Twice in the last few weeks I have been tendered UFED reports generated by "experts" who are Cellebrite certified examiners. Both times the data I received was misleadingly incomplete. In one example a cell phone was searched using the Cellebrite software. The full data scan revealed that multiple images had not been accessed (modified) in the relevant time range. The officers completed their summary report neglecting to place that information in the report. The judge assigned to motions wasn't very familiar with how UFED data is created and how the summary reports could differ. Since that case is a sex abuse case that is very dependent on the data mined from the device I filed a motion to quash the images arguing they are not relevant and could not have been sent to the other party (victim) in the case. I anticipate the detective who created the data analysis and report will have to agree with my position when he is under oath. I have a problem though in the manner the report fails to identify that very important piece of information. Had the detective included in his summary report that the images could not have been sent to the victim in the case it would have diminished the State's case greatly. The same detective also mischaracterized a Snapchat image as one that was sent to the victim. I questioned him under oath and he immediately admitted that he believed his report was in error as to that issue.
Courts rely upon data extraction when issuing subsequent warrants. The information should be complete and accurate when presented to a finder of fact. By hiding very important pieces of data the police are in essence skewing the facts to build a stronger case against the defendant.
The second case I have reviewed involved a drug trafficking case wherein I had not received a full UFED report. The detective sent me only a small portion of the data mined from my client's phone. The portion sent was of course very damning. I am in the process of requesting the full report. I believe that only a small portion was sent to me in order to protect other "snitches" or sources discovered by law enforcement in that case. I imagine they don't want me to obtain that information since my client will then know who these persons are. However, my client is entitled to full disclosure in this type of case.
Be diligent when reviewing the UFED reports. I know they are voluminous and take a lot of time to review. However, a full review can sometimes reveal very important facts that can help a client either get the charge dismissed or reduced.
An update to this story - On 8/29/2018 I was forced to file a motion to bar evidence or in the alternative to continue the trial setting two business days away from jury trial! It goes without saying that the time expended to prep the case for trial was excessive due to the voluminous data retrieved from my client's cell phone. The reason for the continuance is that a day before the motion was filed I received a Blue Ray disc containing 14,600 pages of additional data from my client's cell phone. With only 2 business days before trial there was no way a thorough review of the data was going to take place as well as my final trial prep. The judge denied my motion to suppress but granted the motion to continue.
I believe the best manner to accomplish the goal of complete discovery in the future related to UFED is to specially set every motion for discovery in a case where data extraction has occurred and requesting the court to place a final deadline on production of discovery upon the State. The halfhazard manner in which the State complied with discovery in this case is not the way it should occur.
