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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 Sens itive 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 th e 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.
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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 tenfold. 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
witnesses, Rule 702,2 is not adopted in every state. A lot of states do not
1.
MARK TWAIN, ROUGHING IT ch. XLVIII (1872).
2.
“If scientific, technical or other specialized knowledge will assist the trier
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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 Kumho5 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
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
of fact to understand the evidence or to determine a fact in issue, a witness qual ified 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. 1013 (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.
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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
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
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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 particular 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
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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 1993. 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
more concrete forms of science. Then we have physicians and doctors
who base their opinions on different things. Across the spectrum, we are
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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 opinion7 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.
Thank you.
7. Un ited States v. Sch ef f er, 52 3 U. S. 3 03 , 1 1 8 S. C t. 1 26 1 (19 9 8 ) (Ken n ed y,
J . , co n cu rri n g).
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