Admissibility of novel scientific opinion : unusual bedfellows and interdisciplinary stories
University of British Columbia
Master of Laws - LLM
The utterances and narrative acts by scientists, lawyers, judges, and other courtroom actors may constitute a "telling" of one or several interdisciplinary stories (between scientific facts and legal norms). Under the law of evidence, the judge scrutinizes the form and content of novel scientific opinion. The value-laden communications by scientists may bolster the apparent validity and reliability of their opinions. Scientists normatively (and politically) engage the judge and jury in construction of interdisciplinary stories. Under the poethical method, the judge would consider the purported objectivity of scientific opinion, where the scientist narrates in a third-person, omniscient voice, as well as authorial responsibility (the "ethics") over "telling" an interdisciplinary story (the "poetics"), in light of the situated audience of judge and jury. Each judge and juror has a similar responsibility over listening to interdisciplinary stories, in light of the situated scientist. The judge would apply admissibility criteria under a poethics of telling and listening to interdisciplinary stories. The judge assesses the "probative value" and "prejudice" to jurors' fact-finding based not only on what scientists say, but also how they say it. Beyond or within the Mohan criteria of relevancy and necessity, the judge would consider accessibility to the norms and practices which generate novel scientific opinion. In doing so, the judge screens the form and content of interdisciplinary stories, in light of stories about telling these stories. The poethical method re-frames the concept of relevancy (and thus prima facie admissibility) and the hypothetical question, encouraging judges to think beyond the rationalist separation of logic from values, fact from law. Admissibility decisions, however, always materialize under the norms and politics of judges. An inquiry into "Law and Literature" draws upon a "story jurisprudence", illustrating a plurality of ways to make sense of admissibility criteria and interdisciplinary stories.
Law, Peter A. Allard School of