Chapter 17. Becoming an Expert Witness
Introduction
A cybercrime investigation and building of the case file is aimed toward one end result: obtaining a conviction of the cybercriminal in a court of law. No matter how good the evidence you obtain—log files showing unauthorized access to the network, hard disks seized from the suspect's computer containing clear-cut indications of the criminal activity, network records tracking the intruder back through Internet servers to his or her computer—none of this evidence can stand alone. Under most judicial systems, physical and intangible evidence must be supported by testimony. Someone must testify as to when, where, and how the evidence was obtained and verify that it is the same when it is presented in court as it was when it was collected.
Even though you should treat every case as though you were expecting it to go to court, actually testifying in court can be a stressful experience. If you've never been in a courtroom before, it can feel similar to your first day at a new school. You're unfamiliar with the environment, don't know the procedures, and may even make mistakes that will cause you to cringe later. Even when you know what to expect, it can still feel like you're walking into the principal's office (or at times like you're walking onto the playground to be beat up). Testifying generally isn't a pleasant experience, although it can be made easier through knowledge and experience. With enough preparation, the occasion can even be something you'll remember with pride.
Understanding the Expert Witness
Testimony in court is provided by witnesses, which are people who have firsthand knowledge of a crime or incident, or whom offer evidence during a trial, tribunal, or hearing. When evidence is technical in nature and difficult for laypersons to understand, experts may be required to testify to explain the nature of the evidence and what it means to the case. In a cybercrime case, police investigators and information technology (IT) personnel may both be required to take the witness stand. Two types of witnesses can be called to testify in criminal actions:
▪ Evidentiary witnesses
▪ Expert witnesses
An evidentiary witness is someone who has direct knowledge of the case. For example, a network administrator might be called to testify as to what he or she observed during an attack on the network, or an investigator might be called to testify as to the evidence that he or she observed on a computer that was seized pursuant to a search warrant. An evidentiary witness can only testify as to facts (what he or she saw, heard, or did) and cannot give authoritative opinions or draw conclusions.
An expert witness is different from an evidentiary witness in that he or she can give opinions and draw conclusions about facts in the case. The expert witness may have no direct involvement in the case but has special technical knowledge or expertise that qualifies him or her to give professional opinions on technical matters. Expert witnesses sometimes prepare reports that outline their opinions and give reasons for each opinion.
Even though the expert witness can present conclusions, he or she is limited in the opinions that can be expressed. For example, an expert in computer technology may testify that a threatening e-mail was traced to an account that was owned by the defendant, and how analysis of the defendant's computer showed that it was in fact sent from that machine. The witness cannot present a conclusion that the defendant is thereby guilty as sin. After all, a person is considered innocent until proven guilty, and the neutrality of the expert witness should follow that philosophy. The expert in computers also cannot speak about the mindset of the defendant as the e-mail was being sent, as psychology isn't the witness's expertise. A witness is limited to testifying about what he or she saw, heard, or did, and expert witnesses can speak only to this and/or about information that is within the scope of their knowledge and experience.
The prosecution and defense attorneys are both permitted to have expert witnesses testify in a case, although they aren't always deemed necessary by one or either side. As such, experts aren't used in most trials. In many cases, the weight of evidence is evaluated and a plea bargain is reached. A plea bargain is an agreement whereby the defendant pleads guilty to a lesser crime to have more severe charges dropped. Even when a case does go to trial, often the evidentiary testimony is all that a prosecutor or defense attorney needs to argue the guilt or innocence of a defendant. For each case going to trial, an attorney must determine whether the facts would benefit from an expert opinion, or whether the evidentiary testimony and evidence can stand on its own.
The expert witness should also not be confused with experts that serve as consultants, which both sides may use to understand different types of evidence. For example, in a trial involving a car accident, the defense lawyer may contact an expert in safety standards to understand issues related to the air bags used in a particular make and model of car. Although the expert can provide clarity in understanding aspects of the case, he or she isn't an expert witness because:
▪ The person hasn't been subpoenaed or sworn in as a witness.
▪ No testimony has been given in court.
▪ The court hasn't recognized the person as an expert.
As we'll see in the next section, whether someone is designated as an expert witness is primarily at the discretion of the judge. The expert witness provides information about his or her qualifications, and both the prosecution and the defense review the person's education, experience, and other credentials. Either side may challenge the person's qualifications in court, or they will both agree that the person is an expert in a particular field. Ultimately, however, it is up to the judge to recognize the person as an expert.
Qualifying As an Expert Witness
The standards for qualifying as an expert witness vary around the world. In some countries, expert witnesses must be registered as experts in a particular field. In the United States and Canada, experts must generally prove their expertise by presenting their credentials in court.
Determining whether a person qualifies as an expert witness, and whether the person's testimony is admissible, involves a process of examination, cross-examination, and being recognized by the court. The attorney calling the potential expert witness will generally read his or her qualifications into the record, and/or may ask a series of questions. These questions are designed to show the person's credentials as an expert. Such questions might include:
▪ What degrees, diplomas, or certificates do you have?
▪ What positions have you held in this field?
▪ What lectures or courses have you taught in this field?
▪ What memberships in organizations related to this field do you have?
▪ What books or papers have you written pertaining to this field?
▪ What is your past experience as an expert witness in this field?
The quality of your answers to these questions will help determine whether you'll be recognized as an expert in a particular area. However, in looking at these questions, don't feel that you have to have a positive answer to every one. For example, if you have education and experience but don't have any teaching experience, you might still be declared an expert. The key factor is the overall expertise, not whether you have an impressive answer to each and every one of these questions. After all, the first time anyone testifies in court, the answer to whether he or she has testified before is a resounding “no.”
Once the witness has been called to the stand and examined, the court will be asked to accept him or her as an expert. The opposing side will then have the opportunity to accept the witness as an expert or challenge its admissibility. If a challenge is made, the opposing side can cross-examine the witness on his or her qualifications.
The opposing side may challenge the expert witness's credentials in an attempt to have that person's testimony deemed inadmissible, or prevent him or her from stating opinions and conclusions about the evidence. The attorney making this challenge has a heavy burden in attempting to exclude evidence or testimony at any stage of litigation. Not only must he or she attack the credibility of such witnesses, their testimony, and any evidence they've provided, but he or she must do so with limited knowledge. The attorney may be an expert in law, but he or she may have minimal or no expertise in the field of the witness.
As we'll see in later sections of this chapter, an attorney can use a number of tactics and resources when cross-examining a witness and challenging him or her as an expert. Such tactics can include ways of asking questions, and tricks that are often successful in tripping up a witness's testimony. To understand technical aspects of the case and ask more effective questions, the attorney may hire his or her own expert, who can be consulted before the trial and/or during the proceedings. Because the challenging side's expert is never sworn in as a witness, the identity of the expert may never be known to the opposing side, and will never be cross-examined. Although this can greatly help a lawyer's case, costs involved with hiring an expert can be prohibitive, so they aren't used in most cases.
Once the opposing side has cross-examined the witness, the court will hear arguments from both sides on the issue of whether the person should be recognized as an expert. In addition to challenging that the expertise of a witness hasn't been established, and that the person is thereby unqualified to give opinions on subject matter, arguments may be made that the person's expertise is limited. Challenging the limited expertise of a witness can be done during cross-examination. If the person's expertise is deemed limited, the person may still be able to give opinions, but his or her testimony will be given little weight.
Regardless of whether the witness's qualifications are challenged, the final decision rests with the judge. If the judge is satisfied that the witness has sufficient education and experience to testify and form opinions on subject matter related to the case, the court will recognize that the person is an expert. The area of expertise that's recognized may be broad (such as being an expert in computer technology) or limited to a narrow field of knowledge (such as being an expert on a particular piece of software).
Just because a person is an expert in one trial doesn't necessarily mean that he or she will be recognized in another trial. Being declared an expert applies only to that particular case, and doesn't carry forward to any other cases in which you might testify in the future. For each trial, the process of being recognized as an expert must begin again.
Curriculum Vitae
Curriculum vitae is a Latin term meaning “course of life,” used to refer to a document that outlines a person's education, experience, and other credentials. A curriculum vitae (CV) is commonly referred to as a resume, although there are a number of differences between them. CVs are used in court cases to state the qualifications of a prospective expert witness, and you should submit one to the attorney you'll be working with before going to court to qualify as an expert. Once the attorney receives this information, he or she can then forward a copy to the opposing counsel. By allowing both the prosecution and the defense attorneys to review your CV before attending court, you can minimize the number of questions they will need to ask about your qualifications.
A CV can easily be compared to a resume, but in doing so you will see a great deal of disparities. A resume provides an overview of your abilities and achievements and serves as your introduction to a prospective employer. It may include information on why you left a previous employer, your salary history, and a list of personal references. A CV contains none of these elements. It is a detailed synopsis of the qualifications that make you an expert in a particular field. A CV is also generally longer than a resume. Although the recommended length of a resume is no more than one or two pages, a CV can be two or more pages in length. Because it is used to showcase your credentials, it is important that it contains all of the education and experiences you've had that correspond to a particular area of expertise.
Note
Just as many people searching for employment have different resumes that correspond to different types of jobs, many people who serve as experts also have several CVs prepared. For example, you might have one that focuses on computer forensics and another that stresses your education and experience with networks. When a case requires a particular expertise, you can then use the CV that is best suited for that particular case.
Writing a Curriculum Vitae
You can use a number of different formats to write a CV, but most of them contain the same elements and perform the same purpose: They describe who you are as a professional. The CV should identify who you are and how to contact you, and should describe what qualifications you can bring to a case to bring a better understanding of evidence.
Writing a CV begins by providing your name at the top of the document. The attorney who will call you to the stand will need the correct spelling of your name so that you can be added to the witness list. As such, the CV should have your full legal name, as it would be read into the official record when qualifying as a witness.
A CV can also include a line at the top of the document that specifies in what field you are an expert. In doing so, the type of testimony you can provide is easily identifiable to those reading it. For example, a line might be included stating “Specialist in Computer Forensics, Computer Technology, and Information Systems” or “Computer Expert Witness with Emphasis in the Areas of….” This is not required, but the latter example commonly appears on CVs belonging to expert witnesses that are hired to testify.
Below this, you would type your contact information. This includes not only a phone number, Post Office Box (POB) number, and/or other addresses, but also any electronic methods of contacting you, such as an e-mail address and Web site. Contact information is important, as the attorney you're working with will want to be able to reach you as needed. In addition to this, a current address is needed so that the court can notify you of a court date by having you subpoenaed (as we'll explain later in this chapter).
In writing your contact information, you should refrain from using a home address. Doing so can impact your personal safety. After all, if the case involved a violent offender or someone who possessed child pornography on his or her computer, you wouldn't want this person knowing where you lived. If you are creating a CV because of a case you were involved with at work, whether your involvement was as part of an incident response team or as an agent of law enforcement, you could use your employer's address, phone number, and the extension at which you can be reached. Alternatively, if you've been hired as an expert, you should buy a POB and then use the POB number in your contact information.
Below the contact information, you should also include a brief biography, which serves as a summary of your qualifications. Essentially, this captures the highlights of the CV within a few short paragraphs. It should provide a brief overview of education and key points relating to your experience within the field.
The bulk of the CV appears under this information, as this is where your education and experience are listed. The CV should be organized into categories, with qualifications related to each category listed and/or described underneath. Some of the categories under which you could organize your background information might include:
▪ Formal education, including degrees, diplomas, and certifications. You should also include any additional courses, conferences, or workshops you've attended, and list the number of hours of training involved in taking these courses.
▪ Related employment.
▪ Teaching and research experience.
▪ Grants and fellowships.
▪ Licenses and memberships in professional associations.
▪ Publications you've written or to which you have contributed. For each item under this category, you should identify the publisher, name of the publication, and publication dates.
▪ Awards and honors.
▪ Previous testimony experience, with specific reference to any cases in which you were previously recognized as an expert witness.
Any information appearing under these categories should be related to the field of knowledge to which you'll be testifying. In other words, limit your information to what's pertinent. Even though you probably graduated high school, you can generally omit that from the CV because it's irrelevant. What lawyers will be looking for is any post secondary education related to this field. Similarly, unlike a resume, you wouldn't include information about your interests, hobbies, or anything else that doesn't reflect the scope of your expertise in the area in which you'll be testifying.
Falsifying Credentials
In writing the CV, you should be absolutely honest. Although some people will pad their resume with useless and fraudulent information, lying on a CV used to qualify you as an expert witness could lead to perjury charges against you. Remember that any information appearing on the CV may be verified when questioning you in court, so you'll be faced with either the embarrassing situation of coming clean under oath, or continuing the lie and possibly going to jail later.
An example of someone who used bogus credentials and put himself on the wrong side of the law is James Earl Edmiston, who admitted to committing perjury in two cases in which he falsified his qualifications as an expert witness. In declarations prepared between April 3, 2006 and July 19, 2006, he falsely claimed to have had a master's degree from California Institute of Technology, and degrees from University of California or University of Las Vegas. Not only did he lie about this, but he also neglected to mention a prior criminal record for forgery convictions that had included a prison term. In May 2007, Edmiston pled guilty to two counts of perjury, which carries a maximum penalty of 10 years in prison and a $500,000 fine.
Experts Who Are Not Witnesses
Lawyers are taught never to ask a question to which they don't know the answer. However, even though he or she has expertise in practicing law, the lawyer will have limited knowledge of technology or other specialized fields. To compensate for this lack of knowledge, lawyers can use experts as consultants.
Regardless of whether a professional consulting with the lawyer testifies in court, the prosecution or defense attorneys may use the consultant to provide greater insight into a case throughout the course of a trial. The attorney may consult with experts prior to a trial and/or during proceedings. In many cases, the expert will write reports that explain technical aspects of a case in layman's terms, and report any mistakes apparent in witness statements that contain technical information or in the processing of evidence. Because of the information provided by the expert, the attorney can better prepare for the potential testimony of witnesses, and cross-examine them on technical aspects of a case. Because the consultant is never formally used in court (that is, sworn in to provide testimony), one side might never know the name or existence of a consultant being used by the other side.
In some cases, experts may also be present in court. The expert will listen to testimony, provide information on technical anomalies or other facts in what a witness testifies to, and may even provide some follow-up questions that the attorney can use. When the opposing side attempts to qualify a witness as an expert, the consultant can assist in clarifying areas of the witness testimony, and suggest questions for cross-examination that may disqualify the witness as being an expert.
Experts in various fields are also used for the purpose of testing evidence that will be used in a case. For example, DNA evidence may play a key role in a murder trial, or in a trial involving sexual assault or paternity. A DNA expert might be hired to test blood or semen samples. Through such tests, the validity of this evidence can be determined and the expert can show that the sample matches a defendant or has been tainted in some way. Also through such tests, the guilt or innocence of a person may be established, and may determine whether a case is dismissed. Needless to say, if any of the results were used in court, the person would then be called as a witness the tests and any related findings, and probably go through the process of being qualified as an expert witness.
Although experts may be used in a case without ever appearing as witnesses, expert witnesses are also commonly used in the capacity of a consult. The attorney who called the witness may request that the person remain in the courtroom to provide insight into technical issues, or assist in other ways. Because the court has already recognized the person as an expert, there is an advantage of being able to call the witness to the stand again to provide further testimony on facts as they arise during the trial.
Types of Expert Witnesses
An expert witness testifies in relation to subject matter in which he or she has expertise, so it should come as no surprise that because there are so many different subjects, there are many different types of expert witnesses. Although experts exist in many fields, some of the more common ones used in trials include:
▪ Criminal litigation experts
▪ Civil litigation experts
▪ Computer forensic experts
▪ Medical and psychological experts
Criminal Litigation Experts
Criminal litigation experts are used to assist in the prosecution and defense of individuals involved in a crime. Criminal litigation involves actions against individuals who have committed illegal acts, and who are brought to court by the government to address charges of breaking specific laws. To assist in understanding the technical details of a case, evaluate and present evidence, and perform other functions that can best be addressed by an expert in a related field of knowledge, expert witnesses are used.
The specialties of criminal litigation experts used in court vary greatly. There are experts in almost any field you can think of who may be used to explain any type of evidence or aspect of a case. In criminal cases, the majority of experts used by the prosecution will be members of the police, or others involved in the investigation. As we've discussed, the person who performed a computer forensic examination will often be called as a witness, and may be qualified as an expert in a particular area of technology. Similarly, in a case involving a car accident, a police officer trained as an accident reconstructionist will collect evidence at the scene of the accident, and reconstruct the cause, effects, and other events that led to the accident from these clues. The defense may also use experts to support their position in the trial. These experts may be used to perform tests and review facts of the case, as well as provide alternative interpretations of the evidence. Providing this expertise to a case can clarify the facts of the case for the judge, jury, and other parties involved.
As we mentioned previously, experts are also used to provide technical consulting to legal counsel, and they serve as a resource for explaining technical details. This insight will prove useful not only during the trial, but also during discovery and depositions, which we'll discuss later in this chapter.
Hiring Experts
In looking at the kinds of professions in which expert witnesses have education and experience, you might wonder why they would be so willing to testify in court. In many cases, the expert witnesses used in a trial are paid for their time and expenses. Payment is usually on a per diem basis and may include travel expenses and accommodations during the trial. Many people hire themselves out as expert witnesses, specializing in many different technical or scientific fields, including computer forensics. Although it's more common to hear of people trying to get out of court duties, or of people who are anxious to testify only if they have a vested interest, many such expert witnesses advertise their services on the Internet. For example, The Expert Pages (www.expertpages.com/experts/computers.htm) is a database listing expert witnesses in many fields, available throughout the United States and Canada.
Civil Litigation Experts
In addition to criminal cases, experts are used in civil litigation, in which one party sues another to reclaim what they feel is owed them. In doing so, civil litigation courts provide a forum for resolving these disputes. Different types of civil litigation can include any number of lawsuits between individuals and/or businesses, including:
In looking at the various legal actions that may occur in civil court, you can see that not all of them involve suing for monetary settlements. In many cases, civil litigation attempts to determine the rights of an individual, the scope of an agreement, or the intention of a contract. For example, if a person died without a will, the court may be required to determine the wishes of the deceased and how to best divide the estate among the person's spouse, children, and other interested parties. To determine the facts of a case and come to an equitable decision, expert witnesses may be used to evaluate and assist in understanding the details of the case. These experts are often the same types as those that may be used in a criminal trial, including forensic accountants, medical experts, and other professionals who specialize in any field that could provide insight to aspects of the case.
Even though civil court is different from criminal court, the two often overlap. In addition to using the same types of experts in both areas of law, a case that is held in criminal court may later appear in civil court. A popular example of this is the O.J. Simpson trial in which Simpson was acquitted of the murders of two people, but was later found responsible in civil court and was ordered to pay damages in a wrongful death suit. Just because an individual is tried in criminal court doesn't mean he or she can't be sued later in civil court.
Computer Forensic Experts
As you well know from reading this book, computer forensics is the collection, examination, preservation, and presentation of digital evidence. Computer forensic experts acquire and examine potential evidence during an investigation, including data that's been deleted, encrypted, or damaged. Any steps taken during this process are documented, and methodologies are used to prevent the evidence from being altered, corrupted, or destroyed. As we've stressed throughout this book, any case involving computer forensics should always be treated as though it were going to court, and that any documentation and evidence will eventually be turned over to a prosecuting attorney.
In criminal cases, the defense attorney may also hire his or her own expert to review the evidence and determine whether any errors were made during the examination of the computer. The expert will also document the actions he or she took, which will generally be incorporated into a final report that's submitted to the lawyer. This expert may also be required to testify in court, but this time on behalf of the defense attorney.
While serving as an expert for the defense, the computer forensic expert should remain impartial and perform many of the same functions as that of the prosecution. Any examinations he or she performs would involve examining, preserving, and presenting evidence, and could also require collecting additional evidence that was missed during the investigation. In doing so, the expert would attempt to find alternative reasons for the presence of data, such as identifying whether a Trojan horse, botnet, or other malicious software was present on the machine. Because he or she is working on behalf of the defense, it is important that any client-attorney information that is inadvertently acquired is kept private and is not divulged without the consent of the attorney or under order of the judge.
Computer forensic experts may also be used in civil litigations. Because information dealing with a case may be stored on computers or other devices, computer forensic experts may be used to search for data such as e-mail, text messages, chat logs, Web site history, calendar files, spreadsheets, documents, images, and other files on a machine. Examining this data may reveal facts that reveal an adulterous affair, fraud, malfeasance, downloading or visiting illegal or disturbing material (such as pornography), or other activities that could determine the outcome of a lawsuit.
Because the data acquired through computer forensics includes documents, spreadsheets, and other files that contain information outside the computer expert's scope of knowledge, additional experts will be used to explain what has been found. In such situations, the investigation and ensuing criminal or civil litigations will often use other experts that are suited to the evidence.
Medical and Psychological Experts
Like computer forensic experts, medical and psychological expert witnesses can be used in both civil and criminal litigation. Medical and psychological experts respectively provide insight and assistance in physical and mental issues that may be involved in a court case. They may be used by either side in a court case to perform tests, evaluate existing diagnoses, or testify about technical details related to evidence.
Medical experts are doctors or health professionals that are dedicated to specialized fields of medicine. They may be used to perform DNA or toxicology tests, testify to the extent of injuries suffered by a victim or plaintiff, or provide information on diseases, disabilities, practices, and/or procedures. Some of the other areas in which they provide specialized assistance include:
▪ Dentistry, which can include forensic dentistry and bite marks.
▪ Drugs, which may involve testifying about prescription medication or illegal drugs taken by an individual. This type of expert can testify about different types of drugs and their effects, or perform and evaluate drug tests on an accused person or individuals involved in a case.
▪ Malpractice, in which errors made by doctors or medical professionals are evaluated, reported, and presented in court.
Psychological experts are doctors and medical professionals who specialize in areas of mental health, psychology, and psychiatry. They may be used to evaluate and testify to the competency of an accused person or individual involved in the case, such as when it needs to be determined whether a person is fit to stand trial, or to establish the mental state of a person when a crime took place. In hearings involving children, they may also be used to establish whether a parent is unfit, or should be allowed to have unsupervised access to children. Some of the areas in which they provide specialized assistance include:
▪ Diagnosis and treatment of mental illnesses
▪ Medications and psychotropic drugs
▪ Standards of care
▪ Emotional distress and effects of a crime or event
Because medical and psychiatric experts may be used during an investigation, they may be required to testify in relation to information they provided earlier or evidence they acquired. For example, if a forensic or behavioral psychologist were used to develop a profile of a serial killer and victims associated with the case, the information previously provided to police would appear as evidence in a trial. The expert would then need to testify, to explain the techniques that were used, and to explain details that may not be clearly understood to the court.
Testimony and Evidence
Testimony and evidence fall hand in hand with one another in a court case. Evidence often needs some narrative to put it into the context of the case, and it relies on witness testimony to do that. When someone providing technical details of a case gives testimony, that testimony can fall into one of two categories:
▪ Technical testimony
▪ Expert testimony
Technical testimony is statements given under oath that present facts of a technical nature. In presenting the information, the witness must be technically accurate while translating complex and scientific issues to simple terms and concepts. In other words, in addition to testifying about the case, he or she must also teach the jury and/or judge so that they understand the relevance of these technical facts. Because it is vital that those in the court understand what is being discussed on the stand, there are a number of things you can do while testifying to make your testimony more understandable to laymen, including:
▪ Refraining from using jargon.
▪ Explaining the meaning and relevance of terms and acronyms. For example, “EnCase is forensic software that was used to acquire data from the computer. It's a proven product which has been used by the FBI for many years.”
▪ Providing a glossary of technical terms and concepts to legal counsel. This may also be used by the court reporter when transcribing your testimony.
▪ Providing diagrams and pictures that will allow the jury and/or judge to better understand what's being discussed.
It is often useful when relating technical information to speak in a slow, gentle tone of voice. Although you should talk slow enough that the court reporter can effectively transcribe your statement and the judge and jury can follow the progression of your testimony, you shouldn't talk so slow that it appears you're patronizing those in the room. Practicing the pace and timbre of your voice on friends and family before testifying can help you identify the best way to speak clearly.
Because many people may not understand certain technologies being discussed and will find it difficult relating to your testimony, you should try to use analogies when explaining difficult concepts. For example, “Internet Protocol addresses are similar to street addresses. The same way your home address lets other people know where you live, IP addresses are also unique addresses that identify one computer to others on a network.” When you use a familiar concept, people can more easily relate to what you're saying.
Unless you are qualified as an expert, you should refrain from offering any opinions about the case, as they will be deemed inadmissible. You should state the facts, and answer questions without providing any personal or professional conclusions.
Expert witnesses also commonly give technical testimony, but they are able to expand on their comments by expressing opinions and conclusions. Expert testimony is statements given under oath by a witness who's been recognized as an expert in a particular field. In providing facts that will help a jury and/or judge better understand the case, the witness may express an educated opinion related to his or her area of technical or specialized knowledge. The scope of this knowledge is established when qualifying the witness as an expert, and it determines what the witness is and isn't allowed to express during the trial. Any opinions that are outside the person's expertise are considered inadmissible.
Rules of Evidence
The guidelines that dictate whether a person can be recognized as an expert witness, and the admissibility of evidence, are governed by the laws of the jurisdiction of the court in which the evidence will be introduced. Thus, it is extremely important for investigators to become familiar with the applicable laws. These rules are adopted by statute and are usually codified into a document titled “Rules of Evidence.”
In the United States, Congress adopted the Federal Rules of Evidence (FRE) as a set of standards that determine how evidence is presented and deemed admissible in court. Because state and federal laws are different, many states have also adopted their own sets of rules, some of which are identical to those in the Federal Rules. The FRE contains a considerable number of rules, but those dealing with opinions and expert testimony are explained under Article VII. The rules under this article consist of the following:
▪ Rule 701, Opinion Testimony by Lay Witnesses
▪ Rule 702, Testimony by Experts
▪ Rule 703, Basis of Opinion Testimony by Experts
▪ Rule 704, Opinion on Ultimate Issue
▪ Rule 705, Disclosure of Facts or Data Underlying Expert Opinion
▪ Rule 706, Court Appointed Experts
Rules of Evidence
Laws can change over time, so it's important to review them from time to time and ensure that any changes will not impact your ability to testify as an expert witness. The latest version of the Federal Rules of Evidence (at the time of this writing) is available on the U.S. House of Representatives Committee on the Judiciary Web site at http://judiciary.house.gov/media/pdfs/printers/109th/31310.pdf.
Rule 701, Opinion Testimony by Lay Witnesses
Rule 701 addresses evidentiary witnesses who are not in court to provide expert testimony. Because of this, the scope of testimony is limited to events that transpired, and to what a person saw, heard, or did. Any opinions and inferences that the witness does make are limited to the following criteria:
▪ They must be rationally based on the witness's perception.
▪ They are helpful to achieving a clear understanding of the testimony or determination of a fact in issue.
▪ They are not based on scientific, technical, or specialized knowledge.
Although this rule does provide the ability for the witness to have an opinion on the events he or she witnessed, it limits this opinion to a narrow scope. For example, if a mugger held a gun to your head and said “Give me all your money, you don't want to die,” a rational perception of this event would be that the mugger was going to kill you if you didn't give him your money. Such opinions are void of any specialized knowledge and deal only with clarifying the event, and what you believed was occurring.
Rule 702, Testimony by Experts
Rule 702 addresses testimony by expert witnesses who can have opinions based on scientific, technical, or specialized knowledge. As we discussed earlier, for this rule to apply, the witness must be qualified as an expert before he or she can testify in court. Rule 702 states the following:
“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”
In looking at this rule, you will see that the function of providing expert testimony is to assist in understanding, determining, and relating to the evidence and facts presented in a case. The information provided by the expert must be based on facts or data, and must use reliable principles and methods. In other words, any methods used can be reproduced.
Scientific methods that not accepted also cannot be used for expert testimony. For example, let's say that an expert based his conclusions that a defendant was guilty on physiognomy, which is a pseudoscience where criminal behavior is can be determined based on a person's facial appearance, head shape, and other physical features. Because this isn't a reliable or accepted science, the expert's opinions, conclusions, and possibly his or her entire testimony would be inadmissible.
Rule 703, Basis of Opinion Testimony by Experts
Rule 703 is another major rule for expert witnesses and the opinions they may express in testifying. This rule states:
“The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the Court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.”
The basis of this rule is that experts who have access to evidence or information prior to a trial. In such cases, the expert may form an opinion on these facts, even if they are not used or inadmissible in court. For example, a psychology expert might be aware that a defendant on trial for possession of child pornography had prior convictions for child molestation. Even if the jury isn't allowed to hear about these prior convictions, the psychologist could use this information to form an educated opinion that the defendant is a pedophile. The expert couldn't mention the prior convictions in court, but could state an opinion that was formed by this information.
Rule 703 is controversial to some, as evidence that can't be used in court is being used in an indirect manner. The evidence used by the expert doesn't completely provide a back door to submitting evidence, although there is some validity to this argument. If the jury has difficulty evaluating the expert's opinions, the judge could provide them with information and evidence that was used by the expert, even if it was otherwise inadmissible.
Even though the expert's opinions are considered vital to a trial, and can even outweigh the prejudicial effect of certain evidence, this isn't to say that opposing sides are powerless to the conclusions of an expert. The witness can still be cross-examined to challenge the validity of his or her opinions, and the opposing side can call their own expert witnesses to provide alternative conclusions and opinions on the facts of the case. However, a problem with this tactic is that when experts are called to challenge or provide conflicting opinions to a previous expert, the end result is that the jury can become confused and even disinterested. Because the opinions expressed can ultimately be discarded, it is known as junk testimony.
Rule 704, Opinion on Ultimate Issue
Rule 704 deals with the ability of legal counsel to object to opinions made by an expert, and what an expert can testify to in certain situations. In most cases, an attorney cannot object to an opinion made by an expert, because its validity should be decided by the facts of the case. In other words, cross-examination and evidence in the case should help evolve a decision as to whether the expert is correct. However, an objection can be made if the expert testifies about the mental state of a defendant in a criminal case, and whether the defendant had this mental condition while committing the crime or when using it as a defense. The expert isn't permitted to make such a conclusion, as the facts of the case should decide this issue, not the opinions of a witness.
Rule 705, Disclosure of Facts or Data Underlying Expert Opinion
Rule 705 addresses issues raised in Rule 703 regarding facts and data that were used to form an expert opinion being disclosed to the jury. In this rule, the expert may provide an opinion without releasing information or evidence that helped to form that opinion. He or she may be able to disclose these facts if the judge instructs him or her to do so, or may be required to disclose certain facts during cross-examination. This rule states:
“The expert may testify in terms of opinion or inference and give reasons therefore without first testifying to the underlying facts or data, unless the Court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.”
Rule 706, Court Appointed Experts
Rule 706 provides guidelines on how experts should be appointed by the court. The rule provides information dealing with:
▪ How they are appointed
▪ The monetary compensation they receive
▪ Disclosure, which simply states that the court may inform the jury that the court appointed an expert witness
▪ That legal counsel (that is, the prosecution and defense) may also call their own expert witnesses
Testifying As an Expert Witness
Testifying as an expert witness can be an intimidating and stressful experience, especially if it's your first time. You may be unfamiliar with the courtroom, its layout, what's expected of you, and what will happen in court. Although you may receive some preparation from the attorney who will call you as a witness, often you receive little to no preparation and feel like you're simply thrown in the lion's den.
Although the courtroom can appear professional and reverent, the moments between cases and breaks in court can be absolutely chaotic. Paperwork needs to be processed, exhibits need to be prepared, witnesses need to be organized and updated, and those involved in a trial become embroiled in a flurry of activity behind the scenes. Although this chaos can filter into the trial, what most people see when entering a courtroom is an ordered and sober environment. Each person involved in a trial has his or her own place in the room and his or her own tasks to perform, including the following:
▪ Judge This is a court official who is either appointed or elected to preside over the court, and make judgments on issues in trials and hearings.
▪ Court reporter This is a court officer who transcribes the testimony and arguments made in the trial, which will become an official record of the proceedings.
▪ Court clerk This is a court officer who performs administrative duties, such as swearing in witnesses, handling exhibits, and performing other duties for the court.
▪ Bailiff This is a court officer who is responsible for maintaining order and decorum in the courtroom. In some jurisdictions and countries, the bailiff may instead be court security, and may be designated as a special constable of the police. The bailiff has custody of the jury and will escort them in and out of the courtroom. The bailiff may also perform other duties, such as calling in witnesses waiting outside the courtroom.
▪ Prosecutor This is the lawyer representing the state (or Crown in Canada and the United Kingdom) in criminal court cases. In doing so, the prosecutor represents the people and is responsible for taking legal action against the defendant and putting him, her, or them on trial.
▪ Defense attorney This is the lawyer representing the defendant in a criminal court case.
▪ Plaintiff This is the person suing a defendant in civil litigation. In civil litigation, both the plaintiff and the defendant may also have their own legal counsel.
▪ Defendant This is the person charged with a crime (in criminal court) or the person being sued (in civil court).
▪ Jury This is a group of citizens who have been selected to hear evidence and render a verdict.
▪ Witnesses These are individuals who are testifying to events that occurred or evidence that is presented as exhibits in the trial.
▪ Spectators These are members of the public and/or media watching the trial. They may consist of friends and family of the defendant, or interested parties who have come to watch the proceedings.
Of these roles, serving as a witness can be one of the most demanding to fulfill. Without the testimony and evidence a witness provides, it would be impossible to achieve a conviction. Although testifying can be uncomfortable even if you have years of experience as an evidentiary or expert witness, knowing about the process relieves much of the stress. In the sections that follow, we'll discuss aspects of the courtroom, trial proceedings, the tactics that may be used by prosecutors and defense attorneys, and what you can expect when testifying. The fewer surprises you have and the better prepared you are, the fewer problems you'll encounter on the stand.
Layout of a Court Room
Courtrooms are traditionally laid out in a specific manner, with chairs and other furniture arranged for special purposes. Dissimilarities may be apparent when comparing courtrooms that are used for different purposes or judicial systems, such as when comparing family court to a military court martial, or those of different countries. However, even when these differences are seen, similarities in functionality can usually be recognized.
As shown in Figure 17.1, the layout of a courtroom can consist of numerous individual components, including:
▪ Judge's bench A desk area where the judge is seated to preside over the trial.
▪ Witness stand An enclosed seating area where the witness gives testimony.
▪ Court reporter's desk Where the sworn proceedings of the trial are transcribed.
▪ Court clerk's desk Where records of the court are maintained.
▪ Jury box Seating for members of the jury.
▪ Defendant's table Where the defendant and his or her legal council (defense attorney) are seated.
▪ Podium Where the prosecutor and defense attorneys will stand when formally addressing the court and examining/cross-examining witnesses.
▪ Well of the courtroom The main area of the courtroom where proceedings of the trial take place.
▪ Bar A railing separating the gallery from the well of the courtroom.
▪ Gallery An area where members of the public, media, and other spectators are seated.
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| Figure 17.1 Sample Layout of a Courtroom |
A courtroom serves as the staging area of a trial, and has a theatrical design. When looking at Figure 17.1, you can see that it is intended to accommodate an audience, as most trials are open to public spectators. Although public trials provide accountability to how they are conducted, the design of a courtroom is also influenced by the centuries-old practice of it being a form of public entertainment. The layout of a courtroom is designed to give maximum visibility to those watching the trial (whether they be judge, jury, or spectators), and focus their attention on the actions and actors involved in the courtroom process.
To help achieve this, the components of a courtroom are layered to varying heights. The judge's bench is positioned higher than other seating areas in the room. This allows him or her to rule over the court from a vantage point that overlooks everything, but it also conveys the judge as an authoritative and imposing figure that has control over the room. The witness stand may also be raised, but it is lower than the judge's bench, forcing anyone giving testimony to look up at the judge, but to remain at eye level with the lawyers who stand at a podium in the well of the courtroom when conducting their examination and cross-examination. Less visible are the court officers who sit at the foot of the judge's bench. Whereas the court reporter generally remains unnoticed during the trial while transcribing the proceedings, the court clerk is generally noticed only when swearing in witnesses or performing other court functions. To the side of the judge, a jury box provides the next best possible seats. In a jury trial, the jurors will be able to see and hear everything in the trial as it plays out in front of them, much like the spectators who sit in the gallery to the backs of the lawyers and the accused.
Technology in the Courtroom
Although tradition has dictated the design, technology has also influenced the courtroom. Newer courtrooms are often built with technology in mind, whereas older ones may be retrofitted to accommodate computers and display digital evidence more easily. Because there are no standards for the availability of technology, what you may see can vary greatly between courtrooms.
Even in older courthouses, a certain amount of technology will be present. Microphones are used in the witness box, judge's bench, and podium to allow voices to be heard throughout the courtroom, and lawyers will often use laptop computers to maintain their notes and other information brought to court. Although newer courtrooms are designed to have a sufficient number of electrical outlets, this generally isn't the case in older courthouses. As such, these and any other devices brought to court may require extension cords and/or power bars to be taped or draped across the floor. This can be a little surprising to see when walking to the witness stand, and having to step over a matt or duct tape covering electrical cords.
In newer or retrofitted courtrooms, technology and the justice system are better integrated. Some of the advanced technology you may find in these courtrooms includes that following:
▪ Document camera A device on which documents or small to medium-size objects can be placed so that their image can be captured by an overhead camera. The camera may project the image to a screen (much like an overhead projector would) or transmit it to monitors networked together in the room.
▪ Display monitors Used to display images, multimedia presentations, or other output from a computer or a document camera. These can be flat panel displays that are located on the judge's bench, witness box, court officer's table(s) (court clerk, court reporter), and legal counsel's tables, and between pairs of jurors in the jury box.
▪ Annotation monitors Monitors located at the podium and witness box that allow on-screen drawings to be made, such as diagrams or other information that enhances what is displayed on other monitors in the courtroom.
▪ Real-time transcription Allows transcribed testimony to be directed to the judge's bench and counsel tables.
▪ Translation and listening devices Allow any testimony in another language to be spoken into a microphone, translated by another person, and then broadcast via infrared or other technologies to listening devices (headsets and so on) that are worn by the judge, jurors, legal counsel, court officers, and others directly related to the trial.
▪ Videoconferencing Involves cameras fixed in the courtroom that are focused on the judge, witness, and legal counsel at the podium. Other cameras may also be set up in other rooms of the courthouse, such as the judge's chamber or a room used for testimony by individuals who have been excused from testifying in the courtroom. The images captured by these cameras can then be used for pretrial conferences, remote witness testimony, or other proceedings. For example, a child who was sexually abused might be excused from facing his or her abuser in the courtroom, and be able to testify from a remote location.
▪ Computer-ready counsel tables Tables used by the prosecution and defense attorneys. These may be discretely fitted with electrical outlets and ports that allow connections to display monitors or other features available through the courtroom.
▪ Printers Allow information displayed on monitors to be printed, as well as data from any or specific computers in the courtroom.
Because the level of technology available in a courtroom may vary, you may need to confer with the prosecution regarding whether certain equipment will be accessible for your testimony. For example, if your testimony relies on showing the images or other files found on a hard disk, it would be beneficial to know whether they can be displayed on monitors already in the courtroom, if a computer projector and screen are available, or if you will need to bring your own equipment. By being prepared and understanding what's available to present your testimony, you can avoid situations that make testifying chaotic and stressful.
Order of Trial Proceedings
The trial process actually begins when a suspect is arrested or a warrant is issued for a suspect's arrest. After the arrest, the defendant is taken before a magistrate (a judge or, in some cases, the mayor of a city or town) within a specified time period—usually within 48 hours—and arraigned. This arraignment is an informal process whereby the magistrate tells the defendant what charges have been filed against him or her, Mirandizes the defendant, and sets or denies bail.
A preliminary hearing usually takes place within a few days. In this hearing, the prosecution must present enough evidence to convince the judge that the defendant should go to trial. In some cases, the defendant goes before a grand jury instead of a judge. This is a secret proceeding in which the grand jury decides whether to hand down an indictment. Next, a formal arraignment may be held, at which the defendant can enter a plea for the charges against him or her.
Before the actual trial, there is usually a pretrial conference or hearing at which motions can be filed (for example, asking for a change of venue). Finally, the case goes to trial. If the defendant pleads not guilty to the charges, a jury is selected through the voir dire process, during which each side gets to question potential jurors and strike, or exclude, a certain number of them. The judge instructs the jury on the applicable law, and then the attorneys each give an opening statement.
Because the burden of proof is on the prosecution, the prosecuting attorney gets to go first with an opening statement. After the defense attorney's opening statement, the prosecution calls witnesses. With each witness, the prosecution asks questions; this process is called direct examination. Then the defense attorney is allowed to question the witness about the matters that were brought up during direct examination. Afterward, the prosecution can redirect, after which the defense can recross. This process occurs with each witness until both attorneys are finished questioning that witness.
An investigator or IT professional testifying as to personal knowledge of the evidence in the case (an evidentiary witness) will be testifying as a prosecution witness and thus will be directly examined by the prosecutor and cross-examined by the defense attorney. Expert witnesses may testify for either side, but must be qualified as experts prior to testifying so that any opinions they have may be included in the testimony.
When the prosecution has presented all of its witnesses and evidence, the defense attorney usually makes a motion to dismiss the case due to lack of evidence. If this motion is granted, the trial is over and the defendant goes free. If not, the defense presents its case, calling witnesses to testify. These witnesses are cross-examined by the prosecutor, and so forth, in the same manner as the prosecution witnesses. After the defense has presented its case, the prosecution is allowed to call rebuttal witnesses, and the defense can rebut those witnesses.
Finally, when all the rebuttals are done, the attorneys make their closing statements (which side goes first depends on the court) and the judge gives more instructions to the jurors, who are then sent out to reach a verdict.
Subpoenas
A subpoena is a legal document that is issued by the court to notify you that you are required to attend court to give evidence as a witness. The court may subpoena you on behalf of the prosecution, the defense, or both. In looking at the subpoena shown in Figure 17.2, which is an actual subpoena with the pertinent data removed, you will see that it contains a considerable amount of information regarding a trial, including the following:
▪ The name and address of the person being summoned to court
▪ The date and time you are required to attend court
▪ The name of the defendant
▪ What the defendant is charged with
▪ The address of where the trial will take place
▪ The name and contact information of the officer in charge of the case
▪ The name of the attorney subpoenaing you
▪ Instructions to bring any books, documents, writing, or other exhibits related to this case with you
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| Figure 17.2 Example of a Subpoena |
The subpoena is hand-delivered to you by a summons officer or other court officer, who will use information on the subpoena and other contact information that you may have previously supplied to the investigator or attorney. Once you have been served with the summons to appear in court as a witness, you are required to attend. If you fail to attend, criminal charges may be pressed against you, and if convicted you could face imprisonment and/or a fine.
Not Appearing in Court
There may be situations when attending court is not possible. When there is a good reason not to attend court, you should notify the attorney who subpoenaed you and the officer in charge of the case as soon as possible. If a reason is good enough, you may be rescheduled or (in cases where your testimony is pivotal to the case) the trial itself may be rescheduled.
An example of not being able to attend court occurred the first time I was subpoenaed to appear as an expert witness in a trial. When I saw the date of the case, I realized it was the due date that my wife was to give birth. I informed the investigator and attorney, and mentioned that the chances of my wife actually giving birth on the due date were slim. As fate would have it, my son was right on time, born on the day I was scheduled to testify.
Although I had warned those involved of this possibility, I was on the phone in the delivery room explaining how I wouldn't be able to attend court. I should also mention that I had the good sense to call after my wife had delivered our son. The attorney prosecuting the case offered congratulations and I was rescheduled to testify the next day. The thought was, I would be the first to testify, and then could return to the hospital to bring my wife and son home after they were discharged.
Although I generally recommend a witness getting a good night's sleep, I managed to get three hours of rest before dropping off my daughter at a babysitter and showing up to court the next day. Upon arriving at court first thing in the morning, I found that my scheduled testimony had been delayed due to another witness needing to complete her testimony from the previous day. I waited for the other witness's testimony and cross-examination to be completed, and then found that another witness was being moved ahead of me to offer his testimony. By that afternoon, I was wondering if I was even going to be called to the stand, or if I would be rescheduled to the next day. I explained that my wife and newborn son had been discharged from the hospital, but were waiting for me to pick them up. Although my wife was patiently waiting for me to be finished, she had now been waiting all day in the maternity ward for a ride home. The attorney who called me as a witness told me to leave court, pick her up from the hospital, and bring my family home … and then rush back and testify.
After unceremoniously dropping my wife and newborn son off at home, I returned to court, where other witnesses were still being examined and cross-examined. When I was finally called to the witness stand, I received congratulations from the judge and court officers, gave my testimony, and then proceeded to be grilled by the defense lawyer until the day concluded. Few witnesses ever remember one of the most stressful times testifying in court as also being one of the happiest days of their life.
Depositions
Depositions are a process of questioning witnesses prior to a trial, and are used in the pretrial stages of both civil and criminal cases. In a deposition, the witness is under oath and is required to tell the truth as though in the trial. Legal counsel can examine and cross-examine the witness, and may even use this as an opportunity to discover information that may be used in the later trial. Because the deposition doesn't require a public forum, it may not necessarily be held in the courtroom, but instead in a meeting room or another venue that's been agreed upon.
Throughout the deposition, a court reporter or a stenographer documents the questions and statements made so that they can be preserved for future reference. Although the deposition doesn't replace testifying during the trial, unless there are exceptional circumstances for why the witness is unable to attend (such as dying before the trial starts), the information gathered in the deposition can later be used in trial. Attorneys may use statements made in a deposition to show contradictions in later testimony, thereby discrediting the witness by showing inaccuracies between incongruous statements made under oath.
Testifying in a deposition is generally less formal than the trial itself, although the same etiquette of showing respect for the court and those involved in the process applies. Because of this, requests for a break can be made whenever needed. Although it can be less formal, you should never assume anything is off the record. Any remarks made during the deposition will be recorded, so you should refrain from saying anything you don't want preserved for posterity until you are away from the court reporter and the location where the deposition is held.
Once a deposition has been transcribed, a witness is given the opportunity to review its contents for any inaccuracies and make corrections. It is important that you read the transcription thoroughly; once it's read and signed, it becomes an official record. When reviewing the document, you should look for mistakes in dates, times, quantities, or technical details that may appear later during the trial as evidence. The more accurate the deposition is, the less chance a mistake will be used to contradict truthful statements made later in court.
Tip
When testifying in a deposition or trial, you are generally given a glass of water immediately upon taking the witness stand. This is because your mouth and throat can get parched from talking so much, from nervousness, and (especially in older courthouses) from the dry environment of the courtroom. Just as you should go to the washroom before going on the witness stand (no pun intended), you should be careful how much water you drink, or your testimony may take on an unintended urgency from needing a recess.
Swearing versus Affirming
When serving as a witness, you are obviously expected to tell the truth. To declare that you will do so, one of two brief formal procedures is performed in which you promise to be honest. They are:
▪ Swearing in
▪ Affirming
For various reasons, most witnesses in the Western World are sworn in. This involves either holding your right hand on the Bible or taking a Bible in your right hand and holding up your left hand. After doing so, you are then asked whether you swear to tell the truth “so help you God.” Some courts no longer mention the word God, although most continue to do so. In swearing to tell the truth, you are now a witness and can continue to the task of providing testimony.
If you are an atheist or have religious beliefs that prohibit you from swearing to God, there is also the option of affirming. When you affirm, you may be asked to raise your hand while making an oath to promise to tell the truth. With affirmation, no Bible is used and God is not mentioned. Once this is done, you are affirmed and you have completed a declaration of honesty that carries the same weight as being sworn in.
Affirming or swearing to tell the truth occurs immediately after you've been called as a witness and taken the stand. Once you've entered the witness box, the judge or court clerk will ask whether you would like to be sworn in or affirmed. Which you choose is entirely up to you, and has no effect or bias on the events that follow, while you're testifying. Regardless of whether you've been sworn in or affirmed, if you lie you can be charged with perjury.
Being affirmed or sworn in can occur in either civil or criminal proceedings, as well as depositions and affidavits (which we'll discuss next). The reason they are used in so many areas of law is simple: It is crucial for the witness to tell the truth. If the truth isn't presented to the court, an accurate determination of events cannot be made, and a proper ruling cannot be made.
Affidavits
An affidavit is a formal statement of facts. When you are a witness in a criminal trial or civil dispute you may be required to provide an affidavit that outlines the facts as you know them. This provides a written version of your formal statement. This written document states what you saw, heard, or otherwise know to be the truth. In terms of an expert witness, this would be information that is within your area of expertise. It is signed by you to validate that everything you have written is true, and also by another person who has you take an oath. The oath is that you either swear or affirm that everything stated in the document is true. The oath is taken by someone authorized by the court, such as a notary public or a court officer, which formalizes the document as being true and legal.
Legal Etiquette and Ethics
As with any official gathering, you should follow certain codes of conduct when attending court. In accordance with legal etiquette and ethics, you are expected to conduct yourself with a specific level of professionalism when attending court. Etiquette is the rules of socially acceptable behavior and courtesy, and ethics are moral principles or values. Together, they define how a person behaves in the courtroom.
Courtrooms are intended to be solemn, reflecting the serious nature of the forum they provide. Conducting yourself in a manner that maintains this atmosphere shows respect not only to the court itself, but also to those who must attend and have their fates decided in trials. Just as you would behave in a serious and thoughtful manner at a memorial service, ceremony, or other formal event, you should show the same level of respect in the courtroom. Some of the ways to show this respect include:
▪ Dressing conservatively in business attire (such as a suit, dress, or other conservative clothing you might wear to a business meeting or solemn occasion).
▪ Arriving early and being available to testify when called.
▪ When speaking to the judge, referring to him or her as “your honor.”
▪ Not whispering or talking in the courtroom unless it is absolutely necessary. If information must be exchanged, it is better to pass a note to the attorney or other person with whom you are conferring.
▪ Bringing only the notes you will use on the stand. Do not bring magazines or other reading material to pass the time.
The legal etiquette and ethical behavior you show in a courtroom apply not only to those attending as jurors and legal counsel, but also (and especially) to witnesses. The way you behave in the courtroom and on the witness stand will be observed by others in the courtroom and will affect the way they perceive your credibility as a witness under direct and cross-examination.
Tip
If you are testifying as an expert witness, you may not see the defendant until you are called as a witness. Because of this, avoid talking to others about the case, and limit your contact with other people who may be waiting outside the courtroom. You don't want to accidentally get into a discussion with someone against whom you'll later be giving testimony.
Direct Examination
Direct examination refers to the process of a witness being questioned by the attorney who called him or her to the stand. Because the attorney who called you to the stand wants you to give good testimony, any questions that are asked are for the purpose of eliciting facts about the case. In other words, the lawyer asks these questions to help you in providing evidence.
The first rule for giving direct testimony (or any sworn testimony) is to always tell the truth. Witnesses should not be afraid to say “I don't know” or “I don't remember” when that's the truth. Telling the truth is vital to providing facts to the case, and failing to tell the truth is a serious matter. Lying under oath is a criminal offense called perjury, and can result in imprisonment and fines being imposed on you.
In addition to this most important and basic element of being a witness, there are a number of best practices for testifying in court. Remember that the jury will evaluate the credibility of each witness and decide whether to believe the testimony based on that evaluation. Here are some ways to enhance your credibility as a witness:
▪ Be on time or slightly early for court Although we mentioned this and the following point in the previous section, attending court early allows you time to prepare and scope out the layout of the courtroom, the route you'll walk from your seat in the courtroom to the witness stand, and so on. Arriving late makes a bad impression on the jury and detracts from your credibility.
▪ Dress professionally Appearance does count, and your credibility will be enhanced by conservative business attire.
▪ Don't appear to be nervous Juries expect people to act nervous when they're lying. You might not be able to control how you feel, but with practice you can control any visible manifestations of nervousness, such as repetitive gestures.
▪ Keep good posture Juries will look at a person's body language when approaching, leaving, or sitting in the witness box. Standing and sitting up straight conveys confidence, whereas slouching can appear as though you're uncomfortable and trying to hide something. Although you want to be relaxed on the stand, don't forget what your mother told you about sitting up straight.
▪ Remain calm and don't get angry The opposing attorney might try to make you lose your temper; doing so will damage your credibility with the jury. Witnesses should never argue or be sarcastic in response to an attorney's questions. Similarly, you should refrain from showing hostility toward the defendant, as this can make it seem like you have a personal agenda against the person. Remaining calm and professional will strengthen the case.
▪ When applicable, answer with “yes” or “no” Although this goes hand in hand with our next point, when answering a question to the affirmative or negative, you should always use the word “yes” or “no.” On the stand, people often make the mistake of nodding or shaking their head to answer, grunting answers, or using terms such as uh-huh, yep, nope, or similar phrases. Whenever this occurs, the attorney questioning you will correct you and tell you to answer with yes or no, which can get monotonous and irritate everyone very quickly.
▪ Don't volunteer extra information Answer the questions you are asked, but don't provide more information or veer off the topic. Don't provide hearsay evidence (what other people said to you), because it's generally inadmissible.
▪ Avoid making absolutes in your statements Making an absolute statement such as “I always …” or “I never …” can create an adversarial situation in later cross-examination, which may be used to prove you wrong. After all, very little is absolute. Even saying “the sun always shines in the sky” is incorrect when you consider eclipses and nighttime.
▪ Don't discuss the case with anyone but the attorney When attending court as a witness, you may spend little time in the actual courtroom. You'll generally be restricted from entering the courtroom until being called, and adjournments and recesses will allow you to leave court for a period of time. During these moments, you'll be exposed to others who may testify, victims and defendants in a case, and possibly even the media. Because you probably won't know who most of these people are, you should never discuss the case with anyone. Doing so can taint the testimony of others or provide sensitive information to the wrong people.
▪ Consider the question carefully before you answer Be sure you understand the question, and if you don't, ask the attorney to repeat it. Don't start to answer until you're sure that the attorney is finished asking the question.
▪ Speak clearly and confidently An effective witness doesn't shout, but speaks loudly enough to be heard by the judge, jury, and attorneys. Testimony as an evidentiary witness should be limited to “just the facts, ma'am, just the facts.” Don't offer opinion or speculation; in an impartial, objective manner, simply tell what you did or observed.
▪ If the judge or attorney begins to speak, stop talking When testifying, attorneys or the judge may interject to obtain a better understanding of a particular point, or stop you from revealing information that is inadmissible. When either of them speaks, immediately stop your testimony and listen to what he or she is saying.
▪ Avoid memorizing answers Although it's important that you review the notes and fully understand specifics of your testimony beforehand, preparing answers to anticipated questions can make your testimony appear scripted and unreliable.
▪ Remain impartial and speak to the facts Remember that as a witness, you are presenting facts of the case. Never exaggerate, never guess, and never manipulate answers to an attorney's question to favor one side or the other. Simply tell the truth, regardless of whose side the answer may benefit.
Cross-Examination
Cross-examination is the process of providing the opposing side in a trial the opportunity to question a witness. In any trial, the prosecution has the right to question witnesses called by the defense, and the defense has the right to question witnesses called by the prosecution. It is the job of the cross-examining attorney to discredit the opposing side's witness. Attorneys may use psychological techniques to attempt to discredit witnesses. When testifying, be careful not to fall into their traps. Be prepared for and ready to avoid such cross-examination tactics as:
▪ Rapid-fire questions with no time to answer between questions
▪ Leading questions (“Isn't it true that what you saw was …?”)
▪ Repeating your words with a twist that changes their meaning
▪ Pretending to be friendly, and then turning against you suddenly
▪ Feigning bewilderment, outrage, or shock at what you've said
▪ Being silent for a prolonged period of time to cause you discomfort in the hope that you'll say more
The most important thing for you to remember when subjected to these tactics is this: Don't take the attorney's tactics personally; he or she is just doing a job. Our advice to the witness is, just do your job; keep your cool and state the facts.
You can use a number of tricks to deal with the tactics an attorney may employ during cross-examination. Lawyers will often attempt to gain a pace to their questions, starting by asking questions with some time between them, and then progressing the time between questions until they're being fired off in quick succession. This limits the time you have to think of an answer and increases the possibility of being caught in a trap. Many times, a question will be asked one way, and then asked a different way later. If you change your answer, the lawyer will use this to discredit your testimony. A simple way to defuse these rapid-fire questions is to force a delay before answering. By quietly tapping your foot three times before giving an answer, you give yourself a moment to think, and you control the pace of the questions and answers being given. Because you are sitting in an enclosed witness box, no one can see you discretely tapping your foot and defusing the attorney's attempt at rapid-fire questioning.
It is important to always listen to the questions being asked, and to be ready to respond. A lawyer may ask a question, wait for an answer, and then repeat what you've said but twist the words. Doing so can change the meaning of your statement and twist what you've said to the lawyer's favor. If the lawyer restates it as a question (such as by beginning with “So, you're saying that …”) and you're not paying attention, you could actually agree with something you never said. Never be afraid to say, “That's not what I said” in these situations, and reiterate your previous statement.
Tip
The way to answer questions when testifying is to stop, think, and then answer. Always consider what is being said and the way it is asked. If you don't understand the question, say so, and the attorney will attempt to rephrase it.
Another common method that lawyers use is to start questioning a witness with points of agreement. In doing so, the lawyer conducting the cross-examination appears friendly and brings your guard down. You will generally be more cooperative, and the lawyer can then either dismantle previous statements by asking follow-up questions, or ask leading questions that may cause you to make statements that will be positive to the opposing side's position. Often, once your guard is down, the lawyer will turn from being friendly to suddenly attacking what you've said or becoming confrontational. This can confuse you and leave you feeling a little betrayed the first time it happens, and it allows the attorney to take the upper hand in questioning you.
Other psychological ploys can involve saying very little or nothing at all. Once you've finished answering, the attorney may delay asking the next question, choosing instead to pause for a long period of time. Because the prolonged silence can be uncomfortable, you may feel that you should say more. If you add nothing, the lawyer will undermine your comments by saying “Oh, I'm sorry, are you done?”
Many of the methods used by attorneys are implemented throughout the trial process, including when a witness is being qualified as an expert. When challenging a witness, the attorney will ask a series of questions to probe details of his or her qualifications and evaluate his or her level of knowledge. In general, the challenging party is given a fairly loose reign in the questions asked about a person's credentials, and judges and attorneys calling a witness may allow a line of questioning to continue until it appears the witness is being unfairly attacked. How legal counsel undercuts the witness's authority will vary, as lawyers have different styles of cross-examining witnesses.
One method that is used to varying degrees is to review the witness's credentials, and then undermine them by repeating facts in a snide tone of voice. For example, if a computer technician graduated from community college, the lawyer might repeat the name of the school in a sarcastic tone, and then ask, “So, you never went to a university?” Similarly, if a witness had a CompTIA certification, the lawyer would repeat “CompTIA?” as though the witness was making it up. It is a simple tactic that requires little to no knowledge about a subject.
Because there is an element of theatre to court, lawyers will often act a part. They may pretend to be avid proponents of justice, or that they actually care and believe in their client's innocence. Although this may be true of some court officers, the fact is that lawyers will defend clients regardless of whether they are guilty or innocent. Despite this, they will use a tactic of pretending to be morally outraged, baffled, or shocked by a statement. Because lawyers are also generally bad actors, this can be more annoying than surprising when it occurs. The attempt is made to play into the hands of the jury, and make themselves look good by making you look bad.
Note
After a cross-examination, the attorney who initially examined the witness will have the opportunity to redirect the witness. After this, the attorney who conducted the cross-examination will have the opportunity to recross. This gives both sides the chance to clarify and ask any questions that may have arisen during the preceding testimony.
Refusing to Answer
While serving as an expert witness, the possibility of refusing to answer would be extremely rare, but there are situations in which you may not want to answer a question that's posed to you. A lawyer may ask a question that is personally embarrassing, or that you find irrelevant to the case. In such situations, you can ask the judge whether you're required to answer the question. If the judge agrees that it isn't relevant to the case or necessary to answer, he or she will instruct you not to answer if you don't wish to. If the judge instructs you to answer the question, however, you have no real choice but to comply, or risk being cited with contempt of court.
Another situation in which you may refuse to answer is when doing so would cause you to confess to a crime. Under the Fifth Amendment of the U.S. Constitution, and under the protection of the Charter of Rights and Freedoms in Canada, you do not need to testify if it will incriminate you, because by answering in a way that doesn't incriminate you, you are essentially forced to commit perjury.
Using Notes and Visual Aids
What if you're required to testify as a witness, but your memory isn't so great? What if you're afraid of forgetting important facts, especially difficult-to-remember information such as numbers? Is it legal for you as a witness to take notes along to use as a reference when testifying?
Police officers and other witnesses use notes as a memory aid during court testimony all the time. There are advantages and disadvantages in doing so. Some jurors might be impressed by the fact that you're reading from notes, because they might trust the written word more than someone who relies on memory alone. On the other hand, others might think you're being coached or prompted if you refer to notes; they believe that if what you're saying is the truth, you would remember it without notes.
A very important consideration in deciding whether to use notes is the fact that if a witness does so, the notes will be entered into evidence and taken into the custody of the court for the duration of the trial. If you do choose to use notes, therefore, it's important to be sure that the notebook or paper on which they're written doesn't have other notes that refer to matters not related to the case, because the opposing attorney can question you about anything in the notes.
Visual aids are another common element, especially in cases that involve evidence such as digital images, or that require maps of a location. When referring to visual aids, such as photographs or diagrams, it is important to be as descriptive as possible. Rather than raising your hand and saying, “Here we see,” you should try to focus the attention on what you're talking about, such as by saying, “In the lower-right-hand corner.” Not only does this make it easier for those watching your testimony to understand what you're talking about, but it also makes it easier to understand in the transcription of the testimony.
Notes As Evidence and Witness Resources
Anyone involved in an incident, including investigators and computer forensic examiners, may be called to testify in court if criminal charges or civil lawsuits are brought in relation to the incident. In addition to documentation being used as evidence, the ability to use notes as a resource is another reason to create extensive documentation that can be reviewed prior to giving testimony. Often, a case doesn't come to trial until months or years after the incident took place, and the human memory often isn't reliable after so long a time without a little help. In situations where an incident response team or group responded to an incident, the person who creates the documentation should be the one to testify to its authenticity if it is to be entered into evidence.
It is important for team members to understand that their reports regarding the incident may end up being entered into evidence at trial. For this reason, such documentation should be kept in a special notebook with numbered pages, and the notebook should not contain any personal information, because the entire notebook may become part of the official record.
Summary
When most people think of a witness, they often think of a person who actually saw the crime take place. However, many witnesses in cybercrime cases offer information about the effects of a crime, or facts about evidence that was obtained during an investigation. Testimony explaining this evidence is used to show when, where, and how a crime occurred, what was affected, and who was identified as being responsible.
Testimony may be given in civil court (where one person or organization sues another), or criminal court (where the government brings the person to court for breaking the law). The person giving testimony may be both an evidentiary witness, who can speak about evidence and events that occurred, or an expert witness, who can also provide opinions based on his or her knowledge and experience in a particular field. There are many different types of expert witnesses, including those specializing in computer forensics, medicine, psychology, and other fields. The Rules of Evidence, which is a set of rules set at the state or federal level that dictates what and how evidence can be presented in court, regulates any testimony and evidence that may be presented in court.
In being a witness, you will be called to the stand and given the option of swearing in or affirming to tell the truth. Upon doing so, you will then be given the chance to give direct testimony, where the attorney who called you will ask a series of questions. The opposing attorney can then cross-examine you, in which he or she will then ask his or her own questions. After this, the attorney who called you has the option of redirecting the witness (asking questions to clarify information given under cross-examination), and after this the opposing attorney can recross. Once this process has completed, you're excused and can leave the courtroom, but should remain in the courthouse in case you're recalled to the stand.
Frequently Asked Questions
A Tell your friend to inform the court that he or she knows one of the witnesses. During the jury selection process, jurors are asked if there's any reason(s) that should prevent them from being a juror. This could include knowing the defendant, being involved in the investigation, knowing witnesses, or other issues that would affect the outcome of the trial. By having a relationship to one of the witnesses, a person could be released from jury duty.
Q 'm part of an incident response team, and I became involved in an incident that will probably go to court. Who can I talk to about this?
A Although you could talk generically about the case to anyone, you should try to avoid any conversations about it with anyone who isn't connected to the case. In other words, although you can talk to the attorney in charge of the case, you shouldn't talk to friends, significant others, or coworkers about the specifics of the case. By telling someone who isn't involved, there is a chance this information could be passed on to others, including members of the media. In addition, you could inadvertently talk to someone who knows or is related to the defendant, or who may be a potential juror.
Q How do I know when and where I'm supposed to testify in a case?
A When you're summoned to be a witness, you'll be served with a subpoena by an officer of the court. The subpoena has information on the location of the trial, and when you're to attend court to testify. Unless the attorney who has called you indicates otherwise, you will need to attend the courthouse every day that the trial continues in case you're recalled to the stand.
Q My religious beliefs prohibit me from the practice of placing my hand on the Bible and swearing to God that I'll tell the truth. When being called to testify, what should I do?
A When you are called to the stand, you have the option of swearing or affirming. When sworn in, you will hold your hand on a Bible and swear to God that you'll tell the truth. Affirming doesn't require this. When being affirmed, you simply promise that any testimony you give will be truthful.
Q On my statement, I wrote an incorrect date and didn't realize my mistake until after the statement was sent to the prosecutor. Now I've been subpoenaed to testify about the facts. What should I do?
A Notify the investigator and prosecutor immediately about the mistake before any depositions or the trial begins. By being honest and pointing out the mistake early, you can avoid any unnecessary questions during the trial about inconsistencies in the information you've presented.
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