Use of independent laboratory tests

Use of independent laboratory tests

Discovery procedures traditionally allow defense counsel to examine the real or scientific evidence in the possession of the police crime lab. The defense attorney may also seek an order permitting independent tests to be made on this evidence for purposes of comparison. Independent testing can be extremely important in preparing the defense. The tests may aid counsel in cross-examining the state's expert witnesses at trial. The same considerations apply to computer crime situations. Independent testing may involve running the program on the victim's computer and running it on another similar computer to see if the same results are produced. However, the question of similarity of two computers is not always easily resolved, particularly if the computer involved is an old one that is no longer widely used in the industry.

Often this issue will require complex negotiation of how the program is to be copied, the machine on which it is to be run, and the protection of any proprietary information contained in the program. The defense attorney may want to get a court order allowing inspection by an auditor of the controls in the victim's computerized accounting system, if accounting is a substantial part of the case.FN45

The value of such an investigation may be considerable. In a case in which the defendant has been charged with theft from a computer system by means of changing the programming, it will be useful to have the opinion of an independent programmer or system analyst on the feasibility of the defendant having accomplished what he or she is alleged to have accomplished.