Q:\wwwroot\NESL\lawrev\Vol36\36-3\04 Brian Holmgren.doc Printed On 1/7/2003: The Expert Witness. Brian Holmgren

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1 Q:\wwwroot\NESL\lawrev\Vol36\36-3\04 Brian Holmgren.doc Printed On 1/7/2003: The Expert Witness Brian Holmgren There were three professionals who were debating the oldest profession in the world: a surgeon, a physicist, and a lawyer. The surgeon said he believed that surgery was the oldest profession in the world because on the sixth day, God took Adam's rib and created Eve, and that must have been done by a surgeon. The physicist said yes, but before God created Adam and Eve, he created the heavens and earth out of chaos, and that was done by a physicist. The lawyer then piped up, who do you think created all the chaos? The fact of the matter is that the law has created its own form of chaos when it comes to the subject of expert witnesses. The issue of the day is, at least as far as I am concerned, do experts advance the truth furthering process of the trial? That is what they are supposed to do. Do they really do that? There are many expert witnesses for whom it can be said - if you pay them, they will come. We call these the Field of Dreams experts and they do come to court on a very frequent basis. The law contributes to this process, and this process will be the focus of my remarks. How does the law help to create this body of chaos for us? First of all, we have to understand the jury selection process. Or, actually, I should refer to it as the jury de-selection process. We do not actually go out and pick the jurors we want. We go out and get rid of the jurors that we do not want. We begin this process by getting rid of the jurors who know anything about the parties, the subject matter of the litigation, or the technical issues which are the subject of the litigation. Basically, we ensure a fair Brian Holmgren is an Assistant District Attorney General with the Davidson County District Attorney General s Office in Nashville, Tennessee, where he is assigned to the Child Abuse Unit. He previously served as an Assistant District Attorney in Kenosha County, Wisconsin, where he was the Director of the Sensitive Crimes Unit. Between November 1995 and July 1999, Mr. Holmgren was a Senior Attorney with the American Prosecutors Research Institute s National Center for Prosecution of Child Abuse. He is currently on the Board of Directors of the American Professional Society on the Abuse of Children. Mr. Holmgren also serves on the National Advisory Panel on Shaken Baby Syndrome and the Board of Advisors for the Civic Research Institute s Sex Offender Law Report. He is a contributing author and editor to the third edition of the National Center s highly acclaimed manual on the Investigation and Prosecution of Child Abuse Cases. 593

2 594 NEW ENGLAND LAW REVIEW [Vol. 36:3 jury, by ensuring an ignorant jury. This is then balanced against the criteria for qualification of an expert witness. An expert witness is defined in the law as somebody who can assist the fact-finder in the process of advancing the so-called search for the truth. If we get rid of anybody on the jury panel that knows about the issues in the case, and if the qualifications of the expert are defined as being someone who has knowledge beyond the scope of the juror s knowledge, then someone who can advance the juror s knowledge even just a little bit can be qualified as an expert. That is the definition of an expert witness in court under our laws. Mark Twain said over a hundred years ago: the jury system puts a ban upon intelligence and honesty, and a premium upon ignorance, stupidity and perjury. 1 Those words are no less true today, than they were one hundred years ago. How else does the truth remain hidden when we get to court? First of all, we have this very low threshold for the admissibility of expert witnesses; therefore, it is very easy for the expert witness to make their way into court. Generally, when courts talk about the qualifications of the expert, the courts suggest that an expert s lack of qualifications go to the weight of their testimony, rather than to their admissibility. Expertise is often established by the fact that the expert has appeared in court several times before, which begs the question: if they did not belong there in the first place, then why does it weigh as part of their credentials later on? The expertise of an expert may be limited in his or her practice to a specific area but, once they get into court, that expertise may be broadened ten-fold. The expert may offer opinions on things that go well beyond his or her specific area of expertise. While we would hope that the rules of law would somehow preclude this possibility, in fact, it is exactly the opposite. So, we get into court and we have these wonderful new rules that say the courts are supposed to act as gatekeepers regarding the admission of expert witnesses. We are supposed to determine whether experts are or are not qualified. We are also supposed to determine what they should or should not be able to say in court. Well, I have news for you folks. All of you went to law school because you did not want to learn anything about science, right? This is a fundamental truth. So now, we are asking you when you become lawyers to know and ask the right kinds of questions of experts that qualify them or disqualify them as experts. We ask judges who do not have training in this particular area to make these important decisions. It does not work so well. Another problem is that the Federal Rule of Evidence regarding expert 1. MARK TWAIN, ROUGHING IT ch. XLVIII (1872).

3 2002] THE EXPERT WITNESS 595 witnesses, Rule 702, 2 is not adopted in every state. A lot of states do not even have a specific rule on expert testimony. Those that do have such a rule labor under different standards in its interpretation, such as the Frye, 3 Daubert, 4 and Kumho 5 standards. Some states, however, do not have such standards. Rule 702 was recently revised to tighten up the doors a little bit on expert testimony and yet, a substantial number of the jurisdictions have not adopted the revised Federal Rule 702, 6 even though they may have Rule 702 in their books. Then, we get into the issue of who is the best expert under the Rule? For example, in the field of child abuse we have nurse practitioners who do a lot of the sexual abuse examinations of children and who are then asked to offer testimony about their examinations. Are they the best experts in that situation, or do we need a medical doctor in order to be able to provide expert testimony? Another problem is that the ethical standards for practitioners, especially in the health-related field, are vastly different than they are for psychologists or other experts. It is much easier for practitioners in medicine to come forward and offer testimony that would, by other standards, in other professions, be considered unethical. But, they make their way in. I am singling out medical doctors to a large extent because this is where I see the bigger problems, at least in terms of the criminal field. Now, in the civil arena, we have a little bit of a balancing to some of these problems because attorneys are allowed to depose witnesses. They are allowed to hire their own experts, and they have a little bit more access to funds, generally, than we do in the criminal field. In the criminal field, a lot of times we do not even know what expert is coming, or what they 2. If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. FED. R. EVID. 702 (1983) (revised 2000). 3. Frye v. United States, 54 App.D.C. 46, 293 F (1923). 4. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). 5. Kumho Tire Co. Ltd., et al. v. Carmichael, etc., et al., 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) 6. If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. FED. R. EVID. 702.

4 596 NEW ENGLAND LAW REVIEW [Vol. 36:3 are going to say, until they arrive at the courtroom door. This practice, of course, has many vices, not the least of which is its allowance of experts who really ought not to be there to say things that really ought not to come forward in court. There is another problem in the criminal field which is that there is a judicial bias towards permitting expert testimony by the defense and conversely a bias toward the exclusion of expert testimony by the prosecution. This comes from several different sources. One is the presumption in favor of allowing the defendant, as part of his due process rights, to present a defense. Second, is a concern on the part of the judiciary who fear reversal if they exclude expert testimony and that decision is reviewed on appeal. The prosecution, by contrast, generally does not have the right of appeal if their experts are excluded, so it is easier to rule them out. A third factor, that has substantially contributed to this problem, is the tendency on the part of many prosecutors to push the envelope when seeking convictions by calling in experts who are going to advance their theory of the case. Prosecutors, by calling in their experts in an improper manner, cause these cases to go up on appeal. We then get case law rulings against such use of expert testimony that impacts future cases. Therefore, it is incumbent on somebody in my profession to make sure that in every case that I litigate I do the job right, so that I am not creating that first case of adverse precedent for all the other practitioners across the country. I want to give you two examples of how this plays out in the real world. Recently, there was some litigation in a federal jurisdiction in the South over the testimony of a proposed expert who wanted to come in, and basically testify that he had examined, or run an assessment technique on an alleged sex offender, and that basically this sex offender did not show any deviant arousal towards children. Now, the expert that came to satisfy the admissibility requirements in a Daubert hearing in this federal court, happened to be the very person that developed this particular assessment technique. So this expert had a vested financial interest in the outcome of the court s ruling, because he could then say basically, and he did say ultimately, that the Federal Courts had accepted his technique under the Daubert criteria. Now, mind you, this gentleman had served on the Board of Directors at the largest professional organization dealing with sex offender treatment and assessment in the country. The Code of Ethics for that particular profession says unequivocally, that no expert witness should come to court, and basically tell the court that an offender does, or does not, have a pre-disposition to engage in this behavior, in terms of the guilt-innocence phase of the trial. So, this man directly violated this Code of Ethics. He came before the court, offered this opinion, and got the technique accepted even though there was well-published literature that said that nobody should do this and that we do not have reliable information in

5 2002] THE EXPERT WITNESS 597 this regard. His testimony was accepted and this expert now has this court s decision posted on his website. So the defense wins a victory and they get this technique admitted into the trial courts, even though this assessment technique has little scientific reliability in terms of the evidentiary proposition for which it is being offered that the defendant is not likely to have committed the alleged sexual offense. In fact, the evidence is totally unreliable on this point. Contrast that scenario with a case that I was involved in recently, which involved the asphyxial deaths of three children by a single caretaker. In order to support the proposition that this woman killed these children by smothering them and leaving no traces, we brought in a statistician who examined the probability that three deaths to children of this age could have occurred by chance in that situation. The statistician basically came to the conclusion that the probability of that occurring exceeded the world's population. This was very reliable statistical proof that this woman smothered these three kids. The court, hearing that proof, clearly made a determination that it was reliable and that it satisfied all of the Daubert criteria; but, the court excluded the testimony, at least in the case in chief, on the basis that it would be overly prejudicial to the defense to permit this evidence to come before the court and before the jury. So, on the one hand, very reliable information is excluded, even though it is scientifically sound, and on the other hand, unreliable information is admitted. This dilemma is one that we face in the courts every day. We contribute to this problem in a couple of other ways. We ask the expert, when they are coming into court, to offer information that is going to assist the court in the determination of what should be admitted - what should and should not be admitted. Well, think about this ladies and gentlemen! If the irresponsible expert is coming to court and being asked to basically offer information about whether they should, or should not, be permitted to testify, the reliability of the information that the court is going to receive to make that determination is inherently suspect. So, we have a big problem. The problem has to do with the issue of whether this information is going to be accurate, or not, given that we are dealing with irresponsible experts. On the other side of the coin, we also have many responsible experts who come to court. These individuals are being asked to go through the same process, but they are also being asked to try to train and educate judges, juries, and lawyers, who do not know anything about that subject material, to make appropriate determinations. We are not well suited in the law to make that determination, certainly not in a criminal field where we have to make these determinations fairly quickly. It is rare that judges would take a day, or two days, out of their schedules, in the middle of a trial or prior to trial, to make a determination of whether or not the par-

6 598 NEW ENGLAND LAW REVIEW [Vol. 36:3 ticular expert's testimony is, or is not, reliable. Rather, they would put it before the jury and let the appellate court sort it out later on. Again, this is another bias. If we do not know who these experts are, what they are going to say, and what it is that they are relying on, we certainly are not going to be in a position to cross-examine, or examine them in an appropriate fashion. Further, the rules in many jurisdictions do not permit prosecutors for the State to find this out by deposing defense experts that are going to testify. Therefore, we are often flying blind in many of those circumstances. In the jurisdiction where I prosecuted in Wisconsin, we had an open rule on the admissibility of expert witnesses that was supposedly counterbalanced by a more liberal rule in terms of cross-examination. However, we did not have any discovery rules for the expert witnesses. It was wonderful! I could question the expert all day long if I wanted to, as long as the judge was tolerant. Still, I did not have a clue what he was going to say before he actually got there. Under these circumstances, you learn to try a lot of cases by the seat of your pants, which is not very good for furthering the truth-seeking function of the courts. Daubert and Kumho have also created a rule of thumb that says that one of the things we are going to look to is whether or not the science is published in a peer review journal. That is all well and good, but there are lots of publications out there who uphold very low thresholds and standards for admitting particular scientific evidence. For example, there is a well-known defense expert who likes to go around the country and talk about how children can receive very serious injuries from short falls. One of the articles that he cites is an article that was published out of England in It surveyed twenty-eight children, a very small sample size, as you can well imagine. The conclusion of the study was that, somehow, Caucasian babies and African-American babies had different rates of sustaining subdural hematomas when they fell. The conclusion one draws from this data is that there must be something physiologically different about Caucasian and African-American babies to account for these findings. This is a peer review published, scientific article that gets cited in a court of law, and it is absolute garbage. There are other studies and examples just like this one, that permeate their way into the so-called truthfurthering function of the courts. The final point that I want to make is that we see lots of different kinds of experts in the courtroom. When you look to apply, or try to apply, the different criteria from Frye, Daubert and Kumho to some of these problems, and the different types of expert witnesses, things just do not quite mesh. We have social scientists and psychologists that frequently come in and offer testimony in courtrooms. We have chemists, physicists, and accident-reconstructionists that come to court and base their opinions on

7 2002] THE EXPERT WITNESS 599 more concrete forms of science. Then we have physicians and doctors who base their opinions on different things. Across the spectrum, we are asked to determine: can the expert offer opinions on the ultimate issue? Can the expert offer opinions that deal with the issue of providing information from which the jury can then extrapolate other information, even though the expert is not giving an ultimate opinion? The rules, as they apply to these different experts, are difficult to interpret. They vary because of the manner in which a social scientist and a psychologist can testify, and the manner in which a doctor can testify may be very different, yet the rules of evidence are the same for both. Moreover, we read case law decisions that seem to apply different standards to those different individuals in ways that do not make a whole lot of sense. So, it is very difficult for us to try to put together and fashion out a consistent rule of law that will apply to every individual expert across the board. Yet, that is exactly what Kumho and Daubert seem to tell the courts that they have to do. Now, I find it ironic that in the dissenting opinion in the Daubert decision, Chief Justice Rehnquist basically said: look, I do not like this rule, because I do not think that the judges should be in a position of being amateur scientists and determining the reliability of information. We are not trained to do that. We are not skilled at doing that. We ought not to be placed in that position of making our decisions based on having to learn all this science in the first place. Later on, one of the other justices, in a different decision determining the admissibility of polygraph evidence, which, as you all know, has historically been excluded, in a concurring opinion 7 said: well, I think that we ought to allow all kinds of expert testimony to come in because we allow all other kinds of unreliable evidence to come before the court. We have eyewitness testimony all the time, which is really unreliable. We permit that with no restrictions whatsoever. So why not permit experts to come in and offer opinions on polygraph evidence, and let jurors sort it out? So, on the one hand, one Justice of the United States Supreme Court is saying: as judges we should not have to figure this out, and we are not really equipped to make decisions on the reliability of scientific evidence and expert testimony. On the other side, another Justice of the United States Supreme Court is basically saying: let us just give it to the jury, because they were too stupid to get out of jury duty, and they certainly can figure out this material. So that is the quagmire that all of you are about to enter into, those of you who are studying to be lawyers. Those of you who already are lawyers, you know what I am talking about and dealing with. This is the dilemma that we face with the expert witness in court. 7. United States v. Scheffer, 523 U.S. 303, 118 S. Ct (1998) (Kennedy, J., concurring).

8 600 NEW ENGLAND LAW REVIEW [Vol. 36:3 Thank you.