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see3archie
(@see3archie)
New Member

I work for a Law Enforcement Agency that has recently undergone an extensive job evaluation process. In this, the role of Forensic Computer Analyst has been designated as presenting in court but 'not as an expert witness'. There seems to be varying opinions as to whether this is true, and indeed what actually constitutes an 'expert witness'. As my education and training has always lead me to believe that the role of a digital forensic examiner is ultimately to act as an expert witness, I would be very interested to gather any thoughts on whether this is in fact the case.

Quote
Posted : 05/02/2019 1:03 pm
minime2k9
(@minime2k9)
Active Member

Your profile says that you are in the UK, so I will base my answer on that.

Basically, the newest guidance from the FSR is that all digital investigators are button pushing monkeys and therefore should not be considered 'experts'. She determined all digital methods to be 'measurement' (a horrific ISO 17025 term) and therefore no interpretation is required.

However, outside of that madness, there is no process in the UK for recognizing experts in a digital field. Whereas some fields, such as fingerprints and medical etc, have qualifications or requirements that allow them to be called an expert. This allows them to be presented as an expert witness rather than waiting for the court to recognize them as such.

In my experience, even if I turn up at court and state that there are no formal expert qualifications in our field etc, the judge usually turns around and says "Well you know a great deal more than I do" or something equally witty and then allows me to act as an expert.

As far as your job goes, your force is probably trying to force you down this route to either
Follow FSR's lead or
Downgrade the post so they don't have to pay you as much.

ReplyQuote
Posted : 05/02/2019 1:16 pm
hectic_forensics
(@hectic_forensics)
Junior Member

In the UK, CPS guidelines advise

Definition of Expert Witness

An expert witness is a witness who provides to the court a statement of opinion on any admissible matter calling for expertise by the witness and is qualified to give such an opinion.

The Duty of an Expert Witness

The duty of an expert witness is to provide independent assistance to the court by way of objective, unbiased opinion in relation to matters within their expertise. This is a duty that is owed to the court and overrides any obligation to the party from whom the expert is receiving instructions - see R v Harris and others [2005] EWCA Crim.1980

That said I have always felt uncomfortable being seen as an 'Expert Witness' and would never proclaim myself in open Court to be an 'Expert'. If asked by Counsel or a Judge I would insist that I am 'an experienced practitioner with (x) years experience'. Sometimes a judge may declare that for the purposes of a case they consider you to be an expert, in which case fine, it is the judge declaring that, not you.

ReplyQuote
Posted : 05/02/2019 1:25 pm
hectic_forensics
(@hectic_forensics)
Junior Member

Basically, the newest guidance from the FSR is that all digital investigators are button pushing monkeys and therefore should not be considered 'experts'. She determined all digital methods to be 'measurement' (a horrific ISO 17025 term) and therefore no interpretation is required.

Also. What he said. lol lol lol

ReplyQuote
Posted : 05/02/2019 1:27 pm
DCS1094
(@dcs1094)
Active Member

Basically, the newest guidance from the FSR is that all digital investigators are button pushing monkeys and therefore should not be considered 'experts'. She determined all digital methods to be 'measurement' (a horrific ISO 17025 term) and therefore no interpretation is required.

Just brilliant! lol

So, from my experience in the UK the court will decide whether or not you are to be classed as an expert witness, based on your qualifications, experience and so on… In the past I was requested to sign a disclaimer on MG11 statements to confirm I have read the guidance booklet for Expert Witnesses in the UK to confirm I understood duties.

ReplyQuote
Posted : 05/02/2019 1:29 pm
AGP_Analyst
(@agp_analyst)
New Member

Basically, the newest guidance from the FSR is that all digital investigators are button pushing monkeys and therefore should not be considered 'experts'. She determined all digital methods to be 'measurement' (a horrific ISO 17025 term) and therefore no interpretation is required.

Do you know which guidance this was included in?

ReplyQuote
Posted : 05/02/2019 3:10 pm
jaclaz
(@jaclaz)
Community Legend

This one here
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/375285/FSR-G-201_Validation_guidance_November_2014.pdf

Where there is BTW an actual "definition" of expert (witness)

Expert (Witness)
An appropriately qualified and/or experienced person familiar with the testing,
evaluation and interpretation of test or examination results, and recognised by the
court to provide live testimony to the court in the form of admissible hearsay evidence.

among the madness, but "latest" should be
https://www.gov.uk/government/publications/legal-obligations-issue-6

The initial part (last sentence) is interesting

Expert Evidence
Expert evidence is admissible “to furnish the court with scientific information
which is likely to be outside the experience and the knowledge of a judge or
jury”.

In presenting expert evidence the witness’s “duty is to furnish the Judge or jury
with the necessary scientific criteria for testing the accuracy of their conclusions
so as to enable the Judge or jury to form their own independent judgment by the
application of these criteria to the facts proved in evidence”.

This places the expert witness in a privileged position. The nature of the role
requires that the witness comply with certain obligations. Further obligations
have been imposed for the benefit of the Criminal Justice System.

Basic Condition
The above makes clear that expert testimony is only admissible when it is
required.

It is also clear that expert evidence can only be given by a person who is an
expert in the relevant field.

😯
But I guess the pearl is here
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/651591/Statement_and_Report_Guidance_Appendix_v1.0.pdf

Point 14.2.7 page 19 of 34

A suitable form of words may be as follows.
“My report is based on the results of analytical work undertaken (a) using documented and validated methods within the scope of the organisation’s UKAS ISO 17025 accreditation [lab reference] and (b) by staff determined to be competent for such work under the organisation’s quality systems which are accredited to ISO 17025. This accreditation does/does not cover the assessment and interpretation of evidence.”

jaclaz

ReplyQuote
Posted : 05/02/2019 3:52 pm
trewmte
(@trewmte)
Community Legend

This one here
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/375285/FSR-G-201_Validation_guidance_November_2014.pdf

Where there is BTW an actual "definition" of expert (witness)

Expert (Witness)
An appropriately qualified and/or experienced person familiar with the testing,
evaluation and interpretation of test or examination results, and recognised by the
court to provide live testimony to the court in the form of admissible hearsay evidence.

among the madness, but "latest" should be
https://www.gov.uk/government/publications/legal-obligations-issue-6

The initial part (last sentence) is interesting

Expert Evidence
Expert evidence is admissible “to furnish the court with scientific information
which is likely to be outside the experience and the knowledge of a judge or
jury”.

In presenting expert evidence the witness’s “duty is to furnish the Judge or jury
with the necessary scientific criteria for testing the accuracy of their conclusions
so as to enable the Judge or jury to form their own independent judgment by the
application of these criteria to the facts proved in evidence”.

This places the expert witness in a privileged position. The nature of the role
requires that the witness comply with certain obligations. Further obligations
have been imposed for the benefit of the Criminal Justice System.

Basic Condition
The above makes clear that expert testimony is only admissible when it is
required.

It is also clear that expert evidence can only be given by a person who is an
expert in the relevant field.

😯
But I guess the pearl is here
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/651591/Statement_and_Report_Guidance_Appendix_v1.0.pdf

Point 14.2.7 page 19 of 34

A suitable form of words may be as follows.
“My report is based on the results of analytical work undertaken (a) using documented and validated methods within the scope of the organisation’s UKAS ISO 17025 accreditation [lab reference] and (b) by staff determined to be competent for such work under the organisation’s quality systems which are accredited to ISO 17025. This accreditation does/does not cover the assessment and interpretation of evidence.”

jaclaz

ISO17025 does not demand the Judge/Court only hear expert evidence from an person from an organisation with this accreditation. There are many giving evidence who are NOT ISO17025 accredited.

ReplyQuote
Posted : 06/02/2019 9:28 am
minime2k9
(@minime2k9)
Active Member

ISO17025 does not demand the Judge/Court only hear expert evidence from an person from an organisation with this accreditation. There are many giving evidence who are NOT ISO17025 accredited.

Except now under CrimPR rules you have to declare that your work does not meet the necessary standard as specified by the regulator. Under the section of information that may undermine the evidence.

ReplyQuote
Posted : 06/02/2019 9:54 am
trewmte
(@trewmte)
Community Legend

ISO17025 does not demand the Judge/Court only hear expert evidence from an person from an organisation with this accreditation. There are many giving evidence who are NOT ISO17025 accredited.

Except now under CrimPR rules you have to declare that your work does not meet the necessary standard as specified by the regulator. Under the section of information that may undermine the evidence.

Correct, but does not exclude evidence or more importantly as this topic states expert status. ISO17025 does not confer expert status. A good analogy is Professor XXXXXXX, a doctor of pathology. Professor may not operator the equipment that obtained the evidence, but that does not exclude the Professor from giving expert evidence.

ReplyQuote
Posted : 06/02/2019 10:15 am
Rich2005
(@rich2005)
Active Member

I work for a Law Enforcement Agency that has recently undergone an extensive job evaluation process. In this, the role of Forensic Computer Analyst has been designated as presenting in court but 'not as an expert witness'. There seems to be varying opinions as to whether this is true, and indeed what actually constitutes an 'expert witness'. As my education and training has always lead me to believe that the role of a digital forensic examiner is ultimately to act as an expert witness, I would be very interested to gather any thoughts on whether this is in fact the case.

I once had a job interview many many years ago where the interviewer asked if I was a "qualified" expert witness. I stated that such a thing essentially doesn't exist (whilst having been previously listed such things as the Sweet&Maxwell expert witness directory) and it's ultimately the perogative of the judge.

I've also had cases where I've been called as the prosecution "expert" and the defendant has subsequently sacked their own "expert" mid-trial and been allowed to operate as their own expert (with access to their material as a result - in supervised conditions due to the content) by virtue of having some computer knowledge.

I've regularly had the situation where I've produced evidence deliberately written with zero opinion in it (and without the standard expert declarations - albeit generally in the same format I would do for that if I had to) but upon arriving at court will suddenly be presented as the prosecution expert and having to operate as such.

I imagine most of us (with any sense) will try to avoid giving opinion at all cost since generally speaking presentation of the facts is more than sufficient in almost all instances of digital forensics.

As usual I find the forensic regulator's contributions totally unhelpful and if anything counter-productive / muddy the waters.

Frankly I think they should set up a completely separate body to fund research/validation of forensic tools (and scrap the idea ISO17025 is appropriate for digital forensics) rather than trying to create the illusion of reliability from limited testing/validation/documentation of process.

ReplyQuote
Posted : 06/02/2019 5:46 pm
see3archie
(@see3archie)
New Member

Thank you all for your very insightful contributions, and recommended reading. It is always useful to gather a broad spectrum of ideas - there seems to be no single or simple answer!!

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Posted : 14/02/2019 6:57 pm
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