Academic journal article Journal of Criminal Law and Criminology

Expertise and the Daubert Decision

Academic journal article Journal of Criminal Law and Criminology

Expertise and the Daubert Decision

Article excerpt

Trials in the Anglo-American tradition were originally the means by which conventional disputes were resolved. The original mode of trial gathered together individuals with knowledge of local affairs to decide notorious disputes. The existence of disputes was part of conventional knowledge, as was the knowledge necessary to resolve them. The local conventions determining borders or access to bodies of water or the proper maintenance of property were truly conventions, and thus known throughout the relevant community. As times changed, various forces coalesced to force modification in the self-informing aspect of juries, but the result was modification rather than rejection. Contrary to today's conventional beliefs about legal decision making, juridical decision makers, judge or jury,(1) are still almost exclusively self-informing. The current belief that fact finders must come with a blank slate is false in every respect save one.

The belief is false in the technical sense that knowledge about the litigated event is typically not a disqualification; only knowledge that would qualify a person as a witness disqualifies the person as a juror.(2) The conventional belief about the necessary ignorance of jurors is false in a deeper sense. Juridical decision makers come to trial with a vast storehouse of knowledge, beliefs, and modes of reasoning that are necessary to permit communication to occur simply and efficiently. Everyone in court is expected to speak the same language; rarely do trials have lexicographic diversions to elaborate on the definitions of the words that witnesses, lawyers, or judges use. Everyone is expected to have a firm grip on the nature of reality and the existence of causal relationships (whatever Hume might have thought of the justification of such beliefs). Everyone is expected to be able to engage in orderly reasoning, whether deductive, inductive, or even on occasion abductive, and to be able to perceive the relationship between evidence and propositions, between cause and effect. Everyone is expected to be able to understand what the witnesses say, to perceive the connection between what they say and the matters under investigation at trial, and to make reasoned judgments about the credibility of witnesses. Less well known, everyone is expected to be able to fill in the evidentiary gaps at trial that result from many factors (including that individual witnesses always know more than they can express) by drawing inferences based on one's own experiences to give flesh to the bones of testimony.

Over time litigated matters became more complex, and the gap of ignorance separating the fact finders from the witnesses increased. More and more frequently what witnesses said had to be explained to make it understandable. A case may depend on the conventions of a certain business or industry rather than the conventions of the society at large, and jurors will often need to be informed of those conventions. A witness may not speak English, and thus the testimony must be translated.(3) The case may involve a technical vocabulary that, like a foreign vocabulary, must be made accessible to those lacking the technical training. As such cases became more common, we continued to adhere to the traditional model of fact finding. The parties were merely obligated to explain a little bit more, to put the juror in a position to understand what the witnesses were saying, and thus to decide the case in an intelligent fashion.

Are there any cases that cannot be accommodated within the traditional model? Do some cases present issues for decision that defy the ability of fact finders to understand them? Perhaps the answer to these questions is "no." Perhaps with enough time and resources, jurors can be sufficiently informed so that they can decide intelligently all litigated cases. Yet now another set of questions lurks in the shadows: At what cost is this knowledge purchased, and is the bargain a wise one? …

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