Tuesday, April 12, 2005

Junk Prosecution Expert Testimony


Over on The Volokh Conspiracy, David Bernstein addresses a Georgia law which creates substantially higher standards for the admission of expert testimony in civil cases than in criminal. Some people might have the knee-jerk reaction that this somehow favors the defense, but in fact it is about permitting prosecutors to present junk "expert" testimony at trial - whether from unqualified lab techs they can present as "experts" or from people like the anthropologist Bernstein describes - "who claimed the unique ability to determine all sorts of specific information about a suspect from a shoeprint - who just "make stuff up."

In terms of the imbalance between the prosecution and defense, Bernstein writes,
Indeed, it seems that in many cases involving egregious expert testimony, overburdened and under-resourced public defenders don't even bother (or know enough) to challenge prosecution experts.
The problem, though, is both different and worse than that. I recall trying a criminal case and objecting to a prosecution "expert", who had no real qualification on the subject matter of his supposed area of expertise. The trial judge had no patience for my objection - the expert had been permitted to testify as an expert in other cases, and that was good enough for the judge. How do you overcome that type of judicial incompetence? (And believe me, the prosecutor very much took advantage of the judge's "once an expert, always an expert" standard for admitting expert testimony.)

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