Title: 1. Applying Ethics and Codes to Expert Witnesses
Course: IN 2005 Digital Forensics > Section: Module 14: Chapter 14-Expert Testimony in High-Tech Investigations & Ethics for the Expert Witness

Applying Ethics and Codes to Expert Witnesses

1. Ethics are rules you internalize and use to measure your performance.  Codes of professional conduct or responsibility are standards that others apply to you or that you are compelled to adhere to by external forces, such as licensing bodies.
2. People need ethics to help maintain their balance.  Ethics also help you maintain your self-respect and the respect of your profession.
3. Laws governing codes of professional conduct or responsibility define the lowest level of action or performance required to avoid liability.
4. Expert witnesses are expected to present unbiased, specialized and technical evidence to a jury. Currently, expert witnesses testify in more than 80% of trials and in many trials, multiple expert witnesses testify.
5. The most important laws applying to attorneys and witnesses are the rules of evidence.  Experts are bound by their own personal ethics and the ethics of their professional organizations.
6. In the United States, there’s no state or national licensing body for computer forensics examiners.

Computer Forensics Examiners’ Roles in Testifying

1. Computer forensics examiners have two roles: scientific/technical witness and expert witness.
2. Cs an expert witness, you can testify even if you weren’t present when the event occurred or if you didn’t handle the data storage device personally.
3. One widespread criticism of expert witnesses is that it’s possible to find and hire an expert to testify to almost any opinion on any topic.  Beware of attorneys’ opinion shopping.

Considerations in Disqualification

1. One of the effects of violating court rules or laws is disqualification.
2. Opposing counsel might attempt to disqualify you based on any deviations from opinions you’ve given in previous cases. Some attorneys contact many experts as a ploy to disqualify them or prevent opposing counsel from hiring them.
3. Whenever you are aware of a possible disqualification issue, you should bring it to the attention of the attorney who has retained you.
4. Some of the factors to disqualify an expert, including:
  - Whether the attorney informed the expert that their discussions were confidential
  - Whether the expert reviewed materials marked as confidential or attorney work product
  - Whether the expert was asked to sign a confidentiality agreement
  - Number of discussions held over a period of time
  - The type of documents that were reviewed
  - The type of information conveyed to the expert
  - The amount of time involved in discussions or meetings between the expert and attorney
  - Whether the expert provided the attorney with confidential information
  - Whether the attorney formally retained the expert
  - Whether the expert voiced concerns about being retained
  - Whether the expert was requested to perform services for the attorney
  - Whether the attorney compensated the expert

Traps for Unwary Experts

1. You should be cautious about the following potential traps:
  - What are some differences between the attorney’s motives and the investigator’s duty?
  - Is the function of the expert witness in conflict with the investigator’s code of professional responsibility?
  - You should anticipate that the opposing counsel will look at your organization memberships and those organizations’ codes of professional responsibility
2. Contingency fees aren’t allowed except in certain limited circumstances.
3. Some of the obvious ethical errors that you should avoid, including:
  - Don’t present false data or alter data
  - Don’t report work that was not done
  - Don’t ignore available contradictory data
  - Don’t do work beyond your expertise or competence
  - Don’t allow the attorney who retained you to influence your opinion in an unauthorized way
  - Don’t accept an assignment if it cannot reasonably be done in the allowed time
  - Don’t reach a conclusion before you have done complete research
  - Don’t fail to report possible conflicts of interest

Determining Admissibility of Evidence

1. Hypothetical questions can give you the factual structure to support and defend your opinion.
2. Although expert opinions can be presented without stating the underlying factual basis, the testimony isn’t admissible if the facts on which the opinion is based are inadequate or there’s insufficient evidence to allow stating a legitimate opinion.