Structure of the Legal System
CS593: Digital Forensics — D. Kevin McGrath
- Structure of the Legal System
Overview
Digital forensics experts must be able to testify in civil lawsuits and criminal trials. That means working with legal actors — judges, prosecutors, defense attorneys, and others. This lecture focuses on who those people are, how disputes escalate into courtroom proceedings, and how the workgroup of actors that staffs a courtroom operates. Importantly, DF investigations are not only about catching bad guys: forensics expertise is equally valuable for defending people who have been wrongly accused.
Disputes and the U.S. Legal System
Disputes are the raw materials of a legal system. Legal institutions exist to help people resolve disputes they cannot resolve on their own.
How Disputes Develop
Researchers have identified three stages through which a dispute escalates (Felstiner et al., 1980–1981):
- Naming stage: A person recognizes that she has been injured. This can be immediate (identity theft) or delayed (asbestos exposure).
- Blaming stage: The injured party attributes responsibility for the injury to someone else. Self-blame interrupts the disputing process; disputes require blaming another.
- Claiming stage: The injured party demands redress — compensation, prosecution, an apology, or something else.
A dispute arises when the demand for redress is denied. At any point, a party may walk away (“lumping it”).
The Disputing Pyramid
The U.S. is not actually the hyper-litigious society it is sometimes portrayed to be. The disputing pyramid illustrates the attrition of disputes at each stage, from the broad base of social relations through grievances, claims, disputes, hiring lawyers, court filings, and finally — rarely — verdicts.
Most disputes are resolved before any stage of formal legal proceedings. Litigation is taxing, expensive, and heavily weighted toward parties with more resources. The number of lawsuits filed is tiny compared to the number of grievances in daily life.
The U.S. Legal System
The U.S. legal system is adversarial: the injured party and the party accused of causing the injury each present their version of facts to a neutral third party (judge or jury), who decides the outcome. Both sides choose what evidence to present and which experts to hire.
This contrasts with inquisitorial systems (common in Europe and much of Asia), where the judge controls what evidence is heard and directs parties to produce what the judge considers most important. In the U.S., the power to shape what the jury hears rests with the lawyers — not the court.
As a DF expert working in the U.S., you will always be working for one side or the other, not for some neutral arbiter.
Consequences of the Adversarial System
- Evidence presentation is confusing. Evidence emerges piecemeal through questions and answers, often about things jurors don’t fully understand.
- “The haves come out ahead” (Galanter 1974). Parties with more resources can hire better lawyers and experts, afford long delays, and shape legal precedent itself.
- Casey Anthony example: Prosecutors based their case heavily on forensic evidence, including digital evidence (a software bug caused one search to be reported as 64). Anthony’s well-funded defense team undermined every piece of forensic evidence. She was acquitted not because she was innocent but because the prosecution failed to prove its case — illustrating that a well-resourced defendant can effectively counter forensic evidence.
Criminal vs. Civil Justice Systems
| U.S. Civil Justice System | U.S. Criminal Justice System | |
|---|---|---|
| Parties | Plaintiffs and Defendants (private parties) | Prosecutors and Defendants (the State) |
| Goal | Compensation | Punishment |
| Standard of proof | Preponderance of the evidence (~51%) | Beyond a reasonable doubt (~85%) |
Key points:
- In criminal cases, the state is the injured party — not the victim. Prosecutors represent the state’s interests, which may differ from the victim’s.
- Fines in criminal cases go to the state, not the victim.
- Civil work is often more lucrative for DF experts; criminal labs are frequently underfunded.
Courtroom Workgroups
Courts are adversarial, but they are also organizations. The concept of the courtroom workgroup captures the fact that judges, prosecutors, defense attorneys, and supporting staff work together repeatedly in recognizable patterns.
Key features of workgroups:
- Members know each other well; often came from the same law schools, attend the same churches.
- The only frequent “stranger” in a courtroom is the defendant.
- Because these actors work together daily over years, they must cooperate even while being adversaries — maintaining relationships is essential.
Courtroom Workgroup Goals
Eisenstein and Jacob (1977) identify four goals organized along two axes:
| External Goals | Internal Goals | |
|---|---|---|
| Expressive function | Doing Justice | Maintaining Group Cohesion |
| Instrumental function | Disposing of Case Load | Reducing Uncertainty |
- Doing justice means different things to different actors: for prosecutors it means putting bad people in prison; for defense attorneys it means ensuring every constitutional protection is honored.
- Disposing of case load: courts are overburdened. Everyone — prosecutors, defense attorneys, judges — has an interest in moving cases through quickly.
- Maintaining group cohesion: actors must be able to work together the next day, next week, next year. Adversarial posturing “switches off” when court recesses.
- Reducing uncertainty: witnesses are unpredictable. A DF expert on the stand introduces enormous uncertainty — they don’t know you, don’t trust you, and don’t know what you’ll say. Fear of unpredictable witnesses is one reason cases settle before trial.
Members of the Courtroom Workgroup
- Judge: officially in charge; decides what evidence is admitted, whether expert credentials are sufficient, whether testimony is too confusing or prejudicial. Authority is reinforced architecturally (elevated bench, robe). However, the judge cannot hire or fire attorneys who appear before her.
- Prosecutors: attorneys for the state; subject to political pressure (many are elected); operate as bureaucrats responding to priorities from above; enjoy free investigative resources from police. Wrongful conviction rate in the U.S. is approximately 15%, in part because prosecutors sometimes do not fully disclose exculpatory evidence.
- Defense attorneys: three types:
- Fee-for-service lawyers: paid privately; quality and price vary enormously.
- Public defenders: state employees, typically with double the caseloads of prosecutors and very limited client contact time.
- Court-appointed lawyers: often the worst option; underemployed, sometimes have substance abuse or fraud records; associated with the highest rates of wrongful conviction.
- Police: investigative arm of the prosecution; their relationship with prosecutors is complicated — they can be overzealous.
- Bailiffs, sheriffs, clerks, court reporters: keep order and generate records.
- Social workers, probation officers, victims’ assistants: attached to the criminal justice system to make it more accessible to victims.
- Defendants, complainants, witnesses, families, public: outsiders to the workgroup whose interests may not be well protected by it.
Lawyers: Gatekeepers to the Legal System
Lawyers serve three main functions:
- Providing information about legal rules and institutions (including inside knowledge about specific judges).
- Giving advice on how to arrange affairs to minimize legal costs and maximize legal benefits.
- Representing clients in court: navigating the procedural rules, paperwork, and ritual of trials.
Resources matter enormously: large law firms can hire the best experts, sustain lengthy litigation, and shape legal standards in future cases through precedent. Ordinary people with ordinary lawyers are at a significant disadvantage.
Prosecutors
- Represent the state, not the victim.
- Subject to political pressure: many are elected officials; high-profile decisions affect electability.
- Operate as bureaucrats: respond to priorities from above (e.g., the U.S. focus on drug crime for 25+ years).
- Enjoy free investigative services from police; crime labs report to the same political actors as prosecutors.
- Exercise prosecutorial discretion: can choose what charges to file, how serious to make them, or whether to pursue charges at all.
Defense Attorneys
- Fee-for-service: the best cost $500–$1,000/hour; quality varies widely.
- Public defenders: overworked, underpaid, but benefit from established relationships with prosecutors and often get decent plea deals.
- Court-appointed lawyers: often incompetent; disproportionately implicated in wrongful convictions.
Plea Bargains
Most criminal cases never reach a jury because the courtroom workgroup pressures defendants into plea bargains. Prosecutors use evidence strength to induce guilty pleas; judges warn defendants that conviction at trial will bring harsher sentences; defense attorneys (worried about being paid and about uncertainty) urge clients to accept deals.
Statistics: 90% of felonies and 98% of misdemeanors are resolved by plea bargain. This raises questions about whether the U.S. adversarial system is actually adversarial, or simply a system of negotiated settlements.
The same dynamic occurs in civil cases: the vast majority settle before trial.