June 11, 2007

Teaching the judges

It might be instructive to those who provide expert witness testimony about language and linguistics to consider the current approach of psychologists who serve as expert witnesses in cases involving eyewitness identification. The June issue of the APA's Monitor on Psychology describes psychology's new thrust to educate judges about such variables as lighting, viewing distance, and the way law enforcement conducts lineups, including the way officers' questions suggest answers.

Judges are the gatekeepers for what happens before and during trials. Part of this gate keeping is to make decisions about whether or not proposed expert witnesses will be permitted to testify. It's a tough job because, in addition to their knowledge of law and the intracacies of a given case, judges have to learn enough about medicine, engineering, psychology, social science, linguistics, and other specializations to enable them to decide whether expert testimony will assist jurors as they decide the cases. Pychology Professor Richard Wise puts it this way:

"The type of legal and judicial training and experience that judges have is not very helpful for them in understanding eyewitness testimony."

Once psychologists succeed in getting their testimony admitted, they then have to present their specialized knowledge to jurors, which is often difficult. But the focus  of the Monitor article is primarily about getting past the judge, never easy. Psychology Professor Gary Wells points out that many judges argue that eyewitness information is "within the juror's realm of common knowledge." Judges put the same hurdles before linguists who testify about language issues, especially in criminal trials. If eye witness information is "common knowledge," how much more do judges believe that jurors have "common knowledge" about the way language works?

Judges also frequently invoke the mantra that the proposed testimony would usurp the function of the jury. Opposing lawyers can be expected to say this during hearings about offers of proof and judges seem to rely on it a lot too. But what is this dreaded usurpation? If the experts propose to reach the ultimate issues in a trial, those of determining guilt or innocense, the accusation is absolutely correct. They should never do this. But experienced experts know how to stay away from such testimony. The proper thing to communicate to jurors is important information about the issue that they would not normally be expected to have -- like factors of lighting, viewing distances, law enforcement's suggestive interview questions, and other things that psychologists provide about eyewitness testimony. Experienced linguistics experts exert the same caution, providing the jury with information about the language in evidence -- like  the accuracy of transcripts, the identification and resolution of ambiguity, the difference in frames of reference, the potential meanings conveyed, the grammatical scope of negatives, and many other things that jurors don't normally know about.

Another common reason judges use to exclude expert witness testimony is that the attorney could communicate the same information without using the expert at all. The fact that trial lawyers are not trained in the specialized fields of psychology or linguistics seems to go right by such judges. The "common knowlege" argument seems to be here as well.

My favorite judicial objection to experts, however, is that the proposed testimony would go beyond the scope of the claimed expertise. It's hard to know what this really means. It could be another recital about possible usurpation of the juror's function. If not this, it would seem to convey that the judges know enough about psychology and linguistics to enable them to measure the points at which these experts step out of their own fields and into forbidden areas. Again, experienced experts know not to do this, but if they should happen to venture beyond their own fields, competent opposing lawyers will be the first to try to point this out as a way of discrediting the testimony.

Whatever the reasons for excluding experts, the Monitor article seems to be right about one thing -- that the next step  for fields that contribute to the resolution of law cases is to better educate judges about what these fields can and can't do to assist jurors as they decide the cases. The past focus has been on educating jurors. Now maybe it's time to help judges understand what we have to offer law.

Posted by Roger Shuy at June 11, 2007 02:04 PM