Experts, Expert Opinions, and How Experts Are Used in the Courts

Everyone is an "expert" in something or other. An avid clipper of coupons to save on grocery bills might well qualify in federal court to testify on the amount of money which a family can save by clipping coupons and presenting them for immediate reduction in food costs. That same person, however, may not be an expert in painting houses, although such person could be a house-painting expert, as well as an expert in transferring data from one PC to another.

There are hundreds of thousands (or millons) of things in which one or more persons could be an expert for purposes of qualifying to testify in federal court as an "expert".

Rule 702 of the Federal Rules of Evidence is the rule used by federal judges in all types of cases (including diversity-jurisdiction cases which are brought in federal court between citizens of different states). Rule 702 provides:

"Rule 702. Testimony by Experts. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."

Rule 702 is more liberal than the rule in most state courts, which requires greater qualifications and body of knowledge to have a subject matter and person qualify for expert testimony on the subject.

Prior to adoption of Rule 702, effective in 1975, the federal courts had adopted the more stringent state rule as to the admissibility of expert testimony.

The pendulum is now swinging back, ever so slightly, with decisions which are making the use of expert witnesses more difficult in federal court.

A warning shot has been sounded by the Supreme Court, according to a Newsday report on November 12, 1997, stating: "The U.S. Supreme Court is analyzing the merits of polygraph [lie detector] tests at trials. Chief Judge Rehnquist has expressed doubts about the practical problems 'Judging the Polygraph,' Nov. 4. When Justice Antonin Scalia sarcastically suggested that 'Maybe we should just dispense with juries and have polygraphs,' he was pointing out the real danger of contaminating trials with what is truly a junk science."

The use of an alleged expert by 60 Minutes to declare the Cusack Papers non-authentic (and forged) has the same problem as the use of polygraphs. At best they can provide an opportunity for discussion of the issues, if the other side is given a chance. But when sprung on the public by 60 Minutes with no chance for the Plaintiffs to make inquiry of the alleged expert, to question his expertise, his interest in the outcome, his discussions with 60 Minutes, or the points of similarity which he found, the public has no basis for forming any conclusion other than the conclusion of the so-called expert.

Actually, in the vast majority of cases using experts, both sides hire one or more experts and these experts then offer to the jury both sides of the matters at issue, something which 60 Minutes did not do, and for which they should hang their collective journalist head in shame, or to quote a promo which aired immediately before the 60-Minute show in question, "SHAME ON YOU"!

Everyone, including 60 Minutes, knows that experts go both ways on any issue, and for 60 Minutes to take the editorial position that their expert knew more than the acknowledged Kennedy handwriting experts, Charles Hamilton and his wife (now widow) Diane Hamilton, who with 30 years' experience in Kennedy handwriting analysis wrote the book on Kennedy handwriting, and who had authenticated some of the Cusack Papers, is journalism at the highest degree of irresponsibility.

A decision of the United States Supreme Court may even limit what a handwriting "expert" may give in testimony. In Dauber v. xxxx, 509 U.S. 579 (1993), the Supreme Court held that for a "scientific expert" to be permitted to testify as to his expertise, there must first be a hearing (if necessary) on whether there really is a set of scientific principles involved which can lead to a relevant fact in issue. It will be interesting to see what science, if any, Mr. Dillon employed in his review, apparently for the first time, of Kennedy handwriting.

Are there any procedures on how a "handwriting expert" can become qualified as a Kennedy handwriting expert during a long weekend in New York City (and 60 Minutes) away from San Francisco?

The Daubert decision may be seen at The Daubert Decision - Scientific Experts Must Have a Science to Be Qualified to Testify.

For a list of the more than 18 experts who have authenticated some (but never all) of the Cusack Papers, including the dates and the number of documents involved, and the names and dates of ABC/CBS's experts, and the number of documents involved, click on Chronology of Experts Who Have Seen Some (but Never All) of the Cusack Papers.

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Copyright © 1997 by Carl E. Person