Blind Expertise and the Problem of Scientific Evidence
| DOI | 10.1350/ijep.2011.15.3.378 |
| Author | John Danaher |
| Date | 01 July 2011 |
| Published date | 01 July 2011 |
| Subject Matter | Article |
BLIND EXPERTISE AND SCIENTIFIC EVIDENCE
Blind expertise and the
problem of scientific
evidence
By John Danaher*
PhD Candidate, University College Cork
Abstract Scientific evidence presents a problem for the courts: the
subject-matter is often complex; the experts who present the evidence can be
cherry picked and biased; and judges and juries are frequently unsure about
how to weigh the evidence once it has been presented. This article diagnoses the
problems associated with scientific evidence and then proceeds to consider two
possible solutions to those problems: (1) the reliability test solution; and (2) the
blind expertise solution. The former is currently favoured by law reform
agencies in Ireland and England, but the primary focus of this article is on the
latter. It is concluded that the blind expertise solution has considerable
attractions and should be seriously considered as a reform option.
Keywords Scientific evidence; Expert witnesses; Reliability; Blind expertise
aw reform agencies in both Ireland and England have recently
proposed reforms to the rules on the admissibility of scientific
evidence.1They have done so partly because of confusions in the
doi:10.1350/ijep.2011.15.3.378
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2011) 15 E&P 207–231 207
1 For England, see Law Commission, The Admissibility of Expert Evidence in Criminal Proceedings in
England and Wales, Law Commission Consultation Paper No. 190 (April 2009) (hereinafter ‘ Admissi-
bility of Expert Evidence’), available at <http://www.justice.gov.uk/lawcommission/docs/cp190_
Expert_Evidence_Consultation.pdf>, accessed 3 May 2011; and Expert Evidence in Criminal Proceedings
in England and Wales, Law Com. Report No. 325 (March 2011) (hereinafter ‘Expert Evidence in Criminal
Proceedings’), available at <http://www.justice.gov.uk/lawcommission/docs/lc325_Expert_Evidence_
Report.pdf>, accessed 4 May 2011. For Ireland, see Law Reform Commission of Ireland, Consultation
Paper on Expert Evidence (LRC CP 52–2008) (hereinafter ‘Consultation Paper on Expert Evidence’), in
particular ch. 2 proposing the introduction of a reliability test. The Law Reform Commission of
Ireland Consultation Paper is available at <http://www.lawreform.ie/_fileupload/consultation%
20papers/cpExpertEvidence.pdf>, accessed 3 May 2011.
L
* BCL (UCC), LLM (Dub). Email: johndanaher1984@gmail.com. The author would like to thank the
Irish Research Council for the Humanities and Social Sciences for their funding of his research
from 2007–10. He would also like to thank Dr Mary Donnelly and Dr Shane Kilcommins, as well as
two anonymous referees for comments on earlier drafts.
existing legal positions in both jurisdictions,2and partly because of the obvious
difficulties courts face when confronted with such evidence: the
subject-matter is often complex and esoteric; the experts can be cherry-picked
and biased; and courts and juries are consequently unsure of how to weigh the
evidence properly in their deliberations.
The suggestion in both jurisdictions is that a formal reliability test needs to be
introduced. This test would provide a judge with a checklist of (seven or eight)3
criteria that are thought to be indicative of reliable scientific evidence. If the
evidence presented to the court satisfies a sufficient number of these criteria,4
then the evidence is admissible and can be considered by triers of fact when they
make their decision. If the evidence does not satisfy a sufficient number of the
criteria, then it is inadmissible.
While such a proposal has considerable merits—some of which are addressed
below—it is not the only way to deal with the problem of scientific evidence. This
article considers an alternative proposal: the introduction of a system of blind
expertise.5This is a proposal that tries to bring the blinding protocols that are
already used in scientific inquiry to bear on the acquisition and presentation of
scientific evidence to a court of law.
In order to address the strengths and weaknesses of this proposal, the article
proceeds in the following manner. The first part attempts to offer a reasonably
precise diagnosis of the problems arising from the presentation of scientific
208 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
BLIND EXPERTISE AND SCIENTIFIC EVIDENCE
2 This appears to have been a major motivation for the English proposal. The feeling seems to be that
the current position, set down by King J in RvBoynthon (1984) 38 SASR 45 at 46–7, is unclear. The test
and its application in English law is analysed in Admissibility of Expert Evidence, above n. 1, Part 3. See
also A. Roberts, ‘Rejecting General Acceptance, Confounding the Gate-keeper: The Law
Commission and Expert Evidence’ [2009] Crim LR 551, who comments on the problems with the
Boynthon test.
3 See Consultation Paper on Expert Evidence, above n. 1 at 129 and Expert Evidence in Criminal Proceedings,
above n. 1 at para. 5.35. The Irish proposal has seven elements; the English has eight elements
(although there could be some dispute about how these are counted).
4 What counts as a ‘sufficient number’ is a judgment call for the court. See Expert Evidence in Criminal
Proceedings, above n. 1, at paras 3.49–3.52, commenting on the need for flexibility in applying the
test.
5 Discussion will be based primarily on the proposal from C. T. Robertson, ‘Blind Expertise’ (2010) 85
New York University Law Review 174 and the work of Roger Koppl (and his colleagues), e.g. R. Koppl, R.
Kurzban and L. Kobilinsky, ‘Epistemics for Forensics’ (2008) 5 Episteme: A Journal of SocialEpistemology
141; R. Koppl, ‘Epistemic Systems’ (2005) 2 Episteme:A Journal of Social Epistemology 91; and R. Koppl,
‘Romancing the Law: Legal Failure in Forensic Science Administration’ in E. Lopez (ed.), Government
Failure in the Legal System (Palgrave Macmillan: New York, 2010). Koppl does not focus purely on the
idea of ‘blinding’, but his proposals do include a blinding element and are highly relevant to
addressing the problem of scientific evidence.
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