A Guide to Forensic Testimony: The Art and Practice of Presenting Testimony as an Expert Technical Witness

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Addison-Wesley Professional, 2002 - 509 páginas
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Today technologists need expert witness skills. In addition to understanding the technologies that may be at issue in a given case, an effective expert witness must have an understanding of the legal system, specific courtroom communication skills, skills for enduring cross-examination and preparing for legal testimony. When new technologies are introduced, litigation about the technology and its uses is quick to follow. There are new forms of legal claims for everything from damages for the failures of enterprise networks to new uses of surveillance and the authenticity of digital evidence. Over 90 percent of all information is now created and stored in computers. Technical experts routinely come into play in investigations where evidence is suspected or where computer system behavior is relevant to the case. IT professionals, system administrators, and security consultants are increasingly being brought into the legal world, and they need to prepared.

 

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A guide to forensic testimony: the art and practice of presenting testimony as an expert technical witness

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White-collar crime prosecutor Smith and computer expert Bace have written a guide for information technology professionals who expect to be expert witnesses in legal proceedings. The book opens with ... Leer comentario completo

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Contenido

Examples of Expert Witnesses and Their Communities of Interest
1
Who Decides Whether an Expert Is Really an Expert?
2
A Potpourri of Expert Witnesses from Other Disciplines
3
Reluctant Expert Witness in My Cousin Vinny
4
Fine Art Appraiser and Salvador Dali Expert
13
Forensic Geologist and Clandestine Grave Expert
16
Forensic Entomologist and Bug Doctor
20
Approaches to Building Professional Communities of Interest
23
The Effect of Gatekeeping on Expert Witnesses and the Court
227
Challenges to Technical Expert Witness Evidence
229
The Classic Case of Dr John Snow
231
Putting Yourself in the Judges Shoes
234
Expanding the Standards of Daubert
237
Brainstorming Strategies and Scenarios to Prepare for Daubert Challenges
239
A Hypothetical Daubert Disqualification
241
The Issues of the Case
242

Professional ProblemSolving Associations
24
Govemment Training Programs for Forensic Experts
26
In Forensics No Expert Is an Island
29
Taking Testimony Seriously
31
Why Should a Technical Expert Want to Work in the Legal System?
32
Everyone Is Subject to Subpoena
35
So What Happened in This Deposition?
39
Every Transcript Tells a Story
40
Quibbling with Counsel Can Be Counterproductive
41
When Bad Strategy Happens to Competent Technologists
45
A Learning Experience for Both Litigators and Witnesses
49
What Fact Finders Say about the Importance of Testimony
50
Testifying Effectively Is Not the Same as Solving Engineering Problems
51
TestimonyTake Two
52
If Credibility Is Always the Answer What Are the Questions?
53
Creating Stories about Complex Technical Issues
55
Hiding and Seeking Digital Evidence
57
The Simulated Testimony of Andrew Gross
59
Visualizing Grosss Technical Testimony
72
Demonstrative and Substantive Graphic Evidence
73
Seeking Professional Graphics Assistance
79
Going Back to the Basics in a NetworkBased Plotline
80
Using Familiar Analogies to Describe What Computer Experts Do
81
Remembering the Real Goal of Expert Testimony
82
Selecting the Visual Components of the Story Line
83
Showing and Telling Is Better Than Just Telling
84
Understanding the Rules of the Game
85
Knights Errant as Experts
86
Why Does Everyone Love to Hate Lawyers?
89
Trial by Combat
90
Evidence and the Advent of Testimony
91
Experts Replace Bishops and Knights as Key Witnesses
92
The Daubert LineCorrections in Course
93
The Rules of Engagement
94
State and Local Rules
95
The Consulting Expert
96
The Testifying Expert
97
The Expert as a Witness to Fact
98
On the Importance of Keeping Roles Straight
99
The Complex Art of Expert Testimony
107
Setting the Tone for the LawyerExpert Relationship
110
Dreams and NightmaresTake Your Pick
111
An Experts Nightmare
114
New Technologies and Modern Legal Disputes Require More Experts
115
The Expert Trend
116
A WakeUp Call for IT Professionals
117
The Real Y2K Disaster
118
With Omnipresent Digital Evidence What Case Isnt an IT Case?
120
Chance Coincidence or Causation Who Cares?
123
Dealing with Experts in the Age of Scientific Progress
124
Frye v US Distinguishing Pseudoscience from Science
125
Keeping Quacks and Their Technologies at Bay
126
Expertise in the Face of Technological Trends
127
Distinguishing Astrology from Astronomy and the Rule of Law
128
Why Wasnt Phrenology the Kind of Expertise the Courts Wanted?
129
Modern Examples of Questionable Forensic Science Claims
131
The Handwriting Experts
132
The Fingerprint Analysts
134
One Courts Changing Attitude about Fingerprint Forensic Evidence
135
The Judge Presents His Initial Decision
136
On Further Reflection the Judge Changes His Mind
139
Scientific Methods Are No Guarantee
145
Learning from Pseudoscientists
146
When Science Turns into Art and Vice Versa
147
A Case in Point
149
The Expert Storyteller
150
Ethical Rules for Technical Experts
153
Examples of EthicsChallenged Experts
154
On the Importance of Knowing Where You Are and Arent
156
The Case of the Ethically Conflicted Expert
164
Determining MasterServant Relationships in Litigation
173
Criminal Prosecution
174
Balancing the Demands of Expertise
175
Ethical Principles for Information Technologists
176
The Codes of Ethics
177
Other Pertinent Rules
179
Model Ethical Rules and Recommendations for Expert Witnesses
180
Recommendations for Structural Engineer Expert Witnesses
181
A Cautionary Note
183
Ethical Standards for Attorneys
184
Going to the Movies for More Examples
185
Pushing the Ethical Boundary
191
The Responsibility of the Expert Witness
194
Enhancing Objectivity in a World of Bias
195
Assessing the ExpertAttomey Relationship
196
A Different Style of Reporting
199
When Not to Document Process
201
The Case of the Mystery Client
204
Establishing Objectivity
205
Rule 26 Reports and First Impressions
206
Learning by Example
207
Lessons Learned
211
Too Little Too Late Too Bad
213
A Little More a Little Later Doesnt Help
216
Preparing Effective Reports
223
Steering a Steady Objective Course
224
The Gatekeeper Judicial Control of Expert Witnesses
225
The Issues Surrounding the Qualification of the Experts
245
The Issues in Dispute
246
The Structure of the Daubert Challenge
247
The Challenge Itself
250
What Happens Now?
256
Looking Forward to the Gatekeeping Challenge
257
The Magic of Testimony Communicating with the Fact Finder
259
The Paradox of Case Studies and Trial Preparation
260
Why Should You Prepare for a Case That Will Never Get to Trial?
261
Learning by Example
262
How Does the Court Deal with the Absence of Recognized Standards?
263
Presenting the Experts Qualifications
265
The Devil Is in the Details
269
The Parties May Be Held Responsible for Their Experts Performances
271
Experts Often Quarrel for Legitimate Reasons
272
The Rest of the Story
274
Expert Performances Can Make Enormous Differences in Outcome
276
Some Rules of Engagement for Presenting Expert Testimony
277
But Shouldnt We Expect Judges and Jurors to Be Experts Too?
278
Why Do Most People Respect Teachers and Authors?
279
Presumptions and Burdens of Proof and Persuasion
280
Coming to Terms with the Different Roles of the Expert
283
Why Experts Cant Create Idiosyncratic Standards
286
Beware of Those Looking for the Perfect Expert
287
A Postscript to Gates v Bando
289
When the Defendants Expert Is Not the Defendants Ally
295
The Outcome
297
What Experts Can Leam from Court Opinions
299
The Role of Visual Exhibits in Expert Testimony
301
Keep It Simple and Honest
302
Establishing Credibility by Teaching the Basics
303
Turning Students into Teachers and Advocates
305
Thinking about Highly Complex Technical Processes as Pictures
306
The Benefits of Using Graphics in the Opening Statement
307
Graphics Speak to Both the Judge and the Jury
310
Follies with Visual Aids Can Be Disastrous
312
Courts Have Concerns about ComputerGenerated Evidence
313
The Radiation Case Study from The Focal Point Archives
314
What the Jurors Need
318
Using Outlines for Technical Expert Testimony
319
Using a Scoreboard to Tie It All Together
322
The Risk of Argumentative Titles
323
Authentication Tags for Visual Exhibits
326
Dont Forget Spontaneously Generated Visual Exhibits
328
Talk to the Jury Not the Exhibit
331
Mesmerizing with Magnets
332
Connecting the Links in the Chain
333
Demeanor and Credibility
335
Playing for Effect
339
What Fact Finders Dont Like about the Demeanor of Experts and Attomeys
340
The Unbroken Circle of Professionalism Preparation and Organization
343
Is Plastic Surgery an Issue HereFace Saving Notwithstanding?
345
Clarence Darrow Examines a Witness as to His Demeanor
347
Techniques for FineTuning Your Courtroom Demeanor
348
Getting Centered with the Martial Arts
349
Does the Current Adversary Ethic Threaten or Preserve the Legal System?
353
Nonverbal Communications
355
Which Is More Important for Credibility?
357
Lawyers and Technical Experts Generally Prefer to Read
358
Notes Dont Always Help Fact Finders Remember Whats Important
359
How Important Is the Quality of the Voice?
361
Whats in a Nonverbal Communication?
363
Facial Expressions
364
Body Orientation
365
Positioning and Proximity
366
Vocal Qualities
367
Gestures as Essential Components of Testimony and Communication
368
Ultimately Its in Your Hands
369
Working with Your Hand Gestures during the Course of Testimony
371
Smile Partner
372
Learning to Act the Part of an Expert Witness
373
Putting It All Together IT Expert Roles
375
Qualifications
376
A Wide Variety of Expert Experiences
377
On Testimony before Nonjudicial Fact Finders
378
On Dealing with Logistic Issues
382
Surprises amidst Lessons
383
Deciding Whether to Accept an Assignment
386
Conducting the Investigation and Reaching Conclusions
387
Preparing to Testify at Depositions and Trial
388
Testifying at Trial
389
Soliciting Participants Feedback after the Trial
390
Continued Education in the Legal Domain
391
Qualifications
392
On the Importance of Objectivity and Focus
394
On the Importance of Flexibility of Role
396
Lessons Learned
398
Packing Your Bags and Embarking on Your Own Adventure
399
Major Cases
401
Daubert v Merrell Dow Pharmaceuticals Inc
403
Kumho Tire Ltd v Carmichael
419
Joiner v General Electric Company
434
US v Carlos Ivan Llera Plaza Wilfredo Martinez Acosta and Victor Rodriguez
447
Federal Rules
481
Federal Rules of Evidence
489
Index
495
Derechos de autor

Términos y frases comunes

Referencias a este libro

Cyber Warfare and Cyber Terrorism
Janczewski, Lech
Sin vista previa disponible - 2007

Acerca del autor (2002)

Fred Chris Smith is an experienced trial attorney who directed economic crime prosecutions for four consecutive New Mexico state attorneys general. For nearly twenty years he has also provided education and training programs throughout the country and abroad, in digital evidence and computer forensics. He has been involved as an attorney, business advisor, and teacher with information technology and legal professionals who are encountering the rapidly changing problems presented by electronic evidence in criminal cases, in the investigation of corporate network fraud and abuse, and in civil litigation. He currently serves as an Assistant United States Attorney.

Rebecca Gurley Bace is a recognized network security authority and consultant. Her career includes work with the National Security Agency, where her contribution to building the national intrusion detection research community earned her an NSA Distinguished Leadership Award. After the NSA, she became the Deputy Security Officer for the Computing Information and Communications Division of the Los Alamos National Laboratory, where she was responsible for one of the world's most complex security-critical computing environments. She is currently President/CEO of Infidel, Inc., and a Venture Partner for Trident Capital. Bace is the author of Intrusion Detection (Macmillan Technical Publishing, 2000).



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