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The right to a trial by jury is guaranteed in the Bill of Rights.  In fact, this right was so important it was debated by the founding fathers in the Federalist Papers, was mentioned in the Declaration of Independence and made the judicial “top ten list” as the 7th Amendment to the US Constitution.  Ok – so why?  What does a jury do and why is it so important?

Right to Trial by Jury

The simple answer is that the jury hears the evidence in the case and then, tells the judge and lawyers what the facts are.  The thought has always been that humans do a good job of judging character, seeing the nonverbal demeanor of a witness, and are simply in the best spot to tell when someone is lying and what’s really going on.  The law is pretty simple, once we know the facts we can apply the law and determine an outcome.  The complicated part is all the different paths the facts can take.

So what happens when the facts require expert analysis – for example – what should the cardio thoracic surgeon have done during surgery?  That question is not one that most jurors can answer like – should you stop at a red light or not?  Complicated questions require experts to assist the jury.

The problem with experts is – who is an expert and how can we be sure they know what they are talking about?  In any case, each side will “hire” an expert witness to tell the jury what a “reasonable” doctor, engineer, rocket scientist, drug manufacturer, [fill in the blank] would have and should have done in any particular situation.  But they are hired so how can we trust them?

Determining Who Is An Expert

The rules of evidence, both federal and at the state level generally contain a rule that reads as follows:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

It’s up to the trial court judge to apply this rule to the “expert” to make sure they are qualified before presenting evidence to the jury. This gate keeping function is outlined in the case (Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir. 1995) The problem is, trial judges seem loathe to actually stop someone from testifying as an expert.  The court is supposed to look at the person’s qualifications, either their education and training or (and maybe also) their experience to see if they really know what they are talking about.  Next, the court needs to see how it is these experts do their work.  Finally, the court should confirm that this expert followed the normal procedures in coming up with their opinion.  If it does not meet all three of these, the testimony should never make it front of a jury.

For example, let’s say there is an accident reconstruction expert.  This person has been through schooling – has a degree in physics, been training with he police department and done the job for 30 years.  Clearly, this person would be considered an expert in accident reconstruction.  BUT – what if they are testifying that had the driver worn a seat belt there would be no injuries?  That sort of opinion would require someone skilled in biomechanics, anatomy and physiology and force studies (how much force does it take to bruise the average arm?).   Unfortunately, most courts would allow the accident reconstructionist to testify about the injury – the courts seem to think that the lawyers can just make the argument to the jury that they should ignore the testimony.

In my experience, this is a bad move for justice – experts are slick, present well and can confuse the jury.  Judges need to do their gate keeping function and kick out unqualified experts or unqualified opinions.  The rules require it, and the rules should be enforced.

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