Abstract: [S]cientific inquiry is by nature tentative and thoroughly fallibilist; it focuses on the general law or principle rather than the particular case; its core values are intellectual honesty and willingness to share evidence.... So it is hardly surprising that the legal system has had trouble handling testimony, for the legal culture could hardly be more different: adversarial; focused on the specific case; formally procedurally anchored; valuing promptness and finality.... (1) I INTRODUCTION The theme for the Spring 2007 SKAPP (Scientific Knowledge and Public Policy) conference in New Hampshire was in Science and Law. For me, the central issue was how legal conventions and conventions differ, and, insofar as they do differ, what impact this has on the behavior of individuals at the interface of law and science. (2) This article addresses one aspect of that question: how these conventions affect the behavior of expert witnesses when they appear in court in both civil and criminal cases. Expert witnessing is a particularly useful place to observe the clash of legal and conventions because it is here that one group of people (scientific experts) who are integrated into one set of conventions are challenged by the expectations of a different set of conventions. Section II of this article reviews differences in and legal conventions as they apply to expert knowledge. Section III discusses two central reasons for these differences: adversarialism and closure. Section IV focuses on expert testimony. It indicates how differences in legal and conventions caused by adversarialism and the law's need for closure create role conflicts for experts, as well as uncertainty about the level of justification an expert should have before expressing an opinion in court. (3) The article concludes with some thoughts about the appropriate accommodation between and legal conventions. II SCIENTIFIC AND LEGAL CONVENTIONS CONCERNING EXPERT KNOWLEDGE A. Scientific Conventions What are the conventions surrounding expert knowledge? (4) Most people who study the doing of science would agree that there is no special scientific method that is different from and better than other ways of understanding the world. (5) The successes of the natural sciences over the last few centuries are not the result of a special way of going about the production of knowledge. (6) But methods are a core part of conventions. Each corner of the enterprise is chock full of methodological prescriptions. A substantial part of having what passes for expertise in a field is an ability to use the tools of the trade and an appreciation of the nuances of the methods of investigation commonly employed in the discipline. Susan Haack divides these aids to understanding into three categories: helps to the senses, helps to reasoning, and helps to evidence-sharing and intellectual honesty. (7) Instruments that expand our senses are at the very heart of progress in physics, astronomy, chemistry, and biology, as well as in such practical disciplines as medicine and engineering. Aids--helps--to reasoning are also critical. These include mathematics in its many different forms as well as experimental and quasi-experimental designs and other investigatory devices designed to assist in making causal assertions. (8) The third set of aids, aids to evidence-sharing and intellectual honesty, includes such things as peer review, publication, replication of findings, and other formal and informal devices that involve scientists looking over each other's shoulders. Often this peek over the shoulder focuses on the correct use of the first two types of aids--instruments and mathematics and experimental design. All of these aids are fallible and none guarantees that we will arrive at correct outcomes. …
Publication Year: 2009
Publication Date: 2009-01-01
Language: en
Type: article
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Cited By Count: 9
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