Science in the Courtroom

Tal Golan. Laws of Men and Laws of Nature: The History of Scientific Expert Testimony in England and America. Cambridge, MA: Harvard University Press, 2004. vii + 325. pp. $55.00.

Reviewed by Arthur Daemmrich

In recent years expert testimony, the “witnessing” by scientists who have not directly observed a crime or been affected by the case under question, has become increasingly common. The American Chemical Society, for example, has a Division of Chemistry and the Law that regularly holds practical sessions that advise chemists how to prepare for expert witnessing, using mock depositions and simulated trials. Some fringe scientists make a living entirely from testimony; even those in the mainstream find themselves in the witness box with surprising frequency. Disputes over what counts as good science have led some commentators to call for greater neutrality through court-appointed experts. Others celebrate battles of experts as an effective method to undercover the truth. Even scientists accustomed to the jabs of peer review and tough questions posed by colleagues at conferences can feel startled when cross-examination reveals hidden leaps of faith in their research or undermines tacitly held assumptions common to their entire field or discipline.

Tal Golan’s impressively researched book finds a rich history of expert testimony and concludes that nearly all of the major issues at play today—including credibility of scientists, deconstructive tendencies of the legal process, and dismay over judges and juries “getting it wrong”—have been with the Anglo-American judicial system since the late 1700s. Paraphrasing Golan, the malaise of expert testimony is not so much a sign of our times—a product of increasing complexity in society or decreasing willingness of people to accept responsibility for their own actions—as it is a 200-year negotiation of humans with each other and with an occasionally recalcitrant natural world.

Golan’s book proceeds through a series of case studies that take the reader from Wells Harbor in Norfolk, England, in the 1780s to the criminal trial of James Alphonso Frye in the United States in the early 1920s. Throughout Golan provides extensive context through newspaper accounts and other sources and interrogates each case thoroughly, examining primary court records and correspondence between key players. He also explores the scientific and medical fields from which experts enter the courtroom and analyzes disputes within the scientific community that arose in conjunction with expert witnessing.

The cases make for fascinating reading and range over a wide array of topics, including harbor silting, exploding sugar refineries, production of paraffin oil, poisoning by strychnine and arsenic, differentiating human from animal blood, use of X-rays to ascertain medical malpractice, and rape and murder. The chemical sciences involved to varying degrees in these cases will make them appeal to readers of Chemical Heritage, despite Golan’s tendency to provide an overwhelming amount of detail.

While the cases fit a progressive narrative showing a greater involvement of science in the law and the slow growth of judicial mistrust of the experts and their disciplines, they also have certain commonalities. First, litigation has had a remarkably significant role in the increased use of simulations and models in science. Each of the fields Golan describes pioneered new methods in response to the opportunities presented by court cases, or saw new methods applied in court immediately upon their development. Before we praise unduly this expansion of the role of science, we should note that in many cases new laboratory experiments were run not so much to advance knowledge as to answer specific questions for the court, at times opening science to challenges concerning the universality of its findings. Second, once judges heard expert testimony from both sides, they often concluded that bias undermined all expert testimony, weakening the credibility of scientists within the courtroom.

As Golan explains, one result of this 200-year sequence is that the courts have become participants in broader debates over the boundaries of scientific disciplines and demarcations of good from bad science. Allowing ever more experts in has impinged gradually on the role of the jury in determining truth. In Golan’s perceptive analysis, the lie detector, as it came on the scene in the 1920s in the famous case Frye v. United States, threatened to take over the role of the jury more than earlier instruments, devices, or experiments.

The judge’s exclusion of the lie detector in the Frye case set a standard of “general acceptance” concerning not just the expert’s credentials, but also the scientific knowledge he or she wanted to present in court. More recently, the U.S. Supreme Court set standards based on testability, peer review, error rates, standardization, and general acceptance. The consequences of the courts’ deeper involvement in separating mainstream from invalid science are at times amusing; in other cases, that involvement seems to waste time and money on a massive scale. On the one hand, the American Association for the Advancement of Science has developed lists of recognized disciplines and practitioners—an impossibly complex but ultimately appropriate demarcation exercise. On the other, a remarkable number of fringe fields have established journals, regular meetings, and all the other trappings of modern science, sometimes primarily in order to make their practitioners acceptable expert witnesses so they can earn a living as hired guns. The ongoing expansion of “toxic torts”—in a recent example, a class-action suit was filed against DuPont on behalf of all past and present users of Teflon-coated cooking pans—suggests that Golan is right to argue that these issues will be with us for the foreseeable future.

The book is thoroughly referenced and cleanly edited; however, a bibliography would have been helpful. But this is a minor quibble for a book of solid academic merit and real interest for historians, legal scholars, and historically minded chemists (and other scientists) who have gone through the wringer of contemporary courtroom testimony.