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 technol-ogy 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 dispatch-er 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 danger-ous substances, for which he was charged. In upholding the suppres-sion 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 recordkeeping 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 discoverable 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 hon-est and informed responses to the discovery requests made by de-fense counsel.
Ottenberg also touched upon the practical implications of the in-creased use of digital records. The increased use of digital record keep-ing systems in the law enforcement world and elsewhere has en-hanced the need to assure that digital information is used in a secure virtual environment. In fact, information security, the technical as-pects of how digital information is kept secure, is becoming a com-monplace concern in a world simultaneously struggling with the impli-cations of the Edward Snowden revelations and the credit card securi-ty breaches at some of the world’s largest and most familiar depart-ment store chains. The good news for Assistant Prosecutors in particu-lar, but also for lawyers in general, is that the basic purpose of infor-mation security, ensuring the confidentiality of information, is also a fundamental concept of the practice of law. Few professions under-stand 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 pro-tocols mitigate the threat of an information breach substantially.