The politics of jury competence - Technology and public participation Brian Martin, editor
The politics of jury competence†150
Gary Edmond and David Mercer*151
How appropriate is it for lay juries to evaluate scientific and technical evidence? Most discussions of this question have assumed that science provides a direct access to truth—a positivist approach.152 They have been preoccupied with determining how to guarantee the clear transmission of scientific knowledge from its scientific source to the public and the clear reception (without distortion) of that knowledge by the public. Within this framework the assessment of the appropriate role for the jury has predominantly been set against the question of whether or not the jury can be considered scientifically competent. Supporters of the jury have emphasised that juries display an adequate level of scientific literacy to facilitate their important role in assessing matters of science and technology. Other commentators contend that the jury’s role in these matters should be limited because of its technical incompetence. There has been a failure, across both sides of this debate, to consider what jury comprehension of science means in more sociologically or philosophically informed terms.
In the following discussion we provide an overview of the arguments made by both proponents and opponents of the jury. We outline a constructivist approach to the public understanding of science, which considers the social negotiations involving both experts and the public that determine what should count as valid scientific and technical knowledge. This approach reveals inadequacies in the viewpoints held by both proponents and opponents of the jury. In our conclusion we reflect on the importance of recognising the politically loaded nature of assessments of the scientific competence of the jury.
Before embarking upon an examination of debates over jury competence, a brief overview of the history, rationale, structure and function of the jury serves as a prelude to our analysis.
2. The history and objectives of the jury
a. History of the jury
As early as the reign of the Tudors, the jury had begun to instil itself in popular mythology as a champion of public liberty against excessive or oppressive governmental demands.153 Seminal English cases such as Bushel and the Seven Bishops Case gave the jury an overtly political character and helped to entrench the jury as a form of lay participation in the interpretation and operationalisation of the state’s laws.154
Yet, the jury’s ability to incorporate public considerations of morality and justice into the legal system—free from requirements to act rationally and in accordance with the law—has led to apprehension concerning its inconsistency and lack of accountability.155 The continued operation of the lay jury has not prevented an active judiciary from developing doctrines which have provided a means of circumventing public participation. Changes in the admission standards for evidence combined with judicial activism have functioned as important means of restricting the influence of the jury.
b. Rationale for the jury
Public recognition of the political importance of the jury owes much to a number of early obstinate jurors and juries withstanding attempts at judicial/political impeachment.156 The dominant rationale for the continued operation of the “modern” jury is as a check to political and judicial tyranny. The jury is believed to provide a lay constraint on government and the interpretation and application of laws determining matters affecting the lives, liberties and reputations of other citizens.157 The participation of the public provides a means of continual rejuvenation of the jury, enabling the institution to retain vibrancy and relevance.158
c. Structure and function of the jury
Juries are generally composed of twelve (and sometimes as few as four) members, selected randomly to listen to evidence of varying kinds in an attempt to determine matters which often dramatically impact upon the lives of the parties involved. The jury is selected from a panel where lawyers, depending upon jurisdiction, have varying opportunities to shape its composition. Jurors are invariably strangers to each other and (usually) to the parties, and are expected to have no interest in the proceedings. During the trial the jury is selectively exposed to arguments constructed by lawyers (and often others) incorporating evidence and witnesses deemed admissible by the judge. Without training, and guided in issues of law by the presiding judge, jurors are expected to decide issues of fact and apply them to legal standards. The jury’s eventual verdict is determined in camera and justifications for the decision are not required nor provided. In most jurisdictions the verdict must be unanimous. Failure to reach a decision (hung jury) can lead to the swearing in of a new jury and a completely new trial. After the trial, the jury is disbanded and will never again function in that formal fact-finding capacity. Appeals from jury verdicts are traditionally only granted when interference or “obvious errors” have been deemed to have taken place.
3. Current debates about the jury and science
a. Jury proponents
Those who defend the jury’s role in cases involving scientific and technical evidence can be roughly divided into four main categories.i. Moral/political defence of the jury
For those defending the jury on moral/political grounds, juries are not obliged to employ rigid and legalistic interpretations of the law.159 Nor are they compelled to accept the evidence of witnesses, even expert opinion evidence from eminent sources. The jury is not obliged to accept any of the competing expert claims and may legitimately reach a decision on other grounds.160 Kalven and Zeisel, authors of the seminal text The American Jury, suggested that juries were capable of disregarding evidence and law to achieve a “just” solution, especially if they believed one party had acted improperly. For example, where police improperly or illegally obtained evidence, jurors might acquit regardless of the strength of the case or “technical guilt” as a form of relief from, and discipline for, improper conduct.161
Another important public function of the jury in the moral/political framework (as well as a number of pro-jury perspectives, such as in the following subsections ii and iii) is the effective requirement that the testimony and evidence in trials must be comprehensible to the lay public. That is, the institution of the jury places a burden on the parties to present evidence in a clear and simple manner, at the risk of alienating the jury and displacing the legal system from the public domain.162 Research suggests that jurors do not simply accept the testimony of those witnesses rated high on expertise.163
In these approaches it is commonly asserted that: “the jury often appears to do surprisingly well in the face of complexity”164 and “juries are one of our society’s most reliable decision-making institutions.”165 Such assertions are normally supported by research suggesting that the high level of convergence between jury and judicial decisions on “appropriate” disposition of the same case (about 75-80%)166 does not vary for cases selected as complex.167 Such high levels of agreement have inspired some researchers to ask whether juries might actually out-perform judges.168
It is also worth noting that, in this approach, the areas of disagreement between judges and juries are normally not interpreted as jury misunderstanding but the result of other factors.169 Juries are seen to be able to act as a social “lightning rod” because of the relief they provide for judges by assuming adjudicative roles.170 Significantly, juries remain most popular amongst the judiciary. This suggests that at times the jury has the flexibility to arrive at a decision a judge may desire but be unable to deliver—constrained by legal conventions.171 Apparent jury incomprehension and misunderstanding are also occasionally explained as a product of legal procedures and language rather than the complexity of scientific and technical evidence. 172
Most jury supporters accept that there are areas of jury administration and court procedure which could be modified to enhance jury performance.173 Such reforms include allowing jurors to take notes during trials, providing copies of transcripts and giving juries access to expert reports or court-appointed experts, pre-trial instructions, simpler instructions and allowing juries to keep a copy of the charges and instructions.174
In addressing criticism of jury performance based on apparent inconsistency and unpredictability, some jury supporters have explained that those cases which eventually reach jury trial are generally the most closely balanced and therefore the most unlikely to reach settlement before trial.175 The type of case rather than jury deficiency is used to assist in explaining difficulties in predicting or reconciling outcomes.176 Others have noted that often the close balance of competing arguments for the various parties can make any verdict appear as reasonable or “rational.”177 The more restrictively judges apply admission criteria, the more coherent any judicially manipulated jury verdict might appear. Conversely, other commentators have celebrated the absence of jury verdict consistency as an indication of genuine political independence.178
As mentioned earlier, the development of an independent jury as an ostensible tribunal of fact emerged in conjunction with a complex law of evidence to protect the jury from exposure to certain types of information deemed to be inappropriate.179 Recently in the widely cited and extremely influential case of Daubert v. Merrell Dow Pharmaceuticals, Inc.,180 a majority of the US Supreme Court appeared to express confidence in the institution of the jury, even in complex cases. Whilst this case has been described as the “highpoint of recent international expression of confidence in the intellect of juries,” this approach may also provide a means of eroding the jury evaluation of disputed “knowledge claims.”181 The emphasis on strict examination of expert evidence and rigorous judicial screening outlined in Daubert allow the case to be interpreted as a covert attempt to restrict the types of evidence which can be presented to the jury, thereby undermining an opportunity for public input in the evaluation of controversial knowledges. Despite a (purportedly) broad confidence in juror capabilities, the tightening of admission standards—via judicial gatekeeping182—preventing evidence reaching the jury, provides a means of surreptitiously shifting the locus of decision-making away from juries whilst apparently maintaining public support for, and confidence in, that institution.183
iv. Support for the jury conditional on improved scientific literacy
The final category of support for the jury consists of those who argue for the importance of the jury but decry the current lack of scientific literacy in the general community, which limits the ability of the average jury to competently evaluate scientific and technical evidence.184 In these frameworks the problem of the jury is part of a general community failure. The solution is to embark on improving the public understanding of science across society. Proponents of these views draw on traditions from both the left and right of the political spectrum.185 Many of their arguments concerning the public understanding of science are shared with those who desire the role of the jury and current legal system limited in relation to the adjudication of scientific and technical matters. The overt focus on scientific literacy and the public understanding of science, characterised by this position, will be discussed in more depth at a later point.
b. Critics of the jury
For as long as the modern jury has been operating, there has been intense debate over the ability of ordinary citizens to understand legal and evidentiary issues involved in trials.186 For a long time there have been broad critiques of jury capacity:
Proclaiming that we have a government of laws, we have, in jury cases, created a government of often ignorant and prejudiced men.187
The debate over juror competence has been exacerbated in recent years through an increase in the prevalence of technical and scientific evidence.188 Whilst criticism of jury capacity has been a central feature in the arsenal of jury critics, it appears to be most powerful when targeting juror assessments of complex and/or conflicting technical and scientific evidence.189
Part of the motivation for challenging juror competence and seeking to exclude juries from trials which are deemed as unsuitable is located in a belief that the majority of the public is scientifically illiterate. This belief, underpinning much of the critical jury literature, has been reinforced through extensive surveys of formal scientific literacy conducted in both the US and UK.190 In their assault on the jury in complex cases, jury critics often emphasise this alleged public scientific illiteracy.191 Jurors are portrayed as inept.
Much of the largely anecdotal criticism attacking the competence of the lay jury is based on apparent inconsistencies in trial outcomes. So-called (mass) toxic tort cases (such as litigation surrounding Bendectin192 and breast implants) in the US have attracted a great deal of interest as critics portray juries as incomprehensibly and irrationally oscillating in their preferences between plaintiff and defendant evidence in ostensibly identical cases. Such variations are represented as compelling evidence against the ability of lay juries to “competently” evaluate complex and competing knowledge claims.193
In the context of wide publicity over an apparent “litigation explosion” and “insurance crisis” surrounding tort law in the US from the mid 1980s, critics blamed jury inconsistency as one of the factors implicitly responsible for encouraging speculative litigation and an influx of dubious or “junk science” evidence in the court.194 Ultimately the effect of broadly publicised inconsistent trial outcomes was portrayed to be undermining public confidence in the legal system.195
The representation of the jury as incompetent and irrationally sympathetic toward plaintiffs has led to criticisms that litigation costs and tremendous damage awards severely impact upon the productive capacity of US industry—reducing the availability of putatively safe pharmaceuticals, medical devices and interventions.196 Not surprisingly, jury critics have a tendency to be politically conservative and supporters of (and supported by) industry and large corporations.197
The entrenched symbolic role of the jury, especially in criminal trials, has meant that those favouring its abolition or substantial reformation have pragmatically supported making admission of expert testimony more demanding. The justification is that more rigorous judicial gatekeeping would protect the jury from much of the “junk science” which purportedly hinders its ability to render rational verdicts. By enforcing more restrictive criteria, judges could ensure that only mainstream, “authentic” science appears in court, thus tremendously simplifying the role of a credulous and incapable jury:
A compelling argument for conservatism lies in the need to screen proffers of scientific evidence for ‘junk science’ claims that would distort the fact-finding if admitted into evidence.198
However, most critics believe that merely tightening admissibility rules will not resolve the problems.199
Whilst jury critics often advocate reform to standards for admitting evidence, they usually propose alternatives to the currently available jury trial. Various alternatives have been suggested including blue-ribbon juries (composed of high school, college and university graduates), blue-blue-ribbon juries (composed of individuals with “relevant” or general scientific training),200 increasing use of court-appointed experts and special masters,201 expert panels, science courts202 and more stringent professional regulation—to prevent certain unacceptable or non-scientific knowledges from ever reaching courts. Whilst some of the suggestions, such as masters and technical advisers, might assist the jury, on the whole they are predicated upon the unsupported belief that reaching a certain threshold of technical or scientific literacy will improve repeatability (the same verdict for allegedly the same evidence).203
In addition, jury critics often favourably contrast the capabilities and attributes of allegedly rational and competent judicial verdicts to the random, unpredictable and idiosyncratic outcomes of jury trials. This commitment is often supported through the celebration of judicial attributes such as familiarity with the law, tertiary education, experience and impartiality.
4. Reconceptualising jury “understanding” of science
Since the 1980s there has been renewed interest and research undertaken on public understanding of science.204 Two main opposing perspectives can be identified. First, there has been an approach which could be described as positivist—preoccupied with the public’s correct understanding and use of scientific and technical knowledges. The other approach could be described as constructivist—preoccupied with the social negotiations, involving both experts and the public, that determine what should count as valid scientific and technical knowledge.
Positivist approaches have been nurtured by concerns among scientific organisations and industry lobby groups that there has been a decline in their social authority in relation to the planning of new technologies and the promotion of scientific and technical education because of failure in the public understanding of science.205 Science policy researcher Brian Wynne argues that this dominant concern with the legitimation of science has encouraged those maintaining positivist approaches to deploy simplistic images of science and equally simplistic models for the public understanding of science. Such approaches tend to treat the scientific source as correct without question, whereas all non-scientific sources are open to scrutiny. Ideally, in this picture, the ultimate meaning of a scientific message remains intact no matter what forms and contexts it passes through, until it is received by the unquestioning lay person who soaks up the information. In a sense, the quality of the communication channel can be measured according to the lack of distortion introduced along the way, according to the competence of the receiver to accurately decode the message. Problems surrounding the receiver’s competence and the clarity of the message are open to examination. In contrast, there is no consideration of the authority of the source, or the content of the message. Problems in the construction of scientific meaning are transformed into problems of communication and comprehension. It is assumed that any active construction of the content of the scientific message, other than at the source, constitutes bias, distortion or misunderstanding. The correct interpretation of any message is seen to be that made by authoritative scientists and scientific institutions.
The various approaches to the role of the jury outlined in section 3 of this chapter predominantly rely on the positivist literacy deficit (PLD) model of the public understanding of science outlined above. Critics of the jury draw attention to the contradictory results of jury deliberations concerning supposedly identical scientific evidence as support for the lack of scientific literacy among juries. Even those not critical of the jury implicitly assume the existence of a straightforward notion of scientific literacy against which jury performance may be measured. For example, jury proponents can be divided between those who argue that the jury’s scientific literacy is sufficient to satisfy its role—usually compared to the “rational” temper of judges—or, because of overriding political reasons, the jury should be defended in spite of its literacy deficit. The discussion to be developed below provides an indication as to why the PLD model is inadequate.
Juxtaposed to the simplistic PLD model, alternative constructivist approaches have emerged. Constructivist approaches have been inspired by the sociology of scientific knowledge, insights from anthropology, and various currents in sociological thought.206
This area of research shares a commitment to avoiding a priori assumptions about what ‘proper’ science is. Through ethnography, participant observation, and in-depth interviews, it attempts to examine the influence of social contexts and social relations upon people’s renegotiation of the ‘science’ handed down from formal institutions as if already validated and closed. This general approach immediately opens to question the very notion of what counts as a scientific-technical issue or as scientific-technical knowledge.207
A number of key themes have emerged from these studies. In the following discussion we outline these themes, drawing attention to the ways they encourage a reconsideration of dominant views of jury competence.
a. Differences in scientific “sources” of information, reconstruction and politics of simplification
In many instances, particularly in controversial areas such as those generally arriving in legal forums, one simple closed or coherent scientific message will not be available for reconstitution into a form of public knowledge. Differing interpretations of the state of a particular science at a public level may merely reflect pre-existing disagreements. PLD models can easily gloss over such differences by assuming there is one simple correct scientific interpretation that can be transmitted to the public. Such models can also play a political role by allowing expert protagonists to claim that opposing views represent populist distortions rather than views ultimately drawn from competing experts. In the context of discussions of jury competence, the jury can take on the role of a scapegoat for a side losing in litigation. Jury competence is an easier target than expertise.
PLD models gloss over the fact that the existence of scientific viewpoints in legal contexts can shape the actual source of scientific information. For instance, there has been a growth in numerous law-science knowledge-making cultures which tailor their knowledge and areas of research interest according to the demands of legal institutions. The very constitution of certain types of scientific knowledge such as forensic pathology208 can be shown to be shaped by the demands of legal/quasi-legal institutions.209 Recognising the role of such law-science hybrids adds a further complexity to PLD models of the jury because, in a sense, jury comprehension constitutes part of the context against which such knowledges are constructed.
The existence of hybrids also raises the importance of considering the construction of science occurring at a number of points across society and not just in expert settings.210 In these studies special attention has been dedicated to the need to acknowledge that the process of stabilising scientific knowledge claims involves the movement of such claims beyond narrow expert contexts. This process involves the active reworking of the meaning of scientific knowledge claims so that they are tractable in various social and technological contexts. Scientists from differing specialties may have slightly different interpretations of the meanings of apparently identical scientific concepts depending on the context at hand. This work implies that it is unrealistic to look for any single source for the meaning of scientific knowledge claims as this ignores the active processes of construction which take place at numerous locations including non-expert settings. The law-science hybrids, where non-expert demands shape knowledge claims, are indicative of processes which are a normal part of science. In the context of the jury this work is important in highlighting the dynamic processes occurring as scientific knowledges are reconstructed into tractable terms for presentation to the jury—processes which are more complex than some kind of distortion of the original scientific message.
The reconstruction of scientific knowledge along a continuum of sites can also be seen to have a number of important political dimensions. According to Stephen Hilgartner, the image of popularised/debased science (scientific knowledge produced at a distance from its purer site of construction) has been used to satisfy political aims in scientific controversy in two main ways. First, the image of a debased currency of scientific knowledge can be used by scientists in contrast to the correct pure science undistorted by the path of popularisation, simplification or pressures of policy. Second, scientists can demand the right to pronounce on whether or not a simplification or popularisation is appropriate. As Hilgartner puts it:
scientific experts enjoy great flexibility in public discourse. On the one hand, when it suits their purposes, they can issue simplified representations for broader audiences; the notion of the appropriate simplification justifies this practice and enables scientists to invest these representations with the authority of the cultural symbol ‘science.’ On the other hand, scientists at all times can draw on the notion of distortion to discredit publicly available representations.211
The politics of simplification are extremely important for understanding the question of jury comprehension of science. The necessary process of simplification involves the importation of broader metaphors and narrative strategies. The use of these strategies provides a vehicle for later recriminations about processes of legal distortion and jury misunderstanding.
Problems in identifying a simple epistemological source for images of science is not restricted to controversy involving specific knowledge claims. It has been observed that in some contexts there can be difficulties in identifying a simple consensus in defining the more general features of science. A good example is debate over the nature of the “scientific method.” Surveys indicate that scientists rarely reflect on abstract definitions of scientific method in their day-to-day work. On those rare occasions when they do, that reflection is not undertaken in a particularly coherent way.212
This debate has also been played out in legal settings such as in the cases involving creation science213 or the recent US Supreme court Daubert214 decision. In both contexts, courts attempted to define the nature of the scientific method. These attempts have been subjected to considerable criticism in legal and philosophical circles.215 Challenges to the legitimacy of juries playing a role in scientific cases, because of difficulties anticipated in their ability to understand the scientific method, appear superficial when the difficulties in achieving an authoritative consensus on the nature of the scientific method are recognised.216
b. Trust and identification.
Another important factor to consider in relation to the public understanding of science has been the observation that members of the public do not evaluate knowledge claims in isolation from their experiences and perceptions. In this context Mike Michael has emphasised the need to distinguish between the knowledge and judgment of particular areas of science and more general perceptions of the idea of science.217 It would appear that whilst members of the public have confidence in science, even as a synonym for truth via tacit notions of progress, method and norms,218 in specific contexts they have been more reluctant to accept scientific claims emanating from supposedly authoritative scientific institutions and individuals.
It might be expected, following from the above discussion, that juries evaluate the specific scientific knowledge claims of institutions and individuals, at least in part, according to their ability to identify with and “trust” them. The evaluation of institutions and their knowledge together opens up the opportunity to consider the social contexts in which various forms of knowledge are generated and put to use, rather than treating scientific knowledges as made up of artificially isolated events frozen in time and isolated from any kind of social context.219 Jury consideration of science constitutes a process of social deconstruction and renegotiation of knowledge claims rather than a simplistic process of competence or incompetence. Writers such as Wynne and Irwin have emphasised this as an important factor in helping to explain public resistance to nuclear power, despite the construction of elaborate quasi-legal public rituals by the state and nuclear industry in an attempt to establish public “acceptance.”
An example where this process may have operated can be drawn from considering the well known paternity case involving the famous actor Charlie Chaplin. A jury found that Chaplin should be held responsible for fathering a child even though blood test evidence was presented which appeared to challenge this assessment. Critics of jury comprehension of science such as Huber celebrate this as an example of sentimental absurdity and jury incompetence. Jasanoff in Science at the Bar draws from Saks to suggest an alternative explanation—that the jury decision was a “socially rational” judgment reflecting social mores of the time. Chaplin was a wealthy man and treated the mother of the child as if she were his wife; paternal obligations, therefore, should still apply. In such a context, jury sensitivity to uncertainties in scientific claims might be expected.220
c. Differentiated publics and the importance of tacit knowledge
In constructivist (and some PLD) accounts of the public understanding of science there has been a call to acknowledge that the public is differentiated, or that there are “publics” in regard to science. Certain segments of the public are more interested or attentive to scientific and technical issues than others.221 Factors influencing attentiveness include formal education, gender222 and direct personal involvement in matters involving the negotiation of the meanings of scientific and technical knowledges. Such differentiated public interpretations of specific areas of science will also be strongly influenced by differentiated tacit knowledges of the specific context at hand and tacit knowledge of science more generally. Past experiences, expectations and immediate experience are welded together in an active process of translation and reconstitution. Depending on the context, various members of the public will exhibit more or less interest in specific scientific matters for a variety of reasons. They may also, by incorporating local tacit knowledges, develop understandings of science different to those of experts. A number of recent case studies have appeared exploring these processes at work in the construction of lay interpretations of medical knowledge such as menstruation, safe sex, cholesterol and Down’s syndrome, amateur sciences such as astronomy and ornithology, and industrial and workplace hazards such as those due to nuclear power and chemical plants.223
The impact of these points is rather complex. In theory, juries are brought together without prior knowledge of the specific case at hand, retain anonymity, and should reflect a representative cross-section of the broader community. In most cases juries are drawn from a cross-section of the public with relatively diverse tacit knowledges. On a preliminary assessment these factors make it difficult to transport concepts such as attentive publics and tacit knowledge to the jury context and it will be difficult to ascertain how prior tacit knowledge of the particular jurors has influenced the formulation of any particular jury decision. There is, nevertheless, a broader sense in which the concepts “attentive publics” and “tacit knowledge” possess relevance. In a sense, through participating in the legal process, the jury becomes a de facto attentive public. The jury is expected to rapidly learn about the specific scientific viewpoints of the protagonists. Their evaluation of such positions will in turn be influenced by impressions of the importance of their role in the general and particular administration of justice and confidence in, and commitment to, the polity. Jury assessments may be affected by broader shared tacit knowledges of science, tacit knowledge of the operation of the legal system, the perceived seriousness of juror roles and jurors’ responses to public perceptions of social problems. These observations also overlap with our earlier discussion of institutional identification and trust.
Belief that the jury provides a site for public education about specific scientific issues hints at the difficulties involved in making generalisations about the conclusions made by juries that do not take into account the specific features of the case at hand and how it is presented to them.
5. Conclusion: the politically contested nature of the concept of jury competence
There are a number of implications for public participation flowing from a constructivist approach to jury competence. The first is that there is no simple basis on which competence may be determined. We would contend, nevertheless, that recognising this implication does not lead to complete idealism or nihilism in which all knowledge claims are treated as equally valid.224 Rather, evaluating competence inescapably involves social/political judgments. In some contexts the role of judgment may become largely invisible—such as where there is a high level of agreement in relation to the trustworthiness of individuals, institutions and the efficacy of their knowledge(s). However, juries typically work in contexts where there is a lack of consensus over these very issues. Ascribing or denying competence to jury decisions is a highly charged political activity. Claims about competence/incompetence are used by protagonists in legal contexts to both legitimate and delegitimate jury decisions. For many jury critics, the general image of incompetence is most commonly deployed to delegitimate the role of the jury absolutely. For others, including many jury proponents, it is jury competence in the specific context that is most regularly challenged. There are broader political implications in recognising the politically charged nature of competence. For those working in an Enlightenment positivist framework, images of jury competence have regularly been linked to images of democratic capability. According to this approach, maintaining the jury system is dependent on improving the scientific literacy of the lay public to achieve democratic outcomes:
Citizens who train themselves to read and understand the primary sources, the original scientific studies, can participate meaningfully; those who do not, cannot.225
Within such frameworks, disbanding or restricting public participation in the jury might not constitute a challenge to democratic processes if the public is unlikely to attain the requisite degree of competence. The legitimatory rhetoric of competence disguises points of political conflict in contemporary society. For instance, the occasional fragmentation and political conflict between expert knowledges and the important interplay between lay and expert understandings of science and technology—in short, the fundamentally political nature of modern science and technology—are disguised.
The failure to recognise and deal with the political nature of jury competence could well create problems for those wishing to maintain the social authority of the legal system. Using a strict technocratic model to deny the jury input into decision making provides a challenge to notions of democracy in which the public has a right to shape decisions which directly affect them. It also implies that contemporary science and technology are beyond the grasp and control of the public. Such a situation might contribute to the development of polarised public responses—drawing from romantic perspectives—calling for the total rejection of science and technology.226 Challenging jury competence in relation to specific decisions could also lead to problems of legitimacy for legal institutions. The conclusions drawn by juries can be influenced by the contingencies in the knowledge-making setting. Our earlier discussion highlighted the importance of public understandings of science linked to contingencies such as tacit knowledge, trust and institutional identification, simplification and exposition. Uncritical notions of competence deny the complexities involved in deriving legal decisions in relation to science and technology. Ironically, denying these contingencies leaves legal institutions vulnerable to criticisms of denying themselves a textured means of explaining the outcome of their decisions. The failure to adequately problematise scientific knowledge and the notion of its public understanding, as is the case in the dominant discourse on jury competence, has meant institutions anxious to maintain their public authority by promoting the public understanding of science may be contributing to the opposite outcome. 227
Commentary by David Bernstein*228
Edmond and Mercer identify three justifications for the use of civil juries. The first is that the collective wisdom of six to twelve individuals from a cross-section of the community is more likely to lead to an objectively correct result than is a lone judge’s ruminations. This view, while plausible with regard to run-of-the-mill cases, is almost certainly mistaken with regard to toxic tort cases and other civil cases involving complex scientific evidence.229
A second reason that juries might be preferable to judges is that juries are perceived to be a check on legal rigidity. Juries are expected to base their verdicts on “extralegal values” or “their sense of justice.”230 A jury can therefore legitimately punish Charlie Chaplin’s sexual misconduct by finding he was the father of an illegitimate child, even though genetic tests showed this was impossible. But if the Chaplin verdict was correct, then jury trials are no more than popularity contests, and the rule of law is reduced to a mere rhetorical device.
Finally, sundry sociologists of science, such as Sheila Jasanoff and, apparently, Edmond and Mercer, believe that in the absence of a consensus over the trustworthiness of various “claimants to knowledge,” it makes far more sense to allow scientific decisions to be made democratically through juries than to allow the technocratic elite to make them. It must be realised, however, that consensus is no real standard at all. Given the diversity and breadth of the scientific (and pseudo-scientific) community, and the financial incentives for experts involved in major product liability cases, consensus is extremely rare.
The availability of important products including vaccines, contraceptives and medical-grade silicone has been threatened by US jury verdicts. Allowing scientifically ignorant jurors to determine whether these products are to be available makes absolutely no sense from a public health point of view. I would be content to allow Edmond and Mercer the option of letting a random sampling of the public to vote on whether their families may have access to such products. On the other hand, I believe the rest of us to be very much entitled to use these products regardless of the upshot of the whim, superstition and “sense of justice” of sundry panels composed of six to twelve of our fellow citizens.
Fortunately, over the last decade or so, US judges have become increasingly interested in ensuring that legal decisions actually conform to the underlying evidence. This inevitable result has been a welcome decline in the authority of civil juries.
Commentary by Ian Freckelton*231
The debate about the jury’s capacity to process the complexities of scientific evidence adequately has an analogy in the game of cricket. The focus in criminal trials on the jurors is like the focus in cricket on the batsmen. But one can also factor into the evaluation process the condition of the ball, the state of the pitch, the skills of the bowler, the impact of the home ground, the effect of a supportive crowd and even the role of the umpire. If the focus of inquiry is solely or even predominantly on the batsmen’s ability to bat, the inquiry risks losing perspective.
The fundamental question in the context of jurors being able to grapple effectively with scientific evidence is how to regulate the delivery of information to lay decision makers to maximise their chances of dealing adequately with it. The persons responsible for this are expert witnesses, lawyers and judges. That their several performance at times have left something to be desired does not necessarily reflect upon the juror’s competence at all.
For over a century, what has characterised the debate about juror competence is a remarkable lack of empirical information—a defect that has not deterred in the slightest advocates of juror competence or of juror incompetence from making assertions in support of their positions.
The passion engendered by the debate arises primarily from the symbolic significance attributed by many to the role of the jury as a populist bulwark against judicial and executive tyranny. Commentators have also highlighted the imperative for jurors to “get it right” when processing information that may result in erroneous conviction or acquittal. Both notions are unrealistically positivist and encumbered by unhelpful romanticism.
There is no shortage of examples of “rogue” forensic scientists and of poor scientific practice which was only exposed by the legal system too late for those convicted. In the United States there have been controversies aplenty in the last decade, for example about the evidence of the discredited footprint expert Louise Robbins232 and about the forensic assertions of odontologist Michael West.233 In England forensic science’s travails have been prominently exemplified in the IRA bombing cases where partisan and inaccurate information was presented to juries in relation to explosives’ analysis. In Australia, inadequate forensic science has come to the fore in the royal commissions into the Splatt and Chamberlain cases and then in relation to the evidence given by “Bomber Barnes,” the former Deputy Director of Australia’s largest forensic science laboratory in Victoria, in relation to gunshot residue.234
The problems of the evidence have included abandonment of neutrality, poor record-keeping, adoption of questionable techniques, bad methodology, use of tests still under development, failure to disclose inconsistent results and failure to submit to proper peer review processes. How is the jury to learn of such matters? By effective and informed cross-examination and by contrary expert evidence. In countries such as Australia and New Zealand, where the pools of experts available to the defence are shallow in the extreme, especially with the death by attrition of legal aid, the role of lawyers in keeping the scientists honest has become all the more important. The truth, though, is that trial lawyers’ record as the fourth estate of the criminal courtroom has been far from formidable. If the scientific understanding of the lawyers is blurred, both judge and jury will be left with a mass of scarcely understandable data, generating the potential for miscarriages of justice.
It may be that a combination of initiatives is necessary: improvement in scientific competence and communication; more judicial involvement to clarify issues in dispute; courts appointing their own experts in cases that require such a measure; enhancement of trial lawyers’ competence to make expert witnesses accountable; and introduction of procedures to enhance the capacity of lay decision makers to arrive at their decisions on the basis of reasoned evaluation.
The responses by Bernstein and Freckelton rely upon idealised images of law and science and their interaction. For Bernstein there is an implicit appeal to a resolution to scientific debate available to be invoked by rational judges or technocratic elites. For Freckelton, the “problem” can be resolved (or at least substantially reduced) by improving the communication of science to lay audiences and improving scientific and legal practices, such as eradication of scientific fraud and requiring competent cross-examination. Both commentators fail to grapple with occasions when scientific experts disagree. In cases where experts disagree, obtaining yet another expert opinion is unlikely to offer any decisive benefit over drawing from the opinion of a lay person.
These difficulties have been clearly displayed in the failure of science courts to achieve widespread scientific, legal and public acceptability. Science court proposals have received criticism for assuming that the use of court-like procedures would be able to separate scientific facts from social preconceptions. One problem is that for a scientist to gain sufficient authority to pronounce in an authoritative way on a matter of scientific controversy, such a scientist is normally already a participant in the controversy in question. Selecting “scientist-judges” or “experts” who possess scientific authority but are not simultaneously embroiled in the proceedings is difficult. Further, selection of scientist-judges without prior involvement may well lead to inconclusive and/or non-authoritative conclusions. This highlights divisions within the so-called technocratic elite. In this context, Bernstein’s position is contradictory. Whilst Bernstein accepts that “[given] the diversity and breadth of the scientific (and pseudo-scientific) community, and the financial incentives for experts involved in major product liability cases, consensus is extremely rare,” he retains an unexplicated confidence in the ability of a so-called technocratic elite to resolve such issues.
It is also worth noting that Freckelton does not engage with our position and Bernstein uncharitably misrepresents us. With respect to Bernstein, nowhere in our discussion do we contend that juries are “more likely to lead to an objectively correct result than is a lone judge’s ruminations” nor that juries should base their verdicts solely on extralegal values or their sense of justice. Rather it has been our intention to argue that the choice of who should adjudicate between competing (expert) opinions is intrinsically political.
in urban project assessment
(an ecofeminist analysis)
The “problem” in urban planning is often depicted as the top-down imposition of an ordered environment by technocratic planners. The “solution” is to achieve more genuine forms of bottom-up community participation in the evaluation of development proposals.236 Based on many years experience in advocacy planning and participatory design, I suggest it is not that simple. The failure of urban management systems to resolve conflict over development proposals and to achieve optimal projects from a social and environmental viewpoint cannot be achieved by greater participation alone. Adding more meaningful forms of community participation onto existing processes, while important, may only mask the need for deeper institutional reforms. Moreover, the main paradigms of participation in development approval processes—technocratic (top-down), liberal (incremental), and radical (bottom-up)—are themselves problematic in some respects.
This chapter sets out some of the ways in which traditional urban management systems (superseded by theory but not in practice) fail to achieve effective and constructive participation. These traditional approaches are then contrasted with a feminist model which reflects recent trends in participatory practice.237 The discussion is limited to the design of structures or processes for participation in project evaluation and approval systems. It does not discuss the many strategies and practices employed by progressive planners at the person-to-person level to ascertain preferences and improve the value of the participatory experience.238 These strategies, while valuable, are slow to change the broader institutional framework of decision making, which can subvert the positive results gained through participation. In my view, we cannot rely on the “trickle-up” effect alone to change institutional systems.
The typology in Table 1 (see pages 116-117) is intended as a communication aid. As with any typology, it is important to note that it is based on ideal types. Most people would have a mix of positions. While Table 1 makes distinctions among the first three models, it is their similarities that are significant here. Traditional models of participation are based on abstractions of society that artificially segregate “experts” from “ordinary citizens” (i.e. polarising them by emphasising differences). In fact, the terms “top-down” and “bottom-up” expose a hierarchical and dualistic social order which belies the myths of pluralism by which participation is generally legitimised.239 That is, there is a misfit between the democratic values espoused and the dualistic conceptual framework through which they are meant to be realised.
Frameworks for decision making that are based on myths about agency or wisdom residing in either professionals or citizens are inherently divisive and place the parties in active and reactive roles. It will be shown that the community-expert dichotomy works to marginalise community interests which, over the long term, must lose to the increasing power of special interests. Based on hierarchical/dualistic thinking, these paradigms of participation may foreclose the kinds of creative, lateral, problem-solving strategies required for ecologically and socially optimal solutions. The resultant linear decision-making processes favour an accountancy, or “bean counting,” approach in decision technologies. It will be suggested that a team-based design approach is needed to recognise and resolve the multi-dimensional environmental and social parameters that development decisions entail. An ecofeminist model would tend to foster collaborative, interdisciplinary, design-based strategies that involve the participants as innovative actors.
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