This discussion deals with the final issue any computer forensics examiner or other witness will face: testifying in court – under oath – to what you know. Anyone person who testifies is a witness who, as we discussed several weeks ago, will present testimonial evidence. As an “expert witness”, which is how computer forensic examiners are usually presented, you are not providing eye-witness testimony to a crime. Instead, you are testifying about what you as an expert found or did not find during your collection, preservation, and examination of physical evidence. Whether you testify on behalf of the government or defense, you will first testify on direct examination. This means that the attorney who called you to the stand will ask you questions to get your testimony before the jury.
Discussion 1: What do you think are some of the initial questions that would be asked of you on direct examination?
Once the preliminary questions have been asked and answered, the attorney handling the direct examination will then turn over examination to the defense. This is often done before you are allowed to answer questions about the actual evidence or case before the court. Here’s why: you are being presented to the court as an expert in some field. After your direct testimony, opposing counsel gets to cross-examine you to try to prevent you from being accepted as an expert by the court. If the court does not accept you as an expert, you will not be able to testify as an expert. This probably means that you will not be able to testify at all about any of the forensic work you have done in this case. In cases where you have already been accepted as an expert by the court on previous occasions, there is less chance the opposing counsel will be successful. But, for a new examiner, your first few times before the court will be more demanding as to establishing your expertise.
Discussion 2: What kind of questions do you think opposing counsel will ask you on cross examination? Remember: on cross opposing counsel can ask leading questions to challenge your expertise. This means that counsel is permitted to try to ‘put words in your mouth’. Don’t let that happen!
After both sides have had a chance to question your qualifications as an expert, the counsel wishing you to be accepted will make a motion that you be accepted as an expert. It is only after you have been accepted by the court that you will be permitted to testify about the matter at hand. Once you get into your substantive – expert – testimony, opposing counsel will be especially alert for any weakness or contradictions in your testimony.
Discussion 3: How should for you to testify to limit any contradictions or other possible weaknesses?
Remember to respond to at least one of your fellow student’s postings.