Interrogating the Role and Value of Cultural Expertise in Law

John Campbell

doi:10.3390/laws9040029

Abstract

It is common for litigation to draw upon expert evidence to assist a judge to arrive at a balanced decision. This paper examines the role of one type of expert evidence submitted to courts, namely cultural expertise (CE), which provides information on socio-cultural issues such as kinship, family, marriage, customs, language, religion, witchcraft and so on. This type of evidence is primarily the result of qualitative, ethnographic research. I begin by examining the views of experts who have provided CE to courts/mediators; I then look at how judges view and make use of CE, and finally I examine lawyers’ views on CE. To address gaps in published research, I interviewed British barristers to understand how they make use of experts in the cases they litigate. Finally, I have surveyed legal decisions made by all British appellate courts to arrive at an approximate idea of the extent to which CE has been submitted in English and Welsh courts. I conclude that the extent to which CE—and other types of socio-legal evidence—is submitted varies considerably depending upon the legal/evidentiary procedures followed in different jurisdictions and in different countries.

Highlights

Scholarship on the relation between anthropology and law has slowly recognized that characterizations of the two disciplines as being epistemologically incommensurable are unhelpful and unproductive
The earliest paper exploring the use of cultural experts was written by Clark (1953), who described the work of anthropologists and psychiatrists involved in civil litigation in the 1950s which overturned racial segregation laws in the U.S Clark identified a number of difficulties facing experts involved in these cases and argued that ‘it will be necessary for the professional societies among
An anthropologist and the argument has been generalized for use across a range of cases—the best documented example is the concept of a ‘cultural defense’ employed in U.S courts—the way in which cultural evidence is handled indicates that trial judges fail to apply a sufficiently robust test to assess the veracity of a ‘cultural claim’, because they rely upon their own ‘common sense’ to decide cases (Dundes Renteln 2005; Wilson 2015; Maucec 2020)

Summary

Introduction

Scholarship on the relation between anthropology and law has slowly recognized that characterizations of the two disciplines as being epistemologically incommensurable are unhelpful and unproductive. The research which Holden has undertaken and generated has focused primarily on the contribution of academic researchers who have provided expert evidence to courts and decision-makers in an attempt to assist judges/mediators to better understand the cultural issues which arise in different types of disputes. Holden’s initial definition of CE reflected her focus on the role of anthropologists who, she argued, were in a position to provide specialized knowledge to a range of decision-makers who decide disputes in which ‘culture’ was an issue (Holden 2011). CE in the wider legal, adversarial context where it is relied upon primarily in asylum and immigration law, civil claims, and international criminal law, and secondarily in international human rights law and family law

The Perspective of Cultural Experts

The Perspective of Judges on the Value of CE

How British Barristers Make Use of ‘Experts’

Cultural Evidence in British Law: A Survey of Bailii

Findings

Conclusions