Historians as Expert Witnesses: The View from the Bench
John A. Neuenschwander
In the May 2002 OAH Newsletter, Brian Martin provides an insider's view of various roles historians play when working for lawyers either as testifying experts or consultants. Martin, who serves as the vice president for litigation research for History Associates Incorporated, argues that, "the legal system provides incentives for both attorneys and historians to preserve the expert's objectivity" (1). In this regard, he notes that lawyers do not like surprises in court. Since each side usually has its own expert, it is essential that historical research be complete, rigorous, and accurate. If it is not, opposing counsel will certainly alert the judge and/or jury to any inadequacies or omissions. In a similar vein, historians who appear in court must often weather cross-examination and defend their conclusions against those of opposing experts. Martin assumes that because of the adversarial nature of the legal system, historians can serve as paid or volunteer experts or consultants and still maintain the integrity of their craft.
While this position may be either unacceptable or unconvincing to some, it is definitely worthy of deeper examination. In an effort to understand the extent and nature of the historian's role in court, I conducted a survey of cases on Westlaw and LexusNexus in which historians appeared as testifying experts. While this examination includes only cases which resulted in a published decision from a state or federal court, it provides a reasonable sample size from which to draw some preliminary conclusions about the types of cases involving historians and, more importantly, illustrates how judges evaluate the testimony of expert historians. While judges are hardly outsiders, they can offer a less biased view of historians as expert witnesses, since they must initially decide if an expert is qualified, establish the boundaries for his or her testimony, and ultimately, decide how much weight should be given to that testimony.
It should be noted that while more historians are serving as testifying experts in recent years, they represent only a tiny fraction of the total pool of experts in the courtroom. There are at least 7,600 different types of expert witnesses with the vast majority coming from the fields of medicine, science, engineering, and economics (2). Despite this minimal presence, historians are regularly used in certain types of cases. Four, in particular, are worthy of mention:
In many of the cases surveyed, only cryptic mention is made of the historian or historians as expert witnesses and the credibility and impact of their testimony was not directly addressed. In a few cases, however, where the testimony of historians was particularly critical to the outcome of a case, judges have offered their assessment of the expertise and credibility of a particular expert. Three of these cases are worthy of special attention. The first, U. S. v. State of Michigan (1979) involved the ability of Michigan to restrict the fishing rights of the Bay Mills Tribe on the Great Lakes (4). Lawyers for the state presented as their expert a historian who specialized in American economic and social history. In supporting the defense’s position, the historian examined the historical documents, including treaties, that defined the tribe’s rights and offered his assessment to the court. Ruling in favor of the Bay Mills Tribe, the judge noted in his decision that the state’s expert was “not by either training or experience thoroughly familiar with the culture of the upper Great Lakes Indians.” Furthermore, the judge argued, the defense’s expert had only been exposed to a limited amount of research on the topic, most of which came after being retained by the defendants. The judge ultimately concluded that because of these limitations, the historian was unable to enlighten "the court as to the total circumstances of the treaties" (5).
The second case, Aldasoro v. Kennerson (1995), involved a constitutional challenge by Hispanic plaintiffs to the at-large election system of the El Centro Elementary School Board of Trustees. Essentially, the plaintiffs alleged that the at-large election method violated the Voting Rights Act by both diluting the "ability of Hispanic voters to elect candidates of their choice," and impaired "their ability to 'influence' elections"(6). In making their case, the plaintiffs employed a historian who specialized in voter discrimination. In the eyes of the court, the historian’s testimony, while somewhat helpful, suffered from three serious omissions. First, although he specialized in voting-related discrimination in California generally and the Imperial Valley specifically, his area of expertise involved events that occurred before 1970. Furthermore, the court concluded that the expert failed to consider the sharp increase in the local Hispanic population over the past twenty years or the laws passed during this period which were intended to enhance minority voting opportunities.
The final case, Cayuga Indian Nation of New York v. Pataki, (2001), addressed the sole issue of how much prejudgment interest was owed by New York for its illegal taking of a 64,000 acre reservation in 1795 and 1807 (7). Most of the testimony came from three expert historians who represented the Cayuga, the state of New York and the United States respectively. After listening to extensive expert testimony from each expert and poring over their reports, Judge Neal McCurn incorporated a 57-page historical account into his decision on the relationship between the Cayuga and New York beginning in the 1760s and extending through 1807. The court prefaced this portion of the decision by admitting that its account was "an amalgam of each of the differing viewpoints of these expert witnesses" (8).
Judge McCurn also recognized that there is an inherent subjectivity in all historical study. In the case before him, for example, lawyers attempted at every turn to expose the methodological shortcomings of opposing experts as well as their alleged ideological biases. While McCurn was able to draw from all three experts in making his own findings, he also offered his assessment of each expert. He found the Cayuga's expert historian to be well versed in the field but questioned his report and testimony "because it contained many broad, rhetorical statements, not all of which find support in the historical record"(9). Judge McCurn also found the expert historian for the United States to have excellent credentials, but most of his work had been with western land disputes as opposed to the eastern land claim at issue. Also, this expert "had a tendency to place a modern construct on these century-old events, and to portray the U.S. as the 'good guy' and the state as the 'bad guy' " (10). The expert historian for the State was saddled with the unenviable task of proving what was obviously the minority historical view.
It would seem--at least from these three cases--that judges are quite capable of evaluating the credibility and reliability of historians who serve as expert witnesses. In U.S. v. Michigan, the court concluded that the historian lacked the specialized training necessary to present persuasive testimony. In Aldasaro v. Kennerson, persuasive testimony was also an issue as was the expert's inability to address recent population changes and legislation. Finally in Cayuga v. Pataki, Judge McCurn acknowledged that historians can never be completely objective. The three historians who appeared before him were "colored by their experiences both personally and professionally, and by the task which they were asked to perform" (13). Knowing this, he viewed them not as reporters of history but as scholars who possessed both strengths and weaknesses both in their expertise as well as in their interpretation of relevant documentary materials.
Brian Martin's faith in the ability of the legal system to keep historians from straying away from sound methodology and fully-supportable conclusions does not appear to be misplaced. Historians who testify are often presented by their lawyers as paragons of objectivity, however, judges like Neal McCurn seem to realize that there is no such thing as true objectivity. Ultimately, the bench looks for the same qualities that are required of all experts: appropriate specialization, thorough research, and conclusions that are well supported by the record.
John A. Neuenschwander is a Professor of History at Carthage College and the Municipal Judge for the City of Kenosha, Wisconsin. He earned his Ph.D. in history from Case Western Reserve University and his J.D. from IIT Chicago-Kent College of Law.