Tuesday, August 12, 2008

James Brown's [Expert Witness] Hot Tub Party?

Today's New York Times features a very interesting article from legal correspondent Adam Liptak about the apparently unique American practice of relying on partisan experts in litigation, both criminal and civil. Australia, for example, prefers a practice called "hot tubbing," which isn't as swingin' as you might imagine (depending, I guess, on just what kind of imagination you have):

In that procedure, also called concurrent evidence, experts are still chosen by the parties, but they testify together at trial — discussing the case, asking each other questions, responding to inquiries from the judge and the lawyers, finding common ground and sharpening the open issues.
Any chance Australian-style hot-tubbing will capture America's imagination like Crocodile Dundee?

Joe S. Cecil, an authority on expert testimony at the Federal Judicial Center, a research and education agency in Washington, said hot tubbing might represent the best solution yet to the problem of bias in expert testimony.

“Assuming the judge has an active interest in ferreting out the truth and the experts are candid, I prefer the hot-tubbing option,” Mr. Cecil said. “But those are two bold assumptions, and the procedure drives the attorneys nuts.”

Then again, as one law professor quoted in the article put it, “Hot tubbing . . . is much more interesting than neutral experts.” What do y'all think?

(The article in the latest in the American Exception series that "examine[s] commonplace aspects of the American justice system that are virtually unique in the world." Past articles have covered topics such as the exclusionary rule and the swelling U.S. prison population.)

Link via How Appealing.


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