Use of Expert Witness in Court Procedings and Trial - Research Paper Example

 Court Administration: The Pros and Cons of the use of Expert Witness in Court Proceedings and Trials Heavy reliance on experts in the legal system is a source of concern in the legal community. There are advantages and disadvantages of admitting such testimony, which has been the subject for much controversy and debate. The controversies have centered on a variety of topics. The lack of scientific theories and methods used in expert testimony is the most common criticism. Expert evidence is also being questioned on the basis of whether it is impartial, and whether qualified experts are being selected through judicial procedures. Furthermore, the costs associated with the use of expert testimony also cause concerns. Moreover, battles of the experts may exacerbate problems of juror comprehension. However, expert testimony can be useful as long as limitations are acknowledged. Expert Witnesses have been found to make valid and reliable judgments for many tasks and frequently make more valid judgments than the lay person. Also, it has been shown that expert witnesses possess specialized knowledge that is useful to judges and juries that others do not possess. Court Administration: The Pros and Cons of the use of Expert Witness in Court Proceedings and Trials Introduction Experts have become a fixture of the American legal system. Expert testimony is a de jure requirement for some types of lawsuits, and a de facto requirement for others. It is widely thought that the use of experts in American courts has increased dramatically in recent decades. The difference between an expert witness and other witnesses of the court is that expert witnesses are permitted and even encouraged to offer opinions and inferences. (Golding, 1992). There are advantages and disadvantages of admitting such testimony, which has been the subject for much controversy and debate (Golding, 1992). Definition of the Expert Witness Saferstein (2001) related that an expert witness is, "an individual whom the court determines possesses knowledge relevant to the trial that is not expected of the average layperson" (p.14). Saferstein stated that the knowledge of the expert witness is obtained through training, education, experience or any combination of the three. A problem exists because a judge is making the decision on expert witness qualifications in highly technical fields. Expert witnesses may often testify to issues in forensic psychology, firearms identification, or forensic chemistry to name a few of the disciplines. Any number of other social and natural sciences may be deemed forensic in their application to the law. How is the judiciary to know, if what the expert witness is professing is based on a sound foundation of legitimate social, psychological, and natural sciences? The attorneys in each side of the American Court adversarial system may both profess to have expert witnesses. Those proffered witnesses may interpret the exact same evidence differently. Pros Expert witnesses are different from other witnesses in several key respects. Witnesses who are called to give testimony about particular events generally are not permitted to state opinions about the meaning of the facts. Only witnesses that have been qualified as experts by the court have that privilege. Unlike other witnesses, experts do not necessarily testify about events they have witnessed personally, nor is it necessary that they offer evidence specific to the matter at hand. They may offer generalizations from their own experience or from data or studies that are not necessarily derived from the particular dispute being litigated (Vollen & Eggers, 2005). For example, a toxicologist may testify about the effect of a certain substance on humans based on previous scientific studies concerning that substance, and the toxicologist need not have examined the injured party. The expert witness is a teacher who, by virtue of education and experience, educates the court regarding information to which the triers of fact would otherwise not have access. This information serves to help resolve disputes and assists decision makers in deciding ultimate issues. Because experts possess specialized knowledge of which others do not readily have access, they can provide important assistance to attorneys, judges, and individuals who make up the jury. ''The usual role of the expert is to perform a study or evaluation and render an opinion as to the meaning of the results in respect to issues in the legal case under consideration" (Blau, 1998, p. 29). These experts often testify regarding topics that include polygraphs, hypnosis, cause of death, medical malpractice, medical products, ballistics, microanalysis, DNA testing, dental identification, fingerprinting, footprints, eyewitness testimony, rape trauma syndrome, propensity for sexual deviation and violence, truth and deception, child abuse and neglect, and mitigating factors. Traditional roles of the expert witness have included providing testimony regarding competence to stand trial, insanity, competence to handle one's affairs, involuntary commitment, and dangerousness and treatment potential (Blau, 1998). By the mid 1900s, the role of the expert expanded to include testifying on such issues as personal injury and wrongful death, labor relations, work compensation and equal opportunity issues, patent and trademark infringement, and child custody issues. The more recent and emerging roles of the expert witness include providing expert testimony or opinion in such areas as eyewitness testimony, penalty phase testimony, composition challenges, prison conditions defense, evaluation testimony, repressed memories, addiction, and malingering (Blau, 1998). Other emerging applications and issues include psychological autopsies, grand jury testimony, psychotherapist as expert witness, legislative testimony, jury selection, dangerousness and violence, competency for execution, political asylum, violent sexual predators, and repressed memory syndrome. Expert Witnesses also provide trial consultation. Such consultants are retained by attorneys to provide useful services and information, but do not testify (Vollen & Eggers, 2005). They may help find, select, and prepare testifying experts, help prepare exhibits, help attorneys understand technical aspects of a case, and help select juries. These forensic experts likely provide the most assistance in bridging the gap between science and law by providing attorneys with important information regarding scientific concepts and values. Cons Heavy reliance on experts in the legal system is a source of concern in the legal community (Gross, 1991). The unique position experts occupy gives their testimony great power to aid the judge or jury in arriving at fair and equitable judgments. Their testimony, however, can obfuscate as well as illuminate. Some believe that it is the nature of the adversarial system to misuse the testimony of experts, arguing that such a process is not conducive to the introduction of objective opinion. The parties are not interested in seeking the ultimate truth in any dispute; they each want to introduce evidence that tends to help their particular cases. Perhaps the most common criticism lodged against the use of expert witnesses is that experts do not offer objective testimony. Experts are seen as hired guns brought into court to do a job, the job of an advocate rather than an independent scientist. Not all critics of the use of expert witnesses, however, believe that it is necessary for an expert to lie or even to intentionally misrepresent his or her own professional beliefs to lack objectivity or misguide a jury. Experts may be chosen by attorneys based on the experts' predispositions. An attorney wants experts who can testify truthfully in support of the attorney's theory of the case (Gross, 1991). There is an essential paradox in the relationship between expert witnesses and the lawyers that use them. Lawyers are more than willing to use expert witnesses to help prove their cases, yet many consider experts to be "whores," willing to sell their testimony to the highest bidder (Gross, 1991). The more an expert participates in court, the more he is maligned by lawyers. Yet, experts who through experience develop skills that make them effective witnesses become more appealing to lawyers (Gross, 1991). Not only are expert witnesses maligned by the lawyers who use them, they are also looked down upon by other members of their field for subjecting themselves as representatives of the field to the degrading spectacle of a trial. For this reason, many experts are reluctant to participate in litigation as expert witnesses. They believe that open court is not the place to air their differences and fear that doing so hurts the discipline (Jasanoff, 1995). As a result, Gross writes, "these experts refuse to be witnesses, leaving the field to those with fewer scruples or fewer options. Thus, to some extent, the common legal contempt for expert witnesses is a self-fulfilling prophecy" (Gross, 1991: 1135-36). A related criticism is that those who are willing to serve as expert witnesses become professional witnesses, deriving much of their income from testifying in court. Indeed a national expert witness market has developed. Referral services that put attorneys in contact with experts that will provide the necessary testimony abound. Many referral services maintain sites on the world wide web. Jasanoff (1995) describes how changes in the law, especially the abandonment by many states of the locality rule, has led to a national pool of experts willing to testify in medical malpractice cases. This development has made it much easier for plaintiffs to find experts willing to advocate their theory of the case. When a party's case is developed through the use of hired guns and professional experts, it is feared that what is lost with the introduction of expert testimony is exactly what the experts are supposed to be there to help find: the truth. Critics allege that "junk science," testimony that is essentially false but has the air and vocabulary of science, replaces what should be a useful tool to aid the jury (Foster and Huber, 1997). Not only are there perceived problems with the quality and veracity of expert testimony, there are also concerns about the abilities of those who are expected to evaluate it. Many question the ability of lay persons such as judges or jurors to comprehend and make appropriate use of the evidence offered by experts. As Judge Weinstein explained, "expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it" (Weinstein, 1991: p. 631-632). More particularly, it has been argued that the use of junk science "depends on the difficulty many laypeople have in evaluating technical arguments" (Foster and Huber, 1997: p. 17). The expert's knowledge is presumed to be outside of the experience of the average juror. Indeed, experts are not permitted to testify regarding things about which jurors can draw their own conclusions. But just how far outside of the jurors' experience is the testimony of experts? Is it so far outside of their experience that they lack the ability to understand it? The costs associated with the use of expert testimony also cause concerns. Few experts offer their services free of charge. Litigants must pay, often handsomely, for the services of expert witnesses. Because using experts adds to the cost of litigation, it may be a way in which the wealthier party raises the price of admission to court. More generally, it gives litigants with greater resources an advantage over those with fewer resources. Similarly, threatening to use experts, and thus raising the cost of litigation for everyone involved, may increase the pressure to settle before trial. In addition to the financial burden on the parties, there is little doubt that the use of experts increases the burden on an already strained judicial system. Experts are thought to require more of the court's time both before and during trial. The use of experts is also thought to be associated with lengthy trials, burdening the courts, jurors, and the parties with delay and expense (Sanders 1996). While this may be true of complex trials that involve many experts offering lengthy testimony, it is not known how much the common use of experts increases the length of trials and whether experts increase trial length more than other witnesses. It is conventional wisdom that whenever one side gets an expert, the other side will surely get one to (Sanders 1996). A "battle of the experts" magnifies all of the potential problems discussed above. An escalating race in the designation of expert witnesses amplifies problems associated with an inequality of resources. Even if both parties can afford to enter the litigation game, the party with fewer resources may not be able to afford this escalation and may be forced into an unfavorable settlement despite having a meritorious case. To the extent that additional expert testimony takes additional court time, battles of the experts place additional burdens on the court as well. Battles of the experts also may exacerbate problems of juror comprehension. If a jury has a difficult time understanding and giving appropriate weight to the testimony of a single expert, imagine the difficulty it faces when asked to resolve the conflicting testimony of experts testifying for opposite sides. How can lay jurors be expected to decide complicated technical issues when confronted with experts testifying to contradictory conclusions? Furthermore, jurors may be misled by the proportion of experts on each side. Sanders (1996), has argued that jurors' perceptions regarding the state of scientific consensus on an issue is influenced by the proportion of experts testifying for each side. For example, even if nine out of ten experts in a field believe A, a jury that hears testimony from the one who believes B and one of the nine who believes A, may conclude that the scientific community is evenly divided on the issue. Conclusion There are advantages and disadvantages of admitting such testimony, which has been the subject for much controversy and debate. It has been shown that expert witnesses possess specialized knowledge that is useful to judges and juries that others do not possess. Unfortunately, expert witnesses often do not exhibit the appropriate ethical standards required to make them objective. If the prosecution or defense is paying the expert witness, the tendency may be for the witness to testify in a skewed manner, in support of the agency paying his or her way. This is the most despicable form of expert testimony. Furthermore, the costs associated with the use of expert testimony cause concerns. Moreover, battles of the experts may exacerbate problems of juror comprehension. The judiciary has a dilemma on the decision of which witness is the more credible of the two, and to determine if there are any grounds for dismissing one or both of the witnesses based on their lack of appropriate credentials and, or unsound forensic methodology. James and Nordby (2003) insisted that ethical standards for all expert witnesses be applied in every case presentation. It is also critical that the science dictates the results, not the result dictates the science. References Blau, T. H. (1998). The psychologist as expert witness. New York: J. Wiley & Sons. Foster, K. R. and Huber, Peter W. (1997). Judging Science: Scientific Knowledge and the Federal Courts. Cambridge, MA: MIT Press. Golding, S. L. (1992). Increasing the reliability, validity, and relevance of psychological expert evidence. Law and Human Behavior, 16(3),253-256. Gross, Samuel R. (1991). Expert Evidence, Wisconsin Law Review: 1113­-1232. James, S. H., & Nordby, J. J. (2003). Forensic science, an introduction to scientific and investigation techniques. Boca Raton, FL: CRC Press. Jasanoff, Sheila. (1995). Science at the Bar: Law, Science, and Technology in America. Cambridge, MA: Harvard University Press. Saferstein, R. (2001). Criminalistics: an introduction to forensic science (7th ed.). Upper Saddle River, NJ: Prentice Hall. Sanders, J. (1993). From Science to Evidence: The Testimony on Causation in the Bendectin Cases, Stanford Law Review 46: 1-86. Vollen, L. & Eggers, D. (2005). Surviving Justice: America's Wrongfully Convicted and Exonerated. San Francisco: McSweeney's. Weinstein, J. B. (1991). Rule 702 of the Federal Rules of Evidence is Sound; It Should Not Be Amended, Federal Rules Decisions 138: 631-45. Read More