Scientific Expertise and Comparative Criminal Procedure
| Author | Peter Alldridge |
| Published date | 01 July 1999 |
| Date | 01 July 1999 |
| DOI | http://doi.org/10.1177/136571279900300301 |
| Subject Matter | Article |
Scientific
expertise
and
comparative
criminal
procedure!
By
Peter
Alldridge
Cardiff
Law
School
...
the
legacy
of
postmodernism
is
that
truth
is
not
fixed,
meanings are 'located' provisionally,
not
'discovered'
and
people
who
'find'
truth,
whether
judges,
juries,
critics, or, yes, even
scientists, have interests -social, economic, political, racial,
gender
-
that
affect how
they
see
the
world.'
However
much
we
may
be convinced
of
the
merits
of
the
Anglo-Saxon
judicial
system,
the
courtroom
is
not
the
best
place,
and
the
adversary
procedure
is
not
the
right
method,
to decide
what
is
and
what
is
not
ascience.'
This essay will consider two relationships: those between adversarial
and
inquisitorial systems
of
criminal
justice,
and
between science
and
law, from aperspective convinced
of
the
significance
of
culture
and
of
structure
in comparative
criminal
justice. The first
relationship
has
adeveloped
but
by no
means
entirely
satisfactory theory. The second is
developing quickly in response to
the
growing
importance
of
science to
law. The purpose
of
the
essay is to examine, in
the
context
of
those
two
relationships, two proposals
that
recur
throughout
the
literature
on forensic
science
and
expertise:
the
proposals for
independent
expert
witnesses
and
for
some
mechanism
for
the
extra-forensic
validation
of
procedures for
obtaining
and
delivering scientific evidence. In
recent
years
greater
attention
has
been
given to
the
dangers
of
ethnocentrism
and
of
defining
categories
and
functions from a
culturally
biased perspective,
and
the
importance
not
simply
of
comparing
rules
but
of
comparing
cultures.
~hortened
and
updated
version of a
paper
which
first
appeared
as 'The Problematic of
I
~~~entific
Evidence
and
Comparative
Criminal
Procedure' in P.
Patenaude
(ed.)
Police,
Techniques
Modernes
d'Enquete
ou de
Surveillance
et Droit de la
Preuve
(Editions Revue de Droit: Sherbooke,
Quebec, 1998)
157-98.
I
am
grateful
to Stewart Field
and
the
journal's
anonymous
reviewers.
2C. Menkel-Meadow, 'The Trouble
with
the
Adversary System in a PostModern, Multicultural
World' (1996) 38 William and Mary Law
Review
5
at
14.
3
A.].P.
Kenny, 'The Expert in
Court'
(1983) 99
LQR
197
at 207.
THE
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141
SCIENTIFIC
EXPERTISE
AND
COMPARATIVE
CRIMINAL
PROCEDURE
By legal
culture
we
mean
the
ideas, values,
attitudes
and
opinions people
in
some society hold,
with
regard to law
and
the
legal system (
...
).
Legal
culture
is
the
source
of
law - its
norms
create
the
legal
norms;
and
it
is
what
determines
the
impact
of
legal
norms
on
society."
On
this
account
there
is a
distinction
to be
made
between
the
'internal'
and
'external'
legal
cultures
of
a society. In
the
cases
under
consideration,
the
'internal'
legal
culture
is
the
more
important.
It
resides
in
a
set
of
beliefs
held
by professionals working
within
the
system. Thus, for example,
the
systems
of
criminal
courts
in
England
and
the
USA
share
a
common
ancestry,
but
on a
recent
visit
an
American lawyer
reported
fewer objections
in
five
months
to
the
conduct
of
the
adversary in a
trial
in
England
than
typically would be
seen
in
one
hour
in
the
USA.
There is no
rule
of
law
in
English courts
that
prohibits
continual
interjections,
and
no
rule
in US
courts
which
mandates
them,
but
it
is impossible usefully to compare
the
trial
systems
without
taking
note
of
the
different
practices
and
beliefs
of
the
practitioners
within
them," If
it
were
not
for
the
constraints
of
legal
culture,
there
would be no
difficulty
in
reforming
any
area
of
any legal system:
on
any issues,
the
optimal
law
could
be
put
in
place by
reading
the
law
of
as
many
jurisdictions
as possible,
deciding
which
looks best in
the
books,
and
adopting
it.
For
the
purposes
of
this
paper,
the
important
factors
that
are
to be
found
in
an
internal
legal
culture
are
trust
in,
and
independence
of, forensic scientists.
Neither
can
be decreed. The
structural
conditions
can
be created
under
which
forensic scientists are
more
or less likely to be
trusted
and
to be perceived as
independent,
but
that
in
itself
will
not
be
enough.
Whether
any
system for
the
reception
of
scientific evidence
can
function
in
a
manner
that
is
acceptable will
depend
not
only
upon
the
rational
arguments
that
can
be
advanced for
that
system
in
general,
but
also
upon
the
local legal
culture.
Legal
cultures
are
not
immutable,
but
they
can
provide resistance to, or
impetus
for, change.
Adversarial
and
inquisitorial
systems
Fundamental
to any
account
of
structural
differences
between
systems
of
criminal
justice
is
that
between
adversarial
and
inquisitorial systems.
~riedman.
'Is
there
aModern Legal Culture?' (1994) 7 RatioJuris117.118
I5
Inthis
instance.
the
explanation
is probably
that
judges
intervene
more
frequently to
rein
back
counsel in England
and
Wales.
142
THE
INTERNATIONAL
JOURNAL
OF
EVIDENCE
&
PROOF
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