Wednesday, July 7, 2010

Into The Breach: Expert Witness Testimony

Public court room in Independence Hall
Image via Wikipedia
Last week I testified as an expert witness for the first time.  While I was confident in my ability to testify to what I had done in the case, it was still a bit of a nerve wracking experience.  It was definitely intimidating to ponder upon the fact that what I said on the stand that day would go into public record and exist forever.

Luckily I have been able to learn a great deal from Larry Daniel about how a successful expert witness testimony should look, and the steps that should be taken to prepare oneself for testimony.

At CEIC 2010 I attended the Expert Witness Panel: Making It Stick, which I also gleaned some insight from that helped to prepare me for my own expert witness testimony.  The members of the panel were Larry Daniel of Guardian Digital Forensics and Lynita Hinsch of Forensics Consulting Solutions.  It was moderated by Andy Spruill of Guidance Software, Inc.

These three were a wealth of information on the entire process of preparing for expert witness testimony and what to do when you get on the stand.

At this point, I had the right knowledge in my head, I just needed to put it into practice.  From education to experience, here are some points I would like to make, reiterating much of what I learned from Larry Daniel on a weekly basis, and from the CEIC 2010 panel. 

Communicate With Your Attorney
Communicating with your attorney in a case is vital.  Expert witness testimony goes best if your attorney knows what to expect, and conversely if you do to.  It also helps if you can properly prepare your attorney, and educate them on the technical details.  I wrote a script of questions and the expected answers to those questions for my attorney.  While he did not follow it exactly, it certainly added some structure and made us both feel more comfortable.  I also explained to him the technical issues surrounding the case.  By furthering his understanding of this information, it allowed for a more precise and beneficial testimony by myself as we focused our questions and goals.

Remember Your Audience
During my testimony I took great pains to accurately explain technical information to the best of my ability while making it accessible to the judge and jury.  Keep in mind that you should be the most knowledgeable person in the room when it comes to the material of your testimony, but that means little if you cannot communicate that knowledge effectively. 

Many of us can remember that particular professor who was brilliant, but a terrible teacher because they just couldn’t get back to the beginning when they were struggling through the ins and outs of their discipline.  It would be unfortunate if we were like this professor on the stand.  We must endeavor to always keep in touch with our beginning, before we knew 10,000 acronyms and truck loads of esoteric information when explaining concepts in court.  Your audience is smart, make no mistake, but if someone was testifying to quantum mechanics and speaking as if they were talking to another expert in their field with me in the jury, I think my eyes would glaze over.

Walk the Walk
This may seem obvious, but it is important to dress and carry oneself with professionalism.  When testifying as an expert witness it is not the time to be eccentric in dress or action.  While you may be the most knowledgeable person in the room about digital forensics, do everything possible to avoid coming off as arrogant.  Show the defense and prosecution equal respect, and remember your manners. 

Work Every Case Like It Is Going to Court
A case can take a long time to get to court.  Make sure to take copious notes during your examination and to perform a thorough investigation when working a case.  Most likely you won’t get a second chance.  Since a “do over” is basically non-existent when performing an investigation, do everything in your power to get it right the first time.  Can you remember what you were doing a year ago this time?  I barely can.  Document your work thoroughly so you remember the case you worked a year ago.

There are many other points that could be made, the ones made above were ones that seemed especially salient to myself in light of my first expert witness testimony experience.

Lars Daniel
Digital Forensics Examiner and Forensic Artist

Enhanced by Zemanta

1 comment:

  1. Nice overview. I will add one caveat about note-taking: Be careful what you put in those notes! They may be open to "discovery" and as such, any off-hand observations, opinions or conclusions you write down may be used by opposing counsel.

    When it comes to notes, stick to the facts.

    ReplyDelete

I have moderated my comments due to spam.