"A Guide to Forensic Testimony", Fred Chris Smith/Rebecca Gurley Bace,
2003, 0-201-75279-4, U$49.99/C$77.99
%A Fred Chris Smith
%A Rebecca Gurley Bace
%C P.O. Box 520, 26 Prince Andrew Place, Don Mills, Ontario M3C 2T8
%I Addison-Wesley Publishing Co.
%O U$49.99/C$77.99 416-447-5101 fax: 416-443-0948 bkexpress@...
%P 509 p.
%T "A Guide to Forensic Testimony"
The subtitle explains the book more fully: "The Art and Practice of
Presenting Testimony as an Expert Technical Witness." However, those
with expectations about the form of technical literature should note
that the style of this work follows that of the legal profession and
case law: it primarily teaches by using examples rather than pointing
out a specific methodology.
The preface illustrates another difference between the technical and
legal worlds. Computer work generally involves finding an answer to a
problem: if the code works, background study and documented analysis
is generally irrelevant. The legal profession, on the other hand,
absolutely depends upon advance preparation, and an answer is almost
useless unless the reasoning, background, and process is not only
chronicled, but properly and legally obtained. Thus the authors are
aware of the twin needs to inform technical experts about the
requirements of the legal world, and to instruct legal professionals
in aspects of technology that may be relevant to the pursuit of a
case. The introduction notes the possible tragedies that can result
if either the trial attorney or the technical expert attempts to act
as ventriloquist to the other's dummy.
Chapter one gives examples of expert witnesses, starting with a
fictional example from a movie. Normally this would not be very
instructive, but the authors are careful to point out, from the
fictional story, important legal points to be aware of in regard to
the possibilities and limits of expert testimony (and also the legal
restrictions that would prevent some of the story points from
happening in a real case). The rest of the chapter then goes on to
introduce legitimate and recognized experts, and present their
opinions and advice in regard to the practice of expert testimony.
Chapter two is supposed to promote both the idea of becoming an expert
witness, and of preparing for the experience. In fact, most of the
material deals with Bill Gates' first deposition in the antitrust
litigation, and the mistakes that he made. The example does make
valid points both about the value of preparation and the need to
testify whether we want to or not, but the message is not always
obvious. Using testimony to provide a story about what happened is
presented in chapter three. The example, though, is the tracing of
Kevin Mitnick's intrusion on the systems managed by Tsutomu Shimomura,
and therefore the testimony, which never happened, is simulated, which
weakens the lessons the text intends to convey. Chapter four outlines
the rules of testimony and the legal process, and is the section that
technical people should probably study most thoroughly. Although
there are important points to be made in regard to the dangers of
reasoning beyond the facts, chapter five reads more like an editorial
inveighing against pseudoscience.
Ethical issues are discussed in chapter six. The early material
involves a great deal of text from two case decisions, but eventually
there is a review of codes of conduct, and even examination of some of
the moral aspects of court battles. Chapter seven deals specifically
with the matter of bias. The gatekeeper function of American judges,
who must decide not only whether a witness is truly expert, but on
what the expert may testify about or to, is covered in chapter eight.
This material also reviews important points about the qualifications
for experts and the characteristics of good evidence. Credible and
convincing evidence and presentation is described in chapter nine, and
this is extended to visual exhibits in chapter ten, demeanour in
eleven, and non-verbal communications in twelve. Chapter thirteen
contains examples of, and advice from, some experts who have extensive
experience in court testimony.
The book sometimes flows rather oddly, and it would be easy to take
issue with a number of the topics or the emphasis given to certain
ones over others. Even so, this work *is* important, and information
security professionals; and certainly those in management or
consulting roles; should seriously consider it. The text is written
with the technical worker in mind, although legal professionals would
undoubtedly find the research, advice, and explanations to be helpful
in preparing for technical cases. Litigation involving technical
topics is increasing all the time, and new (and therefore unfamiliar)
technologies are now as constant a fact of legal life as forensic
concerns are in technical work.
copyright Robert M. Slade, 2003 BKGDFOTS.RVW 20030604
====================== (quote inserted randomly by Pegasus Mailer)
rslade@... slade@... rslade@...
In terms of paradigms, shift happens.