Abstract
This paper explores how scientific knowledge is used in a criminal case. I examine materials from an admissibility hearing in a murder trial and discuss the dynamics of contesting expert scientific opinion and evidence. The research finds that a purported form of “science” in the relevant scientific community is filtered through, tested by, and subjected to legal standards, conceptions, and procedures for determining admissibility. The paper details how the opposing lawyers, the expert witness, and the judge vie to contingently work out what will count in court as appropriate scientific authority, methods and evidence, and as a scientifically valid and legally admissible account of “reasonable fear.” When science becomes enmeshed in legal controversies, science does not trump law. Rather, it is the court’s canons of proper procedure and measures of substantive adequacy that take precedence.
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Notes
Although Jasanoff (1995) suggests that “deconstruction” of science is a practice peculiar to the adversarial legal system, Latour and Woolgar (1979) first used the term to describe disputes among scientists about particular facts. Jasanoff (1992) also suggests that at times the court ‘de-construction’ of scientific authority and knowledge claims can reveal non-obvious aspects of the construction of science. Because scientific experts anticipate confrontations in court, they commonly prepare for challenges, demands for quantitative standards, documentation, and other technical details that they may be more lax about in academic settings (see Kevles 1998).
However, scientific experts may also try to present themselves as disinterested witnesses to undermine the inference that they are “hired guns.”
Lay witnesses are generally only allowed to testify about facts of which they have personal knowledge, usually based on what they have seen or heard, or otherwise experienced first-hand (see e.g., Federal Rule of Evidence 701). However, witnesses who are qualified as experts can offer opinions and explanations regarding matters at issue in the case based on their specialized knowledge, education, background, training, and experience (Federal Rule of Evidence 702), provided such opinions are “related to a subject that is sufficiently beyond common experience that the opinion of the expert would assist the trier of fact” and are based on facts known or made known to the expert and based upon matter of a type usually relied upon by such experts (California Evidence Code, section 801 (a)).
In deciding whether there is a proper foundation for admissibility, the judge considers several factors, including whether the testimony to be offered is generally recognized as the subject of expert testimony, the number of experts in the field, and whether the specific testimony to be offered relates to the particular expert’s area/s of expertise. California courts retain the standard for admissibility of expert testimony of peer acceptance set forth in People v. Kelly 17 Cal.3d 24 (1976) and originally articulated in Frye v. US 293 F. 1013 (1923), namely that the testimony has “gained general acceptance in the particular field in which it belongs” (p. 1014). As Michael Lynch and Simon Cole (2005) explain, the more lenient admissibility standard which is currently the law in California requires “an assessment of novel forms of ‘scientific’ evidence by reference to their ‘general acceptance’ in the ‘relevant’ fields of science. The ‘general acceptance’ standard had the apparent advantage of treating consensus in ‘the scientific community’ (or, rather, testimony about such consensus) as a proxy for the scientific status of bodies of evidence...However, the ‘general acceptance’ standard posed obvious problems, as it left open the question of how to constitute the ‘relevant scientific community’ as well as how to distinguish closed communities of true believers from established scientific fields” (Lynch and Cole 2005, p. 271). California courts do not currently follow the more stringent federal standard of admissibility set forth in Daubert v. Merrell Dow Pharmaceuticals 509 US 579, 125 L Ed2d 469, 113 S. Ct. 2786 (1993), which requires judges to determine that the expert evidence to be presented is not only relevant, but is also reliable and amounts to “good science.”
Anita Pomerantz (1987, pp. 232–233) makes a similar point by demonstrating how an interrogator may formulate a question as provisionally correct, subject to confirmation by the witness.
The singling out of particular verbs such as ‘suggests’ and translating them with terms like ‘an idea…inference…not necessarily conclusive,’ relates to some research in social studies of science that describes how qualifying statements are inserted and detached from observation accounts of scientists in the laboratory (see Latour and Woolgar 1979 on “modalities,” and Pinch 1985, especially at pp. 27–28).
Although Daubert is not the governing standard in this case, it is notable that the prosecutor pursues what later became one of the key items in the Supreme Court’s guidelines for admissible expert opinion, namely testing/testability. This suggests that courtroom participants may deploy “commonsense” notions of what is or is not scientific that are not strictly specified by the general acceptance rule.
Sacks’ discussion (1972, 1992) of “membership categorization devices” suggests that members use knowledge of membership categories to make sense of their everyday activities and interactions. For a related example of using an inappropriate term of address as a boundary marker, see the “Yes, Teacher,” response invoked by a patient in a group therapy session to “partition” the young patients from their therapist following a rebuke by the therapist (Sacks 1992, vol. 1, Lecture 14, pp. 59–60). Also see Eglin and Hester (1992) on “occasioned boundedness.”
In order to invoke the defense of “self-defense” the defendants were required to negate the “guilty mind” and/or “voluntary act” requirements necessary for the crime of murder. Notably, the expert evidence offered at the admissibility hearing on altered fear levels due to child sexual abuse and trauma was tendered to substantiate “self-defense,” (or at least to establish “imperfect” self-defense, which would mitigate the crime from murder to voluntary manslaughter). In order for there to be complete or perfect self defense, the defendants must have honestly and reasonably believed that their use of deadly force was necessary to thwart (prevent or terminate) an imminent deadly attack upon themselves. Persons acting in “perfect self-defense” are privileged under the law to engage in the conduct, even though they performed the physical part of the crime of murder by taking the life of another and even though they did so intentionally. While “imperfect self-defense” (i.e., an honest, but unreasonable fear that their lives were in imminent danger) is not a complete excuse which relieves the accused of all criminal responsibility, it is a mitigating factor which, if established, reduces the charge of murder to voluntary manslaughter.
For example, law professor George Fletcher believes that Judge Weisberg should never have let in the evidence of child abuse in the first trial because “[t]o claim a relevant fear of imminent death...the threatened attack must indeed by imminent. No jurisdiction recognizes self-defense for pre-emptive attacks...whether there was reason to fear Kitty and Jose Menendez’ long-range intentions or not...It is not clear whether the jury cared whether or not Lyle or Eric believed the attack was imminent. So long as the defendants could devise an argument for treating the evidence of abuse as relevant (it supposedly explained their fear of attack), they could testify about their ‘history of child molestation,’ [and] put their victim-parents on trial” (Fletcher 1996, p. 146).
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Acknowledgments
I am deeply indebted to Doug Macbeth for his extremely helpful comments and editorial suggestions on an early draft of this paper, and to Michael Lynch for his many analytic insights on a later draft. I also thank the anonymous journal reviewers.
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Burns, S.L. Demonstrating “Reasonable Fear” at Trial: Is it Science or Junk Science?. Hum Stud 31, 107–131 (2008). https://doi.org/10.1007/s10746-008-9081-1
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DOI: https://doi.org/10.1007/s10746-008-9081-1