Experts Shouldn’t Be Advocates : Trials: Existing law allows judges to appoint independent experts, saving time and money.

If trials have anything to do with the search for truth, the increasing use of expert witnesses in court does little to further that search. The expense and cumbersomeness of trials can be blamed to a great extent on this practice. In the past, one witness was sufficient to state who had the green light in a simple auto accident case. Now, an accident reconstruction expert often is used to sway the jury toward one side or the other.

In criminal cases, the fees for both sides’ expert witnesses generally are paid by taxpayers. The public pays for the time spent by the deputy district attorneys and deputy public defenders in preparing their experts as well as for the time spent by the experts themselves for preparation and testimony.

Judges should consider using court appointed experts. Such witnesses could report directly to the court on trial issues framed by the attorneys and the judge. However, the attorneys would be prohibited from contacting, and thus influencing, the expert. The expert would be free from having to consider which side was paying for the services rendered. The jury could then hear from at least one expert in the field who was not acting as an advocate.

We already have a statute that allows judges to appoint independent experts. However, when judges suggest court appointed experts as an option, most attorneys recoil in horror. They do not want to take the chance of a truly neutral opinion given by someone who did not have some kind of a stake in the outcome. They fear the only expert testimony that will be considered by the jury will be from the neutral expert.

If more judges were to utilize the powers they already have by designating experts on particular issues, panels of truly independent, non-biased experts in various fields could be developed. Then, we could consider exploring the option of whether there would be any constitutional prohibition to having juries hear only from the court-appointed experts and prohibiting party-designated experts altogether. Perhaps we could then say goodby to hired guns.