Communications of the ACM
On Expert Testimony
I recently had the opportunity to participate in a two-day discussion on expert testimony, sponsored by the U.S. National Academy of Science and the U.K. Royal Society. By remarkably good fortune, I am a member of both. The primary topic of discussion was "science in the interests of justice." In a world in which computers, computing, information technology, data science, and computational-X—for all values of X—are becoming the norm, expert testimony on the use and dependence on software artifacts is inescapably on the increase. If you accept that premise, then the role of ACM members, as professionals in the computing realm, makes them candidates for the provision of expert testimony in both criminal and civil judicial proceedings. In the case of the former, especially, accurate and factual testimony may make the vital difference between serving and miscarrying justice.
I learned many things at this event, but one thing really stood out for me: In the U.S. system of justice, experts are hired by each side (plaintiff and defense) to argue for their side. In the U.K., experts often advise the court rather than advocate for one side or the other. U.S. judges dealing with highly technical testimony are often confronted with "dueling experts" and forced to try to make sense of and decide between conflicted testimony. In Scotland, I learned, it is more common that the expert functions in an advisory capacity. In fact, the experts are allowed to participate in pre-trial discussions to inform the court of relevant factual information drawn from the expert's knowledge and experience.
Comments
John Grundy
Many thanks for this piece Vinton. I have several times been an expert witness in New Zealand and Australia court cases - alleged patent infringement, alleged poor quality software delivered, alleged theft of software design/code, and also review of e.g. R&D tax credit claims (i.e. is it really R&D). I find them very interesting - if time-consuming - and its quite a different use of my expertise/experience than my University teaching and research work.
In Australia and New Zealand we use the British approach - the expert witness is an officer of the court i.e. doesn't matter who is paying you; you are advising the court not a particular litigant. You comment (collegially) on each others' reports to the court. Sometimes you even prepare a report together / go on the stand together with the "other side's" expert witnesses as a little expert panel for the barristers and even occasionally the judge themself to question on technical matters. As yet, my credibility as an expert has never been questioned... (there is always next time I suppose). I have no idea how this might operate (or if it could operate) in the US context however.
I do like the idea of ACM being a source of non-partisan experts advising on the factuality of claims, deep domain knowledge, etc.
Best regards,
John
Jan Collie
Thanks, also, for this most apposite article. I firmly believe that expert witnesses that are essentially hired guns have no place in the administration of justice. If the assignment of guilt / culpability or innocence is truly for the court to decide, then the court needs impartial guidance on matters that require specialist knowledge. As you say, accurate and factual testimony can make the difference between serving and miscarrying justice. In criminal matters, in particular, it should never be forgotten that someone's liberty is at stake. It's not a game.
The adversarial nature of litigation axiomatically encourages attempts to discredit witnesses, perceived experts included. In my opinion - based on almost 20 years experience acting as a digital forensics expert in criminal and civil proceedings in England and Wales - I believe It would be more appropriate and effective to emulate the Scottish model. I very much support the idea of ACM being a source of non-partisan experts.
Kind regards,
Jan Collie
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