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  • Expert Witness Ethics
    EXPERT WITNESS ETHICS Joseph Sanders* The worst that can be said about an expert opinion is not that it is a lie— that criticism is often beside the point—but that it is unreasonable, that no competent expert in the field would hold it.1 INTRODUCTION Expert witness ethics is one of those topics about which there appears to be a fair degree of resigned acceptance of the status quo. In large measure this is because of a lack of agreed upon ethical standards and, therefore, a lack of consensus concerning what steps we should take to encourage more ethical behavior. Both of these are difficult issues, and I do not propose to offer noncontroversial solutions to either. Nevertheless, the topic is worthy of our attention. The costs of unethical expert witnessing are substantial. They include the costs associated with weeding out the most unethical witnesses and, equally important, the costs reflected in any reduced ability of fact-finders to come to correct conclusions. This essay is organized into three sections. In the first part, I discuss the nature of the expert’s ethical obligation and impediments to fulfilling that obligation. This part is informed by the central proposition that the primary purpose of a trial is to ascertain the truth.2 This purpose informs the central ethical obligation of experts, which is to provide adequate, unbiased justifications for their position. I argue that the “same intellectual rigor” test advanced by the U.S. Supreme Court in Kumho Tire Co. v. Carmichael,3 although much criticized, is with some modification the most appropriate measure of this ethical standard.
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