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Module LI - Becoming an Expert
Witness
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News: The Prosecution of Jul...
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Scenario
Bobo, Raymond E. We...
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Module Objective
• What is a...
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Module Flow
What is an Exper...
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What is an Expert Witness
“A...
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Role of an Expert Witness
• ...
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What Makes a Good Expert
Wit...
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Types of Expert Witnesses
Co...
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Computer Forensics Experts
C...
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Role of Computer Forensics E...
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Medical & Psychological Expe...
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Civil Litigation Experts
Civ...
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Construction & Architecture ...
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Criminal Litigation Experts
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Scope of Expert Witness Test...
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Scope of Expert Witness Test...
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Technical Witness vs. Expert...
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Preparing for Testimony
• Go...
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Evidence Preparation and
Doc...
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Evidence Processing Steps
Ex...
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Evidence Processing Steps (c...
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Checklists for Processing Ev...
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Examining Computer Evidence
...
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Prepare the Report
Ask the l...
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Evidence Presentation
Identi...
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Rules Pertaining to an Exper...
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Rules Pertaining to an Exper...
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Rules Pertaining to an Exper...
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Daubert Standard
The Daubert...
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Frye Standard
Frye standard ...
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Importance of Resume
• Certi...
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Testifying in the Court
Fami...
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The Order of Trial Proceedin...
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The Order of Trial Proceedin...
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General Ethics while Testify...
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Importance of Graphics in a
...
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Helping your Attorney
• Enab...
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Avoiding Testimony Issues
Of...
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Testifying during Direct Exa...
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Testifying during Direct Exa...
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Testifying during Cross-Exam...
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Deposing
• Both attorneys ar...
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Recognizing Deposing Problem...
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Guidelines to Testify at a D...
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Dealing with Media
• It is u...
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Finding a Computer Forensic ...
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Learn more about “ Expert Wi...
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Summary
“An expert witness i...
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  1. 1. Module LI - Becoming an Expert Witness
  2. 2. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited News: The Prosecution of Julie Amero Source: http://www.reason.com
  3. 3. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Scenario Bobo, Raymond E. Wells Junior High School teacher was alleged that she had sex with a male student. Shue, the attorney called Sgt. Adam Holland, a computer forensics expert with the Fort Smith Police Department as a rebuttal witness and asked him to explain the testimony of the activity that occurred on Bobo’s computer the day the computer was seized. The defense suggested that someone tampered with the computer. Holland said the activity was caused by programs that run automatically, including a weather program. If someone had turned the computer back on after police disconnected it, there would have been evidence of that, but there was none.
  4. 4. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Module Objective • What is an expert witness? • Role of an expert witness • Types of expert witnesses • Preparing for a testimony • Rules pertaining to an expert witness’ qualification • Testifying in the court • Testifying during direct and cross-examination • Deposition • Dealing with media This module will familiarize you with:
  5. 5. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Module Flow What is an Expert Witness? Role of an expert witness Types of expert witnesses Testifying in the court Rules pertaining to an expert witness’ qualification Preparing for Testimony Testifying during Direct and Cross-examination Deposition Dealing with media
  6. 6. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited What is an Expert Witness “An expert witness is a witness, who by virtue of education, profession, or experience, is believed to have special knowledge of his/her subject beyond that of the average person, sufficient that others legally depend upon his/her opinion”
  7. 7. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Role of an Expert Witness • Evaluates the evidence • Assists plaintiff’s or defendant’s lawyers to establish facts, assess the merits, and help in the preparation of a case, including the initial decision whether to start a litigation or not • Testifies in court • Assists the court in understanding intricate technical evidence • Helps the attorney to get to the truth • Truthfully, objectively, and fully express his or her expert opinion, without regard to any views or influence • Conducts investigations on behalf of the court and reports the findings back to the court • Participates in court-appointed expert witness conferences to study any intriguing incident • Educates the public and the court An expert witness is a person who:
  8. 8. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited What Makes a Good Expert Witness? Good experts can talk to the jurors in a way that shows they have confidence in their case and they are sincere, without seeming like an advocate Experts need to change the complicated material into understandable material so that the lay audience can understand easily Observe jurors to identify the level of interest, make a note of which juror is sleeping and uninterested Avoid overextending opinions Develop repetition into details and descriptions for the jury Augment your image with the jury by following a formal dress code
  9. 9. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Types of Expert Witnesses Computer Forensics Experts Medical & Psychological Experts Civil Litigation Experts Construction & Architecture Experts Criminal Litigation Experts
  10. 10. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Computer Forensics Experts Computer Forensics’ experts locate and recover information through electronic discovery, while protecting the evidentiary quality of findings Their opinions are required to interpret the evidence produced before the court for both legal teams and jurors • Computer forensics • Email systems • Financial Systems • Credit Card Processing Systems • Airline Reservation Systems Computer forensics expert should have knowledge about:
  11. 11. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Role of Computer Forensics Expert Examines personal computers Examines emails Determines date, time, and author of certain files Testifies witnesses, defendants, or prosecution Examines all the case documentation Prepares a report for submission to the lawyers or jury Helps the court in understanding the report which relates to the case Reviews all the files Decrypts the encrypted files Opens the password protected files Finds the deleted files if any
  12. 12. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Medical & Psychological Experts • Physical injury • Subjective tenderness described by the victim • Stains or substances found on the victim's body Findings documented during forensic medical examination include: Medical professionals such as physicians, physicians' assistants, and nurses describe the process of examining the victim and physical findings that were observed and explained
  13. 13. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Civil Litigation Experts Civil litigation experts explain the process for collecting and analyzing evidence to jurors They explain the realities of the process and correct false assumptions regarding crime scene evidence
  14. 14. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Construction & Architecture Experts • Expert witness testimony • Pretrial assessment • Claims • Accident Investigations • Construction defects • Estimating and analyzing the schedule of construction Practice of construction and architecture experts include:
  15. 15. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Criminal Litigation Experts • They are generally accessible and cooperative • They will not expect to be paid for their services Advantages of using a victim advocate: • Sometimes testimony may be tarnished with cross- examination regarding the reputation of the individual and/or the rape crisis agency Disadvantages of using a victim advocate: Victim advocates are frequently asked to testify in cases involving a sexual attack They are qualified by the court to address the behavior of the defendant or characteristics of crime
  16. 16. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Scope of Expert Witness Testimony • Alcohol intoxication • Automobile and airplane crashes • Ballistics • Bite mark analysis • Blood grouping tests and blood spatter analysis • DNA (Deoxyribonucleic Acid) TESTS • Document examination • Drug courier profiling and profiling in general • Speed detection readings – radar • Physical and mental condition • Eyewitness identification The scope of the expert witness testimony includes the following areas of expertise:
  17. 17. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Scope of Expert Witness Testimony (cont’d) • Fingerprint identification • Firearms identification • Forensic anthropology • Forensic biology • Forensic engineering • Forensic odontology • Voice print analysis • Truth serum results • Toxicology • Toxicology • Sketch artist • Photography The scope of the expert witness testimony includes the following areas of expertise:
  18. 18. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Technical Witness vs. Expert Witness • Does the actual fieldwork • Submits only the results of his findings • Does not offer a view in court • Provides facts found in investigation • Prepares testimony • Does not offer conclusions A technical witness is an individual who: • Has absolute field knowledge • Offers a view in court • Has opinions based on observations • Works for the attorney An expert witness is an individual who:
  19. 19. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Preparing for Testimony • Go through the document thoroughly • Establish early communication with the attorney • Determine the basic facts of the case before beginning and examining the evidence • Substantiate the findings: • With documentation • By collaborating with other computer forensic professionals • Detect conflict of interest • Avoid conflicting out practice While preparing for testimony:
  20. 20. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Evidence Preparation and Documentation Document every important aspect in the case during investigations Safeguard the integrity of all gathered evidence Catalog and index is easy to understand Use professional experience and request peer reviews to support the findings
  21. 21. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Evidence Processing Steps Examine, preserve, monitor, and authenticate the documentation Create different checklists for different evidence analysis Avoid personal comments or ideas in these notations Note any successful output Validate evidence using hash algorithms Search for keywords using well-defined parameters • List relevant evidence on the report Make simple and precise notes of the investigation
  22. 22. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Evidence Processing Steps (cont’d) • To prove them repeatable Document the steps Collect the evidence and document employed tools Preserve the evidence Maintain the chain of custody Collect the right information
  23. 23. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Checklists for Processing Evidence Use Digital Signatures to find the evidence Use SHA-1 for evidence validation • MD5 or CRC32 can be used if SHA-1 is absent • An MD5 or SHA-1 hash check before and after evidence examination would ensure the integrity of the evidence Use well-defined search parameters while searching for key results, which • Helps in narrowing the search • Avoids false hits While writing the report, list only the evidence findings that are relevant to the case • Never use formal checklist • Do not include checklist in the final report • Opposing attorneys can challenge them
  24. 24. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Examining Computer Evidence Examine e-mails Review all the files Decrypt the encrypted files Open password protected files Determine date, time, and author of certain files Find the deleted files if any
  25. 25. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Prepare the Report Ask the legal representative to list the document that should be expressed in the expert report Write a statement that should be related to all opinions and the basis and reasons for those opinions Document the data and information considered in making the opinions List the evidence used as summary or support for the opinions List of cases in which you have provided evidence as an expert at examination
  26. 26. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Evidence Presentation Identify evidence to defend opinion Reaffirm your opinion Never exaggerate opinions Be prepared to defend your opinion Recall definitions Gather information about the opposing attorney and expert Do not talk with anybody during court recess
  27. 27. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Rules Pertaining to an Expert Witness’ Qualification • Four years of previous testimony (indicates experience) • Ten years of any published literature • Previous payment received when giving testimony According to USA federal rules, to be present as an expert witness in a court, following information must be furnished:
  28. 28. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Rules Pertaining to an Expert Witness’ Qualification (cont’d) Do not record conversations or telephone calls Learn about all other people involved and basic points in dispute Define analysis procedures Do not keep secrets from the client's legal team Do not agree to testify on subject matters for which you are not an expert or on which you do not believe Never exaggerate or fudge details, stick with the facts in evidence Do not be intimidated by the process
  29. 29. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Rules Pertaining to an Expert Witness’ Qualification (cont’d) Do not write, FAX, e-mail, or communicate in any other way, unless explicitly instructed to do so Do not do research and analysis you have not been asked to do and respect the guidelines imposed by the client's legal team Do not ever permit compensation to be tied to the outcome of the litigation Do not let the client's legal team form opinions, if they insist, resign from the case Never compromise integrity for any reason or any way
  30. 30. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Daubert Standard The Daubert standard is a legal precedent set in 1993 by the Supreme Court of the United States regarding the admissibility of expert witnesses' testimony during federal legal proceedings In order to reject the presentation of unqualified evidence to the jury, the Daubert motion takes place before or during trail Trial judges make a decision whether the evidence is both relevant and reliable Expert’s evidence can be decided based on the facts of the case The expert should derive his or her conclusions from scientific method in order to consider the evidence reliable
  31. 31. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Frye Standard Frye standard is a legal precedent regarding the admissibility of scientific examinations or experiments in legal cases To meet the Frye standard, scientific evidence submitted in the court should be accepted as an important part of the associated scientific community It can be applied to procedures, principles, and analysis presented in the court case In this standard, supporters of a particular scientific issue should provide a number of experts to speak about the science behind the issue in question It is not an appropriate test for voice identification evidence
  32. 32. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Importance of Resume • Certifications/credentials/accomplishments • Recent work as an expert witness or testimony log • Expertise • List of books written, if any • Any training undergone • Referrals and contacts • List basic and advance skills The following things must be kept in mind while preparing a resume: Resume shows the capability of an expert witness Update the resume regularly
  33. 33. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Testifying in the Court Familiarize with the usual procedures that are followed during a trial The attorney introduces the expert witness with high regards The opposing counsel may try to discredit the expert witness The attorney would lead the expert witness through the evidence Later, it is followed by the cross examination with the opposing counsel
  34. 34. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited The Order of Trial Proceedings • Objections to particular testimonies are written in the form of lists • Allows judge to examine whether certain evidence should be admitted in the absence of the jury Motion in beginning: • Offers an outline of the case Opening the Statement: • The attorney and the opposing counsel presents the case Plaintiff and defendant:
  35. 35. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited The Order of Trial Proceedings (cont’d) • Cross examination by both plaintiff and defendant Rebuttal session • Proposed by the counsel • Approved and read by the judge to the jury Jury orders • Statements that organize the evidence and the law Closing arguments
  36. 36. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited General Ethics while Testifying • Be professional, polite, and sincere in testimony • Always pay tribute to the jury • Be enthusiastic during testimony • Keep the jury interested in speech • Be aware and prepare for the possible rebuttal questions especially from the opposing counsel • Show an open physical and psychological attitude to the Jurors • It is more important to maintain visual control in the courtroom • Maintain a steady body expression with balanced stance without revealing any nervousness • Avoid leanings • Develop self confidence and create personal space for winning professional style in the courtroom Ethics to be followed while presenting as an expert witness to any court or an attorney:
  37. 37. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Importance of Graphics in a Testimony Use clear and easily understandable graphical demonstrations Make graphical demonstrations such as charts • To illustrate and elucidate your findings Make sure the graphics are seen by the jury Face the jury while exhibiting these graphics Make it a habit of using charts and tables for courtroom testimony
  38. 38. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Helping your Attorney • Enable the attorney to get the expert’s testimony into the trial • Provide a practice in the testimony for direct examination • Help the attorney to review and improve on how he or she wants to try the case Prepare a list of questions that are important • Communicate the message to the jury Develop a script and work with the attorney to get the perfect language
  39. 39. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Avoiding Testimony Issues Offer clear opinions Outline your boundaries of knowledge and ethics Create a case outline and summary for the attorney, which • Enables reviewing of the case plan • Offers a clear overview of the level of knowledge used in the case Make the best effort to coordinate testimony with other experts, who are retained by your attorney for the same case Meet with the paralegal to communicate necessary information to your attorney • Paralegal is a person with special training in either a specific or general area of law
  40. 40. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Testifying during Direct Examination Direct examination is an important part of a testimony during a trial that offers a clear overview of all the findings Create an easy-to-follow and systematic plan for describing evidence collection methods Be lucid while describing complicated concepts Determine the speech to the education level of the jury
  41. 41. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Testifying during Direct Examination (cont’d) • Allows you to maintain control over the opposing counsel Turn towards the jury slowly while giving your response, which The opposing counsel has the opportunity to ask questions about the expert witness’ testimony and evidence Do not offer guesses when asked something irrelevant to the case Use your own words and phrases when answering the opposing counsel Speak slowly as the best offense to problematic questions is to be patient with answers
  42. 42. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Testifying during Cross-Examination (cont’d) • Be prepared for challenging pre-constructed questions • Be prepared for rapid-fire questions • Be prepared for nested questions • Some questions cause conflicting answers • Attorneys make speeches and phrase them as questions • Be patient • Keep vigorous conduct and use energetic speech • Avoid feeling stressed and losing control • State background and qualifications • Balance the language • Practice testifying • Be fair • Avoid ambiguity Recommendations and practices:
  43. 43. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Deposing • Both attorneys are present • No jury or judge • Opposing counsel asks questions Deposing differs from a trial as: • Enables opposing counsel to preview your testimony at trial Purpose of a Deposing The attorney fixes a location for the deposing
  44. 44. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Recognizing Deposing Problems Discuss any problem before deposing to • Identify any negative aspect Be prepared to defend Avoid: • Omitting information • Having the attorney box into a corner • Contradictions Be professional and polite when giving opinions about opposite experts
  45. 45. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Guidelines to Testify at a Deposing Convey a calm, relaxed, confident, and professional appearance during a deposition Do not get influenced by the opposing counsel’s tone or expression or tactics Use the opposing counsel’s name while responding him/her and reply confidently Maintain eye contact with the opposing counsel Keep your hands on the table and hold out your elbows which makes you appear more open and friendly Be professional and polite Use facts when describing the opinion Ask attorney questions for opposing the case
  46. 46. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Dealing with Media • It is unpredictable what the journalists might publish • The comments might influence the case • It can create a record for future testimony, which can be used against you Avoid conversing with the media because: Avoid contact with media during a case Do not give opinions about the trial to media but simply refer to the attorney
  47. 47. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Finding a Computer Forensic Expert Contact professional associations and gather the information of members Check with the non-commercial electronic evidence information centre which provides detailed information of the forensics experts • http://www.logicforce.com/ • http://www.htcia.org/ Some of the organizations which provide computer forensics expert services:
  48. 48. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Learn more about “ Expert Witness” in the Movie “My Cousin Vinny”
  49. 49. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited Summary “An expert witness is a witness, who by virtue of education, profession or experience, is believed to have special knowledge of his subject beyond that of the average person, sufficient that others legally depend upon his opinion” Assists plaintiff’s or defendant’s lawyers to establish facts, assess the merits and help in the preparation of a case, including the initial decision whether to start a litigation or not Determine the basic concepts of the case before beginning and examining the process of evidence Direct examination is an important part of a testimony during a trial that offers a clear overview of all the findings
  50. 50. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited
  51. 51. EC-Council Copyright © by EC-Council All Rights Reserved. Reproduction is Strictly Prohibited
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