Q:\wwwroot\NESL\lawrev\Vol36\36-3\04 Brian Holmgren.doc Printed On 1/7/2003: 593 The Expert Witness Brian Holmgren∗ There were three professionals who were debating the oldest profession in the world: a surgeon, a physicist, and a lawyer. The surgeon said he believed that surgery was the oldest profession in the world because on the sixth day, God took Adam's rib and created Eve, and that must have been done by a surgeon. The physicist said yes, but before God created Adam and Eve, he created the heavens and earth out of chaos, and that was done by a physicist. The lawyer then piped up, “who do you think created all the chaos?” The fact of the matter is that the law has created its own form of chaos when it comes to the subject of expert witnesses. The issue of the day is, at least as far as I am concerned, do experts advance the truth furthering process of the trial? That is what they are supposed to do. Do they really do that? There are many expert witnesses for whom it can be said - “if you pay them, they will come.” We call these the “Field of Dreams” experts and they do come to court on a very frequent basis. The law contributes to this process, and this process will be the focus of my remarks. How does the law help to create this body of chaos for us? First of all, we have to understand the jury selection process. Or, actually, I should refer to it as the jury de-selection process. We do not actually go out and pick the jurors we want. We go out and get rid of the jurors that we do not want. We begin this process by getting rid of the jurors who know any-thing about the parties, the subject matter of the litigation, or the technical issues which are the subject of the litigation. Basically, we ensure a fair ∗ Brian Holmgren is an Assistant District Attorney General with the Davidson County District Attorney General’s Office in Nashville, Tennessee, where he is assigned to the Child Abuse Unit. He previously served as an Assistant District Attorney in Kenosha County, Wisconsin, where he was the Director of the Sensi-tive Crimes Unit. Between November 1995 and July 1999, Mr. Holmgren was a Senior Attorney with the American Prosecutors Research Institute’s National Cen-ter for Prosecution of Child Abuse. He is currently on the Board of Directors of the American Professional Society on the Abuse of Children. Mr. Holmgren also serves on the National Advisory Panel on Shaken Baby Syndrome and the Board of Advisors for the Civic Research Institute’s Sex Offender Law Report. He is a contributing author and editor to the third edition of the National Center’s highly acclaimed manual on the Investigation and Prosecution of Child Abuse Cases.594 NEW ENGLAND LAW REVIEW [Vol. 36:3 jury, by ensuring an ignorant jury. This is then balanced against the crite-ria for qualification of an expert witness. An expert witness is defined in the law as somebody who can assist the fact-finder in the process of ad-vancing the so-called search for the truth. If we get rid of anybody on the jury panel that knows about the issues in the case, and if the qualifications of the expert are defined as being someone who has knowledge beyond the scope of the juror’s knowledge, then someone who can advance the juror’s knowledge even just a little bit can be qualified as an “expert.” That is the definition of an expert witness in court under our laws. Mark Twain said over a hundred years ago: “the jury system puts a ban upon intelligence and honesty, and a premium upon ignorance, stupidity and perjury.”1 Those words are no less true today, than they were one hundred years ago. How else does the truth remain hidden when we get to court? First of all, we have this very low threshold for the admissibility of expert wit-nesses; therefore, it is very easy for the expert witness to make their way into court. Generally, when courts talk about the qualifications of the ex-pert, the courts suggest that an expert’s lack of qualifications go to the weight of their testimony, rather than to their admissibility. Expertise is often established by the fact that the expert has appeared in court several times before, which begs the question: if they did not belong there in the first place, then why does it weigh as part of their credentials later on? The expertise of an expert may be limited in his or her practice to a spe-cific area but, once they get into court, that expertise may be broadened ten-fold. The expert may offer opinions on things that go well beyond his or her specific area of expertise. While we would hope that the rules of law would somehow preclude this possibility, in fact, it is exactly the op-posite. So, we get into court and we have these wonderful new rules that say the courts are supposed to act as gatekeepers regarding the admission of expert witnesses. We are supposed to determine whether experts are or are not qualified. We are also supposed to determine what they should or should not be able to say in court. Well, I have news for you folks. All of you went to law school because you did not want to learn anything about science, right? This is a fundamental truth. So now, we are asking you when you become lawyers to know and ask the right kinds of questions of experts that qualify them or disqualify them as experts. We ask judges who do not have training in this particular area to make these important decisions. It does not work so well. Another problem is that the Federal Rule of Evidence regarding expert 1. MARK TWAIN, ROUGHING IT ch. XLVIII (1872).2002] THE EXPERT WITNESS 595 witnesses, Rule 702,2 is not adopted in every state. A lot of states do not even have a specific rule on expert testimony. Those that do have such a rule labor under different standards in its interpretation, such as the Frye,3 Daubert,4 and Kumho5 standards. Some states, however, do not have such standards. Rule 702 was recently revised to tighten up the doors a little bit on expert testimony and yet, a substantial number of the jurisdictions have not adopted the revised Federal Rule 702,6 even though they may have Rule 702 in their books. Then, we get into the issue of who is the “best expert” under the Rule? For example, in the field of child abuse we have nurse practitioners who do a lot of the sexual abuse examinations of children and who are then asked to offer testimony about their examinations. Are they the