Document Nightmare: Tools for Data Management in Criminal Cases
Criminal cases are becoming civil litigation. Body-worn camera footage, social media, cell phone dumps, recorded witness interviews, and other electronically stored information (“ESI”) make every serious felony a data management puzzle. The tools and technology used in massive civil cases by huge firms are often out of reach of normal and smaller offices due to cost, volume, or other limiting factors. However, some programs and strategies have been modified for a more hands-on “by-the-lawyer” approach used by Federal Defender’s offices and firms like the one owned by Horowitz. Likewise, modern discovery companies have catered their products to be small-firm friendly and therefore require very little training for the modern lawyer to become proficient. Outlined below are just some of the basics.
1. Processing is Intelligence
Your brain can organize files dozens of different ways: by date, author, file type (e-mail or text), character, substance, relevance, related issue, and so on. Software recommended in this article such as Logikcull will provide subsets of documents based upon a wide variety of search criteria. When I am working on a criminal case, I upload police reports the way they were created – as separate reports by different officers, dispatchers and other personnel. Forget the use of the word “report.” A report equals a manila folder with papers in it. An individual can create all sorts of manila folders. For example, I can create a search where only a single author’s reports are produced. I can alternatively create a search where the person is not the author but is mentioned by others. I can selectively create a report that mentions the word “guns.” The options are as endless as your imagination. The system we use allows for rapid bulk keyword searching so that you can create a grouping of search words – whether Boolean searches, proximity searches, wildcard searches, or all of the above – all in one large, comprehensive search.
2. There are No Videos Without Transcripts
There is no such thing as a standalone audio or video recording. Use Rev, Scribie, GMR Transcription or another service to transcribe your videos and time stamp the transcript to correspond to the recording. Unless the video is simply a dog burping, transcribe it. Logikcull, Relativity, and similar programs automatically generate time stamped transcripts when you upload the video files to the system.
3. Metadata is Useless Until it Isn’t
Clicking “File” and “Info” on a Word document tells you who first created it and who last edited it. Substance such as this “who” and “last edited” is called metadata. Logikcull and similar programs allow you to comb documents and, with the click of a button, you can see the metadata. Metadata includes “all of the contextual, processing, and use information needed to identify and certify the scope, authenticity, and integrity of active or archival electronic information or records.” Metadata is not limited to the information depicting who sent and received an e-mail and when. Full metadata can show complex pathways, forwarding, dates, times and more detailed information. Sometimes this metadata can show whether the e-mail provided to you has been altered or if the attachment to the e-mail was edited before it was discovered to you. Metadata isn’t always relevant, and sometimes only certain types of metadata will be relevant to a case. In a recent case, a letter to an insurance company (alleged) crime victim was signed by the prosecutor but the metadata showed that it was authored by his investigator. The letter failed to ask for key exculpatory evidence and the metadata supported our defense of a poor investigation led by a biased police officer.
4. Get the Real Data
Civil lawyers get the “native format” of documents. Criminal attorneys are used to obtaining PDF printouts that obscure metadata. In many cases, an absence of metadata may not matter, but sometimes it does. Have you ever seen a case where you wonder whether an officer opened their computer and changed some (key) part of the report? The original report date remains but the new report (too) conveniently tracks later located evidence. Without the report in native format, you can not prove the date that the report was altered, when, or how. You need to demand the individual report in the original form that it was created.
There is little case law on your right to discovery provided in “native format” with metadata but the civil discovery cases strongly support the argument that discovery in formats that hide metadata do not comply with the law. See for example, Ellis v Toshiba Am. Info. Sys., Inc. (2013) 218 Cal.App.4th 853, 858-859, holding that if the requesting party shows that the format is not “reasonably usable” and that the native format, with accompanying metadata, meets the criteria of reasonably usable, while the PDF format does not, the original “native” format must be provided. (See also Cal. Judges Benchbook Civ. Proc. Discovery,20.1; Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 8:1458.) In terms of criminal cases, civil cases can be cited, and the fact remains that large PDF police report files and references to e-mails and photographs without metadata are not full provisions of all of the information in the discovery. The Committee Notes on Rules for the Federal Rules of Criminal Procedure’s 2009 Amendment specify that the term “ESI” is drawn from Rule 34(a) of the Federal Rules of Civil Procedure. (See also United States v. O’Keefe (2008) 537 F.Supp.2d 14.)
5. Other Programs
The massive document managers are not the end of the processing. Years ago I helped develop the protocols to use Casemap and dtSearch for trial preparation and at trial. Now, you can use Logikcull to find the most relevant documents in your case and send them electronically to Casemap. Within Casemap, you can open each document and highlight small portions relevant to your case. For example, if a witness says “The shooter had a blue shirt,” you would highlight that element and it gets sent to a “FACT” field. That “FACT” is automatically linked to the source document. Each fact can be further refined. You can create custom issue fields such as “Shooter Described,” “Number of Shots,” “My Client Mentioned by Name,” “Clothing Description.” The “blue shirt” fact gets a check mark in the box for the “Shooter Described” and “Clothing Description” issue (or maybe only the “Clothing Description” issue). Later, after you have entered hundreds of similar facts you can tell Casemap to create a report that shows the FACT that links to each of the ISSUES you created. Each fact always has a link so you can immediately go to the source document.
Finally, you can also use dtSearch which indexes your documents and lets you do a precise Boolean search to find key elements. This tool is multifaceted and is useful from initial discovery analysis all the way through trial. It allows you to search and sort through tens of thousands of documents quickly. For example, if a witness on the stand testifies that the shooter was wearing a blue shirt and your client was wearing a blue shirt – search for “shirt” within ten words of [shooter or shot or gun or bullets]. You may find this witness’ statement about the color of your client’s shirt or someone else’s. If someone said “red” instead of “blue,” good luck, but I am sure you’ll find a way to get that into evidence.
6. It’s Free (Kind of)
Using Logikcull, Casemap and dtSearch can cost. Under the ABA Model Rule 1.5 or the California Rules of Professional Conduct, Rule 1.5, which govern fees, there is no prohibition against charging clients the costs for software that you use on their case. If your client cannot afford the added expense of these necessary items, you can petition the court for funding. On appointed cases, it is a necessary cost.
This is a quick overview. If you want to learn more about these programs, the Federal Public Defender’s Offices have excellent training materials. Many of the software vendors mentioned here, as well as other mainstream vendors, include hands-on training as part of the onboarding package as well.