Title: 3. Ethical Difficulties in Expert Testimony
Course: IN 2005 Digital Forensics > Section: Module 14: Chapter 14-Expert Testimony in High-Tech Investigations & Ethics for the Expert Witness

Ethical Difficulties in Expert Testimony

1. There are inherent conflicts between the goals of attorneys and the goals of scientists or technicians (experts).  Attorneys work in an adversarial system and look to sway the judge or jury. Science requires experts to focus on the evidence without the influence of others’ objectives.
2. As a result, Daubert and the APA’s forensics guidelines can challenge experts to choose between complete impartiality and responsible advocacy.
3. Enforcing any professional organization’s ethical guidelines is difficult.  Principles can be enforced only against members of the organization.
4. All guidelines rely primarily on internalization of the codes and witnesses’ analysis of when and how they will participate in a case.

Ethical Responsibilities Owed to You

1. Your attorney owes you a fair statement of the case or situation, adequate time to review evidence and prepare your report, and a reasonable opportunity to examine data, conduct testing, and investigate the matter before rendering an opinion.
2. Most attorneys, including opposing counsel, are competent, courteous professionals.
3. Some opposing counsel attempt to make discovery depositions physically uncomfortable.  As a measure of protection, you might want to have your personal attorney attend the deposition.  This attorney can’t object to questions but is available to advise the attorney who retained you or to advise you during breaks.

Standard and Personally Created Forensics Tools

1. The tools you use to recover, control, and track evidence are subject to review by opposing parties.  If the court deems them unreliable, the evidence you recovered with those tools might not be admitted or might be admitted with a limiting instruction.
2. If you use standard tools, you simplify the process of validating them.  Personally created tools might have advantages that you can demonstrate to a judge, who determines whether evidence is admissible.