Judging Post-Controversy Expertise: Judicial Discretion and Scientific Marginalisation in the Courtroom

ABSTRACT

The sexual assault trial of R v Hartman included evidence from a sleep expert who found himself increasingly marginalised within the scientific community. Marginalisation takes place following a scientific controversy, when those considered to be on the losing side find it increasingly difficult to be heard by the community, and in particular, their ideas are removed from core texts in the field. Given a marginalised expert's ambiguous status, and a scientific knowledge deficit on the part of legal actors, on what grounds does a judge base their decision around the evidential value of their testimony? An analysis of the judge's decision in the trial indicates that she evaluated the expert's evidence by employing a version of a socio-technical review that included expectations of scientific rigour based on mechanical objectivity and procedural correctness. Drawing upon these processes and expectations of sound science, the judge had little difficulty evaluating the expert's evidence and finding it unsafe. In particular, she drew attention to the expert's mobilisation of a conspiratorial discursive style, a product of his marginalisation. This supports certain STS claims that legal actors already have tools for evaluating appropriate expertise, and these continue to be the cornerstone of judicial decision-making around expert testimony, even in highly ambiguous situations like post-controversy science.

KEYWORDS:

• Expert evidence
• judges
• marginalisation
• post-Controversy science
• sleep medicine
• alcohol-induced sleepwalking

Acknowledgments

The authors wish to thank Prof Levidow, Prof Birch and the two anonymous reviewers, as well as Prof Barbara Prainsack and Dr Erik Borve Rasmussen, for reading earlier drafts and providing insightful and supportive comments. As always, any errors, omissions or inaccuracies are solely our own.

Disclosure Statement

No potential conflict of interest were reported by the author.

Notes

1 This is most predominant in adversarial jurisdictions where the defence and prosecution introduce competing experts, although increasingly experts are being asked to produce joint expert statements for the court rather than appearing for a particular side in the trial, more akin to inquisitorial trials (Ebrahim and Fenwick, 2007). However, as Bal (2005) and Taipale (2019b) have identified, even in inquisitorial jurisdictions, competing experts are often employed.

2 It is not always the case that intoxication cannot be used as a legal defence; see for instance Simester (2009). Additionally, the Ontario Court of Appeal have recently reiterated that voluntary intoxication to the point of automatism can constitute a defence (DiManno, 2020).

3 While the updates to the ICSD-V and the DSM-3 constitute an enactment of closure of the alcohol-induced sleepwalking defence controversy, this does not necessarily mean that the debate will not open up again. Consistent with the claims of Finitism (Barnes et al., 1996; Bloor, 1991; Rees, 2011), new cases, findings or interpretations can always problematise a consensus, and so all claims are open-ended and revisable. At the time of writing, a new article in the Journal of Forensic Sciences takes to task the authors of the manuals for flawed statistical analysis (Munro, 2020). It is presently too early to know what impact Munro's intervention will have on the sleepwalking defence and legal expertise, but the case we have used in our analysis occurred shortly after the publication of the manuals, and as we go on to show, they indicated, at least as far as the court was concerned, the state of the art of medical knowledge.

4 All citations refer to Judge Moore's decision (Moore, 2018) and so we identify each quotation by the paragraph number from which it was taken.

Additional information

Notes on contributors

Gethin Rees

Gethin Rees is a Senior Lecturer in Sociology at Newcastle University. He is interested in the intersection of healthcare and criminal justice, whether embodied in healthcare professionals working in criminal justice contexts (e.g. police stations and prisons) or in scientific and/or medical experts presenting evidence in criminal trials.

Deborah White

Deborah White is a Professor in the Department of Sociology at Trent University in Ontario, Canada. Her research focuses on the institutional responses to sexual violence, particularly medico-legal interventions and the role and nature of forensic evidence and experts in criminal justice systems. As a feminist scholar of Science and Technology Studies, she also conducts critical research on technologies of rape and sexual assault, specifically anti-rape technologies.