A funny thing happened in the court the other day. I notified my adversaries I intended to call an expert or two. The other side asked for a hearing to challenge the witnesses. They claimed the testimony would be little more than junk science.
Trial courts have a responsibility to determine whether expert testimony is reliable before admitting it into evidence. This so-called gatekeeping function has been mandated by both the federal and state supreme courts.
So I put the expert on the stand. She described the new book she had written on the topic. She described her education and credentials. She described the peer review literature supporting her conclusions. She described the research she and others are conducting. She described having testified in courts in other states. She described previously having been qualified as an expert. She even brought a chapter from her new book on how and why her field of expertise could and should withstand court challenges. Then she opined about the general contours of the topic of her expertise.
When the other side stood up to cross-examine her, there was no doubt in my mind that she had satisfied the requirements for testifying as an expert. I watched my adversary pick meaningless semantic fights with a sense of weariness. When the other side sought to put on an expert of its own, a man who had written a chapter in a book my expert had edited, I stood to object.
“You’ve heard enough to decide the qualifications of this witness, judge. Putting on an expert to say there is no such thing as expertise in this area really makes no sense. Your gatekeeping function has been satisfied. This new witness goes to the weight, not the admissibility, of my expert’s testimony,” I said.
The trial court agreed. We commenced evidence in a non-jury proceeding. The other side’s expert was sent home without testifying. It was a good day in court for my side. By the time I got back to my office that day, I’d received a few calls from other lawyers who heard about the day’s events. Word traveled fast.
Imagine my surprise the next day when the judge told us he was no longer so sure about his ruling. He wanted to hear from the other side’s expert after all. We’d need to adjourn the proceedings until the out-of-state expert could be summoned back, and the schedule of all five lawyers in the case could be coordinated.
I’ve seen a lot in court over the years. That was a first. But things happen in court; you roll with the punches. My record in this case is a good one. The foundation for this witness’s testimony is far better than any I’ve seen laid for experts testifying about delayed or incremental disclosure by child abuse victims in criminal cases. I’ve never succeeded in keeping such an expert off the stand in an evidentiary hearing when my clients face long prison terms.
But then came a second surprise. A friend called. At a judicial training class, word had traveled that my judge had ruled to permit my expert to testify. Folks were talking about it at the training seminar. According to the report I received, the judges were surprised I had succeeded.
I am not sure what to make of that. None of these judges heard the evidentiary hearing. Why is this pending case a topic of conversation?
You must be wondering by now what my expert testified about, so let me tell you: parental alienation syndrome. It is a body of research that seeks to explain why some children turn on parents who have neither abused nor neglected them. It is a topic that guardians ad litem and attorneys for minor children are taught about at the mandatory training they receive from the state Judicial Branch.
I represent a father claiming his ex-wife undermined his relationship with their children. The mother contends otherwise. My expert wants to shed light about what happens behind closed doors to turn children against non-custodial parents. I am trying to explain the counter-intuitive behavior of the children, the very thing the state does when it offers experts about child behavior in cases alleging sex abuse.
I am not in criminal court pleading my case to a jury. I am in family court. There is no jury. Just a judge. Judges are, we say, disciplined fact-finders. Just why we have hearings to determine whether expert testimony is permitted in non-jury proceedings is not at all obvious to me: the same judge who hears the evidentiary challenge hears all the other evidence in the case.
I don’t often appear in the family courts. I do not share the expectations of the clubby bar that dominates dockets. But I do know a few things about the rules of evidence and what it takes to get an expert on the stand. The trial judge did not err when he permitted my expert on alienation to testify. The record is clear. If parental alienation syndrome testimony is inadmissible, then so, too, should be the testimony of those who say they know the minds of children who claim to have been abused sexually.
Boutique justice wears me out. There ought to be one set of rules and principles governing our courts. But there isn’t. Sometimes justice and politics are bedfellows. •