Blogs > Cliopatria > Historians as Expert Witnesses

Mar 10, 2006

Historians as Expert Witnesses




In the midst of the flurry of embarrassments to American historians about plagiarism, false witness, and misrepresentation of evidence several years ago, a well known American historian sent me a note in which he said that he thought that the role of historians as expert witnesses in legal disputes was one of the most important ethical issues facing us. He might have noted that some of the most prominent historians who were accused of ethical shortcomings had been engaged as expert witnesses.

The late Stephen Ambrose had no special expertise in the field, but based on his high visibility as a popular historian he made a good deal of money as an"expert witness" for American tobacco companies in cases where their liability for damages done to smokers was at stake. It was a cruel irony that, shortly after giving his testimony and being accused of plagiarism, Ambrose died of lung cancer, probably related to his own heavy addiction to smoking. Michael Bellesiles was not called as an expert witness, but his expertise embarrassed gun control's cause when California's 9th circuit court had to amend the notes to its favorable opinion citing Arming America, when it became clear that Bellesiles had fabricated his evidence. The irony in Bellesiles's case, I think, is that if his construction of evidence had not been so radically skewed to one side on an issue that was in heated litigation, his fabrication of evidence might have gone unnoticed. After all, from the publication of his first article on the subject in 1996 through his winning of the Bancroft Prize in 2002, none of our ordinary processes of peer review had caught it. Indeed, we gave it our highest honor.

Jon Wiener in The Nation and Kevin Murphy at Ghost in the Machine have followed a more recent record left by historians as expert witnesses on a different issue. Public health historians David Rosner of Columbia and Gerald Markowitz of CUNY are the co-authors of Deceit and Denial: The Deadly Politics of Industrial Pollution (2003), a report on the chemical industry's efforts to hide the carcinogenic effect of some of its products. To hold back a tide of lawsuits, Dow, Monsanto, Goodrich, Goodyear, Union Carbide, and 15 other companies subpoenaed peer reviewers of Deceit and Denial and hired Philip Scranton of Rutgers to challenge the book's credibility. His major allegation against Rosner and Markowitz: they had recommended the names of peer reviewers to their publisher. In defense of Rosner and Markowitz, AHA vice president Roy Rosenzweig said:"In my opinion, the book represents the highest standards of the history profession."

Now, says Murphy, a Rhode Island grand jury relied on documents surfaced by Rosner and Markowitz to find the three manufacturers of lead paint guilty of"public nuisance." According to one report, the finding of"liability paves the way for a potential damage award of millions of dollars in cleanup and mitigation costs." Subsequently, California has reinstated a class-action lawsuit against the lead paint industry and insurance companies are trying of evacuate policies for the manufacturers because they"didn't disclose the dangers of lead paint when they purchased their policies."

Three years ago, Columbia's David J. Rothman published an important article about the historian as expert witness:"Serving Clio and Client: The Historian as Expert Witness," Bulletin of the History of Medicine, 77 (Spring 2003): 25-44. Rothman outlined his argument in his abstract:

Although historians often appear in court as expert witnesses, their presence stirs unease and controversy. To clarify the issues at stake, this article compares two activities-testifying on behalf of plaintiffs, and conducting an open-ended historical inquiry-by using the author's personal experience in Craft v. Vanderbilt as a case in point. The litigation sought to gain compensation and an apology for the 830-850 women who between 1945 and 1949 at the Vanderbilt prenatal clinic were fed doses of radioactive iron without their consent so as to study the process of iron absorption. The overall conclusion is that historians can serve clients without subverting the canons of the discipline. However, because Clio and client have such different needs, historians should recognize, and take pride in the fact, that courtroom appearances represent advocacy.

Rothman's concluding sentence is not, however, altogether satisfactory for generalizations about the historian as expert witness beyond the case of Craft v. Vanderbilt. As the contrary experience of Stephen Ambrose and Philip Scranton suggests, it begs the question of advocacy"for whom?" Historians can put"For Sale" signs on their professional reputations and make a lot of money as expert witnesses. We can also, on the other hand, take up the cause of aggrieved parties in litigation and serve the cause of social justice. In either case, we risk the possibility of mis-serving our obligation to Clio's even-handed and disinterested spirit. Let the witness beware.



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Bill Heuisler - 3/16/2006

Ralph,
Since your excellent article is all about historians and their role as attestors to historical fact, I direct you to the Washington Post on Tuesday August 24, 2004, page A17.
"Kerry's Cambodian Whopper"

An excerpt:
"'I remember Christmas of 1968 sitting on a gunboat in Cambodia. I remember what it was like to be shot at by Vietnamese and Khmer Rouge and Cambodians, and have the president of the United States telling the American people that I was not there; the troops were not in Cambodia. I have that memory which is seared -- seared -- in me.'"

"However seared he was, Kerry's spokesmen now say his memory was faulty. When the Swift boat veterans who oppose Kerry presented statements from his commanders and members of his unit denying that his boat entered Cambodia, none of Kerry's shipmates came forward, as they had on other issues, to corroborate his account. Two weeks ago Kerry's spokesmen began to backtrack. First, one campaign aide explained that Kerry had patrolled the Mekong Delta somewhere "between" Cambodia and Vietnam. But there is no between; there is a border. Then another spokesman told reporters that Kerry had been "near Cambodia." But the point of Kerry's 1986 speech was that he personally had taken part in a secret and illegal war in a neutral country. That was only true if he was "in Cambodia," as he had often said he was. If he was merely "near," then his deliberate misstatement falsified the entire speech.

Next, the campaign leaked a new version through the medium of historian Douglas Brinkley, author of "Tour of Duty," a laudatory book on Kerry's military service. Last week Brinkley told the London Telegraph that while Kerry had been 50 miles from the border on Christmas, he "went into Cambodian waters three or four times in January and February 1969 on clandestine missions." Oddly, though, while Brinkley devotes nearly 100 pages of his book to Kerry's activities that January and February, pinpointing the locations of various battles and often placing Kerry near Cambodia, he nowhere mentions Kerry's crossing into Cambodia, an inconceivable omission if it were true..."

Read the rest. WAPO is no friend to Bush, and this article shows how Kerry's own campaign affirmed the Swift Boat Vets' version of history.
Brinkley's part in this is, at best, questionable. Cross examining him in court about his role in obfuscating history would be a sad experience.
Bill


Ralph E. Luker - 3/16/2006

I don't know that I disagree with any of that, though I'm less certain than you may be that the Swift Boaters' version of Kerry's experience was untainted by political bias.


Bill Heuisler - 3/16/2006

Ralph,
The quid pro quo for the removal of Soviet missiles was of worldwide importance and changes the oft-portrayed "heroic" Crisis abatement by JFK into one of near appeasement.

The Cambodia excursion was the claim of a Presidential candidate to have been involved in US violation of international law. The fact it was not true - and that Kerry later admitted it wasn't exactly accurate -is of greater significance than a mere oversight.

My point is that a good historian should get the important facts right even when his axe isn't being ground.
Further, many an expert witness has been impeached and humiliated on the witness stand when his testimony is shown to be flawed in important ways during cross examination.
Bill


Ralph E. Luker - 3/16/2006

Bill, Thanks for the effort to clarify things for me, though I think I already understood that. The fact is, however, that no historian can ever "tell it all." Especially in the magazine article short form, space requires that one condense and condense. You may believe that a historian has left out something crucial and, indeed, she may have, but there is never enough space nor to you have enough time to read the work of a historian who tells it all.


Bill Heuisler - 3/16/2006

Mr. Luker,
Mr. Hughes is making distinctions between "historians" who leave out important historical events and historians who tell it all. One is merely a polemicist, but the other is a chronicler of events.

Imagine if Harold Lamb had decided to say Temujin had not been near Bokhara in 1219, or that Batu was in Karokorum during the battle of Liegnitz. Imagine if Barbara Tuchman had ignored certain particulars of Germany's ultimatum to Russia on July 31, 1914. Then imagine their motives were personal feelings of the historians toward Temujin, Batu or the Kaiser. The objection is obvious and relevant.
Bill Heuisler


Ralph E. Luker - 3/15/2006

This is not a list of historians on the Left. Donald? Tanenhaus? Remini? Weinstein? Nevins? If you think they are on the Left, I can't imagine who you think is on the Right.


Lawrence Brooks Hughes - 3/14/2006

The list of left-leaning historians whom I adore is virtually endless: David H. Donald, Ron Chernow, Robert Caro, Alan Bullock, Robert Remini, Allen Weinstein, Sam Tanenhaus, Allan Nevins, Barbara Tuchman, etc.


Ralph E. Luker - 3/14/2006

The title of your comment and its content suggest that the test for "expert witnesses" getting into what you call "my courtroom" is whether they have the correct ideology. That is obviously the wrong test.


Lawrence Brooks Hughes - 3/14/2006

There are two warhorse historians I would never allow in my courtroom as expert witnesses, Douglas Brinkley and Robert Dallek. Brinkley's "Tour of Duty: John Kerry and the Vietnam War," was blown out of the water by John O'Neill's "Unfit for Command." (Christmas in Cambodia, anyone?) And Robert Dallek's condensed version of "An Unfinished Life: John F. Kennedy, 1917-1963," in the Atlantic Monthly, didn't even see fit to mention the quid pro quo for removal of Soviet missiles from Cuba, the withdrawal of U.S. missiles from Turkey.