Legal Qualifications of a Testifying Digital Forensics Expert Witness in State and Federal Courts in Criminal or Civil Cases

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Presented at TechnoSecurity&DigitalForensics 2019 by

Herbert Joe

Legal qualifications of any investigator, like a digital forensics examiner, to testify as an expert witness in state or Federal courts in civil or criminal cases have evolved since the landmark 1923 Frye case, as well as the more sweeping 1993 Daubert case, and continue to evolve, especially as technology advances. Although Rule 702 of the Federal Rules of Evidence have codified and standardized landmark Supreme Court cases (the “Daubert trilogy”) for admissibility of scientific expert testimony in the federal courtroom (and most states by statutes), there are still “Frye states” with their own standards for admissibility of scientific expert testimony in their state courtrooms. This session discusses the important legal history of the qualifications, a general overview of different jurisdictional requirements, and the general requirements to testify as an expert witness in any digital forensics or cybersecurity case, or a checklist in legally challenging an opposing digital investigations expert in a Frye or Daubert pre-trial Hearing. Representative and recent case law will be discussed. So, whether your specialty is digital investigations, cybersecurity, attendees will learn about the practical aspects of becoming a testifying expert or challenging an opposing testifying expert, and be exposed to and discuss some relevant case law.