After I blogged last week about the Blurred Lines verdict, I ended up in a Twitter conversation over the validity of Judith Finell’s report and testimony in the case. Finell is a music expert - or musicologist - who testified for Marvin Gaye’s family that Robin Thicke’s song held so many similarities to Gaye’s 1977 hit Got To Give It Up that “[t]he two songs’ substantial similarities surpass the realm of generic coincidence, reaching to the very essence of each work,” that “[i]n listening to these two songs, the ordinary ‘lay' listener would likely recognize the substantial similarities between them,” and that “the ordinary observer would recognize the substantial similarities between these songs."
My conversation partner had a hard time swallowing Finell’s report because, as he put it, he could hear the differences between them with his own two ears. He felt that Finell was reaching and was missing the forest for the trees. I agreed that I couldn't find the songs as similar as Finell did, but I nevertheless defended her report and expertise. While I could not reasonably conclude that Blurred Lines and Got To Give It Up were close enough to enforce a copyright infringement claim, I’ve seen a number of people argue that the songs are so alike they might as well be the same.
And that’s why we have expert testimony, isn’t it? Because two reasonable lay persons can come to different conclusions about a thing, and that without expert testimony, the issue would be unresolvable. According to the Rules of Evidence Advisory Committee,”[a]n intelligent evaluation of facts is often difficult or impossible without the application of some scientific, technical, or other specialized knowledge."
Rule 702 of the Federal Rules of Evidence addresses that very issue. The rule governs the use of expert testimony in trial and pre-trial stages (most states have a similar rule for their state courts) and provides that:
"A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.”
In other words, someone who really knows their stuff inside and out and can help the jury figure it out.
Expert testimony has long been considered an important part of the judicial process, but that role was solidified in the early 90’s when a trio of Supreme Court cases dealing with the validity of expert testimony arose. Out of those cases came the Daubert Standard, a process by which a court can ascertain whether an expert’s testimony is admissible. To do that, the expert must demonstrate that his/her conclusion about an issue is derived from sound scientific methodology and rigorous fact-based analysis. Among the factors considered in applying the Daubert Standard: whether the issue can be empirically tested, whether it might be subjected to peer review and publication, and whether the methodology used is generally accepted in the scientific community. In 2000, Rule 702 was amended to codify the Daubert Standard directly into the process.
I mention all of this to simply say that experts are important when regular people like you and I lack the expertise to sufficiently judge an issue. Which means that we might personally disagree with Judith Finell’s conclusion on the Blurred Lines case, but that doesn’t mean we know what we're talking about.