The Ethics of Expert Evidence

The articles selected for this volume represent the best of the research conducted at the intersection of law, professional ethics and expert evidence. The collection incorporates legal perspectives from a wide range of jurisdictions, peer-reviewed literature drawn from expert disciplines, and critical law and society scholarship. It offers a corrective to the tendency to quarantine discussions of the ethics of expert testimony by jurisdiction, legal field, or area of expertise. The authors challenge preconceived notions of ethical performance, offer ideas for improvement, document failures to learn from and successes to emulate. The introduction identifies common themes and illuminating differences within the multidisciplinary scholarship on the ethics of expert testimony. It also delineates the multidimensional conceptions of ethics that drive this scholarship. Placing these essays side by side illustrates that the essential elements of ethical performance are now well understood. As ever, lively debates persist and are reflected within the essays selected. Nonetheless, this collection demonstrates that the major question that remains is whether legal systems and expert communities - institutions that sometimes resist change - can find the will to implement what has been learned from decades of careful, multi-disciplinary research.

The Ethics of Expert Evidence Edited by Emma Cunliffe Contents Acknowledgements Introduction Part I: Conceptualizing the ethics of expert evidence 1. Joseph Sanders, Science, Law and the Expert Witness, Law & Contemporary Problems 72, 2009, 63 – 90. 2. Philip J. Candilis, The Revolution in Forensic Ethics: Narrative, Compassion and a Robust Professionalism, Psychiatric Clinics of North America 32, 2009, 423 – 435. 3. Ezra E. H. Griffith, Personal Narrative and an African-American Perspective on Medical Ethics, Journal of the American Academy of Psychiatry and Law 33, 2005, 371 – 381 4. Robert F. Taylor, A Comparative Study of Expert Testimony in France and the United States: Philosophical Underpinnings, History, Practice, and Procedure, Texas International Law Journal 31, 3, 1996, 181–213 Part II: Intellectual basis and role comprehension 5. Gary Edmond & Mehera San Roque, The Cool Crucible: Forensic Science and the Frailty of the Criminal Trial, Current Issues in Criminal Justice 24, 1, 2012, 51 – 68. 6. Simon A. Cole, Where the Rubber meets the Road: Thinking about Expert Evidence as Expert Testimony, Villanova Law Review 52, 2007, 803 – 842. 7. Emma Cunliffe, Independence, Reliability & Expert Testimony in Criminal Trials, Australian Journal of Forensic Sciences 45, 2013, 284 – 295. 8. Sheila Jasanoff, Research Subpoenas and the Sociology of Knowledge, Law & Contemporary Problems 59, 1996, 95 – 118. 9. Deirdre Dwyer, (Why) Are Civil and Criminal Expert Evidence Different?, Tulsa Law Review 43, 2007, 381 – 396. 10. Gary Edmond, Judging the Scientific and Medical Literature: Some Legal Implications of Changes to Biomedical Research and Publication, Oxford Journal of Legal Studies 28, 2008, 523 – 61. 11. William C. Thompson, Beyond Bad Apples: Analyzing the Role of Forensic Science in Wrongful Convictions, Southwestern Law Review 37, 2008, 1027 – 1050. 12. Itiel E. Dror, Practical Solutions to Cognitive and Human Factor Challenges in Forensic Science, Forensic Science Policy & Management: An International Journal 4, 2013, 105 – 113. 13. Mariana Valverde, Social Facticity and the Law: A Social Expert’s Eyewitness Account of Law, Social & Legal Studies 5, 1996, 201 – 217. Part III: Case studies and debates A: Humanities and social sciences 14. Richard J. Evans, History, Memory and the Law: The Historian as Expert Witness, History & Theory 41, 2002, 326 – 345. 15. Arthur J. Ray, Native History on Trial: Confessions of an Expert Witness, Canadian Historical Review 84, 2003, 255 – 73. 16. Gregory Mitchell, John Monahan & Laurens Walker, The ASA’s Missed Opportunity to Promote Sound Science in Court, Sociological Methods & Research 40, 2011, 605 – 620. 17. Laura Beth Nielson, Amy Myrick & Jill Weinberg, Siding with Science: In Defense of ASA’s Dukes v Walmart Amicus Brief, Sociological Methods & Research 40, 2011, 646 – 667. B: Medicine 18. Stephen T. Goudge, ‘Effective Communication with the Criminal Justice System, Final Report of the Inquiry into Pediatric Forensic Pathology (Toronto: Queen’s Printer, 2008), pp. 406 – 436. 19. C. C. Meltzer et al, Guidelines for the Ethical Use of Neuroimages in Medical Testimony: Report of a Multidisciplinary Consensus Conference, American Journal of Neuroradiology 35, 2014, 632 – 637. 20. Robert K. Jackler & Hussein A. Samji, The Price Paid: Manipulation of Otolaryngologists by the Tobacco Industry to Obfuscate the Emerging Truth that Smoking Causes Cancer, Laryngoscope 122, 2012, 75 – 87. 21. Amar Jesani, Supreme Court Judgment on Medical Interrogation: On the Just Use of Science and the Ethics of Doctor Participation in Criminal Investigation, Indian Journal of Medical Ethics 7, 3, 2010, 139 – 142. C: Psychology 22. Timothy M. Tippins & Jeffrey P. Wittmann, Empirical and Ethical Problems with Custody Recommendations: A Call for Clinical Humility and Judicial Vigilance Family Court Review 43, 2005, 193 – 222. 23. Isabel Grant, The "Syndromization" of Women’s Experience, University of British Columbia Law Review 25, 1991, 51 – 59. 24. Michael L. Perlin, Astrid Birgden & Kris Gledhill, The Witness Who Saw/ He Left No Doubt: A Comparative Consideration of Expert Testimony in Mental Disability Law Cases in Common and Civil Law Systems, Journal of Investigative Psychology & Offender Profiling 6, 2009, 59 – 88. Index

Emma Cunliffe is an Associate Professor in the Allard School of Law, University of British Columbia, Canada and a Senior Visiting Fellow at the School of Law, University of New South Wales.