E LAW - MURDOCH UNIVERSITY ELECTRONIC JOURNAL OF LAW ISSN 1321-8247 Volume 6 Number 4 (December, 1999) Copyright E Law and/or authors File: banks64.txt ftp://cleo.murdoch.edu.au/pub/elaw/issues/v6n4/banks64.txt http://www.murdoch.edu.au/elaw/issues/v6n4/banks64.html ________________________________________________________________________ Trials and Tribulations: Social Science Evidence, Expert Witnesses, The Voice of Authority and the Discourse of Ideology in the Courts NK Sam Banks University of Huddersfield Contents * Introduction * The Need for Expert Evidence * Raising Voices of Authority: The Ascendancy of Science? * Law's Empire-Building * Conclusion * Notes Introduction 1. What do they know? The need for expert, [1] often social science,[2] evidence in criminal law cases is well-known. Indeed, for law to resort to outside assistance is hardly a concept foreign to the shores of England and Wales. As early as 1554 Saunders J said: If matters arise in our law which concern other sciences or faculties we commonly apply for the aid of that science of faculty which it concerns. This is a commendable thing in our law. For thereby it appears that we do not dismiss all other sciences, but our own, but we approve of them and encourage them as things worthy of commendation.[3] 2. Expert evidence is admissible to "furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury."[4] Without this kind of evidence, women accused of murdering their abusive partners, for instance, might appear to be impulsive killers who act upon the slightest provocation or opportunity. Evidence is needed to put these actions into perspective: to address such genuine and natural questions as, "If it was as bad as she says it was, why didn't she leave?" The development and judicial recognition of battered woman syndrome[5] in domestic violence[6] cases has lent important support for and insight into the particular psychological forces at work in these cases. Concurrent with this development has been a growing body of legal literature about domestic violence and battered woman syndrome, and the application and use of this evidence in court. This literature covers a wide expanse of legal territory, from that which measures and examines data concerning the prevalence of this type of violence against women,[7] assesses the availability, utility and implications of criminal law defences open to women who kill their abusive partners,[8] to analyses of the impact of class and culture on domestic violence.[9] 3. I approach the use of evidence of battered woman syndrome from a somewhat different angle. I am interested in the use and interpretation of this kind of expert evidence as it is used in criminal cases, and how this material is received, shaped and transformed from one sort of information into another. In particular, I am curious about how some information is privileged and legitimated by the courts while other information is discounted and rejected, and how "scientific fact" is thus transformed into "legal fact", the only kind acceptable to the court. Using the example of expert evidence in domestic violence cases, in this paper I examine the use of social science evidence in court from a legal and ideological stance, and demonstrate how this information is manipulated and transformed by law and the trial process. This is not an examination or critique of a defence of battered woman syndrome itself, which has been done elsewhere.[10] Rather, my interest is in what the use of expert evidence can tell us about the courts and the ways this information is received and interpreted. 4. While most of the law I refer to is sourced in England and Wales, I draw on the law in other jurisdictions such as Canada, Australia and the United States to assist me in demonstrating law's hegemony. Indeed, it may be observed that local laws are often reflective of wider, more universal principles and ideologies. It is my intention to make a few general points by reference to some specific examples as found in the use of expert evidence in trials. And those points are these: that law and science are engaged in a struggle over what constitutes the truth and who ultimately determines what the truth is; and that in furtherance of its campaign to be the ultimate arbiter of the truth, law employs a number of mechanisms to control both access to and interpretation of information within its own domain. The Need for Expert Evidence 5. A woman who kills the partner she says was abusing her may wish to put forward in her defence evidence that she had been battered and suffered battered woman syndrome. If successful, this evidence may go some distance in explaining her actions and could result in her being acquitted of murder, though possibly convicted of manslaughter on the basis of raising the partial defences of provocation[11] or diminished responsibility.[12] These defences leave a woman with the choice of casting herself as bad ("I was provoked and lashed out") or mad ("I'm mentally unstable"), neither of which may accurately or adequately capture her reasons for her actions. 6. Self-defence, as a justification[13] to the charge of murder, often seems unavailable because the facts and circumstances of the killing may not easily correspond with self-defence as it is traditionally constructed. For example, a woman might kill her abuser in a period of relative calm after a battering rather than during, the timing of which tends against the more traditional view of acting to protect herself or prevent a crime. If the event is over, how can it be said that she is protecting herself? Self-defence as it is traditionally interpreted is more accommodating of actions done in the heat of the moment.[14] Indeed, waiting until the abuser is asleep or has his back turned and is walking away appears calculating, opportunistic and malicious - at first blush the very opposite of self-defence and likely questionable to a trier of fact attempting to understand why the defendant did what she did. 7. Similar difficulties arise with the partial defence of provocation. The scenario outlined above might not fit within the usual provocation template of a "sudden and temporary loss of self-control".[15] This is illustrated by the rejection of provocation in such a "cumulative provocation" situation in R v Duffy, itself concerned with a woman who killed her batterer. The Court of Appeal quoted with approval a statement by Devlin J that "a long course of conduct causing suffering and anxiety are not themselves sufficient to constitute provocation."[16] The Court was further at pains to distinguish the differing motives for the defendant's actions, stating that "circumstances [such as a history of abuse] which induce a desire for revenge are inconsistent with provocation".[17] 8. This idea was echoed in R v Thornton,[18] where Beldam LJ said that "the sudden and temporary loss of control" requirement was "just as, if not more important"[19] in cases of cumulative provocation in order to distinguish between those who killed in the heat of the moment and those who "had time to think and reflect and regain self-control"[20] and then strike the fatal blow(s). 9. Importantly, the strict view in Duffy and Thornton has been tempered by findings in R v Ahluwalia.[21] Here, the Court of Appeal held that in such "slow burn" cases, a delay or "cooling off period" between the battering event and the killing would not necessarily undermine a defence of provocation. Rather, Taylor LJ said, it was for the jury to interpret the meaning of the time between the actions of the victim and the defendant's response.[22] 10. In each of these cases it might be desirable to present expert evidence in order to explain the effects on the woman of living with a battering partner, why she finally killed her abuser and to assist the jury in the interpretation of any delay between the batterings and the final fatal acts of the defendant. The expert evidence will almost certainly be psychiatric evidence. In cases where the defendant pleads diminished responsibility, medical evidence is a necessity[23] and a jury can not return a verdict of manslaughter on the ground of diminished responsibility absent medical evidence of an abnormality of the mind arising from one of the causes specified in the legislation. It is here at the intersection of sense and common sense that expert evidence and domestic violence collide. The evidence is adduced in an attempt to answer the "why didn't she leave?" question and to dispel commonly held assumptions and myths about women and the lives they live with their abusive partners who batter them. These include the beliefs that in fact the beatings were not as bad as she said they were (otherwise she would leave), or that she must have enjoyed them in some masochistic way (otherwise she would leave). 11. Yet the evidence is admissible only if it relates to something that the lay person would not be able to understand unaided. Common sense surely tells someone to leave a situation that is harmful to her - doesn't it? Why is that so difficult to understand? The difficulty with defences such as self-defence and provocation is that they are predicated on masculinist norms of appropriate response to violence - the "reasonable man" or "ordinary person".[24] But to the battered woman, reality as she senses and experiences it may be far different from that of a person who has not lived that particular life. Expert evidence is needed to displace a juror's "common knowledge" or "common sense" where their own "logic, drawn from their own experience, may lead to a wholly incorrect conclusion".[25] 12. Thus, absent an understanding of the dynamics of battered woman syndrome at work in domestic violence, jurors would be unable to comprehend why the defendant stayed in the situation when exit was so obviously logical, necessary and apparently simple (just leave). Of course, the necessity of bringing an expert into court to explain women's experiences says much about just who the law has in mind when it conceptualises an "ordinary person".[26] 13. The use of evidence of battered woman syndrome to shift commonly held myths and misconceptions about the lived experiences of women raises two overlapping areas of investigation. One is the use of expert, scientific information in the courts and how this is interpreted. The other is the interrelationship between law and science, the claims they make to truth and legitimacy, and the struggle for territory between the two. Any claim to objectivity about human behaviour is open to question and challenge: law's such claims are certainly so. These issues will be examined in the next section of this paper. As will be shown, law has its own interpretation of information that is quite independent of any scientific information and will use it for its own purposes. Raising Voices of Authority: The Ascendancy of Science? 14. Science has long laid claim to universal, objective truths, epitomised by the 17th-century writings of Isaac Newton and the triumph of the rationality of science over medieval superstitions. Newton's Philosophiĉ Naturalis Principia Mathematica[27] sought to demonstrate that dispassionate rational thought was a better way to achieve understanding than relying on impressed opinion. He reasoned that nature was more machine than organism, and that natural acts such as the orbit of a planet were calculable rather than outgrowths of mystery or the actions of ancient gods. 15. At the heart of this reasoning was a faith in the human intellect which, properly applied, was capable of seemingly infinite understanding and could expose ideas to experimental verification. That ideas were capable of verification gave rise to the belief that rational, objective, universal truths existed and need only be "found" or discerned by the superior intellect of reason that separated the subject from the object.[28] Therefore, the use of such reason, in combination with a researcher unhindered by his or her own beliefs and assumptions, meant that, first, a "correct" or "right" answer existed, and second, that it was possible to find the "right" or "correct" answer to any given scientific question. Science was thus endowed with the mantle of objectivity, exactness, consensus and neutrality.[29] 16. This, then, gives life to the compelling image of a scientific "expert", a person skilled in rational scientific methodology and endowed with authority,[30] coolly and dispassionately hypothesising, testing, verifying or refuting theories and giving legitimacy and validity to particular scientific "facts".[31] These thus become science's holy grail of "the truth", and science was seen as representing a superior form of knowledge. 17. Yet this confidence in the rationality of science and the legitimacy of "the truth" obscures important questions about science's claims to neutrality and objectivity. For one thing, the sciences - including social sciences - are as fragmented and pluralistic as law or any other field of intellectual inquiry and thus any claims to consensus of opinion ought to be received with some degree of scepticism. This fragmentation and lack of consensus is readily apparent in trials that feature a so-called "battle of the experts", where two opposing expert witnesses contradict each others' findings to varying degrees.[32] 18. Interestingly, the adversarial process itself may also serve to undermine any consensus that does exist within the sciences: Adversary procedures are indeed a wonderful instrument for deconstructing "facts", for exposing the contingencies and hidden assumptions that underlie scientific claims, and thereby preventing uncritical acceptance of alleged truths. The adversary process is much less effective, however, in reconstructing the communally held beliefs that reasonably pass for scientific truth. Cross-examination, in particular, privileges skepticism over consensus. It skews the picture of science that is presented to the legal fact finder and creates an impression of conflict even where little or no disagreement exists in practice.[33] 19. Moreover, scientific "facts" are themselves the product of social construction. In a direct refutation of Newton's belief in the rationality and objectivity of science, the facts that scientists produce and present to the world are not simply objective observations of the mysteries of nature. Rather, scientific "facts" are produced by human agency through the institutions and processes of science, and hence they invariably contain a social component...Observations achieve the status of 'facts' only if they are produced in accordance with prior agreements about the rightness of particular theories, experimental methods, instrumentation techniques, validation procedures, review processes, and the like. These agreements, in turn, are socially derived through continual negotiation and renegotiation among relevant bodies of scientists.[34] 20. In other words, in science, as with so many things, all is not as it seems, and truth is contingent on certain factors such as experimental or interpretive conventions. Judges or jurors, as the "finders" of fact, become participants in the social construction of science, and help shape an image of reality that is some distance removed from the neutrality and objectivity that science claims. 21. The relatively rapid rise and decline of absolute faith in the reliability of DNA evidence provides a good example of the contingency of scientific truth: Eight years ago [in 1989], it was celebrated as 'the single greatest advance in the 'search for the truth,' and the goal of convicting the guilty and acquitting the innocent, since the advent of cross-examination. Six years ago, it was endorsed by the U.S. Congress's Office of Technology Assessment. Four years ago, it received a mixed blessing from the National Academy of Sciences. Three years ago, the Arizona Supreme Court held that it was erroneously admitted into evidence in a brutal child sex-murder case. Last year, it was the centerpiece of the notorious murder case against O.J. Simpson. This year, the National Academy issued a second report on it, and the Arizona Supreme Court revisited it.[35] 22. Initially, DNA evidence of "genetic fingerprints" seemed conclusive evidence of identity, with the chances of two unrelated individuals having the same multilocus genotype ranging from hundreds of thousands to several million to one. Thus, this particular piece of evidence appeared to be a powerful weapon in the identification armoury and readily seemed to provide proof of identity beyond a reasonable doubt.[36] 23. But the retreat from unbounded faith in DNA evidence in a reasonably short period of time has been dramatic. One of the controversies and scientific disputes about this evidence focuses on the method of testing the sample. Different DNA testing laboratories use different methods for sample testing, with the implication that different methods may yield different results and conclusions. Another dispute centres on the procedure for calculating the frequency with which matching profiles are present in a random sample of the general population, known as the "random match probability". Again, differing methods of measuring and interpreting the resulting data may lead to the belief that DNA evidence is far less conclusive than originally believed.[37] The impenetrable fortress that this sort of evidence was believed to be appeared to leave open many windows for error to enter. 24. Despite controversy in methods of testing and interpretation of results, science still maintains its aura of authority as oracle of "the truth" with respect to certain types of information and evidence. Disputes over the interpretation of scientific evidence do little to challenge science's overall superior claim to certain information. Indeed, if anything, they tend to enhance the claim by science that only science can properly deal with such difficult matters. Disputes, then, are disputes about meaning, not underlying fact. 25. There remains a dogged belief in the rationality and objectivity of science and the existence of scientific facts based on indisputable truths. In part this is achieved by science establishing dominion over certain types of information and holding itself out as the only true source of verity. Science makes the claim that its specialised knowledge gives it privileged access to certain facts. This is assisted by law, which permits scientific expert witnesses to testify precisely because law acknowledges that science's expertise gives it access to privileged facts and respects its knowledge of autonomous disciplines beyond law's ken. Law thus admits science into its own realm for the specific purpose of providing information not otherwise accessible. 26. However, at the same time that law recognises science's authority, law is also careful to limit the encroachment of science into law's domain. Law achieves this through rules specifically designed to address expert evidence, its admission and use, and by the selective interpretation of the actual evidence presented. In so doing law asserts its own claims to authority and legitimacy and attempts to establish itself as the true oracle. Thus, at the heart of the relationship between law and science is a border dispute between the two disciplines in a struggle over the territory of knowledge and information. Law's Empire-Building 27. Law uses a variety of mechanisms to control access to its own domain. Then, once information is permitted within law's territory, law also manipulates that information to its own ends. At one level, access is controlled by the rules of evidence governing the admission of certain information: information must pass certain legal muster before it can be "properly" admitted into evidence. At another level, law maintains its hegemony over knowledge and the use of information through rules of interpretation designed to make law appear to be a neutral, objective oracle or diviner of "the truth". The expert evidence rule as discussed earlier is but one of the ways in which law controls the gates to its kingdom. Firstly, expert evidence cannot come to court under its own power - it must wait to be invited. That is, expert evidence may be admitted only where the subject of the inquiry raises issues calling for expertise or that is beyond the knowledge of the judge or jury. Evidence from expert witnesses must of course pass the legal hurdles of appropriate expertise[38] and relevance.[39] The expert evidence rule is itself an exception to the opinion evidence rule, which states that in general, opinion evidence is inadmissible:[40] a witness may only testify to facts he or she personally actually perceived, and not to any inferences drawn from those facts.[41] Once admitted, the weight accorded to expert evidence is entirely a matter for the finder of fact, which can, as with any kind of evidence, accept all of it, some of it or none of it. 28. This latter point emphasises yet another of law's controlling mechanisms. Witness credibility and reliability is a matter for the court to decide: the finder of fact will determine whether, and to what extent, a witness's testimony is to be believed and relied upon. Credibility and reliability sometimes hangs on issues that have little or nothing to do with actual law and everything to do with appearance. In this sense, the expert is both witness and an exhibit, to be assessed and judged. In an account of her experiences as an expert witness in Canadian courts and tribunals, Professor Valverde describes the dilemma she faced in literally appearing as an expert in gay rights cases: One of the most humiliating moments in my career as an expert came when I caught myself changing my outfit over and over again before a human rights hearing, thinking all the while about how best to satisfy law's desire. Should I wear a dress? No, not academic enough. Should I wear this jacket? No, too masculine. Did I own any items of clothing that were sufficiently authoritative but still non-masculine? As I critically evaluated my wardrobe I realized that I was acting like a rape victim who worries that the clothes she wears to court will speak louder than her words. I then realized that I was not just an expert; I was also an exhibit. [42] 29. Appearance - and particularly clothing - retains a curious hold over credibility in ways that have nothing to do with the veracity of a witness's testimony. One judge's advice to expert witnesses appearing in court makes this point explicitly: Obviously, a neat, poised appearance and courteous disposition will also go far towards indicating credibility as a witness? Conversely, a sloppy appearance or loud, disrespectful behavior will be likely to produce an unfavorable impression upon the court. When this occurs, one's testimony may not be lent as much credence as it might merit, which result might ultimately be harmful to the individuals involved in contested cases where there is conflicting evident.[43] 30. As these passages indicate, credibility is enhanced if one "looks professional". But why should this be a factor? Surely whatever a witness wears has nothing to with the truth of their testimony or evidence. Rather, dress is imbued with all sorts of signifiers indicating a sometimes bizarre combination of authority, responsibility and deference, as illustrated Professor Valverde's comments above, manifested as "respect for the court". [44] Thus, a witness who declined to show the proper respect for the court would not be taken as seriously as one who did. This is yet another example of law exerting its dominion over those who appear before it and manipulating behaviour to its own ends to ensure that it is taken seriously. 31. Expert evidence in criminal cases[45] may be further constrained by the ultimate issue rule.[46] This rule seeks to prevent an expert witness from expressing his or her opinion on an ultimate issue - that is, the very issue which the court is attempting to determine. Thus, a witness may give testimony as to whether, given certain variables such as body weight and units of alcohol consumed over a specified time, a driver would have more than the legal limit of alcohol in her blood while driving. However, the issue of whether in fact the driver was driving while under the influence remains a question for the judge or jury. At the heart of this rule is the danger that the witness may usurp the function of the factfinder, especially in jury trials: "witnesses are called to testify, not to decide the case."[47] 32. There is considerable criticism of the ultimate issue rule,[48] not the least that fears that the expert will usurp the jury's job are undermined by the fact that a jury is free to reject any part of the expert's evidence, and that conflicting expert testimony points to greater uncertainty rather than confidence in the expert's testimony.[49] In any event, the rule is inconsistently applied and in large part ignored.[50] Lord Parker CJ observed that [t]hose who practice in the criminal courts see every day cases of experts being called on the question of diminished responsibility, and although technically the final question 'Do you think he was suffering from diminished responsibility?' is strictly inadmissible, it is allowed time and time again without any objection.[51] 33. There is an additional fear that the expert's evidence may play an unduly dominant part in the jury's decision-making because of the "aura of science" lent to the evidence and by the witness's status as "expert". Indeed, the very presence in court of a witness labelled an "expert" shrouds them with an authority and credibility which they may not necessarily possess but that the jury may believe she may have. On this point, Lawton LJ in R v Turner said of evidence that: In such a case if it is given dressed up in scientific jargon it may make judgment more difficult. The fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves; but there is a danger that they may think it does.[52] [emphasis added] 34. In other words, law retains the ultimate power to determine what to believe, irrespective of who says it. Law has established these rules of evidence in order to defend and maintain its own claims as the ultimate arbiter of truth. Moreover, law makes the rules by which law plays. Thus, scientific "facts" are inadmissible unless they are beyond the understanding of the finder of fact, and are presented by an "expert" appropriately qualified and accepted by the court and consist of accepted scientific information and satisfy the requirement of relevance. 35. The attempt to limit expert witnesses to presentations of fact alone and the ultimate issue rule goes some way to demonstrate law's tenacious grip on what it considers its own property. The danger to which Lord Justice Lawton refers in the quote from Turner indicates law's fear that expert witnesses may be seen to wield too much power and influence within law's own domain. Reminders to juries in summations that they need not accept any of the expert's findings further reinforces the idea that law has the last say on whether the evidence is believed or not. It remains the case that the "nation's justice system determines factual issues that cannot be settled in any other forum."[53] 36. In addition to rules of evidence designed to limit the intrusion of other forms of information into its territory, law also employs its own rules for the interpretation of information in an effort to cast itself as the true oracle of the truth. These rules give law the appearance of rationality, logic, neutrality and objectivity, thus enhancing law's claims as sole arbiter of "the truth". Law's claim to objectivity is readily seen in the interpretive rules that guide a judge through the legal use of language and information in court: the search for "the truth". The process by which the legal interpreter searches for the truth is carefully constructed to appear logical, rational and value free. Moreover, it is seen to make sense in its entirety: [54] rational rules or principles are applied to a given situation to lead to or indeed even compel a particular result, adding to the body of precedent that compels similar results in similar situations. The rules of interpretation provide an objective standard to which the interpreter must adhere, and provide disciplining rules which "specify the relevance and weight to be assigned to the material...as well as [provide rules] that define basic concepts and that establish the procedural circumstances under which interpretation must occur."[55] 37. These hidden structural principles are "axioms of the logical structure of the legal system. Their acceptance is "necessary...for the (optimum) coherence of a legal system."[56] These rules, then, operate on much the same principles as the rules of grammar, which lead an interpreter along various formal, well-defined and well-known paths to reach the "correct" answer - the objective truth. These interpretive rules are given authority and legitimacy through an interpretive commonality which "recognizes and adheres to the disciplining rules used by the interpreter and that is defined by its recognition of those rules."[57] 38. Thus, while recognising that determining the meaning of a given rule allows for some subjective personal elements, a judge's creativity is constrained within the framework of interpretation. Authority and legitimacy are further enhanced by an appellate process which focuses on the application or misapplication of the rules themselves rather than on the interpreter, maintaining the integrity of the interpretive process itself. Thus, the quest for truth, in law, becomes a standardised search using formalised rules in a formalised way which lead to a particular answer - the legal truth. Law maintains its claim as sole adjudicator of the truth by controlling both entry onto the field of play and the rules by which the game is played. As well, once admission into law's domain is gained, law manipulates information for its own purposes, again to establish, assert and maintain its sovereignty. 39. Law's use of social science evidence, for example, demonstrates that simply because information is recognised in one field does not give it automatic entrée into or acceptance by law. For instance, in determining whether two gay men could form a family, the Federal Court of Appeal in Canada stated that while "sociologically speaking" the men might constitute "a sort of family", legally speaking they were not.[58] 40. Here, it is clear that law trumps social science. Law retains superiority over the "truth" of the statement that gay men can be "family". Expert evidence itself is manipulated in court to sometimes astonishing degrees, to the extent that it bears little resemblance to the evidence as initially admitted. The video evidence in the first so-called Rodney King trial[59] in 1992 in the United States provides an excellent example of how expert evidence can be turned around upon itself in a battle of interpretive authority. 41. A witness videotaped four Los Angeles police officers apparently beating Mr King after an automobile incident. These officers were charged with excessive use of force. The videotape became the central piece of evidence used in the trial by both the prosecution and defence, each of whom called "use of force" expert witnesses in an attempt to put the video evidence into "proper" context for the jury. At first glance, the videotape seemed to speak for itself and demonstrated the officers' guilt beyond a reasonable doubt. To buttress this, the prosecution produced as an expert witness in the use of force the very man who wrote the training manual outlining the appropriate use of force. This expert stated that the force used in the video was excessive and beyond the bounds of that set out in the training manual. However, a defence expert witness was brought in to deconstruct the videotape and show the judge and jury what he, as an expert, could "see" that the judge and jury could not. Played at normal speed by the prosecution, the tape depicted what appeared to be the savage beating of one unarmed man by four officers armed with police batons. In the hands of the defence expert witness, the evidence changed dramatically. Slowed to single frame-by-frame viewing, the expert manipulated the evidence to demonstrate that the officers were not using excessive force but were instead "engaging in a rational form of professional practice with discernible periods of measured action, assessment and response."[60] 42. The defence depicts Rodney King as a dangerous black man, high on PCP, who is a threat to the officers. There is little doubt that the defense constructs this specific narrative by drawing upon inflammatory stereotypes and racist cultural ideologies. The defense masks these invocations of standard views on race by depicting the officers as simply responding to the obviously 'aggressive' moves of Rodney King with carefully reasoned and institutionally prescribed means. In this way, the beating is professionalized and moved into the realm of science, thus allowing the use of experts who can comment upon the defendants' behavior...Mr King thus becomes the one in control of the encounter because the officers were only responding to his actions with the methods appropriate to their training and profession.[61] Here, the very evidence that appeared so damning initially is manipulated to become the defence's best evidence of innocence. [62] This was further enhanced by a defence witness able to provide a "streetwise" interpretation of events directly at odds with the prosecution's use of force expert, who was depicted as having theoretical and academic rather than (the more relevant and useful) practical knowledge. 43. Here a particular interpretive authority is employed to manipulate the same facts into two utterly different stories, shifting the emphasis from seemingly objective facts to the production of facts. But this production of fact is only possible once the facts have been introduced and formulated within the framework of accepted legal practice. That is, these facts cannot stand on their own, and law not only accepts the facts on its own terms and ensures that the facts conform to law's rules, law keeps the final say over what they mean. The facts must first gain admittance to the legal playing field by way of relevance and then are subject to law's own rules of interpretation, filtered through the lens of an acceptable expert and ultimately pronounced upon - as "truth" or not - by the court as finder of fact, whose job it is to determine veracity. 44. Thus, law retains ultimate dominion over what constitutes "the truth". Law not only maintains authority over its own territory, it only grudgingly concedes expansion of its domain. New and "radical" ideas - such as "gay families" and a "battered woman syndrome" - are permitted only within limited terms within limited contexts within limited rules designed to constrain new growth and at the same time ensure law's hegemony. In this way, attempts to change the law end up simply reinforcing it instead. 45. For example, in conceding spousal benefits to same-sex partners, the British Columbia Supreme Court ensured the continuing dominance of heterosexist familial ideology by requiring same-sex couples to cast themselves as closely as possible to the traditional heterosexual family model in order to obtain medical benefits. This places equality-seeking same-sex couples in an impossible catch-22 situation of either conforming to a heterosexual spousal model and thus reinforcing the heterosexual framework, or deliberately choosing not to cast themselves in the traditional heterosexual spousal framework, thus not reinforcing that model but possibly imperilling a spousal benefit claim. [63] Conclusion 46. "Battered woman syndrome" presents cogent evidence of law's control, manipulation and narcissism.[64] As both evidence and ideology, "battered woman syndrome" represents many of law's hegemonic and narcissistic tendencies: medicalised to admit it, syndromised to accept it, legalised to explain it. All in order to authorise it. 47. Law makes a number of demands of evidence before it may be granted an audience. In order to gain admittance to law's empire, evidence of battered woman syndrome must first be transformed into a context that law recognises. In this instance, the evidence becomes expert evidence, comprising something the finder of fact would be unable to understand unaided. Here, "common sense" assumptions ("Why didn't she leave?") and myths ("It couldn't have been as bad as she said it was," or, "She liked it.") are countered with expert, psychiatric, scientific evidence of the realities of battered woman syndrome. Additionally, this expert evidence must consist of well established, scientifically-accepted procedures or fields of expertise, possessed of both relevance and reliability. Thus medicalised and syndromised, the evidence is proffered to law, but only then within the strict confines of legally-acceptable material. 48. Law demands that evidence satisfy its own, legally-articulated requirements of necessity, admissibility, weight, credibility and reliability, and further filters evidence through the ultimate issue rule and rules of interpretation. Only when it is satisfied that the evidence has met law's own requirements and rules will law then pronounce upon the evidence as finder of fact, ultimately authorising it as "truth" where it sees fit. In so doing, law retains its authority over science, or indeed any other field of inquiry, as the ultimate diviner of the truth. Thus, to return to the comments of Saunders J in 1554, while law does approve of and encourage outside assistance, it does so only on law's own terms and reserves for itself the power to decide what that outside assistance ultimately means: to ask of experts, derisively, "What do they know?" Notes [1] The question of who is an expert is a matter for the trial judge to decide. The proposed witness must have specialised skill or knowledge through study, training or experience such as to render him or her an expert in a particular area or field of study (though this knowledge need not have been acquired professionally: R v Silverlock [1894] 2 QB 766, in which a solicitor who had studied handwriting for ten years, mostly as an amateur, was treated as an expert). As well, the proposed field of expertise must be sufficiently well-established to pass the ordinary tests of relevance and reliability. If these are met, then the expert evidence can be admitted and its assessment is left to the finder of fact as a question of weight. See, for instance, Bingham LJ's comments in R v Robb (1991) 93 Cr. App. 161 at 164-165: The old-established, academically-based sciences such as medicine, geology or metallurgy, and the established professions such as architecture, quantity surveying or engineering, present no problem. The field will be regarded as one in which expertise may exist and any properly qualified member will be accepted without question as an expert. Expert evidence is not, however, limited to these core areas. Expert evidence of fingerprints, handwriting and accident reconstruction is regularly given. Opinions may be given of the market value of land, ships, pictures or rights. Expert opinions may be given of the quality of commodities, or on the literary, artistic, scientific or other merit of works alleged to be obscene...Some of these fields are far removed from anything which could be called a formal scientific discipline. Yet while receiving this evidence the courts would not accept the evidence of an astrologer, a soothsayer, a witch-doctor or an amateur psychologist...[T]he essential questions are whether study and experience will give a witness's opinion an authority which the opinion of one not so qualified will lack, and (if so) whether the witness is [skilled and has the requisite knowledge]...If these conditions are met the evidence of the witness is in law admissible, although the weight to be attached to his opinion must of course be assessed by the tribunal of fact. [2] J Acker has defined "social science research evidence" as information derived from the traditional methods of science - through systematic observation and objective measurement, allowing for replication and empirical verification - and within the subject purview of the social sciences, the study of behavioural events relevant to individuals and social relations, including psychology, sociology, psychiatry, economics, political science and criminal justice, but not history. J Acker "Thirty Years of Social Science in Supreme Court Criminal Cases" (1990) 12 Law & Policy 1 at 4. [3] Buckley v Rice-Thomas (1554) 1 Plowd 118 at 124. [4] Per Lawton LJ in R v Turner [1975] QB 834 at 841, cited with approval by Lord Wilberforce in DPP v Jordan [1977] ADC 699 at 718. See also, generally, I Dennis The Law of Evidence (London: Sweet & Maxwell, 1999) at pp 654 - 673, A Keane The Modern Law of Evidence (4th edition) (London: Butterworths, 1996) pp 453 - 475 and C Tapper Cross and Tapper on Evidence (8th edition) (London: Butterworths, 1995) pp 543 - 562. For a discussion of this particular aspect of the use and limits of expert evidence in an Australian context, see, for example, Farrell v The Queen [1998] HCA 50 at paragraphs 29 and 91 - 95. [5] The term "battered woman syndrome" is used to describe a pattern of physical and psychological abuse inflicted upon a woman by her husband or partner. A battered woman is defined as [a] woman who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without any concern for her rights. Battered women include wives or women in any form of intimate relationships with men. Furthermore, in order to be classified as a battered woman, the couple must go through the battering cycle at least twice. Any woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman. L Walker The Battered Woman (New York: Harper and Row, 1979) at xv. Battered woman syndrome has been critiqued as syndromising and psychologising women and for its emphasis on 'learned helplessness', which is the idea that abused women develop a deficiency in perceiving exit when it is actually available. As Katherine O'Donovan has observed, "the idea of 'learned helplessness'...does not fully explain how the accused comes to act, with fatal results for the abuser": K O'Donovan "Law's Knowledge: The Judge, The Expert, The Battered Woman and Her Syndrome" (1993) 20 Journal of Law and Society 427 at 431. A further critique of the "syndrome" and "victim label" is that it implies that it is the women's reaction to the violence visited upon them and not the violence itself that is the problem, and that it does not reflect the complexity of the women's own experience nor their own resilience in the face of that violence: M Mahoney "Legal Images" (1991) 90 Michigan Law Review 1 at 15. See also E Sheehy, J Stubbs and J Tolmie "Defending Battered Women on Trial: The Battered Women Syndrome and its Limitations" (1992) 16 Criminal Law Journal 369 and C Wells "Battered Woman syndrome and defences to homicide: where now?" (1994) 14 Legal Studies 266. [6] The term "domestic violence" as it is used here refers to physical violence and emotional, psychological and sexual abuse of women in the home by their (usually male) partners. The physical abuse ranges across slaps, pushes and punches to stabbing and shooting. This term also accommodates abuse of women by their partners outside the home - violence, shouting and threatening in a public place, for instance. This term thus encompasses abuse wherever it is experienced. Domestic violence is not restricted to heterosexual partners and can be experienced by gay male or lesbian partners, and can be violence against men by female partners. However, the preponderance of victims of domestic violence are women: C Hemmens, K Strom & E Schlegel "Gender Bias in the Courts: A Review of the Literature" (1998) 35 (1) Sociological Imagination 22 at 24, where they state: Ninety-eight percent of domestic violence victims are women. Nationwide, 28% of female homicide victims are killed by former husbands or boyfriends, whereas only 5% of male homicide victims are killed by former wives of girlfriends. Domestic violence is the number one cause of physical injury to women in the United States (citations omitted). See also M Tuck Domestic Violence: Report of a National Inter-agency Working Party (London: Victim Support, 1994), L Smith Domestic Violence: An Overview of the Literature (London: Home Office Research and Planning Unit, 1989). Domestic violence is also about the gendered nature of power: who has it, who exercises it, and upon whom is it exercised. Traditionally, the official criminal justice agencies of law enforcement and courts were reluctant to intervene in what was considered a couple's - and more particularly the man's - private life, thus maintaining a strict separation of the public and private spheres of a person's life. For accounts of the history of domestic violence, see, generally, M Fineman & R Mykitiuk (eds.) The Public Nature of Private Violence: The Discovery of Domestic Abuse (New York: Routledge, 1994), R Dobash and R Dobash Violence Against Wives: A Case Against the Patriarchy (New York: Free Press, 1979) and W DeKeseredy & R Hinch Woman Abuse: Sociological Perspectives (Toronto: Thompson Educational Publishing Inc, 1991). [7] See, for example, K Rodgers "Wife Assault: The Findings of a National Survey" (1994) 14 (9: March) Juristat Service Bulletin, Ottawa, Canadian Centre for Justice Statistics, M Fineman & R Mykitiuk (eds.) above note 6, I Arias, D Dwyer "Response to the Victims of Domestic Violence: Analysis and Implications of the British Experience" (1995) October Crime and Delinquency 527, R Davis & B Smith "Domestic Violence Reforms: Empty Promises or Fulfilled Expectations?" (1995) 41 (4) Crime & Delinquency 541, M Samios & K O'Leary "Prevalence and correlates of physical aggression during courtship" (1987) 2 Journal of Interpersonal Violence 82, L Stalans & A Lurigio "Public Preferences for the Court's Handling of Domestic Violence Situations" (1995) 41 (4) Crime & Delinquency 399 and J Hanmer, S Griffiths & D Jerwood "Arresting Evidence: Domestic Violence and Repeat Victimisation" (London: Home Office Research, Development and Statistics Directorate, 1999). [8] M Donnelly "Battered Women who kill and the Criminal Law Defences" (1993) 3 (2) Irish Criminal Law Journal 161, K O'Donovan "Defences for Battered Women Who Kill" (1991) 18 Journal of Law and Society 219, D Nicolson & R Sanghvi "Battered Women and Provocation: The Implications of R v Ahluwalia" [1993] Criminal Law Review 728, W Chan "A Feminist Critique of Self-Defense and Provocation in Battered Women's Cases in England and Wales" (1994) 6 (1) Women & Criminal Justice 39 and C Wells "Battered Woman syndrome and defences to homicide: where now?" above note 5. [9] For example, see J McKendry "The Class Politics of Domestic Violence" (1997) 24 (3) Journal of Sociology and Social Welfare 135, J Stubbs & J Tolmie "Race, Gender and the Battered Woman Syndrome" (1995) 8 Canadian Journal of Women and the Law 122, E Lupri, E Grandin & M Brinkerhoff " Socioeconomic status and male violence in the Canadian home: a reexamination" (1994) 19 Canadian Journal of Sociology 47, J Krane "Violence Against Women in Intimate Relations: Insights from Cross Cultural Analyses" (1996) 33 Transcultural Psychiatric Research Review 435, J Cribb & R Barnett "Being Bashed: Western Samoan Women's Response to Domestic Violence in Western Samoa and New Zealand" (1999) 6 (1) Gender, Place and Culture 49 and D Counts, J Brown & J Campbell (eds.) Sanctions and Sanctuary: cultural perspectives on the beating of wives (Boulder: Westview Press, 1992). [10] See, for instance, E Sheehy, J Stubbs & J Tolmie above note 5, C Wells "Battered Woman syndrome and defences to homicide: where now?" above note 5, P Easteal "Battered Woman Syndrome Misunderstood" (1992) 3 Issues in Criminal Justice 356, D Faigman "The Battered Woman Syndrome and Self-Defence: A Legal and Empirical Dissent" (1986) 72 Virginia Law Review 619, D Martinson, M MacCrimmon, I Grant & C Boyle "A Forum on Lavallee v R: Women and Self-Defence" (1991) 25 UBC Law Review 23, I Leader-Elliot "Battered but not Beaten: Women who Kill in Self-Defence" (1993) 15 Sydney Law Review 403, D Nicolson & R Sanghvi "Battered Women and Provocation: The Implications of R v Ahluwalia" above note 8, M Griffith "Battered Woman Syndrome: A Tool for Batterers?" (1995) 64 Fordham Law Review 141 and A Blowers and B Bjerregaard "The Admissibility of Expert Testimony on the Battered Woman Syndrome in Homicide Cases" (1994) 22 Journal of Psychiatry & Law 527. [11] Homicide Act 1957, s. 3: Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or things said or by both together ) to lose his [sic] self-control, the question whether the provocation was enough to make a reasonable man [sic] do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything done and said according to the effect which, in their opinion, it would have on a reasonable man. [12] Homicide Act 1957, s. 2: Where a person kills or is party to the killing of another, he [sic] shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing. [13] Self-defence is a common law justification, rather than a defence in strict terms, that has the effect of negativing an element of the offence so as to render it lawful. It overlaps with s. 3 of the Criminal Law Act 1967, which provides: (1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large. (2) Subsection (1) above shall replace the rules of common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose. For arguments that self-defence more adequately reflects the facts and circumstances under which battered women kill their abusive partners, see A McColgan "In Defence of Battered Women who Kill" (1993) [13] Oxford Journal of Legal Studies 508 and C Wells "Battered Woman syndrome and defences to homicide: where now?" above note 5. [14] A classic self-defence scenario involves two men in a bar room brawl, a situation in which the danger is imminent, the attack is underway and the two combatants do not have a history of violence with each other. This scenario is laden with generalisations that may be entirely inappropriate to women in battering situations: He stands and faces his adversary, meeting fists with fists. He isn't frightened or provoked to violence by mere threats; he doesn't use a weapon unless one is being used against him; and he doesn't indulge himself in cowardly behaviour such as lying in ambush or sneaking up on an enemy unawares. C Gillespie Justifiable Homicide: Battered Women, Self-Defense and the Law (Columbus: Ohio State University Press, 1989) at 99. [15] R. v Duffy [1949] 1 All ER 932 at 932. [16] Ibid. [17] Ibid. [18] R v Thornton [1992] 1 All ER 306. [19] Ibid. at 314. [20] Ibid. at 313 - 314. [21] R v Ahluwalia [1992] 4 All ER 889. [22] Taylor LJ stated that We accept that the subjective element in the defence of provocation would not as a matter of law be negatived simply because of the delayed reaction in such cases, provided that there was at the time of the killing 'a sudden and temporary loss of self-control' caused by the alleged provocation. However, the longer the delay and the stronger the evidence of deliberation on the part of the defendant, the more likely it will be that the prosecution will negative provocation. Ibid. at 896. [23] R v Dix (1981) 74 Cr App R 306. [24] Gillespie above note 14 and K O'Donovan "Law's Knowledge: The Judge, The Expert, The Battered Woman and Her Syndrome" above note 5 at 428 - 429. The inability of the reasonable man paradigm to accommodate battered women is nicely set out in Madam Justice Wilson's reasons for judgment in R v Lavallee [1990] 1 SCR 852. This landmark Canadian case admitted expert evidence of battered woman syndrome to support a plea of self-defence to murder where a woman had killed her abusive partner. Wilson J wrote: If it strains credulity to imagine what the 'ordinary man' would do in the position of a battered spouse, it is probably because men do not typically find themselves in that situation. Some women do, however. The definition of what is reasonable must be adapted to circumstances which are, by and large, foreign to the world inhabited by the hypothetical 'reasonable man'. R v Lavallee ibid. at 874. For additional analysis of Justice Wilson's commentary on this point, see M MacCrimmon "A Forum on Lavallee v R: Women and Self-Defence" above note 10 at 42. [25] State v Kelly 478 A 2d 364 (1984) at 378. On the problematising of the "common" in "common sense", see M MacCrimmon "Developments in the Law of Evidence" (1990) 2 Supreme Court Law Review (2d) 385 at 386, where she says that the law of evidence assumes that "understanding human behaviour is merely a matter of common sense." Common based upon whose reality and knowledge? See also A Worral, who suggests that "common" sense is "'common' because it is presumed to be simple, consensual and universally applicable" and "'sense' because its truth can supposedly be grasped or 'sensed' without being articulated or rationally justified": Offending Women: Female Lawbreakers in the Criminal Justice System (London: Routledge, 1990) at 18. [26] This point is raised in several of the analyses of the "battered woman syndrome" defence cited in notes 5 and 10 above. See also I Grant "The 'Syndromization' of Women's Experience" in "A Forum on Lavallee v R: Women and Self-Defence" above note 10 at 51. [27] I Newton Philosophiĉ Naturalis Principia Mathematica (Londini: Jussu Societatis Regiĉ ac Typis Josephi Streater, 1687). [28] For a fuller analysis of this "flight to objectivity", see S Bardo The Flight to Objectivity: Essays on Cartesiansim and Culture (Albany: State University of New York Press, 1987). [29] T Ward "Law, Common Sense and the Authority of Science: Expert Witnesses and Criminal Insanity in England, ca. 1840 - 1940" (1997) 6 (3) Social and Legal Studies 343 at 345. [30] Ibid. at 348. See also M Valverde "Social Facticity and the Law: A Social Expert's Eyewitness Account of Law" (1996) 5 (2) Social and Legal Studies 201 at 204 - 205. [31] "Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified": M Green "Expert Witnesses and sufficiency of evidence in toxic substances litigation: The legacy of Agent Orange and Bendectin litigation" (1992) 86 NW U L Rev 643 At 645. See also C Hempel Philosophy of Natural Science (Englewood Cliffs: Prentice-Hall, 1966) at 49: "statements constituting a scientific explanation must be capable of empirical test" and K Popper Conjectures and Refutations: The Growth of Scientific Knowledge (5th ed.) (London: Routledge, 1989) at 37: "the criterion of the scientific status of a theory is its falsibility, or refutability, or testability". [32] The fragmented aspect of the sciences is readily seen in the range and variety of expert witnesses on offer to practising lawyers. As a member of the British Columbia bar, I frequently receive mass mailings advertising the services of experts in a bewildering array of scientific fields. See also C Pamplin (ed.) UK Register of Expert Witnesses (5th ed.) (Chorley: JS Publications, 1992) , which covers over 800 different subjects. See also S Golding "Mental Health Professionals and the Courts: The Ethics of Expertise" (1990) 13 International Journal of Law and Psychiatry 281 at 281, where he states that "[w]hile the forensic mental health profession is a specialty, it is a mistake not to acknowledge the diversity of particular roles and to recognize that expertise within the specialty does not translate to expertise across the domain of roles." [33] S Janoff "What judges should know about the sociology of science" (1993) 77 Judicature 77 at 80. [34] Ibid. at 77 - 78. See also B Latour & S Woolgar Laboratory Life: The Construction of Scientific Facts (2nd ed.) Princeton: Princeton University Press, 1986). [35] D Kaye "Bible Reading: DNA Evidence in Arizona (1997) 28 (4) Arizona State Law Journal 1035 at 1035. [36] The basis for DNA testing is the well-accepted proposition that, except for identical twins, each person has a unique overall genetic code. Because of limitations in the available technology, testing can only be performed on very limited segments of the entire DNA sequence. Since 99.9% of the DNA sequence in any two people is identical, accurate analysis is vital to determine whether there is a match of the remaining 0.1% of the DNA sequence of the sample compared. [37] For a general review of some of the difficulties in interpreting data generated from DNA testing, see D Kaye "DNA Evidence: Probability, Population Genetics, and the Courts" (1993) 7 Harvard Journal of Law and Technology 101, A Jeffreys et al "Individual-Specific 'Fingerprints' of Human DNA" (1985) 316 Nature 76, B Devlin & N Risch "Ethnic Differentiation at VNTR Loci, with Specific Reference to Forensic Applications" (1992) 51 Am. J Human Genetics 534, and N Risch & B Devlin "On the Probability of Matching DNA Fingerprints" (1992) 255 Science 717. [38] For the test for appropriate expertise, see note 1 above. [39] A working definition of relevance is provided in DPP v Kilbourne [1973] AC 729 at 756: "Evidence is relevant if it is logically probative or disprobative of some matter which requires proof...evidence which makes the matter which requires proof more or less probable." [40] See, for example, Sherrard v Jacob [1965] NI 151 at 157 - 158 CA. [41] For example, a witness may testify that she saw a defendant with some property [the fact of possession], but may not testify that she thought the defendant was dishonest [the inference of theft]. [42] M Valverde "Social Facticity and the Law" above note 30 at 213. [43] S Gothard "Rules of Testimony and Evidence for Social Workers Who Appear as Expert Witnesses in Courts of Law" (1989) 3 (3) Journal of Independent Social Work 7 at 9. [44] Anxiety over appearance is not limited to witnesses. At the law firm at which I worked we regularly counselled our clients about "appropriate" attire for their appearance in court (usually as defendants), and as an articled student who made court appearances almost every day I knew better than to show up to court looking scruffy. There were some wonderful stories - possibly apocryphal - about the court exercising its power over articled students and junior lawyers by refusing to hear them on the basis that they were not "properly attired". One story involved a notoriously difficult judge who declined to hear a lawyer's application in chambers because the lawyer was wearing brown shoes rather than (the apparently) regulation black. [45] This rule has been abolished in civil cases. Its abandonment was recommended by the Law Reform Committee's 17th Report and implemented by Section 3 (1) of the Civil Evidence Act 1972. This states that subject to any rules of court made in pursuance of this Act, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence on shall be admissible in evidence. Section 3 (3) reads: "In this section 'relevant matter' includes an issue in the proceedings in question." [46] How much longer criminal cases are to be under this embargo remains to be seen. The Criminal Law Revision Committee has recommended its abandonment (CI 43 of the draft bill annexed to its 11th report [Cmnd 4491]), but this has yet to be implemented. The ultimate issue rule has been officially abolished elsewhere. See, for example, Australia: section 80 of the Evidence Acts 1995 (NSW, Cth) states that Evidence of an opinion is not inadmissible only because it is about: (a) a fact in issue or an ultimate issue; or (b) a matter of common knowledge. [47] A Keane The Modern Law of Evidence (4th ed.) above note 4 at 464. [48] See, for instance, the Law Reform Committee 'Evidence of Opinion and Expert Evidence', Cmnd 4889, paras 266 - 271 cited in Cross & Tapper on Evidence above note 4 at 553 and R Jackson "The Ultimate Issue Rule: One Rule Too Many" [1984] Criminal Law Review 75. [49] Expert witnesses theoretically have unique roles and responsibilities that they bring with them to the court. According to Creswell J, 1. Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of the litigation... 2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise... An expert witness in the High Court should never assume the role of an advocate. 3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his...concluded opinion... 4. An expert witness should make it clear when a particular question or issue falls outside his expertise... 6. If, after exchange of reports, an expert witness changes his view on a material matter having read the other side's expert's report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court. National Justice Cia Naviera SA v Prudential Assurance Co Ltd, The Ikarian Reefer [1993] 2 LI Rep 58 at 81 - 82. Thus the expert witness owes a duty as an officer of the court to assist the court quite above any duty owed to the client who is undoubtedly paying for the expert to appear on his or her behalf. While in theory this may be true, the reality of litigation suggests otherwise. Because of the adversarial nature of litigation, each side wages a battle for their version of "the truth", the idea being that "the truth" will emerge when each side has had an opportunity to present their evidence and test the validity of that of the other side. Each side of any litigation issue selects their own witnesses, and are hardly likely to select experts who will not support their version of the evidence. See also S Golding "Mental Health Professionals and the Courts: The Ethics of Expertise" above note 32 for a discussion of the ethical principles which should govern the offering of mental health professionals' expertise in the American criminal justice system. [50] In the Law Reform Committee's 17th Report above note 45, the Criminal Law Revision Committee was of the view that the rule 'probably no longer existed': para 268. See also Lord Taylor CJ in R v Stockwell (1993) 97 Cr App Rep 260 at 265: the rule has become "a matter of form rather than substance." [51] DPP v A & B C Chewing Gum Ltd. [1968] 1 QB 159 at 164, DC. [52] R v Turner [1975] QB 834 at 841. [53] R Underwager & H Wakefield "A Paradigm Shift for Expert Witnesses" (1993) 5 (3) Issues in Child Abuse Accusations 156 at 156. [54] See also R Sarkowicz "Levels of Interpretation of a Legal Text" (1995) 8 (1) Ratio Juris 104, especially at 108 - 110. [55] O Fiss "Objectivity and Interpretation" (1982) 34 Stanford Law Review 739 at 744. [56] M Van Hoecke "The Use of Unwritten Legal Principles by Courts" (1995) 8 (3) Ratio Juris 248 at 251. See also R Sarkowicz "Levels of Interpretation of a Legal Text" above note 54. [57] O Fiss "Objectivity and Interpretation" above note 55 at 745. [58] Canada (Attorney General ) v Mossop [1991] 1 FC 18 at 35. [59] This is a misnomer. This cases is often referred to as the Rodney King trial despite the fact that the defendants (Timothy Wind, Theodore Bresenio, Laurence Powell and Stacey Koon) were four Los Angeles police officers charged with the use of excessive force against motorist Rodney King. [60] C Renoe "Seeing is Believing?: Expert Testimony and the Construction of Interpretive Authority in an American Trial" [1996] IX (no. 26) International Journal for the Semiotics of Law 115 at 122. [61] Ibid. at 122 - 123. [62] The jury, as finder of fact, preferred this interpretation of the facts: the officers were acquitted of the charge of using excessive force against Rodney King. In a subsequent trial, two of the four officers were convicted of violating Mr King's civil rights. [63] N K Sam Banks "Knodel v British Columbia [Medical Services Commission]" (1993) 11 Canadian Journal of Family Law 287 at 297. For another view of this point, see D Herman "Are We Family? Lesbian Rights and Women's Liberation" (1989) 28 Osgoode Hall Law Journal 789. [64] Valverde refers to "law's narcissistic deliberations" and "Law as Narcissus" above note 30 at 204 and 207, respectively.