/ LEGAL FEATURE
conversation, I may reply by stating, “Yes, I am employed by
/ USEFUL RESOURCES
Methodvue as Chief Executive”. While this may be appropri-
ate for a conversation, it is typically not the correct response
You can learn much more about techniques for presenting technical
information in court at the following Web sites (among others):
when testifying. In the example, I answered the question and
American Bar Association (ABA): volunteered further information about my occupation – thus
http://www.abanet.org
answering a question that was not asked.
National Institutes of Standards in Technology (NIST):
This simple example illustrates how easy it can be to treat
http://www.eeel.nist.gov/oles/forensics.html
National Institute of Justice:
a deposition as a conversation, which it emphatically is not.
http://www.ojp.usdoj.gov/nij/publications/welcome.htm When giving testimony, the better response would be to reply
simply “Yes” to indicate that I am employed. The expert’s role
is to listen actively and respond to the question that has been
If you’re working in an environment that has not yet defined asked - awkward for a discussion, but the appropriate and
a formal protocol or standardised approach for performing expected response when testifying. Like any guidance, this
forensic work, you may be able to reference tested method- is not a “one size fits all” rule. It is, however, a tried and true
ologies without having to reinvent the wheel. One resource principle to follow when testifying.
that is frequently overlooked consists of guides and resources Follow an established protocol. Whether learned and prac-
published by the US government. Both the National Institute tised in training courses, or performed regularly while carrying
of Standards in Technology (NIST) and the US Department out your assigned duties, follow an approach that is sound,
of Justice’s, Office of Justice Programs, provide guidance for repeatable, and based on industry-accepted standards. This
personnel involved in the collection, acquisition, examination, also means you should treat every case as if it were going to
and presentation of digital evidence. trial – whether you think it has merit or not. This may some-
When developing an expert witness report, the practitioner times seem tedious or unnecessary, but it is always prudent
must perform her work in a deliberate, documented, and repeat- to treat every case as if it needs to withstand the scrutiny of a
able fashion. The objective is to show that a formal process – judge, opposing counsel, and jury. This will improve the qual-
one that is not arbitrary or capricious – was applied to develop ity and admissibility of your work, and the defensibility of the
information. The best way to go about this is to have a clearly opinions presented in your report and testimony.
documented approach to the steps taken, the tests conducted, Be objective. We are human beings, and we all tend to view
and the results of the work. Independent tests should be supple- the world with our own set of experiences, beliefs, and per-
mented by technical guidance and documentation that supports spectives. The challenge for the expert witness is to put these
the approach taken and interpretation of the findings. considerations aside and conduct an independent, thorough,
and objective review of the evidence in the case. This should
The experT’s role is To
include looking for evidence that could support positions
of value to opposing counsel. This is critical to establish the
lisTen acTively and respond “ground truth” and may also help to identify facts and circum-
To The quesTion ThaT has
stances that erode or devalue opposing witness statements.
Need more incentive? There may be another expert witness
been asked involved in the trial whose sole purpose is to scrutinise and
assess the validity of your work. Your reputation is on the line
I started my career in law enforcement, and one of the most – being highly critical of your own work will help move your
important lessons I learned during that time was not to let performance from run-of-the-mill to highly-finished.
my own personal opinions and perspectives interfere with Communicate opinions in laymen’s terms. The forensic
the objectivity of my work. I learned to look for exculpatory practitioner is required to do what appear to be two contradic-
information when investigating allegations of misconduct tory things: conduct highly-technical and scientific analysis, in
- any indication that there could be cracks in the case I was enough detail to meet stringent legal requirements, while ex-
putting together. Playing devil’s advocate will condition the plaining this analysis in a way that can be clearly understood by
practitioner to fully explore the facts and circumstances of a a non-technical audience. Giving testimony is not like delivering
case, leading to an objective, defensible, and comprehensive a lecture or course to a technical audience. The expert’s job is to
analysis. It will also help you prepare for potential issues and act as a translator of her own work without talking down to the
counterpoints that may arise during cross-examination. jury. Graphics, visual aids, and demonstrations can all help the
jury to understand fully the information you present to them. /
/ Things to Remember
Giving testimony is not a conversation. When testifying, in par-
ticular under cross-examination, the role of the expert witness
/ Author Bio
is to answer what is asked. I recently had an opportunity to
Eric M Fiterman is a former FBI Special Agent and founder
of Methodvue (http://www.methodvue.com), a US-
work with Mr John Moran, an experienced IP litigator and part-
based consultancy that provides cybersecurity and threat
ner at the law firm Holland and Knight LLP, who gave the fol-
intelligence services to government and private businesses.
lowing example. When asked, “Are you employed?” in a casual
32 Digital / ForensicS
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