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Expertise on Trial

59 Pages Posted: 30 Apr 2017 Last revised: 15 Sep 2017

James R. Dillon

University of California, Berkeley, School of Law, Jurisprudence and Social Policy Program; Columbia Law School

Date Written: August 20, 2017

Abstract

The problem of “epistemic competence”—the inability of courts to effectively interpret and apply scientific expert testimony to the resolution of legal disputes—has been a vexing one for nearly as long as expert witnesses have been routine fixtures in litigation. Some have despaired that the problem seems intractable; while scientific expert testimony has come to play an increasingly prominent role in litigation, we are no nearer a solution to the problem of epistemic competence than when the conversation began in the nineteenth century.

This Article argues that the intractability of the problem is the result of the terms under which the discussion has been framed. The epistemological paradigm of the existing literature makes an impossible demand: that individual legal decision makers possess substantive expertise in all scientific fields in which expert witnesses testify. Because judges and jurors are not omniscient, this demand can never be satisfied, and reform proposals have therefore been limited to mitigating the problem of epistemic competence rather than solving it.

This Article proposes a new solution to the problem of epistemic competence. Drawing on insights from classical and social epistemology and the sociology of scientific knowledge, it advocates a collectivist epistemological paradigm wherein the institution of the court, rather than the individual judge and jurors, is the epistemic agent of interest. The Article describes a system of distributed cognition that would vest scientific expertise and legal authority in courts as institutional epistemic agents, thus solving the problem of epistemic competence. The “Social Epistemological Solution” would allocate legal authority to decide issues involving scientific testimony to judicial officers with substantive expertise in the relevant domain. Although requiring some departure from the judgecentered status quo, the proposal preserves much of the existing adversarial system while creating an institution that can competently evaluate scientific expert testimony.

Keywords: evidence, expertise, epistemology, SSK, STS, daubert, frye

Suggested Citation

Dillon, James R., Expertise on Trial (August 20, 2017). Columbia Science and Technology Law Review, Vol. 19, 2018. Available at SSRN: https://ssrn.com/abstract=2956078

James R. Dillon (Contact Author)

University of California, Berkeley, School of Law, Jurisprudence and Social Policy Program ( email )

Berkeley, CA 94720
United States

Columbia Law School ( email )

435 West 116th Street
New York, NY 10009

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