There's Nothing New About Expert Witnesses Disagreeing!


There’s this fantasy that I sometimes indulge in. I write up a report of my findings from an accident reconstruction and I send it off for disclosure. The accident reconstructionist opposing me receives my report, reads it, and is simply overwhelmed by the unassailable logic and irrefutable accuracy of my opinions. In fact, so impressed is this other expert that he simply cries uncle, adopts my viewpoint, and doesn’t even bother issuing a report of his own. This has never actually happened, of course! It seems forensic experts can always find something about which they disagree.

This is nothing new, though. There’s this chapter that I love from Fyodor Dostoevsky’s 1880 novel The Brothers Karamazov. If you’ve never read Dostoevsky’s novel, a large part of it recounts the trial of Dmitri Karamazov, who is accused of murdering his father. And who knows? Perhaps Dmitri did kill his father, but he did it out of insanity. In the Barnes and Noble edition that I read, probably 15 years ago, the chapter I’m thinking of is called “The Medical Experts and a Pound of Nuts”! The three medical experts are called to give their professional opinion about Dmitri’s sanity. But, as Dostoevsky observes, “The evidence of the medical experts, too, was of little use of the prisoner.” Nonetheless, there was “an an element of comedy about it, through the difference of opinion of the doctors.”

Expert 1 - A sane man would be worried about what the ladies think!

The first expert to be called was Doctor Herzenstube. “He was a grey and bald old man of seventy, of middle height and sturdy build. He was much esteemed and respected by everyone in the town. He was a conscientious doctor and an excellent and pious man...He had been living amongst us for many years, and behaved with wonderful dignity. He was a kind-hearted and humane man. He treated the sick poor and peasants for nothing, visited them in their slums and huts, and left money for medicine, but he was as obstinate as a mule. If once he had taken an idea into his head, there was no shaking it…”

“Doctor Herzenstube roundly declared that the abnormality of the prisoner’s mental faculties was self-evident. Then giving his ground for this opinion...he added that the abnormality was not only evident in many of the prisoner’s actions in the past, but was apparent even now at this very moment. When he was asked to explain how it was apparent now at this moment, the old doctor, with simple-hearted directness, pointed out that the prisoner on entering the court had, ‘marched in like a soldier, looking straight before him, though it would have been more natural for him to look to the left where, among the public, the ladies were sitting, seeing that he was a great admirer of the fair sex and must be thinking much of what the ladies are saying of him now’...His remark that the prisoner ought to have looked at the ladies on entering roused a whisper of amusement in the audience. All our ladies were very fond of our old doctor; they knew, too, that having been all his life a bachelor and a religious man of exemplary conduct, he looked upon women as lofty creatures. And so his unexpected observation struck everyone as very queer.”

Expert 2 - He should be counting on his counsel!

The famous Moscow doctor testified next. “Almost everyone in the town was aware, by the way, that the famous doctor had, within the first two or three days of his presence among us, uttered some extremely offensive allusions to Doctor Herzenstube’s qualifications...[However, he] definitely and emphatically repeated that he considered the prisoner’s mental condition abnormal at the highest degree. He talked at length and with erudition of “aberration” and “mania” and argued that, from all the facts collected, the prisoner had undoubtedly been in condition of aberration for several days before his arrest, and, if the crime had been committed by him, it must, even if he were conscious of it, have been almost involuntary, as he had not the power to control the morbid impulse that possessed him...”

“‘As to the opinion of my learned colleague,’ the Moscow doctor added ironically in conclusion, ‘that the prisoner would, on entering the court, have naturally looked at the ladies and not straight before him, I will only say that apart from the playfulness of this theory, it is radically unsound. For though I fully agree that the prisoner, on entering the court where his fate will be decided, would not naturally look straight before him in that fixed way, and that that may really be a sign of his abnormal mental condition, at the same time I maintain that he would naturally not look to the left at the ladies, but, on the contrary, to the right to find his legal adviser, on whose help all his hopes rest and on whose defense all his future depends.’ The doctor expressed his opinion positively and emphatically.”

Expert 3 - Who holds his fate?

The next medical expert to testify was Dr. Varvinsky. “But the unexpected pronouncement of Doctor Varvinsky gave the last touch of comedy to the difference of opinion between the experts. In his opinion the prisoner was now, and had been all along, in a perfectly normal condition, and although he certainly must have been in a nervous and exceedingly excited state before his arrest, this might have been due to several perfectly obvious causes, jealousy, anger, continual drunkenness, and so on…”

“As to the question of whether the prisoner should have looked to the left or to the right on entering the court, ‘in his modest opinion,’ the prisoner would naturally look straight before him on entering the court, as he had in fact done, as that was where the judges, on whom his fate depended, were sitting. So that it was just by looking straight before him that he showed his perfectly normal state of mind at the present.”

In raising this story, I mean simply to entertain. I certainly don’t mean to make light of the important role that experts play in criminal and civil trials alike. The words that forensic experts write and speak matter, and they can clearly have a profound and significant effect on the outcome of a trial. What I do mean to make light of, though, is the internal (and often external) shock that we experts sometimes feel (and often exhibit) when another expert has the audacity to disagree with us. There’s nothing new about experts that disagree. Dostoevsky sets his story somewhere around 1866, about 150 years ago in Russia. The disagreeing experts he describes could easily be our contemporaries. So, to myself, and to you, I say, relax. Take the opportunity to learn from the disagreements other experts have with you. Don’t get defensive. And by all means, if you really believe you’re right, then defend your position. But hey, just don’t be surprised that our adversarial system is, well, adversarial.