Scientific Expert Testimony Research Articles

Established Principles for (non) Admissibility of Scientific Expert Evidence and their application in Pakistan

The modern devices and techniques have underpinned the legal actors to work together with scientific and technological experts as the litigation of criminal activities no more depends on the traditional methods of production and presentation of evidence alone. The relevancy of scientific and technological expert evidence is even more challenging task than it has been ever. The professional career of lawyers and the judges involves as a routine to discuss the scientific and technological expert testimony in their respective roles. This article endorses the importance of scientific expert testimony and lays down the critical analysis of legal regime relating to scientific expert evidence in Pakistan. The discussion into established principles for the admissibility highlights the importance of role of judges in this realm and underscores the need to adopt best practices to evaluate the reliability and validity of scientific expert evidence.

Comparing jury focus and comprehension of expert evidence between adversarial and court-appointed models in Canadian criminal court context

The present adversarial system is often criticised for not working as well as it should in the area of expert scientific testimony. Yet scientific opinion evidence is an important aspect of present criminal trials. In addition to issues in the provision of expert evidence, triers of fact are challenged to understand complex scientific evidence. Several dynamics are at play that may impact on their ability to focus on and comprehend the science, and alternative models have been suggested to address these issues, including the use of court-appointed experts. This study examines juror focus on the science versus the persona/demeanour of the expert witness between the adversarial and court-appointed models for presentation of scientific evidence. Findings suggest that expert persona/demeanour continues to be a large focus area for jurors, that the CA model may be more resilient for ensuring greater focus on science, and that juror comprehension of science is somewhat better when presented via the court-appointed model. Results inform instruction of experts for giving opinion evidence as well as suggest the prudence of considering other models to improve the criminal justice system. Limitations as to the generalization of study results are discussed.

Introduction

Introduction

Knowledge from scientific expert testimony without epistemic trust

In this paper we address the question of how it can be possible for a non-expert to acquire justified true belief from expert testimony. We discuss reductionism and epistemic trust as theoretical approaches to answer this question and present a novel solution that avoids major problems of both theoretical options: Performative Expert Testimony (PET). PET draws on a functional account of expertise insofar as it takes the expert’s visibility as a good informant capable to satisfy informational needs as equally important as her specific skills and knowledge. We explain how PET generates justification for testimonial belief, which is at once assessable for non-experts and maintains the division of epistemic labor between them and the experts. Thereafter we defend PET against two objections. First, we point out that the non-expert’s interest in acquiring widely assertable true beliefs and the expert’s interest in maintaining her status as a good informant counterbalances the relativist account of justification at work in PET. Second, we show that with regard to the interests at work in testimonial exchanges between experts and non-experts, PET yields a better explanation of knowledge-acquisition from expert testimony than externalist accounts of justification such as reliabilism. As our arguments ground in a conception of knowledge, which conceives of belief-justification as a declarative speech act, throughout the rearmost sections of this paper we also indicate to how such a conception is operationalized in PET.

Expert Trespassing Testimony and the Ethics of Science Communication

Scientific expert testimony is crucial to public deliberation, but it is associated with many pitfalls. This article identifies one—namely, expert trespassing testimony—which may be characterized, crudely, as the phenomenon of experts testifying outside their domain of expertise. My agenda is to provide a more precise characterization of this phenomenon and consider its ramifications for the role of science in society. I argue that expert trespassing testimony is both epistemically problematic and morally problematic. Specifically, I will argue that scientific experts are subject to a particular obligation. Roughly, this is the obligation to qualify their assertions when speaking outside their domain of scientific expertise in certain contexts. Thus, I argue that scientists who possess expert knowledge are confronted with hard questions about when and how to testify and, therefore, that being a scientific expert comes with great responsibility. Consequently, I provide a concrete “expert guideline” according to which scientific experts, in certain contexts, face an obligation to qualify their assertions when speaking outside their domain of expertise. Furthermore, I consider a number of the conditions in which the guideline is waived or overridden. On this basis, I consider the broader aspects of the roles of scientific experts in a society with a high division of cognitive labor that calls for trust in scientific expert testimony.

Expertise on Trial

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.

§7.7 Reliability Standard (Daubert, Frye)

This article addresses the Daubert standard of reliability for the admission of scientific evidence. It also addresses the requirements of FRE 702, which was amended after Daubert to impose a reliability standard for all expert testimony. It discusses the implications of this requirement, the scope of review, and the conflict among state authorities about the applicable standard for admitting scientific evidence or expert testimony generally.

Individual versus group decision making: Jurors' reliance on central and peripheral information to evaluate expert testimony.

To investigate dual-process persuasion theories in the context of group decision making, we studied low and high need-for-cognition (NFC) participants within a mock trial study. Participants considered plaintiff and defense expert scientific testimony that varied in argument strength. All participants heard a cross-examination of the experts focusing on peripheral information (e.g., credentials) about the expert, but half were randomly assigned to also hear central information highlighting flaws in the expert’s message (e.g., quality of the research presented by the expert). Participants rendered pre- and post-group-deliberation verdicts, which were considered “scientifically accurate” if the verdicts reflected the strong (versus weak) expert message, and “scientifically inaccurate” if they reflected the weak (versus strong) expert message. For individual participants, we replicated studies testing classic persuasion theories: Factors promoting reliance on central information (i.e., central cross-examination, high NFC) improved verdict accuracy because they sensitized individual participants to the quality discrepancy between the experts’ messages. Interestingly, however, at the group level, the more that scientifically accurate mock jurors discussed peripheral (versus central) information about the experts, the more likely their group was to reach the scientifically accurate verdict. When participants were arguing for the scientifically accurate verdict consistent with the strong expert message, peripheral comments increased their persuasiveness, which made the group more likely to reach the more scientifically accurate verdict.

Expertise on Trial

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.

Legal Insanity: Towards an Understanding of Free Will Through Feeling in Modern Europe

The degree to which insanity or mental infirmity can be instrumentalized in legal debate is shaped by understandings of what insanity is, the currency of a specific diagnosis, as well as official and unofficial symptomatologies, all of which render the law, as a system of knowledge and social practices, porous and permeable in regards to what might be abstractly called »the human mind and heart«. This article explores the changing role of emotions in explaining, demonstrating, and adjudicating insanity during the nineteenth and early twentieth centuries. Over the course of the nineteenth century, the insanity plea became a matter of heated debate in relation to specific trials of capital offenses, which not only brought crime but also the subject of criminal insanity into the public eye. At the same time, the rise of expert scientific testimony and the modern medical sciences – specifically medical psychology and the advent of psychiatry – created different definitions and understandings of mental illness that challenged legal definitions of insanity. This led to interdisciplinary discussion and debate, as physicians sought to provide a serviceable system to the lawyers, and lawyers sought new ways to discover and prove cases. The medicalization and pathologization of emotions not only led to the introduction and interpretation of new kinds of emotional evidence in the courtroom, it also gave emotions a range of different potential meanings, challenging the psychological premises and assumptions of the law as well as the principles and purposes of criminal justice.

Small Data Surveillance v. Big Data Cybersurveillance

This Article highlights some of the critical distinctions between small data surveillance and big data cybersurveillance as methods of intelligence gathering. Specifically, in the intelligence context, it appears that “collect-it-all” tools in a big data world can now potentially facilitate the construction, by the intelligence community, of other individuals’ digital avatars. The digital avatar can be understood as a virtual representation of our digital selves and may serve as a potential proxy for an actual person. This construction may be enabled through processes such as the data fusion of biometric and biographic data, or the digital data fusion of the 24/7 surveillance of the body and the 360° surveillance of the biography. Further, data science logic and reasoning, and big data policy rationales, appear to be driving the expansion of these emerging methods. Consequently, I suggest that an inquiry into the scientific validity of the data science that informs big data cybersurveillance and mass dataveillance is appropriate.As a topic of academic inquiry, thus, I argue in favor of a science-driven approach to the interrogation of rapidly evolving bulk metadata and mass data surveillance methods that increasingly rely upon data science and big data’s algorithmic, analytic, and integrative tools. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court required scientific validity determinations prior to the introduction of scientific expert testimony or evidence at trial. I conclude that to the extent that covert intelligence gathering relies upon data science, a Daubert-type inquiry is helpful in conceptualizing the proper analytical structure necessary for the assessment and oversight of these emerging mass surveillance methods.

Exploring the controversy in child abuse pediatrics and false accusations of abuse.

There is a controversy in child abuse pediatrics between an established corps of child abuse pediatricians aligned with hospital colleagues and law enforcement, and a multi-specialty challenger group of doctors and other medical professionals working with public interest lawyers. The latter group questions the scientific validity of the core beliefs of child abuse pediatricians and believes that there are a substantial number of false accusations of abuse occurring. An unproven primary hypothesis, crafted around 1975 by a small group of pediatricians with an interest in child abuse, lies at the foundation of child abuse pediatrics. With no scientific study, it was hypothesized that subdural hemorrhage (SDH) and retinal hemorrhage (RH) were diagnostic of shaking abuse. That hypothesis became the so-called "shaken baby syndrome." Through the period 1975-1985, in a coordinated manner, these child abuse specialists coalesced under the American Academy of Pediatrics and began working with district attorneys and social workers, informing them of the ways in which their hypothesis could be applied to prosecutions of child abuse and life-altering social service interventions. In a legal context, using then-prevailing evidentiary rules which treated scientific expert testimony as valid if it was "generally accepted" in the field, they represented falsely that there was general acceptance of their hypothesis and therefore it was valid science. As the ability to convict based on this unproven prime hypothesis (SDH and RH equals abuse) increased, some defense attorneys were professionally compelled by their own doubts to reach out to experts from other fields with experience with SDH and RH, trauma, and biomechanics, for second opinions. Medical and legal challenges to the established thinking soon emerged, based on both old and new evidenced-based literature. As the intensity of the controversy increased, the probability of false accusation became more apparent and the need to address the issue more pressing. Since false accusations of child abuse are themselves abusive, efforts to eliminate such false accusations must continue.

Scientific Consensus and Expert Testimony in Courts: Lessons from the Bendectin Litigation

A consensus in a scientific community is often used as a resource for making informed public-policy decisions and deciding between rival expert testimonies in legal trials. This paper contains a social-epistemic analysis of the high-profile Bendectin drug controversy, which was decided in the courtroom inter alia by deference to a scientific consensus about the safety of Bendectin. Drawing on my previously developed account of knowledge-based consensus, I argue that the consensus in this case was not knowledge based, hence courts’ deference to it was not epistemically justified. I draw sceptical lessons from this analysis regarding the value of scientific consensus as a desirable and reliable means of resolving scientific controversies in public life.

Secondary confessions: the influence (or lack thereof) of incentive size and scientific expert testimony on jurors' perceptions of informant testimony.

The goal of this research was to determine whether the size of the incentive (none, small, medium, or large, in terms of sentence reduction) a jailhouse informant receives for testifying, as well as scientific expert testimony regarding the fundamental attribution error, would influence mock juror decision-making in a criminal trial involving a secondary confession. Participants read a murder trial transcript involving informant testimony in which incentive size and expert testimony were manipulated and then provided verdict judgments, made attributions for the informant's decision to testify, and rated the informant and expert on a number of dimensions. Neither expert testimony nor size of incentive had a direct influence on verdicts. However, contrary to previous research on the influence of incentives on jurors' perceptions of secondary confessions, the presence of an incentive did influence verdict decisions, informant ratings, and attributional responses. Results imply that jury-eligible community members may be becoming aware of the issues with informant testimony as a function of incentive but that they are insensitive to the size of the incentive, and expert testimony may not sensitize them to the limitations of such testimony.

Group to Individual (G2i) Inference in Scientific Expert Testimony

A fundamental divide exists between what scientists do as scientists and what courts often ask them to do as expert witnesses. Whereas scientists almost invariably measure phenomena at the group level, trial courts typically need to resolve cases at the individual level. A basic challenge for trial courts that rely on scientific experts, therefore, concerns translating scientific knowledge derived from studying groups into information that can be helpful in the individual cases before them (what this article refers to as “G2i”). To aid in dealing with this challenge, this article proposes a distinction between two types of expert evidence: framework evidence that describes general scientific propositions and diagnostic evidence that applies the general propositions to individual cases. It then examines the evidentiary implications of that distinction. Most importantly, admissibility standards for expert testimony should differ depending on whether experts are proffering framework or diagnostic evidence. Judicial analysis of “fit,” expert qualifications, testability, error rates, peer review, general acceptance, helpfulness and other traditional admissibility criteria for expert evidence will often vary, sometimes significantly, based on this distinction. The article provides general guidelines about the best practices judges should follow in sorting through these considerations. These guidelines will permit courts to manage G2i inferences in a more informed and coherent way than they do currently.

The Law and Paraphilias: Sex Crimes (Re)Constructed as Mental Disorders

The article provides evidence that the current criminal justice approach to sex crimes is based on a presumption that individuals who commit sex-based offenses are both pathological and evil and, therefore, at high risk of recidivism. This model relies on a law-psychiatry interface by drawing from psychiatry’s Diagnostic and Statistical Manual of Mental Disorders (DSM). To justify a particularly punitive approach to sex offenders, officials use the DSM’s mental disorders of sexual deviance. A diagnosis of a DSM-based mental disorder can drive various legal consequences in that they impact such issues as bail, sentencing, parole, and civil commitment.This article provides legal, empirical, and theoretical critiques of the law-psychiatry interface employed to control the sex offender population. Defendants have contended, but generally without success, the use of the DSM-based disorders of sexual deviance violates the due process clause or the Frye/Daubert evidentiary standards for the admissibility of scientific expert testimony. The article reasons that these DSM disorders lack sufficient empirical support and diagnostic integrity. Vagueness in the DSM criteria have led to forensic experts basing their diagnoses — not on evidence of any underlying pathology — but merely upon a history of sexual offending. Thus, sex crimes become conflated with mental disease. The law-psychiatry interface here appears pretextual in preferentially serving the interests of the prosecution. Various examples are offered, including the recent introduction in case law of new disorders, such as hebephilia (sexual interest in teenagers) and rape paraphilia. The article posits that the mental diseases of sexual deviance are a poor fit to answer legal questions when constitutional rights of liberty and privacy are at risk.

Functional Magnetic Resonance Imaging to Detect Deception: Not Ready for the Courtroom

Despite media hype and at least two companies marketing themselves as offering scientific expert testimony admissible in US courts on whether a witness is telling the truth, recent decisions by a trial court in New York and a Federal Magistrate Judge in Tennessee indicate that replacing the jury deliberation room with a magnetic resonance imaging machine is not in the foreseeable future.Functional magnetic resonance imaging (fMRI), an emerging field of neuroscience that seeks to correlate brain activity to behavior, has been touted by some to be the new lie detector. The MRI machine is able to “see” the increase in oxygenated blood as it fuels various regions of the brain during actions and activities. The hypothesis underlying fMRI as a lie detector is that telling the truth is the natural or normal response of the brain and one would not expect to see increased activity over and above the normal background level of brain activity. But when the subject begins to prevaricate, more brain activity is needed and more oxygenated blood is directed to those regions of the brain processing the “lie.” This blood oxygenation level-dependent (BOLD) differential is measurable by the fMRI.Comparing the BOLD differential between subjects known to be telling the truth and then deliberately lying allows researchers to hypothesize that increased BOLD above the base line in certain regions of the brain when the subject is answering questions is an indication of deception.It might be in the lab, but the rules of evidence as applied in US courts considers the citizens of the community selected to sit on the jury more reliable “lie detectors” than the new technology represented by fMRI. Two recent decisions, one in a Federal court applying the Federal Daubert standard and one is New York state court applying the Frye general acceptance test, rejected expert testimony based on the results of fMRI scanning.In finding fMRI failed to satisfy the exacting standard of Federal Rule of Evidence 702, a Federal magistrate judge in United States v. Semrau measured the new technology against the Daubert reliability factors. fMRI passed the first two factors, testing and peer review. The court noted that the technology was certainly capable of and was being tested and that numerous articles concerning fMRI had appeared in the peer reviewed scientific literature. The next two Daubert factors, the known or potential error rate and the existence and maintenance of standards, however posed significant problems. While there may be some identifiable error rates associated with fMRI in the controlled lab setting, it was undisputed that error rates in the “real world” application are completely unknown. Similarly, protocols exist for lab studies of fMRI but not such standards exist for real-life applications. In fact, Dr. Steven Larkin, the expert witness for plaintiff in Semrau, and one of the leading proponents of fMRI as a lie detector admitted to deviating from his own protocol in administering the test on Dr. Semrau.Finally, the court found that fMRI as a reliable lie detector had not achieved general acceptance by the scientific community, the fifth Daubert factor. By failing to meet three of the five Daubert factors, the magistrate judge concluded that fMRI was not sufficiently reliable to admit under FRE 702.The magistrate judge also found the use of fMRI to bolster Dr. Semrau’s credibility more prejudicial than probative. Relying primarily on cases excluding polygraph examinations taken without the knowledge or participation of the opposing party, the magistrate judge concluded that the unilateral fMRI test here lacked probative value because Dr. Semrau faced no negative consequences by undergoing the test. Accordingly, the evidence was excluded under FRE 403.The New York case, Wilson v. Corestaff Services L.P., applied the Frye general acceptance standard to fMRI based expert testimony to bolster the plaintiff’s witness in an employment discrimination case. The court was troubled be the notion that fMRI based expert testimony would usurp the jury’s responsibility to determine the credibility of the witnesses, a dramatic departure from the traditions of a common law trial. Additionally, the court found the plaintiff was unable to show the use of fMRI to determine truthfulness had been generally accepted by the relevant scientific community, the standard for admissibility under Frye.The analysis in Semrau and Wilson combined imposes significant hurdles to the admissibility of fMRI on the issue of witness credibility. The procedure failed to meet the reliability standards of FRE 702 and the general acceptance requirement of Frye. Furthermore, concerns over jury confusion, usurpation of the traditional function of the jury in judging credibility, and whether such testimony is even an appropriate matter for expert opinion raise additional hurdles. For proponents of fMRI expert testimony on witness credibility the obstacles to admissibility are significant under current law.

The In-Terrorem Value of Science: Bisphenol-A Litigation and an Empirical Assessment of Science as a Collective Litigation Tool

This paper examines the role that science plays as a tool in collective litigation to substantiate claims. Scientific data and expert testimony are often included to buttress a claim and the admissibility of such evidence is often a conse-quence of the extant evidentiary rules and their application. The article will focus on the multidistrict litigation con-cerning Bisphenol-A (“BPA”) as a case study of the phenomena of scientific tailoring of evidence and its admissibility. BPA is a compound included in the synthesis of plastics and is found in food containers, plastic bottles, and ep-oxy-based coatings used to avert the rusting process of food containers. There is a negligible amount of BPA in several food and beverage products. Several countries along with the US Food and Drug Administration (FDA) and Environ-mental Protection Agency (EPA) have marshaled scientific studies that demonstrate the lack of any definable negative health effect attributable to an exposure to trace amounts of BPA. Notwithstanding the conclusions of these scientific inquiries, opponents have asserted that BPA exposure results in an alteration of embryonic hormone levels, thereby impacting their development and later reproductive function. This article will address these issues in addition to the salient question of what role science plays as a tool for collective litigation.

The Stepchildren of Science: Psychical Research and Parapsychology in Germany c. 1870-1939 (Amsterdam, New York: Rodopi, 2009). ISBN 978-90-420-2728-2 (HC). 5 B&W illustrations, vi + 342 pp. by Heather Wolffram

140 Health & History, 2010. 12/2 Book Reviews Heather Wolffram, The Stepchildren of Science: Psychical Research and Parapsychology in Germany c. 1870–1939 (Amsterdam, New York: Rodopi, 2009). ISBN 978-90-420-2728-2 (HC). 5 B&W illustrations, vi + 342 pp. In her intriguing account of psychical research and the emergence of parapsychology in imperial and interwar Germany, Heather Wolffram synthesises cultural and intellectual history, and gains analytical traction from science studies. In Germany (and elsewhere, though this is little discussed) at the end of the nineteenth century, researchers and the public alike were faced with the enormous popularity of the occult. Scientists, psychologists, and medics sought to clarify and quantify the physical and psychical phenomena produced by stage hypnotists and mediums—to take them out of the séance parlour and into the laboratory. While many were interested primarily in debunking spiritualism, Wolffram’s focus here is on those who studied mediumship as a means to broaden and extend science itself, and to address what they saw as the limitations of its reductionist materialism. The volume she has produced is rich in little-known— but highly revealing—historical detail. Amongst other delights, readers will be treated to photographs and microscopic analyses of ectoplasmic materialisations and the courtroom testimony of expert psychical witnesses. Wolffram necessarily documents the increasingly familiar struggle between newly established scientific and medical disciplines and their challengers (here, psychology and parapsychology, respectively). She provides extensive evidence of the problems posed by the subjective nature of mediumship, and by the medium’s position as both the experimental apparatus of parapsychology, and a skilled agent in its study. While some of this material has already been treated in the mid-nineteenth-century British context, Wolffram takes the history forward to the interwar years in the novel context of Germany. In addition, she offers a detailed analysis of debates within the emerging boundary science. The study presents evidence of generational tensions, as well as the impact of broad cultural divisions between materialist and spiritualist factions. The chapter Health & History ● 12/2 ● 2010 141 looking specifically at parapsychology and vitalism is especially satisfying. In fact, the light that this volume sheds on the wider scientific context is among its most valuable contributions. The ‘boundary work’ that Wolffram so meticulously documents here in relation to parapsychology also illuminates crucial changes in the culture of science, and scientific strategies of authority-building. For example, the parapsychologists discovered to their cost that even the most celebrated ‘modest witnesses’ could no longer establish the veracity of contested events or phenomena—illustrating, among other things, that this strategy endured, and was still perceived by those active at the boundaries of science as a valid one long after it emerged in the Scientific Revolution. Rewarding as it is, this volume is not light reading: it is a closely argued, richly evidenced scholarly study of science on a cultural knife-edge in a very particular place and time. Its tight focus allows Wolffram to explore major issues—for example, the dynamics of class and gender in scientific research culture, and in lay perceptions of science—convincingly and skilfully. She also has interesting and important points to make about the revolt against materialism in Germany, and uses state, professional, and religious responses to parapsychology well in support of those arguments. Parapsychology, precisely because of its boundary status, was available as a vehicle for political critique in a way that other sciences were not. On the other hand, in some respects the volume would have benefited from a wider perspective: many of Wolffram’s arguments about ‘boundary work’ and discipline formation would have been enhanced and strengthened had she more explicitly compared the German case with those of Britain, France, and especially Emese Lafferton’s work on eastern Europe. Similarly, Ian Burney’s work on cultures of expert scientific testimony would have offered Wolffram additional traction on the courtroom practices of both the parapsychologists and their opponents. The fascinating history Wolffram has documented here will promote robust and stimulating debate about issues at the heart of contemporary science and its history; as a reader, I only wish that Wolffram had engaged with these issues more explicitly herself. ROBERTA BIVINS UNIVERSITY OF...

Fire in the Hole: Empirical Testing of a Pro-Government/Anti-Plaintiff Bias in the Admissibility of Scientific Experts in Criminal and Civil Cases

This article examines the highly debated topic among sociologists, legal scholars and policy makers regarding the differential admissibility of expert evidence in criminal and civil cases. The U.S. standards and principles of the admission of scientific and non-scientific expert testimony has been greatly influenced by the U.S. Supreme Court decision of Daubert v. Merrell Dow Pharmaceuticals, Inc. and concurrent cases commonly referred to as the Daubert trilogy. These cases have produced substantial legal commentary and some empirical research examining their effect on case outcomes and judicial behavior. Anecdotal evidence based on experience and case studies report a differential treatment of expert evidence in criminal and civil cases. In criminal cases, legal scholars complain that admissibility standards are applied too leniently favoring the admission of the prosecution’s experts over criminal defendants, suggesting a pro-government bias. Conversely, under the same admissibility standards, in civil cases, legal scholars complain that the standards are applied more strictly than in criminal cases and that expert evidence proffered by plaintiffs are scrutinized more rigorously than those proffered by civil defendants, suggesting an anti-plaintiff bias. Despite the perceived consensus among legal and socio-legal scholars about this bias, there has been little empirical research testing this phenomenon. The current study quantifies and systematically records the frequencies of the admissibility of a single form of expert evidence, cause and origin of fire experts, as proffered by prosecutors, criminal defendants, plaintiffs and civil defendants in criminal and civil cases. By holding the type of expert evidence constant between the types of cases and legal actors, we can empirically test the proposed pro-government/anti-plaintiff bias that has been conventionally accepted in the socio-legal literature based largely on anecdotal evidence.