In a recent Hampshire County criminal case, the defense called an expert witness to testify that the defendant was not guilty of numerous sexual assaults and other offenses because the defendant had been sleepwalking during his crime spree.
The prosecution established that the defendant rode up and down elevators, traveled in and out of 10 different rooms on 13 different floors at a University of Massachusetts dormitory and committed 18 different criminal offenses, including sexual assault and larceny.
The defense "expert" blamed it all on a very bad, very long, extremely demanding nightmare from which the defendant simply could not rouse himself. Poor guy. Lucky guy, too; managed to hurt lots of women but suffered no injuries himself.
He even succeeded in covering for himself when one woman caught him in the act. Despite being in the throes of a rather vigorous sleepwalking episode, when the woman looked at him, he turned away and pretended to be writing a note on a message board at the dorm room next door.
Some somnambulist! He was probably writing something like "I wonder if anyone would be stupid enough to believe me if this woman called security and I feigned sleepwalking."
No doubt a C-average drama major, the guy also saved himself from tripping when another victim caught him and he had to step over her. He looked another woman right in the eye — something sleepwalkers just don't do because they are supposed to be asleep!
But forget the truth and forget that the sleepwalking defense in this case leaves a real stink in the hallowed halls of justice. The real tragedy is that the defendant was allowed to call an expert witness to the stand to testify under oath that the defense was legitimate. The trial judge allowed the testimony because the defense cited a case from more than 150 years ago where the sleepwalking excuse was used.
Maybe it was common practice 150 years ago to put on a "scientific" defense by acting like a carnival barker hawking an elixir. Maybe it was enough back then simply to claim to have "scientific proof" of a man's innocence. Maybe it was an acceptable defense strategy because in the mid-1800s, we weren't as evolved as we are today in things scientific.
But this is the year 2002 and even though the age of the most recent appellate decision on sleepwalking proves how ridiculous a defense it is, the judge authorized the use of the "snoozer excuse" tactic in a case where it doesn't even pass the laugh test.
The fact that the jury apparently agreed it was a silly defense is small comfort for anyone who takes seriously the idea that it is important to enforce rules of procedure and rules of evidence that reflect the highest possible standards of quality and fairness in the judicial system.
Only when the process reflects a commitment to integrity in the rules themselves can the public be expected to honor the results of the system, and, in turn, abide a responsible code of social conduct.
The rules with regard to the admissibility of scientific evidence have developed quite a bit since the 1800s — especially over the past decade or so since the U.S. Supreme Court ruled in the Daubert decision that judges must act as gatekeepers of scientific evidence.
By screening the proposed use of expert witnesses, judges ensure that the truth-finding function of the justice system will not be undermined by the misleading quality of "junk-science" or by the misuse of valid science as a trial tactic aimed at muddying the water and creating a "scientific" controversy where one does not legitimately exist.
For some unexplained reason, the judge in the recent sleepwalking rape case neglected his gatekeeping responsibility. He is not alone.
Other judges in criminal cases have been similarly reluctant to take the time to screen defense experts for junk science and protect the system from the strategic misuse of valid science.
In the infamous "nanny trial," Judge Hiller B. Zobel allowed the defense team to call several expert witnesses who testified, for example, that baby Matthew Eappen died of an unnoticed injury that occurred long before Louise Woodward shook and battered the child.
Defense experts said that this unnoticed injury grew and spread over time to a point where the baby simply died and it was nothing more than misfortune that Louise Woodward happened to be the only adult around when the festering problem became a deadly medical issue.
The defense experts may well have been qualified and reputable medical professionals — but so what. Judge Zobel should have forbidden much of their testimony based simply on the fact that no child in the history of mankind has ever died the way the defense experts claimed Matthew Eappen died.
In other words, it's not that they testified to "junk science," but there was certainly "junk application of good science" and junk has no place in the courtroom.
Judge Zobel's "let it all in" standard apparently does not apply to victims and prosecutors. In last year's Frangipane decision, the Supreme Judicial Court reversed a conviction in a child rape case because a small portion of testimony from a prosecution expert on the nature of trauma and memory in child sex abuse cases was deemed scientifically "unreliable."
The vast majority of the expert's testimony was both rooted in sound methodology and relevant to legitimate issues in the case, but one small piece regarding the use of PET scans to measure brain activity was held not sufficiently developed in science to merit admissibility in a courtroom.
If Louise Woodward's experts could testify at length to a wildly unscientific theory of how a baby died, how can an entire conviction be reversed because a small portion of a prosecution expert's testimony involved information in its scientific infancy?
Moreover, if convictions must be reversed where a tiny bit of novel scientific testimony is admitted, shouldn't there have been an effort to prevent or at least limit the proposed testimony of a "sleepwalking" expert who opined absurdly at trial that an accused sex offender "could not rouse himself" while committing 18 criminal offenses against numerous women in 10 different dorm rooms on 13 different floors of a building?
Query whether a judge would ever allow a victim in a rape case to call an expert to testify that she "could not have consented" because, although she was apparently awake and actively engaged in an act of intercourse, she was, in fact, sleepwalking? (OK, not quite walking but you get the point.)
Some claim that while judicial screening of proposed scientific evidence applies with equal force to both sides in a civil lawsuit, it is acceptable to cut defendants some slack in criminal cases. Judges should allow them to call expert witnesses irrespective of the validity of the methodology underlying their experts' testimony and whether or not the experts have anything relevant to say because they have to overcome the awesome power of the state and they need all the help they can get. This argument for "special" rules is misplaced.
Letting criminal defendants use "junk science" in the courtroom does nothing to maintain an appropriate balance of state power and individual rights. It does, however, undermine the integrity of the justice system by endorsing a double standard that places the strategic value of deception for one individual above truth and justice for all.
Wendy J. Murphy is a Mary Joe Frug visiting assistant professor of law at New England School of Law in Boston.
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Unfair Double Standard On Expert Testimony