Expertise on Trial

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. This Article argues that the intractability of the problem is the result of the epistemological paradigm by which the discussion has been framed. The existing literature makes an impossible demand: that individual legal decision makers possess substantive expertise in all scientific domains 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 rather than solving it. This Article proposes a new solution to the problem of epistemic competence. First, it traces the converging accounts of classical epistemology and the sociology of scientific knowledge to show that warranted judgments in matters of scientific fact can be made only by judges who possess expertise in the relevant scientific domain. Second, the Article draws on insights from social epistemology to advocate 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. Finally, the Article describes one method by which the social epistemological solution might be implemented, by creating a new office of scientific experts within the federal judiciary.