Guide to Computer Forensics and Investigations Third Edition
Chapter 16 Ethics for the Expert Witness
Objectives
Explain how ethics and codes apply to expert witnesses Explain how other organizations codes of ethics apply to expert testimony Describe ethical difficulties in expert testimony
Guide to Computer Forensics and Investigations
Applying Ethics and Codes to Expert Witnesses
Ethics
Rules you internalize and use to measure your performance
Codes of professional conduct or responsibility
Standards that others apply to you or that you are compelled to adhere to by external forces
Such as licensing bodies
People need ethics to help maintain their balance
And self-respect and the respect of their profession
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Applying Ethics and Codes to Expert Witnesses (continued)
Laws governing codes of professional conduct or responsibility
Define the lowest level of action or performance required to avoid liability
Expert witnesses should present unbiased, specialized, and technical evidence to a jury Expert witnesses testify in more than 80% of trials
And in many trials, multiple expert witnesses testify
Guide to Computer Forensics and Investigations
Applying Ethics and Codes to Expert Witnesses (continued)
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 In the United States, theres no state or national licensing body for computer forensics examiners
Guide to Computer Forensics and Investigations
Computer Forensics Examiners Roles in Testifying
Computer forensics examiners have two roles:
Scientific/technical witness and expert witness
As expert witness
You can testify even if you werent present when the event occurred
Or didnt handle the data storage device personally
Criticism: its possible to find and hire an expert to testify to almost any opinion on any topic
Beware of attorneys opinion shopping
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Considerations in Disqualification
One of the effects of violating court rules or laws is disqualification Opposing counsel might attempt to disqualify you
Based on any deviations from opinions youve given in previous cases
Some attorneys contact many experts as a ploy to disqualify them
Or prevent opposing counsel from hiring them
Determine who the parties are to reduce the possibility of a conflict
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Considerations in Disqualification (continued)
Whenever you are aware of a possible disqualification issue
Bring it to the attention of the attorney who has retained you
Factors to disqualify an expert include:
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
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Considerations in Disqualification (continued)
Factors to disqualify an expert include: (continued)
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
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Considerations in Disqualification (continued)
Factors to disqualify an expert include: (continued)
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
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Traps for Unwary Experts
Be cautious about the following potential traps
What are some differences between the attorneys motives and the investigators duty? Is the function of the expert witness in conflict with the investigators code of professional responsibility? You should anticipate that the opposing counsel will look at your organization memberships and those organizations codes of professional responsibility
Contingency fees arent allowed except in certain limited circumstances
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Traps for Unwary Experts (continued)
Avoid obvious ethical errors
Dont present false data or alter data Dont report work that was not done Dont ignore available contradictory data Dont do work beyond your expertise or competence Dont allow the attorney who retained you to influence your opinion in an unauthorized way
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Traps for Unwary Experts (continued)
Avoid obvious ethical errors (continued)
Dont accept an assignment if it cannot reasonably be done in the allowed time Dont reach a conclusion before you have done complete research Dont fail to report possible conflicts of interest
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Determining Admissibility of Evidence
Hypothetical questions can give you the factual structure to support and defend your opinion Although expert opinions can be presented without stating the underlying factual basis
The testimony isnt admissible if the facts on which the opinion is based are inadequate Or theres insufficient evidence to allow stating a legitimate opinion
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Organizations with Codes of Ethics
No single source offers a definitive code of ethics for expert witnesses You must draw on standards from other organizations to form your own ethical standards
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International Society of Forensic Computer Examiners
Includes guidelines such as the following:
Maintain the utmost objectivity in all forensic examinations and present findings accurately Conduct examinations based on established, validated principles Testify truthfully in all matters before any board, court, or proceeding Avoid any action that would appear to be a conflict of interest
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International Society of Forensic Computer Examiners (continued)
Includes guidelines such as the following: (continued)
Never misrepresent training, credentials, or association membership Never reveal any confidential matters or knowledge learned in an examination without an order from a court of competent jurisdiction or the clients express permission
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International High Technology Crime Investigation Association
HTCIA core values include the following requirements related to testifying:
The HTCIA values the Truth uncovered within digital information and the effective techniques used to uncover that Truth, so that no one is wrongfully convicted The HTCIA values the Integrity of its members and the evidence they expose through common investigative and computer forensic best practices, including specialized techniques used to gather digital evidence
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International Association of Computer Investigative Specialists
Standards for IACIS members include:
Maintain the highest level of objectivity in all forensic examinations and accurately present the facts involved Thoroughly examine and analyze the evidence Conduct examinations based upon established, validated principles Render opinions having a basis that is demonstratively reasonable Not withhold any findings that would cause the facts of a case to be misrepresented or distorted
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American Bar Association
Be aware of the basic rules of professional conduct attorneys must follow ABAs Model Code of Professional Responsibility (Model Code) and its successor, the Model Rules of Professional Conduct (Model Rules)
Are the basis of state licensing bodies codes
Codes contain provisions limiting the fees experts can receive for their services The ABA has stated that expert witnesses do not owe a duty of loyalty to their clients
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American Medical Association
Sets out five recommendations:
The physician is a professional with special training and experience and has an ethical obligation to assist the administration of justice The physician may not become a partisan during the legal proceeding The medical witness should testify truthfully and be adequately prepared
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American Medical Association (continued)
Sets out five recommendations: (continued)
The physician must make the attorney calling him or her aware of favorable and unfavorable information uncovered in the physicians assessment The physician may not accept a contingency fee
Several other provisions address the ethical constraints of testifying physicians The AMA also sets goals in dealing with its members
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American Psychological Association
APAs Ethical Principles of Psychologists and Code of Conduct
The most broadly accepted set of guidelines governing psychologists conduct as experts
Several standards in the APAs Ethics Code apply to psychologists expert testimony The Ethics Code also cautions psychologists about the limitations of assessment tools Other Ethics Code standards are related to expert testimony, too
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Ethical Difficulties in Expert Testimony
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 Daubert and the APAs forensics guidelines
Can challenge experts to choose between complete impartiality and responsible advocacy
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Ethical Difficulties in Expert Testimony (continued)
Enforcing any professional organizations ethical guidelines is difficult
Principles can be enforced only against members of the organization
All guidelines rely primarily on internalization of the codes and witnesses analysis of when and how they will participate in a case
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Ethical Responsibilities Owed to You
Your attorney owes you
A fair statement of the case or situation Adequate time to review evidence and prepare your report A reasonable opportunity to examine data, conduct testing, and investigate the matter before rendering an opinion
Most attorneys, including opposing counsel, are competent, courteous professionals
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Ethical Responsibilities Owed to You (continued)
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 cant object to questions but is available to advise the attorney who retained you or to advise you during breaks
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Standard and Personally Created Forensics Tools
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
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
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Summary
Ethics can be defined as rules you internalize and use to measure your performance Theres no U.S. licensing body for computer forensics examiners Be aware of attempts to disqualify you as an expert Courts use many factors in determining whether to disqualify an expert Be aware of obvious ethical errors
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Summary (continued)
No single source offers a definitive code of ethics for expert witnesses The inherent conflict between the needs of the justice system and your obligations for professional conduct can create ethical difficulties The attorney who has retained you, opposing counsel, and the court owe you ethical responsibilities as an expert witness The tools you use to recover, control, and track evidence are subject to review by opposing parties
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