45 Pages Posted: 10 Oct 2012 Last revised: 8 Nov 2012
Date Written: October 14, 2012
We consult scientific expert witnesses in almost every field of law. Yet even in cases involving a strong scientific consensus, the powerful qualities of scientific knowledge are easily lost in translation. Moreover, even prominent scientists who are committed to providing accurate information to legal fact-finders may suffer reputational harm simply for participating in an adversarial process.
This article analyzes the connection between law and science through the expert witness from the perspectives of epistemology and cross-cultural communication, focusing on the distinct ways in which scientists and lawyers know, value and express their knowledge. When a lawyer meets with a scientific expert witness, more confusion attends their interaction than either likely realizes. Linguistic translation is necessary -- but not only translation of the substance of science into terms accessible to the legal fact-finder. An additional form of translation is essential, though the need for it may go unnoticed: that of homonyms -- terms that are superficially identical in law and science (such as "fact," "uncertainty," and "proof") but which have deeply different meanings in their respective disciplines. Lawyers and scientists may be using the same words without realizing that they are talking past each other.
Cultural translation is also required: while their professional norms with respect to fact-finding have some overlap, they also contrast so sharply that professional behavior for the lawyer would constitute malpractice for the scientist. In their cultures of knowledge-production, the scientist is most closely analogous to the judge: the professional identities of both are founded in their neutrality. However, when the scientific fact-finder's report is presented to the legal fact-finder through the work of the lawyer, the scientist can appear partisan -- and even risks becoming partisan. For a scientist, the appearance of partisanship is an appearance of impropriety that can cause her debilitating professional harm, threatening her professional identity.
The purpose of this article is to identify and explain the homologies and false cognates between law and science, to better equip lawyers and judges to make proper interdisciplinary translations in the process of speaking science to law.
Keywords: evidence, scientific evidence, legal ethics, professional responsibility, law and science, interdisciplinarity, translation
Suggested Citation: Suggested Citation
Hussey Freeland, Deborah M., Speaking Science to Law (October 14, 2012). Georgetown International Environmental Law Review (GIELR), Vol. 25, 2013, Forthcoming; Univ. of San Francisco Law Research Paper No. 2012-27. Available at SSRN: https://ssrn.com/abstract=2159446
By Alice Kaswan