Adam Liptak at the NYT compares expert testimony in the U.S. with other countries. Particularly interesting is the Australian "hot tub" system.
In that procedure, also called concurrent evidence, experts are still chosen by the parties, but they testify together at trial — discussing the case, asking each other questions, responding to inquiries from the judge and the lawyers, finding common ground and sharpening the open issues....
Australian judges have embraced hot tubbing. “You can feel the release of the tension which normally infects the evidence-gathering process,” Justice Peter McClellan of the Land and Environmental Court of New South Wales said in a speech on the practice. “Not confined to answering the question of the advocates,” he added, experts “are able to more effectively respond to the views of the other expert or experts.”
It's an interesting concept, but I'm not sure it would resolve the main problem:
Juries often find it hard to evaluate expert testimony on complex scientific matters, many lawyers say, and they tend to make decisions based on the expert’s demeanor, credentials and ability to present difficult information without condescension. An appealingly folksy expert, lawyers say, can have an outsize effect in a jury trial.
Indeed, demeanor may be worse than irrelevant; it may be counterfactual. The smooth, confident expert who has no doubts and whose theory explains everything with no anomalies and no unanswered questions may be regarded as highly credible by people who know zilch about science. People who really have worked in any scientific field know that the real world is not like that, and people who claim it is are selling snake oil.
One of the many side effects of the downward spiral of American education is the growing number of scientific ignoramuses. Once upon a time, colleges had core curricula such that anyone with a bachelor's degree had taken some courses in science. You can't count on that any more.
Leave a comment