Expertise and the Criminal Law

Douglas Hay’s article “Property, Authority, and the Criminal Law” examines three aspects of law as an ideology: Majesty, Justice, and Mercy (Larsen 2014). These aspects helped us to understand how symbolism, rule of law, and discretion continue to play a role in our contemporary legal system. After discussing Hay’s article, it is clear that there are other aspects of law as ideology today.

In addition to Majesty, Justice, and Mercy, the courts use of expertise can also be seen as an important ideological aspect of Canadian criminal law. More specifically, we can examine the use of expert witnesses and science. Experts in their chosen fields play a crucial role in the criminal justice system. Without them, juries would find it difficult to deliberate the facts of a given case. This is because expert witnesses give relevant, reliable testimony that helps educate the jury and translates complex ideas into simple terms.

A concept no less important, science is an important tool used by these experts in order to back their claims. Interestingly, academics have suggested that there is an increasing tension between the rule of law and the science of experts (Stygall 2001). This is caused by a concern with “junk science” and the fact that it needs to be distinguished from other recognized forms. For example, conflicting testimony involving two psychiatrists may in fact reveal a lack of true knowledge (Stygall 2001). Nonetheless, science continues to be an important factor in contemporary court decision making.

With these concepts in mind, it is not surprising that the spectrum of expertise in the legal system is vast. Expert witnesses who specialize in engineering, land slides, and linguistics can be contrasted with more prevalent specialists like psychologists, psychiatrists, and DNA analysts (Stygall 2001). Psychologists, for example, can be used to give the court a diagnosis, paint a picture of the offender, or interpret test results. An expert regarding landsides, on the other hand, may be able to specify what in fact triggered the disaster. This proves that whatever their specialties might be, expert witnesses become crucial in solidifying arguments before the court.

It must also be acknowledged that expert witnesses are in no way similar to other ‘powerless’ witnesses (Stygall 2001). Experts are generally well educated, members of the upper-middle class, as well as social and educational peers of attorneys and judges (Stygall 2001). Their testimony and research helps to produce consensus among academic and scientific communities. Indeed, expertise works as an aspect of ideology because it manufactures our consent as individuals. This is further accentuated in courts, where testimony from experts can have an effect on the decision making of juries and judges.

The structure of legal discourse can also affect the testimony of expert witnesses. This was apparent in a case involving psychologist Maggie Bruck. Bruck was a key witness in a child abuse case involving 90 children who held allegations against their daycare workers in 1998. During the cross examination, she felt as though the prosecutor was avoiding the truth. Moreover, she noted that the he consistently asked her about studies she had not mentioned (Stygall 2001). Even though Bruck was an expert in psychology, she felt as though the prosecutor was asking questions outside of her field of expertise. This violation of Bruck’s discourse rights raises a concern that “the legal discourse community controls how and what is said in the courtroom” (Stygall 2001: 333).

The preceding sections have explained the use of expertise and how it plays a role in our contemporary legal system. The discussion must now switch gears and explain why expertise is an aspect of law as ideology. First, from a Marxist perspective, it could be argued that a combination of legal discourse and expertise can serve the interests of the ruling class. This is because Crown attorneys can manipulate expert witnesses and question their expertise. Not limited to the case above, this form of hegemony is evident in other cases involving RCMP experts. An attorney in one such case stated that “in [situations] in which police officers testified as experts, it was very difficult for defense lawyers to find people with the expertise to challenge them” (Fine 2014).

In addition, one could argue that expertise in the courtroom serves the interest of the ruling class because expert witnesses are elites themselves. As mentioned previously, expert witnesses are educated members of the upper-middle class, and expect to be listened to. Moreover, they perform a legitimating and justifying function in that their testimony is seen as academic, reliable, and thorough. This allows the legal system to function in society without being questioned. Expertise and science also work as an instrument of reproduction. Future generations, for example, will undoubtedly view science and the work of experts as legitimate. This is because law is located in the social superstructure, and characterizes the use expertise and science as legitimate. These concepts are portrayed as normal so that the people involved are not imagining otherwise; they see it as natural and inevitable.

This post has sought to explain that expertise and the use of science is at the forefront of contemporary legal systems. Expert witnesses provide relevant, reliable information that can educate judges and juries, yet continue to let them work as independent tribunals. We can also conclude that law, as a ruling ideology, helps to produce consensus and manufacture our consent. As a result, expertise can be identified as a current aspect of law as ideology, since it serves to protect the interests and ideas of the social superstructure.

Note: Nearing the completion of this post I found an article by Sean Fine (2014) that revealed that the Supreme Court has notified Canadian prosecutors that they are to no longer use expert witnesses, including police officers, who give opinions based on their experience. What do you make of this decision?

Sources:

Fine, S. (2014, February 20). Supreme Court Halts use of expert opinions. The Globe and Mail. Retrieved from http://www.theglobeandmail.com/

Larsen, M. (2014). Terror, Leniency, and Law’s Ideology.

Stygall, G. (2001). A Different Class of Witnesses: Experts in the Courtroom. Discourse Studies, 3(3), 327-349. Retrieved from http://dis.sagepub.com.ezproxy.kwantlen.ca:2080/content/3/3/327.full.pdf+html

Susan van Scoyoc: Psychologists as expert witnesses

The Law Works – Expert Witnesses

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1 Comment

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One response to “Expertise and the Criminal Law

  1. Your post effectively addresses the role of expertise in the courtroom.

    I think that you get to the heart of the question towards the end of your post, when you address the relationship between expertise and legitimacy in court proceedings. Consider the ‘CSI Effect’, for example.

    Do you think that the growing importance of expert witnesses in court is indicative of a shift in the nature of discourses of legitimacy? Must one be seen to ‘speak science’ in order to be regarded as a truth-teller in contemporary court? If so, what are the implications of this development?

    I am not sure why you have cited my handout on Hay, instead of Hay’s article itself. It is always best to ‘go to the source’ where possible.