59 Pages Posted: 30 Apr 2017
Date Written: April 20, 2017
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 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 a broad range of 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 at least in part 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 with no hope of solving it.
This Article proposes a new solution to the problem of epistemic competence. Drawing on 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 in courts as institutional epistemic agents, thus solving the problem of epistemic competence. That system is not without cost, however, as the necessary reforms would require substantial departures from existing judicial structures. Thus, the Article ends with a dilemma: either courts must substantially reform their institutional structures to gain competence in evaluating scientific testimony, or we must reframe courts’ institutional mission to match their epistemic capacities.
Keywords: evidence, expertise, epistemology, SSK, STS, law
Suggested Citation: Suggested Citation
Dillon, James R., Expertise on Trial (April 20, 2017). Available at SSRN: https://ssrn.com/abstract=2956078