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Imwinkelried's Argument for Normative Ethical Testimony
Published online by Cambridge University Press: 01 January 2021
Extract
Professor Imwinkelried has boldly attempted to justify the admissibility of normative ethical expertise in the face of a legal evidentiary rule requiring a scientific basis for expert testimony. Because ethical testimony is inherently unscientific, Professor Imwinkelried prudently focuses his analysis on circumstances where evidentiary requirements are less strict; those involving the legislative rather than adjudicative function of courts and those in which substantive law overrides normally rigorous evidentiary requirements. While both proposals may have merit and are thoughtful and creative, Professor Imwinkelried ultimately fails to provide sufficient doctrinal support or persuasive rationale for his arguments.
Professor Imwinkelrieds argument for the admissibility of “expert” normative ethical testimony has two parts. The major proposition is that, when courts are engaged in legislative functions, they should be permitted to consider all sources of information. The assumption that apparently underlies this proposition is that nothing limits courts’ exercise of legislative powers.
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References
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Professor Imwinkelried alludes to a number of cases where the four criteria may be met but does not explore them in enough detail to evaluate them. Imwinkelried, , supra note 3, at note 297. These include family law cases involving the “best interests of the child,” which, he states, might permit consideration of moral factors; cases involving “inappropriateness of physician's sexual contact with a patient” given ethical standards of the profession; obscenity trials considering the “redeeming value” of allegedly obscene work, tort cases where an evaluative moral judgment of defendant's behavior for punitive damages is made instead of applying extant moral standards; and criminal cases involving an objective test of “spontaneous moral revulsion.” On their face, these examples seem no more likely than the punitive damages example to meet his criteria, though raising them as possibilities is provocative.Google Scholar
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