Federal Rules of Evidence and Daubert Examinations

1. Federal Rules of EvidenceandDaubert Examinations

2. Federal Rules of Evidence • ARTICLE I. GENERAL PROVISIONS • Rules as to the general admissibility of evidence in federal proceedings • ARTICLE II. JUDICIAL NOTICE • Rules as to evidence known to judges through prior knowledge or case evidence in readily available and reliable sources • ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS • Rules as it pertains to which party has the burden of proof in a civil trial • ARTICLE IV. RELEVANCY AND ITS LIMITS • Rules as to the relevance of different kinds of evidence

3. Federal Rules of Evidence • ARTICLE V. PRIVILEGES • Rules that pertain to things like Attorney-Client Privilege. This comes into importance in digital forensics, as your work products are privileged unless they are discoverable. • ARTICLE VI. WITNESSES • Rules pertaining to witnesses of fact, character witnesses, etc. Rules also as to who can or cannot be compelled to testify about what. • ARTICLE VII. OPINIONS AND EXPERT TESTIMONY • More about this…

4. Federal Rules of Evidence • ARTICLE VIII. HEARSAY • Rules pertaining to hearsay evidence. • ARTICLE IX. AUTHENTICATION AND IDENTIFICATION • Rules about who can and cannot authenticate evidence • ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS • Rules pertaining to recorded evidence. • ARTICLE XI: MISCELLANEOUS RULES

5. ARTICLE VII. OPINIONS AND EXPERT TESTIMONY • Rule 701. Opinion Testimony by Lay Witnesses • If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are • rationally based on the perception of the witness, and • helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and • not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

6. ARTICLE VII. OPINIONS AND EXPERT TESTIMONY • Rule 702. Testimony by Experts • If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if • the testimony is based upon sufficient facts or data, • the testimony is the product of reliable principles and methods, and • the witness has applied the principles and methods reliably to the facts of the case.

7. ARTICLE VII. OPINIONS AND EXPERT TESTIMONY • Rule 703. Bases of Opinion Testimony by Experts • The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their  prejudicial effect.

8. ARTICLE VII. OPINIONS AND EXPERT TESTIMONY • Rule 704. Opinion on Ultimate Issue • Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. • No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

9. ARTICLE VII. OPINIONS AND EXPERT TESTIMONY • Rule 705. Disclosure of Facts or Data Underlying Expert Opinion • The expert may testify in terms of opinion or inference and give reasons therefore without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

10. ARTICLE VII. OPINIONS AND EXPERT TESTIMONY • Rule 706. Court Appointed Experts • Appointment. • The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness.

11. ARTICLE VII. OPINIONS AND EXPERT TESTIMONY • Rule 706. Court Appointed Experts • Compensation. • Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. The compensation thus fixed is payable from funds which may be provided by law in criminal cases and civil actions and proceedings involving just compensation under the fifth amendment. In other civil actions and proceedings the compensation shall be paid by the parties in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs. • Disclosure of appointment. • In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness. • Parties' experts of own selection. • Nothing in this rule limits the parties in calling expert witnesses of their own selection.

12. Daubert Test • Any theory, tool, or methodology that is used in a forensic capacity under Rule 702 must satisfy the following: • The theory, tool, or technique can be or has been tested (i.e., falsifiability), • It has been subjected to peer review and/or publication, • Any potential error rate is known, and there are a set of standards under which it is used that are known and maintained. • Its use is generally accepted in the scientific community. • These factors provide a clear indication that the Court believed the pursuit of science to be an empirical endeavor wherein knowledge about the universe progresses by the development of scientific principles and theories capable of falsification. KESAN, J.P., A Critical Examination of the Post-Daubert Scientific Evidence Landscape, FDLI Journal, Vol. 52, Number 2, 1997.

13. What does that mean to you? • Any tool you build needs to be thoroughly tested, and the tests need to be: • Published • Repeatable • Results need to be published, peer-reviewed. • If there is a potential error rate, then you need to know it, and publish it as well.

14. Bottom Line for this semester • Develop a thorough test plan • Finish your tool in time to execute your test plan • Publish the procedure for testing, as well as the results • Ask another team to rerun the tests using your test plan.