An English Daubert? Law, Forensic Science and Epistemic Deference

Abstract

A test for the admissibility of expert evidence, partly derived from Daubert, has recently been introduced into English criminal law by the unusual mechanism of a Practice Direction. This article compares the Daubert trilogy and the English Practice Direction as responses to the problem of epistemic deference by juries to experts. Juries are often justified in deferring to experts as to the relevance of the underlying evidence examined by the expert, including what inferences can be drawn from it. There is a concern, however, that juries may also defer to experts’ claims about the weight of their own evidence: how strongly or confidently those inferences can be stated. Overly deferential jurors may place excessive weight on forensic science evidence that rests on shaky foundations. The new English admissibility regime (drawing on recommendations by the Law Commission) appears better tailored than Daubert to address this issue about the strength of inferences presented by expert witnesses. As a result, however, it places considerable demands in judges, advocates and expert witnesses, and how successful it will be in practice remains to be seen.

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