Saturday, March 18, 2006

Still More on Expert Sequestration

In response to our 3/16/06 post on witness sequestration, C.E. Petit has pointed out that sequestration protects not only against witnesses' adjusting their testimony in light of other evidence, but also against their doing so in response to extra-evidentiary courtroom developments (rulings on motions in limine, arguments at sidebar, etc.).

We agree that there's room for mischief here. Because they are giving opinion evidence, and because their testimony is not tethered to facts within their personal knowledge, experts work within looser limits on testimonial scope. It may sometimes be tempting, therefore, for counsel to use them as vehicles for interjecting extra-evidentiary information that could not otherwise be presented for the jury's consideration. And obviously an expert with a wish to be accommodating can derive substantial guidance just by listening to opening arguments.

But we think there are remedies for these problems short of total sequestration. If a court has ruled that some factual issue may not be drawn to the jury's attention, the judge can direct counsel to pass that ruling along to the expert witnesses. Similar steps can be taken for colloquy at sidebar. And maybe it makes sense to sequester witnesses during argument.

Some distinction could also be drawn, perhaps, between major trials in big cases and shorter trials in smaller ones (and/or between civil actions and criminal trials). In major civil litigation (or in a major criminal case, we suppose), the parties' presentations are likelier to have been carefully stage-managed in advance, so that fewer secrets remain to be kept from the witnesses, and the advantages to be gained from expert sequestration may be attenuated at best. In a shorter, more routine trial, the participants (e.g., assistant d.a.'s, public defenders, forensic witnesses) may all lead lives that are too busy to allow for extensive pretrial coordination, and sequestration might stand a better chance of accomplishing something.

On the whole, though, we remain skeptical that much is generally gained from sequesterring experts. Indeed, there are so many ways to circumvent sequestration that in the typical case, sequestration may amount to nothing more than a pretense -- one which may actually mislead the trier of fact. Sequestration may also afford an unfair advantage to litigants whose counsel and experts are willing to engage in gamesmanship, at the expense of litigants whose counsel and experts play strictly by the rules. How much would really be lost, if the experts went unsequestered, and if the jury simply took that fact into account in its assessments of credibility? Might something not meanwhile be gained, in the quality of the expert testimony?


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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.