The best way to be a successful witness is to be a prepared witness . You probably won't be successful if you arrive at the last minute and attempt to answer questions off the top of your head. You'll likely appear to be unprepared and unprofessional. Never allow yourself to be unprepared to present your evidence.
In all things, act in an impeccably ethical manner. Never sacrifice your personal or professional ethics by participating in questionable actions. Remember that all actions and statements must adhere to strict ethical standards.
In many cases, your role in a trial will be as an expert witness . If you want to be considered an expert witness, you need to acquire or demonstrate special knowledge of computers and computer evidence and skill at retrieving evidence from computers. You can achieve the status of 'expert' through education and experience. You become an expert witness when you appear in court for the purpose of presenting evidence or opinion. Most witnesses are allowed to testify only to facts they have perceived first-hand. That is, a regular witness can tell only what she has seen, heard , touched, felt, and smelled. After you are accepted as an expert in your field, your status as an expert witness allows you to provide an opinion.
A person called to testify in a court of law who possesses special knowledge or skill in a specific area that applies to a case.
Be aware that you will be required to justify your status as an expert in your field. You probably will have to produce documented qualifications, including education and practical experience from valid sources. This information will be provided to both parties. In other words, the opposing counsel will receive a copy of your credentials and justification as an expert witness. Generally speaking, your resum is not enough. You will need to provide additional information, such as:
Education received and degrees earned
Professional training received
Other times yotestified as an expert
You are generally requested to appear in court by either receiving a summons or by client request. In either case, your testimony should be completely unbiased and independent. The weight of your testimony depends on your credibility. When you receive a summons, make sure you are prepared before you appear in court.
A court order that compels a witness to appear in court and answer questions.
Most attorneys recognize that an expert in a particular field is not necessarily skilled in presentation skills. Being able to convey information is almost as important as possessing the information. If you are uncomfortable speaking in front of audiences, spend some time with a member of the legal team working on delivery skills. Take the time necessary to ensure you are effective at getting your message across.
Both the legal team and all expert witnesses must spend time preparing for a case. Attorneys usually want to meet with witnesses early in the process. Expert witnesses are sought only when they are needed to explain evidence or strengthen its impact. As an expert, you will be asked to provide information on your experience in one or more areas of expertise. You will also be asked about other times you have testified as well. Be prepared to answer at least the following questions:
What is your educational background, including degrees earned?
What experience do you have in the area in which you are an expert?
How are you qualified as an expert in this area?
Are you aware of any conflicts of interest with respect to this case?
Have you ever testified in court?
Were you called as an expert witness?
In most cases, this initial contact and interview takes place before a formal agreement to testify is in place. Put another way, you're not being paid yet. If you want to work as an expert witness, collect as much background information as possible before the initial interview so you won't waste uncompensated time during initial conversations. If you are ultimately hired , the initial conversation is billable time.
After you are hired as an expert witness, the legal team should question you thoroughly to uncover any issues that could hurt their case. Such issues could include past complaints or claims filed against you, conflict of interest issues, or involvement in activities that reduce your objectivity. Although you have already stated that you are not aware of any conflicts of interest, some questions could arise during the trial that warrant a third party's attention.
We've all heard the rules of radio giveaways: 'Employees of Mega Radio Corporation and their families are not eligible to win this contest.' Avoiding a conflict of interest is the reason for this restriction. If Mega Radio Corporation gave prizes to its employees and their families, many eyebrows would be raised. It would look as if the advertisers' money were being used for employee bonuses. As a result, listeners might lose interest and start tuning to other radio stations that give them a chance to win prizes. Fewer listeners mean advertisers get less return on their advertising investments. Such situations are a result of allowing the interests of one party (the employees ' desire for bonuses) to conflict with the interests of another party (the advertisers' desire to entice more listeners by using contests). When you find yourself in a situation in which you have incentive to make a decision in one particular direction, a conflict of interest probably exists.
Your first opportunity to share your knowledge should be before the trial. Many case preparation activities include taking depositions from witnesses. During a deposition, you are asked questions that pertain to your area of expertise and aspects of the case. You can have a material impact on the case at this point. If you provide strong testimony and speak with authority, you may influence opposing counsel to explore a settlement without going to trial. On the other hand, a weak and unsure testimony can encourage the other side to pursue a trial.
Testimony that is reduced to written form.
The section titled 'What Matters Is What They Hear' in this chapter discusses techniques to get your point across.
When a case goes to court, you will participate in two basic phases of the trial- direct examination and cross examination. Direct examination is where attorneys ask questions that allow a witness to provide testimony. Your legal team should provide a list of direct examination questions they plan to use. The opposing counsel then has the opportunity to question you. Their line of questioning is called cross examination . The purpose of cross examination is generally to weaken your testimony through several means. The best approach to handling cross examination is to be fully prepared with answers to likely questions.
Initial questions asked to a witness to extract testimony.
As early as possible before your court appearance, meet with the legal team to discuss the case. The goal of such a meeting is to understand the basic facts of the case. Although you may have been integral in the evidence collection effort, you may not know about other critical aspects of the case. Becoming an expert in every detail of the case is unnecessary, but knowing about the case as a whole will help you testify for your own piece of it. Such knowledge can also keep you from conflicting with other witness testimony. We'll come back to the topic of saying too much later in this chapter.
Questions asked by opposing counsel to cast doubt on testimony provided during direct examination.
Many attorneys who work with technical cases understand their intricacies and want the whole team to be well informed. If you work with an attorney who seems to guard case information, think long and hard before agreeing to participate. If you do proceed with limited awareness of the case, you may be surprised by some of the questions you will be asked when it is your turn in court.
Another reason to understand the case is that you may not be the only expert witness. Other expert witnesses may have been called on both sides. You need to understand what each expert will testify to before you prepare your own testimony. This knowledge will not change any of the facts in the case, but it will help you scope your own testimony. For example, if you know your own counsel will use a database expert, you can focus on other areas. Likewise, knowing that the opposing counsel has hired an expert to counter your testimony will direct your preparation. You should talk with your counsel to understand likely questions, or at least a general direction, that you may face during cross examination.
After you have a grasp of the general facts of the case, talk with the legal team about their strategy for arguing the case. They may want to emphasize the technical details of the case. Or, they may want to simply touch on the technical evidence and focus more on other aspects. Your involvement is dependent on the strategy the legal team chooses.
These techniques are applicable to noncourtroom presentations as well. If your investigation is part of an incident response effort, your 'courtroom appearance' might be a presentation on the incident. The rules and environment might be different, but the general goals are the same. Your goal is to present the evidence and provide an expert opinion as to what it means.
Remember what part you play in the courtroom. You are the witness. The attorneys are the primary players. They direct the action and call you when its time for you to contribute to the case. You were hired for a specific role. Let's talk some more about what that role really is.
The primary purpose of a trial is to provide a forum for an impartial individual or group of individuals to decide which party prevails in a conflict. In some cases, the facts of the case are plain enough for an ordinary individual to understand them. For example, in cases that involve traffic accidents, most people are familiar with traffic laws and the operation of an automobile. Unless unusual circumstances exist, many attorneys will present the facts directly to a judge or jury.
Cases that involve technical aspects tend to be different. They will commonly involve details that most people do not understand. A case that involves ballistics and traditional forensics evidence normally requires an expert to present and explain the evidence. We've all seen the televised court proceedings with the expert on the stand testifying as to the forensic methods employed. They are necessary to explain the intricacies to the judge or jury.
Your job is often harder, though. Few ordinary citizens will profess to under- stand how ballistics or DNA analysis takes place. Although they are familiar with the terms, most will agree that an expert is required to perform the actual analysis. Computers are different. Nearly everyone has a home computer. What's worse , many home computer owners think they are computer security experts. Your first job is often to explain basic security concepts and how popular concepts may differ from reality.
The science of flight dynamics; often used to determine the flight path of weapons.
For example, most people know what spam is. Few know how it originates and just why it is so difficult to stop. Similarly, malicious code is not understood by most in the general public. Far too few people understand the differences between a virus, a Trojan horse, and a worm.
Deoxyribonucleic acid. DNA is a code used within cells of living organisms. Its uniqueness is useful in investigations to link individuals with substances found in specific locations.
As an expert in the field of computers and computer forensics, you possess a level of knowledge that is beyond the common experience in our society. Your value to a case is to share your experience and explain how the evidence proves facts in the case. You are a teacher as well as a witness. Simply put, the legal team would not be able to successfully convince the court that the facts presented are true without your help.
Unsolicited 'junk' e-mail often sent to a large number of people.