Chapter 16: Ethics for the Expert Witness 

16.1: Applying Ethics and Codes to Expert Witnesses

• Ethics: The rules you internalize and use to measure your performance.
• People need ethics to help maintain their balance, especially in difficult and contentious situations, and for guidance on their values. Ethics also help you maintain self-respect and respect of those in your profession.
• One of the most effective mechanisms for protecting yourself at a personal level and a legal level is to have nothing to hide. This ethical position allows people to be self-critical and critical of others.
• Expert witnesses are expected to present unbiased, specialized, and technical evidence to a jury.

Forensics Examiners’ Roles in Testifying

• As an expert witness, you can testify even if you weren’t present when the event occurred or didn’t handle the data storage device personally.
• Because of an expert’s important role in litigation, attorneys often shop for experts who can support their cases, and experts’ fees might be only a secondary consideration.
• If you’re going to have a long and productive career as an expert witness, beware of attorneys’ opinion shopping.
• An attorney might be willing to risk your career to improve the prospect of success in a case—and can always find another expert for the next case.
• The most effective way to prevent opinion shopping is to require that the attorney retaining your services send you enough material on the case for you to make an evaluation.
• Distinguishing opinion shopping from the process of attempting to disqualify experts by creating conflicts can be difficult, however.

Considerations in Disqualification

• One of the effects of violating court rules or laws is a disqualification.
• This outcome isn’t usually punitive, but it can be embarrassing for you as a professional and potentially for the attorney who retained you
• A disqualification based on an ethical lapse could effectively be a death sentence for a career as an expert witness, as you can expect it to come up in any case you’re involved in.
• Opposing counsel might attempt to disqualify you based on any deviations from opinions you’ve given in previous cases. Any testimony you give at trials or depositions is on record and available to attorneys.
• If there’s a change in your position on a point, be sure to explain why you have changed it, such as recent developments in technology, new tools with new capabilities, or the facts of the current case differing from a previous case.
• An apparent change of position could be a subject for cross-examination, and you must be able to explain what appears to be contradictory opinions, or you’ll be seen as tailoring testimony to your client’s needs.
• Factors courts have used in determining whether to disqualify an expert include the following:
  • 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
  • Number of discussions held over a period of time
  • The type of documents that were reviewed (publicly filed or confidential)
  • 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
  • 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

Traps for Unwary Experts

• Expert witnesses should be cautious about the following potential traps, even though some aren’t laid deliberately:
  • What are some differences between the attorney’s motives and the investigator’s duty that might affect how the investigator acts, or is expected to act, as an expert witness?
  • Is the function of the expert witness in conflict with the investigator’s code of professional responsibility?
  • Attorneys look at witnesses’ codes of professional responsibility based on organizations they are members of. As an expert witness, you should anticipate that the opposing counsel will look at your organization memberships and those organizations’ codes of professional responsibility.
• Contingency fees aren’t allowed except in certain limited circumstances.
• In addition, avoid obvious ethical errors, such as the following:
  • Don’t alter data or present false data.
  • Don’t report work that wasn’t done.
  • Don’t ignore available contradictory data.
  • Don’t do work beyond your expertise or competence.
  • Don’t allow the attorney who retained you to influence your opinion in an unauthorized way.
  • Don’t accept an assignment if it can’t be done reasonably in the allowed time.
  • Don’t reach a conclusion before doing complete research.
  • Don’t fail to report possible conflicts of interest.

16.2: Organizations with Codes of Ethics

International Society of Forensic Computer Examiners

• Its Codes of Ethics and Professional Responsibility supply guidelines for its members on how they are expected to perform their duties as forensics examiners.
• These guidelines include specific instructions on how members must maintain their professional standing and define what members must do and not do when performing their duties as forensics examiners.
  • 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.
  • 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 client’s express permission.

International High Technology Crime Investigation Association

• It provides a detailed Code of Ethics of Professional Standards Conduct for its members.
• HTCIA's 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 digital forensics best practices, including specialized techniques used to gather digital evidence.

International Association of Computer Investigative Specialists

• It provides a well-defined, simple guide for expected behavior of forensics examiners.
• These standards follow the principles defined by other professional organizations for investigations and testimony.
• The standards for IACIS members that apply to testifying include the following:
  • Maintain the highest level of objectivity in all forensic examinations and accurately present the facts involved.
  • Examine and analyze evidence in a case thoroughly.
  • Conduct examinations based on established, validated principles.
  • Render opinions having a basis that is demonstratively reasonable.
  • Not withhold any findings, whether inculpatory or exculpatory, that would cause the facts of a case to be misrepresented or distorted.

American Bar Association

• As a forensics examiner, you deal with attorneys, so you should be aware of the basic rules of professional conduct they must follow
• ABA is a not licensing body, but the ABA’s Model Code of Professional Responsibility and its successor, the Model Rules of Professional Conduct, are the basis of state licensing bodies’ codes.

American Psychological Association

• For psychologists, the broadly accepted guidelines governing their conduct as experts are the APA’s Ethical Principles of Psychologists and Code of Conduct.
• These guidelines offer comprehensive regulations, with an entire section devoted to forensics activities.
• The Ethics Code consists of standards that are enforceable rules for the conduct of psychologists and applies only to psychologists’ activities in scientific and professional functions that are psychological in nature.

16.3: Ethical Difficulties in Expert Testimony

Ethical Responsibilities Owed to You

• The attorney who has retained you, opposing counsel, and the court also owe you ethical responsibilities as an expert witness.
• Your attorney owes you a fair statement of the case or situation, adequate time to review evidence and prepare your report, and a reasonable opportunity to examine data, conduct testing, and investigate the matter before rendering an opinion.
• The attorney might also hold you under subpoena for an excessive amount of time waiting to testify. This might reflect difficulties in anticipating the amount of time required for other witnesses’ testimony.
• After you have noted a problem in the record, you can refuse to continue with the deposition; however, these situations are rare and even more rare in court.
• You should consult with an attorney before taking that last step. If you think the behavior was serious enough that you can justify refusing to continue, you should also consider reporting the attorney to the state bar association.
• As a measure of protection, you might want to have your personal attorney attend the deposition; this attorney can’t object to questions but is available to advise the attorney who retained you or to advise you during breaks.

Standard Forensics Tools and Tools You Create

• 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 them might not be admitted or might be admitted with a limiting instruction.
• Tools you’ve created, if they’re designed for a specific purpose and have been tested adequately to validate their accuracy for that purpose, might have advantages you can demonstrate to a judge, who ultimately determines whether evidence is admissible.

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