Wednesday, February 2, 2011

Changes to the Federal Rules of Evidence – Rule 26

This handy bit of info comes from Fred Cohen & Associates: "As of December 1, 2010, the rules have changed. The Federal Rules of Evidence (FRE) provide the basis for expert testimony and the requirements for expert reports and qualifications for all Federal cases, and is reflected in many State and local jurisdictions, typically with some delay. After an extensive processes, supported by the legislative and judicial branches of government, including the Supreme Court, the rules have changed. While these changes may seem relatively simple, for the digital forensic evidence examiner and other expert witnesses, there is quite a substantial difference that will reduce costs, ease burdens, and allow examiners and lawyers to focus more clearly on the things they should be doing with regard to legal matters.

Rule 26(a)(2)(B) includes, in pertinent parts:
an expert witness must provide an expert report and “...The report must contain: (I) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; ...”

This rule properly puts the burden for providing the basis for opinions from the side challenging the witness to the side putting forth the witness, in that under the old rules, it was up to the other side to ask for the basis and the facts, and given the time frames for different phases of discovery, this was often problematic.

Perhaps more importantly, this puts the scientific burden for experts where it belongs - on the experts. The courts have long insisted that expert testimony be the result of reliable methods reliably applied, but most expert reports I have reviewed in digital forensics to date failed to provide the vast majority of the key information required in order to evaluate the opinions stated. For example, and without limit, I have seen digital forensics reports stating things like “[strings were] randomly generated” and “[there is] no such person”, but the authors provided no basis at all for these rather startling conclusions ..."

Check out the entire report by clicking here.


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