NewYorkUniversity
LawReview
Current Issue

Volume 78, Number 4

October 2003

Historians at the Gate: Accomodating Expert Historical Testimony in Federal Courts

Jonathan D. Martin

Expert testimony is said to be reliable only when based upon sound method. Historians are often called upon to give expert testimony at trial to help the jury understand the subject matter of the dispute in historical context. Just as scientists must adhere to the scientific method, historians must conform their testimony to the historical method, requiring them to respect the pastness of the past by grappling with the complexity and inconsistency of the historical record and dealing appropriately with contrary evidence. Failure to adhere to the historical method results in unreliable testimony wherein the historian becomes advocate instead of advisor. Unfortunately, the adversarial nature of the courtroom can make historians stray from historical method. In this Note, Jonathan Martin explores the problem of expert historical testimony in federal courts and suggests that the public-law nature of most cases employing historical testimony, as well as a concern for intellectual due process, should prompt federal judges to overcome their traditional reluctance to appoint neutral experts under Rule 706 of the Federal Rules of Evidence. When appointed by the court, Martin argues, historians will serve less as advocates and more as advisors.