Understanding Technological Evidence for the Legal Professional: 101 the Basics is a technology guide written specifically for attorneys, judges, paralegals, police and prosecutors.  The first section of the book examines a grave example of domestic violence in a child custody case in San Bernardino California in 2009.  The Tagle v. Garcia case ended with the death of the child and the father’s suicide, while exercising his “right” to have visitation with their nine-month-old baby.

The remainder of the book provides an easy to digest, basic overview of technology to help legal professionals better articulate search warrants to judges, and to help judges better understand the evidence presented on a day to day basis.  It is vitally important that courts in general understand technology and its integration into our daily lives.  However, it is a life and death matter that family court evaluators, attorneys and judges understand this technology as it applies to cases involving domestic violence and abuse.

What was it about the Tagle v. Garcia child custody case that made it so media worthy?  Katie Tagle attempted to submit ten different kinds of technologically based evidence.  Why?  A young woman in her early twenties, she has lived her entire life in a completely wired world.  Why would she even imagine a judge would not understand her world?

Perpetrators of domestic violence are successful because they rely upon the assertion of a public persona that contradicts their private use of violence and intimidation.  Their comfort level with this duality makes them better equipped for misrepresenting the truth in court.  Perpetrators privately use intimidation and threats of violence to control their targets.  Often, having control over the couples’ children is the most effective means, as a loving mother will do almost anything to protect her children from harm.  The use of electronic communication; emails, text messages, voice messages, and social media to keep tabs on the victim provide effective means of controlling them.  Both police and the courthouse players are drastically behind the learning curve when it comes to understanding the intent and authenticity of electronic evidence.

The third consecutive judge in the Tagle v. Garcia case failed to provide Ms. Tagle a permanent order of protection after two months of repeatedly requesting protection from the legal system.   Judge Lemkau went so far as to call Ms. Tagle a liar multiple times within a five minute hearing, and to accuse her of “manufacturing” the electronic evidence.  Judge Lemkau has repeatedly asserted that it was not his responsibility to verify the veracity of her evidence when he refused to protect Wyatt and Katie.  Yet isn’t assessing, or “judging” the authenticity of evidence what they do in a myriad of other ways?   While many may argue that the courts can not afford to handle “high conflict cases” differently, what were the real costs of failing to address the domestic violence as a criminal issue and a safety issue to Ms. Tagle and their son Wyatt?

• The most obvious costs were the lives of both Wyatt and Stephen Garcia; something that could have easily been prevented.
• The devastating loss to Wyatt’s mother Katie Tagle, and both the Tagle and Garcia families.
• The financial cost of a helicopter assisted high speed chase of eight police cruisers across icy roads in a ski resort area.
• The risk to the community when Stephen Garcia recklessly unleashed his rage.
• The professional devastation of Judge Lemkau’s judicial career and the personal sense of guilt and responsibility he privately suffers.
• The devastating effect upon Judge Lemkau’s family witnessing his demonization as a “baby killer” in their community.
• The erosion of trust and respect of the legal system in their community as well as across the country.

As a non-custodial mother, I had the experience of “not being heard” when I attempted to present what seemed painfully obvious electronic evidence to attorneys, judges, GALs, therapists, and other parties in my own custody case in 2006.  The reverberations shook my life for years to come.  I made a serious strategic error in terms of my assumption that the legal profession would be on top of the application of technology, and its evidence, within both the criminal and family court systems.  Many other people, exposed to countless examples of forensic science on television naturally assume the real world legal system is equipped to handle our technical evidence too.

Think again.  Hardly anything could be further from the truth.

Consider where we are in the legal learning curve, and the average age of the participants;  we have the people with the greatest technology gap, holding the most powerful positions.  Juxtaposed, the people with the least amount of power and legal savvy live with the most technical integration in their lives.  Judges, who are naturally often 25 to 50 years older than legal parties; have the least technical integration and comprehension within their professional and personal lives.   The isolating nature of their work prevents them from using this integration in the same way the rest of society does.   Judges and litigants could not possibly be further apart.

Legal professionals must have a “real world” comparison in order to understand the intent behind the communication.  An email is the equivalent of a letter that was posted through the US Postal Service.  A blog entry, or email posting is the same as publishing an article in a magazine or newspaper.  A text message is like a note passed between students in class.  Social Media is like gossiping in the hallways at work or school, and the audience is controlled by the person posting the content.  The Internet is tightly controlled, and it isn’t that hard to trace where, and who, posted information.  Cell phones also provide vital geographic and chronological data.  Using a combination of this data, law enforcement and the courts have the ability to authenticate almost any type of electronic evidence.

Policemen need to be able to articulate the technical issues surrounding a hidden network embedded within the walls of a pedophiles home when asking for a search warrant; they must know how to detect a network that gives access to the horde of pornographic photographs of children.  Right now, most police have the ability to authenticate threatening email communications from their squad cards, but the software and training has not been implemented.  Attorneys can not possibly understand what their clients are sharing, beyond their hysteria, if they don’t know how to dissect the technology behind what was presented by their client.  A Judge’s ability to discern the authenticity, intent and veracity of technologically based evidence is genuinely a life and death issue, and the credibility of our justice system, and lives of our families depend on their ability to get it right quickly.

Liora Farkovitz is a business and product development strategist, and the author of “Understanding Technological Evidence for the Legal Professional: 101 the Basics”. It was edited by Mindy Nemoff, a virtual paralegal.  This guide is the first step towards addressing this urgent need.  TechnologicalEvidence.com is  releasing CLE courses to train courthouse professionals in the most basic aspects of technology.  We’ll be training police, attorneys, judges, advocates and even litigants online and in person.  We’re happy to speak at public engagements, or to provide customized on-site training for any professional group.  We are interested in learning of your “real life” electronic evidence stories as well.  Please click here to visit our site for current resources and special offers.