Truth is one of the highest religious values. The Torah requires that we not only refrain from lying but that we also actively seek to perpetuate truth. Consider this Talmudic teaching:
The rabbis teach that G-d hates “he who possesses evidence concerning his neighbor and does not testify for him; and he who sees something indecent in his neighbor and testifies against him alone” (Pesachim 113b).
In accordance with Judaic values regarding the truth, the rabbis were very concerned about the motivation of expert witnesses: “The testimony of one who receives pay to testify is invalid” (Bechorot 29a). The testimony can, however, become valid if the witness returns the money (Choshen Mishpat 34:18). Giving testimony is in itself a mitzvah, so the rabbis frowned upon compensation; but the rabbis’ more pragmatic concern was that a witness might come to lie if he or she was being paid. The rabbis did allow for one to be compensated, however, for his or her time away from work (schar batala).
According to a 2012 survey analyzing expert witness fees in a variety of fields, expert witness fees have reached new highs. Some of the highest paid (per hour) expert witnesses included physicians ($429), psychiatry ($414), computer/Internet/technology specialists ($414), business/financial fields ($352), and engineering/science specialists ($263). On average, across the fields, an expert witness spends approximately 47 hours on a given assignment. Further, experts with 10 or more years of litigation experience received, on average, 15% more per hour. Thus, tech specialists earned an average of $46,196 per assignment, and business experts earned an average of $30,644, well above the yearly income of millions of Americans. The rabbinical concern regarding the influence of money in court testimony seems even more poignant today, when experts are regularly being paid tens of thousands of dollars for their testimony that favors the prosecution or defense.
The legal practice in the Unites States of allowing the parties to a conflict to present testimony from paid expert witnesses who have been chosen, presumably because of their favorable opinion, is unique. In most countries, expert witnesses are chosen by judges and are meant to be neutral, objective, and independent of partisan influence. Melvin Belli, the famous attorney, once said: “If I got myself an impartial witness I’d think I was wasting my money.” While humorous, this is particularly insightful into the problems the adversarial system of expert testimony presents. Another attorney explains: “One’s biased for the defense. The other’s biased for the state. I think it’s who’s signing their paycheck.” So judges and jurors are generally left with conflicting expert testimony that basically cancels the other out. Samuel R. Gross, a law professor at the University of Michigan, states bluntly: “The contempt of lawyers and judges for experts is famous. They regularly describe expert witnesses as prostitutes.”
- A California man claimed, with success, to be a computer forensics expert and testified as such in numerous court cases before being discovered as a fraud. The man plead guilty to charges of perjury and was sentenced to nearly two years in prison. His lawyer briefly acknowledged the financial incentives that led to his client’s illegal behavior.
- In Florida, a man claimed on his website that he was a “professor of medicine” and was available for criminal defense work at a rate of $300/hr. He testified in a child abuse case before his credentials were determined to be invalid and he was charged with perjury.
- This month in Georgia, a doctor was found to have bolstered his credentials in order to be selected as an expert for a trial where he would be paid a professional fee.
Even more troubling in these cases is that the expert witness’ perjury calls into doubt the ultimate verdict in the case and in some instances may deprive victims of justice or cause innocent men and women to be wrongfully imprisoned.
The S’ma (33:1) makes an important point, arguing that we are concerned with expert witnesses because we are not dealing with simple testimony but judgment, which “…depends on logic and thought…changes due to friendship and enmity, even without evil intention.” It is evident that the large sums of money that expert witnesses are being paid are incentivizing immoral, unethical, and illegal behavior. Logic and thought, like the S’ma states, should be the basis of any testimony and eventual verdict; however, lying, false bolstering of credentials, pandering, and perjury are unduly influencing the administration of our legal system.
Perhaps, the 13th century Spanish Rabbi, the Rashba’s (Bechorot 3:1) crucial distinction that a witness should not be paid when they have already witnessed the case would make a difference in ensuring the integrity of testimony. The Rashba continues and states that if the witness is being asked to go out and observe something that they have yet to observe then this work may be compensated. Still, the 18th century Polish authority, the Netivot Hamishpat (34:10) argues that one can only be paid if they’re paid by both parties to the contention, because if he or she was paid solely by a single party the witness would feel an obligation to the paying party.
In surveys conducted by the Federal Judicial Center of lawyers and judges, the biggest problem regarding expert testimony that was cited was that “experts abandon objectivity and become advocates for the side that hires them.” One solution found in Jewish law is to have three appraisers give judgment in some cases rather than just having one (Choshen Mishpat 103). This helps to mitigate unique or biased opinions that are inherent in all judgments and value determinations. However, hiring three expert witnesses is very expensive, so Jewish courts often just use one witness but have both sides determine the acceptability of the expert so as to prevent either side from exacting a partisan influence on the expert and to ensure the expert’s objectivity.
An alternative approach would be to use the experts to discipline themselves. One possible proposed solution is for expert groups (e.g., medical societies) to establish a code of conduct for expert witnesses, including the ability to revoke the license of a witness who makes unsubstantiated claims or misleading statements. Thus, the financial incentive of testifying would be balanced by the threat of losing one’s license if the code was violated. Dr. Aaron S. Kesselheim of Brigham and Women’s Hospital in Boston made this proposal in 2007: “An expert should review the entire case history before providing an opinion in court—and base opinions on peer-reviewed evidence whenever possible.” Just think how much more reliable expert witnesses would be if each area of expertise had these codes. We should look to the wise counsel provided to us to avoid future scandals.
There is great value to testimony and expert witnesses. Sadly many challenges have been shown to securing accurate expertise due to the influence of financial incentives. Each expert should hold him/herself to the highest standard of truth and we should call for reforms to ensure that expertise is engaged with greater balance and without conditions that often lead to bias.
Rabbi Dr. Shmuly Yanklowitz is the Executive Director of the Valley Beit Midrash, the Founder & President of Uri L’Tzedek, the Founder and CEO of The Shamayim V’Aretz Institute and the author of “Jewish Ethics & Social Justice: A Guide for the 21st Century.” Newsweek named Rav Shmuly one of the top 50 rabbis in America.”