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Bloggers debate: Sequester experts?

When it came to light last week that lawyer Carla J. Martin had given trial transcripts to witnesses in the terrorism trial of Zacarias Moussaoui, her fate was sealed as a topic of debate among bloggers of every ilk. But the Martin matter also gave rise to a side debate that only a legal-blogger could love -- that of whether expert witnesses should be sequestered.

Peter Nordberg kicked off the debate when he asked on his Blog 702 (named for the federal evidence rule on testimony by experts) whether witness sequestration always makes sense, particularly in the case of experts:

"As regards most expert opinion, ... any benefit from sequestration is considerably diluted, at least in federal court, by the requirement, in both civil and criminal proceedings, that any expert testimony be disclosed in advance of trial. ... The modern federal trend is decidedly toward full and transparent disclosure of expert opinion in advance of trial. That trend has a lot going for it."

Nordberg's post prompted first this response from an anonymous reader and then another from C.E. Petit at Scrivener's Error, who said that the problem with failing to sequester is that it can taint the expert's opinion with "extraevidentiary 'facts'":

"This all leads to the question of what to do when a witness's testimony is influenced by events that occur at trial—admissible or inadmissible testimony, arguments over the propriety of questions, the judge's sidebar rulings, counsels' opening arguments and summations, and perhaps most importantly anything that takes place outside the jury's hearing. Since opinion witnesses are allowed to consider hypotheticals, 'protecting' them from these influences seems a little less important; however, that doesn't mean that experts can't be improperly influenced, or will be excruciatingly complete in stating the bases for their opinions."

Petit's comment led Nordberg to reply, "We agree that there's room for mischief here," but he continued:

"On the whole, though, we remain skeptical that much is generally gained from sequestering experts. Indeed, there are so many ways to circumvent sequestration that in the typical case, sequestration may amount to nothing more than a pretense -- one which may actually mislead the trier of fact. Sequestration may also afford an unfair advantage to litigants whose counsel and experts are willing to engage in gamesmanship, at the expense of litigants whose counsel and experts play strictly by the rules."

Coincidentally, a similar exchange over sequestration of experts took place a month earlier on The Wall Street Journal's Law Blog. In that case, it was provoked by a WSJ report on the New Orleans Vioxx trial noting the presence of a defense pathologist in the courtroom during testimony by the plaintiff's expert.

Posted by Robert J. Ambrogi on March 22, 2006 at 09:34 AM | Permalink | Comments (0) | TrackBack (0)

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