The purpose of expert witness testimony is to provide findings of fact for the decision-making process of semijudicial or judicial bodies or to provide the various courts of law with factual information on which to base a resolution, ruling, or verdict (Dorram 1982). The controversies surrounding the use of expert witnesses and expert testimony may revolve around issues such as whether experts may be abusing their power to influence the outcomes of adjudication, be providing better evidence than lay persons, or be speaking on matters relevant to cases that are outside of their expertise, but the controversies are not limited to these issues. Before an individual may be allowed to offer opinion testimony as an expert, however, it must be established not only that the subject of the opinion is proper for expert testimony but also that the individual offering the opinion is “a person skilled at touching the matter of inquiry” (Gothard 1989).
III. Legal Developments
IV. Controversies in Expert Witness Testimony
Expert testimony today is very much like a corrida, the traditional bullfight. It has precisely prescribed rituals. The beginning, which is the bailiff’s opening statement to the public to rise upon the entrance of the judge, is like the music of the bullfight. The ending, like the dragging out of the bull by the mules, is the moment when the gavel is slammed down. In between, the expert witness is the bull in the arena. The various attorneys entitled to cross-examine will treat him or her exactly as a bull is treated— although in this case the pics, lances, and swords are metaphorical. Just as the traditional bullfight has established stages, so does the proper expert testimony. Stage 1 is the swearing in and identification of the witness, which is followed by stage 2, the statement and presentation of the witness’s professional qualifications. If they are not accepted, that is the end of the testimony. The bull is dead; bring in the next bull (Dorram 1982, 4).
The first documented forensic expert was Antistius, who was asked to examine Julius Caesar’s corpse to determine the cause of his death (Meyer 1999). In his opinion, Antistius declared that only one of the 24 sword wounds he suffered actually caused Caesar’s death and that it was the sword wound that perforated his thorax (Meyer 1999, 2). In the beginning, then, only medical experts were allowed to provide expert testimony, and then only related to their specific field of practice, such as chemistry, biology, or psychiatry. In fact, experts, specifically medical experts, have been used in English courts since the 14th century and in the common law courts of North America for more than 200 years (Meyer 1999). Since the mid-1980s, social workers have been recognized by courts as having sufficient expertise in several fields of practice and, subsequently, have been qualified as experts in courts of law (Gothard 1989).
The Federal Rules of Evidence (FRE), the Frye test, and the Daubert guidelines form the basis for determining the admissibility of expert medical or scientific testimony (McHenry et al. 2005). Although the FRE are meant to be applied to federal court proceedings, many state courts have adopted them as a guide for dealing with expert witness testimony. Various sections of the FRE outline the “knowledge, skill, experience, training or education” levels required of experts and allow for judicial discretion in determining who constitutes an expert witness and whether the testimony is relevant to jury deliberations (McHenry et al. 2005). Besides, expert testimony must be based on information that is generally accepted in the scientific community, according to Frye v. United States (1923), in which the court decided that a technique used for performing a lie detector test must be “generally accepted within the scientific community before expert opinion about data gained from use of the technique is admissible into evidence” (see Frye v. United States 1923). The Frye test, then, is used as the legal basis for judges to exclude expert testimony based on information, principles, or opinion not falling within those parameters.
In 1993, the U.S. Supreme Court provided guidelines for expert witnesses in the federal court case of Daubert v. Merrell Dow Pharmaceuticals, Inc. when it ruled that expert testimony should be based on information that has been subjected to the scientific method rather than on unsupported speculation (see Daubert v. Merrell Dow Pharmaceuticals Inc. 1993). The court also directed trial judges to determine whether expert testimony is relevant and based on valid scientific evidence (Daubert v. Merrell Dow Pharmaceuticals Inc. 1993). Further, the Court gave its support to the FRE guidelines, which permit judges to appoint their own independent expert witnesses. In so doing, the Court proclaimed that an expert witness must be able to determine the relevant facts of a case, define the standard of care for management of a specific problem, determine whether a physician’s action conformed or deviated from the standard of care, and assess the relationship between the alleged substandard care and the patient’s outcome (McHenry et al. 2005, 275). The problem with this standard of application, according to Christopher McHenry, is that “very little constraint is applied to the testimony of an expert, often giving him or her inordinate latitude to comment on things that are outside his or her area of expertise” (McHenry et al. 2005, 276). Once the expert has been qualified as such, then the person on the stand, under oath, is allowed to expound upon various topics and issues relevant to the trial, oftentimes without having any brakes applied to his or her utterances, in part because the expert testimony becomes a performance that is not unlike a regular stage performance. What the expert must convey in the course of the performance is that he or she is indeed an expert and that his or her opinion should be taken seriously (Dorram 1982, 51).
Controversies in Expert Witness Testimony
Problems with expert witnesses and expert witness testimony have included the fact that some experts have been allowed not only to testify about medical facts but also to offer opinions about material issues of the criminal trial. Their opinions may influence decisions involving criminal sentencing or involuntary commitment, for example (Faust and Ziskin 1988). The issue here becomes whether some experts have abused the power to be able to influence the outcome of trials and have turned the criminal trial into a kind of “legalized gamble” (Meyer 1999, 3), particularly because, when judgments have rested on common sense or stereotypes rather than empirical knowledge, professionals have not been shown to outperform lay persons in terms of accuracy; that is, studies show that professional clinicians do not in fact make more accurate clinical judgments than laypersons (Faust and Ziskin 1988, 34).
Another issue that complicates the use of expert testimony is the interrelated specialties that have arisen in the medical field such that experts can defer endlessly to colleagues who possess more specialized knowledge of the issue at bar.
Whereas 50 years ago medicine was still primarily an art rather than a science, medicine is now interlinked with a plethora of technical and scientific occupations. The proliferation of information and specialties has become such that large health care providers now employ specialists in primary care and farm out patients for further specialized treatment. In fact, some specialties have become so compartmentalized that surgeons, chemotherapists, and radiation specialists no longer feel comfortable weighing the advantages of competing treatment modalities for certain types of diseases, such as cancer of the uterus or prostate gland (Meyer 1999, 3).
Additionally, there is some concern over the rather subjective nature of expert testimony, not only because testimony by a so-called expert is often allowed by judges even though other physicians or scientists do not regard the individual’s credentials as those of an expert in a particular field (McHenry et al. 2005, 276) but also because the perception exists that an expert can be found to support any point of view as long as the financial compensation is right (McHenry et al. 2005, 276). Moreover, there is no peer review of expert witness testimony to ensure its merit or validity (McHenry et al. 2005, 276). These and other problems not mentioned here contribute to increasing skepticism about the veracity and reliability of expert witness testimony.
Moreover, judges and juries are not bound by expert witness testimony; the jury members (and the trial judge) are free to accept or reject the expert’s testimony in whole or in part (Gutheil 1998). Attorneys, therefore, must base the decision of whether to offer expert testimony on the likelihood of that expert being able to connect with the jury—that is, to leave an impression that is favorable to winning the verdict. Jury instructions do not require members to heed the advice of experts; in fact, some jury instructions encourage jurors to exercise their own judgment as to whether to believe or include the opinions of experts in their deliberations.
There is also some evidence to suggest that jurors use intuition, credentials, and mannerisms to determine the veracity of expert witness testimony. Put another way, there is nothing to prevent jurors from using their gut feelings about an expert, the prestige of the institutions from which the expert graduated, or the appearance of the expert on the stand to determine the veracity of the expert’s testimony even though these supposed markers of accuracy are potentially prejudicial (Faust and Ziskin 1988). In fact, some evidence suggests that jurors tend to ignore the expert testimony presented on the stand during the trial and, instead, choose to use their own life experiences or common sense to determine guilt or innocence. In such cases, the expert’s efforts to persuade may well succeed if it aligns more closely with common belief (Faust and Ziskin 1988).
When asked about the defense’s case, one juror said: “I think they tried to prove that he was mentally incapable of understanding what he was doing and brain damaged . . . which didn’t have any effect on me because I know that you can get psychiatrists to argue anything because it’s not an exact science.” And another juror concluded that “the defense had to show much and they did a good job. We just didn’t buy it” (Cotton 2002, 234).
Several efforts to reform the expert witness process have been undertaken in recent decades (between 1987 and 1998) by respected medical organizations; specifically, the American Academy of Pediatrics, the American Academy of Neurologic Surgeons, the American Academy of Orthopedic Surgeons, and the American Medical Association have published guidelines and/or passed resolutions that subject expert witnessing to peer review and disciplinary sanctions (McHenry et al. 2005, 276). In 2004, the American College of Surgeons issued a statement that includes recommended qualifications and guidelines for behavior of the physician who acts as an expert witness (American College of Surgeons 2004, 22–23). In support of the effort to maintain the integrity of expert witnessing, the Collaborative Defense Network for Expert Witness Research, founded in 1984, collects information on and researches the background of expert witnesses (http:// www.idex.com). The company offers a wide range of expert witness services, such as testimonial history searches, trial depositions and transcripts, state license discipline searches, and articles by the expert, among others.
In the final analysis, there is much to be said about the need for expert witness testimony in this age of complicated medicine and science. If the jury cannot tell sanity from insanity based on their own experience, for example, then persons must guide them with special expertise in the recognition of this hidden condition (Freemon 2001). Only trained experts can separate the individual who is insane in a partial way, or only with regard to certain subjects, from the normal person (Freemon 2001, 361). Nevertheless, it is expected that the same types of controversial issues surrounding the use of expert witness testimony will persist into the future.
Allison M. Cotton
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- Frye v. United States, 293 F. 1013. (D.C. Cir. 1923).
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