Saturday, November 15, 2003

Expert Bias and Fair Trials

Imagine a woman professor who brings a Title VII suit against a university, alleging that it systematically pays women faculty, including her, less than it pays men. Imagine further that the university offers an expert who opines, based on statistical analysis, that the woman professor's salary falls in the same general range as the salary levels paid to male faculty with comparable experience and publication records. Imagine, finally, that the professor seeks to exclude this testimony as unreliable, on two grounds. First, the expert's colleagues say that although a capable statistician, he has a history of careless work. But second and more important, they say he also has a history of making wildly derogatory remarks about women in academia, frequently using vulgar and offensive terms to refer to them. Is this proper grist for a Daubert motion? If not, is it proper material for cross-examination?

Not idle questions. As it happens, we must correct two errors in an earlier post about the government's DNA expert in the DC Sniper trial of John Muhammad.

First, we identified the prosecution witness, Edward C. Bender, as an FBI forensic expert. He actually transferred to ATF in 1990, after eleven years at the FBI.

Our second and bigger error was in calling his testimony uneventful. That assessment turns out to have been premature at best. CNN is now reporting on allegations that back in his FBI days, Bender sometimes did sloppy work and engaged in frequent racist harangues, referring to African Americans as "niggers" and "jungle bunnies." A 1997 report of the FBI Laboratory's Inspector General's Office concluded that investigation into these allegations should have been pursued further.

John Muhammad is African-American. The allegations about Bender were not included in the prosecution's Brady disclosures. The Virginia prosecutors handling Muhammad's trial say they weren't aware of them.

The thinking here, and in most of the reported appellate decisions, is that allegations of bias should not generally constitute grounds for exclusion of expert testimony under Daubert and Kumho Tire. The admissibility of expert opinion, these days, is supposed to depend on whether the testimony can be defended as methodologically sound -- an issue to which the expert's testimonial motivations are not directly pertinent.

But the thinking here is also that government forensic labs should fire personnel with a known and intractable penchant for racist speechifying. If the O.J. Simpson trial taught no other lesson, it taught that such a history severely impairs the utility of prosecution witnesses, because once disclosed, such a history is indeed fair game for cross. That impairment, by itself, should suffice to meet First Amendment concerns about discharging such personnel, liberating their governmental employers to do the right thing, after affording such Process as may be Due.

Update: It would probably wrong, however, to administer this test.
Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.