We examine the relationship between scientific knowledge and the legal system with a focus on the exclusion of expert testimony from trial as ruled by the Daubert standard in the US.We introduce a simple framework to understand and assess the role of judges as “gatekeepers”, monitoring the admission of science in the courtroom. We show how judges face a crucial choice, namely, whether to limit Daubert assessment to the abstract reliability of the methods used by the expert (...) witness or also to check whether the application of those methods was correct. Undesirable outcomes result from both choices, thereby giving rise to the “gatekeeper’s dilemma.” We illustrate the dilemma by analyzing in some detail two well-known cases of Daubert challenges to economic experts. Finally, we present reasons for the absence of straightforward solutions to the dilemma and for its likely endurance. (shrink)

There is great skepticism about the admittance of expert normative ethics testimony into evidence. However, a practical analysis of the way ethics testimony has been used in courts of law reveals that the skeptical position is itself based on assumptions that are controversial. We argue for an alternative way to understand such expert testimony. This alternative understanding is based on the practice of clinical ethics.

This article discusses the concept of epistemic authority in the context of English law relating to expert testimony. It distinguishes between two conceptions of epistemic authority, one strong and one weak, and argues that only the weak conception is appropriate in a legal context, or in any other setting where reliance on experts can be publicly justified. It critically examines Linda Zagzebski's defence of a stronger conception of epistemic authority and questions whether epistemic authority is as closely analogous (...) to practical authority as she maintains. Zagzebski elucidates a kind of deference that courts generally, and rightly, try to avoid. Her concept of ‘first person reasons’, however, does capture an important aspect of the deliberations of conscientious legal actors. (shrink)

A consensus in a scientific community is often used as a resource for making informed public-policy decisions and deciding between rival expert testimonies in legal trials. This paper contains a social-epistemic analysis of the high-profile Bendectin drug controversy, which was decided in the courtroom inter alia by deference to a scientific consensus about the safety of Bendectin. Drawing on my previously developed account of knowledge-based consensus, I argue that the consensus in this case was not knowledge based, hence courts’ (...) deference to it was not epistemically justified. I draw sceptical lessons from this analysis regarding the value of scientific consensus as a desirable and reliable means of resolving scientific controversies in public life. (shrink)

Using the controversy over the MMR vaccine, I consider the reasons why non-experts should defer to experts, and I sketch a model for understanding cases where they fail to defer. I first suggest that an intuitively plausible model of the expert/non-expert relationship is complicated by shifting epistemic standards. One possible moderate response to this challenge, based on a more complex notion of non-experts' relationship with experts, seems unappealing as an account of the MMR controversy. A more radical suggestion (...) is that non-experts might have a political reason to defer to experts, when not doing so will involve ‘epistemological free-riding’. I investigate the implications. (shrink)

In February 1999, I received a call from a lawyer at Hill Abra Dewar stating that she had instructions to retain my services as an expert witness in the case of Sawatzky v. Riverview Health Centre. She was representing the Manitoba League of Persons with Disabilities which had intervenor status.In Canada the admission of expert testimony depends upon the application of four criteria outlined in R. v. Mohan by Justice Sopinka. These criteria are: relevance; necessity in assisting (...) the trier of fact, the absence of any exclusionary rule; and a properly qualified expert. The lawyer believed that I could provide the court with relevant, reliable ethics testimony about surrogate decision-making and about medical futility-information that likely would be outside the experience and knowledge of the trier of fact. (shrink)

In February 1999, I received a call from a lawyer at Hill Abra Dewar stating that she had instructions to retain my services as an expert witness in the case of Sawatzky v. Riverview Health Centre. She was representing the Manitoba League of Persons with Disabilities which had intervenor status.In Canada the admission of expert testimony depends upon the application of four criteria outlined in R. v. Mohan by Justice Sopinka. These criteria are: relevance; necessity in assisting (...) the trier of fact, the absence of any exclusionary rule; and a properly qualified expert. The lawyer believed that I could provide the court with relevant, reliable ethics testimony about surrogate decision-making and about medical futility-information that likely would be outside the experience and knowledge of the trier of fact. (shrink)

The term, “bioethics” was coined in 1970 by American cancerologist V. R. Potter. In the few decades since, the field of bioethics has emerged as an important discipline. The field has attained a remarkable degree of public recognition in a relatively short period of time. The “right to die” cases such as In re Quinlan placed bioethical issues on the front pages. Although the discipline is of recent vintage, the past quarter century has witnessed a flurry of scholarly activity, creating (...) a substantial body of bioethical literature. Moreover, the bioethics movement has manifested itself in institutional expressions. Universities and medical schools have added courses in bioethics to their curricula. In 1974, federal legislation and regulations mandated that federal grantees conducting human subjects research establish institutional review boards to safeguard subjects’ welfare, and even absent a legislative mandate numerous hospitals created ethics committees. Centers and institutes, devoted exclusively to the study of bioethical issues, have been founded. (shrink)

The term, “bioethics” was coined in 1970 by American cancerologist V. R. Potter. In the few decades since, the field of bioethics has emerged as an important discipline. The field has attained a remarkable degree of public recognition in a relatively short period of time. The “right to die” cases such as In re Quinlan placed bioethical issues on the front pages. Although the discipline is of recent vintage, the past quarter century has witnessed a flurry of scholarly activity, creating (...) a substantial body of bioethical literature. Moreover, the bioethics movement has manifested itself in institutional expressions. Universities and medical schools have added courses in bioethics to their curricula. In 1974, federal legislation and regulations mandated that federal grantees conducting human subjects research establish institutional review boards to safeguard subjects’ welfare, and even absent a legislative mandate numerous hospitals created ethics committees. Centers and institutes, devoted exclusively to the study of bioethical issues, have been founded. (shrink)

Appraising the worth of others’ testimony is always complex; appraising the worth of expert testimony is even harder; appraising the worth of expert testimony in a legal context is harder yet. Legal efforts to assess the reliability of expert testimony—I’ll focus on evolving U.S. law governing the admissibility of such testimony—seem far from adequate, offering little effective practical guidance. My purpose in this paper is to think through what might be done to (...) offer courts more real, operational help. The first step is to explain why the legal formulae that have evolved over the years may seem reassuring, but aren’t really of much practical use. The next is to suggest that we might do better not by amending evidentiary rules but by helping judges and attorneys understand what questions they should ask about expert evidence. I focus here on (i) epidemiological testimony, and (ii) the process of peer review. (shrink)

A recent Supreme Court decision, Kumho Tire Co., Ltd. v. Carmichael, may have substantial impact on psychological expert testimony. Previous criteria for admissibility of scientific expert testimony now apply broadly to expert testimony, not just testimony narrowly grounded in scientific evidence. Judges will determine the relevance and reliability of all expert testimony, including that based on clinical experience or training. Admissible testimony will either satisfy the criteria established in Daubert v. (...) Merrell Dow Pharmaceuticals, Inc. or meet similarly rigorous standards judged appropriate to the particular field involved. Because psychological testimony has varied in its evidentiary basis, sometimes relying on science and otherwise on clinical training or experience, court decisions will gradually determine the precedent for its admissibility. We also discuss long-term consequences for the credibility of psychological expert testimony and the relation between psychology and law. (shrink)

In this paper we address the question of how it can be possible for a non-expert to acquire justified true belief from expert testimony. We discuss reductionism and epistemic trust as theoretical approaches to answer this question and present a novel solution that avoids major problems of both theoretical options: Performative Expert Testimony. PET draws on a functional account of expertise insofar as it takes the expert’s visibility as a good informant capable to satisfy (...) informational needs as equally important as her specific skills and knowledge. We explain how PET generates justification for testimonial belief, which is at once assessable for non-experts and maintains the division of epistemic labor between them and the experts. Thereafter we defend PET against two objections. First, we point out that the non-expert’s interest in acquiring widely assertable true beliefs and the expert’s interest in maintaining her status as a good informant counterbalances the relativist account of justification at work in PET. Second, we show that with regard to the interests at work in testimonial exchanges between experts and non-experts, PET yields a better explanation of knowledge-acquisition from expert testimony than externalist accounts of justification such as reliabilism. As our arguments ground in a conception of knowledge, which conceives of belief-justification as a declarative speech act, throughout the rearmost sections of this paper we also indicate to how such a conception is operationalized in PET. (shrink)

In this paper we address the question of how it can be possible for a non-expert to acquire justified true belief from expert testimony. We discuss reductionism and epistemic trust as theoretical approaches to answer this question and present a novel solution that avoids major problems of both theoretical options: Performative Expert Testimony (PET). PET draws on a functional account of expertise insofar as it takes the expert’s visibility as a good informant capable to (...) satisfy informational needs as equally important as her specific skills and knowledge. We explain how PET generates justification for testimonial belief, which is at once assessable for non-experts and maintains the division of epistemic labor between them and the experts. Thereafter we defend PET against two objections. First, we point out that the non-expert’s interest in acquiring widely assertable true beliefs and the expert’s interest in maintaining her status as a good informant counterbalances the relativist account of justification at work in PET. Second, we show that with regard to the interests at work in testimonial exchanges between experts and non-experts, PET yields a better explanation of knowledge-acquisition from expert testimony than externalist accounts of justification such as reliabilism. As our arguments ground in a conception of knowledge, which conceives of belief-justification as a declarative speech act, throughout the rearmost sections of this paper we also indicate to how such a conception is operationalized in PET. (shrink)

How can we make informed decisions about whom to trust given expert disagreement? Can experts on both sides be reasonable in holding conflicting views? Epistemologists have engaged the issue of reasonable expert disagreement generally; here I consider a particular expert dispute in physics, given conflicting accounts from Harry Collins and Allan Franklin, over Joseph Weber’s alleged detection of gravitational waves. Finding common ground between Collins and Franklin, I offer a characterization of the gravity wave dispute as both (...) social and evidential. While experimental evidence alone may not have forced resolution of the dispute, there were also credibility‐based reasons warranting epistemic trust and distrust. Thus we see how social factors can have evidential significance and how expert disagreement can be reasonable. †To contact the author, please write to: Philosophy Dept., Communication Arts Division, College of Lake County, 19351 W. Washington St., Grayslake, IL 60030; e‐mail: [email protected]. (shrink)

The standard of proof in criminal trials should require that the evidence presented by the prosecution is robust. This requirement of robustness says that it must be unlikely that additional information would change the probability that the defendant is guilty. Robustness is difficult for a judge to estimate, as it requires the judge to assess the possible effect of information that the he or she does not have. This article is concerned with expert witnesses and proposes a method for (...) reviewing the robustness of expert testimony. According to the proposed method, the robustness of expert testimony is estimated with regard to competence, motivation, external strength, internal strength and relevance. The danger of trusting non-robust expert testimony is illustrated with an analysis of the Thomas Quick Case, a Swedish legal scandal where a patient at a mental institution was wrongfully convicted for eight murders. (shrink)

The ArgumentThis paper provides a historical perspective to one of the liveliest debates in common law courts today — the one over scientific expert testimony. Arguing against the current tendency to present the problem of expert testimony as a late twentieth-century predicament which threatens to spin out of control, the paper shows that the phenomena of conflicting scientific testimonies have been perennial for at least two centuries, and intensely debated in both the legal and the scientific (...) communities for at least 150 years. (shrink)

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. (shrink)

We examined the dilemmas posed by the involvement of expert witnesses in court cases and the institutional constraints on the ethics of expert testimony. The causes for the incorporation of bad science into legal decisions, potential solutions to this dilemma, and the limitations of these solutions are considered. We concluded that law, science, and experts must respond to the problems posed by expert witnessing.

By 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.

. 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. (shrink)

The rapid advancement from single-gene testing to whole genome sequencing has significantly broadened the type and amount of information available to researchers, physicians, patients, and the public in general. Much debate has ensued about whether genomic test results should be reported to research participants, patients and consumers, and at what stage we can be sure that existing evidence justifies their use in clinical settings. Courts and judges evaluating the utility of these results will not be immune to this uncertainty. As (...) scholars increasingly explore the duty of care standards related to reporting genomic test results, it is timely to provide a framework for understanding how uncertainty about genetic and genomic tests influences evidentiary considerations in the court room. Here, we explore the subtleties and nuances of interpreting genetic data in an environment of substantial discord related to the value that individuals should place on genetic and genomic tests. In conjunction, we discuss the roles courts should play in qualifying experts, expert testimony, and genetic and genomic tests given the intricate and complex nature of genetic and genomic information. (shrink)

By 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.

Since the Restitution of Land Rights Act 22 of 1994 came into operation, courts have come to attach considerable significance to historian expert testimony when ruling on land claims that made it to court. Therefore, a universal approach had to be adopted. Over the years the Supreme Court of Appeal and Constitutional Court have developed tried and tested methodologies to aid the courts in determining the weight and admissibility of a witness' testimony. In the Salem Commonage case, (...) both the Land Claims Court and the majority of the Supreme Court of Appeal deviated from these precedents by adopting arguably a broader interpretation of the Act than intended. The case is unique in the sense that the dispute involves a commonage that was subdivided via a court order in 1940, resulting in the removal of the remaining black African population from that land. The question therefore was whether or not this group of people fulfilled the requirements for a valid claim as set out in the Act. The Land Claims Court and Supreme Court of Appeal felt that it had. The landowners applied for leave to appeal to the Constitutional Court. The application was granted, but in his judgment, Edwin Cameron agreed with the rationale of both courts, and held that there was a valid claim. This was despite the fact that the testimony of the claimants' 'star witness', Msile Nondzube, was heavily criticised by the landowners as well as a Supreme Court of Appeal judge. The Constitutional Court emphasised that the Act was an extraordinary piece of legislation and had to be interpreted in such a way so as to address the injustices of the past. This included provisions of the Act which dealt with how oral and expert evidence would be dealt with. (shrink)

Participants acting as mock jurors made inferences about whether a person was a suspect in a murder based on an expert's testimony about the presence of objects at the crime scene and the disclosure that the testimony was true or false. Experiment 1 showed that participants made more correct inferences, and made inferences more quickly, when the truth or falsity of the expert's testimony was disclosed immediately after the testimony rather than when the disclosure (...) was delayed. Experiment 2 showed no advantage for prior disclosure over immediate disclosure. Experiment 3 showed that the pattern of inferences when there was no disclosure mirrored the pattern when it was disclosed that the expert's testimony was true rather than false. Participants made more correct inferences from true conjunctions than disjunctions, and from false disjunctions than conjunctions. We discuss the implications for theories of the mental representations and cognitive processes that underlie human reasoning. (shrink)

In this paper I argue that Tyler Burge's non-reductive view of testiomonial knowledge cannot adeqautrely discriminate between fallacious ad vericumdium appeals to expet testimony and legitimate appeals to authority.

Scientific expert testimony is crucial to public deliberation, but it is associated with many pitfalls. This article identifies one—namely, expert trespassing testimony—which may be characterized, crudely, as the phenomenon of experts testifying outside their domain of expertise. My agenda is to provide a more precise characterization of this phenomenon and consider its ramifications for the role of science in society. I argue that expert trespassing testimony is both epistemically problematic and morally problematic. Specifically, I (...) will argue that scientific experts are subject to a particular obligation. Roughly, this is the obligation to qualify their assertions when speaking outside their domain of scientific expertise in certain contexts. Thus, I argue that scientists who possess expert knowledge are confronted with hard questions about when and how to testify and, therefore, that being a scientific expert comes with great responsibility. Consequently, I provide a concrete “expert guideline” according to which scientific experts, in certain contexts, face an obligation to qualify their assertions when speaking outside their domain of expertise. Furthermore, I consider a number of the conditions in which the guideline is waived or overridden. On this basis, I consider the broader aspects of the roles of scientific experts in a society with a high division of cognitive labor that calls for trust in scientific expert testimony. (shrink)

The past two decades have seen a dramatic growth in the use of statisticians and economists for the presentation of expert testimony in legal proceedings. In this paper, we describe a hypothetical case modeled on real ones and involving statistical testimony regarding the causal effect of lead on lowering the IQs of children who ingest lead paint chips. The data we use come from a well-known pioneering study on the topic and the analyses we describe as the (...) expert testimony are similar to ones that can be found in major scientific journals. The battle of the experts in this hypothetical case resembles that which many encounter as expert witnesses. The paper concludes with some observations and advice. (shrink)

According to Giles Scofield, ethicists can provide expert testimony in descriptive ethics and metaethics, but not normative ethics. Lawrence Schneiderman appears to disagree with this view, and presumably believes that it is appropriate for an expert witness in ethics to provide ethics testimony in all three areas. I draw this conclusion from several claims made in his commentary which aim to show that we would be contending experts if both invited to testify on a case involving (...) claims about futile medical treatment. This disagreement aside, taken together both commentaries suggest that my testimony in the case of Andrew Sawatzky is wanting.In the response that follows I do not engage in a debate about the content of my testimony. (shrink)

According to Giles Scofield, ethicists can provide expert testimony in descriptive ethics and metaethics, but not normative ethics. Lawrence Schneiderman appears to disagree with this view, and presumably believes that it is appropriate for an expert witness in ethics to provide ethics testimony in all three areas. I draw this conclusion from several claims made in his commentary which aim to show that we would be contending experts if both invited to testify on a case involving (...) claims about futile medical treatment. This disagreement aside, taken together both commentaries suggest that my testimony in the case of Andrew Sawatzky is wanting.In the response that follows I do not engage in a debate about the content of my testimony. (shrink)

The question of whether the normative testimony of ethics experts should be admissible under the rules of evidence has been the subject of much debate. Professor Imwinkelried's paper is an effort to get us, for a moment, to change that subject. He seeks to turn our attention, instead, to a means by which bioethics experts’ normative analyses might come before the court without regard to the rules of evidence - a means lying formally outside those rules’ jurisdiction. The court, (...) he argues, may freely consider evidence from expert bioethicists so long as it is performing a legislative rather than an adjudicative function. The rules of evidence apply to the court's efforts to find the facts of a particular case, Imwinkelried argues, but they do not constrain the court's investigations relative to its creative law-making efforts. (shrink)

The question of whether the normative testimony of ethics experts should be admissible under the rules of evidence has been the subject of much debate. Professor Imwinkelried's paper is an effort to get us, for a moment, to change that subject. He seeks to turn our attention, instead, to a means by which bioethics experts’ normative analyses might come before the court without regard to the rules of evidence - a means lying formally outside those rules’ jurisdiction. The court, (...) he argues, may freely consider evidence from expert bioethicists so long as it is performing a legislative rather than an adjudicative function. The rules of evidence apply to the court's efforts to find the facts of a particular case, Imwinkelried argues, but they do not constrain the court's investigations relative to its creative law-making efforts. (shrink)

Epistemic trespassers have competence in one field but pass judgment on matters in other fields where they lack competence. I examine philosophical questions related to epistemic trespassing by expert witnesses in courtroom trials and argue for the following positions. Expert witnesses are required to avoid epistemic trespassing. When testifying as an expert witness, merely qualifying one’s statements to indicate that one is not speaking as an expert is insufficient to avoid epistemic trespassing. Judges, litigators, and jurors (...) can often recognize epistemic trespassing by examining a purported expert’s credentials and track record. Judges should not permit recognizable epistemic trespassers to testify as expert witnesses. Litigators should seek to expose recognizable epistemic trespassers during cross-examination. Jurors should treat recognizable instances of epistemic trespassing as a reason to downgrade the testimony of epistemic trespassers. (shrink)

Expert testimony figures in recent debates over how best to understand the norm of assertion and the domain-specific epistemic expectations placed on testifiers. Cases of experts asserting with only isolated second-hand knowledge (Lackey 2011, 2013) have been used to shed light on whether knowledge is sufficient for epistemically permissible assertion. I argue that relying on such cases of expert testimony introduces several problems concerning how we understand expert knowledge, and the sharing of such knowledge through (...) testimony. Refinements are needed to clarify exactly what principles are being tested by such cases; but once refined, such cases raise more questions than they answer. (shrink)

Through the analysis of the discourse of an interpreter-mediated expert witness examination in a Korean criminal courtroom, this paper examines challenges in obtaining evidence from an expert witness through unskilled interpreters and the related complexity of participation status during the multiparty interactions, namely the courtroom examination. This paper, drawing on the participation framework theories, demonstrates how all participants are engaged in negotiation and interpretation of the meaning of the expert testimony. The two unskilled interpreters, who are (...) primarily responsible for interpreting, collaborate with each other in order to achieve communication when they face problems or difficulties in the other’s interpreted rendition. However, despite the collective efforts to accurately obtain and understand the expert evidence accurately, such efforts are not always successful in the absence of skilled interpreters. Based on these findings, this paper argues that a team of unskilled interpreters is not sufficient to accomplish the demanding task of interpreting expert evidence, and further, the court needs to be meticulous about the quality of courtroom interpreting which have potential implications for achieving just legal outcomes. (shrink)