August 12, 2008
In U.S., Partisan Expert Witnesses Frustrate Many
By ADAM LIPTAK
Judge Denver D. Dillard was trying to decide whether a slow-witted
Iowa man accused of acting as a drug mule was competent to stand
trial. But the conclusions of the two psychologists who gave expert
testimony in the case, Judge Dillard said, were "polar
One expert, who had been testifying for defendants for 20 years, said
the accused, Timothy M. Wilkins, was mentally retarded and did not
understand what was happening to him. Mr. Wilkins's verbal I.Q. was
58, the defense expert said.
The prosecution expert, who had testified for the state more than 200
times, said that Mr. Wilkins's verbal I.Q. was 88, far above the
usual cutoffs for mental retardation, and that he was perfectly
competent to stand trial.
Judge Dillard, of the Johnson County District Court in Iowa City, did
what American judges and juries often do after hearing from dueling
experts: he threw up his hands. The two experts were biased in favor
of the parties who employed them, the judge said, and they had given
predictable testimony. "The two sides have canceled each other out,"
Judge Dillard wrote in 2005, refusing to accept either expert's
conclusion and complaining that "no funding mechanism exists for the
court to appoint an expert."
In most of the rest of the world, expert witnesses are selected by
judges and are meant to be neutral and independent. Many foreign
lawyers have long questioned the American practice of allowing the
parties to present testimony from experts they have chosen and
The European judge who visits the United States experiences
"something bordering on disbelief when he discovers that we extend the
sphere of partisan control to the selection and preparation of
experts," John H. Langbein, a law professor at Yale, wrote in a
classic article in The University of Chicago Law Review more than 20
Partisan experts do appear in court in other common-law nations,
including Canada, Singapore and New Zealand. But the United States
amplifies their power by using juries in civil cases, a practice most
of the common-law world has rejected.
Juries often find it hard to evaluate expert testimony on complex
scientific matters, many lawyers say, and they tend to make decisions
based on the expert's demeanor, credentials and ability to present
difficult information without condescension. An appealingly folksy
expert, lawyers say, can have an outsized impact in a jury trial.
Some major common-law countries are turning away from partisan
experts. England and Australia have both adopted aggressive measures
in recent years to address biased expert testimony.
Both sides in Mr. Wilkins's case said the American approach to
expert testimony was problematic.
"One's biased for the defense," said Rockne O. Cole, Mr.
Wilkins's lawyer. "The other's biased for the state. I think
it's who's signing their paycheck."
Anne M. Lahey, an assistant prosecutor in Johnson County in Iowa,
largely agreed. "They're usually offsetting as far as their
opinions are concerned," she said of expert testimony.
Judge Dillard ruled that Mr. Wilkins was not competent to stand trial,
a decision an appeals court reversed last year, though it accepted the
judge's conclusion that the experts had canceled each other out.
Since it is the defense's burden to prove incompetence, the appeals
court said, the tie went to the state. The case against Mr. Wilkins
was dismissed in October for reasons unrelated to his competency, said
Janet M. Lyness, the prosecutor in Johnson County. A confidential
informant crucial to the case against Mr. Wilkins could not be found,
Dr. Frank Gersh, the defense expert in the case, did not respond to a
request for comment. But Dr. Leonard Welsh, the psychologist who
testified for the state, said he sometimes found his work
"After you come out of court," Dr. Welsh said, "you feel like
you need a shower. They're asking you to be certain of things you
can't be certain of."
He might have preferred a new way of hearing expert testimony that
Australian lawyers call hot tubbing.
In that procedure, also called concurrent evidence, experts are still
chosen by the parties, but they testify together at trial -
discussing the case, asking each other questions, responding to
inquiries from the judge and the lawyers, finding common ground and
sharpening the open issues. In the Wilkins case, by contrast, the two
experts "did not exchange information," the Court of Appeals for
Iowa noted in its decision last year.
Australian judges have embraced hot tubbing. "You can feel the
release of the tension which normally infects the evidence-gathering
process," Justice Peter McClellan of the Land and Environmental
Court of New South Wales said in a speech on the practice. "Not
confined to answering the question of the advocates," he added,
experts "are able to more effectively respond to the views of the
other expert or experts."
In a dispute over the boundary of an Australian wine region, for
instance, "there were lots of hot tubs - marketers, historians,
viniculturalists," said Gary Edmond, a law professor at the
University of New South Wales in Sydney.
Joe S. Cecil, an authority on expert testimony at the Federal Judicial
Center, a research and education agency in Washington, said that hot
tubbing might represent the best solution yet to the problem of bias
in expert testimony.
"Assuming the judge has an active interest in ferreting out the
truth and the experts are candid, I prefer the hot-tubbing option,"
Mr. Cecil said. "But those are two bold assumptions, and the
procedure drives the attorneys nuts."
But Professor Edmond said that hot tubbing had drawbacks and was
"based on a simplistic model of expertise."
"Judges think that if we could just have a place in the adversarial
trial that was a little less adversarial and a little more scientific,
everything would be fine," Professor Edmond said. "But science can
be very acrimonious."
England has also recently instituted what Adrian Zuckerman, the author
of a 2006 treatise there, called "radical measures" to address
"the culture of confrontation that permeated the use of experts in
litigation." The measures included placing experts under the
complete control of the court, requiring a single expert in many cases
and encouraging cooperation among experts when the parties retain more
than one. Experts are required to sign a statement saying their duty
is to the court and not to the party paying their bills.
There are no signs of similar changes in the United States. "The
American tendency is strictly the party-appointed expert," said
James Maxeiner, a professor of comparative law at the University of
Baltimore. "There is this proprietary interest lawyers here have
American lawyers often interview many potential expert witnesses in
search of ones who will bolster their case and then work closely with
them in framing their testimony to be accessible and helpful. At a
minimum, the process results in carefully tailored testimony. Some
critics say it can also produce bias and ethical compromises.
"To put it bluntly, in many professions, service as an expert
witness is not considered honest work," Samuel R. Gross, a law
professor at the University of Michigan, wrote in the Wisconsin Law
Review. "The contempt of lawyers and judges for experts is famous.
They regularly describe expert witnesses as prostitutes."
Melvin Belli, the famed trial lawyer, endorsed this view. "If I got
myself an impartial witness," he once said, "I'd think I was
wasting my money."
The United States Supreme Court has expressed concerns about expert
testimony, but it has addressed bias only indirectly, by requiring
lower courts to tighten standards of admissibility and to reject what
some call "junk science."
Trials in the United States routinely feature expert testimony, and
there is a thriving litigation-support industry matching experts and
lawyers. Expert witnesses in major cases often charge from $500 to
$1,000 an hour. More than 40 percent of all experts, according to a
2002 study of federal civil trials by the Federal Judicial Center,
give medical testimony. Economists and engineers also appear
frequently as expert witnesses.
Judges and lawyers agreed, in separate surveys conducted by the center
in 1998 and 1999, that the biggest problem with expert testimony was
that "experts abandon objectivity and become advocates for the side
that hires them."
American judges are generally free to appoint their own experts, but
they seldom do.
Oscar G. Chase, a law professor at New York University and an editor
of the textbook "Civil Litigation in Comparative Context," said
there was a reason for that.
"Many judges, if not most, have been trial lawyers, and they are
suspicious that any expert is truly neutral," Professor Chase said
"The virtue of our system is that it allows people to sort of balance
Indeed, said Jennifer L. Mnookin, a law professor at the University of
California, Los Angeles, who recently wrote about expert testimony in
the Brooklyn Law Review, "neutrals risk being a sort of false cure"
because "there are often cases where there are genuine
The future, Professor Mnookin said, may belong to Australia.
"Hot tubbing," she said, "is much more interesting than neutral