Book Review

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

N Engl J Med 2005; 352:520-521February 3, 2005

Article

Laws of Men and Laws of Nature: The History of Scientific Expert Testimony in England and America
By Tal Golan. 325 pp. Cambridge, Mass., Harvard University Press, 2004. $49.95. ISBN: 0-674-01286-0

“I abhor the traffic in testimony to which I regret to say men of science sometimes permit themselves to condescend,” Attorney General Sir Alexander Cockburn famously observed after considering the conflicting medical testimony given at Dr. William Palmer's celebrated poisoning trial in 1856. Cockburn's sentiments were not unique; whether as a result of questionable remuneration schemes or suspected partisanship, witnesses with scientific expertise attracted harsh criticism from legal and lay communities alike, even as both constituencies turned increasingly to men of science for advice and courtroom guidance. It is a singular achievement of Laws of Men and Laws of Nature that its author, Tal Golan, has embedded the history of scientific evidence in the contentious forum of adversarial law, where any variation in expert opinion could be characterized as evidence of unwarranted claims to expertise or, worse, as the venal prostitution of knowledge for personal advancement.

Surveying a wide range of forensic issues — from insurance claims to nuisance litigation, from malpractice to lie detectors — Golan describes compelling courtroom battles often animated by the fear that specialist opinion would unduly influence a jury's verdict. One particularly vivid example concerned the conflict between x-ray photography and “word testimony.” Long the province of a skilled advocate, the ability to use language to telling effect was perhaps the lawyer's greatest resource. The introduction, therefore, of a “new class of machine-made testimonies” threatened to appeal directly to the juror's visual sense, unmediated by the lawyer's language. Indeed, x-ray films threatened the prerogatives of the medical witness as well: any trained technician could take a photograph. The story of how x-ray technology was “legalized” by the Supreme Court and the technician's status relegated to that of “radiographer” — preserving the unique status of “expert” for the scientific witness who alone could claim the training necessary to read the x-ray films — makes for fascinating reading and is told extremely well.

The evolving role of the attorney in the solicitation of medical opinion, however, deserves a much fuller treatment, because the history of forensic testimony is, basically, the history of law. Only with the passage of the Prisoner's Counsel Act in 1836 were English attorneys authorized to formulate a defense case, to address the jury directly, and to gain access to the indictment. In consequence, more than evidence was at stake; the essentials of proof and the criterion of guilt “beyond a reasonable doubt” were finally subjected to long-deferred scrutiny. The author's predominant focus on the self-conscious professional aims of Victorian scientists presents, therefore, only part of the equation. Suddenly released from the strictures that had ensured judicial dominance in the division of labor in the courtroom and in constructing formulas for proof, lawyers were finally free to enlist a broad range of specialist opinion to probe the supposed facts of a case.

Nowhere was the question of standards of proof more at issue than in the testimony of Victorian “mad-doctors,” whose history the author chose to leave out because, he writes, their story has been well investigated. This was a regrettable decision. Victorian psychiatric testimony would have corrected the impression that medical witnesses were suspect because of a too close identification with the defendant. “Mad-doctors” were likely to appear on both sides of the issue. Indeed, the medical man who appeared most frequently in early-19th-century insanity trials was a prison surgeon, employed by the court to inspect defendants thought likely to raise an insanity plea. Private physicians and surgeons were also enlisted by the court and routinely pronounced the prisoner sane. Many a putatively insane defendant went to the gallows after such testimony.

Furthermore, inclusion of the experience of psychiatrists would have added historical resonance to the author's otherwise excellent discussion of the “psychology of testimony.” In alerting the legal community to the inconvenient observation that the testimony of a witness was not a snapshot in time but, rather, the product of introspection, early-20th-century forensic psychologists drew attention to the problematic nature of the layperson's recollection of what actually happened. Exactly a century earlier, it was a similar disparaging of a witness's belief that a defendant was sane (or mad) that served as the springboard for the emergence of courtroom psychiatry. When a latter-day forensic psychologist volubly despaired of the “blind confidence in the observation of the average normal man,” he was taking a page from the first-generation forensic psychiatric witnesses, who made use of a parallel distancing from the observations of the layperson to carve out a cognitive niche of their own in the Victorian courtroom.

These reservations aside, the author has written an insightful analysis of the confluence of interests of legal and medical practitioners over the past two centuries, skillfully illuminating how the growth in one did much to spur refinement and reliability in the other. Golan perceptively argues that the courts have not been mere gatekeepers but, rather, “active partners in the production and maintenance of credible scientific evidence.” That this partnership has not proved to be an altogether satisfying experience for men and women of science is abundantly clear in the rich narrative he offers.

Joel Peter Eigen, Ph.D.
Franklin and Marshall College, Lancaster, PA 17603