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Expert Witness —Cornerstone of Due Process? Part I: The Court’s Search for Due Process

Author: Gerard Dondero
Date: 22.06.2020 Time to read: 10 min

“The jury is . . . above all a political institution, and it is from that point of view that it must always be judged.” – Alexis De Tocqueville

Just what is the court doing when it has the jury decide a matter of fact? Seeking truth, creating a decision that withstands scrutiny, or letting litigants play a rigged game in favor of Haves House against the Have Not Gamblers? The answer of course is all of the foregoing! And for good reason.

We have alluded to the jury trial being concerned less with knowledge and more with political concerns. Indeed, the jury is a political institution --- and it has long been known as one. Its decisions are never a guarantee of correctness, but they are a guarantee of something else: a political promise.

The jury is the nexus of several competing values: constitutional fiat, political legitimacy, and truth-seeking epistemology. Normatively, in that order. In reality, present political legitimacy is first, followed by constitutional fiat. But because we tend to determine legitimacy with reference to a practice’s correlation with what we interpret the constitution to require, the two are closely related.

Examining due process, generally, and how it intersects with the jury trial will illuminate just how vital rationality --- what expert witnesses aid the jury with --- is to the entirety of the jury trial system.

Natural law is the true law and superior to all other forms of law --- which are unjust. Hence the natural law refrain “an unjust law, is not a law.

Due Process or Else

Due process comes from the Magna Carta’s “law of the land” provision. Two titans of the law --- Lord Coke and Lord Blackstone (of law dictionary fame) --- clashed over whether “due process” gave common law supremacy over Parliament in establishing fair procedure.  

Natural law is the flashpoint of that dispute. Natural law is the doctrine that law is independent of the positive (man-made) law of any political culture or time. And through reason, one (or many) could know these binding, correct rules of conduct. So, consequently, natural law is the true law and superior to all other forms of law --- which are unjust. Hence the natural law refrain “an unjust law, is not a law.”

Coke argued that the “law of the land” included natural law and so therefore could override parliamentary action.

Blackstone, ever the cool customer, simply never explicitly defined “law of the land,” to include the natural law, and his later comments on the matter suggested that he favored parliamentary sovereignty.

The framers of the United States constitution favored Coke in their view of the “law of the land.”

Further, Easterbrook concedes that Coke's works were widely read in the colonies. Indeed, in discussing the adoption of a New York statute that uses language similar to the Fifth Amendment, Easterbrook notes that "[t]o the extent [the New York legislators] discussed English commentators, they mentioned Coke but not Blackstone."

Indeed, theories of natural law pervade the bill of rights: it is a negative rights document, citizens have the rights as a matter of natural justice and the constitution interdicts government action to interfere with those natural rights. Thomas Paine captured the sentiment of the American outlook:

It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect – that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few. … They...consequently are instruments of injustice. The fact therefore must be that the individuals themselves, each in his own personal and sovereign right, entered into a compact with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist

The doctrine of natural law saw some change between the Magna Carta and the Enlightenment. Whereas the view contemporaneous with the Magna Carta had God as the author of Natural Law and human reason as the means to access this law, the Enlightenment minimized God’s role and emphasized human reason alone.

Justice is due process under American Law

Rather than incorporate Coke’s view, the Constitution and subsequent history emulates Coke and makes the ethereal, concrete with one clause:

[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land.”

So unlike in England, where Blackstone won the day and due process is a matter of whatever custom or the legislature dictate the process to be, in the United States, procedural due process is an entirely different species of right. The Supreme Court, in Murray’s Lessee v. Hobokan Land & Improvement Co. had this to say:

It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process 'due process of law,' by its mere will.

Of course, the inevitable reality of the United States is that judicial review vests more political power in the courts. Consequently, the contours of “due process” were left for the Court to define and outline under constitutional fiat. The empowering statute --- the fifth amendment to the United States Constitution:

No person shall…be deprived of life, liberty, or property, without due process of law

Everyone in the legal community is waiting for the twin tablets definitively telling us all what process is due to come down the mountain with their Moses. To avoid having to hold our collective breath, some scholars along with the Supreme Court have weighed in on the topic. Perhaps the best, concise guide to due process comes from Justice Friendly in Some Kind of Hearing.

He outlines 8 essential features of due process:

  • The Impartial Tribunal (and by extension Rational Fact-Finder)
  • Notice of the Proposed Action and the Grounds Asserted For It
  • An Opportunity to Present Reasons Why the Proposed Action Should Not Be Taken
  • The Right to Call Witnesses
  • The Right to Know the Evidence Against One
  • The Right to Have the Decision Based Only on the Presented Evidence
  • The Right to a Record
  • The Right to Have the Record State the Reasons for the Decision

The history of United States law is tied up in (1) a natural law conception of the “law of the land,” as advanced by Lord Coke, (2) a Constitution that reflects Coke but also expands on Coke by having an actual constitution over and above the legislature, and (3) a court with far more political power than its predecessor via judicial review.

With much power given to the court, the people have come to expect a lot. The 8 elements entail what the people expect of a court’s civil and criminal proceedings (with additional elements, such as the right to counsel, for criminal proceedings).

However, one element missing from Friendly’s analysis is the jury. And that absence has to do with the various other contexts “due process” has attached to in which a jury trial is unnecessary. But as far as courtroom proceedings go, the jury trial is still a key element of due process.

Justice is blind, but the jury represents the popular will --- so the community takes a peek

Jury Trials For Due Process

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law

The seventh amendment makes the jury trial a cornerstone of due process. Joseph Story explained in United States v. Wonson, that common law meant “English common law.” And further precedent established a historical test: the right to trial by jury depends on those matters where the common law required a jury trial circa 1791.

This inquiry focuses upon the nature or character of the cause of action and first compares "'the statutory action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity [and] [s]econd ... examine[s] the remedy sought [to] determine whether it is legal or equitable in nature.' "

What a jury trial must be to preserve due process starts with an inquiry of “what is a jury.” The concept of “jury by one’s peers” appears nowhere in the constitution. But the concept appears in the Magna Carta’s law of the land provision:

 No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land.

And peer comes from the latin par, meaning equal. However, with the Magna Carta it signified vassals or tenants of the Lord, who were equals in rank and were obliged to attend to him in his courts. If there were too many in one Lordship, the Lord selected twelve of his tenants who were then known as “peers.” So, a jury of one’s peers --- or equals from the same community.

At present, the United States is the only country to still utilize juries in most of its civil and criminal cases.

The belief in Lord Coke’s vision perhaps can explain why. The Law of the Land includes both positive law and the natural law. Both judge and jury embody those functions --- with some commentators casting the jury as the positive, popular side of the law and the judge as the upholder of natural law (or the Constitution).

And if the jury represents the people in every courtroom proceeding, then naturally, it is a political institution --- within a political institution.

Seeking the Truth that is Due

On the one hand the jury is there to apply its “common sense and experience” to the case at hand --- essentially applying community social norms and expectations. On the other hand, the court must ensure that the trier of fact is rational:

The theory of the law is that when such material or evidence is put before the trier of fact, the findings of fact will depend upon the conviction made upon the minds of a rational group of men. In other words, the finding of the operative elements of any litigated transaction depends upon the reasoning process of persons with the ordinary degree of knowledge and experience, who make necessary inferences

As a political institution, the jury --- and it is often touted as doing just this --- must promote legitimacy. Specifically, it must reflect constitutional republican (often shortened to ‘democratic’) norms. These norms, within the realm of legal proceedings, boil down to due process.

Legitimacy breaks down twice into sociological legitimacy and normative legitimacy. Sociological legitimacy is whether, empirically, citizens perceive the civil justice system as more legitimate and fair than a system without the civil jury. The desideratum of real actual support for the jury trial is obvious: the less actual support, the more chance of chaos and disorder.

Normative legitimacy, which --- in this instance --- regards citizens viewing outcomes as fair depending on the process that led to the outcome (“due process”).

Artist's depiction of representative and deliberative democratic values combining

The uniqueness of the jury trial lies in that its legitimacy is ascending, rather than descending. Descending legitimacy would be something like the “divine right of kings,” where legitimacy flowed from a higher power. Ascending legitimacy is where the people give rise to the legitimacy for the government --- or in this instance, the jury and jury trial.

There is also a truth-seeking justification for the jury trial that is secondary. The idea is that submitting a decision to a body of individuals will cancel out the biases of any individual member, thereby ensuring an accurate, true decision. Deliberative democracy is the namesake for this concept vis a vis political thinking.

So two main values underlie the jury trial that embody constitutional republican values: representative democracy and deliberative democracy. The former for its process and the latter for its epistemic value. Whether the jury actually adheres to those values is the subject of academic study and dispute.

The main issue with juries is that, by themselves, they fail to offer many due process benefits. Their deliberations are secret, meaning the absence of a record and accordingly, reasons for their decision. Further, their decision is sacrosanct regarding the facts.

We have stated that the conditions surrounding the jury trial warrant epistemic paternalism without putting a point to it: the courtroom procedure must ensure that the jury uphold its obligation of giving due process to the parties.

The Rules of Evidence and Admissibility Epistemic Paternalism Redux

We now understand that the jury’s thought process is important for due process --- irrationality thwarts due process. Because the jury can deliberate undocumented and render a decision all but immune to reproach, the judiciary must take all measures to ensure rationality. The primary means for doing so are the rules of evidence.

The admissibility rules tend to reflect epistemic paternalism --- the theory that there are certain situations where it is appropriate or morally permissible to interfere with (1) an agent’s ability to gather and inquire about information, (2) without consulting the agent, and (3) to make them epistemically better off.

While many scholars assume that the primary epistemic value is truth, this is at the least unnecessary. The primary epistemic value appears to be rationality.

But the rules also reflect the “ought implies can” principle. This principle requires that any normative advice in epistemological matters be designed for real world, rather than ideal, “knowers.” To wit, the only advice worth giving is advice that people can actually follow.

Consequently, the rules heavily rely on admitting testimony and information derived from testimony. The entirety of human life is social and heavily dependent on gathering information via testimony. And we have briefly touched on the fact that actually understanding, for example, an expert witness’s testimony, is marginally relevant to a rational decision. Thus, the rules are there for laymen and function well in most every situation for a layman.

Rationality is the holy commandment of due process

The Court Knows Nothing But That It Gave The Process Due

So, in the end, the court is primarily concerned with fulfilling its promise outlined in the United States constitution: due process. This is different from seeking truth; and indeed, epistemology and the law are more distant than one would believe, because the court concerns itself most with what is just and fair.

Because what is just and fair and due is a rational decision, however, juror thought-processes are vital to the court as an institution. The expert witness, far from a normal piece of evidence, in many instances is the lone life preserver of rationality --- by extension the lone preserver of due process. And we will see this in part II.

For now, take our word on it and get an expert witness by filling out our application!

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