The grounds for opinion/expert testimony are different to hearsay, since hearsay only relates to repeating statements made by another person as if they were facts (as opposed the the general exception to hearsay for using the statement to show the state of mind of the person who made the original statement). Opinions are formed from facts known to the examiner or by expressing an opinion about the work, results or conclusions of another, which is different from the simple repetition of the statement of another since the formation of the expert opinion is a transformational process.
I'm not familiar with Canadian law, and it may be that the hearsay rules and the expert opinion rules are in the same section of the law but they are separate legal concepts.
Expert testimony is a class of hearsay here. Hearsay derives from the inability to cross-examine the offered facts. This is why there are exception rules regarding dying declarations, business records and so on.
expert witness
n. a person who is a specialist in a subject, often technical, who may present his/her expert opinion without having been a witness to any occurrence relating to the lawsuit or criminal case.
If you did not see Mr X use the computer but have the expert opinion it was him, it falls in the class of hearsay exception, similar to business records.
Expert witness testimony is a type of circumstantial evidence.
Exactly, you have no direct knowledge of the event but an opinion based on what you believe occurred. You did not see Mr X input the URL for the KP site but you are attributing the action to him based on his login credentials being in use at the time (hearsay that Mr X made a statement or admission as to the fact he was logged in). Once you have this hurdle overcome it is then admissible circumstantial evidence because you did not see Mr X on the computer at the specified time.
There is a common misconception that hearsay only relates to verbal statements. It in fact extends to several different types of communication including digital materials. I looked at the US FREs and note they are quite narrow as to what is hearsay (surmised from the exceptions). In Canada the definition is much broader. Our landmark cases here are Starr and Khan. We don't have a list such as you do in the FRE which as I understand it is derived from the Sixth Amendment. This right to confront is not a concept we have here.
I think we have definitely strayed far afield on this discussion. Suffice to say the definitions will depend on your jurisdiction.
I checked out this Daubert standard. It's good that you have something like this (I am jealous). And it's interesting how it was created. Here in civil law legal system it would be unthinkable, no one really cares about courts' decisions issued in different cases.
"I think we have definitely strayed far afield on this discussion. Suffice to say the definitions will depend on your jurisdiction."
Actually why I pulled by my last statement down and wanted to clarify based on generalities of evidence and witnesses regardless of jurisdiction
Types of Evidence
Real - Physical objects that can be touch, held or observed directly. If it can be connected to a suspect then it is also called hard evidence
Documentary - Written reports, log files. Cannot stand on own and must be authenticated. Originals, not a copy, must be produced - called the best evidence rule
Testimonial - Witness testimony, either verbal or written and must be presented in person by the witness in court or through deposition.
Demonstrative - Evidence that illustrates, helps explain or demonstrates other evidence. Usually a visual aid.
Types of Witnesses
Lay/Eye Witness - The most common type—is a person who watched certain events and describes what he/she saw.
Expert Witness - Specialist—someone who is educated in a certain area. He testifies with respect to his specialty area only.
Character Witness - Someone who knew the victim, the defendant, or other people involved in the case.
Types of Evidence
Real - Physical objects that can be touch, held or observed directly. If it can be connected to a suspect then it is also called hard evidence
Documentary - Written reports, log files. Cannot stand on own and must be authenticated. Originals, not a copy, must be produced - called the best evidence rule
Testimonial - Witness testimony, either verbal or written and must be presented in person by the witness in court or through deposition.
Demonstrative - Evidence that illustrates, helps explain or demonstrates other evidence. Usually a visual aid.Types of Witnesses
Lay/Eye Witness - The most common type—is a person who watched certain events and describes what he/she saw.
Expert Witness - Specialist—someone who is educated in a certain area. He testifies with respect to his specialty area only.
Character Witness - Someone who knew the victim, the defendant, or other people involved in the case.
We use these definitions
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Appendix E is relevant to our issues…
There is no requirement that the expert validate his/her results but there is an obvious risk if they don't which is that should an opposing expert be unable to verify the results (not, necessarily, the conclusions), those results can be called into question, as can any opinions based upon them.
I see. So there is actually not any major difference.
Well, remember that the US justice system is deliberately designed to be adversarial, i.e., each side uses every possible legal method to undermine the case presented by the other side. The notion is that while this type of system may let offenders go free, it will also result in a stricter application of the law which is less likely to trample on individual rights.
What this means insofar as the forensic expert is concerned is that you are not simply concerned with presenting your opinion, you must also anticipate what the opposing expert will do/say and be prepared to address it.
Well, remember that the US justice system is deliberately designed to be adversarial, i.e., each side uses every possible legal method to undermine the case presented by the other side.
Rather pessimistic sir! Considering the alternative is beating each other over the head with clubs to resolve disputes, I think the Civil Procedure laws are actually quite good and provide each side ample opportunity to present their side to an impartial mediator. I am not naive enough to say that the system is perfect, but it is people who make it adversarial by abusing and taking advantage of the latitude given.
Well, isn't it expectable and logical that both sides will try their best (within the law)? That's probably the same around all the world.
(By the way, how many forensic experts in the computer forensics field are in the U.S.?)
Well, isn't it expectable and logical that both sides will try their best (within the law)? That's probably the same around all the world.
(By the way, how many forensic experts in the computer forensics field are in the U.S.?)
Usually you are an 'expert' by determination of the court and are qualified at each instance you are to testify as an expert. Anyone that says "I am an expert" instead of "I have testified as an expert" in any field is blowing their own horn.
Anyway, I would say most of the practitioners are probably in the US.