Gary Edmond

The Law-Set: The Legal-Scientific Production of Medical Propriety

This article examines some of the interactions between law, science, and society taking place during a trial (in Victorian England). By focusing on a restricted set of scientific and nonscientific actors (the law-set, a derivation of the core-set) engaged in negotiating the meaning, relevance, and reliability of scientific (here medical) evidence, the article illustrates how the categories—law, science, and society—are inextricably interrelated in the legal negotiations and outcome. The introduction of scientific evidence into adversarial legal settings produces strategies, opinions, and claims that are not shaped solely by scientists, lawyers, or legal processes. The situated law-science negotiations provide a site where social order and scientific knowledges are mutually constituted. The outcome of specific law-science interactions will be open to a range of readings and constraints that are not reducible to some putatively correct scientific understanding nor adequately described as the distortion of scientific evidence by the legal system.

Judicial Representations of Scientific Evidence

A critical examination of the way that courts handle scientific expert evidence reveals inconsistency in strategies for validating and legitimating the weight attached to it. This inconsistency is rooted in perceptions of the nature of scientific knowledge. The essay considers the implications of this analysis for the Woolf reforms of civil procedure with respect to expert evidence.

Actual innocents? Legal limitations and their implications for forensic science and medicine

Drawing on legal principle, this essay considers how adversarial criminal justice systems have responded to forensic science evidence. Through reference to recent developments in Australia and foreign jurisdictions (e.g. the US and UK), empirical studies of forensic sciences and trial practice, and reviews by peak scientific and legal institutions (e.g. the National Academy of Sciences), it illustrates how lawyers and judges have fallen consistently short of their own espoused values and aspirations. The essay then turns to consider some of the implications of this legal ‘failure’ for forensic scientists, their managers and leaders. Legal limitations, in conjunction with serious and endemic problems with many forensic sciences, mean that forensic scientists and their institutions must develop socio-epistemic legitimacy through greater autonomy from investigators and the courts and a substantial research-orientation.

Atkins v The Emperor : the ‘cautious’ use of unreliable ‘expert’ opinion

What happens to a country under constant surveillance? The recent decision in Atkins v The Queen provides a partial answer.¹ The sheer availability of images seems to be driving decisions about their admissibility and use as identification evidence. Confronted with CCTV recordings associated with criminal activities English courts have been reluctant to restrict their admission or impose limitations on the scope or form of incriminating opinion derived from them. Although the Court of Appeal decision in Atkins v The Queen is concerned primarily with the way in which an opinion derived from CCTV images was expressed, the decision exposes jurisprudential weakness and continuing problems with photo comparison and facial-mapping evidence.

Model forensic science

This article provides an explanation of the duties and responsibilities owed by forensic practitioners (and other expert witnesses) when preparing for and presenting evidence in criminal proceedings. It is written in the shadow of reports by the National Academy of Sciences (US), the National Institute of Standards and Technology (US), the Scottish Fingerprint Inquiry and a recent publication entitled ‘How to cross-examine forensic scientists: A guide for Lawyers’. The article examines potential responses to questions focused on the need for scientific research, validation, uncertainties, limitations and error, contextual bias and the way expert opinions are expressed in reports and oral testimony. Responses and the discussion is developed around thematics such as disclosure, transparency, epistemic modesty and impartiality derived from modern admissibility and procedure rules, codes of conduct, ethical and professional responsibilities and employment contracts. The article explains why forensic practitioners must respond to the rules and expectations of adversarial legal institutions. Simultaneously, in line with accusatorial principles, it suggests that forensic practitioners employed by the state ought to conduct themselves as model forensic scientists.

Reporting on the comparison and interpretation of pattern evidence: recommendations for forensic specialists

The structure of expert forensic reports varies widely in the pattern evidence sciences. Since many of the forensic disciplines dealing with pattern evidence have historically evolved outside of the mainstream academic sciences, report writing styles can bear little similarity to traditional scientific report writing norms. This paper outlines a proposal from representatives of both the academic sciences and the academic legal community and aims for a transparent approach to report writing in the pattern evidence disciplines. The adoption of this framework should encourage a reporting environment and form of report that would better allow a pattern evidence specialists opinion to be assessed when being reviewed by practitioners and others within the wider socio-legal community.

Impartiality, efficiency or reliability? A critical response to expert evidence law and procedure in Australia

This presentation might be considered a little provocative, but after reading a copy of Strengthening the Forensic Sciences in the US from the National Academy of Sciences – released this past week – much of what I have to say cannot be considered particularly controversial. I’ll say more about this important Report toward the end of this plenary lecture. Tonight, I want to discuss our standards for admitting incriminating expert opinion evidence, along with some of the discretions and protections afforded to defendants in the context of the criminal trial. In the process, I’ll refer to recent reforms such as codes of conduct and concurrent evidence. In summary, my two main points are: that forensic scientists should endeavour to validate their techniques; and that courts should impose a reliability threshold on the admission of incriminating expert opinion evidence. I’ll begin with a brief discussion of our admissibility standards and a few examples of recent decisions from the NSW Court of Criminal Appeal.

Anti-social Epistemologies

The recent First Amendment litigation in Kitzmiller v. Dover Area School District (2005) raises many issues of interest to social science and humanities scholars. This paper will focus on just two: the scope afforded to Steve Fuller to present his STS perspectives; and the way the Court appears to have put this expertise to work. The Court’s formal receptiveness to Fuller’s testimony reflects the symbolic significance of science–religion encounters and is inextricably linked to ongoing skirmishes at the margins of public science (Turner, 1980). The appropriation of Fuller’s evidence, in ways that appear contrary to his expressed intentions, is consistent with the peculiar reception of other STS scholarship in legal settings in recent years. Fuller’s intervention and the treatment of his evidence reinforce the need for more sophisticated approaches to courts, jurisprudential traditions, and legal rules and processes.

Creating (public) science in the Noah's Ark case

This paper explores how a recent “Creation Science” case from the Australian Federal Courts was used by an informal alliance of science popularizers (science litigant Ian Plimer, science journalists, and the Australian Skeptics) as a vehicle for the celebratory “boundary working” of “public science,” despite the cases contingent and messy processes and unfavourable legal outcome. This “boundary working” was pursued mainly through the mass media, in which a narrow range of narrative strategies involving well-worn metaphors and clichés conforming to the ideology of science dominated the cases coverage. The dominance of these narratives resulted in a marginalized coverage of the legal/policy ramifications of the case, particularly the role of the courts in preserving/limiting freedom of speech. We will conclude our analysis by identifying some similarities between the Ark case and the Science Wars, nothing that both instances show how the “boundary working” of “public science” can be pursued in a cultural space located at a significant distance from contexts where more tangible science policies are being negotiated.

Representing the Sociology of Scientific Knowledge and Law

The sociology of scientific knowledge (SSK) has become widely cited in policy contexts including discussion of law, science, and society. The following article provides a textual examination of how some of the work of eminent SSK and law scholar Sheila Jasanoff has been received in U.S. legal scholarship. Focusing on debate sparked by the 1993 Supreme Court case of Daubert v. Merrell Dow Pharmaceuticals, Inc., the authors argue that textual evidence suggests a resistance within U.S. legal scholarship to the incorporation of the more radical implications of SSK perspectives.