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Fed. R. Evid. 702. Rule 702 stated: “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” An amendment to the rule adds the following clause: “if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the case.” There are several other rules that a trial judge may use to evaluate expert testimony. Rule 401 helps to determine if evidence is relevant: “‘relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”Google Scholar

Fed. R. Evid. 401. Rule 403 provides for a balancing test: “although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”Google Scholar

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In General Electric Corp. v. Joiner, the court additionally noted that although trained experts may extrapolate from data, a court is not required to admit expert testimony that is connected to existing data only by the ipse dixit of the expert A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered. General Electric Corp. v. Joiner, 522 U.S. 136, at 146 (1997).Google Scholar

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Wendland v. Wendland, 28 P.3d 151 (Cal. 2001). The case was eventually appealed to the California Supreme Court, which held that a conservator may not withhold artificial nutrition and hydration from such a person absent clear and convincing evidence that the conservator's decision is in accordance with either the conservatee's own wishes or his best interests.Google Scholar

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It is worth noting that, although Judge Bechtle was highly critical of this bioethics testimony, he did not rely on the distinction between normative, metaethical, and descriptive ethics testimony — a distinction that is often discussed in bioethics, but has never been used by judges. The limitations of this distinction are discussed in Spielman, Agich, , supra note 1.Google Scholar

A recent helpful discussion of normative expertise is included in Risinger, D.M., “Preliminary Thoughts on a Functional Taxonomy of Expertise for the Post-Kumho Word,” Seton Hall Law Review, 31 (2000): 508–37, at 526–29.Google Scholar

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The most well known example is the American Psychiatric Association's 1995 expulsion of Dr. James Grigson from membership “for indicating, while testifying in court as an expert witness, that he could predict with 100 [percent] certainty that the individuals would engage in future violent acts. Shuman, D.W. Greenberg, S.A., “The Role of Ethical Norms in the Admissibility of Expert Testimony,” Judges' Journal, 37 (1998): 5–9, at 6, citing American Psychiatric Association, News Release No. 95-25, July 20, 1995.Google Scholar

See also Wagner v. Georgetown University Medical Center, 768 A.2d 546 (D.C. Ct. of App. 2001) (member of American Association of Neurological Surgery censured for unethical practices in the giving of expert testimony);Google Scholar

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The term ‘specialized’ seems to have been used by Dr.Lejeune, entirely differently than other witnesses and this seems to have confused the judge. Lejeune says ‘specialized’ means unique, the other witnesses used ‘specialized’ to mean specific.”). At about the same time, ethics testimony in Scheer v. Entel Radiological Associates, a dispute concerning a physician's contract was criticized at a national bioethics meeting.Google Scholar

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George, R.P., “‘Shameless Acts’ Revisited: Some Questions for Martha Nussbaum,” Academic Questions, 9 (1995–1996): 24–42. Subsequent to an ethicist's testimony in Evans, fellow scholars described the testimony as irresponsible and dishonest. The expert in Romer v. Evans was accused by fellow scholars of misrepresentations, distortions, deceptions, and of making false representations about the positions of ancient Greek philosophers as well as contemporary commentators on Greek philosophy and public morality. She was also accused of misrepresenting her own published work, attempting to pass off a superseded work as authoritative, and dissembling about the scholarly credentials of a professor whose work one of the other experts had relied upon.Google Scholar

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Chesler and Kalmuss asked experts, “Have you had any disagreements with or criticisms from professional colleagues about the propriety or wisdom of testifying?” and “Has testifying had any effect on your professional career, positive or negative?” Chesler defined professional conflict as follows: “Professional conflict arises from the expectation or experience of negative professional consequences associated with one's party affiliation. Material consequences may include nonpromotion and reduced employment, funding, or publishing opportunities. Status consequences include negative labels associated with one's party affiliation and diminished prestige within the professional community.”Google Scholar

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Professor Rosalind Rosenberg testified on behalf of Sears, Roebuck and Co., the defendant in an employment discrimination case, that the relatively smaller percentage of women in higher-paying, high ticket, commissions sales jobs might be explained by male and female differences in job preference. Equal Employment Opportunity Commission v. Sears, Roebuck and Co., 628 F. Supp. 1264 (1986). This testimony precipitated strong negative reaction among feminist historians, including the following: “Most people are quite appalled that Rosalind Rosenberg put her skills in the service of a company when we mostly identify with the position of women workers and the Women's Movement. Some people think she was misguided that she made a mistake. Others think it was more than that, that she was stupid or evil. Personally, I can't believe anyone could be so stupi I'm more inclined to believe she was defending a class interest as she understood it.” Sternhell, C., “Life in the Mainstream: What Happens When Feminists Turn up on Both Sides of the Courtroom?” Ms., 15 (July 1986): 48–57, at 49.Google Scholar

For example, social psychologists who questioned the value of testimony about eyewitness identifications in criminal cases were sharply criticized at first. Elizabeth Loftus, a well recognized psychologist, wrote in response to an article critical of expert eyewitness identification testimony: “At the same time that psychologists are reading the McCloskey and Egeth articles that are so deeply critical of experimental psychologists offering testimony as an interesting intellectual exercise, prosecuting attorneys across the land are using them for an entirely different purpose: Judges are being told that the articles are proof that the psychological testimony does not even pass the ‘Frye test…. Even as we speak, prosecutors are using the McCloskey and Egeth articles to argue that there is no general acceptance in the field. Loftus, E., “Whose Shadow is Crooked?” American Psychologist, 38 (1983): 576–577, at 576.Google Scholar

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