Document Type

Article

Disciplines

International Law

Abstract

The use of expertise in the courtroom is not new.' The finders of fact and law in the American legal system are not superhuman, often requiring help interpreting the meaning of scientific evidence. Prima facie, this problem of generalist judge and jury being confounded by complex, scientific evidence seems simple to solve; expert explication will surely enlighten the parties. However, scholars are rightly quick to criticize such wholesale endorsements of the efficacy of expert testimony and have identified numerous reasons to be cautious of those purporting to dispense scientific "Truth."2 As we will argue, the nature of expertise is perspectival. Not only should reform of the American legal system recognize the danger of over reliance on expert testimony but it should also look "without," to the legal systems of other nations to provide alternative judicial reactions to expertise.

As long as judge and jury remain generalists, there is little chance that expert testimony will vanish from the court. Thus, judges will continue to face the task of deciding which expert testimony to admit into evidence. However, considerable debate exists as to the proper guidelines for deciding which evidence to admit. Part I of this article describes the divergent expectations of the American judiciary regarding expert witnesses and their scientific communities as evidenced by the key cases, United States v. Frye and Daubert v. Merrell Dow Pharmaceuticals, Inc.

Part II of this article discusses the ubiquitous nature of experts and asks whether experts speak with the canonical force of the deities or are more like helpful advisors who ordinarily tend to disagree. Part H also discusses the hazards associated with growing dependency on the pronouncements of experts.

Part IIl of this article surveys the content of legal literature to gauge the awareness of the legal community to the perspectival nature of expertise by placing scholars along a general ideological continuum. This section also discusses some proposed remedies posited by the legal community.

Part IV of this article assesses the use of, problems associated with, and reactions to expertise in England, Korea, and France with the expectation that our understanding of the complexity of expertise in the courts can be advanced through comparative study.

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