“Does the court intend to inform the jury that the new forensic expert is court-appointed? And if so, will such procedure imply to the jury any disfavor of the court toward either, or both, of the other expert witnesses? I’ll yield the floor, Your Honor, unless the court has questions of me.”
“Thank you, Mr. Fineman, for your gracious brevity. It is appreciated. No questions for you, Mr. Fineman. Mr. Malone, we have not heard from you on this subject, if memory serves. Do you wish to comment?”
Malone exploded, much like a Roman candle, sputtering yet making practical sense in his patented style of presentation.
“Your Honor, if I may, this is not some tea-and-crumpets party where abstract philosophical notions are discussed as the afternoon’s recreation. With due respect, my client has already wilted from her months of captivity across the street in the county jail! She vehemently protests her innocence but is painfully aware that this is not a fair fight. She dedicated years of her life giving the best care she could to Mr. Martorano, who was a difficult patient at times. The family members were her biggest fans until they learned of their father’s arrangement with her. Only then did they conclude that she was evil and should be dealt with by the authorities. She is here charged with capital homicide, that is, in a separate department of this court, and her fate in either case will have consequences in the other. It would be folly to entertain the notion that these two cases are not intertwined.
“She is essentially penniless. I have sole responsibility for her defense in the criminal case and the presentation of her claim in this matter. In this will-contest matter, she only wins, practically speaking of course, if she proves she is not guilty of the criminal charges. Such a burden should never be placed on a party in any case. In this one, it is surely inappropriate. I have the gravest concern that she lives daily in a double-jeopardy world, anxious every moment that she will not be equal to the immense challenge, physically and emotionally. She lacks the resources of her opponents, who ironically before the revelation of the life-care agreement were her biggest boosters, frequently fending off people interested in hiring her away to care for their own relatives.
“Appointment of an expert, as Your Honor proposes, is wholeheartedly supported by my client. And I echo the court’s comments that the appointment of a forensic expert who is not beholden to a party with a stake in the outcome, is needed. While I would prefer to have the court appoint an expert to serve the unique needs of my client, appointment of a neutral expert is a very positive step. I confess to being unaware of any motion I could file in this civil case that could be expected to gain favorable attention of the court for such a purpose. If I am missing something, I would appreciate instructions along these lines.”
Malone gave a hasty look over counsel table and continued.
“Hearing no suggestions at the moment, I enthusiastically support the court’s motion to appoint the expert. While my client has fundamental rights to a fair trial in the criminal case, and I am entitled to request the court to appoint an expert for her in that case, we have not raised the subject in that proceeding at this time. If this civil case is tried before the criminal one, an unsatisfactory outcome for my client seems destined to indelibly mark the proceedings in the criminal case. That result would be a travesty, in my opinion, Your Honor.”
“Thank you, Mr. Malone. All counsel and parties have my assurances that the court will follow Evidence Code sections 730 through 733. Section 732 provides some guidance to the court during examination of the court-appointed expert. The court has no questions of you at this moment, yet you raise a point that has me perplexed, to say the least, and in light of the time left before the noon recess, I’m going to break early and reconvene at 1:30 p.m. and at that time I will listen to further comments from counsel.”
“Yikes!” thought Corrigan as he reflexively scrambled to his feet to ceremonially honor the judge taking her leave of the courtroom. No lunch today, he concluded pensively. No matter, he never ate heartily on court days anyway. He needed only the minimum food intake to maintain his effectiveness. Too much to eat left him uncomfortable, sleepy, and less attentive. Actually, he favored the Cassius lean-and-hungry look, but he had accepted his lot of late as more of a Smokey-the-Bear image due to his midlife portliness.
Corrigan recognized his challenge over the two-hour lunch break. In preparation for today’s hearing, his research assistant had assembled a lengthy brief on the subject of court-appointed expert witnesses. Surprisingly, this issue had fairly ancient roots in the legal literature of the English-speaking societies from New South Wales to the British Isles and North America.
His researcher had complained about conventional proprietary legal research programs since they were normally limited to reported cases, statutes, and law-review articles. In the next breath, however, she extolled the virtues of search engines on the Internet, accessible at no direct cost, that produced a great wealth of information from works written on forensics in contested scientific matters that were published and available in technical journals. Now Corrigan felt compelled to review some of the articles that he recalled scanning lightly, and he had only a couple hours to do so. He had to use his laptop to access his email and locate the file that contained the articles of interest to him. He remembered a Starbucks downtown, hastened to his car parked outside the courthouse, and drove directly to the cafe. Another option, which did not occur to him, was to use one of the computers available to the public at the county law library in the basement of the courthouse. Had he done so he could have followed Traci’s original research steps using the appropriate search term and accessed the materials himself.
Corrigan not only found a parking place right in front of Starbucks, once inside, he settled in with a snack, a fresh cup of coffee, and his laptop in a corner of the shop. He managed to access the Internet and found his office files quickly. There it was, the article that had caught his attention in the research memo.
The author developed the background of this issue. Trial lawyers shopping for their favorite opinions to support their clients’ goals tended to produce testimony that stretched and challenged one’s faith in the efficacy of the scientific method. This aggressive function of litigation advocacy stressed the justice system terribly.
The judicial process plays a continuing and vital role in decision making at nearly every level, including actions in courtrooms worldwide as well as countless quasi-judicial proceedings before all sorts of administrative boards and panels. A two-pronged technique of fact-finding and application of legal precedent summed up the process well enough, yet the often unseen nuances of gathering and presenting the data, including technical and legal opinions, generated the warning from cynics that “if you have any respect for sausage or the law, do not involve yourself in the making of either.”
Returning his attention to the article, he noted that it developed in some detail the historical basis for reforms sweeping across those nations with legal systems having their roots in English common and Roman civil law. The author’s focus was the development of procedural rules allowing a trial judge to initiate a process whereby an expert is appointed to assist the judge during trial. The need for impartial forensic experts was becoming acute. An attorney who professionally and ethically represents a client must not permit himself or herself to become judgmental since the fact-finding and issue-determination roles and responsibilities are given to others in the courtroom, that is, the jury and the judge respectively. The attorney must not deliberately confuse the jury or the judge by making or even tolerating erroneous correlations described by experts or give the impression of supporting false or even shaky scientific-causation theories. The litigator must present as full a spectrum of credible forensic expertise beneficial to the client’s cause as will likely appeal to jurors without harming the client’s position in the process. Walking this tightrope requires the litigator to interview and evaluate expert witness candidates with respect to their ability to be convincing yet
experienced and savvy enough not to give the case away on cross-examination.
The jury is the final arbiter of truth or fiction in cases where hard advocacy from lawyers and experts reaches if not stretches the limits. However, the jury typically has no exceptional capability to evaluate the scientific evidence and opinions of experts. The toughest challenges involve cases where even the experts are divided and opposed in their assessments and opinions. In high-stakes cases involving personal freedom, vast wealth, or both, the chances are great that two or more experts may testify on behalf of a single litigant’s position. If there are multiple parties, jurors may be subjected to week after week of complicated testimony from the experts. When the case is ultimately argued and submitted to them, jurors very well may wonder why “all these smart people could not have figured this case out without help from us.” Of course, the experts do not choose the method of decision making in these cases. And the answer may partially lie in the great likelihood that in complex litigation, at least one of the parties is betting on the real possibility of hopeless confusion of the jurors to bolster his position. When confusion reigns, jury decisions usually are arbitrary and followed by miscarriages of justice, at least from the point of view of the loser.
A trial judge who has concern about the effect of well-presented but shaky forensic evidence offered in a case, has some tools available to protect the integrity of the trial while it is still in progress. As Corrigan’s researcher noted in her excellent brief on the subject, trial judges welcome “hired guns” in their courtrooms, provided they are not peddling what is euphemistically called junk science. Most likely, the term rather loosely suggests the result when science and advocacy mix, but science is not the winner, albeit science is inherently its own form of advocacy regardless of the forum where it’s presented.
Where there is a risk that questionable evidence may have been presented but the judge does not possess the expertise to make that determination, help is available through the appointment of an expert to advise the judge. It is a good chance that the judge will not be sufficiently informed to recognize shoddy work by a pseudo expert. When trial counsel become embroiled in contentious arguments about allegedly unsustainable science being offered into evidence and the judge cannot independently make a determination to resolve the issue, a court-appointed expert to advise the judge provides valuable assistance. Judge Crouch had no hesitation to ask for help. She was willing to devote the time and effort needed to ensure that the ends of justice were fully served.
Corrigan was already convinced of Judge Crouch’s superior qualifications to be on the bench and this research memo confirmed his opinion about her legal ability to take charge of her courtroom and the reasons supporting her responsible act of considering such an appointment. He realized the intent of these statutes was to protect the parties from a miscarriage of justice that could be traceable directly to the forgivable yet regrettable lack of scientific sophistication of a trial judge. Judge Crouch was making her courtroom a safe place for justice to be obtained and courageous enough to provide the needed procedural safeguards.
***
If the strain of the case was burdening Judge Crouch, she gave no outward indication as she reclaimed her place on the bench with ease at precisely 1:30 p.m. The same could not be said of the litigators, however. Since there were no jury proceedings yet, the attorneys spent less time strutting around and even seemed to begin to enjoy one another’s company but not to the point of disturbing the proceedings or distressing the judge. She had the ultimate responsibility to keep the case moving along as briskly as possible, and no one complained about her ability to control the courtroom.
“Very well, counsel, any further comments or argument?” the judge asked, warily in her patented tone clearly demonstrating no more comments were really welcome in spite of her solicitation.
Not to be intimidated and in genuine distress over fully representing his client’s interests, Corrigan stood to address the court. “I fully respect the court’s mission and aim to support it. However, I wish to offer some observations for consideration of Your Honor and counsel.”
“Very well, Mr. Corrigan, but kindly consider the virtue of brevity.”
“Yes, Your Honor. Frankly, my concern echoes remarks of Mr. Fineman before the noon recess. And I ask this reflective of my own curiosity. How does the court propose to instruct the jury about the appointment of another expert, should that become the court’s order? And will the court permit the appointed expert to be cross-examined by counsel? As the court knows full well, cross-examination is the principal safeguard for litigants to force the truth to the surface and fully inform the jury.”
“Precisely,” Judge Crouch replied. “It appears you studied over the lunch hour.” Grunts, guffaws, and smiles were exchanged at counsel tables. The clients in attendance, excepting Barnes whose presence was excused because it was not mandatory in this civil motion matter, sat stoically or numbed in the first rows of the spectator section of the courtroom and showed no interest in the light-hearted banter shared by counsel. “Any suggestions on the subject, Mr. Corrigan?”
“My impression,” he responded, “is that the court should instruct jurors during trial that another expert has agreed to appear in this case, once arrangements are made, of course. Jurors could be instructed that the expert is an additional resource for their assistance in resolving the highly technical issues before them, but it does not seem necessary to reveal the procedure that resulted in having another expert appear at trial. I am very concerned that a jury would give greater weight to testimony of a court-appointed expert if that detail were ever to be disclosed.”
Judge Crouch responded, “Well put, Mr. Corrigan. My view at the moment would be to proceed without disclosing the details of the appointment, but at the same time reminding trial counsel of the court’s option to deliver a special instruction to the jury in order to explain what has transpired should any jurors develop curiosity about the loyalty of the court’s expert witness. While you have hinted in so many words, Mr. Corrigan, the court is concerned that the jury would discount the testimony of other forensic experts if it discovered that one of them worked for the judge, so to speak. We will have to be ready for anything that might develop in trial recognizing at the same time it is impossible to fully anticipate all implications in advance of events before they unfold in this unique case. We should conserve our energies.
“The court is ready to issue a ruling. It is grossly apparent that the interests of the parties presenting forensic evidence thus far are being benefited from the conclusions of the particular experts retained by these parties. When one considers this feature, it is not particularly astonishing and certainly not distressing, since parties would not be expected to commit their resources for unexpected or harmful testimony. They certainly would not present testimony detrimental to their client’s cause, deferential always not to violate their ethical duties to this court. Yet this is the essence of the problem. If a party is entitled to retain, or perhaps purchase, expertise that is useful, can the court be certain that all facets of the scientific issues are fully presented for the jury’s consideration and edification? The problem is exacerbated in cases like this one where the resources available to the parties are not distributed equitably. To put the issue in another context, is it fair for less wealthy litigants to have to compete in an arena where experts are so costly that the less wealthy parties cannot hire their own experts? And when the court sees this disparity developing in a case, should not the court act to ensure balance in the presentation of forensic evidence thereby affording as full an exposition of the issues as possible?
“Those of you who have followed these comments must be anticipating the ruling to be rendered shortly. Your premonitions are likely accurate. What is unmistakable in this case is that a litigant with the most to lose and whose very life is at stake in the related criminal case is here in this civil one without adequate resources to protect herself. If a disinter
ested expert retained at the court’s discretion reaches conclusions in line with those of the experts already retained, so be it. If not, the jury will at the very least have benefit of a fuller spectrum of opinion from which to assess the forensic issues. The court’s concern runs to fairness, as mentioned previously, and complete instruction of the jury, for lack of a better term, that I will take a moment to explain.
“The search for the truth in these cases must not be limited to any degree by the resources the parties have at their disposal in order to marshal the presentation of the evidence necessary to ensure that their viewpoints are fully presented and protected. If the court could rely on the notion that each expert and the party that hired him or her were fully dedicated to the principle we call the scientific method, there would be less need for the appointment of an expert to assist the court in this matter. Unfortunately, I do not possess that confidence, in this case at least, since I am fully aware that each forensic expert serves as an advocate for a position that preexisted his or her involvement in this case. Thus, to enhance the potential for fairness of the process over which I have the final responsibility, and to further the goal of bringing even-handed administration of justice to these proceedings, I am appointing an expert to serve the court.”
Most of Corrigan’s vital organs lurched in unison as he absorbed the meaning of Judge Crouch’s not unexpected remarks and ultimate ruling, which as usual revealed her keen intellect and ability to seize the global view of a case. He could not pretend to be surprised. But as a seasoned trial lawyer, he had to be apprehensive over the potential impact on the jury of the testimony of the judge’s expert. If Corrigan’s experts were contradicted by the court’s expert, he and his clients would be off to the races. And would disclosure of the appointment of the third expert by the judge flavor the jury against Corrigan’s position?
(2012) The Court's Expert Page 23