A Guide to Forensic Testimony: The Art and Practice of Presenting Testimony as an Expert Technical Witness

A Guide to Forensic Testimony: The Art and Practice of Presenting Testimony as an Expert Technical Witness

Released October 2002
Publisher(s): Addison-Wesley Professional
ISBN: 9780201752793

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Book description

Information technology is an increasingly large factor in legal proceedings. In cases large and small, from the U.S. Government's antitrust suit against Microsoft Corporation, to civil lawsuits filed over the failure of a network, to criminal cases in which the authenticity of electronic evidence is questioned, the testimony of a technical expert is essential. But in order to be effective, an expert technical witness needs much more than an understanding of the technology in question.

A Guide to Forensic Testimony is the first book to address the specific needs of the IT expert witness. It will arm you with the tools you need to testify effectively. Inside you'll find everything from an overview of basic witness responsibilities and challenges to a deeper exploration of what produces successful technical testimony. Written by a computer security authority who has served as a technical witness, and a trial attorney who focuses on how digital evidence and computer forensics are altering litigation, this book is your guide to the complicated forensic landscape that awaits the expert technical witness.

This book contains a wealth of wisdom and experience from the front lines, including firsthand accounts of the challenges faced by expert technical witnesses, practical in-court examples, and helpful advice. Among the topics covered are:

  • The evolution of the expert IT witness and the growing legal dependence on technical expertise

  • Legal criteria established to determine the qualifications and abilities of a technical expert to stand as a witness

  • The kinds of cases and problems that are apt to be encountered in digital forensic assignments

  • Damage caused when the rules of professionalism and ethics are ignored or misapplied

  • The construction and maintenance of a solid professional relationship between expert and attorney

  • The creation and use of visual tools in courtroom testimony

  • Ways to improve the demeanor and non-verbal communication skills of the technical witness

Whether you are an information technologist asked to serve as an expert witness, a legal professional who works with information technology experts, a corporate risk manager, or a client whose interests are affected by the performance of IT experts, you will benefit greatly from A Guide to Forensic Testimony.



0201752794B09092002

Table of contents

  1. Copyright
    1. Dedication
  2. Foreword
  3. Preface
  4. Acknowledgments
  5. Introduction
    1. Every Dummy Wants to Be the Ventriloquist
    2. Why We Wrote This Book
    3. Voices of Experience
      1. Experts Called as Witnesses Aren't Always Expert Witnesses
      2. Finding Magical Ways to Think about Honest Expert Testimony
      3. The Complete Expert Package: Showing as Well as Telling
    4. Why Do Technologists Need Expert Witness Skills?
      1. Making Sense of the March of Technical Progress
      2. Where Technology Marches, Law Follows
      3. Risky Business
      4. Is It Real or Is It Spoofed?
      5. Defense against Bad Legal Precedents
      6. The Missing Links in Technical Education
    5. What This Book Provides
    6. What This Book Does Not Provide
    7. Caveats and Disclaimers
  6. 1. Examples of Expert Witnesses and Their Communities of Interest
    1. Who Decides Whether an Expert Is Really an Expert?
    2. A Potpourri of Expert Witnesses from Other Disciplines
      1. Mona Lisa Vito: Reluctant Expert Witness in My Cousin Vinny
      2. Bernard Ewell: Fine Art Appraiser and Salvador Dali Expert
      3. J. W. Lindemann: Forensic Geologist and Clandestine Grave Expert
      4. Madison Lee Goff: Forensic Entomologist and Bug Doctor
    3. Approaches to Building Professional Communities of Interest
      1. Professional Problem-Solving Associations
      2. Government Training Programs for Forensic Experts
    4. In Forensics, No Expert Is an Island
  7. 2. Taking Testimony Seriously
    1. Why Do So Many People Cringe at the Thought of Testifying?
    2. Why Should a Technical Expert Want to Work in the Legal System?
    3. Everyone Is Subject to Subpoena
      1. So What Happened in This Deposition?
    4. Every Transcript Tells a Story
      1. Quibbling with Counsel Can Be Counterproductive
      2. When Bad Strategy Happens to Competent Technologists
    5. A Learning Experience for Both Litigators and Witnesses
    6. What Fact Finders Say about the Importance of Testimony
      1. Testifying Effectively Is Not the Same as Solving Engineering Problems
    7. Testimony—Take Two
    8. If Credibility Is Always the Answer, What Are the Questions?
  8. 3. Creating Stories about Complex Technical Issues
    1. U.S. v. Mitnick: A Case That Defined the Internet Threat
    2. Hiding and Seeking Digital Evidence
    3. The Simulated Testimony of Andrew Gross
    4. Visualizing Gross's Technical Testimony
      1. Demonstrative and Substantive Graphic Evidence
    5. Seeking Professional Graphics Assistance
      1. Choosing the Focus for Visual Aids
      2. Considering Which Elements to Emphasize
      3. Going Back to the Basics in a Network-Based Plotline
      4. Using Familiar Analogies to Describe What Computer Experts Do
      5. Remembering the Real Goal of Expert Testimony
      6. Selecting the Visual Components of the Story Line
    6. Showing and Telling Is Better Than Just Telling
  9. 4. Understanding the Rules of the Game
    1. Knights Errant as Experts
    2. Why Does Everyone Love to Hate Lawyers?
      1. Trial by Combat
      2. Evidence and the Advent of Testimony
      3. Experts Replace Bishops and Knights as Key Witnesses
      4. The Daubert Line—Corrections in Course
    3. The Rules of Engagement
      1. Federal Rules
      2. State and Local Rules
    4. The Roles of an Expert Witness
      1. The Consulting Expert
      2. The Court's Expert
      3. The Testifying Expert
      4. The Expert as a Witness to Fact
      5. On the Importance of Keeping Roles Straight
      6. When Consulting Experts Are Asked to Testify
    5. The Complex Art of Expert Testimony
      1. A Game within a Game
      2. Setting the Tone for the Lawyer–Expert Relationship
    6. Dreams and Nightmares—Take Your Pick
      1. An Expert's Dream
      2. An Expert's Nightmare
    7. New Technologies and Modern Legal Disputes Require More Experts
      1. The Expert Trend
    8. A Wake-Up Call for IT Professionals
      1. The Real Y2K Disaster
      2. With Omnipresent Digital Evidence, What Case Isn't an IT Case?
    9. Technical Experts and Routine Legal Functions
  10. 5. Chance, Coincidence, or Causation—Who Cares?
    1. Dealing with Experts in the Age of Scientific Progress
      1. Frye v. U.S.: Distinguishing Pseudoscience from Science
      2. Keeping Quacks and Their Technologies at Bay
    2. Expertise in the Face of Technological Trends
      1. Bumping Heads with Phrenology
      2. Distinguishing Astrology from Astronomy and the Rule of Law
      3. Why Wasn't Phrenology the Kind of Expertise the Courts Wanted?
    3. Modern Examples of Questionable Forensic Science Claims
      1. The Economists
      2. The Handwriting Experts
      3. The Fingerprint Analysts
    4. One Court's Changing Attitude about Fingerprint Forensic Evidence
      1. The Judge Presents His Initial Decision
      2. On Further Reflection, the Judge Changes His Mind
    5. Scientific Methods Are No Guarantee
    6. Learning from Pseudoscientists
      1. When Science Turns into Art and Vice Versa
      2. A Case in Point
    7. The Expert Storyteller
  11. 6. Ethical Rules for Technical Experts
    1. A Failure Analysis: Examples of Ethics-Challenged Experts
    2. On the Importance of Knowing Where You Are (and Aren't)
    3. Lightning Strikes Again: The Case of the Ethically Conflicted Expert
    4. Determining Master–Servant Relationships in Litigation
      1. Criminal Prosecution
      2. Civil Litigation
    5. Balancing the Demands of Expertise
    6. Ethical Principles for Information Technologists
      1. An Overview of Professional IT Organizations
        1. The Institute of Electrical and Electronic Engineers (IEEE)
        2. The Association for Computing Machinery (ACM)
      2. The Codes of Ethics
      3. Other Pertinent Rules
    7. Model Ethical Rules and Recommendations for Expert Witnesses
      1. The Academy of Experts Code of Practice
      2. Recommended Practices for Design Experts
      3. Recommendations for Structural Engineer Expert Witnesses
        1. Qualifications
        2. Options
        3. Assumptions
        4. Level of Inquiry
        5. Integrity
        6. Standard of Care
      4. A Cautionary Note
    8. Ethical Standards for Attorneys
    9. Going to the Movies for More Examples
    10. Pushing the Ethical Boundary
    11. The Responsibility of the Expert Witness
  12. 7. Enhancing Objectivity in a World of Bias
    1. Assessing the Expert–Attorney Relationship
    2. A Different Style of Reporting
    3. Rule 26 and Its Effect on Expert Testimony
    4. When Not to Document Process
    5. The Case of the Mystery Client
    6. Establishing Objectivity
      1. Rule 26 Reports and First Impressions
    7. The Role of Expert Opinions and Reports: Learning by Example
      1. Experts Need to Write Their Own Rule 26 Reports
        1. Lessons Learned
      2. Lies and Statistics
      3. Too Little, Too Late, Too Bad
        1. The Issue of Timeliness
        2. Lessons Learned
      4. A Little More, a Little Later Doesn't Help
    8. Preparing Effective Reports
    9. Steering a Steady, Objective Course
  13. 8. The Gatekeeper: Judicial Control of Expert Witnesses
    1. The Metaphor of the Gatekeeper
    2. The Effect of Gatekeeping on Expert Witnesses and the Court
    3. Historical Gatekeeping and the Needs of the Current Legal System
    4. Challenges to Technical Expert Witness Evidence
    5. The Classic Case of Dr. John Snow
    6. Putting Yourself in the Judge's Shoes
    7. Expanding the Standards of Daubert
    8. Brainstorming Strategies and Scenarios to Prepare for Daubert Challenges
    9. A Hypothetical Daubert Disqualification
      1. The Scenario
      2. The Issues of the Case
      3. Synopses of the Experts' Rule 26 Reports
        1. Highlights of the Rule 26 Report from the Court-Appointed Discovery Expert
        2. Highlights of the Rule 26 Report from the Plaintiff's Expert
        3. Highlights of the Rule 26 Report from the Respondent's Expert
      4. The Issues Surrounding the Qualification of the Experts
      5. The Issues in Dispute
      6. The Structure of the Daubert Challenge
      7. The Challenge Itself
      8. What Happens Now?
    10. Looking Forward to the Gatekeeping Challenge
  14. 9. The Magic of Testimony: Communicating with the Fact Finder
    1. Taking a Page from the Jury Consultant
    2. The Paradox of Case Studies and Trial Preparation
      1. Why Should You Prepare for a Case That Will Never Get to Trial?
    3. Learning by Example
    4. How Does the Court Deal with the Absence of Recognized Standards?
    5. The Gates v. Bando Case
      1. Presenting the Expert's Qualifications
      2. The Devil Is in the Details
      3. The Parties May Be Held Responsible for Their Experts' Performances
      4. Sometimes Experts Have to Judge Other Experts—and Find Them Wanting
      5. Experts Often Quarrel for Legitimate Reasons
      6. The Rest of the Story
    6. Expert Performances Can Make Enormous Differences in Outcome
      1. What Can an Expert Do to Reassure a Lay Judge or Juror?
      2. Some Rules of Engagement for Presenting Expert Testimony
      3. But Shouldn't We Expect Judges and Jurors to Be Experts Too?
      4. Why Do Most People Respect Teachers and Authors?
      5. Presumptions and Burdens of Proof and Persuasion
    7. Houdini as Expert Performer and Professional Skeptic
      1. Coming to Terms with the Different Roles of the Expert
      2. Houdini the Skeptic Assigns the Burden of Proof
      3. Why Experts Can't Create Idiosyncratic Standards
      4. Beware of Those Looking for the Perfect Expert
    8. Illinois Tool Works v. MetroMark Products: A Postscript to Gates v. Bando
      1. When the Defendants' Expert Is Not the Defendants' Ally
      2. The Outcome
    9. What Experts Can Learn from Court Opinions
  15. 10. The Role of Visual Exhibits in Expert Testimony
    1. Thinking in Pictures: Sage Advice from the Pros
    2. The Basic Philosophy: Keep It Simple and Honest
    3. Establishing Credibility by Teaching the Basics
    4. Turning Students into Teachers and Advocates
    5. Thinking about Highly Complex Technical Processes as Pictures
    6. Introducing the Expert with Graphics in the Opening Statement
      1. The Benefits of Using Graphics in the Opening Statement
        1. Opening Graphics Allow the Lawyer to Introduce the Expert as Part of the Big Picture
        2. Good Graphics Prepare the Jury Favorably for the Expert Presentation
        3. Good Graphics Indicate Preparation for and Respect for the Fact Finders
      2. Graphics Speak to Both the Judge and the Jury
    7. Designing Defensive Visual Exhibits
    8. Follies with Visual Aids Can Be Disastrous
    9. Courts Have Concerns about Computer-Generated Evidence
    10. The Radiation Case Study from The Focal Point Archives
    11. What the Jurors Need
    12. Using Outlines for Technical Expert Testimony
    13. Using a Scoreboard to Tie It All Together
    14. Winning the Battle but Losing the War: The Risk of Argumentative Titles
    15. Authentication Tags for Visual Exhibits
    16. Don't Forget Spontaneously Generated Visual Exhibits
      1. Talk to the Jury, Not the Exhibit
    17. Mesmerizing with Magnets
    18. Connecting the Links in the Chain
  16. 11. Demeanor and Credibility
    1. Law in an Age of Sound-Bite Attention Spans
      1. Playing for Effect
      2. What Fact Finders Don't Like about the Demeanor of Experts and Attorneys
      3. The Unbroken Circle of Professionalism, Preparation, and Organization
    2. Demeanor Professionals, Demeaning Professionalism
      1. Is Plastic Surgery an Issue Here—Face Saving Notwithstanding?
      2. Clarence Darrow “Examines” a Witness as to His Demeanor
    3. Techniques for Fine-Tuning Your Courtroom Demeanor
      1. Controlling Demeanor Begins with Learning to Breathe and Relax
      2. Getting Centered with the Martial Arts
    4. Does the Current Adversary Ethic Threaten or Preserve the Legal System?
  17. 12. Nonverbal Communications
    1. Do Nonverbal Communications Really Affect an Expert's Performance?
    2. Verbal and Nonverbal Communications: Which Is More Important for Credibility?
      1. Lawyers and Technical Experts Generally Prefer to Read
      2. Notes Don't Always Help Fact Finders Remember What's Important
    3. How Important Is the Quality of the Voice?
    4. Combining the Voice, Hands, and Body Language with the Words
    5. What's in a Nonverbal Communication?
      1. Posture
      2. Eye Contact
      3. Facial Expressions
      4. Gestures
      5. Body Orientation
      6. Positioning and Proximity
      7. Vocal Qualities
      8. Humor
    6. Gestures as Essential Components of Testimony and Communication
      1. Ultimately, It's in Your Hands
      2. Working with Your Hand Gestures during the Course of Testimony
      3. Learning to Use Gestures Effectively
      4. Smile, Partner
    7. Learning to Act the Part of an Expert Witness
  18. 13. Putting It All Together: IT Expert Roles
    1. Rebecca Mercuri: Testifying in Cases of National Importance
      1. When the Initial Interview Consists of a Phone Call
      2. Qualifications
      3. A Wide Variety of Expert Experiences
      4. On Testimony before Nonjudicial Fact Finders
      5. On Dealing with Logistic Issues
      6. Surprises amidst Lessons
    2. Donald Allison: Finding Feedback Loops to Improve Performance
      1. Deciding Whether to Accept an Assignment
      2. Conducting the Investigation and Reaching Conclusions
      3. Preparing to Testify at Depositions and Trial
      4. Testifying at Trial
      5. Soliciting Participants' Feedback after the Trial
    3. Eugene Spafford: Continued Education in the Legal Domain
      1. The Initial Interview
      2. Qualifications
      3. On the Importance of Objectivity and Focus
      4. On the Importance of Flexibility of Role
        1. Case 1: When an Expert Becomes a Mediator
        2. Case 2: The Expert as Technology Tutor for the Judge
      5. Lessons Learned
    4. Packing Your Bags and Embarking on Your Own Adventure
  19. A. Major Cases
    1. Frye v. U.S.
    2. Daubert v. Merrell Dow Pharmaceuticals, Inc.
      1. I
      2. II
        1. A
        2. B
        3. C
      3. III
      4. IV
      5. Footnotes
    3. Kumho Tire, Ltd. v. Carmichael
      1. I
      2. II
        1. A
        2. B
        3. C
      3. III
    4. Joiner v. General Electric Company
      1. I
      2. II
      3. III
      4. Notes
      5. Notes
    5. U.S. v. Carlos Ivan Llera Plaza, Wilfredo Martinez Acosta, and Victor Rodriguez
      1. I.
      2. II
      3. III
      4. IV
      5. Conclusion
  20. B. Federal Rules
    1. Federal Rules of Procedure
      1. Rule 16. Pretrial Conferences; Scheduling; Management
      2. Rule 26. General Provisions Governing Discovery; Duty of Disclosure
    2. Federal Rules of Evidence
      1. Rule 102. Purpose and Construction
      2. Rule 104. Preliminary Questions
      3. Rule 401. Definition of “Relevant Evidence”
      4. Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
      5. Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
      6. Rule 701. Opinion Testimony by Lay Witnesses
      7. Rule 702. Testimony by Experts
      8. Rule 703. Bases of Opinion Testimony by Experts
      9. Rule 704. Opinion on Ultimate Issue
      10. Rule 705. Disclosure of Facts or Data Underlying Expert Opinion
      11. Rule 706. Court-Appointed Experts
      12. Rule 803. Subsection 18: (Exceptions to Hearsay)
      13. Rule 901. Requirement of Authentication or Identification

Product information

  • Title: A Guide to Forensic Testimony: The Art and Practice of Presenting Testimony as an Expert Technical Witness
  • Author(s):
  • Release date: October 2002
  • Publisher(s): Addison-Wesley Professional
  • ISBN: 9780201752793