Title: 2. Testifying in Court
Course: IN 2005 Digital Forensics > Section: Module 14: Chapter 14-Expert Testimony in High-Tech Investigations & Ethics for the Expert Witness

Testifying in Court

1. The four procedures followed during a trial:
  - Your attorney presents you as a competent expert
  - Opposing attorney might attempt to discredit you
  - Your attorney leads you through the evidence
  - Opposing attorney cross-examines you

Understanding the Trial Process

1. Step from a typical trial
  - Motion in limine
  - Empaneling the jury
  - Opening statements
  - Plaintiff
  - Defendant
  - Rebuttal
  - Closing arguments
  - Jury instructions

Qualifying Your Testimony and Voir Dire

1. The process of qualifying as an expert witness.  This qualification phase is called voir dire.

Testifying in General

1. Some guidelines for testifying on a trial:
  - Be conscious of the jury, judge, and attorneys
  - If asked something you cannot answer, respond by saying:
    - That is beyond the scope of my expertise
    - I was not requested to investigate that
  - Be professional and polite
  - Avoid overreaching opinions
  - Always acknowledge the jury and direct your testimony to them
  - Place microphone six to eight inches from you
  - Use simple, direct language to help the jury understand you
  - Avoid humor
  - Build repetition into your explanations
  - Use chronological order to describe events
  - If you’re using technical terms, identify and define these terms for the jury
  - Cite the source of the evidence the opinion is based on
  - Make sure the chair’s height is comfortable, and turn the chair so that it faces the jury
  - Dress in a manner that conforms to the community’s dress code
  - Don’t memorize your testimony
  - For direct examination, state your opinions, identify evidence to support your opinions, relate the method used to arrive to that opinion, and restate your opinion
2. Some of the questions that you should consider when preparing your testimony with the attorney who hired you, including:
  - How is data (or evidence) stored on a hard drive?
  - What is an image or a bit-stream copy of a drive?
  - How is deleted data recovered from a drive?
  - What are Windows temporary files and how do they relate to data or evidence?
  - What are system or network log files?
3. Some of the guidelines when using graphics during testimony, including:
  - Graphical exhibits illustrate and clarify your findings
  - Your exhibits must be clear and easy to understand
  - Graphics should be big, bold, and simple
  - The goal of using graphics is to provide information the jury needs to know
  - Review all graphics with your attorney before trial
  - Make sure the jury can see your graphics, and face the jury during your presentation
4. Some recommendations to avoid testimony problems, including:
  - Recognize when conflict-of-interest issues apply to your case
  - Avoid agreeing to review a case unless you’re under contract with that person
  - Avoid conversations with opposing attorneys
  - You should receive payment before testifying
  - Don’t talk to anyone during court recess
  - Make sure you conduct any conferences with your attorney in a private setting
5. If you have found exculpatory evidence, you have an obligation to ensure that the evidence isn’t concealed.  Initially, you should report the evidence to the prosecutor handling the case.  Be sure you document the communication.
6. If this information isn’t disclosed to the defense attorney in a reasonable time, you can report it to the prosecutor’s supervisor or the judge.

Testifying During Direct Examination

1. Direct examination is the most important part of a trial.  You provide direct examination when you testify on behalf of the attorney that hired you.
2. Some recommendations include:
  - Work with your attorney to get the right language
  - Be wary of your inclination to be helpful
  - Review the examination plan your attorney has prepared
  - Provide a clear overview of your findings
  - Use a systematic easy-to-follow plan for describing your methods
  - Practice testifying
  - Use your own words when answering questions
  - Present your background and qualifications
  - Avoid vagueness
  - When you’re using graphics in a presentation, keep in mind that you’re instructing the jury in what you did to collect evidence

Testifying During Cross-examination

1. Some recommendations to follow during cross-examination. Also include tactics or techniques an opposing attorney may use during cross-examination, including:
  - Use your own words
  - Keep in mind that certain words have additional meanings
  - Opposing attorneys sometimes use the trick of interrupting you
  - Be aware of leading questions
  - Never guess when you do not have an answer
  - Be prepared for challenging, pre-constructed questions, such as: Did you use more than one tool?
  - Rapid-fire questions
  - Sometimes opposing attorneys declare that you aren’t answering the questions
  - Keep eye contact with the jury
  - Sometimes opposing attorneys ask several questions inside one question
  - Attorneys make speeches and phrase them as questions
  - Attorneys might put words in your mouth
  - Be patient
  - Most jurisdictions now allow the judge and jurors to ask questions
  - Avoid feeling stressed and losing control
  - Never have unrealistically high self-expectations when testifying; everyone makes mistakes