Thursday, October 25, 2007

Expert Testimony about Credibility, and the State of Legal Scholarship

I yield to no man or woman in my passion for "theory" and philosophical inquiry. Yet, I worry about the condition of legal scholarship in the U.S.

Question: What prompted the most recent wave of my unease?

Answer: I was frantically preparing for class and I discovered the interesting Texas case Schutz v. Texas, 957 S.W.2d 952 (Tex.Crim.App. 1997).

As I wrote in my class notes, the opinion of the Texas Court of Criminal Appeals in this case -- a case involving charges of aggravated sexual assault against a young child -- has "an elaborate but useful discussion ... of whether various types of expert evidence do or do not amount to prohibited opinion about the truthfulness of witnesses such as children. Cases in various states are surveyed. Court thinks that the prohibition in Rule 608(b) applies, in principle, to expert testimony about credibility or factors that affect the credibility or truthfulness of a witness. The issue is what forms of expert testimony amount to opinion about truthfulness vel non." I also discovered that the court had assembled, plainly after much labor, a comprehensive table (in an appendix) summarizing what forms of expert testimony affecting credibility and truthfulness are and are not admissible. I further found a simple but incisive concurring opinion and I also found a dissenting opinion that raised some excellent questions about the court's approach.

Well now -- I thought to myself -- this case is quite a find. The problem of sexual abuse of children is important. Texas is a big and populous state. The credibility of witnesses is almost always important in child abuse prosecutions. Experts or supposed experts are playing an increasingly important role in such criminal trials. And the question of the extent to which experts can give evidence that speaks to the believability, credibility, and truthfulness of witnesses who report being sexually abused is important. With these thoughts in mind, I did a LEXIS search for law journal articles about the Texas court's important and thoroughly-researched opinion in Schutz about this last question.

Question: What do you think I found?

Answer: Almost nothing.

I found only three brief references to Schutz in three law journal articles. Keep in mind that the Tex. Ct. Crim. App. decided Schutz and issued its opinion ten (10) years ago.

Something is wrong, isn't it?

N.B. Practicing lawyers do not think litigation and trials are unimportant. Judging by the growth of litigation departments in law firms during the last several decades, practicing lawyers (not to speak of judges) think litigation is perhaps more important than it ever was.

So what explains the paucity of academic commentary on cases such as Schutz? More important, what is the justification for this barren academic garden? (Note, the justification -- if any -- is not the importance of "theory." Good theorizing by legal academics can have very important "practical" implications. [Some people even believe that any theory worth its salt must have practical, or real-world, implications. I don't go that far. Still, the academic world should not be indifferent to "law in action.")

I shoot form the hip in this post. The reader will forgive me, I trust. I will return to this topic later.

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