As an expert witness, you have opinions about what you have found or observed.

Expert testimony is presented in legal proceedings when a judge or jury needs assistance evaluating a material fact in a court proceeding. In common law systems, expert testimony is usually proffered by one of the parties. The evidence must be reliable, relevant to the case, more probative than prejudicial, and must assist the trier of fact to be admissible. The fact finder determines how much weight to accord the testimony. Although experts in civil law systems are usually court-appointed, their opinions may not be binding on the judge or judges presiding in the case. The history of empirical trial simulation research examining the effects of expert testimony on juror judgments is reviewed. This research shows that adversarial expert testimony (i.e., testimony presented by one side) influences juror decisions, is more influential when it is explicitly linked to the trial evidence, and sensitizes jurors to relevant trial evidence. Although people have expressed concerns about the prejudicial effects of nonadversarial or court-appointed expert testimony, jurors do not seem overly influenced by court-appointed experts. Recent research demonstrates that both judges and jurors are insensitive to variations in the methodological quality of expert evidence, which may lead them to make decisions based on flawed evidence.

This article reviews expert testimony by psychologists within the United States legal system. Topics considered include the nature of expert vs. lay testimony, the process by which an expert is retained and used within legal proceedings, and the variety of roles the psychologist may play in civil, criminal, and family court. The admissibility of expert testimony is discussed, with special attention to the Federal Rules of Evidence and the cases of Frye vs. United States and Daubert vs. Merrill Dow Pharmaceuticals. Recent trends and developments in psychology and law such as increased professionalization and demands for research are also described.

Standards Governing Expert Witness Testimony

The admissibility of expert testimony is governed in federal courts by Rule 702 of the Federal Rules of Evidence (FRE). This rule states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

This threshold for admissibility is designed to allow novel approaches to addressing issues in litigation, yet to preclude testimony based on “junk science.”

Testifying: Rule 702. Testimony by Experts

Rule 702 is a federal rule of civil procedure that governs expert testimony. The judge is considered the “gatekeeper,” and she alone makes the decision as to whether or not the following rule is satisfied:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case (U.S. Courts, Federal Rules of Evidence, Rule 702).

There are certain rules for qualifying as an expert. In court, when an expert is presented, both attorneys may question the expert on matters of background and expertise. This process is referred to as qualification and, if an “expert” does not meet the legal definition of expert, he may not be allowed to testify. This is a short bullet list of items that will be asked in qualifying as an expert witness:

How long have you worked in the field?

What certifications do you hold in this field?

Where did you go to college?

Did you graduate? What degrees do you have?

What are your publications?

You may also be asked if you have testified in other proceedings. It is important to always be honest when on the stand. Perjury is a very serious crime and can result in jail time. All forensics experts should familiarize themselves with Federal Rules 701–706 as well as understand the purpose, intent, and results of a successful Daubert challenge, wherein an expert’s opinion or the expert himself may be challenged and, if certain criteria are met, may have his testimony thrown out. It is accepted and understood that experts may have reasonably different conclusions given the same evidence.

When testifying, stay calm (easier said than done). If you’ve never done it, approaching the bench and taking the witness stand may seem like a lot of fun. In a case where a lot is on the line and it all depends on the expert’s testimony, nerves will shake and cages will be rattled. The best advice is to stay calm. Drink a lot of water. Drinking copious amounts of water will, according to ex-Navy Seal Mike Lukas, dilute the affect of adrenalin in the bloodstream.

Testifying in a stately and austere court of law may seem like it is the domain of professors and other ivory tower enthusiasts. However, it is something that pretty much anyone can do that has a valuable skill to offer, regardless of educational background. Hollywood often paints a picture of the expert witness as a consummate professorial archetype bent on delivering “just the facts.” It is true that expert witnesses demand top dollar in the consulting world. Much of this is for the reason that a great deal is at stake once the expert takes the stand. There is also a very high inconvenience factor. When on the stand for days at a time, one can’t simply take phone calls, respond to emails, or perform other work for other clients. There is a certain amount of business interruption that the fees must make up for somehow.

Testifying is interesting. Distilling weeks of intense, technical investigation into a few statements that can be understood by everyone in the courtroom is no small task. It is a bit nerve wracking, and one can expect to have high blood pressure and overactive adrenalin glands for the day. Drinking lots of water will ease the nerves better than anything (nonpharmaceutical). It can have other side effects, however, but it is better to be calm and ask the judge for a short recess as needed than to have shaky hands and a trembling voice from nerves. Caffeine is a bad idea.

Rule 701, Opinion Testimony by Lay Witnesses

Rule 701 addresses evidentiary witnesses who are not in court to provide expert testimony. Because of this, the scope of testimony is limited to events that transpired, and to what a person saw, heard, or did. Any opinions and inferences that the witness does make are limited to the following criteria:

They must be rationally based on the witness's perception.

They are helpful to achieving a clear understanding of the testimony or determination of a fact in issue.

They are not based on scientific, technical, or specialized knowledge.

Although this rule does provide the ability for the witness to have an opinion on the events he or she witnessed, it limits this opinion to a narrow scope. For example, if a mugger held a gun to your head and said “Give me all your money, you don't want to die,” a rational perception of this event would be that the mugger was going to kill you if you didn't give him your money. Such opinions are void of any specialized knowledge and deal only with clarifying the event, and what you believed was occurring.

Expert Witnesses

An expert is often defined as any witness who is not a lay witness. While it is a suitable definition, the complexities of expert testimony call for more.151 It is now a given that experts populate our courtroom in both the criminal and civil realm. It is also commonly agreed upon that there has been a proliferation of experts, expert testimony, and fields of acceptable expertise once unenvisioned.152 These perceptions are the result of many factors such as media coverage of flamboyant expert witnesses to celebrated and often avant-garde litigation. However, the bulk of testimony given in any criminal or civil action is fundamentally “lay” in nature. An expert is entitled to give an opinion, but only in the context of his or her expertise, though a foundational test will have to be met before such testimony is proffered. In the case of a lay witness, foundational requirements must be laid as follows:

The witness's testimony is based upon his or her own unique perception.

The court is convinced that the testimony of the lay witness is helpful in arriving at the truth.

The witness does in actuality have an opinion.

The witness is capable and competent to testify as to that opinion.

Without the testimony the trier of fact, namely, the judge and jury, would not have the best case presented.

The witness is giving lay testimony rather than expert testimony.

No opinion as to a rule or an interpretation of law will be permitted.153

Experts, on the other hand, must be qualified to testify in their areas of expertise. Rule 703 of the Federal Rules of Evidence154 requires that an expert's opinion rest on facts, data, or other information that he or she has actually seen or heard or has been communicated to the expert. Rule 704155 permits the expert witness to attest to the ultimate issue of fact, though at one point in history the ultimate issue doctrine withheld that right. By ultimate issue, the expert is giving his or her assessment on the fundamental guilt or innocence of the defendant or the truth or falsity of a given issue at trial.156

Security companies must learn to develop collegial and longstanding relationships with experts in fields of mutual interest, such as engineering, hazardous materials, use of force and professional police practices, product liability, negligence and intentional tortious conduct. The occasion may arise whereby the security company needs the assistance of an expert. Insist that the self-acclaimed expert prove his or her qualifications since the court will expect the scrutiny by reviewing these standardized qualifications:

The witness has specialized training in the field of his or her expertise.

The witness has acquired advanced degrees from educational institutions.

The witness has practiced in the field for a substantial period of time.

The witness taught courses in a particular field.

The witness has published books or articles in the particular field.

The witness belongs to professional societies or organizations in a particular field.

The witness has previously testified and been qualified as an expert before a court or administrative body on a particular subject to which he or she is being asked to render an opinion.157

Summary

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) was decided by the Supreme Court and set the legal precedent for admitting expert testimony in federal legal proceedings, holding the testimony must be relevant and reliable. A litmus test to consider whether your collection procedures would survive, a Daubert challenge, could include the following items:

Is your collection process well documented?

Is the collection process or methodology generally accepted by your peers?

Has your collection methodology been tested and results documented on other similar matters?

If someone were to undergo the same collection exercise on the same data set, would he have the same results as you?

Does the collection process potentially alter any of the data being collected?

Can you put the people who collected your data on the stand to testify?

If you do not feel that you can confidently answer each of those questions with a “yes,” you should assess the weaknesses in your. And, it is always important to remember because of a large number of different sources of evidence (as well as types of media) that the collection process typically takes more than one person – ultimately enabling you to build a defensible and admissible collection protocol.

As technology changes, the defensible process will evolve. As mentioned in Chapters 2 and 3chapter 2chapter 3, companies are employing litigation-ready enterprise content management systems as part of their enterprise. These systems provide for a single point of search and collection, which will eventually provide a single-point and streamlined collection methodology. Additionally, third-party consultants are also starting to deploy data cataloging and mapping devices (as mentioned in Chapter 5) on client networks to inventory files prior to collection. This too will benefit the overall collection process by identifying sources and volumes of electronically stored information throughout the enterprise. Regardless of the technology, tactics or personnel, the key of your program is to ensure that your evidence is defensible and admissible.

Applicability to Procedures

When performing forensic investigations on Cisco routers and switches; you should base your checklists and procedures on the policies the organization has in place. Knowing the rules of evidence and data collection procedures and your expert testimony guidelines will make your job both as a forensic investigator and as an expert witness more successful.

It is also important to match your procedures and checklists not only to the relevant federal and state laws, but also to the policies of your organization. Also keep in mind the laws regarding admissibility, and laws such as the Sarbanes-Oxley Act of 2002 (SOX) and the Health Insurance Portability and Accountability Act of 1996 (HIPPA), as well as any international laws relevant to your situation.

US Federal Rules of Evidence

The Federal Rules of Evidence (FRE) are the guides for investigators and responders in the actual collection and use of evidence in court cases. The FRE is the code of evidence law governing the admission of facts by which parties in the US federal court system may prove their cases, both civil and criminal. The FRE were the product of protracted academic, legislative, and judicial examination before being finally approved in 1975. US states are free to adopt or maintain evidence rules different from the Federal Rules, but a significant majority (47 out of 50) has adopted codes in whole or part based on the FRE.

The FRE primarily serve to govern federal trial courts rather than appellate courts, because they (FRE) govern the initial presentation of evidence in a trial; especially since appellate courts, due to their function and scope address very few questions touching upon the facts of a case. Primarily the purpose of these FRE is to regulate the evidence that the US Federal Court judge and/or jury may use to reach a verdict. The FRE strive to eliminate the historical distrust of jurors, and encourage admitting evidence in close cases. The many types of information presented to a judge or jury are designed to convince them of the truth or falsity of key facts. Strict rules limit what can be properly admitted as evidence, but dozens of exceptions to these rules often mean that lawyers find a way to introduce such testimony or other items into evidence.

At the same time, the FRE centers on a few basic ideas—relevance, efficiency, reliability of evidence, unfair surprise, and overall fairness of the adversary (prosecution/defense) process. The FRE grant trial judges broad discretion to admit evidence in the face of competing arguments from the parties. This ensures that the jury has a broad spectrum of evidence before it, but not so much evidence that is repetitive, inflammatory, or unnecessarily confusing. The FRE define relevance broadly and relax the common-law prohibitions on witnesses’ competence to testify. Hearsay standards are similarly relaxed, as are the standards for authenticating written documents. At the same time, the judge retains power to exclude evidence that has too great a danger for unfair prejudice to a party due to its inflammatory, repetitive, or confusing nature or its propensity to waste the court’s time.

There are 67 individually numbered rules, divided among 11 articles within the FRE:

General Provisions

Judicial Notice

Presumptions in Civil Actions and Proceedings

Relevancy and Its Limits

Privileges

Witnesses

Opinions and Expert Testimony

Hearsay

Authentication and Identification

Contents of Writings, Recordings, and Photographs

Miscellaneous Rules.

The FRE embody some very common concepts, and attorneys frequently refer to those concepts by the rule number. The most important concept—the balancing of relevance against other competing interests—is embodied in Rule 403.

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

The Daubert Rule

The U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) charged district court judges with the responsibility of acting as gatekeepers to exclude unreliable expert testimony in all fields of expert testimony. Typically, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion provided that (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

The intention of these rulings was to eliminate “junk science.” U.S. District Courts, and many state courts that use similar rules, exclude experts who are not operating in litigation in the same way that they would operate in nonlitigation engagements. Experts are not “hired guns” willing to testify in any manner that benefits their client. The purpose of experts is to assist jurors in understanding a field for which they are not expected to have sufficient knowledge to render a finding. Therefore, an expert’s testimony must be properly grounded, well reasoned, and not speculative before it can be admitted. The more subjective and controversial the expert’s inquiry, the more likely the testimony will be excluded as unreliable.

The method used to exclude an expert’s testimony, in whole or in part, is a motion by a party (known as a Daubert challenge) to strike that testimony so the jury does not hear it. This requires the trial judge to hold a hearing with attorneys representing the parties presenting arguments as to why this expert should or should not be allowed to testify at trial. Occasionally the expert in question is allowed (or required) to testify at the hearing, but more often the expert simply provides information to the attorney to be used at the hearing.

Daubert challenges have increased dramatically in federal courts and in state courts that have adopted the Daubert ruling. Between 2000 and 2010 there was a 350 percent increase in these challenges, and approximately 49 percent of the challenges were successful in whole or in part. That means that in almost half of the challenges, the expert or the attorney who hired that expert could not demonstrate that testimony was worthy of being presented to the jury. Having testimony struck can be damaging to the expert’s reputation because the Daubert challenge goes to the very heart of the methodology the expert uses and not to the actual conclusions reached.

The International Association of Professional Security Consultants has provided experts in the field of security with a methodology that meets these criteria in the form of “best practices.” It can be located at www.iapsc.org as well as in Appendix F in this text.