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Chapter 15 Expert Testimony in High-Tech Investigations

Source: Nelson, Phillips, Enfinger,

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Chapter 15 Expert Testimony in High-Tech Investigations

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    1. Source: Nelson, Phillips, Enfinger, & Steuart - Guide to Computer Forensics and Investigations Chapter 15 Expert Testimony in High-Tech Investigations

    2. Source: Nelson, Phillips, Enfinger, & Steuart - Guide to Computer Forensics and Investigations Lay, Technical/Scientific, & Expert Witnesses Lay Witness – person who basis testimony on personal observation; not considered to be an expert in any particular field Technical/Scientific Witness – person who testifies using only the FACTS related to an investigation; NO opinion is given Expert Witness – person who may give opinions during testimony; opinions are based on experience and facts gathered during investigation

    3. Source: Nelson, Phillips, Enfinger, & Steuart - Guide to Computer Forensics and Investigations Conflicting Out Tactic used by opposing attorneys to disqualify an expert witness by discussing the case with the expert witness. The opposing attorney claims that the discussion has led to a conflict of interest Expert witnesses should avoid this tactic by avoiding any & all conversations with opposing attorneys

    4. Source: Nelson, Phillips, Enfinger, & Steuart - Guide to Computer Forensics and Investigations Procedure Checklists Formal checklists should not be used during an investigation nor referred to in reports or during testimony Opposing attorneys can use formal checklists to disqualify an expert witness if any procedure deviated from the checklist

    5. Source: Nelson, Phillips, Enfinger, & Steuart - Guide to Computer Forensics and Investigations Curriculum Vitae (CV) Outline of an expert witness’ professional history, including education, training, work, publications, and other cases in which the expert witness has been involved CV should contain any item that helps to establish your qualifications as an expert witness: education, experience, professional associations, and any past investigations & testimony CV should be up-to-date (update every 3 months) CV should NOT be specific to a particular trial or case

    6. Source: Nelson, Phillips, Enfinger, & Steuart - Guide to Computer Forensics and Investigations Voir Dire (vwär-der) “To see, to say” or “to speak the truth” Qualification process at beginning of testimony During Voir Dire, the expert witness is asked a series of questions by the attorney who hired him/her Questions are intended to show the expert witness is qualified to testify Opposing counsel may also question the expert witness in an attempt to disqualify him/her

    7. Source: Nelson, Phillips, Enfinger, & Steuart - Guide to Computer Forensics and Investigations Education Level of Jurors The typical juror averages 12 years of education and reads at an eighth-grade level You must speak in a “layperson’s” language and avoid technical jargon (unless there is no alternative) If technical words must be used, they should be defined Use analogies that a layperson would understand

    8. Source: Nelson, Phillips, Enfinger, & Steuart - Guide to Computer Forensics and Investigations Direct versus Cross Examination Direct Examination – when an expert witness is asked questions by the attorney who hired him/her Cross Examination – when an expert witness is asked questions by the opposing attorney

    9. Source: Nelson, Phillips, Enfinger, & Steuart - Guide to Computer Forensics and Investigations Depositions and Trials A Deposition is a formal examination in which the expert witness is questioned under oath NO judge or jury are present at a deposition A Trial would include all parties present at a deposition, plus the addition of a judge and jury

    10. Depositions and Trials (continued) 2 Types of Depositions Discovery Deposition – part of Discovery process. The opposing attorney asks both direct & cross examination questions as the testimony is video-taped or a written transcript is made Testimony Preservation Deposition – held at the request of the attorney who hired the expert witness. It is usually held to preserve the expert witness’ testimony in the event of schedule conflicts or health problems. It is also recorded by video or written transcript. Source: Nelson, Phillips, Enfinger, & Steuart - Guide to Computer Forensics and Investigations

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