Experts in Court: Reconciling Law, Science, and Professional Knowledge.

Experts in Court: Reconciling Law, Science, and Professional Knowledge

Bruce D. Sales Daniel W. Shuman American Psychological Association www.apa.org 162 pp., $49.95

In 1993, the older brother of experimental psychologist Margaret Hagen faced a $3.4 million lawsuit. A daughter of the brother's former girlfriend alleged--on the basis of recovered memories--that Hagen's brother had sexually abused her 20 years earlier. According to Hagen, half a dozen psychological experts who had never even met her brother testified that the daughter suffered from mental disorders caused by his abuse. The defense team countered with its own parade of psychologists, who argued against the accuracy of recovered memories.

Although the defense prevailed, Hagen was amazed and outraged by the extent to which psychologists had infiltrated the justice system. Her response was an influential 1997 book: Whores of the Court: The Fraud of Psychiatric Testimony and the Rape of American Justice. Most reviewers of the book noted Hagen's intemperate tone, her disdain for clinical psychology, and her failure to distinguish wheat from chaff. But many also agreed that she had a useful point buried in her angry rhetoric: Sometimes, scientific experts--for a variety of reasons--provide false or at least misleading testimony.

Yet, as Bruce Sales and Daniel Shuman make clear in their painstaking and meticulous new book, there is no simple way to exclude all potentially unsound scientific evidence from the courtroom while still preserving for jurors the essential guidance of legitimate scientific expertise. After all, much of what passed for generally accepted scientific knowledge 100 years ago is now regarded as nonsense, and, without doubt, some percentage of today's "good" science will go the way of laetrile, leeches, and phlogiston. Yet courts must make decisions in the here and now about what is good science and what is not. They cannot wait for definitive studies and complete consensus.

Sales and Shuman are leading scholars on psychology and the legal system. Both are lawyers, and their book reads--for better or worse--like an expanded law review article. The authors state their purpose clearly: "[W] hat proffered expert testimony should be accepted or rejected by the courts? And by what standard should these decisions be made?" They address these questions regarding science in general but have a clear and acknowledged focus on expert testimony by mental health professionals.

The authors try to evaluate legal rules for the admissibility of expert testimony by comparing the performance of these rules against the goals stated in Federal Rule of Evidence 102, including fairness, efficiency, truth, and justice. But, as Sales and Shuman explain, the rules leave much room for interpretation, especially because the goals often conflict with each other. In fact, they devote much of Experts in Court in my view, too much--to sorting out the goals' precise meaning and how they might apply to expert admissibility decisions.

Nonetheless, the authors provide an excellent introduction to the evolution of rules governing the admissibility of scientific testimony from common law through Frye v. United States to Daubert v. Merrell Dow Pharmaceuticals, Inc.

While Frye evaluated whether science had attained general acceptance in its field, the Daubert standard gives trial judges a more hands-on role in deciding the merits of prospective expert testimony. Judges are, in principle, supposed to explore a scientific theory's testability, see how it fares in the scientific peer review process, learn about its error rate, and--a la Frye--gauge its acceptance in the relevant scientific community. This, Sales and Shuman say, is a lot to ask, especially when many judges do not have the requisite scientific background.

The authors also discuss Kumho Tire Co. v. Carmichael, in which the Supreme Court noted that judges can consider other appropriate factors in decisions on expert testimony, and General Electric Co. v. Joiner, in which the Court ruled that a trial court's admissibility determinations are reviewable only for an abuse of discretion. They conclude that although the Daubert plan stemmed from lofty aims, the current rules--as implemented--frequently fall far short of what was intended in many important ways.

The authors suggest that the core problem may be that trial courts use Daubert differently. For example, some judges--perhaps those with the greatest scientific sophistication--may look to primary research in scientific journals, others may examine secondary literature reviews, while still others may rely on representations of science in the legal literature. Some judges emphasize Daubert's peer review requirement, while others do not. And there is disagreement over what in a complex and diverse academic world constitutes acceptable peer-reviewed science.

In some instances, Daubert's requirements may be dealt with expeditiously, while in others they may consume much of the court's time and resources. Also, by increasing the complexity of the admissibility decision, Daubert has probably increased the cost of expert testimony, which has, in turn, widened the gap between access to scientific expertise for the rich and access for the poor.

Courts vary the most in assessing the evidentiary reliability of nonscientific expert testimony, the authors maintain. Some judges may demand proof that the testimony is meaningful, while others may be more willing to accept unsupported expertise.

The reader does get the sense, however, that the authors are tough on the Daubert system. They themselves note that "if scientists cannot agree on the facts because of the inherent limitations of current scientific knowledge and techniques, it would be arrogant to believe that the law can remedy this dilemma.... If experts cannot measure the scientific validity of their testimony, the courts are not going to solve that problem."

The authors offer many recommendations for improving the system--these are mainly tweaks, not an overhaul. And even these, they realize, may prove difficult to implement. For example, they advise adding some scientific education to the training of judges and lawyers, while conceding that intensive instruction may not be practical. They consider the use of court-appointed experts or special masters but acknowledge the limits of this approach when scientists in a field disagree among themselves. They also argue that justice requires courts to provide indigent criminal defendants with more support to hire expert witnesses, but they are reluctant to take this principle too far because of the likely drain on public funds. And although they see problems with Joiner, which gave great deference to admissibility decisions of trial court judges, they don't think this ruling will be overturned.

Sales and Shuman sensibly ask appellate courts to provide more specific guidance regarding the application of Daubert criteria, especially on the assessment of nonscientific expert testimony. In particular, they think "courts should presumptively demand proof of the accuracy of the nonscientific expert's methods, excusing proof of its accuracy or validation only when the proponent of the expert can demonstrate that testing of the method is not possible." This approach, they believe, would encourage the development of innovative techniques to assess expert claims.

Overall, the book might have benefited from a clear summary of the authors' recommendations, which are scattered throughout the volume. Few will judge this book an exciting read. Many will wish for more examples, and some will deem the authors' approach too precious. Nonetheless, Sales and Shuman have grounded their analysis and recommendations in careful scholarship and good sense. The book should prove especially useful to attorneys who must argue for the admissibility of expert testimony.

NEIL J. KRESSEL is a professor of psychology at William Paterson University in Wayne, New Jersey, and coauthor of Stack and Sway: The New Science of Jury Consulting (2004).