Who is an Expert?

A.K. Deshpande

Who is an Expert?

• Computer Forensics: Computer Forensics is identification, preservation, extraction, interpretation and presentation of computer related evidence.

• Computer Forensics, also called as “Cyber Forensics”, is the application of computer investigation and analysis technique to gather evidence suitable for presentation in a court of law.

Who is an Expert?

• A person having such computer Forensics knowledge or expertise is called “Computer Forensics Expert.”

• Noblett et. al., as well as FBI, define computer forensics as “the science of acquiring, preserving, retrieving and presenting data that has been processed electronically and stored on computer media.”

Who is an Expert?

• A person who has special skill or knowledge in some particular field; specialist; authority; trained by practice.

• A person with a high degree of skills in or knowledge of a certain subject;

• A person with ability who performs skillfully;• A person having implying skills, facility or

practical wisdom gained by personal knowledge, feeling or action.

Who is an Expert?

• Computer Forensics as the discipline that combines elements of law and computer science to collect and analyze data from computer system, networks, wireless communication and storage devices in a way that is admissible as evidence in a Court of Law.

Who is an Expert?

Computer Forensics

Criminal CaseCivil Case

Who is an Expert?

• Daubert principle is a very famous for cases in which scientific methods and knowledge is involved and it is still referred in the court while determining the test for the admission of scientific expert’s testimony.

Who is an Expert?

• In Frye v United States, 54 App. D.C. 46, 47, 293 F.1013, 1014, for the rule that expert opinion based on a scientific technique is inadmissible unless the technique is “generally accepted” as reliable in the relevant scientific community.

Who is an Expert?

• In 2000, Rule 702 is amended which states that The Rules – especially rule 702 –place appropriate limits on the admissibility of purportedly scientific evidence by assigning to the trail judge the task of ensuring that an expert’s testimony both rest on a reliable foundation and is relevant to the task at hand.

Who is an Expert?

• The reliability standard is established by Rule 702’s requirement that expert’s testimony pertain to “scientific …knowledge,” since the adjective “scientific” implies a grounding in science’s methods and procedures while the word “knowledge” connotes a body of known facts or of ideas inferred from such facts or accepted as true on good grounds.

Who is an Expert?

• The Rule’s requirement that the testimony “assist the trier of fact to understand the evidence or to determine a fact in issue” goes primarily to relevance by demanding a valid scientific connection to the pertinent inquiry as a precondition to admissibility.

Who is an Expert?

• The Court must ask: Does this particular person possess enough specialized or skilled knowledge about the subject matter in question to enable him or her to assist the trier of fact?

• But again here the question arises, though the expert witness possesses the knowledge, whether the juries or the judge has understood the technology involved in the case. Without understanding the technology involved in the case, how can a judge or the juries deny expert’s testimony?

Who is an Expert?

• Federal Rule of Civil Procedure 26 (a)(2)(B) mandates experts disclose their identity, the issues their opinions will address , their professional qualifications (including what they have published in the past 10 years and all cases in which they provided expert testimony in the previous four years) who is paying them.

Who is an Expert?

• In William Daubert v Merrell Pharmaceuticals, the plaintiff was suing for the birth defects alleged caused by the medicine “Benedictine.”

• Daubert had eight different scientific witnesses all testify that the medicine casue birth defects.

• The court decided that the evidence was not admissible. The ruling was based on the fact that the court felt these witnesses did not meet the standard set by the Federal Rules of Evidence.

Who is an Expert?

• Daubert test focuses on the following points:1. While carrying out the investigation, whether the

expert working on that case has used scientific method i.e. discovery technique. This will help the court in determining the approach of the expert and the method used to arrive at the conclusion is proper or not. The court will see in the testimony of the expert is able to explain proper justification of each and every step performed to arrive at the conclusion.

Who is an Expert?

2. The court will also try to analyze whether the method used by the expert in the present has ever been used by any other expert or same expert in any other case. The court may also look at the impact in the light of facts of both cases. The court may also see the justification of each and every step.

Who is an Expert?

3. The court may also look at what kind of discovery methods used and may ask for the justification. The court may also go into the inquiry of tools used by the expert and chances of getting error in computer forensics. The court may go for the comparison for the same discovery technique used in present case with the technique used in the other cases. It becomes the responsibility of the computer forensics expert to satisfy judge.

Who is an Expert?

4. If the computer forensics expert is relying on someone’s opinion, then the expert should produce such document or such opinion before the court of law to justify his statement.

Who is an Expert?

• The court has given two meanings of “reliability” at the same time.

• Firstly reliability ensures that the expert’s “explanatory theory” works and results in a truthful or valid conclusion.

• Second, it describes a type of evidence “meriting confidence worthy of dependence or reliance” by the trier of the fact.

Who is an Expert?

• Other factors to be considered when evaluating the admissibility of expert testimony:

a. Testing method;b. Peer review;c. Error rates;d. Acceptability within the relevant professional

community.

Who is an Expert?

• Minimum Standard to be called as an “Computer Forensics Expert” may include:

a. Technical knowledge and Qualificationb. Experiencec. Evidence Analysisd. Discovery technique

Who is an Expert?

• Court may reject the Computer Forensics Expert in the following circumstances:

a. Unable to answerb. Unable to preserve the evidencec. Does not find the evidence for the same issued. Vague Conclusione. Judge’s discretion

Who is an Expert?

• Do we have something like this prevailing under Indian Laws relating to Computer Litigations?

Thank You