Balancing Legal Process with Scientific Expertise: Expert Witness Methodology in Five Nations and Suggestions for Reform of Post-Daubert U.S. Reliability Determinations

87 Pages Posted: 6 Aug 2010 Last revised: 26 Jul 2012

Andrew W. Jurs

Drake University Law School

Date Written: August 5, 2010

Abstract

In a recent article on science and the law, Susan Haack suggested that “we could learn something from the experiences of other nations that are equally technologically advanced, but have different…legal arrangements.” Her suggestion is both appropriate and timely, as the evidence mounts on the problems with the current judicial management of complex science.

This Article starts with a simple related premise, that the proper balance of legal process and scientific expertise is not a uniquely American problem. If this is true, then we should, as Haack suggests, seek inspiration for reform in the varying methodologies of other nations. After beginning with a critical examination of the U.S. system, this Article discusses the handling of expert witnesses in several common law nations, Canada and the U.K., and in several civil law nations, Germany and Japan. After examining those systems, this Article makes recommendations as to which methodologies, currently in use and tested in those nations, offer the most promise in fixing the weaknesses exposed in our system.

By reviewing the weaknesses in Daubert assessment of complex expert testimony, how other nations handle similar evidence, and how certain discrete areas of foreign law could address the weaknesses identified in the U.S. approach, this Article offers reform alternatives to assist judges in balancing the need for accuracy and reliability of the science presented in court with the need to maintain our traditions of legal process.

Keywords: daubert, expert, comparative, reliability, science, torts

Suggested Citation

Jurs, Andrew W., Balancing Legal Process with Scientific Expertise: Expert Witness Methodology in Five Nations and Suggestions for Reform of Post-Daubert U.S. Reliability Determinations (August 5, 2010). 95 Marq. L. Rev. 1329; Drake University Law School Research Paper No. 11-13. Available at SSRN: https://ssrn.com/abstract=1653978

Andrew W. Jurs (Contact Author)

Drake University Law School ( email )

2608 Forest Avenue
Des Moines, IA 50311
United States
515-271-2824 (Phone)

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