Laws of Men and Laws of Nature: The History of Scientific Expert Testimony in England and America (review)

Partisan expert scientific testimony creates a profound dilemma for the common-law system, for introducing one scientific expert into the courtroom runs the risk of usurping the common-law jury's powers. The usual solution of adding another scientific expert to rebut the first only exacerbates the problem. The jury now confronts two authoritative and contradictory versions of the truth. The question of resolving conflicting scientific expert testimony is a critical component of contemporary American anxiety regarding jury trials: How can any jury composed of citizens drawn at random be expected to wade its way through days and indeed months of scientific expert testimony and to derive the correct conclusion? Despite the importance of the problems it poses, we have known little about the history of such testimony. Now, Tal Golan's new book provides us with a sweeping survey of expert scientific witnessing in Britain and America from the late eighteenth century onward. In the process, it explores the multifaceted relationships between the institutions of law and science.

Golan begins with a painstaking reconstruction of the 1782 case Folkes v. Chadd, in which the role of the partisan expert witness was accepted by the British courts with almost careless indifference. The dispute in Folkes concerned the gradual silting up of Wells Harbor in Norfolk. Local merchants and shipowners, represented by the harbor commissioners, blamed several embankments put up as part of agricultural reclamation of the surrounding marshlands. They sued for removal of the offending embankments. Ultimately, the case turned on the testimony of one expert who asserted that natural processes alone accounted for the harbor's decline. The harbor commissioners objected to this testimony, arguing that it amounted to speculation rather than empirical observation, which, under the law up to that point, had been required as the basis for expert evidence. The decision to allow his testimony laid the foundation for expert testimony in the form of opinions, even if their conclusions lacked firsthand knowledge.

Scientific expert testimony flourished in the aftermath of Folkes. By the late nineteenth century, a prominent lawyer could complain that "almost all questions now admit of expert testimony," and that "with this sort of personage, especially the higher scientific variety, the lawyer is at a serious disadvantage." Golan provides a survey of some of the notable trials generating irreconcilable scientific expert testimony, including poisoning and pollution cases. In doing so, he provides a new perspective on the consequences of development and industrialization in nineteenth-century Britain. He uses the controversies surrounding prominent trials as an avenue for examining change within the scientific community as its members struggled to come to terms with a world in which scientific credentials and the honorable word of the scientist were not sufficient guarantees of truthfulness. It is a fascinating portrait of a transforming professional world driven by the exigencies of forensic work.

Golan also uses case studies of several scientific fields that sought forensic recognition with mixed success: microscopists who analyzed blood cells, radiologists who explained X-ray images, and psychologists who asserted a new science of interpreting testimony. The courts' varying response to these groups reveals the diversity and limitations of methods for integrating scientific knowledge into a courtroom in which the jury was held to be the ultimate fact-finder.

Laws of Men and Laws of Nature sheds important new light on both the evolution of the trial during this period and the changing construction of scientific authority. It can also contribute to our emerging recognition of the nineteenth century as a time of broader cultural concern with questions of authenticity and fakery in both England and America. Given the rich detail that Golan provides, one hesitates to suggest the inclusion of additional material. Any history that relies so heavily on a handful of celebrated cases, however, inevitably raises the question of representativeness. Did the invocation...