In recent years there has been increasing evidence that, in the sensitive domain of race, expert witnesses have failed to provide balanced and useful information to representatives of the two institutions upon which social policy formulations are often dependent, law and social science. This paper examines judicial expectations of expert witnesses, the refusal of some of the nation's most knowledgeable authorities to testify on culturally sensitive racial issues, court rulings based on conventionalized and misleading testimony, and loss of public trust in social science, the law, and the courts. Faulty social science presented to the Supreme Court in the historic school desegregation case, Brown vs. Board of Education (1954) is reviewed in the context of coercion of social scientists whose research had indicated the salient role of biophysical and ecological forces on the course of human development. Ongoing fear of academics to testify objectively for fear of personal and professional damage is examined and a contemporary case vignette presented. Finally, it is suggested that failure of representatives of the legal profession to restrain inappropriate cross-examination restricts the informational spectrum available to decision makers charged with ruling on broad societal issues.
Key Words: Race; Expert witnesses; Moral justice; Political Correctness; American legal system.
What Role the Expert Witness?
Expert witnesses presumably perform important functions when litigation deals with matters requiring specialized or atypical training or experience (Inforenz, 2003; Miller & Alien, 1998). The underlying premise is that an export can onhnnre prospects of an accurate and fair outcome by providing fact finders with opportunities to "draw inferences from the facts which (he or she) would not be competent to draw" (McCormick, 1954, p. 28). Without such assistance, courts are more vulnerable to error and loss of public credibility. When litigation involves increasingly complex issues, there is a need to draw upon valid, specialized expertise, yet Spencer (1998) has noted that regardless of how fairly and honestly expert witnesses have done their job, they are likely to be accused of bias in favor of the other party. Even more disturbingly, Brodsky (2004) examined why many psychologists avoid offering scientific evidence and found that, in his words, they "dread" cross examinations in the course of which their reputations can be besmirched by accusations of "race prejudice" designed to prejudice the jury against them.
In assessing the impact of cross examination on legal outcomes, Melton, Petrilin, Polythress &: Slobogin (1997) identified six strategies which attorneys typically employ. All six involve questioning the cognitive competencies of experts. Not one includes disputing an expert's personal culpability by "playing the race card" with regard to the very contentious area of race (such as with mental testing or developmental issues). Nonetheless, attorneys are tempted to employ such tactics. In contemporary society the power of such epithets has been witnessed in strategies employed in the O. J. Simpson case (Hunt, 1996), the demise of U.S. Senate Majority Leader Trent Lott (Announcement of resignation, 2002) who, after deemed a "segregationist," lost his position, and the decision of CBS to pull a mini-scries depicting President Reagan as "uncaring toward people suffering from AIDS" (Bauder. 2003).3
Can Lessons Be Drawn from Brown?
When trials focus on race, prospective witnesses realize personal and professional risks in advancing anything other than a purely egalitarian position. This is illustrated in the landmark desegregation case Brown vs. Board of Education (1954) which provides insight into current weaknesses in the expert witness paradigm.4 Although the decision affected millions of Americans, the merits of racial balancing or forced busing were never thoroughly examined in the landmark case, which set school desegregation into motion. …