There is still boating to be had at Wells Harbour on England’s northeast coast. But in 1781, the harbor, then already 300 years old, was clogged with silt, useless and inaccessible to ships. The port had served ships for 300 years.
Sluices hadn’t worked. But the harbor commissioners seized on Sir Martin Browne ffolkes: Had his man-made embankment rerouted the natural flow of water and choked the port?
The case went to a jury. Ffolkes brought in Robert Mylne, a London-based engineer, who explained to the jury how time and tides, and the confluence of six rivers, deposited silt over years. The jury sided with ffolkes and his outside expert.
On appeal, and in two subsequent trials, the English courts held that both sides could use experts (“the reasonings of men of science can only be answered by men of science”), that experts could render opinions, that those opinions couldn’t be mere speculation, and that pretrial discovery would require sides to give advance notice to adversaries about what their experts would say.
One current expert is Ann Wolbert Burgess, a psychiatric nurse. For 40 years, she has opined in various trials, mostly criminal, on psychiatric issues. What was Erik Menendez’s mental condition at the time he and his older brother killed their wealthy parents? Why did Bill Cosby victim Andrea Constand wait to report alleged abuse by “America’s Dad”? What are the chances a violent, serial rapist would re-offend? Why would the Duke lacrosse complainant invent her story of sexual assault?
The Menendezes—Lyle and Erik, convicted of killing their parents with shotguns—attracted experts on both sides. Burgess favored Erik’s story that pressure and fear and sexual abuse prompted the two to kill their parents. Park Dietz, a psychiatrist and frequent courthouse denizen, found Erik to be self-dramatizing and histrionic.
The two trials straddled O.J. Simpson’s one trial. The first Menendez trial was a pre-O.J. media extravaganza, with Dominick Dunne discussing guilt and innocence on CourtTV. After O.J. was tried in the same building, Judge Stanley Weisberg seemed to tire of the spectacle. He shut down the TV coverage and excluded a lot of evidence that would be best interpreted by expert testimony. This time, the brothers were convicted.
Burgess gives a quick overview of legal experts through history, which date back at least to Greek times, long before Wells Harbour, when physicians were summoned to testify about broken bones, and Roman surveyors helped settle boundary disputes.
In more recent years, courts have focused on their gatekeeper role: Which experts, and which opinions, are reliable enough for a jury to consider? Courts now evaluate the testimony before it gets to a jury, the parties trade expert reports in advance, and judges have criteria for deciding whether a scientific process is reliable and accepted enough for consideration.
Burgess wrote the book that became the Hulu docuseries Mastermind: To Think Like a Killer, one of those many shows on criminal profilers. Her follow-up book feels like a follow-up: a chapter each on various famous cases she’s worked on. Even with her professional-writer coauthor, the reproduced conversations with subjects and lawyers from years ago sound artificial:
“Come on, Jim. You know I’ve never paid much attention to the spectacle surrounding cases,” I said. “Send over everything you’ve got.”
Burgess’s side is always righteous, the other side often nefarious. She gave testimony against Cosby, for Menendez, against Michigan State abusing-physician Larry Nassar, and for Duke lacrosse players.
The question is, can you breeze past the writing?
And so this is what I fight for. When the stakes are this high, when people’s lives hang in the balance, there can be no room for error. The line between justice and failure is drawn in the sharp clarity of evidence. Everything else is just noise.
Aside from the Sam Spade dialogue, I’m not sure I’d want my jurors to conclude that an expert I called to testify is “fighting for” my side to win, rather than giving their honest opinion. Factfinders are already suspicious that experts are mere “hired guns” giving whatever opinion they’re paid to have; Burgess herself admits she took the Duke lacrosse case because “they hired me first.”
Reading Burgess’s book is a busman’s holiday for a trial lawyer. But for a true crime fan? As Miss Brodie would put it, “For those who like that sort of thing, that is the sort of thing they like.”
Expert Witness: The Weight of Our Testimony When Justice Hangs in the Balance
by Ann Wolbert Burgess and Steven Matthew Constantine
Grand Central, 256 pp., $30
Robert Little is a criminal trial lawyer and writer in California.
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