Where There's Smoke, There's Fire: A Comparative Analysis of Judicial Outcomes and the Legal Rhetoric of Expert Evidence (Doctoral Dissertation)

Abstract

Expert evidence plays a critical role in assisting the trier of fact in determining culpability in criminal cases and liability in civil litigations. With rare exceptions, in the U.S. the same rules apply to the admission of expert testimony for both civil and criminal cases. It would be expected, therefore, that with the same standard of admissibility, judges would apply these rules uniformly across cases. However, the conventional belief among socio-legal scholars is that the threshold for admissibility is low in criminal cases and high in civil cases. Based largely on anecdotal evidence, scholars argue that judges favor the admission of experts proffered by the government and civil defendants over those proffered by criminal defendants and civil plaintiffs. This “pro-government, anti-plaintiff” pattern is consistent with the critical legal studies literature on hegemony and ideological subordination that advantage particular parties over others. This dissertation tests the hypothesis that the standards for expert admissibility are applied differentially in civil and criminal cases and that there is a pro-government, anti-plaintiff bias. It analyzes U.S. appellate opinions of criminal and civil, federal and state cases from 1975 to 2009 in which judges considered the admission of one common form of expert testimony, fire and arson investigation expertise. The dissertation examines judicial outcomes at trial and at appeal and appellate court rationales. The analysis found evidence consistent with a “pro-government, anti-plaintiff” bias even when potential confounding variables are controlled for including admissibility rules, judges' political ideologies, lawyers' training, and the expert's qualifications. The findings are consistent with the critical legal studies argument that the law is indeterminate and that judges and legal actors are navigating the legal system using judicial rhetoric that legitimizes social power relations.