FWO Fellow at Ghent University, Ghent, Belgium
In this concluding chapter of the second part of the book, I compare the conclusions from the previous chapters on the European and American experiences with the controversial practice of historians serving as expert judicial witness. My aim is to counter the argument made by Wijffels that historians should limit their involvement to providing historical facts for lawyers instead of testifying in court.
Da mihi facta, dabo tibi ius.
Give me the facts, and I will give you the law.
This second part of my research has given an overview of both European and American litigation in which historians have served as expert witnesses. By examining the cases on which Wijffels drew to establish forensic history, we have come to a better understanding of his concept. The American examples in Chap. 7 have served as a comparative angle to the European examples given in Chap. 6. This comparative method allows us to discuss the problems that have presented themselves when historians testify in court from different perspectives and based on multiple examples of expert witnessing. Bearing those illustrations in mind, I now aim to examine the five characteristics that, according to Wijffels, define the problematic constitution of forensic history. Drawing from the illustrations examined in this second part of my research, I argue that Wijffels’ conclusions on forensic history should be reassessed.
Wijffels gives five points that present contrasting features between a forensic history and normal historical [academic] debate. In the first place, he argues that there is less possibility for debate in court than within the protective walls of the academic society.1 Wijffels’ second and third point are related to his first argument. The second issue Wijffels defines is that the position of the expert witness differs from that of independent research in an academic situation. Whereas his third point stresses that the purposes of direct and cross-examination are of a different nature than normal academic debate. The fourth reason is that historians are faced with a time factor that is much more constraining than in academic environments. While his last point is similar to the objections made by historian Kessler-Harris who testified in the Sears case, namely that the judge has the power to adjudicate historical reports filed by expert witnesses and consequently make a single and final interpretation of a historical event.2
I reduce Wijffels’ five-point scheme to a three-point scheme, on the grounds that his first three reasons are very much alike, each stressing one element of the same argument, namely that academic debate and research differs from that of the adversarial debate in court and from litigation-driven history. The first issue I discuss is thus that the forensic context of history differs from normal historical academic debate and research. The second argument I tackle is about the time pressure that is different for historians who are called upon as expert witnesses, while the third problem I review is about the power of the judge to make a judgment on historical facts.
I concur partially with Wijffels’ first argument. It is clear that the forensic context constraints the historical debate because of legal preconditions. The question is: to what extent is history forced into a legal straightjacket? On the one hand, the phase during which experts have to testify in court formalizes the way historical research is presented. The depositions, the direct examination, redirect and certainly cross-examination are not normal forms of historical debate. On the other hand, on multiple occasions in litigation-driven history historians have contributed to historiography and historical research. Such examples are: German historical research under the Ludwigsburg paradigm, the books published by Rosner and Markowitz based on their work in lead paint toxic tort litigation, the work of Evans and other historians in the Irving trial, the publication of internal industry documents which would have been non-accessible to historical research if it had not had been for litigation, the extra funding for research projects because of litigation, and so forth.
Moreover, Wijffels does not take into account that there are many safeguards to ensure that historians stay true to their professional standards. Expert witnesses put their professional reputation at stake with every trial.3 As Paul Soifer remarked: “[t]here are no friendly lawsuits; litigation is an adversary process in which the opposition is portrayed as the implacable enemy.”4 The dangers of being discredited during testimony and cross-examination by lawyers from opposing counsel is on the one hand not an event the expert witness looks forward to, on the other hand the cross-examination assures that expert reports are extremely well-documented and meticulously researched historical inquiries. The report is a document that is not written in legal vocabulary and is excellent historical research because it has been prepared to face such unacademically scrupulous examination in court. Furthermore, the historian is under oath when presenting his report. Grave distortions of history can thus be liable to perjury actions. When a person’s fate hangs in the balance, in criminal trials, the expert witness will also be more careful when testifying. Historical reports in general are examples of reliable historical practice because of all the risks that are involved when the report is characterized by advocacy: loss of credibility, possible exclusion from testimony, damaging the litigants chances of winning the case, risks for the professional standing of a historian, litigation risks of perjury, scrutiny by opposing counsel and the opposing expert, negative repercussions at the university, or the company where the expert is employed or when the expert is an individual consultant: loss of possible future clients, and many others reasons. Even zeal to defend the argumentation of one’s own side does not preclude impartial historical research, as long as it happens according to the standards of the historical discipline.
Wijffels also discussed that the Papon trial had two stages in which historians had been active. In the first stage, historians had functioned as consultants and in the second stage, they had testified. Wijffels describes with aversion how the historian is questioned under cross-examination.5 For him, “the cross-examination also showed the limitations of the expert’s mission and findings.”6 Wijffels argues that historians should assist the investigation of the judge more as a fact deliverer than as an expert who gives his opinion.7 Ideally for Wijffels, the historian as a forensic expert should only be active as a consultant without appearing on trial. Wijffels described the witnessing phase for expert historians as follows: “To lawyers (and others), history may be ‘another country’,8 but conversely, historians appearing in court may equally find that in spite of their expert status, the rules applied by forensic practitioners in order to assess their reasoning and opinions are a far cry from those which prevail on their home turf.”9
The counterargument to Wijffels’ proposition is that limiting historical expertise to consulting would mean a self-fulfilling prophecy of all the problems Wijffels argues exist in “the forensic form of history.” The reason for this is, as historian and president of History Associates Inc. Brian Martin wrote: “[t]he consulting part of expert witnessing is protected by attorney-client privilege. While everything that happens in court is not.”10 Limiting experts to the first stage of consulting would mean that the historical investigation would be unreviewable and inaccessible by peers. Many important historical documents would remain closed for other researchers. Lawyers try to limit all possible documentation and records to avoid subpoenas.11 This is an excellent environment for partisanship to thrive. As I have discussed, all the imperatives for historians and their clients to be truthful and work according to the standards of their profession are situated at the expert witnessing level; in the adversarial system. The work of a testifying expert is only open to examination by the adversary during the proceedings in court.12 Transparency is the key element in ensuring a professional and just historical testimony. Peer review and publication ensure good historical research, and the consequent application of ethical codes and professional standards, limiting historical forensic activity to the confinements of the basements of legal companies would have extremely dire consequences for the quality of litigation-driven history.
As much as the adversarial system inclines experts to give in to advocacy, there are enough elements in the judicial system that force historians to remain true their professional standards.13 Kousser noted that every historian who testifies in court is confronted with a variation of the “Faustian quandary: should one compromise with evil, and, if so, how far?”14 I argue that the Faustian dilemma is inescapable; advocacy is inescapable in any form of historical research, the courtroom forms no exception. That does not imply that is impossible to bring reliable historical knowledge into the courtroom, as historian Charles Colton concluded: “[i]t is possible to stand firm against pressure, and the historian must select that option.”15 In the end “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”, judge and historian Neuenschwander noted.16
The second argument Wijffels makes about time, is relevant in some cases, in other examples of litigation less so. Just as in the academic environment, historians are sometimes under pressure to finish an article before the deadline for a call of papers ends, so too, do expert witnesses sometimes have to work under a great deal of stress to meet their deadlines. Issues about time are more appropriate to argue that historians should stick to testifying about a subject they are specialized in.17 It is more credible to judges when academic historians working as experts have published on the subject and have experience in the area, as opposed to an expert who started his research on the subject of his testimony only 6 months before the trial.18 Time constraints are a problem in litigation-driven history, but they are not bigger or more problematic than in any other form of the historical profession.19 If anything, lawyers and clients who decide to invest in hiring a historian as an expert witness will want to make sure, in their own interest, that their witness has had enough time and funds to do his job and create an adequate expert report.
Wijffels’ third point, that history is judged in the courtroom, is an issue we already discussed in the previous chapter, as it was voiced by multiple historians as an argument against testifying. The legal discipline is not static but dynamic, influenced in its theories and practices by social changes. Ranieri writes: “Legal history demonstrates that the law cannot reverse fundamental, long-term social and economic transformations which a society has undergone.”20 The individual case champions one historical account above the other, while the next trial might break with this so-called stare decisis. The Brown case offers a great example of how official legal custom changed its vision on racial segregation from one day to the next.21 Just as in the historical discipline, the study of law reinterprets its views on the past. In other words, in law as in history, wrong and right change over time, but history will always be judged. The historians who serve as an expert witnesses are not asked to judge in their testimony. Experts give an opinion on the general historical context of what they truly believe happened. Judging should be left to the legal profession, but it is the task of the historical discipline to historically inform and protect the verdict from abuse of historical facts.
Another counterargument to the advice of Kessler-Harris for historians “to stay away from the courtroom in order to evade that history will be judged”, is that history already played a role in court long before historians began testifying as expert witnesses. As described in Kelly’s article on the Brown case, the US Supreme Court used historical arguments to legitimate its decisions without the appearance of any historian as an expert witness.22