a power supply, and defense counsel was further allowed to turn on the phone’s power. While defense counsel was handling the phone, the data created during the phone call in progress when the accident occurred was altered, by some counts erased. This was reportedly because the defense counsel had hit the phone’s ”send” button. The trial judge has determined that defense counsel did not intentionally destroy the evidentiary value of the data stored in the cell phone.

The newspaper story strongly suggests that while the cell phone had been properly booked into evidence, it had not been examined and analyzed by qualified evidence technicians trained and skilled in the recognition, retrieval, storage, and documentation of electronically stored evidence.

Why had the electronically stored evidence in that phone not been properly processed before the phone was handled in a manner that changed and maybe destroyed its evidentiary value? Procedures for properly preserving cell phone evidence were established in the mid-1980’s. I was personally involved in developing the techniques used by the US Secret Service, but other federal agencies including the FBI and Air Force Office of Special Investigations were doing it, too.

I suspect the prosecutor and the judge will have some serious questions about why the Washington State Patrol had apparently failed to process the electronically stored evidence before allowing the cell phone to be handled by anyone other than qualified technicians. Those would be the right questions to ask.

Addendum on 03-07-2008: The headline mentioned in the first paragraph of this post was the one used when the article was first posted on Thursday, 03-06-2008. The headline was changed this morning although the URL remained the same.