In particular, judges can intervene actively to stop the ad hominem attacks and insults that turn cross-examination into a mockery of the search for justice via the adversarial process. We can expect to see more requirements for written reports from experts, more pretrial screening of proffered testimony, and more judicial control of direct and cross-examination of experts. Judges will feel freer to ask opposing experts to confer with each other prior to trial to ensure an open exchange of relevant data, thereby increasing the reliability of the testimony offered at trial. Occasionally, such an exchange of data, as in conciliation hearings, can result in a pretrial settlement agreeable to all parties. As one way of doing this, in cases requiring complex instructions to the jury, such as insanity-defense cases, a judge may ask the opposing attorneys to prepare the instructions they would want the judge to give, which the judge will then synthesize.
Forensic psychiatrists can provide invaluable assistance in framing such proposed instructions.
Moreover, empirical research on how judges and juries make decisions in cases where complex scientific evidence is presented opens the way for further refining and enhancing the pursuit of justice. Not surprisingly, some of the initial studies have been conducted by forensic psychiatrists looking at how judges process psychiatric testimony and other scientific evidence. Permission is granted by Dr. Bursztajn to reprint this article in its entirety, including this copyright notice and the by-line, for educational purposes only. Expressed written consent from Dr. Bursztajn must be obtained before reproduction of this article for any other purpose.