Wednesday, July 13, 2005

The Balance of Anglo-American Trade

As various news outlets are reporting, a British review board has found that Sir Roy Meadow gave false and misleading evidence on "cot death" in at least one homicide case.

The BBC has seized the occasion to run a feature on what the future holds for expert testimony in the English courts. To read the views of the commentators quoted in the BBC piece is an almost quaint exercise -- as though one were listening to an entire nation's first halting attempts to come to intellectual grips with a set of problems that its citizens had been too congenitally naive, until Sir Meadow came along, even to imagine (and whose full dimensions the English may still be too gentlemanly to comprehend).

The BBC piece advises us, for example, that in England, experts can earn a substantial income. This reportedly contributes to the problem of the hired gun -- experts who are ostensibly there to serve the court, but who are ultimately subsidized by solicitors who may pressure them to take particular positions.

Only in England, we suspect, could such revelations count as news. There is also this little nugget, reflecting an outlook that many observers of the American debate on expert testimony would probably find peculiar:
"In court, the expert is the only witness called to give opinion, rather than facts. And that opinion is on science, which changes, whereas the law seeks certainty."
Various proposed reforms are discussed, including accreditation, a corroboration requirement, and instructing jurors that expert testimony should not be accepted uncritically. One reform proposal, however, goes wholly unmentioned: any suggestion that the English judicial system adopt Daubert.


Simon Spero writes ...


In your recent article you note a present lack of discussion of the possibility of introducting the rule of Daubert Rule into the English courts.

The reason for this absence arises from the nature of the rule itself. Shorn of it's strictly colonial aspects, the rule of Daubert permits the introduction of any expert testimony that "[...] can be delivered with a straight face twice in a row".

Regrettably, the nature of the British personality may present such a rule with insurmountable difficulties in implementation.

5:13 PM  

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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.