A Non-Romantic View of Expert Testimony
68 Pages Posted: 21 Jun 2004
The Daubert trilogy as a whole deflects attention away from abstract identifications of scientific validity (including the demarcation controversy aimed at rooting out allegedly junk science from the courtroom), and toward the application of expertise to the particular case at hand. That emphasis on application is reflected as well in post-trilogy scholarship, wherein we see three patterns or contours that both help quiet the debates and provide useful guidance to judges and lawyers. First, there is a pragmatic recognition, in various forms, that the focus should be on how science is being used rather than on science in the abstract. Second, that focus must be accompanied by a modest view of science rather than an idealized version of its capacity to produce knowledge for law. Third, the focus on the application phase of expertise must also be accompanied by a modest view of law itself, including judges, lawyers, juries, and the evidentiary rules. It is far too easy, in the post-trilogy series of debates, to romanticize the power of science, or the virtues of the legal system, or both, and to fail to recognize their practical limitations. Romantic images of science are often bolstered by demonizations of forensic scientists, plaintiff's experts, or social science, just as romantic images of law often rely on demonizations of judges untrained in science, lawyers as overly zealous advocates, or jurors as emotional, uncritical, and confused. Thus the pragmatic emphasis on application needs to be mediated by pragmatic views of science and law. Fortunately, the pragmatic aspects of science and law - which we associate with their local, social, rhetorical, and institutional features - are most visible in the focus on application. Nevertheless, in the heat of debate, the limitations of law and science often recede into the background, which results in undue attention to red herrings as well as unrealistic proposals for reform.
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