Decisional Dimensions in Expert Witness Testimony – A Structural Analysis

Abstract

The relationship between forensic science and legal adjudication is intricate mainly because the need to inform fact-finders on issues going beyond the layman’s knowledge poses challenges both on empirical and normative dimensions, in particular with regards to the specific role and duties of the different participants in the legal process. While rationality is widely upheld as one of the aspirations of the legal process across many modern jurisdictions, a pending question is how to remedy the uneasy relationship between general propositions (and knowledge claims) conditioning expert witness testimony, and individualized decisions taken by fact-finders. The focus has hitherto been put on the utilization of model-based and formal methods of reasoning while, regrettably, the concepts of judgment and decision-making have not received equal attention. A first aspiration of our paper will thus be to further clarify the nature of this systemic relationship in the particular area of the legal process involving scientific experts, by conducting a critical transversal analysis of current empirical, normative and doctrinal understandings of expert witness testimony. As a second aim, we will use this insight to argue in favor of the view that structural features of expert witness testimony are embedded in a decision-making process, and that the understanding of this decisional dimension is important for clarifying the respective roles of expert witnesses and fact-finders, and for favoring their mutual understanding thereof. To substantiate this perspective, and attest to its growing recognition as a frontier understanding, we will provide real-world examples from forensic science reporting practice and policy documents of professional bodies.

Theoretical and praxeological justification of the forms and directions of expert’s initiative implementation during forensic veterinary examination

“…Розслідування правопорушень стосовно тварин не обходяться без призначення й проведення судово-ветеринарної експертизи [2][3][4]. Останню призначають для встановлення фактичних даних щодо посягань на життя і здоров'я тварин, у т. ч. й за жорстокого поводження з ними як в Україні [5,6], так і в інших країнах світу [7][8][9], оскільки висновок судового експерта є джерелом доказів у судочинстві [10][11][12].…”

Towards another paradigm for forensic science?

“…However, these upstream decisions necessarily determine the scientific opinion transmitted downstream to the decision‐maker, especially if they express themselves on the causes. They are just as limited in managing the difficulties subsequently encountered by the recipients of their opinion, even powerless to demonstrate the errors or fallacies that could be concluded from it, even correctly expressed (Biedermann & Kotsoglou, 2018; Ditrich, 2015; Gennari, 2018; McQuiston‐Surrett & Saks, 2009; Thompson et al, 2013; Thompson & Newman, 2015). It is not a question here of relieving the scientist of their responsibility, but questioning the effectiveness and merits of scientific transparency in a vacuum, without integrating the steps of selecting traces or deciding to seek their assistance.…”

Making sense of law: Critical reflection on neuroscience, socialization and self

“…The justice system is an operational system where outcomes matters and most of the time the content which led to this outcome is not in the social and cognitive periphery of the people. The judicial verdict had a long-term impact on the psyche of people despite the new expert evidence and refutation of earlier evidence and interpretations (Asokan, 2016;Biedermann & Kotsoglou, 2018). Once an impact is made on the public mind due to the verdict, it is difficult, if not impossible, to eradicate that impression with new evidence.…”