Tal Golan, Laws of Men and Laws of Nature: The History of Scientific Expert Testimony in England and America (Cambridge, Mass.: Harvard University Press, 2004), 325pp. incl. notes and index, ISBN 0-674-01286-0, GBP 32.95.
Scientists on Trial
Since religion lost its hold on the West, science and law have become our primary authorities. Science tells us how things will behave, law tells us how people ought to behave; the one seems to be a matter of observation and analysis, the other, ultimately, a matter of choice and decision. Science is international, law parochial. Scientists use instruments, calculations, experiments, figures, formulae. Lawyers use words.
Of course, scientific observation has long been a good reason for enacting laws: if experiment demonstrates that, say, untreated milk may harbour mycobacterium tuberculosis, then it makes sense to aim at safeguards by a statutory scheme which authorises courts and other officials, after investigation, due process and so on, to punish producers who do not pasteurise. But apart from its use by legislators, scientific knowledge also has a role to play in the process of adjudication. Unfortunately, what this frequently comes down to is a battle of expert witnesses in the arena of a courtroom, a fate which all too often leaves the scientists despairing of law, and the lawyers of science.
Tal Golan, a Professor of the History of Science, explores the relations between the two communities as revealed in a dozen or so major lawsuits and their aftermaths in England and the USA in the last two centuries. The book is a lucid, witty, and far from superficial study of this rather neglected topic, drawing on not only the obvious materials of law reports and scientific journals in several languages, but also a much wider variety of revealing sources in manuscript and print, ranging from the Norfolk Records Office to the Rocky Mountain Daily News.
His story starts in the late eighteenth century with the protracted litigation waged by the Harbour Commissioners of Wells-Next-the-Sea against ‘Farmer’ Coke, first Earl of Leicester and others, who had reclaimed the neighbouring salt marshes by building embankments which, it was said, caused the precious harbour to silt up. The landowners engaged as expert witnesses none other than Robert Mylne FRS, surveyor of both St Paul’s and the New River, and then – securing his services just ahead of the opposition – John Smeaton FRS, the renowned civil engineer and designer of the third Eddystone Lighthouse. In the workaday world of jury trials at Norwich Assizes, the problem was that the reports of these great men could be characterised as theory, not observation, general and not specific, the work of ‘natural philosophers’, not of experienced local harbour-masters. Was their evidence even admissible – could they swear an oath to the validity of the laws of motion of tides and silt? Not until a second appeal was it held that they could testify: ‘in matters of science no other witnesses can be called’, said Lord Mansfield, rather blurring the distinction between independent experts appointed by the court (which he himself had long used in maritime and patent litigation) and the partisan witnesses called by both adversaries. His decision thus opened the lawcourts and subjected the juries to the incessantly conflicting views of those whom Golan calls ‘proto-scientists who functioned like skilled professionals but cogitated like natural philosophers’ (p. 44).
Later chapters recount the decay from optimism to disenchantment as the industrial revolution brings a flood of lawsuits involving science and technology. Major litigation on fire insurance claims, industrial pollution, and the paraffin patents introduces a parade of leading scientists (including the great Michael Faraday) who zealously contradicted each other in the witness box and fell easy victim to the facile sarcasm of hard-bitten trial judges. Within the scientific community these strident forensic contests raised serious questions as to the impact of the traffic in testimony on the detached objectivity required of the true scientist.
This last issue was embittered by a typically English distinction, that between gentlemen and the rest. On the one side were the scholars of independent means, true natural philosophers, whose researches were inspired by nothing other than a love of knowledge; on the other, the professionals who earned their living from science and technology. Nature’s founder, Sir Norman Lockyer, spoke for the élite, condemning in its pages the ‘alien spirit repugnant to students of pure science in this country’ whose followers, deserting the fair fields of pure knowledge, thought only of ‘self and pelf’ and stooped so low as to become ‘persona grata to limited companies’. For the professionals, the Journal of Gas Lighting, Water Supply, & Sanitary Improvement mocked the transactions of the learned societies as being full of ‘scrappy papers and memoirs upon infinitesimal points of detail’ and maintained that only in the courtroom could one find ‘progress in science so clearly epitomised’.
The class issue did not trouble the American community, but they encountered other, indigenous, problems. Having more or less inherited the English system of law and procedure, the US goes so far as to insist in the Federal Constitution that in all criminal prosecutions and in all civil common-law actions where more than twenty dollars is at stake ‘the right of trial by jury shall be preserved’ (6th and 7th Amendments); similar provisions are to be found in the State constitutions. There was thus no way in which the State legislators or the US Congress could – as happened in England – confide more and more common-law disputes to decision by judge alone. Furthermore, so sacrosanct was the jury, that judges were normally forbidden to comment, in the summing-up, on the weight of the evidence. In the State legislatures, attempts to allow the courts to appoint their own independent experts either failed to pass, or, if enacted, were promptly declared unconstitutional as casting doubt on the impartiality of the tribunal. The result – that the raw and conflicting evidence of scientific experts called and paid by contesting parties might have to be left en bloc to the lay jury – raised the prospect of their never agreeing. Golan uses the analogy of a communication system: the expert is the sender, the testimony is the message, and the jury the recipient. American courts had little control over the first and third of these, and so had to solve the problem by focussing on the testimony by which the expert is permitted to communicate to the lay jurors. The Law of Evidence became the very breath in the nostrils of a trial lawyer.
The main methods of controlling the evidence to be given in court were: first to divide the issue into general and specific, that is, to let the experts testify as to whether a certain cause could, scientifically speaking, have produced a given result, and then to leave it to the jury to decide (if they could) whether, in the case before them, it did produce it. Second, on the grounds that the authors were not there to swear an oath or to be subject to cross-examination, the nineteenth century saw widespread refusal to permit standard text-books, published research and the like to be given in evidence. These and other issues are illustrated by cases on blood, X-rays, and ‘lie-detectors’. In many a homicide trial it was crucial to know whether blood-stains, found perhaps on the clothing or weapon of the accused, were human, but until the early 1900s scientists disagreed with each other as to whether one could tell our blood from that of other mammals (except camels). X-rays – first introduced in medical negligence cases – posed a different problem because, unlike photographs, their whole point is that they reproduce more than any witness could swear they saw; consequently, the question was whether or not to let experts for each side interpret the image to the jury. Finally, the fearsome science of the psychology of testimony, largely imported from Germany, revealed that we often, quite honestly, recollect wrongly what we have seen or heard; and, even worse, the new discipline threatened to be able to determine accurately whether the accused or any witness was or was not telling the truth. Such were the claims of contributors to the journal Beiträge zur Psychologie der Aussage founded in 1903, and introduced to francophones in the pages of the Année psychologique.
Common lawyers were, on the whole, reluctant to accept the new science. Its most enthusiastic proponent among them was Hugo Münsterberg, born in Danzig, Professor Extraordinarius at Freiburg, and in 1892 invited by William James (brother of the writer Henry James) to run Harvard’s psychology laboratory. In 1907 the scientist left his instruments to spend four days in Boise, Idaho, at the trial of Harry Orchard and Big Bill Haywood for the murder of a man who was a fierce opponent of labour unions and had been Governor of Idaho. As well as observing the jury, Münsterberg spent seven hours subjecting Orchard – who had confessed to the murder – to a series of scientific tests, which were said to provide objective proof of his veracity. Before the verdict was given, this conclusion was reported world-wide, although a mistranslation gave French-speaking readers the impression that the test involved strapping a ‘sphygmograph’ to the subject’s back; its efficacy in detecting marital infidelity was discussed in some detail. The jury disbelieved large parts of Orchard’s story and acquitted Big Bill Haywood.
One great comparative lawyer had been watching the affair with some disquiet: John Henry Wigmore (1863-1943), author of the three-volume Panorama of the World’s Legal Systems and the ten-volume Treatise on Evidence, and editor of the Continental Legal History series. In 1909 he published in the Illinois Law Review a heavily satirical article describing a fictitious lawsuit against Münsterberg in which, with an impressive display of multi-lingual scholarship, he demonstrated the inadequacies of the current state of forensic psychology. Yet Golan argues that Wigmore’s thesis displayed faults similar to those for which he had ridiculed the German. ‘Captured by adversarial ideology, its illustrious tradition of authors writing on legal evidence (with the great but outdated exception of Bentham) occupied itself exclusively with the procedural side of the law, virtually ignoring the real world’ (p. 239). Perhaps Wigmore was aware of this, because in 1913 he published a twelve-hundred page work entitled The Principles of Judicial Proof as given by Logic, Psychology, and General Experience and illustrated in Judicial Trials. For the next thirty years he taught a compulsory course based on this volume, but the work was never adopted outside his law school and appears to have made no visible impact on the common law.
The introduction of the very latest scientific testimony was finally forbidden by the federal courts in 1923 not, as one might expect, because it dealt with issues which were precisely what the jury has to decide, but on the grounds that the test had not gained general acceptance by the relevant scientific community. So matters stood until 1993 when the US Supreme Court, in an action against a pharmaceutical company seeking compensation for birth defects said to have been caused by its drug, unanimously held that prior publication and peer review were not an indispensable prerequisite to the admission of scientific evidence.
Writing as a historian, the author does not survey the current state of play (if play it be) but in England psychological testimony (including use of the Gudjonsson Suggestibility Scales) has been called to ascertain the reliability of confessions in criminal cases. Lord Woolf’s report on civil justice has led to reforms whereby, since 1999, judges are to play a more managerial role in the handling of cases, must give permission before expert witnesses are used and can limit their fees recoverable from the losing party. They can also appoint a joint expert to act for both parties. The reforms cover only civil litigation, not prosecutions in the criminal courts.
These latter, however, have recently become the scene of deep conflict in England, above all where young children die from no obvious cause, and the last few years have seen three mothers, Trupti Patel, Sally Clark, and Angela Cannings accused of the murder of more than one of their children. All three trials produced thousands of pages of conflicting medical evidence and reports. Trupti Patel was acquitted in 90 minutes. After three years in prison, Sally Clark was set free in a second hearing by the Court of Appeal on the grounds that one prosecution expert had failed to disclose relevant microbiology reports, while another – a world authority and knight of the realm who was paid £8,192 for his expertise – had confidently sworn to misleading and quite erroneous statistics. He has since been struck off the medical register.
The fees commanded by experts are considerable: in England thirty-four percent charge over £800 a day, ten percent over £1400 and eight percent over £1600. In 1904 the Chair of the Criminal Cases Review Commission suggested that such high figures may tempt experts to give unequivocal opinions just to secure their next case, and it is proposed to advise judges to scrutinise carefully expert witnesses, above all in cases of sudden baby death. Perhaps another problem is the difficulties faced by the jury of twelve ordinary people required to assimilate huge masses of conflicting evidence on such matters as ‘idiopathic pulmonary haemosiderosis’. Fortunately for them, if they do manage to agree upon a verdict, they need not give their reasons.
These recent trials have coincided with a world-wide upsurge in research into baby deaths, but – as the Court of Appeal put it in quashing the conviction of Angela Cannings – ‘We have read bundles of reports from numerous experts of great distinction in this field, together with transcripts of their evidence. If we have derived an overwhelming and abiding impression from studying this material, it is that a great deal about death in infancy, and its causes, remains as yet unknown and undiscovered … while the speed of research is gratifying, one unintended consequence is that it sometimes creates doubt about what were once thought to be certainties.’ Knowledge in this particular field seems to be developing both rapidly and uncertainly, perhaps, alas, confirming the views of the Victorian Journal of Gas Lighting quoted above – that the lawcourts are doomed to be an engine of scientific progress.
Bernard Rudden, FBA
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