How does someone become an "expert witness" in computer forensics? I've looked at information regarding Frye and Daubert but it seems as if they mostly are concerned with the methods used for analysis and not the person being an "expert." Does the potential expert meet with the judge before for an interview or is it established on the stand in front of the judge?
-jhs
In the UK, its on the stand in front of the judge.
66 views and only 1 response?!? There has to be more individuals on this board that testify in court and are considered "expert witnesses." I have been doing forensic examinations for a couple of years but they have all been related to system compromises that never go to court. With the current legislation regarding disclosure, I foresee that changing and wanted to find out how to prepare for it in advance. I appreciate any information or direction you can point me towards. Thanks,
-jhs
Historically the use of 'expert witnesses' in court cases stems from the case of Mary Blandy 1751 where one Dr. Anthony Addington testified that a substance he found in Marys kitchen (arsenic) had been used to poison her father. This was the first case of an expert witness being used to assist the court in a matter that is outside common knowledge. As far as I can tell the pinciple still stands that an expert witness is someone who has knowledge of a subject that is outside common knowledge and can be called upon to assist a Judge and Jury in coming to an informed decision.
The dificulty lies in defining what is outside common knowledge, but I think its safe to say that the most basic procedures in computer forensics are not commonly known so by definition anyone who operates in this field could be considered an expert witness. How correct and good they are is a different matter.
Hi,
Brian sums up the situation with regards UK law very well. I just thought I'd add a few words as you weren't getting as many replies as you'd hoped.
In the UK the Judge decides if you qualify as an 'expert witness', based upon the need of the court to understand something and based on your experience and qualifications. You cease to be an 'expert witness' again when the case finishes. As an expert witness you are entitled to give opinion and the jury are instructed to consider that as valid evidence.
Even if you are not called upon to act as an expert it is likely you will be explaining and demonstrating principles concerning your evidence. This enables a jury to understand what your evidence means and why you and the prosecution believes there is a case to answer.
From my experience in court I have found it is the defence barrister trying to lead me down the path of giving expert testimony, so he/she can test out my opinion of various defence theories not previously indicated at any stage before.
Being an expert witness isn't something many analysts in the UK particularly want to be. They would rather produce evidence from their findings that prove the details of an offence rather than be lead away from often very strong evidence to opinions of peripheral importance.
Steve
In the UK the Judge decides if you qualify as an 'expert witness', based upon the need of the court to understand something and based on your experience and qualifications. You cease to be an 'expert witness' again when the case finishes. As an expert witness you are entitled to give opinion and the jury are instructed to consider that as valid evidence.
Even if you are not called upon to act as an expert it is likely you will be explaining and demonstrating principles concerning your evidence. This enables a jury to understand what your evidence means and why you and the prosecution believes there is a case to answer.
In layman's terms expert is understood by the courts to mean someone who possesses more knowledge about a given topic than the average person.
Steves answer applies in the US as well. The judge decides on a case by case basis. One side may attempt to qualify you as an expert and the opposition can challenge that through the process of "voir dire".
Things that help you pass muster are
training/education
experience
being previously qualified as an expert
As Steve also pointed out not being qualified as an expert is not a bad thing. You can still testify to what you did and in every case I am aware of the findings have been accepted by the court. The opposition will not however let you draw conclusions from your findings.
In my experience it is rare that examiners testify, and this comes from several years experience working criminal cases.
Do you feel confident in your skills, training, equipment, etc?
Can you explain to people who know nothing about computers how it is that you do your job?
Those are pretty important things that you have to be confident in, no one can teach you that. Well, there is an expert witness class but isn't it more fun to just sit and get grilled on for a few days?
If you are retained in a criminal case the pros or defense atty will prep you before the case and go over questions that they will likely ask.
Of course just to make it to the point of court you will probably have to go through a depo or 2.