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Expert’s (Meta)Testimony: An Epistemological Perspective

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Theory of Legal Evidence - Evidence in Legal Theory

Part of the book series: Law and Philosophy Library ((LAPS,volume 138))

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Abstract

Expert witnesses play an important role in a legal process. Courts often appoint up to several experts to help resolve a specific factual case at hand. The mere fact that a judge decides to appoint experts to provide special information suggests that from the judicial perspective, such experts are (1) epistemically superior to a judge and (2) equals, i.e. epistemic peers with respect to each other. The problem arises when the opinions provided by two or more experts differ substantially. In our paper, we would like to address how such disagreements can be resolved by means of the institutional structure of the judicial process. For example, a judge may be allowed to evaluate the opinions herself to appoint another expert witness, or to ask for a meta-testimony (meta-opinion). The following issues arise: How can a judge, lacking of special knowledge, assess the correctness of expert opinions (as inferior on the epistemic level)? A judge has no grounds to provide a reliable argument as to which opinion is more plausible. An appointment of another expert may be an instance of “cherry-picking”. As we will argue, in cases where experts are not able to discuss their differences (conciliate) in order to reach a joint opinion, it might be best to appoint a meta-expert who will assess the reliability and correctness of disagreeing opinions. At the end of the paper, we provide certain normative, de lege ferenda suggestions as how to shape the institution of a meta-expert in legal proceedings.

Adam Dyrda was supported by National Science Centre, Poland (Grant no. 2020/37/B/HS5/00272). Maciej Próchnicki was supported by National Science Centre, Poland (Grant no. 2017/27/B/HS5/01407).

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Notes

  1. 1.

    This means that for the sake of expert opinion, scientific evidence will be understood broadly, not being limited to ‘science’ in the strict sense. See Sect. 2.

  2. 2.

    Roberts (2018), p. 30.

  3. 3.

    See, for example, Kaplan and Puracal (2017).

  4. 4.

    Roberts (2018), p. 34.

  5. 5.

    Roberts (2018), p. 35.

  6. 6.

    Cf. Roberts (2018), p. 48 onwards, where a slightly different framework is adopted.

  7. 7.

    Deirdre Dwyer, an author of a comprehensive epistemological inquiry on expert evidence, argues for the limited competence of triers in assessing expert evidence: ‘[T]he non-expert tribunal of fact is epistemically competent to make some assessment of the reasoning of experts, since the way in which experts perform inferential reasoning is fundamentally the same as the approach of non-experts (…). This epistemic competence is, however, limited. The limitations are imposed for a number of reasons, but in particular because syntactical similarities between expert and nonexpert reasoning do not allow us to extend the competence to differences in the semantic content of the knowledge applied by experts and nonexperts, and because cognitive psychology shows us that we often do not, in practice, reason as rationally as we would like to think that we do’. See Dwyer (2008), p. 131.

  8. 8.

    This example shows that despite differences between civil and common law systems, the legal institution of expert witness is generally very similar. In our text, we will focus mostly on the US rulings as they are a benchmark for other judicatures with regard to the problems of expert witness opinions, adding some examples from the Polish legal system—as it is the most familiar to both authors. Nonetheless, the aim of our analysis is universal.

  9. 9.

    Broun et al. (2014), p. 35.

  10. 10.

    Broun et al. (2014), p. 36.

  11. 11.

    See Schauer (2010).

  12. 12.

    Some states are still adhering to Frye or have adopted some slightly different standards. For an overview see e.g. a report by Matthiesen et al. (2019).

  13. 13.

    Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993): ‘The specific factors explicated by the Daubert Court are (1) whether the expert's technique or theory can be or has been tested—that is, whether the expert’s theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability; (2) whether the technique or theory has been subject to peer review and publication; (3) the known or potential rate of error of the technique or theory when applied; (4) the existence and maintenance of standards and controls; and (5) whether the technique or theory has been generally accepted in the scientific community’.

  14. 14.

    Walton (1997), p. 223.

  15. 15.

    See, e.g., Zienkiewicz and Leśniak (2002). This is a problem often pointed out by practitioners in the Polish legal system, which even resulted in Polish ombudsman interventions. See Bodnar (2018) and the reports of the government and non-government organizations cited therein.

  16. 16.

    In Polish legal doctrine, there is a common saying that ‘the court is the supreme expert witness’. See, e.g., Żołna (2008), p. 47.

  17. 17.

    Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995).

  18. 18.

    Legal Information Institute (2019).

  19. 19.

    On the problems of gatekeeping in the proceedings in the US, see, e.g. Cecil (2005).

  20. 20.

    General Electric Co. v. Joiner, 522 U.S. 136 (1997). The case is included, along with Kumho Tire Co., in the so-called Daubert trilogy. See also, e.g., Grudzinskas and Appelbaum (1998).

  21. 21.

    Heller v. Shaw Industries, Inc., 167 F.3d 146, 160 (3d Cir. 1999).

  22. 22.

    Ruiz-Troche v. Pepsi Cola, 161 F.3d 77, 85 (1st Cir. 1998).

  23. 23.

    Legal Information Institute (2019).

  24. 24.

    In a commentary on Rule 702, we read: ‘The trial judge in all cases of proffered expert testimony must find that it is properly grounded, well-reasoned, and not speculative before it can be admitted. The expert’s testimony must be grounded in an accepted body of learning or experience in the expert’s field, and the expert must explain how the conclusion is so grounded’ See Legal Information Institute (2019).

  25. 25.

    Legal Information Institute (2019).

  26. 26.

    Broun et al. (2014), p. 35.

  27. 27.

    Frances (2014), p. 28.

  28. 28.

    Expert-institutions like the Polish ‘Instytut Ekspertyz Sądowych’ (‘Institute of Forensic Research’).

  29. 29.

    Dwyer discusses this problem at length. She notices that ‘the […] problem for Daubert is that it requires judges to second-judge experts on whether the methods that they are employing are properly ‘scientific’, and as such reliable. The relevant factors here are: testability; peer review or publication; the known or potential rate of error; widespread acceptance. On a practical level, this requires a degree of scientific literacy on the part of judges that it is unreasonable to expect. On a philosophical level, it is unclear that the four Daubert factors would actually be accepted by all (or sufficient) scientists as indicating reliable scientific method’ Dwyer (2008) p. 343.

  30. 30.

    Dwyer rightly notices that this poses another problem for Daubert standards: ‘that Daubert presents a mixture of epistemology and politics. By this I mean that Daubert’s criteria for establishing justified belief relate to the extent to which that belief is accepted by a community, rather than whether the belief is true’ Dwyer (2008), p. 345.

  31. 31.

    This is the problem that lies beyond the scope of this paper. For a discussion of the ‘free evaluation of evidence’ principle see e.g. Sladič and Uzelac (2016).

  32. 32.

    The criteria for defining ‘mature disputes among mutually recognized expert epistemic peers’ are provided by Earl Conee (2009), p. 314.

  33. 33.

    See Chalmers (2011).

  34. 34.

    Feldman (2007), p. 205. Note that this assumption conforms to the rationalist meta-justification of legal fact-finding in western legal systems. See Dwyer (2008), pp. 43, 45; Twining (1985), pp. 1–18.

  35. 35.

    The relevant rulings are as follows: I ACa 1140/12, V CSK 125/13, IV CSK 197/17, III CSK 109/18.

  36. 36.

    ‘Intuitively, first-order evidence E is evidence that bears directly on some target proposition or hypothesis H. Higher-order evidence is evidence about the character of E itself, or about subjects’ capacities and dispositions for responding rationally to E’. See Kelly (2016). For a detailed discussion of the concept of ‘higher-order evidence’, see also Feldman (2005); Kelly (2005); Kelly (2010); Matheson (2009); Christensen (2010).

  37. 37.

    We do not want to discuss the role of higher-order evidence here. However, the idea of higher-order evidence must be invoked in the context of evaluation of experts’ opinions.

  38. 38.

    Matheson (2009), p. 270. Adam Elga argues, however, that if supposed peers disagree on a host of related issues, they do not share enough to be genuine epistemic peers. See Elga (2007).

  39. 39.

    The peerage (peer disagreement) factors are: data, evidence, time, ability, background knowledge, circumstances of investigation, Frances (2014). Obviously expert witnesses should have access to the same data, be given the same amount of time. With respect to other factors we have to realistically suppose that they are roughly equal for all experts. The inquiry whether these are equal whenever there are many expert witnesses appointed in the process should be one of the first obligations of a ‘gatekeeper’ (a judge) and/or an appointed meta-expert.

  40. 40.

    Bergman (2009), p. 339.

  41. 41.

    Bergman (2009), p. 337.

  42. 42.

    Enoch (2010), p. 957.

  43. 43.

    Enoch (2010), p. 957.

  44. 44.

    Matheson (2009), p. 270.

  45. 45.

    van Wietmarschen (2013). According to Richard Feldman: ‘S’s belief that p at time t is [doxastically] justified (well-founded) if (i) believing p is justified for S at t; (ii) S believes p on the basis of evidence that supports p’. Thus, the doxastic justification refers to right sorts of reasons we have to believe p, Feldman (2002), p. 46. A true belief that p is supported by wrong, non-evidential reasons (e.g., psychological reasons: private inclinations, attitudes, supposed strengths of arguments, denials and suspensions of judgments) is not ‘justified’ but only ‘justifiable’.

  46. 46.

    It is not ‘evidential’ in common terms, but for conciliationists like Feldman, such an expressed doxastic attitude affecting opponents’ trustworthiness in a particular proposition would stand as evidence, since ‘evidence of evidence is evidence’.

  47. 47.

    Elga (2007), p. 490.

  48. 48.

    Enoch (2010), p. 981.

  49. 49.

    Cf. Ichikawa and Steup (2018).

  50. 50.

    This theoretical claim also finds some empirical support. As shown by studies conducted by Sophia Gatowski and her colleagues, Gatowski et al. (2001), the understanding of science and methodology behind Daubert criteria by state court judges was far from perfect.

  51. 51.

    Widła (2007).

  52. 52.

    Tomaszewski (2000), p. 31.

  53. 53.

    Wójcikiewicz (2009).

  54. 54.

    Because it may be difficult to assess whether the concerns raised against the expert are sound, we would rather favour appointing another expert. One could call that an ‘in dubio pro perito’ principle.

  55. 55.

    It is difficult to provide a full list of such instances, but we consider a case complicated when, e.g., the method that has to be used by an expert is novel, the body of evidence presented before a court seems to be self-contradictory, the defendant is facing a potentially harsh punishment (in criminal cases) or the value of the matter at issue (in civil cases) exceeds some extraordinary limit.

  56. 56.

    There are situations where disciplinary courts disagree with the claims established during the preceding criminal proceedings on the basis that the criminal court, notwithstanding the fact it relied on evidence provided by appointed expert witnesses, misunderstood the nature of such evidence. As far as judges in medical disciplinary courts, e.g., are medical professionals, they seem to be more qualified to assess the value of the expert testimonies provided by other medical professionals before the criminal court than the criminal court (made up of non-medical professionals) itself.

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  1. Jagiellonian University, Kraków, Poland

    Adam Dyrda & Maciej Próchnicki

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  1. Adam Dyrda
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Correspondence to Adam Dyrda .

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  1. University of Passau, Passau, Germany

    Verena Klappstein

  2. Legal Theory and Philosophy, Adam Mickiewicz University, Poznań, Poland

    Maciej Dybowski

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Dyrda, A., Próchnicki, M. (2021). Expert’s (Meta)Testimony: An Epistemological Perspective. In: Klappstein, V., Dybowski, M. (eds) Theory of Legal Evidence - Evidence in Legal Theory. Law and Philosophy Library, vol 138. Springer, Cham. https://doi.org/10.1007/978-3-030-83841-6_8

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