Mnookin on Idealizing Science and Demonizing Experts

Jennifer Mnookin (UCLA) has just posted an article on SSRN entitled “Idealizing Science and Demonizing Experts: An Intellectual History of Expert Evidence,” 52 Villanova L. Rev. (2007).  The Article provides some much needed perspective on the role of science in litigation.  Here is the abstract:

This Article, published in a symposium issue focusing on science andexpertise, traces the early reception of the modern expert witness. Itdescribes in some detail the widespread frustrations with expertwitnesses in court in the closing decades of the nineteenth century,focusing in particular on the two most vociferous critiques: thatexperts too often became partisans, mere mouthpieces for the party thathired them; and that expert testimony was so frequently contradictorythat it confused and perplexed, rather than enlightened, the lay jurorswho heard it.

TheArticle argues that these criticisms can only be properly understood byrecognizing two important aspects of how expert evidence was beingwielded and understood in this period. First, it is important torecognize that even amidst the rampant complaints by the bench, bar,and experts themselves, about the content and methods of experttestimony, the actual use of expert evidence was simultaneouslyincreasing. Second, I argue that a key source of the dissatisfactionwith expert testimony was a disjunction between a set of idealizedexpectations for scientific evidence and the practical realities of itsuse in the courtroom. It was precisely because of what science wasthought to be able to offer to the process of legal decisionmaking,that the spectacle of warring experts provoked such frustration andanger. Science ought to have been able to offer proof more objective,more certain, and more neutral than that of the lay eyewitness, or sobelieved scientists and legal commentators alike. When it failed to doso, this failure was frequently attributed to partisan excess or theproblems of adversarialism, rather than recognized as being, at leastin significant part, the result of unrealistic expectations for scienceitself. In the conclusion, I suggest that this idealized conception ofscience lingers with us today as well, and continues to influence howwe understand and critique expert evidence in court.

ADL