Judicial Control of Expert Evidence: Expertise and the Opportunity for Rebuttal

Abstract

This volume asks whether a channel for rebuttal remains when an expert's conclusion is carried over into the conclusion of the judgment. The appointment and oath of an expert witness do not guarantee the accuracy of the opinion. The parties' opportunity to state their opinions must be connected to the court's independent evaluation. The path to relief opens where the status of the court-appointed expert and any challenge to the expert, as well as the opportunity to submit opinions on the expert's statement, are secured, and closes where no opportunity is given to express an opinion on the expert's statement, so that the channel for responding to its premises and methods is closed. The six sections address, in turn, appointment by the court, the impartiality of the expert, what the oath does not guarantee, the manner of submitting the opinion, the parties' channels for rebuttal, and the attribution of the final determination. The strongest counterargument is as follows. If judges lack the capacity to re-evaluate expert knowledge, independent evaluation may remain a mere formality. The classification of expert statements into observation and inference, and their credibility in general, are not addressed in this volume.