Whence The Expert Witness, Episode I: The Partisan Menace
Date: 11.06.2020 Time to read: 9 min
If they don’t stand for something, they will fall for anything 'a lawyer says'" - Altered Modern Proverb
How the expert witness came to be is an interesting yarn. Less one about the pomp of special exceptions to the expert witness’s testimony and more about being the last type of witness in the tradition of witnesses.
The expert witness in modern form took shape during the 18th century. And the Adversarial Revolution ensured that expert testimony would take a dominant role in litigation --- for better or worse --- going forward.
Another engine driving the expert witness as a unique category was the rise of science during the Enlightenment. Courts recognized the uniqueness of this knowledge quickly. Yet, who appears in the courtroom is anything but a scientist --- unless you believe scientists can be partisan. Instead, there’s an amalgation (or abomination depending on your personal taste) of legal advocate and scientist, a “lientist.”
Yet another push forward came from the Industrial Revolution and the backdrop it provided for the further development of scientific knowledge.
And finally, with the Industrial Revolution, science put on a suit and became professional --- then wickedly partisan.
These developments culminated in the court assuming a duty of gatekeeper, keeping unreliable pseudoscience out of the courtroom.
Prequel to Partisan
The need for specialized knowledge in court had been around long before the 18th century:
[I]f matters arise in our law which concern other sciences or faculties, we commonly apply for the aid of that science or faculty which it concerns. Which is an honourable and commendable thing in our law. For thereby it appears that we do not despise all other sciences but our own, but we approve of them and encourage them as things worthy of commendation.
At first, the court called upon this knowledge by summoning a jury of experts. Indeed, before the 16th century juries were expected to decide issues from their own knowledge. This meant that testimony by witnesses was frowned upon until the advent of fact-proofing by witnesses, rather than the tribunal’s collective knowledge. Exclusionary rules rose from this change --- developing like the tortoise races --- slowly. But, by the 17th century jurors were jurors and witnesses were witnesses.
And in turn courts brought forward experts to furnish information to the court.
Of course, this proved unwieldy because the courts were without any procedure for “qualifying” an expert witness versus a lay witness. So, while the correct experts testified in the cases that suited their expertise, their testimony had the same credibility as a lay witness's. This equivalency arose from the fact that lay witnesses, at the time, could also offer their opinions --- especially if the knowledge was direct knowledge. So, expert witnesses at this time were merely witnesses.
Then everything changed in the 18th century. Until the 18th century, the judge owned the courtroom. He examined the witnesses, and the parties argued against one another sans lawyers. Further, because judicial discretion was at its height during this time, the usual testimonial safeguards we know and love were essentially without teeth. The expert witness frequently gave his information to the judge, and the judge acted as a conduit of that information to the jury. When parties started controlling proceedings in court, rather than the judge, the expert witness took on a new role.
With lawyers directing the proceedings, objections to the admissibility of evidence became more and more commonplace. These interruptions forced the judge to direct his attention toward the evidence itself. From these contentious times came the modern hearsay rule and the modern opinion rule.
The court silenced lay witness opinion regarding inferences on factual matters. Of course, the rationale behind the rule, according to Wigmore, was merely to eliminate superfluous testimony. Unless the witness has some special knowledge or skill that a juror lacks, the lay witness’s testimony fails to assist the juror with the evidence. Lord Mansfield (towering justice of the common law) in Carter v. Boehm echoed (or presaged) this rationale:
Great stress was laid upon the opinion of the broker. But we think the jury ought not to pay the least regard to it. It is mere opinion, which is not evidence. It is opinion after an event. It is opinion without the least foundation from any previous precedent or usage. It is opinion which, if rightly formed, could only be drawn from the same premises from which the court and jury were to determine the cause; and therefore it is improper and irrelevant in the mouth of a witness
Furthermore, during the 18th century, another change occurred in expert witness testimony. The court called expert witnesses previously; now, with parties taking control of the presentation of evidence, each party brought forward its own expert witnesses. The implicit neutrality of the expert witness before this change collapsed.
But kindling and fuel still needed a match to ignite it all. And that spark came In 1782 with the leading case of Folkes v. Chadd which was decided by Lord Mansfield.
This case, an action of trespass before a jury, established the sphere in which expert testimony would be admissible. The issue involved was the cause of a harbor filling up. The plaintiff produced a well known engineer, Mr. Smeaton, whose opinion as to the cause of the injury was requested. This evidence was objected to on the ground that it was a matter of opinion, which could not be the foundation for the verdict of a jury because the verdict should be based entirely on facts. On appeal, Lord Mansfield held the evidence permissible…
The rationale flows from the opinion itself:
In matters of science no other witnesses can be called. An instance frequently occurs in actions for unskill-fully navigating ships. The question depends on the evidence of those who understand such matters; and when such questions come before me, I always send for some of the brethren of the Trinity House. I cannot believe that where the question is whether a defect arises from natural or an artificial cause, the opinions of men of science are not to be received. Handwriting is proved every day by opinion, and for false evidence on such questions a man by be indicted for perjury. Many nice questions may arise as to forgery and as to the impression of seal, whether the impression was made from the seal itself or from an impression in wax. In such cases I cannot say that the opinion of seal-makers is not taken. I have myself received the opinion of Mr. Smeaton respecting wills, as a matter of science. The cause of the decay of the harbour is also a matter of science, and still more so, whether the removal of the bank can be beneficial. Of this, men such as Mr. Smeaton alone can judge. Therefore we are of the opinion that his judgment, formed on facts was very proper evidence
These cases, and other contemporaneous ones, established that an expert witness could successfully opine on the facts at issue in the case. The impartial expert witness went extinct with this case.
More interesting is that judicial alarm about this fact was…absent. Nowhere does it appear in any meaningful sense during the time. Instead, the court was worried about lay witnesses offering their services to the highest bidder. Interest in the result of trial? Out. Spouse against spouse? Out. But the expert witness --- the hired gun? That’s fine.
What stands out, however, is how the expert witness came to be: by accident. The court happened to leave the expert witness and his opinions untouched by (mostly) either the hearsay doctrine or the opinion rule. So the expert witness’s role came to be by more king of the hill than deliberate plan: an anomaly under these new rules.
The Rise of Reason and Science and Partisanship
Before the 18th century “expert” meant someone who had tested and real experience regarding a matter. It was a blend of personal and empirical testimony. Legal epistemology hated the abstract and adored the concrete --- observations and clear proofs. However, science and scientism changed that forever. The 18th century was when science became practical.
Drawing on a shared lexicon, scientists applied the same principles to various phenomena. In the 18th century this percolated into concrete utility. A huge plus was their starting the Industrial Revolution, which steeped the entire society in their grandeur.
Now here were men of “science,” who harnessed objective laws of nature. Yet, somehow, someway, in court they used the same principles to reach different conclusions.
The courts needed to take control of these developments because “lientists” were multiplying --- and rapidly – as the Industrial Revolution produced more and more specialties that relied on science: chemists, microscopists, geologists, engineers, mechanists, etc.
Severn, King, and Co. v. Imperial Insurance Co. concerned a fire damage claim in 1820 by the owners of a sugar factory in London against four insurance companies. Both sides amassed an army of learned lientists --- including the one and only Michael Faraday. These armies battled and each reached different conclusions.
It took three separate legal battles to decide this case --- calls about the conflicting expert testimony derailed the entire case and caused the court to order a new trial each time. The court, at this time, still believed that further “lientific” investigation would clarify the issues for the court. And each time, in Severn, this proved incorrect.
While the plaintiffs won the day, the defense went down swinging. And it landed a haymaker. The defense claimed that because only “professional men” could be compensated for their time and efforts, the expert witnesses called by both sides should work free as far as the court was concerned.
Because medicine and law set the standard for what “professional men” meant, the lientists fared poorly. Lack of specialized uniform instruction, lack of social connections (when being nerdy was uncool), and the trial itself had just shown they were an incomprehensible mess. The court agreed with the defendants. It took chemistry over half a century to reverse this viewpoint.
Despite the court refusing to recognize scientific experts as professional men, there were plenty of lawyers willing to pay for their services. And because courts considered experimental evidence of the type scientists used the highest type of evidence, the fact that the same experimental procedures produced divergent results was unacceptable. To the court it reflected naked partisanship.
Nothing could stop the lientist uprising. Perhaps strength in numbers or demographics as destiny --- scientific professions were booming and by extension types of lientists. They were here in court to stay, conflicting testimony and all.
This dismay erupted into raw skepticism by the mid-19th century. In Gillespie v. Russell, citing Severn, a party objected on ground that the expert testimony in the case conflicted and requested a new trial. However, by this point, the court had given up hope and denied the request:
Are we sure that they will be ever agreed? Are we going to get better microscopes and better eyes? Shall this branch of science, not only new in its name, but in its scientific terms, become new in a much more remarkable feature—in the unanimity of its professors? I cannot expect that. I do not anticipate it.
Yet, courts, and commentators, never questioned the need for expert testimony. However, a row soon developed between the legal and scientific communities:
Almost all scientific commentators agreed that the disagreements among the scientific witnesses did not reflect uncertainties within the body of scientific knowledge itself. Most of them argued that the disagreements were largely created by the improper adversarial procedures by which the legal system processed scientific knowledge. Others were ready to concede that scientific opinions may legitimately differ. But even they did not believe that the judge, let alone the lay jury, could reliably assess these differences.
However, even those in the legal profession who empathized with the frustrated scientific community pointed out that the reforms proposed by the scientific community ran against the fundamental postulates of the adversarial legal system. Getting rid of the jury ran against the fundamental political right to a trial by a jury of one’s peers. And allowing the court to call in assessors or witnesses independent of the parties ran against two other equally fundamental postulates— the right of the parties to control the evidence in court and the neutrality of the court. The reform suggestions were therefore rejected by the legal profession, who cautioned that “the remedy should not be worse than the disease.”
By the latter half of the 19th century, courts viewed expert testimony as a necessary and credulity-straining evil.
It was time to strike back against the partisanship that had been running roughshod over the courts for over a century.
Part II: The Rule Wars will chronicle that battle.
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