Justice by Witnesses-for-Hire
THE trial of William Kennedy Smith gave us a televised glimpse of how American justice is increasingly influenced by the participation of paid expert witnesses in criminal and civil trials.
A plant expert produced by the prosecution testified that plant material found in a garment of the alleged rape victim corroborated her account of where the incident occurred. The defense called an architect to show that if the woman had screamed as she claimed, she would have been heard by people inside the house.
The use of an expert's opinion to impair or bolster the credibility of a witness is an indispensable tactic of the modern trial lawyer. The need for these experts has inspired a national marketplace for the buying and selling of expert opinions.
Many of these expert witnesses-for-hire exhibit a chameleon-like ability to adapt their opinions to satisfy the needs of their employers. The misuse of paid expert witnesses to create or dispel reasonable doubt in a criminal case or to fix liability and damages in a civil case has become a scandal in American courts.
The marketing of expert-witness testimony is a lucrative source of income for the experts who revolve in and out of the nation's courthouses and the corporations that promote expert witnesses to lawyers.
What began as small consulting firms to peddle expert opinions to lawyers has evolved into big business. Organizations dedicated to finding and delivering an expert to render sympathetic opinions pitch their experts to lawyers with glossy brochures, direct mail advertisements, and toll-free numbers.
Finding the right expert witness can mean the difference between triumph and failure in the all-or-nothing world of jury verdicts. A psychiatrist is used to hang a jury by creating reasonable doubt about the defendant's state of mind; an expert in accident reconstruction disputes an eye-witness account over the cause of a traffic fatality.
What is the source of the expert's formidable leverage over the administration of justice? It is the expert's right to express opinions. Unlike facts, opinions are not "stubborn things," and are easily cultivated and adapted by experts to the legal terrain.
A citizen who witnesses a crime may testify only to the facts he personally observed and may not express opinions, especially about what he couldn't see or hear. The expert witness is free to express subjective opinions about issues crucial to the outcome of the case.
IN some parts of the nation, the buying and selling of expert opinions for use in medical-malpractice cases has dropped any semblance of objectivity and has taken on the characteristics of a racket. Lawyers who represent one side or the other in criminal and civil litigation have assembled their own stable of experts to render sympathetic opinions on call.
A balance of dissembling exists and is accepted as a fact of contemporary legal life. In Maryland and the District of Columbia, for example, one group of orthopedic experts is employed to render opinions on behalf of injured persons and another group is employed to rebuke those opinions.
The legal community has a special responsibility for curbing practices that undermine public confidence in the administration of justice. The American Bar Association should impanel a task force to collect evidence of abuses in the expert-for-hire traffic and recommend methods for eliminating these practices.
The Lawyers Code of Professional Responsibility should enjoin attorneys from establishing ongoing financial relationships with experts that may influence the expert's opinion or give the appearance of impropriety.
Federal and state rules regulating expert testimony should require each expert witness to provide before trial a history of his previous employment and compensation as an expert witness.
When I was a law student, a cartoon from the New Yorker magazine was passed around in the law library. The scene is a law office. A meek little man fidgeted uncomfortably in an oversized leather chair. Across from him sits a portly lawyer patting his vest. The lawyer asks imperiously, "And tell me, sir, how much justice can you afford?"
The abuses in the trade of expert testimony-for-hire give new meaning to an old criticism. What we once brushed aside as a humorous jab at the American justice system is no longer a laughing matter.