Scientific Expert Testimony and Intellectual Due Process

By Brewer, Scott | The Yale Law Journal, April 1998 | Go to article overview

Scientific Expert Testimony and Intellectual Due Process


Brewer, Scott, The Yale Law Journal


Suppose that two groups of expert mathematicians disagree about a complex mathematical question--say, whether Princeton mathematician Andrew Wiles really did solve "Fermat's Last Theorem," which no mathematician had been able to prove since Louis Fermat first propounded it about 360 years ago.(1) These experts have had an opportunity to hear one another's reasons for their competing conclusions about Wiles's proof, and neither group is convinced by the other. How might we decide which of the two groups is making the correct mathematical judgment? Here's a suggestion: Convene a group of twelve or so nonmathematicians, give them an opportunity to hear from representatives of each of the competing groups of mathematicians, and have the nonmathematicians decide whether Wiles's proof really succeeded. If the truth of the matter was among one's chief concerns, would this decision procedure seem sound? There is serious reason to doubt it. The most obvious problem with such a procedure is that it seems to turn the decision about this disputed, highly complex question in the science of mathematics over to those who are least competent to answer it.

Many legal systems, including the state and federal systems of the United States, use decision procedures that are disturbingly close to the one just imagined, procedures in which nonexpert judges and juries are called upon and authorized to evaluate expert scientific testimony. This Article's goal is to offer a sustained critical analysis of the legal rules and doctrines that create and administer this procedure. Expert scientific information is relevant to, even decisively important in, a rapidly growing percentage of decisions throughout civil and criminal law. Most judges and juries, however, are not sufficiently familiar with relevant scientific fields to be able independently and reliably to bring scientific information to bear on their decisions. Instead, they must solicit and defer to the judgments of expert scientific witnesses.

Moreover, almost inevitably in litigated cases in which expert scientific evidence is offered, nonexpert judges and juries are presented, not with one authoritative "voice" of scientific truth, but instead with competing scientific expert witnesses who testify to contrary or even contradictory scientific propositions. Lacking the information necessary to make cogent independent judgments about which of the competing scientific experts to believe, nonexpert legal decisionmakers choose among the experts by relying on such indicia of expertise as credentials, reputation, and demeanor. Thus, even the act of soliciting and deferring to expert scientific judgment requires nonexperts to use a reasoning process--the process of selecting the experts, deciding which expert to believe when the experts compete, and, finally, deciding how to use the believed expert's information in resolving the central dispute being litigated.

Drawing on work in jurisprudence, epistemology, philosophy of science, and theories of practical reasoning, as well as on doctrines and leading cases on scientific expert evidence, this Article carefully models the reasoning process by which nonexpert legal reasoners defer to scientific experts in the course of applying a law to individual litigants. Drawing on this model, I argue for four central conclusions. Taken together, these conclusions have far-reaching consequences for virtually all legal systems in which nonexpert legal decisionmakers confront expert scientific testimony.

First, the Article argues that in order to avoid making an epistemically arbitrary choice about which of the competing scientific experts ought to be believed, a person must understand (in a special sense discussed in the text) the cognitive aims and methods of science. But nonexpert judges and juries lack just that kind of understanding, which is why they rely instead on other indicia of expertise, such as credentials, reputation, and demeanor. …

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