Expert testimony

‘Judging’ Economists: Economic Expertise in Competition Law Litigation - A European View (September 4, 2009). University College of London Centre for Law and Economics Working Paper No. 01-09. Also published at The Reform of EC Competition Law: New Challenges, , Ioannis Lianos & Ioannis Kokkoris, eds.,Kluwer, 2009, pp. 185-320

by Ioannis Lianos

The study focuses on the admissibility and assessment of economic expertise in EC competition law litigation. I start... more The study focuses on the admissibility and assessment of economic expertise in EC competition law litigation. I start by exploring the broader issues raised by the integration of economic expertise in litigation: in particular the risk of moral hazard and adverse selection because of the epistemic asymmetry between judges and experts and the risk of expert bias. The analysis of these problems will bring me to the question of the conception of science and of the relations between science and law that underpins the concept of scientific expertise and, more specifically, economic expertise. I will then identify the extent of the problem of epistemic asymmetry and expert bias by looking to the degree and the locus of the intrusion of economic analysis in competition cases. I will examine the instruments, procedural and substantive, employed by the legal system, in order to mitigate the risks flowing from the epistemic asymmetry and the expert bias claims. First, I will highlight the different institutional and procedural frameworks that were adopted at the European Union level and in some selected member states in order to integrate economic expertise in litigation. My objective will be to understand how these institutional solutions may address each of the identified problems. Second, I will look to 'substantive' law approaches in the adjudication of expertise, such as the development of specific standards for the admissibility and the sufficiency of economic expertise in courts, as an alternative or as an additional option to deal with the challenges raised by economic expertise. The paper will conclude that the possible adverse effects of the epistemic asymmetry and expert bias between judges and experts raise important concerns that the legal systems should tackle. The current procedural/institutional and substantive legal framework governing economic expertise does not however take sufficiently into account important concerns that are specific to economics and other social sciences, such as the preservation of the scientific 'competition' in the supply of economic theory and consequently methodological or assumptions-related pluralism in economic thought. In particular, I will argue against adopting specific standards of admissibility of economic expertise in Europe. This is a US context-specific solution which does not necessarily fit with the specific characteristics of the European legal system. It is also an approach that represents an outdated and partial view of the scientific as well as of the judicial adjudication process.

The Law on Sleepwalking for Expert Witnesses

by Doc Insanity

A short guide to the law for expert witnesses on sleep disorders, submitted in a modified form for the BSS Newsletter.

This is a brief explanation of the law on sleepwalking for physicians who appear as expert witnesses in the criminal... more This is a brief explanation of the law on sleepwalking for physicians who appear as expert witnesses in the criminal courts. Many experienced expert witnesses will be familiar with this, and indeed familiarity with the law is not essential for being an expert witness. I will not be going into the rules on expert evidence, nor is this intended to be a comprehensive review of the relevant law, merely a summary for the non-lawyer.

Evaluating the best interests of the child: A model of multidisciplinary teamwork.

by Eleanor Pardess

'Are You Thick?': A Case Study of Confrontational Aspects of a Police Interview With a Suspect

by Stella Bain

Co-authored with James S. Baxter & Jennifer H. McAusland

Published in The Police Journal, Volume 80 (2007)

A growing body of research has illustrated that use of an
accusatorial, confrontational style by police officers... more A growing body of research has illustrated that use of an
accusatorial, confrontational style by police officers in their
interviews with suspects may not be more effective than a
neutral, investigation-centred style, and may in some cases be
counter-productive. Excerpts from one case in which such a
style was adopted are presented, with accompanying excerpts
from a report on the interview by an expert witness for the
defence. It is argued that whether or not such interviews result
in confessions by suspects, confrontational interviewing of
suspects is likely to bring additional, unnecessary, and avoidable
challenges to a prosecution case. It is also noted that the
expert evidence on interviewing may on occasion be insufficiently
informed or biased, contrary to what should be the
professional attitude of the expert involved.

Ethical Dilemmas of Technical Forensic Practice

by Joshua B. Kardon

Limitations of expert psychology testimony on eyewitness identification

by Heather Flowe

Reference:
Flowe, H., Finklea, K., & Ebbesen, E. (2009). Limitations of expert psychology testimony on eyewitness identification. Expert testimony on the psychology of eyewitness identification (pp. 201-221). New York, NY US: Oxford University Press. doi:10.1093/acprof:oso/9780195331974.003.009.

Evaluación psicológica de delincuentes y testimonio ante la corte.

by German Gutierrez

McFarley, K., Carrillo, S. & Gutiérrez, G. (2004). Avances en Medición, 2, 21-35.

Inside, Outside, Upside Down: Anthropology and Legal Evidence

by Ceilidh Lerwick

Testimony and Kant's Idea of Public Reason

by Kjartan Koch Mikalsen

Res Publica (2010)

It is common to interpret Kant’s idea of public reason and the Enlightenment motto to ‘think for oneself’ as... more It is common to interpret Kant’s idea of public reason and the Enlightenment motto to ‘think for oneself’ as incompatible with the view that testimony and judgement of credibility is essential to rational public deliberation. Such interpretations have led to criticism of contemporary Kantian approaches to deliberative democracy for being intellectualistic, and for not considering our epistemic dependence on other people adequately. In this article, I argue that such criticism is insufficiently substantiated, and that Kant’s idea of public reason is neither at odds with deference to a certain kind of authority, nor with making judgements of character in rational deliberation. This view is corroborated by recent work on Kant’s epistemology of testimony.

Usurping the Role of the Jury? Expert Evidence and Witness Credibility in English Criminal Trials

by Tony Ward

(2009) 13 Int'l J. Evidence & Proof 83

The reluctance of English and other common-law criminal courts to admit expert evidence of witness credibility is... more The reluctance of English and other common-law criminal courts to admit expert evidence of witness credibility is rooted in two main objections: that such evidence needlessly complicates the jury's task and that it threatens to ‘ usurp’  the jury's role. The ‘ usurpation’  objection can be understood as referring to a risk that the expert will be accorded unwarranted epistemic authority on matters which it is important for the jury to decide for itself. These objections have substance, and although they apply to expert evidence in general they have particular force when applied to evidence of credibility. But the jury, as a responsible fact-finder, also has a duty to attend to expert evidence that will help it avoid ‘ epistemic injustice’ . Particularly in rape and sexual abuse cases, there are good reasons for admitting some forms of expert evidence of credibility, and concerns about ‘ usurpation’  do not justify the British government's apparent abandonment of proposals to make such evidence more widely admissible in rape trials.

English Law's Epistemology of Expert Testimony

by Tony Ward

Journal of Law and Society 33(4): 572-95 (2006)

The decision whether to believe an expert witness raises difficult epistemological and ethical questions for a lay... more The decision whether to believe an expert witness raises difficult epistemological and ethical questions for a lay juror or judge. This article examines the English courts' approach to these questions in the light of a series of cases which endorse the test of admissibility formulated in the Australian case of R v. Bonython. It examines the case law in the context of the epistemology of testimony and argues that, if interpreted more rigorously than it generally has been to date, Bonython could provide the framework for an approach which avoids the pitfalls of either a 'scientistic' or a 'constructivist' epistemology of expert testimony. Such an approach needs to distinguish between different types of expertise and the differing degrees of deference that they call for on the part of a lay fact-finder.

Kant and the Enlightenment's Contribution to Social Epistemology

by Axel Gelfert

penultimate (preprint) version of a paper forthcoming in Episteme, Vol. 7 No. 1, 2010

The present paper argues for the relevance of Immanuel Kant and the German Enlightenment to contemporary social... more The present paper argues for the relevance of Immanuel Kant and the German Enlightenment to contemporary social epistemology. Rather than distancing themselves from the alleged ‘individualism’ of Enlightenment philosophers, social epistemologists would be well-advised to look at the substantive discussion of social-epistemological questions in the works of Kant and other Enlightenment figures. After a brief rebuttal of the received view of the Enlightenment as an intrinsically individualist enterprise, this paper charts the historical trajectory of philosophical discussions of testimony as a source of knowledge, via such philosophers as C. Thomasius, C.A. Crusius, J.M. Chladenius, G.F. Meier, and finally Kant. Building on recent work on Kant’s epistemology of testimony, the paper considers Kant’s broader contributions to social epistemology. This includes an analysis of Kant’s comments on the social basis of contingent epistemic standards, e.g. in the sciences, as well as on problems arising from the management of what Kant calls the growing ‘volume of knowledge’. Special attention is paid to the relation between Kant’s views and contemporary problems arising both in the context of education and from our increased reliance on scientific experts.