A Guide to Forensic Testimony

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.

Contents

• Who Decides Whether an Expert Is Really an Expert?.
• A Potpourri of Expert Witnesses from Other Disciplines.
• Approaches to Building Professional Communities of Interest.
• In Forensics, No Expert Is an Island.

• Why Do So Many People Cringe at the Thought of Testifying?
• Why Should a Technical Expert Want to Work in the Legal System?
• Everyone Is Subject to Subpoena.
• Every Transcript Tells a Story.
• A Learning Experience for Both Litigators and Witnesses.
• What Fact Finders Say about the Importance of Testimony.
• Testimony-Take Two.
• If Credibility Is Always the Answer, What Are the Questions?

• U.S. v. Mitnick: A Case That Defined the Internet Threat.
• Hiding and Seeking Digital Evidence.
• The Simulated Testimony of Andrew Gross.
• Visualizing Gross's Technical Testimony.
• Seeking Professional Graphics Assistance.
• Showing and Telling Is Better Than Just Telling.

• Knights Errant as Experts.
• Why Does Everyone Love to Hate Lawyers?
• The Rules of Engagement.
• The Roles of an Expert Witness.
• The Complex Art of Expert Testimony.
• Dreams and Nightmares-Take Your Pick.
• New Technologies and Modern Legal Disputes Require More Experts.
• A Wake-Up Call for IT Professionals.
• Technical Experts and Routine Legal Functions.

• Dealing with Experts in the Age of Scientific Progress.
• Expertise in the Face of Technological Trends.
• Modern Examples of Questionable Forensic Science Claims.
• One Court's Changing Attitude about Fingerprint Forensic Evidence.
• Scientific Methods Are No Guarantee.
• Learning from Pseudoscientists.
• The Expert Storyteller.

• A Failure Analysis: Examples of Ethics-Challenged Experts.
• On the Importance of Knowing Where You Are (and Aren't).
• Lightning Strikes Again: The Case of the Ethically Conflicted Expert.
• Determining Master-Servant Relationships in Litigation.
• Balancing the Demands of Expertise.
• Ethical Principles for Information Technologists.
• Model Ethical Rules and Recommendations for Expert Witnesses.
• Ethical Standards for Attorneys.
• Going to the Movies for More Examples.
• Pushing the Ethical Boundary.
• The Responsibility of the Expert Witness.

• Assessing the Expert-Attorney Relationship.
• A Different Style of Reporting.
• Rule 26 and Its Effect on Expert Testimony.
• When Not to Document Process.
• The Case of the Mystery Client.
• Establishing Objectivity.
• The Role of Expert Opinions and Reports: Learning by Example.
• Preparing Effective Reports.
• Steering a Steady, Objective Course.

• The Metaphor of the Gatekeeper.
• The Effect of Gatekeeping on Expert Witnesses and the Court.
• Historical Gatekeeping and the Needs of the Current Legal System.
• Challenges to Technical Expert Witness Evidence.
• The Classic Case of Dr. John Snow.
• Putting Yourself in the Judge's Shoes.
• Expanding the Standards of Daubert.
• Brainstorming Strategies and Scenarios to Prepare for Daubert Challenges.
• A Hypothetical Daubert Disqualification.
• Looking Forward to the Gatekeeping Challenge.

• Taking a Page from the Jury Consultant.
• The Paradox of Case Studies and Trial Preparation.
• Learning by Example.
• How Does the Court Deal with the Absence of Recognized Standards?
• The Gates v. Bando Case.
• Expert Performances Can Make Enormous Differences in Outcome.
• Houdini as Expert Performer and Professional Skeptic.
• Illinois Tool Works v. MetroMark Products: A Postscript to Gates v. Bando.
• What Experts Can Learn from Court Opinions.

• Thinking in Pictures: Sage Advice from the Pros.
• The Basic Philosophy: Keep It Simple and Honest.
• Establishing Credibility by Teaching the Basics.
• Turning Students into Teachers and Advocates.
• Thinking about Highly Complex Technical Processes as Pictures.
• Introducing the Expert with Graphics in the Opening Statement.
• Designing Defensive Visual Exhibits.
• Follies with Visual Aids Can Be Disastrous.
• Courts Have Concerns about Computer-Generated Evidence.
• The Radiation Case Study from The Focal Point Archives.
• What the Jurors Need.
• Using Outlines for Technical Expert Testimony.
• Using a Scoreboard to Tie It All Together.
• Winning the Battle but Losing the War: The Risk of Argumentative Titles.
• Authentication Tags for Visual Exhibits.
• Don't Forget Spontaneously Generated Visual Exhibits.
• Mesmerizing with Magnets.
• Connecting the Links in the Chain.

• Law in an Age of Sound-Bite Attention Spans.
• Demeanor Professionals, Demeaning Professionalism.
• Techniques for Fine-Tuning Your Courtroom Demeanor.
• Does the Current Adversary Ethic Threaten or Preserve the Legal System?

• Do Nonverbal Communications Really Affect an Expert's Performance?
• Verbal and Nonverbal Communications: Which Is More Important for Credibility?
• How Important Is the Quality of the Voice?
• Combining the Voice, Hands, and Body Language with the Words.
• What's in a Nonverbal Communication?
• Gestures as Essential Components of Testimony and Communication.
• Learning to Act the Part of an Expert Witness.

• Rebecca Mercuri: Testifying in Cases of National Importance.
• Donald Allison: Finding Feedback Loops to Improve Performance.
• Eugene Spafford: Continued Education in the Legal Domain.
• Packing Your Bags and Embarking on Your Own Adventure.