Primeau Forensics Blog

The Forensic Expert Witness: 3 Tips For Preparing to Testify

It is very important that the forensic expert witness must prepare to testify. Proficiency in their field is certainly a prerequisite for all who testify in court as an expert witness. However, preparing to Testify is a process. I will share three tips on how to maximize preparing to testify with you below.

With the benefit of my 35 years experience, I believe that a good expert witness must also qualify as an expert in communicating clearly and persuasively on the witness stand. In short, expertise in testifying is just as important as expertise in a particular field of knowledge. Here, then, are 4 tips for expert witnesses and the attorneys they work with.

 

Tip #1

Make sure that the judge and jury are fully convinced that you are, without any doubt, a true expert in your field. Proving your status as a recognized, fully qualified expert is the foundation upon which all your testimony rests. The more impressive your credentials, the greater the weight given to your testimony. For that reason, I always have several copies of my CV available for review by opposing counsel, judge, and jurors, as well as a copy that is entered into evidence.Always supply the attorneys on your side with a clear outline of facts designed to help establish your credibility as an expert witness. You can even provide them with a list of suggested questions that will help substantiate your qualifications in a succinct, logical manner. It has been my experience that if I do not earn the respect and trust of the jury before presenting the facts, then my testimony will fall on deaf ears. Similarly, make a list or an outline of the order and substance of the points you plan to make, and provide it to the attorneys who have engaged you as an expert witness. There is no one more qualified than you to suggest a line of questioning to follow during your direct examination. You have a broad overview of the beginning, middle, and end of your investigation, the story of what you found and how you found it. By their very nature, people are constantly attempting to make sense of their experience. Psychologists have found that one of the ways they do this is by creating narratives, forging links between the facts of their experience and creating causal chains. If the story you present is a good one, if it is clear and compelling, then the jury will remember it and give it the credence it deserves. Especially in cases where there are many facts to bring out, a detailed outline serves as a road map for the attorney to follow. Under the pressure of appearing in court, it is surprisingly easy to overlook important facts that must be highlighted during your testimony.

Tip #2

Sitting alone, I always rehearse aloud what I want to say when I testify. This helps me remember the order in which I want to present my findings. More importantly, it allows me to practice explaining, in simple language, the results of my investigation. My goal is to present, explain, and illustrate my findings so that the average 12-year old can understand me. Juries are easily bored by technical jargon and obscure scientific concepts. I strive to be clear and concise, and to allow the natural enthusiasm I have for my area of expertise to show through. People love to learn about new things(though this flame is often extinguished by the time they graduate from high school).One of my favorite film directors, Stanley Kubrick, once said, “To be boring is the worst sin of all.” Our world is alive with facts and ideas, emotions and events. Life is inherently interesting. Appearing as an expert witness should not give someone license to put the jury to sleep.

Tip #3

Extremely valuable is conducting a mock trial. I recently testified as a video forensics expert in one of the most complex cases of my career. We spent two days on a mock trial, with one lawyer doing direct and another cross. Over time, I was able to answer every question clearly and without hesitation, even those questions that challenged my findings and expertise. By the second day, we had arrived at a list of all the questions the prosecutor would be most likely to ask during cross-examination. At trial, the prosecution had only two questions for me, because we had already answered most of his questions on direct examination. Anticipating and pre-empting questions from the opposition is a highly effective legal strategy. Because it was complete and candid, my testimony was largely immune to challenge from the prosecution. A trial consists of many large and small battles, which determine the outcome of the war, the verdict. In that sense, my testimony was an overwhelming victory for our side.

Establishing a Chain of Custody for Audio and Video Evidence

Establishing a Chain of Custody for Audio and Video EvidenceAs an experienced audio and video forensic expert, I am very focused on establishing a chain of custody for audio and video evidence.

My job is to offer an authoritative analysis of electronic evidence, introduced in the form of audio or video recordings. The content of my testimony is twofold, interpretation and authentication. I interpret and clarify the recordings, and I authenticate the identity of those individuals seen and heard. But I must also authenticate the evidence as evidence. Has this recording been tampered with? Is the recording I examined the original or a copy? Through whose hands has this recording passed before and after it reached me? Where and how has it been stored?

The answers to these questions may determine the admissibility of the electronic evidence, and ultimately, whether a defendant is found guilty or innocent. Establishing and maintaining an unbroken chain of custody is vital. Without it, the evidence and my testimony, no matter its probative value, may be successfully challenged and ruled inadmissible. According to the online IT Law Wikia, chain of custody is defined as “a process that tracks the movement of evidence through its collection, safeguarding, and analysis lifecycle by documenting each person who handled the evidence, the date/time it was collected or transferred, and the purpose for the transfer.”

I always make a video recording of my process/investigation when I retrieve evidence. For example, if the video evidence is on a digital video recorder, I travel to the DVR and personally retrieve the evidence myself. The video I record of my retrieval process effectively establishes a chain of custody. Of course, I follow the same procedure when I personally retrieve an audio recording.

However, there are many instances where I obtain evidence from lawyers who, in turn, receive recordings from the police. Whenever I do not retrieve the evidence personally, I must carefully read the reports, depositions, and related documents that accompany the evidence I receive. This paper trail must support the construction of a timeline, an unbroken, chronological listing that accounts for the seizure, custody, transfer, storage, and condition of the evidence. The timeline must be free of any gaps, periods of time during which the exact custody and location of the evidence cannot be accounted for. A weak link in the chain of custody can easily overturn a conviction on appeal, so I am always prepared for chain of custody questions when I testify.

A typical chain of custody form includes blank text fields that allow for the entry of the following: Case Name and Number, Type of Evidence, Evidence Initially Procured (Where, By Whom, Date & Time), Manufacturer and Serial Number of Media Device and/or Media, and a table listing Evidence Inventoried By (Name, Date, Time, ID), Evidence Released By (Name, Date, Time), and Evidence Received By (Name, Date, Time).

As I mentioned earlier, there are actually two chains of custody when considering electronic evidence: the physical recording itself and the data it holds. With the proliferation of home computers capable of desktop audio and video editing, there has been an increasing incidence of tampering with recordings before they are collected as evidence. I can usually spot recordings that have been altered very quickly, once I begin my electronic analysis.

Slowly gaining acceptance with law enforcement, security companies, and the legal community are online services that maintain and track the chain of custody of electronic evidence, which is stored in the cloud. Particularly useful for the archiving and storage of video from body cams, vehicle cameras, and surveillance cameras, these services hope to modernize the handling of electronic evidence by eliminating the repeated transference of physical evidence, maintaining standardized security procedures, and providing easy access to the content of electronic recordings.

Forensic Experts Are Worth The Investment

Forensic Experts Are Worth The InvestmentForensic experts are worth the investment when the evidence is misunderstood. When introducing a new litigator to audio and video forensics, I like to use the analogy of car repair. You can have your car repaired by a corner or back yard mechanic that charges forty dollars an hour. It might take that back yard mechanic ten hours to fix the problem. OR, you can take your car to the dealership which charges seventy five dollars an hour and have it repaired in two hours. The difference is in the experience and credibility. The dealership will also take the time and explain what needs to be repaired and provide options and an understanding of the repair process. The dealership’s experience with and knowledge of that make and model of the car saves them time making the repair and helps you the customer better understand the nature of the problem.

The same is true regarding a forensic expert. Forensic experts have experience with each forensic academic and can save litigators time and money when it comes to understanding forensic evidence and investigations.
Primeau Forensics is a vehicle for you to get answers to the questions you have about your multi-media evidence that is being used in litigation. As an audio and video forensic expert, I often find that courts, lawyers, and litigators get confused as to the purpose and the validity of their forensic evidence—which is where we help. Today there are dozens of CCTV digital video formats and audio recordings everywhere that contribute to evidence. That information needs to be simplified and better understood by courts and litigators.

Primeau Forensics is a growing forensic organization. It will soon include Internet forensics, security forensics, cell phone forensics, smart phone forensics, and other related multi-media forensic services. Audio and video is being recorded everywhere, not just CCTV (closed on circuit television systems) and police car dash cameras. Audio and video is used more today in litigation than ever before. Knowing some simple facts about your audio and video evidence from a forensic perspective is extremely important to you and the decision makers. Primeau Forensics is here to help. We welcome any questions, comments or feedback either by email– primeauforensics@gmail.com or by phone–(800) 647-4281.

 

 

 

 

 

 

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