TESTIMONY: KNOWLEDGE AND GARBAGE

Marquette Law Review, 2008

Judges and juries must make momentous and intricate decisions. The temptation is overwhelming for the court to request assistance from those who claim to know facts, interpretations, and explanatory models that promise to make those decisions more accurate. As long as some of us know more than others about specific probative matters, courts will certainly seek to know what those experts know or, to anticipate, what they claim to know.

Analysis, 2012

According to the evidential view of testimony (EVT), the epistemic value of testimony is its value as evidence. Richard Moran has argued that because testimony is deliberately produced with the intention of making audiences form a belief, its value as evidence for the attested proposition is diminished; as a result, EVT cannot explain why we regard testimony as such a significant source of knowledge. I argue that this argument against EVT fails, because there is no reason to think that the deliberate nature of testimony diminishes its value as evidence.

1997

When judges and juries hear from expert witnesses, what exactly do they expect to hear? In other words, as an audience what purpose do they have for the communication? Just what rhetorical burden is the expert expected to bear? The theme of our paper is that the Frye and Daubert rules that dominate legal argument about the use of expert witnesses are both flawed. Neither shows adequate respect either for what Billig calls "the argumentative aspect of social life" or the inescapable hermeneutic and perspectival problems highlighted by the rhetoric-of-the-humansciences movement. *** When judges and juries hear from expert witnesses, what exactly do they expect to hear? In other words, as an audience what purpose do they have for the communication? Just what rhetorical burden is the expert expected to bear? The recent monograph, Junk Science: Expert Witnesses in the Courtroom is perhaps the most colorful version of a more general contemporary bewilderment about the role of expertise in judicial proceedings. The theme of our paper is that the Frye and Daubert rules that dominate legal argument about the use of expert witnesses in U. S. Jurisprudence are both flawed. Neither shows adequate respect for either what Billig (1987) calls "the argumentative aspects of social life" or the inescapable hermeneutic and perspectival problems highlighted by the rhetoric-of-the-human-sciences movement (Simons, 1989). U. S. courts and all too many legal scholars apparently require from experts a certitude that permits the court to have its reasoning done for it. The epistemological stance of even the Federal Rules of Evidence suggests that the expert is to be treated as if she or he is presenting something other than an argument. Instead that worthy person is providing something lawful and dependable, a veritable rock in the midst of the adversarial theatrics of the attorneys. Our paper first presents an analysis of the evolution of the current legal rules for admissible expertise. Next we highlight the ambivalent rhetorical burden placed on expert witnesses as suggested by that ongoing evolution. The subsequent section discusses the political nature of scientific argument and the consequent argumentative nature of whatever knowledge then emerges. Our concluding section makes the case that expertise can provide a facilitating role only when presented dialogically. We present an avenue whereby judges can use one of the rules of evidence to insist that multiple experts be heard as at least some minimal guarantee that the court will thereby On appeal, the Court of Appeals of the District of Columbia upheld the lower court's bar, finding that the deception test had not gained sufficient recognition among physiological and psychological authorities.36 According to the Frye rule, it was not enough that one qualified expert believed the procedure was reliable.37 Instead, the court must determine that "general acceptance" has been reached. Until that elusive point is reached, the finders of fact will not hear the evidence. Until 1975 when the Federal Rules of Evidence (the "Rules") were enacted, and even several years beyond that for many courts,38 the Frye test was "almost universally followed" by courts in the area of scientific evidence.39 a. Advantages of a General Acceptance Standard The justification most often advanced for this "general acceptance" standard is that the experts in the particular community are in the best position to understand and evaluate the scientific evidence as they are intimately involved with the material day to day,40 and that jurors are likewise "incompetent to evaluate scientific proof critically."41 Supporters of the Frye standard also perceive the test as a conservative, bright-line, head-counting standard that is simple and convenient to apply, resulting in uniformity in the court system.42 The test is simple, not because the science is simple, but because the scientists have already thrashed out the issues, leaving the legal system with the simple task of discerning the "winner" or "winners" left standing.43 Through the publication process, the views advanced by any scientist are subjected to criticism and replication until a general acceptance has been reached.44 By looking to an external standard for admission, a great burden is lifted off the judge to analyze often complicated scientific evidence.45 Not only is the judge saved from scientific analysis, the jurors will presumably be less confused by all of the "scientific banter,"46 and "unpublished hunches,"47 from which they will have to discern scientific "truth," and the entire judicial process will benefit from the avoidance of time-consuming hearings on the validity of various innovative techniques.48 Champions of the Frye standard concede that the test will result in valid theories not reaching the fact finder, both because of the time lag between the introduction of an idea and its general acceptance,49 and through simple errors in the appraisal process.50 These advocates maintain, however, that, on balance, the benefits outweigh any disagreeable side effects.51 The amount of testimony that is erroneously excluded and the resulting consequences are less deleterious than the converse result of admitting more questionable testimony.52 b. The Demerits of the Frye Test The biggest criticism of Frye is the alleged difficulty in applying the standard and the confusion created thereby.53 To apply the general acceptance standard the judge must determine in what community should the judge "count heads,"54 who should be counted in that community and how should the votes be weighted. In addition, the judge must resolve the questions of what constitutes "general acceptance" and how may it be proved.55 The general acceptance of several techniques or principles might be problematic, as disputes over contrasting interpretations of the same data frequently span decades.56 Another condemnation of the Frye approach is that it is unduly conservative and the majoritarian standard excludes valid evidence and thus abandons evidentiary principles of relevance and tyrannizes the minority.57 According to this argument, the definition of relevance is not so stringent as to require general acceptance in the relevant community.58 According to the Frye test, a theory or principle could not make the existence of a fact more or less probable, until it has received general acceptance or majority approval.59 Opponents of Frye argue that this conservatism also infringes on the rights to a jury trial accorded by the Seventh Amendment.60 The greater the role of the expert and judge, the more hollow the right to the jury trial.61 The perceived "undemocratic" aspect of this standard is especially criticized when applied to the criminal defendant.62 The accused has a constitutional right to present exculpatory evidence.63 To limit the defendant to defenses comprised only of generally accepted principles infringes on this right.64 In fact, this constitutional right might justify a more liberal standard in this setting.65 Opponents have further criticized that the Frye test encourages courts to rely on prior judicial determinations of reliability instead of scientific determinations.66 Part of the source for the uniformity lauded by the Frye supporters is thus seen as a detriment by opponents. This extensive debate illustrates the struggles in determining what standard will best assure the most just results.

The Seton Hall Law Review, 2018

This Comment contributes to the special volume of the Seton Hall Law Review, Experts, Inference and Innocence: Symposium in Honor of the Work of D. Michael Risinger. In this Comment, I connect science-driven postconviction relief to the epistemology of disagreement — a young and rapidly developing discipline that analyzes the effects of a disagreement on the truth-value of the underlying opinion. Specifically, I argue that when a prosecution’s expert makes an inculpatory finding and then finds out that an equally informed and honest expert — an “epistemic peer” — arrived at a different opinion indicating that the defendant might be innocent, she ought to scale down her level of confidence in her own opinion. This epistemological mandate calls for granting defendants postconviction relief. In Daubert jurisdictions, which broadly admit expert testimony into evidence, courts should grant such relief as a matter of course. In jurisdictions in which expert testimony is only admissible wh...

2019

While many epistemologists stress the importance of testimony, psychologists warn us about its dangers. In the legal domain testimony is usually accepted as evidence, with some restrictions compared to acceptance in everyday contexts. Additional restrictions apply to hearsay, and the traditional ban on hearsay in legal factfinding seems to support a reductionist view of testimony: testimony is valuable insofar as it is based on first-hand knowledge, that is, on perception reported as such, with no inference nor assessment by the declarant. However, contemporary legal systems are more liberal in the admission of hearsay, and this may count as an argument in favor of anti-reductionism. The paper claims that the practical stakes explain the different attitudes towards testimony and hearsay, and that a dichotomy between reductionism and anti-reductionism is unsatisfying in that we need an account that makes sense both of the social importance of testimony and of our preference for the information sources that are closer to the relevant facts.

2005

Core epistemological questions-questions about what we know, how we know it, and when we are justified in saying we know it-have a long and deep history. The US Supreme Court broached the subject in the 1993 decision Daubert v Merrell Dow Pharmaceuticals, Inc, with references to Hempel, Popper, and other scholars. We comment here on the articles of Rothman and Greenland, who are scientists, and Haack, who is a philosopher. Their views suggest that questions of causation are neither as simple nor as difficult as many scientists and philosophers have made them. (Am J Public Health. 2005;95:S13-S15.

The journal of the American Academy of Psychiatry and the Law, 2003

The expert witness testifies under oath to tell "the whole truth," yet certain aspects of the legal system itself make this ideal difficult or impossible. The authors present both a philosophical and a practical discussion of the challenges for the expert in attaining this goal. After review of oaths in general and truth-telling in particular, real-life examples are provided to examine the vicissitudes of the whole truth in court. Recommendations are provided for experts, to preserve the truth in the adversary system.

Manitoba Law Journal 42(4), 2019

Biased expert witnesses pose a distinct challenge to the legal system. In the criminal sphere, they have contributed to several wrongful convictions, and in civil cases, they can protract disputes and reduce faith in the legal system. This has inspired a great deal of legal-psychological research studying expert biases and how to mitigate them. In response to the problem of biased experts, courts have historically employed procedural mechanisms to manage partiality, but have generally refrained from using exclusionary rules. Canada diverged from this position in 2015, developing an exclusionary rule in White Burgess experts make mistakes, and specifically looking at biases and scientific evidence in legal proceedings. The authors heartily thank Andrew Fell for invaluable feedback during the conception of this research project. Many of the ideas herein were also discussed at the annual meeting of the Evidence-based Forensics Initiative. Sarah Hamid provided tireless research and editorial support. 22 MANITOBA LAW JOURNAL| VOLUME 42 ISSUE 4 jurisprudence. The data suggests that White Burgess increased the frequency of challenges related to expert biases, however, did not noticeably affect the proportion of experts that were excluded. This suggests that the exclusionary rule introduced in White Burgess did not significantly impact the practical operation of expert evidence law, as it pertains to bias. We conclude by recommending that one way for courts to better address the problem of biased experts is to recognize the issue of contextual bias.

Episteme, 2008

ABSTRACTBy lopsided majorities, the U.S. Supreme Court, in a series of cases, persistently commanded the lower courts to condition the admission of proffered expert testimony on the demonstrated validity of the proponents’ claims of expertise. In at least one broad area–the so-called forensic sciences–the courts below have largely evaded the Supreme Court's holdings. This paper aims to try to explain this massive defiance by the lower courts in terms of social epistemology.

D. M. Godden and D. Walton, Ratio Juris, 19, 2006, 261-286.

While courts depend on expert opinions in reaching sound judgments, the role of the expert witness in legal proceedings is associated with a litany of problems. Perhaps most prevalent is the question of under what circumstances should testimony be admitted as expert opinion. We review the changing policies adopted by American courts in an attempt to ensure the reliability and usefulness of the scientific and technical information admitted as evidence. We argue that these admissibility criteria are best seen in a dialectical context as a set of critical questions of the kind commonly used in models of argumentation.