Demonstrating “Reasonable Fear” at Trial: Is it Science or Junk Science?

Abstract

This paper explores how scientific knowledge is used in a criminal case. I examine materials from an admissibility hearing in a murder trial and discuss the dynamics of contesting expert scientific opinion and evidence. The research finds that a purported form of ''science'' in the relevant scientific community is filtered through, tested by, and subjected to legal standards, conceptions, and procedures for determining admissibility. The paper details how the opposing lawyers, the expert witness, and the judge vie to contingently work out what will count in court as appropriate scientific authority, methods and evidence, and as a scientifically valid and legally admissible account of ''reasonable fear.'' When science becomes enmeshed in legal controversies, science does not trump law. Rather, it is the court's canons of proper procedure and measures of substantive adequacy that take precedence.

“Place or Character” of a Business: Environmental Criminology and Negligent Security Litigation

“…Negligent security cases are complex, and courts need methodologically trained and skilled experts to help judges and juries understand evidence, determine the facts of a case, and adjudicate between rival interpretations of facts. In recent years, scholars and researchers have published a variety of books and articles that offer suggestions and advice on how to apply social science methods and theories to assist the courts in rendering legal decisions (Burns 2008; Forsyth 2014; Gotham and Kennedy 2019; Hirsch and Quartaroli 2011; Kennedy 2013; Morewitz and Goldstein 2014; Otto and Weiner 2013; Peyrot and Burns 2001). Sociologists and criminologists who work as premises security experts not only have access to rich crime and security data but research results that derive from a case investigation can be valuable sources for making substantive, theoretical, and methodological contributions to academic sociology, criminology, and other social science disciplines and fields.…”

Judges’ socio-technical review of contested expertise

“…As will become evident in my analysis, social and technical expert claims are often intertwined, and are not mutually exclusive categories. Another important consideration relevant to the social/technical distinction is that not all fields of expertise identified as scientific have a robust 'technical' foundation (see Burns, 2008).…”

“…As will become evident in my analysis, social and technical expert claims are often intertwined, and are not mutually exclusive categories. Another important consideration relevant to the social/technical distinction is that not all fields of expertise identified as scientific have a robust ‘technical’ foundation (see Burns, 2008). Such is often the case with, for example, novel evidence produced with experimental technology, or the type of psychiatrist whose expertise is substantively bound to clinical experience and tacit understanding of mental conditions and how they manifest.…”

“…This study also relates to ethnomethodological accounts of pragmatic legal work in courtroom (e.g. Burns, 2001Burns, , 2008Lynch, 2004). The approach taken here reflects the pragmatic idea that despite perceived problems in the relation between science and law, judicial decisions considered legitimate and socially acceptable are routinely made in everyday practice regardless of epistemic asymmetries between professionals, experts and institutions (cf.…”

“…In the case-type I examine, deciding whether plaintiffs are entitled to compensation for disability depends on judging expert claims about whether the plaintiff has suffered a brain injury or not. It can be objected that practical legal considerations, such as burden of proof and sufficiency of evidence, are sufficient to decide cases such as these, and in this way provide means to avoid engaging with highly technical expert claims (Burns, 2008: 127–129). However, regardless of the qualities of the medical evidence presented, the judge must still provide a rationale for a decision based on what experts have testified in courtroom.…”