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Sunday, August 17, 2008

In U.S., Expert Witnesses Are Partisan

12experts_graphic_190 Judge Denver D. Dillard was trying to decide whether a slow-witted Iowa man accused of acting as a drug mule was competent to stand trial. But the conclusions of the two psychologists who gave expert testimony in the case, Judge Dillard said, were “polar opposites.”

One expert, who had been testifying for defendants for 20 years, said the accused, Timothy M. Wilkins, was mentally retarded, had a verbal I.Q. of 58 and did not understand the proceedings.

The prosecution expert, who had testified for the state more than 200 times, said that Mr. Wilkins’s verbal I.Q. was 88, far above the usual cutoffs for mental retardation, and that he was competent to stand trial.

Judge Dillard, of the Johnson County District Court in Iowa City, did what American judges and juries often do after hearing from dueling experts: he threw up his hands. The two experts were biased in favor of the parties who employed them, the judge said, and they had given predictable testimony.

“The two sides have canceled each other out,” the judge wrote in 2005, refusing either expert’s conclusion and complaining that “no funding mechanism” existed for him to appoint an expert.

In most of the rest of the world, expert witnesses are selected by judges and are meant to be neutral and independent. Many foreign lawyers have long questioned the American practice of allowing the parties to present testimony from experts they have chosen and paid.

The European judge who visits the United States experiences “something bordering on disbelief when he discovers that we extend the sphere of partisan control to the selection and preparation of experts,” John H. Langbein, a law professor at Yale, wrote in a classic article in The University of Chicago Law Review more than 20 years ago. [Mark Godsey]

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