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Whence the Expert Witness, Episode II: Attack of the Rules

Author: Gerard Dondero
Date: 23.06.2020 Time to read: 10 min

We left off in fairly dire straits. To be sure, the necessity of expert testimony and wide recognition of that fact were always beyond question. But, the court’s view of expert witnesses and expert witness credibility was at a nadir.

Here we shift focus from England to the United States. Circa 1850, the adversarial system combined with the proliferation of “lientists” ensured the same expert witness malaise across the Atlantic.

By 1870, a study on expert testimony was already able to report in detail on an “unmistakable tendency on the part of eminent judges and jurists to attach less and less importance to testimony of this nature,” explaining this result by “the surprising facility with which scientific gentlemen will swear to the most opposite opinions upon matters falling within their domain.” Many shared this bleak view. “[W]hoever has read the reports of trials or been present at them, in which experts are seen arrayed against each other, prostituting at times the science which they professed to represent,” wrote U.S. Supreme Court Chief Justice Morrison Remick Waite in 1874, “need not be told, that the subject of expert testimony as now understood, is one of no ordinary importance

The lientists were also concerned about the erosion of their scientific credibility. And they came to resent the adversarial system that required this bias-inducing partisanship.

“No class connected with the administration of justice is more frequently misunderstood, or abused...” wrote Charles Himes, physics and chemistry professor (and lientist). Scientific American circa 1872 also observed the brain pains:

Is it any wonder that the public is beginning to mistrust the value of this kind of [scientific] evidence? Such mistrust is based upon good grounds enough. As now presented to juries, the testimony of the both competent and incompetent witnesses, only serves to muddle their intellects, and to complicate rather than make plain the facts

The combined force of the legal profession, judiciary, legal academia, and the scientific community assembled against the lientist threat

Lientists and the legal community wanted the quacks out of the courtroom. Standing in their way? The now ancient legal criteria qualifying an expert. For 800 years, the sole rule had been whoever “possesses special training and experience in the subject in question” could speak as an expert. Beyond that, it was a matter of judicial discretion (and we know how that goes).

Judges without any scientific training had to make decisions about admitting experts. These decisions were nearly instant and on incredibly complicated topics.

These gut calls brought a pseudoscience tsunami, as the practice evolved to admit most anyone who held themselves out as an expert. The judiciary, realizing the folly of its new custom, tried to pass the buck on to the adversarial process to weed out the charlatans.

When kicking the problem down the road failed to work, the judiciary kicked the problem further: to the equally scientifically unskilled jury. Surely the contemporaneous view in the legal and lientist community was that the jury was up to the task:

[T]he average jury is unable to pass judgment on, or even to comprehend in any adequate way, many of the questions submitted to it—such as motives and capacity of the mind, the power of control, the analysis of conduct, and the conditions and influences which have been dominant in certain acts; the application of the law, and the distinctions of responsibility and accountability; the distinctions of science as to the meaning of certain facts, or the recognition and discrimination of facts from the mass of statements

So, judges passed along this burden to the jury while having little, if any faith in the jury to perform the task correctly. What’s surprising is that, given the extent judicial discretion was responsible for admitting junk science into the courtroom, the judiciary somehow escaped any blame for its presence.

Artist's Depiction of the Lientist threat to expert witness credibility circa 1870

The Rule Wars Begin

The lientist and scientific community were ill-equipped to attempt expert witness reform in the mid 19th century. It fell on the legal profession to take action; and expert witnesses were a hot topic in bar associations across the ever expanding country. Lawyers took to drafting laws to eradicate the expert testimony bias blight.

Several reform proposals erupted --- courts choosing expert witnesses, courts having a set list of expert witnesses to choose from, reserving or denying the right of parties to call additional witnesses, examination by the court with or without a right of cross-examination, or that the expert simply submit a report, special educated juries for situations where the evidence was too complex, and last an expert witness sit with the judge during trial to advise him.

Judicial review vaporized what few bills percolated through the legislatures as unconstitutional.

The judiciary attempted to erect a bulwark behind the rules of evidence. One rule was that the court prohibited the expert witness --- contra its history --- from opinion on the ultimate issue of fact.

This soon turned expert testimony into an evidentiary funhouse. If expert testimony can never touch the ultimate issue of fact, then technically irrelevancy becomes grounds for admission and relevancy grounds for objection.

Realizing the paradox but doubling down on attempting to reign in expert witness bias, the court invented the hypothetical question doctrine. Essentially, counsel would ask the expert witness a question with facts already admitted into evidence, “hypothetically,” and the expert witness would give an answer.

Of course, this double backfired because now counsel could shotgun the jury with an intolerably long-winded but all-relevant-facts-included hypothetical question. Or counsel could manipulate the facts in the case however he wanted to generate a one-sided, biased hypothesis. So, essentially, the court took itself on a circular drive. To get away from bias it created a doctrine that encouraged bias.

After the failure of the judiciary to curb the proliferation of lientist testimony, the institution of expert witness seemed like the black knight --- invincible

Note still that most of these reforms mirrored the past. It was an attempt to "unring the bell." Nearly all proposed rules had been part of courtroom procedure in England at one point or another before the mid nineteenth century. The expert witness, having arrived at its special point of power and now infamy by accident, was here to stay --- nothing could turn back time.

The expert witness’s star was on the ascent. The hearsay doctrine was another rule of evidence that the court attempted to take refuge behind:

The caution of the courts in admitting opinions not based on observation of the particular facts of the case, and the fear of misleading the jurors by reading to them scientific statements they were hardly competent to assess, had led many courts to exclude what many considered the most natural source of scientific information—standard textbooks, reports, etc. The exclusion of these written documents was justified by the hearsay doctrine on the premise that they were statements not made under oath or that their author was not available for cross-examination. As with other doctrines, the courts slowly devised ways to work around this one, too. Some courts permitted the use of scientific treatises, but only to discredit an expert. Others allowed experts to “refresh their memory” by reading from standard works. Others even allowed publications of exact science, assuming their statements to be of ascertained facts rather than of opinion, and excluded other treatises, especially medical works. Confusion and inconsistency, again, were rampant

The court carved several new exceptions failed into law that unintentionally empowered expert witness testimony. Truly the expert witness had become a colossus, a host unto itself. The American law of evidence had tried and failed to thwart the courtroom lientist.

Worse still, the judiciary mangled the law of evidence in its crusade to curtail expert witness power. The rules were now inscrutable. James Thayer, evidentiary titan, referred to it as a “piece of illogical, but by no means irrational, patchwork.” And by 1904, his pupil John Henry Wigmore needed four huge tomes to encapsulate the law of evidence.

There is a full realization now,” concluded the Chicago Legal News in 1909, after a long historical review of expert testimony, “that in the present practice we have carried a branch of procedure out to the utter defeat of its object, to an absurdity; and that the result has been a wide-spread disgust with methods of legal administration

So, while the expert witness puzzle originated in England, it went Vesuvius in America. England took measures --- such as moving highly technical trials away from the jury (a trend that has started recently in the United States) --- that sufficiently tourniquetted the wound to expert witness credibility.

But by the early 1900’s, the expert witness problem was a runaway train in the United States, having rolled over the legal profession and the judiciary, leaving malcontent lawyers, confused judges, and rules of evidence that bewilder law students still today in 2020.

Indeed, it is difficult to conceive of language within the bounds of decent and temperate criticism, which ought to be regarded as excessively severe in commenting upon the expert testimony nuisance as it has, of late years, been infesting our courts. In the way of wasting the public time, in the way of burdening litigants with expense, and in the way of beclouding the real issues to be tried and effecting miscarriages of justice, it has grown to the proportions of an offensive scandal. Instead of being an aid in the administration of the law, it has become a positive hindrance to it. Instead of assisting in the approximation of the truth, it has become the means of obscuring it. . . . [E]xpert testimony is to-day discredited and rightly discredited by the courts, and ridiculed and rightly ridiculed by the hard common sense of the people.

And if the term “lientist” seems like a stretch, here is what Judge William Foster had to say in 1897, summarizing the legal profession's thoughts on the matter:

There are three kinds of liars,— the common liar, the [damned] liar, and the scientific expert

This characterization . . . is bestowed . . . not only by defeated lawyers and their enraged clients, but also by eminent members of the legal profession, both lawyers and judges, as well as by worthy and respectable members of the general public outside of the professions involved. It is the voice of the people and of the press, as well as that of the bench and the bar. It is the fashion

In 1905 Michigan attempted reform by way of legislature --- allowing the court to nominate its own experts. Like so many other reform efforts before, the Michigan Supreme Court held the statute unconstitutional. The court reasoned that the official sanction of a court would give experts an “extraordinary certificate of candor, ability, and truthfulness, while other testimony in the case must be judged by the jury by ordinary standards.”

The scientific community, legal profession, judiciary, and legal academy combined to bring this figure to bear on the problem

The United States judiciary, far more empowered than its English predecessor, jealously guarded its power --- and it wanted as little to do with expert witnesses as possible. After all, the expert witness “lientist” had essentially demolished any safeguards the adversarial system had erected against it. The court likely feared that tying expert witnesses to itself would result in a diminution of its power.

The legal profession had failed, the judiciary had failed, and the legislature had failed. Yet, the Michigan fiasco galvanized one last sector of the legal community: the last place anyone would expect to find real change.  The legal academy stepped up to the plate. Their strategy was to improve the standards of expert admissibility (tacitly realizing that the blame rested with the liberal expert witness admission by judges).

Their renewed hopes of succeeding where their predecessors had so miserably failed hinged on a clear change in the market of scientific expertise, created by the rising professional culture in America. By the second decade of the twentieth century, the individual expert who developed and marketed his or her own expertise had already been replaced by a community of experts who shared, and were defined by, common standards of competence and ethics

The United States, unlike England which still held that “lientists” and men of science were outside the “professional men” category, embraced the new sciences as professions. As a result, regulation and development of common codes of ethics, education, training and practice, and minimum qualifications. The credentialed society had begun in earnest.

Society welcomed, then standardized, expert witnesses and proper lientists. Now that they had a uniform of sorts, the legal academy knew to focus all attention on the professions: “The remedy is not in the enactment of any new statute…no act of the legislature will make witnesses learned or honest. The reform must come from the professions themselves.”

And then…daybreak after the lientist dark ages.

In the early 1920’s, polygraphs were nascent on the law enforcement scene --- but the “lie detectors” had already caught the public’s imagination.

In 1922 a young black man, James Frye, found himself on trial for murder in Washington, D.C. Frye pled not guilty after having given and then recanting a confession, and his lawyer proposed having William Marston, co-inventor of the polygraph, testify as an expert witness corroborating his client.

The trial judge refused to admit the test into evidence, finding it inadmissible until there was a completely accurate machine capable of telling whether a person was being honest. Then the trial court found Frye guilty.

Frye’s lawyer appealed, arguing that the judge abused his discretion in refusing to admit the expert witness testimony. As we already know, this is a losing battle. The appellate court knew that the trial court’s rationale was nonsense on stilts. For 800 years the criteria for admission had essentially been (1) relevance (2) helpful to the trier of fact (3) special knowledge or expertise.

Marston had the credentials --- minted as more than a lientist, he was a lawyer and well-published research psychologist. The relevance was obvious, as was whether the testimony would be helpful to the trier of fact. So, the Court of Appeals turned attention to the type of science brought to the court, rather than the expert’s qualifications.

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. We think that the systolic blood pressure deception test has not yet gained such standing scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made. The judgment is affirmed.

Looking to the communities of professional scientists that had appeared, the court implicitly reasoned that the common codes of ethics and rigor would ferret worthy science to the top and leave the trash at the bottom. And the court would only touch it once it had risen past some minimum scientific social proof altitude.

When the dust settled, the lientist sat transformed as the modern expert witness

While the modern expert witness often still advocates for a position that is below full acceptance in the target community, Frye closed the courtroom off as a platform for scientific debate below a certain threshold of popular acceptance.

Frye was like a cult hit --- at the time, it was an extreme outlier case without any precedential citation. It was only in later years, piggybacking onto another trend --- the judiciary growing ever more confident in its power --- that Frye started to successfully stem the flow of expert witnesses into the courtroom. And this growing prominence culminated with the most ambitious and arguably “successful” effort of the judiciary to date in keeping “charlatans” outside the courtroom.

Stay tuned for Episode III: Revenge from the Bench

In the meantime, hop onto the “Let’s Get Started” page and order yourself an expert witness.

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