We recently released our latest white paper, “12 Tips for Presenting Digital Evidence in Court,” to offer guidance and tips for what you need to know from before a case even begins, through acquiring, analyzing, and presenting your findings.
We wanted to spend some additional time, however, on a particular aspect of our final tip in the paper: “Project confidence in the reliability of your evidence and your credibility as an examiner.” This starts with the ability to validate both your data and your tools, and to stand on the solid foundation of your own training, experience, and other qualifications.
This is easy under direct examination, when with the attorney’s assistance, this is your opportunity to establish your expertise in clear, easy to understand terms. Describe what you did, what tools you used, and why you did it that way. Use visuals and terminology or analogies that “grandma” can understand.
It’s under cross-examination, however, that your foundation needs to be strong enough to withstand any attempt to make it appear weaker than it actually is—a common strategy of opposing counsel in an adversarial legal system.
This is where things can get tricky, especially for inexperienced and/or poorly prepared witnesses. Cast doubt on your opponent’s expert witnesses, and you could effectively undermine their entire case. Experts need to be able to understand how this happens, and how to overcome it when their time comes.
We’ve compiled a set of tactics from different blogs and other online resources that we hope will help. Be sure the attorney you’re working with can prepare you for these possibilities:
The Trick: The “Yes or No” Question that Attempts to Limit What You Can Offer
Ryan Flax, a litigation consultant for A2L Consulting, offered three possible solutions to this trick:
- Agreeing that the response could be “yes” or “no” but that the answer would be incomplete.
- Adding the phrase “under certain conditions” following the “yes” or “no.”
- Mirroring the question by responding, “As I understand it, the answer is either [yes or no],” introducing the possibility of a unique interpretation.
Steven Babitsky, an attorney writing for expert witness training company SEAK, added: “If your answer requires an explanation because a simple “yes” or “no” would be misleading, be sure to make that fact clear by your answer.”
The Trick: Compound Questions, or Complex Hypotheticals
Often, attorneys try to get one answer for two questions, or introduce additional complexity. The solution: Make it clear that you’re answering only one question at a time—and if any part of the question is confusing, as Flax wrote, ask the attorney to rephrase and/or to clearly define any words of phrases that could be confusing or ambiguous.
The Trick: Putting the Focus on You and Your Actions—or Lack Thereof
The solution: Ensure you have an established Standard Operating Procedure to which you’ve adhered. The SOP should follow the generally accepted rules and guidelines set forth in the Federal Rules of Evidence or comparable standard in your country.
The Trick: Rapid Fire Questioning
“This is an easy technique to defuse,” Flax wrote, “since the witness can control the rate of questioning by taking the time to consider each question before answering. When the expert witness takes his time to answer, he also gives his counsel time to object.
The Trick: Interrupting You or Cutting You Off
Babitsky wrote, “Expect interruptions from opposing counsel when he or she does not like your answer; you must resist the interruption.” The solution: simply state that you weren’t finished, and ask—the attorney and/or the judge—if you may complete your answer.
The Trick: Asking Questions Designed to Make you Get Deep into the Weeds
This can leave the jury feeling disconnected from you because they don’t understand you. Additionally, Dr. Merrie Jo Pitera, CEO of Litigation Insights, blogged in 2014 about favorite tactics of attorneys to try to get opposing witnesses to over-explain.
“But a witness who talks too much, either in deposition or trial, can be a liability because volunteering information can potentially highlight vulnerabilities for the other side,” Pitera wrote. The solution: Keep things as simple and basic as you can. Always try to relate your findings to something that the average person can relate to, and use visuals, where possible.
The Trick: “Playing Dumb”
Pitera wrote, “When a witness hears an attorney say something like, ‘I really don’t understand this technology. Could you please help me understand?’ it should be a signal that the attorney is hoping the witness will step into a teacher role and will volunteer more information about the subject matter than necessary,” writes Pitera.
It’s possible, of course, that the attorney really doesn’t understand digital forensics. Flax, of A2L, wrote, “… often, the examining attorney will have been asking his questions from a script that he or an associate prepared or that he obtained from a book. If the expert being examined is in a dense or very high tech field, the attorney may not understand the topic well enough to craftily rephrase his question.”
Nonetheless, this still shouldn’t put you in a teaching role. Flax’s advice: “If an examining-attorney asks a question that doesn’t get the science right, or misses the point somehow, don’t educate them. Let them stay ignorant and let the record stay ignorant until the right time to inform it, which is when the witness is on direct.”
The Trick: Asking Questions You Aren’t Prepared to Answer
This may be either because they’re outside your experience, outside the scope of what you were tasked with doing, or you simply don’t know or can only offer an estimate.
To get around these types of questions, Flax recommended being clear and up-front about each of these scenarios. Guessing, he wrote, could damage your credibility. If you need it, have a copy of your well-documented report with you to refer to if needed. (Need more information on what “well-documented” looks like? Read Phill Moore’s excellent, in-depth piece at ThinkDFIR about documentation.)
Most of all, regardless of which side you find yourself on, you can help the attorney prepare for trial just as much as they can prepare you. This doesn’t just happen during the “trial prep” phase; ideally it should start long before that point, by building a long-term partnership that helps the attorney understand what you do and why it matters—and sustains through even the toughest cases.
Learn more about preparing to testify about digital evidence in court—download our white paper!