Laws of Men and Laws of Nature: The History of Scientific Expert Testimony in England and America

  • Tal Golan
Harvard University Press: 2004. 336 pp. $49.95, £32.95; €46.10 0674012860 | ISBN: 0-674-01286-0

Change one word — write ‘trials’ in place of ‘laws’ — and this appealingly readable book would just as appropriately be titled Trials of Men and Trials of Nature. For trials are the stuff of Tal Golan's engaging narrative as he briskly guides his readers through some of the formative moments in a century or so of scientific expert testimony in English and American common law. Men's wits and character are on trial throughout these cases, as experts from varied fields vie to position themselves, their skills and their specialist knowledge at the service of the courts. Nature, too, is often on trial, for the outcomes in the cases that Golan skilfully dissects usually turn on who is right about the way the world works, whether in explaining the silting up of a harbour on the North Sea coast of Norfolk, distinguishing human from animal blood, displaying an X-ray picture of a badly set bone, or diagnosing, through bodily measurements, the likely truthfulness of a witness's testimony in a murder trial.

On one level, Golan's well-chosen selections from the annals of nineteenth-century litigation confirm contemporary prejudices about the relationship between science and law. As in most bad marriages, encounters between the two professions seem unavoidable and yet are sources of profound miscommunication. Since the early days of the Industrial Revolution, there has been no issue so arcane, nor claim so untenable, that an expert cannot be found to help defend it in court. Experts are available for hire in cases ranging from disputes over land use and environmental degradation to criminal identification, medical malpractice and the insanity defence.

But more knowledge does not necessarily mean more illumination. The common law's adversarial genius can divide entire communities of knowledge-holders into opposing camps, each seemingly more interested in its side winning than in arriving at the truth. The notion of science as a disinterested fact-finding practice flies out of the courtroom window as floods of expert testimony frustrate judges, confuse juries and make trial outcomes increasingly unpredictable. With experts dominating litigation, laws — natural or human-made — seem less and less relevant to dispensing justice.

Golan on the whole shares the sense of deepening crisis that has gripped Anglo-American courts since the advent of professional expert testimony. “Alas,” he repeatedly exclaims, as he recounts one story after another in which unresolvable battles between partisan experts took over from any impartial attempt to discern the facts of the case. As a historian, Golan is not primarily concerned with solutions, but he does not hide his yearning for a more orderly process in which judges would proactively scrutinize, and perhaps exclude, expert claims, while juries would be selected on the grounds of technical competence rather than generic civic capacity. In this spirit, he approves of the US Supreme Court's 1993 decision in the case of Daubert v. Merrell Dow Pharmaceuticals, a lawsuit over birth defects allegedly caused by the drug Bendectin, which roundly affirmed the duty of federal judges to act as gatekeepers in relation to expert testimony. Judges, the Daubert case declared, should screen expert evidence in accordance with scientists' criteria for determining whether proffered testimony is based on reliable theories and methods. Judges, in short, were asked to think like scientists — and, in so doing, to keep unreliable evidence away from overly credulous juries.

Unfortunately, as Golan's book demonstrates, the problem of expert testimony is too complicated to be solved through the simple expedient of substituting judges for juries. The historical cases impressively reconfirm a point often made by scholars of science studies: the science that courts need, along with the methods for generating it, frequently evolves under the prod of litigation, as part and parcel of the adversary process. Courts in technology-intensive societies are as much agents for producing new knowledge as sites for applying what is already known. Facts are generated, often under severe material and temporal constraints, to fill in gaps in available knowledge and to address the uncertainties of actual cases. Judges, then, may go seriously astray in excluding such evidence because it does not meet the standards of established science. Indeed, because Daubert-like challenges tend to favour corporate defendants more than plaintiffs, exclusion-minded judges may turn out in practice to be thinking more like corporations than like disinterested scientists.

What will happen if the law's dependence on expertise intensifies still further? Golan hopes that salvation will come from within the legal system — and in an unexpected way his wish may be granted. The trial itself may gradually yield to methods of dispute resolution that turn less on the theatrics of the adversary process. Litigation statistics in the United States suggest that trials are becoming a thing of the past, a consequence no doubt of spiralling costs, of which expert testimony is a not inconsiderable fraction. But are backroom bargains, out-of-court settlements and sealed court records desirable substitutes for litigation? This is a question that those committed to both truth and justice may reasonably ask.