April 11, 2014
CSI VP Josh Ottenberg Addresses
On October 19, CSI’s VP of Marketing and Sales, Joshua Ottenberg, Esq., joined many of his former colleagues at Atlantic City’s Revel Casino for the 2013 Annual Prosecutors’ College. Ottenberg, who served as Acting Camden County Prosecutor before joining CSI earlier last year, gave a presentation at the convention on trends in technology and their impact on the law in New Jersey.
The two hour presentation covered a broad range of topics impacting New Jersey’s county prosecutors’ offices, including some recent cases that discuss the implications of digital records management and the obligations law enforcement agencies have related to them. One such case Josh discussed was State v. Germaine A. Handy (A-108-09). Germaine A. Handy was initially stopped for a violation of a town ordinance prohibiting riding a bicycle on the sidewalk. When the officer asked the dispatcher to run Handy for warrants, the dispatcher mistakenly relayed information regarding a different Handy and a ten year old warrant. The mistaken information was the basis of the search of Handy and the subsequent discovery of controlled dangerous substances, for which he was charged. In upholding the suppression of the evidence, the New Jersey Supreme Court noted that in the dispatcher has a duty to make reasonable efforts to ensure that the information being relayed to an officer on the street is correct.
The ethical implications for Assistant Prosecutors and prosecuting agencies were also discussed. Simply put, computers never forget, and once a piece of information is put into a digital record keeping system, it is there forever. At the same time, the law imputes to prosecutors knowledge of all the information that comprises the record of the investigation of the case they are prosecuting. Therefore, prosecutors have a duty to understand the scope of the digital record made in the cases they prosecute, including the dispatch system used by the first responding officers, so that they can make rational decisions as to what is discover-able and what is not. R.P.C. 3.4(d) imposes on lawyers the duty to make reasonably diligent efforts to comply with lawful discovery requests by an opposing party. This implies that Assistant Prosecutors are obliged to understand at least the basics of the digital record keeping systems used in their cases so that they can make honest and informed responses to the discovery requests made by defense counsel.
Ottenberg also touched upon the practical implications of the increased use of digital records. The increased use of digital record keeping systems in the law enforcement world and elsewhere has enhanced the need to assure that digital information is used in a secure virtual environment. In fact, information security, the technical aspects of how digital information is kept secure, is becoming a commonplace concern in a world simultaneously struggling with the implications of the Edward Snowden revelations and the credit card security breaches at some of the world’s largest and most familiar department store chains. The good news for Assistant Prosecutors in particular, but also for lawyers in general, is that the basic purpose of information security, ensuring the confidentiality of information, is also a fundamental concept of the practice of law. Few professions understand the value of confidentiality the way the legal profession does and nowhere are the rules surrounding the issue of confidentiality more complex and important that in law enforcement. The use of basic dual authentication technology and good password security protocols mitigate the threat of an information breach substantially.