Judicial Representations of Scientific Evidence

AuthorGary Edmond
Publication Date01 Mar 2000
Judicial Representations of Scientific Evidence
Gary Edmond*
A critical examination of the way that courts handle scientific expert evidence
reveals inconsistency in strategies for validating and legitimating the weight
attached to it. This inconsistency is rooted in perceptions of the nature of
scientific knowledge. The essay considers the implications of this analysis for the
Woolf reforms of civil procedure with respect to expert evidence.
This article examines some of the ways in which judges conceptualise and
represent scientific evidence in their administration of trials and rationalisation of
decision making in a number of common law jurisdictions. The most obvious
feature of the following discussion is that the images and conceptualisations of
Science, invoked by judges, are not consistent, nor consistently applied.1Judges,
even those from the same jurisdiction, explain their orientations to particular
scientific evidence, techniques and scientists in ways which can be difficult to
reconcile with other decisions – even decisions examining similar techniques and
evidence. Traditionally most commentators and judges have sought to rationalise
or systematise judicial approaches to expert evidence, by drawing upon pervasive
ideals associated with Science. In contrast, I have deliberately attempted to
accentuate the appearance of inconsistency by juxtaposing different approaches to,
and explanations of, scientific evidence from a number of common law
jurisdictions, including evidence from both criminal and civil justice systems.
This article represents an attempt to illustrate some of the limits to prevalent
doctrinal efforts aimed at rationalising judicial approaches to scientific evidence.
In undertaking this project I hope to problematise the pervasive use of ideal
representations of Science as prescriptive guides to judicial decision making.
Focusing upon a number of examples, the flexibility and inconsistency involved in
the judicial construction of Science should become more conspicuous.2
In contrast to conventional approaches to scientific evidence,3which often locate
so-called law-science ‘problems’ in the failure of lawyers and judges (and jurors)
ßThe Modern Law Review Limited 2000 (MLR 63:2, March). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
* Faculty of Law, University of Adelaide, 5005, Australia.
I thank David Mercer, Roderick Munday, Frank Bleckman and Mon-Han Tsai for commenting on an
earlier draft.
1 I prefer to use the sciences, in contrast to Science, to reinforce the diversity of fields, pursuits and
practices associated with what is conventionally understood to be science. Use of the term Science,
which I have retained to convey dominant judicial (and scientific and public) conceptualisations,
reinforces and exaggerates the continuity and holism supposedly linking disparate endeavours in ways
designed to legitimate the extrapolation of method(s), institutional commitments and a normative
ethos. It should be acknowledged that ‘judicial,’ ‘scientific’ and ‘public’ are also susceptible to
problematisation. A similar conceit could be, and has been made toward Law. In focusing primarily
upon the use of scientific evidence this paper implicitly contributes to those critiques.
2 I have assumed that if the sciences really were predicated upon a few universal assumptions and
approaches then these might be ascertained – or at least be ascertainable – regardless of the specific
jurisdictional approach to scientific evidence. If there really were an essence or unifying strand to
Science, then presumably it would not matter whether different jurisdictions placed emphasis on
falsificationism (Daubert) or some other indicator such as general acceptance (Frye) or the
recognition of a ‘field’ or ‘community’. The jurisdictional approaches should converge. Unless, of
course, these failed to illuminate the essence(s).
3 Some examples include: B. Black, F. Ayala and C. Saffran-Brinks, ‘Science and the Law in the Wake
of Daubert: A New Search for the Scientific Knowledge’ (1994) 72 Texas Law Review 715; D.
Bernstein, ‘Junk Science in the United States and the Commonwealth’ (1996) 21 Yale Journal of
to achieve a sufficiently competent understanding of scientific knowledge, practice
and technique (‘scientific literacy’) – which may well be true in individual cases –
it is my contention that the sciences do not conform to the mythological and
normative images which judges and others utilising their epistemic and, indirectly,
legitimatory capital regularly convey. This discrepancy or displacement from the
ideals makes the application of normative standards more difficult and erratic than
might be anticipated if Science really were homogenous, objective, method driven
and determined solely by evidence derived from a natural world.
Instead, it is my contention that courts are often actively and constructively
implicated in negotiating, recognising and determining the legitimacy, social
relevancy and meaning of scientific knowledges in legal settings.4The sciences do
not have a corporate personality, despite the ongoing attempts by Science
popularisers, courts, scientists and the media – who all regularly contribute to
myths and ideals which reinforce universalist pretensions – to suggest one. By
invoking ideal images of Science to ‘police’ the admissibility of scientific
evidence, the legal system provides an important site for legitimatory
reinforcement.5Decisions utilising concepts such as ‘bad’ or ‘junk’ Science,
‘proper’ use of method, ‘appropriate’ scientific attitude or knowledge generated
away from the shadow of litigation all reinforce pervasive idealised visions of
legitimate scientific activity.6
Whilst the following examples might not convince readers of the benefits of a
more sociological approach to the modern sciences and the (mutually constituting)
interactions of Law and Science, it should make them less complacent about the
way that scientific evidence is discussed and represented in legal contexts. One
option is to reform current judicial practices so that they more clearly conform to
the essential criteria, normative institutional commitments and ethos underlying
Science and its social success. Whilst this would allegedly enhance the reliability
of verdicts, it is antithetical to the approach adopted in this article. In order to
illustrate this contention there is some discussion of the recent Woolf proposals and
reforms to the rules of civil procedure. Alternatively, we can begin to
reconceptualise our understanding of the sciences and the manner in which legal
systems appropriate and legitimise expertise. Both approaches raise many
International Law 123; Note, ‘Confronting the New Challenges of Scientific Evidence’ (1995) 108
Harvard Law Review 1481; S. Goldberg, Culture Clash: Law and Science in America (New York:
New York University Press, 1994); K. Foster and P. Huber, Judging Science: Scientific Knowledge
and the Federal Courts (Cambridge: MIT Press, 1997). In relation to evidence more generally,
compare: W. Twining, Rethinking Evidence: Exploratory Essays (Oxford: Basil Blackwell, 1990) and
D. Nicolson, ‘Truth, Reason and Justice: Epistemology and Politics in Evidence Discourse’ (1994)
MLR 726.
4 S. Jasanoff, ‘Beyond Epistemology: Relativism and Engagement in the Politics of Science’ (1996) 26
Social Studies of Science 393; M. Lynch and S. Jasanoff (eds) ‘Contested Identities: Science, law and
forensic practice’ (1998) 28 Social Studies of Science 675; G. Edmond, ‘Azaria’s Accessories: The
social (legal-scientific) construction of guilt and innocence’ (1998) 22 Melbourne University Law
Review 396.
5 B. Wynne, ‘Establishing the Rules of Law’ in R. Smith and B. Wynne (eds), Expert Evidence:
Interpreting Science in the Law (London, Routledge, 1989); M. King and F. Kaganas, ‘The Risk and
Dangers of Experts in Court’ in H. Reece (ed), Law and Science (Oxford, OUP, 1998).
6 See G. Edmond and D. Mercer, ‘Trashing ‘‘junk’’ science’ (1998) Stanford Technology Law Review
March 2000] Judicial Representations of Scientific Evidence
ßThe Modern Law Review Limited 2000 217
Judicial craft skills
The scientific method
The obvious place to begin a discussion of judicial approaches to Science is with a
brief examination of the uses of ‘scientific method’. Numerous legal and scientific
commentators have celebrated the importance and centrality of a prescriptive,
efficacious and transferable scientific method underlying the triumphal rise and
progress associated with Science.
The power of the scientific method – I acknowl-
edge that some commentators and judges employ the plural, methods (not that this
resolves the problem of which method(s)) – is seen to lie in an approach to the natural
world capable of expunging the social commitments and values of investigators.
A recent high point in the judicial celebration of method was the promotion of
falsificationism by the US Supreme Court in their Daubert vMerrell Dow
Pharmaceuticals, Inc judgment. Citing the philosophers Popper and Hempel,
Blackmun J explained:
Ordinarily, a key question to be answered in determining whether a theory or technique is
scientific knowledge that will assist the trier of fact will be whether it can be (and has been)
tested. ‘Scientific methodology today is based on generating hypotheses and testing them to
see if they can be falsified; indeed, this methodology is what distinguishes science from
other fields of human inquiry.’9
Given the level of abstraction it might not be surprising to find that Chief Justice
Rehnquist voiced dissent, in terms which questioned the utility and application of
such method doctrines, especially in the guise of falsification.10
In practice, few judgments have offered a sustained review of Daubert’s terse
references to the scientific method. On remand, the Ninth Circuit made the
following observation about scientific method, which might explain their use of
other criteria to evaluate the scientific evidence: ‘As the record in this case
illustrates, scientists often have vigorous and sincere disagreements as to what
research methodology is proper for the existence of a ‘‘fact,’’ and whether
information derived by a particular method can tell us anything useful about the
subject under study.’11 In Daubert, the Supreme Court proposed scientific method,
in the guise of falsification (as testing) as the central consideration in the
admissibility and assessment of scientific evidence. Subsequently, the Ninth
Circuit Court of Appeals revealed a somewhat different approach to Scientific
Some examples include: S. Mason, A History of the Sciences (New York, Collier MacMillan, 1962); R.
Harre´, The Method of Science (London, Wykeham, 1970); F. Ayala and B. Black, ‘Science and the
Courts’ (May–June 1993) 81 American Scientist 230, 234: J. Bourke, ‘Misapplied Science: Unreliability
in Scientific Test Evidence’ (1993) 10 Australian Bar Review 183, 192; A. Roisman, ‘Conflict
Resolution in the Courts: The Role of Science’ (1994) 15 Cardozo Law Review 1945; C. Hutchinson and
D. Ashby, ‘Daubert vMerrell Dow Pharmaceuticals, Inc: Redefining the Bases for Admissibility of
Expert Scientific Testimony’ (1994) 15 Cardozo Law Review 1875, 1885–88 (1994); D. Faigman,
‘Mapping the Labyrinth of Scientific Evidence’ (1995) 46 Hastings Law Journal 555, 560, 579.
8 An example was provided by In re Bendectin Litigation 857 F.2d 290, 319 (6th Cir 1988). Compare P.
Feyerabend, Against Method (London: New Left Books, 1975); H. Collins, Changing Order:
Replication and Induction in Scientific Practice (London: Sage, 1985); J. Schuster and R. Yeo (eds),
The Politics and Rhetoric of Scientific Method (Dordrecht: Reidel, 1986); D. Gooding, T. Pinch and
S. Schaffer (eds), The Uses of Experiment (Cambridge: CUP, 1989).
9Daubert vMerrell Dow Pharmaceuticals Inc 113 S.Ct 2786, 2795–97 (1993). See G. Edmond and D.
Mercer, ‘Keeping ‘Junk’ History, Philosophy and Sociology of Science out of the Courtroom:
Problems with the reception of Daubert vMerrell Dow Pharmaceuticals Inc’ (1997) 20 University of
New South Wales Law Journal 48.
10 n 9 above, 2799–2800 (1993).
11 Daubert vMerrell Dow Pharmaceuticals, Inc 43 F.3d 1311, 1316 (9th Cir. 1995).
The Modern Law Review [Vol. 63
218 ßThe Modern Law Review Limited 2000

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