Thursday, October 17, 2013

What We're Reading: Expert Origins

“On certain matters, such as those of science or art, upon which the court itself cannot form an opinion, special study, skill or experience being required for the purpose, ‘expert’ witnesses may give evidence of their opinion.” – Lord Mansfield 1782

In our recent post on Frye & the Daubert Trilogy we described how the standards governing admissibility of expert testimony evolved in the U.S. courts in the 20th century. The issue of admissibility of scientific evidence in the courtroom, as most experts know or soon come to understand, is a debate that remains ever present, and ever relevant to how one explains a methodology, offers opinions, and testifies in front of a jury.

But where did this debate originate? Have the law and science always been so adversarial?  Is the struggle over scientific evidence presented in the courtroom a modern ill – a product of the expansion of scientific knowledge in the last century?

Fortunately in 2004, Tal Golan, Professor of History at the University of California, San Diego, tackled that long and detailed history. Like the field of expert witnessing, which is so often full of twists and turns, the conflict between science and law that Golan recounts in Laws of Men and Laws of Nature is an extremely colorful and engaging narrative.

And it is a narrative that resoundingly says “no” this is not a modern phenomenon.  For over two hundred years, science and the law have struggled to get along agreeably, though both institutions are indispensable to one another. Golan illustrates this beginning with an examination of Folkes v. Chadd (1783), the oft-cited case in England concerning whether an embankment, created for the purpose of preventing the sea from overflowing into certain meadows, contributed to the choking and decay of Wells Harbor, a formerly successful seaport.  Both the Harbor Commissioners (plaintiffs) and the landowners (defendants) hired experts to determine the ultimate cause of the harbor’s demise.

The case has all the hallmarks of a modern “battle of the experts”: leading scientists versus renowned practitioners; highly complex evidence; different methodologies; conflicting reports; and attempted exclusion of experts. All of which culminates in questions that persist today: How much latitude should judges have in their roles as gatekeepers? Are experts excluded before a jury evaluates the weight of the evidence? What constitutes “good” science?

Laws of Men and Laws of Nature is a fascinating read for both novices and veterans of the expert witnessing field; not to mention a great read for attorneys as well. Perhaps an understanding of our mutual origins of conflict can better help experts and attorneys appreciate their unique roles in the courtroom.

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