Proceed With Care
William Schwarzer is a senior U.S. district judge in northern California and former director of the Federal Judicial Center.
The American Association for the Advancement of Science (AAAS) proposal to help judges find "impartial experts" is attractive, but it must be approached with quite a bit of caution.
Based on my experience as a federal trial judge for more than 14 years, I believe the proposal is rife with problems. I do not doubt that the experts will be impartial--free of bias--but that does not make them neutral. In fact, I do not believe there is such a thing as a neutral expert. They will presumably be objective, highly qualified and fair, but they will not come to disputes with wholly open minds. Someone who has achieved eminence in a field will have accumulated a body of work--research, publications, theories--that tends to entrench his or her views on the scientific and technical issues in the field. There may be many respected experts on the etiology of cancers--but they surely do not all agree on all issues that arise in that field.
Our system of litigation is based on an adversarial process. It is not a perfect system, but I have not seen any that works better. In my experience, the parties, who know more about the case than the judge or the outside experts, are in the best position to prepare and present their cases. When the court appoints an expert to testify as a witness, even with the best of intentions, that witness immediately ceases to be neutral. Inevitably, the jury will give more weight to the testimony of the person appearing as the court's expert, prejudicing one party or the other. Even if the expert does not testify but merely consults with the judge in the process of arriving at decisions, communicating privately without the consent of the parties, the adversarial process becomes skewed.
We need to remember that science is not a compendium of truths and neutral experts will rarely be capable of giving a "right" answer. Those who work at the cutting edge of science may take very different (but perhaps no less respectable) views on disputed questions than the established scientists who have achieved eminence on the basis of different approaches. As someone has said, truth often comes riding in on the back of error.
Differences of scientific opinion rarely present issues of right and wrong. Frequently, the differences are about the choice of assumptions on which to rest theories and conclusions, or about how important the results of a particular study are. Differences may be about interpretations of undisputed data--for example, epidemiological data. (It was once thought that Coca-Cola caused polio because both the consumption of Coke and the incidence of polio rose during the summer.) Or differences may be about risk assessments, for example, whether a pesticide should be considered carcinogenic based on estimates of how many cancer cases may result from exposure.
That is not to say that impartial experts may not be helpful in litigation. When the confusion is thick and the parties' experts have become advocates rather than helpers, an impartial expert may be helpful to the judge in identifying the basis for disagreement between the parties' experts. I have found that an expert can help the judge ask the right questions to get to the bottom of disagreements over technical matters, to cut through the rhetoric and to narrow the issues. Using impartial experts in appropriate ways may be helpful at the margins, but the responsibility is on the lawyers, guided by the judge, to see to it that the evidence is made comprehensible.
Better Than What We Have
Alison St. Germaine Brent is a pediatric emergency room physician in St. Petersburg, Fla., and a former expert witness.
My career in pediatric emergency medicine prepared me for a life of creating order out of chaos. Several years ago, I became the medical director of a county child protection team, which meant I was actively involved in the most horrific cases of child abuse and neglect. I had no idea that the most frustrating part of the job would not be the details of the abuse: It would be the judicial system.
My role as a physician is to be an advocate for the child. In my new role, I was an expert witness hundreds of times. In the beginning, I thought that what was right would prevail. But time after time, I was dismayed when a judge or a jury would send a child back to an abusive home--even after I had explained that the evidence clearly pointed to abuse or neglect. It was emotionally draining; I blamed myself for not having explained the evidence clearly enough. Often, the defense's expert witness could muddy the waters just enough for the jury to be able to find reasonable doubt. My anguish would escalate when that child ended up back in my emergency room, or even dead. After three years, I resigned that position, horribly frustrated with the way the legal system works.
In the end, I stopped blaming myself and concluded that what's missing in the system is an educational component. That's why I strongly support the court-appointed scientific experts project as an educational adjunct to the judicial system. If an impartial expert can explain to a judge exactly what the pivotal medical issues are in determining an abuse or neglect case, the children the court is charged with protecting would have a much better chance.