Remember the night before your PhD defence or some comparable high-stakes academic showdown? You’re anxious, but ready. Countless hours of preparation leave you eager to take your stand, even hoping for the toughest questions. But afterwards, you’re somehow disappointed. Those tough questions never came – there was so much more they could, and should, have asked.
This is how one scholar describes the excitement of defending research in the courtroom as an expert witness, where those tough questions finally come.
“The things you spent sleepless nights over before your defence, well you’ll have that in court,” he says. “If everyone in the court is doing their job right, you’re going to get the grilling of your life.” In other words, the PhD defence you were ready for, but never got.
Academics from a wide range of fields have made their mark on the courts in many ways. They have testified as expert witnesses and they’ve also educated judges and lawyers. Some professors have seen their research influence the laws of courtroom procedure. Whatever role the scholar takes on, the tie that binds them is the unrivaled feeling of knowing their work has advanced one of society’s most essential objectives: justice.
In the introduction to his book The Courts, York University political scientist Ian Greene writes that it’s one thing to defend research in journals or books, but “quite another to defend these findings in court.” Aside from differing standards of proof, so much depends on judges’ discretion and lawyers’ strategies.
Dr. Greene’s research focuses on the courts and the notion of judicial independence. That’s what prompted a lawyer to call Dr. Greene for help. His client had been refused permission to appeal a court decision denying him refugee status. The lawyer fervently believed in his client’s case, but they’d drawn the notoriously toughest judge of the Federal Court of Appeal. The lawyer thought that there might be an issue of fairness under the Charter of Rights because some appeals were treated more leniently than others, depending only on which judge happened to hear the case.
The lawyer asked Dr. Greene to look at the previous year’s decisions to appeal in refugee cases and search for inconsistencies in the various judges’ approval rates. The research would serve as the basis for the lawyer’s courtroom arguments.
Dr. Greene reviewed every third decision on the matter and found inconsistencies, even when controlling for certain variables. Suddenly, the lawyer and his client had a strong case. But two statisticians testifying as experts for the other side (the government in this case) argued that reviewing just a third of cases, and not all of them, could pervert the findings. So Dr. Greene reviewed every single case and presented a second affidavit.
The government consistently argued that still more was needed: first, more variable control, then a factor analysis, then another independent review. At every step, the professor dutifully refined his research, each time strengthening the validity of his findings, which remained similar.
“By that time, I had done far more research than I’d ever done for an academic paper,” he says. Meanwhile, the International Journal of Refugee Law had published a paper he wrote based only on the research from the very first of the many court affidavits.
“That’s when I came to the conclusion that if you’re going to do a really good job as an expert witness in court, quite often you have to do a great deal more work, more research, than you would to get an article published.”
Meanwhile, the other party took a new strategy. It postponed the cross-examination of Dr. Greene until he’d left for an overseas sabbatical – and then cancelled it altogether when he decided to fly back to Canada on his own dime. The government finally decided to let the would-be refugee stay on humanitarian grounds, ironically, because of all the delays.
Though not in the way he’d expected, Dr. Greene’s research led to a just result. What’s more, when he ran into one of the court’s judges he learned they’d all appreciated his analysis and had taken steps to be more consistent amongst themselves. “I feel wonderful about it because I feel I can do some good,” he says. “I might be able to have an impact on changing the law for the better.”
Dealing with expert evidence
Ronald Melchers, a criminologist at the University of Ottawa, echoes the advice about sticking to arguments salient to the court. “When you’re bringing in expert evidence,” he says, “you have to have a clear idea what specific purpose it’s serving in a legal proceeding.”
Sensing a growing misunderstanding between the producers of scholarly research and the legal community, Dr. Melchers decided to spend the last several years helping train judges and lawyers to deal with expert evidence.
He points to another difference between publishing research and presenting it as evidence. As a past editor of two scholarly journals, he says some articles with questionable methods or conclusions get published because the issues they raise motivate interesting and necessary debate, and that’s fine. “We put a lot in peer-review journals that helps advance the discourse. But those conclusions aren’t science, they’re speculation.”
The courts have come a long way recently in appreciating the difference. For most of the 20th century, expert evidence could be entered in a court case as long as it was generally accepted by the scientific community to which it was relevant. But equating journal publication to general acceptance led to a veritable heyday for “expert evidence” of dubious scientific quality. This is perfectly exemplified by the infamous “foot lady,” a now thoroughly debunked American anthropology professor who had the legal world believing she could glean age, gender and even pregnancy from a person’s footprint.
“There was a real lack of grasp within the legal community of the provisional nature of scientific inquiry,” says Dr. Melchers. When confronted with university professors laden with PhDs, publications and professional accolades, “the skeptical instincts that got [judges] their jobs seem to recede,” he adds.
In the early 1990s, U.S. and Canadian courts struck back, adopting much stricter rules for the admissibility of expert evidence. Now the challenge is training judges to apply the new rules, says Dr. Melchers. To do so, he teams up with a legal expert and runs sessions for judges. The sessions consist of reviewing case studies and scenarios – usually based on actual cases with some names and facts altered – to give judges the tools to know which questions to ask of scholars and what evidence should be admitted.
“My job is to toughen them up and make sure they don’t put that stuff into dormant mode.”
In a sense, he is compelling judges to be more critical of the very work he and his colleagues bring to the courts. Rather than discouraging academics from testifying, the need for greater scrutiny makes things more exciting for the scholar, even fun, says Dr. Melchers. He refers to a thorough cross-examination he endured as “three of the best days” of his life. “I spent all these hours doing this work, and I was asked all the questions that, as a researcher, you would always love to be asked,” he says. “It was heartening.”
And he clearly enjoys the new role he’s found and finds it fits remarkably well with what he trained to do. “If you like teaching, there’s nothing better than being locked up in a room with really smart people who have really important decisions to make, and who need what you’ve got to make them. That’s exciting.”
Changing the way things are
Victoria Talwar, an expert in children’s social-cognitive development in McGill University’s department of educational and counselling psychology, has felt that same satisfaction, but she got there a different way. She has never testified about her research, nor presented to judges for explicitly educational purposes. But her research on children’s behaviour, particularly about children’s appreciation of truth and lies, has radically altered the provision of the Canada Evidence Act dealing with child testimony.
“You do research and make recommendations,” she says, “but you don’t always get to see them implemented. So when you do, it’s immensely gratifying.”
Previously, before children could testify they had to undergo a “competency examination” where they would be asked about their understanding of truth and lies. She says that the examiners “often asked them in ways that children couldn’t understand.” Tackling questions such as “what is truth?” is a tall order for a lifelong philosopher, never mind a seven-year-old.
Dr. Talwar found that the examination did more to confuse and intimidate children than anything else. What’s more, a child’s ability to answer these types of questions has no bearing on whether they will tell the truth or lie about an event. “When you think about it, that isn’t very surprising, given that adults know what lies are, and that they’re bad, but that won’t stop them,” she says. Far too many children were being unnecessarily disqualified from testifying.
What Dr. Talwar and her team eventually discovered was a surprisingly simple way to encourage more truthful testimonies from children. If asked to promise to tell the truth, children were much more likely to do so, “because they take that quite seriously.”
Presenting her research at conferences led to a major newspaper editorial, then an invitation to Parliament to present a brief to the House of Commons standing committee on justice, which, impressed, introduced the new legislation.
“The first few times you get published, it’s a very thrilling experience,” Dr. Talwar says. “But after a while, it becomes sort of everyday. This was not the feeling of an everyday experience.”
Since then, similar research has been replicated elsewhere, and the new rules have weathered a number of challenges in court.
“We know that it’s being used, we know it’s being upheld, and we know that as a result it’s improved conditions for children in court and made it likelier we’ll get accurate testimony.” Thus, it serves justice better. “It’s gratifying to know that you’ve done something that has made a significant difference.”
Pascal Zamprelli holds degrees in common law and civil law from McGill University and recently passed the New York Bar examination.