Did any of you see the Op Ed piece by Loftus and Steinberg in Friday's WSJ? They make some compelling commentary on the Libby trial judge's (Reggie Walton) decision to exclude expert testimony on the topic of (faulty) memory. It would seem that Mr. Scooter Libby's defense was predicated upon the supposition that if he made any incorrect statements, that it was due to faulty memory - either his, or those who testified against him. [Aside: you know, that last point is funny, insofaras I basically tell a variant of that to my wife upon occasion. As in, "I believe you believe what you are saying..." Of course, that conversation usually climaxes with my sleeping on the couch. And what, with my being thick-skulled, it is taking me a while to learn my lesson. But I digress.]
According to the article, Judge Walton ruled that the testimony of Robert Bjork was reliable under Daubert. Check. But, after a day-long hearing, Judge Walton determined that testimony on the science of memory is not "science," that it is just common knowledge. Moreover, Judge Walton also held that the proposed testimony was more likely to confuse the jury than to educate it.
In light of Rule 702, that expert testimony is meant to aid the trier of fact in understanding technical and scientific testimony beyond the common knowledge of the layperson, I can appreciate his last point. Yet, the process itself seems, well, flawed. The Judge, like any one of us, is human. Should a judge be put in the position of deciding what is / is not beyond the purveyance of John Q. Public, especially when such knowledge is central to the defense? After all, and I say this most sincerely with all due respect and without sarcasm, who is to say that what confuses the Judge would be perfectly OK with the juror? And, despite my having taken both Anatomy and Psychology courses in college (I received A's in both -- I can remember that much), I can say with relative certainty that I cannot remember from my Anatomy or Psychology courses if memory sits in the Hippocampus or college campus. So, were I a juror, I just might benefit from an expert helping me to understand how memory works, and how recall can go astray, etc.
Besides, if the topic of memory is such common knowledge, then I would imagine that no amount of expert testimony could confuse a person. That is, if 2+2 is truly 4, I think I could withstand 2, 3, or 4 hours of a college professor of mathematics waxing ad nauseum on the mechanics. And when the noise abated, I would rely upon my good common sense, saying, "Yup. 2+2 still equals 4."
But, what do I know. I am just a lay person.
