6
The Ethics of Expert Testimony

“. . . in thinking about an ethical framework, we may do well to transfer our attention from an individual-focused system that sees the problem as how to hold individuals to proper standards of behavior, to thinking instead [of] what kind of communal behavior is it for which we’re trying to develop norms.”

—Sheila Jasanoff

At first glance, it would seem that expert testimony should first of all adhere to a code of traditional ethics: thou shalt tell the truth, thou shalt not be intentionally inaccurate, and so on. It would also seem that the courts must enforce a standard of proper decorum and civil treatment of witnesses.

HOW TO TELL THE SCIENTIFIC TRUTH

Workshop participants struggled over the ethical questions of disclosure and scientific truthfulness. How does one define, enforce, and interpret full scientific disclosure? It is only possible to “tell the truth,” after all, if there is general agreement about the definition of that truth. One participant said, half-jokingly, that “experts rarely tell the truth and certainly not the whole truth.”

Beneath the humor lies a genuine difficulty, part of which stems from the courtroom atmosphere itself. In the pressure of the courtroom envi-ronment, said a scientist, experts are often tempted to give definitive



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The Age of Expert Testimony: Science in the Courtroom - Report of a Workshop 6 The Ethics of Expert Testimony “. . . in thinking about an ethical framework, we may do well to transfer our attention from an individual-focused system that sees the problem as how to hold individuals to proper standards of behavior, to thinking instead [of] what kind of communal behavior is it for which we’re trying to develop norms.” —Sheila Jasanoff At first glance, it would seem that expert testimony should first of all adhere to a code of traditional ethics: thou shalt tell the truth, thou shalt not be intentionally inaccurate, and so on. It would also seem that the courts must enforce a standard of proper decorum and civil treatment of witnesses. HOW TO TELL THE SCIENTIFIC TRUTH Workshop participants struggled over the ethical questions of disclosure and scientific truthfulness. How does one define, enforce, and interpret full scientific disclosure? It is only possible to “tell the truth,” after all, if there is general agreement about the definition of that truth. One participant said, half-jokingly, that “experts rarely tell the truth and certainly not the whole truth.” Beneath the humor lies a genuine difficulty, part of which stems from the courtroom atmosphere itself. In the pressure of the courtroom envi-ronment, said a scientist, experts are often tempted to give definitive

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The Age of Expert Testimony: Science in the Courtroom - Report of a Workshop answers where qualified ones would better fit the data. Another scientist said that experts may—perhaps unintentionally—neglect disconfirming data or the existence of other reasonable schools of thought. A legal scholar added that they also may exaggerate the significance of their own inferences and even forget, as a brief for Daubert reminds us, “that in science accepted ‘truth’ is not a constant: that it evolves, either gradually or discontinuously.”19 One participant commented, “We all want in the legal system increased transparency about the way in which expert knowledge is produced, and a transparency that lets us get at right-wrong issues behind the practices and the testimony of experts.” At the moment, he added, “we’re in the early days of doing this kind of work and understanding the communal standards to which either the science side or the law side ought to subscribe.” One benefit of disclosure is that it creates a historical record about the provenance of research. With a “population” of studies about a given theme, one can see any association between the funding of the research and the outcome. One can also compare the outcomes of clinical trials that are funded by industry with trials that are funded by government.20 THE MYTH OF VALUE-FREE SCIENCE Another central question concerns the objectivity of science itself. A lawyer reinforced the argument that the evidence of scientists is not “value-free”: the testimony of a scientist may or may not be consistent with those of the legal system. When judges and attorneys uncritically accept the validity of an established scientific paradigm, he said, they make the same mistake as uncritical scientists. AN ASYMMETRY OF DISCLOSURE REQUIREMENTS A scientist raised the point of “asymmetry” in disclosure. That is, the expert witness has to disclose everything about which he or she is asked. Attorneys, on the other hand, can hire consultants, receive a report, and then decide whether and how to use the data collected in the report. Such data are said to be protected by the work product doctrine and therefore not discoverable by the opposing party. “This is natural to the adversary system,” said a public-interest lawyer, “but I think it leads to less credibility.” 19   Amici curiae, Bloembergen et al., 18. 20   The issues of sponsorship and design and control of research studies and outcomes is discussed in Chapter 7.

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The Age of Expert Testimony: Science in the Courtroom - Report of a Workshop A CALL FOR GREATER TRANSPARENCY Despite general agreement on the need for more transparency of expert information, including knowledge of all available information that bears on a question, most participants seemed reluctant to move toward formal standards for expert testimony so as not to unduly restrict the process of truth-seeking. On the other hand, a medical researcher said that the growth of specific standards for behavior in other well-specified situations had helped. He said that the field of medical research was better off for having set reasonable rules governing disclosure of conflict of interest, protection of human subjects, authorship, and research integrity, and that similar standards might be useful in the courtroom. SOME FAILINGS OF EXPERT WITNESSES A psychologist offered a critique of expert witnesses in his own field of psychology. Among the failings he found were: The use of psychological tests that had not been validated for the purpose at hand; Doctrinaire commitment to preconceived ideas; Forming initial impressions too quickly and failing to change these impressions in the face of new evidence. “Court-appointed experts,” he concluded, “as well as hired guns, may possess their own biases and foibles.”21 A social scientist added to this comment by saying that the fault may be “much more systemic.” She advocated a broader approach to ethics that takes full account of all the forces affecting the court system. “We can’t limit ethical thinking to the behavior of particular expert witnesses in the courtroom,” she said. “Although that’s a place important to focus on, it should not be the only place.” 21   The opposing side can play a role in correcting these failures through competent cross-examination.