Court-Appointed Scientific Expert Witnesses: Unfettering Expertise

s the central elements from the "true" or classical professions of law, medicine, and the clergy. 3 4 These classic professionals were the "learned," who studied and passed along theoretical knowledge. 3 5 Because they were "learned", they were given autonomy. 36 With the explosive growth in both the number and importance of scientific pursuits, a new group of the "learned" has developedscientists, engineers, and others. These "experts" share certain characteristics with the classic professionals: they learn a body of theoretical knowledge; they are given autonomy; and hierarchical organizations have grown up about their practice which similarly include barriers to entry into that pursuit. However, the classic professional elements of calling and service orientation have disappeared in most cases. Thus, my model of a scientific expert incorporates the components of a 29. See infra notes 54-56 and accompanying text (explaining intuitive understanding). 30. The Dreyfus brothers' controversial model of human reasoning dovetails with this Comment's view of expertise in many significant ways. H.L. DREYFUS & S.E. DREYFUS, MIND OVER MACHINE, THE POWER OF HUMAN INTUITION AND EXPERTISE IN THE ERA OF THE COMPUTER (1986). This theory, which attacks the notion that intelligent human reasoning can be duplicated, contradicts the model of human reasoning accepted by some designers of expert systems, who view this process as being duplicable by an expert system. See, e.g., F. Hayes-Roth, D.A. Waterman & D.B. Lenat, An Overview of Expert Systems, in BUILDING EXPERT SYSTEMS 3, 12-13 (F. Hayes-Roth, D. A. Waterman & Lenat, eds. 1983) [hereinafter BUILDING EXPERT SYSTEMS]; R.J. Brachman, S. Amarel, C. Engelman, R.S. Engelmore, E.A. Feigenbaum & D.E. Wilkins, What Are Expert Systems? 31, 41-45 in BUILDING EXPERT SYSTEMS; Applications-Oriented AI Research: Science, 80-81 in II THE HANDBOOK ON ARTIFICIAL INTELLIGENCE (A. Barr & E.A. Feigenbaum, eds. 1982); see also Debessonet & Cross, An Artificial Intelligence Application in the Law: CCLIPS, A Computer Program that Processes Legal Information, 1 HIGH TECH. L.J. 329, 329-30 (1986). 31. See generally W.E. MOORE, supra note 27 (focusing on the classical professions); T.J. JOHNSON, PROFESSIONS AND POWER (1972) (focusing on the power dynamic of professions). 32. See, e.g., W.E. MOORE, supra note 27, at 4-5 (1970). 33. Id. at 5-6. 34. This approach, which uses profession "trait" or specific "function" analyses, has been criticized as ignoring the power asserted by the professions and the historical conditions which produced them. T.J. JOHNSON, supra note 31, at 37-38. While I appreciate Johnson's point, I do not find his analysis useful in the context in which I wish to discuss professionalism. Because of my focus on discretion, a functional analysis is most useful, because we can see what happens when outside forces, such as methods of examining witnesses, interact with an expert/professional. See W.E. MOORE, supra note 27, at 10. 35. Id. 36. Id. at 15-16 (autonomy of professionals based in part on education); cf. BLEDSTEIN, THE CULTURE OF PROFESSIONALISM 89-90 (1976) (autonomy of professionals based on training and indoctrination). 1988 SCIENTIFIC EXPERT WITNESSES 255 body of theoretical knowledge and autonomy as described in the literature on professions. To illustrate what I mean by expertise, let me use an example familiar to the layperson, not just the scientific expert. Consider the concert pianist playing a piano concerto. He has learned either through years of school or personal tutoring about technique, music history and theory. His education provides the foundation for his playing. This pianist also has the autonomy, or self-direction, to direct how he will play a piece. If a conductor treats a pianist as a puppet, the pianist loses a part of his ability to play to his highest potential. Experience also is important to the pianist. To grow, he needs experience to point out both his faults and his successes. But most important, a concert pianist needs inspiration. This term encompasses both natural ability 37 and intuitive understanding of the meaning to be conveyed by the piece. Similarly, consider the long-tenured geology professor who studies earthquakes. Years of education led to his graduate degree. Freedom to pursue his interests (autonomy) and many years in the field (experience) also helped create this expert, the earthquake specialist. But it is the last component of expertise which separates this expert from a merely competent geologist intuitive understanding. This understanding involves more than just his technical knowledge about earthquakes. Although nearly impossible to describe, it is the geologist's ability to understand new situations in a manner which appears to go beyond his current level of scientific knowledge. A. The Elements of Expertise As just briefly discussed, the elements of my model of expertise are education, autonomy, experience, and intuitive understanding. As noted, this model draws from the professionalization literature, 3 8 and dovetails in some respects with the model of expert judgment put forward by some researchers working in the area of computer expert systems. 39 This section will expand on the elements of my model of expertise.