Anna Lvovsky, The Province of the Jurist: Judicial Resistance to Expert Testimony on Eyewitnesses as Institutional Rivalry 126 Harv. L. Rev. 2381 (2013).
Abstract: This Note examines the institutional biases underlying courts’ persisting, and deeply criticized, resistance to expert testimony on the reliability of eyewitnesses. While such resistance is generally explained as preserving the jury’s authority over fact-finding, protecting the democratic jury trial against “professionalization” by an elite class of experts, I argued that it more frequently reflects judges’ sense that eyewitness experts fail to improve on traditional safeguards provided by judge and attorneys, such as jury instructions and cross-examination — effectively preserving the trial as the professionalized realm of expert jurists. In context, advocates urging the admission of expert testimony should focus less on establishing the gap between expert and lay knowledge regarding eyewitnesses, and more on establishing the gap between expert testimony and judicial alternatives in correcting juror misconceptions.