Inroads into the Ultimate Issue Rule? Structural Elements of Communication between Experts and Fact-Finders
| Author | Kyriakos N. Kotsoglou,Alex Biedermann |
| Published date | 01 August 2022 |
| Date | 01 August 2022 |
| DOI | http://doi.org/10.1177/00220183211073640 |
| Subject Matter | Articles |
Inroads into the Ultimate Issue Rule?
Structural Elements of
Communication between
Experts and Fact-Finders
Kyriakos N. Kotsoglou
Northumbria Law School, Northumbria University, Newcastle upon Tyne, UK
Alex Biedermann
University of Lausanne, School of Criminal Justice, Lausanne –Dorigny, Switzerland
Abstract
One of the most persistent questions in criminal evidence relates to the use of (unchallenged) expert
evidence. What does it mean to accept or reject (unchallenged) expert evidence? To what extent can,
and should, an expert enter jurisprudential territory? Is the traditional model of trial by jur y viable in our
complex world? In order to clarify these pressing questions, we will examine the evidential structure
underpinning expert witness testimony. We will show that what we usually and, at the cost of oversim-
plification, call ‘evidence’, comprises three distinct questions: (i) What does the data show? (ii)What
should we believe? (iii)What should we do? From this insight, a number of corollaries fall into place. First,
although decisions have to be informed through reasoned inferential procedures, they cannot be
reduced to scientific propositions. As a result, fact-finders do not need to cede their decision-making
prerogative as some proponents of expert-driven decision-making suggest. Secondly, criminal liability is
not a scientific conclusion. Rather,so our argument, it i san individualistic normative construction that
involves an inferential leap which is not warranted by any scientific (i.e. general) proposition. For the
rectitude of the criminal verdict (or indeed any legal decision) does not map logically onto the possible
treatment of scientificfindings, that is, acceptance/rejection. Thirdly,ourclarification of this evidential
structure, which we call coherent decisionalism, provides a conceptual framework to understand and
stabilise case law on expert witness testimony.
Keywords
Fact-finding, expert evidence, decision-making prerogative, unchallenged evidence, scientism,
values, coherent decisionalism
Corresponding author:
Kyriakos N. Kotsoglou, Northumbria Law School, Northumbria University, Newcastle upon Tyne NE1 8ST, UK.
E-mail: kyriakos.kotsoglou@northumbria.ac.uk
Article
The Journal of Criminal Law
2022, Vol. 86(4) 223–240
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00220183211073640
journals.sagepub.com/home/clj
Do not think I am saying anything against science: I am only saying what its job is.
C.S. Lewis
I. Introduction
A. Law and Complexity
It is widely acknowledged that the successful operation of the criminal justice system depends on the ability of
professional judges, juries and panels of magistrates
1
to make accurate decisions by identifying particular acts
and circumstances as instantiations of abstract legal concepts.
2
The same ability facilitates a coherent manage-
ment of the great multitude of cases ‘emerging day by day’.
3
Most importantly, it enables the criminal justice
system to treat like cases alike and different cases differently, which is a basic feature of (procedural) justice.
4
Once we realise that (criminal) courts have grown increasingly dependent upon scientific methods of judi-
cial decision support and that our modern technological world places additional strain on the abovementioned
ability, we face the following problem: How can the system of criminal adjudication manage to cope with
complexity? How do legal orders try to remedy the apparent informational deficiencies in criminal proceed-
ings –and how should they do so? For fact-finders operate over an extremely wide range of socio-economic
activities that characterise modern societies. The technological progress of our age, where e.g. an affordable
smartphone easily outperforms the computational capacities of NASA’s Voyager 1 and 2 of the late 1970s by
many orders of magnitude,
5
reinforces the pressure on the question of decisional competence: Who should
have the decision-making prerogative
6
whenever we are dealing with evidence requiring knowledge that
ordinary people do not usually possess, and why? The ‘creeping scientization of factual inquiry’
7
as well
as the compartmentalization of human knowledge place the ‘good old way’, according to which experts
act merely as ‘helpers of the court’,
8
increasingly in doubt. The importance of filling abstract legal terms
with valid (i.e. reliable) empirical content, in conjunction with technological and informational complexity,
thus threaten to radically transform the traditional decision-making process. The latter has despite all its insti-
tutional adaptations immunised itself against criticism as a ‘perfectly legitimate model of fact-finding᾽.
9
Perhaps traditional fact-finders are mere luxuries, one might think, and science should supply all the facts
that guide our action.
10
After all, one of the central tenets of modern legal orders, the Rationalist Tradition,
lies in the pursuit of rationality and accuracy (factual rectitude) of fact-finding in adjudication.
11
1. Hereinafter we will use the generic term ‘fact-finder’.
2. See e.g. HLA Hart, The Concept of Law (Clarendon Press, Oxford 1961) 124; RJ Allen, A Note to My Philosophical Friends
About Expertise and Legal Systems, in: 28 Humana.Mente: J. Phil. Stud (2015) 71–86 (72), stresses that rights without accurate
decision-making are meaningless.
3. JB Thayer, A Preliminary Treatise on Evidence at the Common Law (Little, Brown, Boston 1898) 269.
4. The House of Lords’Science and Technology Select Committee in its latest report (Forensic science and the criminal justice
system: a blueprint for change, 3rd Report of Session 2017-19, HL Paper 333, para 124) stresses that ‘[t]here is a need for con-
sistent interpretation by judges and lawyers of what the evidence means in a specificcase to ensurethe fair andconsistent appli-
cation of the law.’
5. See: https://www.nasa.gov/mission_pages/voyager/multimedia/vgrmemory.html (last accessed 4 January 2022).
6. For a discussion of this term in relation to scientific evidence, see e.g. A Biedermann and KN Kotsoglou, Decisional
Dimensions in Expert Witness Testimony –A Structural Analysis, in: 9 Front. Psychol. (2018), Article 2073, doi.org/
10.3389/fpsyg.2018.02073.
7. MR Damaska, Evidence Law Adrift (Yale University Press, New Haven 1997). 151.
8. JB Thayer, Select Cases on Evidence at the Common Law (Cambridge 1892) 665.
9. P Roberts, Does Article 6 of the European Convention on Human Rights Require Reasoned Verdicts in Criminal Trials? In: 21
Int. Rev. Vict. (2015) 139–160 (229).
10. For a critical introduction to these issues see M Midgley, Science and Poetry (Routledge, New York 2001) 22 et passim.
11. The “Rationalist Tradition”was first described in W Twining, ‘The Rationalist Tradition of Legal Scholarship’in E Campbell
and L Waller (eds), Well and Truly Tried: Essays on Evidence in Honour of Sir Richard Eggleston (Law Books, Sydney, 1982)
211–249. This is a view of adjudication that, according to Twining, the vast majority of leading Anglo-American scholars has
“either explicitly or implicitly adopted”,W. Twining, Identification and Misidentification in Legal Processes: Redefining the
Problem”, in: Twining (ed.), Rethinking Evidence (Blackwell, Oxford 1994) 153–178 (160).
224 The Journal of Criminal Law 86(4)
To continue reading
Request your trial