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ABSTRACT
This work examines the clashes, conflicts, and contentions that exist between science and the law. The traditional and contemporary way through which to finesse any one particular expression of these plural inconsistencies between these respective realms of human endeavour, is to suggest that science and the law occupy radically different ‘magesteria’ of thought. That is, they prove necessarily incommensurate, one with the other, since they are framed by, react to, and serve fundamentally different human constituencies. I formally reject both the theoretical and pragmatic expressions of this division here by juxtaposing their evident, mutual consideration of a common reality. I explicate the origin of this schism between science and law but point out that not all cultures have rended apart these two facets of humanity. I illustrate my general arguments with brief reference to specific Human Factors/Ergonomic (HF/E) forensic cases and look to elucidate to what degree these examples are typical or exceptional. I also examine various traps and seductions that beset the scientific expert involved in the legal realm. Most examples are drawn from civil litigation and relatively few specific observations are made here concerning criminal proceedings. Also, international forms of judicial administration are not explicitly considered, except where applicable to illustrative circumstances in the western world. Polemic assertions are provided to stimulate future discussion amongst HF/E forensics professionals, as well as those involved with the wider processes of science in court.
Acknowledgements
I would like to thank Richard Hornick, Neal Blaher, Christopher Mayhorn and Michael Wogalter for their most valuable comments and suggestions concerning an earlier version of the present work. The author would especially like to thank the anonymous reviewers of this work for their insightful and polemic comments. Their observations sparked further discourse on these contentious matters and helped improve the final version of the paper, for which I am most grateful.
Notes
1. Of course, we see in the present oscillation of the pendulum of power that this balance of control varies regularly across time with the power of the few now seemingly ascendant.
2. There is a wonderful exception to this enlightenment basis of law in action and it derives from a myth of Godly interference in the fate of man. This statute holds that it is illegal to attempt to put an individual to death more than three times. I have only heard of this being invoked in the case of hanging. I am also only aware of two occasions in which the Lord has ‘ostensibly’ interfered with the course of execution, one time in England and one time in Australia. The English case is a well-known one of John ‘Babbacombe’ Lee, who was convicted, most probably mistakenly, of the murder of his employer, one Ms. Emma Keys. After having been convicted and sentenced he was taken to Exeter Gaol. Three times he was placed on the scaffold but three times the trap-door failed to open. Eventually the medical attendant refused to continue and subsequently Lee’s sentence was commuted to life in prison. A similar sequence happened to Joseph Samuel in Parramatta, Australia but in his case three separate ropes broke and he was spared by acclaim of the attending crowd. His sentence was also commuted to life in prison. God moving in mysterious ways, his wonders to perform. Whether Samuel was similarly ‘innocent’ I have been unable to establish.
3. There are, of course, some proceedings in the law that are held in camera. It is an aspiration that science is always open to public and peer inspection. However, with the rise in private funding that degree of openness in science is itself now changing.
4. This very circumstances being the topic of the film: ‘Wag the Dog’.
5. One of the prototypical examples is the, most probably, fictional story of King Canute and his effort to hold back the tide by royal edict. Like many such stories in history, this one is probably fictional, although its impact as a story represents Canute’s legacy to us today.
6. The oft used, and what is now almost considered a synonym, of ‘climate change,’ is a much less stark and threatening term. By design, the term ‘climate change’ induces a mind-set that the temperature might go up, and might go down. It takes the ‘sting’ out of the term, global warming. These changes in phraseology are critical in the legal world where the persuasion of others and the court of public opinion is close to all. However, the physical processes and data are agnostic with respect to human wishes and affects. It is actions here which influence circumstances, one cannot ‘argue’ a planet out of warming up. Often this is ignored when the reports of science enter the ‘terrace’ of politics.
7. The quote which follows provides yet another similar observation. ‘In Britain, we have an adversarial system of justice (two opposing sides each asserting its version of events to be correct) which we’ve proudly exported around the world. The only way it works is if defense advocates put their all into representing their clients and able prosecution advocates put their all into presenting the evidence. Otherwise, why have a jury trial? Let a judge consider the evidence and pronounce judgment as they do in France. Defending was our job. In order to do it, to defend somebody, you have to accept their side of the story. You accept it emotionally and intellectually. It’s a mental and ethical trick. You stand in their shoes and believe. No matter how repugnant they might be. There’s something else. Something no one mentions but is essential if the adversarial system is to work. You want to get defendants off because winning feels good – in fact, winning feels great. At the end of the trial you want to look the prosecutor in the eye and say, you thought you had a stone banker of a case, did you, pal? Well, I shoved it up your … You want to leave the courtroom, calmly go to the lavatory and dance madly around in victory’.(McBride, Citation2011, p. 6). Such concerns apply to both the criminal and civil segments of the law.
8. Of course, this is not totally true in practice as skilled experts can get their points across in many ways. However, the general principle holds.
9. Sargant quoted a previous JUSTICE chairman who described the legal process as ‘gladiatorial combat in which, subject to some rules of fair play, counsel on both try to outwit or outflank each other by such verbal skills or stratagems as are available to them – the prize being the mind of the jury’. ‘In such a combat it is only too easy for the truth to be the main casualty.’ Sargant reflected. (Robins, Citation2014, p. 144).
10. There has been one occasion upon which this frustration has impelled me into print. In that article (Hancock, Citation2004), I sought to follow and establish the putative ‘scientific’ basis for an opposing expert’s statement. I was able to trace the origins of their assertion through a number of professional magazine articles and citations and then on to traffic safety videos. However, the trial petered out when I was unable to find a German video that appeared to be the original source. This shows how critical it is to understand the sources and value of citations that are made in support of any particular claim. However, the overall legal process does not seem to have an explicit feed-back loop in order to support such an evaluative process.
11. In respect of this issue, I have observed that one should: ‘Make an example of your ex-sample’. Or, more discursively, the scientist should report carefully and in detail upon any data which have been either excised from a data set, or treated in any manner that is not consistent with that main body of data.
12. The epithet I have coined here is to: ‘Make an example of your ex-sample’. Or, more colloquially, explain why any collected data have been dropped from subsequent analyses.
13. There are, of course, other relationships that can exclude information to both court and science. These include privileges between attorney and client but also between therapist and patient, as well as selected others such as accountant-client (in Florida at least). Not all information is, or perhaps should be, inspectable by any agency however motivated the latter might be.
14. A growing problem is pre-review rejection. That is, one’s submission is surveyed by the editor (an/or associates) and rejected as ‘not-relevant’ to the journal. This screening might be seen as pragmatically useful by the journal (e.g., increased rejection rate), and those submitting psychological papers to chemistry journals might anticipate such rejection. However, rejecting submissions based upon a priori bias against relevant but unpopular areas can be dangerous for science in general. It leads to journal proliferation independent of the false journal issue. This differentiation and isolation of research areas can become very problematic.
15. Although here there is an inevitable tendency for me as a scientist to set the law in counterpoint to science, I have to be very explicit that law, as a method of resolution, is far superior to previous methods of resolution such as collective armed conflict, trial by combat etc. It has to be noted that armed conflict still persists in many locations and, despite entities such as international courts, force of arms still often represents the determinative influence.
16. Of course, differences in process occur when the trier is a judge versus a jury.
17. Indeed, it is often the case that such emotive conflicts will be used as a strategic tactic in order to advance the position of one ‘side’ over the putative ‘opposition.’ Frequently, it is difficult not to rise to this form of provocation. The expert is advised to avoid any such temptation to do so, to the degree that such avoidance is feasible.
18. On a personal note here, the prospective HF/E forensic professional should realize going in that lawyers are most often exceptionally able and intelligent people. I have been able to teach complex courses in HF/E to such collectives in very short periods of time because of their evident interest and acumen. Statements like: ‘I’m just an old country boy’, from such individuals should be taken with considerable caution.. Lawyers are among the most gifted intellectuals that our society possesses.
19. Or as one president succinctly stated; ‘You’re either with us or against us’. I pick up on this bifurcated view on the world of things at the end of this paper.
20. Of course, one antithesis to the traditional jury approach is to create a cadre of special ‘scientists’ to deliberate upon these inherently complex issues. One can conduct an applicable ‘gedanken’ (thought) experiment and consider whether one might want to live in such a world, or indeed be such a scientist?
21. These restrictions are why some elements of human experience are not easily addressed by the processes of science which have to adhere to the criteria noted. Obviously, unalloyed ‘replication’ is not open for things like historical events; neither are personal, individualized conscious experiences which often can have only one arbiter, viz. the person who experienced them.
22. Stare decisis et non quietam movere: which means to stand upon things already decided. In essence, this represents the respect for precedent. In this way, the law is, to a degree, cumulative in nature and new rulings then pertain to circumstances in which precedent does not adequately address the issue, or where new developments (such as innovative technologies, (e.g., DNA testing, AI, etc.) are not yet a part of the present pantheon of understanding. In this way established knowledge is augmented when new developments are recognized. The reverence for legal precedence is, of course, close to the antithesis of scientific tenets such as ‘Nullius in Verbum’ the motto of the British Royal Society, one of the first ever formal scientific societies; as noted above. The Latin phrase here means essentially: ‘Take no one’s word for it’ which elevates the priority of empirical demonstration over authoritative assertion.
23. It is important here to note that Pauling himself won two Nobel Prizes, one for Chemistry and one for Peace.
24. The same criterion does not necessarily relate to civil law where ‘a preponderance of the evidence’ is often applied. The latter often concerns property or resource, while criminal proceedings put at jeopardy liberty and even life.
25. There is, of course, the Scottish verdict that has a third option, ‘not proven.’ The latter must be scant comfort to the actually innocent.