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Module LI - Becoming an Expert
Witness

EC-Council
Copyright © by EC-Council
All Rights Reserved. Reproduction is Strictly Prohibited
News: The Prosecution of Julie Amero
Source: http://www.reason.com

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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.

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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:

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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

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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”

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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:

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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

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Types of Expert Witnesses
Computer Forensics Experts
Medical & Psychological Experts
Civil Litigation Experts
Construction & Architecture Experts
Criminal Litigation Experts

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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:

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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

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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

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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

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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:

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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

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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:

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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:

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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:

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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:

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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

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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

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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

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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

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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

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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

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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

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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:

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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

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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

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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

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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

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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

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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

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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:

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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

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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:

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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

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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

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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

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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

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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

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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:

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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

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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

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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

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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

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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:

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Learn more about “ Expert Witness” in the Movie “My Cousin Vinny”

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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

EC-Council

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