Science, Legitimacy, and “Folk Epistemology” in Medicine and Law: Parallels between Legal Reforms to the Admissibility of Expert Evidence and Evidence‐Based Medicine

Abstract

This paper explores some of the important parallels between recent reforms to legal rules for the admissibility of scientific and expert evidence, exemplified by the US Supreme Court’s decision in Daubert v Merrell Dow Pharmaceuticals, Inc. in 1993, and similar calls for reforms to medical practice, that emerged around the same time as part of the Evidence‐Based Medicine (EBM) movement. Similarities between the “movements” can be observed in that both emerged from a historical context where the quality of medicine and legal approaches to science were being subjected to growing criticism, and in the ways that proponents of both movements have used appeals to “folk epistemologies” of science to help legitimate their reform aspirations. The term folk epistemology is used to describe the weaving together of formal and informal images of scientific method with normative and pragmatic concerns such as eradicating “junk science”, and promoting medical best practice. Perhaps unsurprisingly, given the unfocused breadth of these aspirations the implications of these “reforms” for medical and legal practice have not been straightforward, although they do represent an important new set of rhetorical resources to critique and or legitimate expertise in medical and legal domains. Discussion closes, by noting the growth of calls for these movements to reciprocate in areas where law and medicine intersect, such as medical negligence litigation.

Keywords:

• Evidence‐Based Medicine
• Expert Evidence
• Daubert
• Law and Science
• Folk Epistemology

Acknowledgements

I would like to thank Jason Grossman, Jerry Ravetz, and Joan Leach for helpful comments on an earlier version of this paper which was presented to the Fourth Queensland Biohumanties Conference: Evidence‐Based Medicine at the University of Queensland, Australia, January 9, 2007. Another version of the paper was presented at the Annual 4S Conference in Montreal, Canada, 11 October 2007. Some funding for research for this paper was provided by a grant from the Australian Research Council, “Science litigation and the public accountability of vertically integrated expertise”: DP0558176. Thanks also to Elizabeth Silk for invaluable research assistance and critical comments.

Notes

[1] The IRA trials of the Birmingham Six are one of the more prominent examples of a miscarriage of justice in the UK. These involved the conviction and sentencing to life imprisonment of six men for the bombing of two pubs in Birmingham in late 1974. The convictions took place in 1975, and were upheld through several trials despite allegations against the police for forcing statements, assault against the accused and incorrect/poor scientific evidence. The sentences were finally overturned in 1991 following a third appeal (Richard McIlkenny, Patrick Hill, William Power, John Walker, Robert Gerard Hunter and Hugh Callaghan (1991) 93 Cr App R (CA) 287).

[2] The Chamberlain or “dingo baby” cases created significant controversy in Australia during the 1980s as one of the nation’s most famous miscarriages of justice. The case involved the accusation that Mrs Chamberlain had killed her young child on a camping trip, which she denied; stating that she believed a dingo (a wild Australian canine) had taken the child. The Chamberlains were convicted of murder although in the appeal Chamberlain v The Queen [No 2] (1983–1984) 153 CLR 521, several judges dissented indicating that they had doubts as to the quality of the scientific evidence. The couple were acquitted several years later following the discovery of evidence of the child’s clothing in an area frequented by the dogs.

[3] An amicus curiae (or “friend of the court”) brief is a submission made to the court by a third party who seeks to aid the court by putting forth a view as to the correct interpretation of the law or by providing background information which may be of help to the court. In practice, such submissions are often lobby groups representing the interests of those who feel their interests may be affected by the decision in the case being considered by the court. For a discussion regarding the submission of amici curiae briefs in Daubert and related cases see Edmond and Mercer (1998b).

[4] It should also be noted that interpretations of the status of fingerprint evidence have also been influenced by the efforts of fingerprint examiners to reshape their practices and knowledge to better satisfy the demands of the Daubert criteria and emergence of competing forms DNA evidence which may be better able to satisfy demands for mechanical forms of objectivity. See, for example, Lynch (2004).