1 Università di Parma
2 ISC, Innovations in Science Communication, ISAS, Trieste, Italy
Scientific communication in court is particularly important for the understanding of the process of post-academic science communication.
The purpose of this study, carried out through a qualitative approach, is:
· verify whether and how the dynamics of an expert’s science communication in court can be traced back to the problem of public science communication
· underline specific characteristics of science communication in court.
· propose a sample of a `general table on science communication`, in order to be able to analyse every possible communication between the different parties of a legal proceeding.
Twelve narrative interviews have been collected, divided in two groups: experts and non-experts (such as lawyers, judges, journalists and others).
The analysis of the interviews has revealed an analogy between the public communication of science in court and the proposal of the `Venice model`, based on the assumption that in the post-academic era the public communication of science follows more than one direction to reach different audiences in different ways, not necessarily bound to the scientific community. Experts communicate science in different ways and with different interlocutors. But they are not the only ones speaking of science in court: judges, lawyers, speak of science among themselves with different expectations and results, not depending on the expert’s mediation. This analogy allowed the creation of a general table that can identify every possible `bridge` of scientific communication in court.
The narrations have allowed the identification of some peculiarities of scientific communication in the legal context. First of all, the conflict of experts` and jurists` expectations in the legal proceeding. While the expert’s priority is the correct understanding and use of the scientific truth, the other legal parties have another starting point: the acceptance of a scientific truth, or its refusal, in order to reconstruct that truth that in the legal context is the highest, that is the legal truth
In the modern era, when techno-scientific ideas and products are increasingly present in everyone’s life, conflicts stemming from the intersection of science, technology and law are one of the main fields of redefinition for modern societies (Tallachini, 2001). Indeed, disputes about science seem to be the very basis on which societies build their ideas of legitimate knowledge and through which they identify those who have the right to speak for nature (Josanoff, 1995). The truth of science and the truth of the law are actually being increasingly brought together and asked to find effective solutions in legal proceedings.
This research starts form the idea that in a multiple-centred system of science communication (Greco, 2002) scientific communication in court is particularly important for the understanding of the process of post-academic science communication (Ziman, 1998; Greco, 2002).
The problem of science communication in court is analogous to that of public science communication in general. Communicating science in court is often necessary for the carrying out of several legal proceedings, and sometimes also for their solution. This kind of communication, however, must face specific problems due to the cultural, linguistic, methodological and epistemic difference between the legal and scientific parties of a proceeding. The court is thus a post-academic context of science communication, with special characteristics that can influence society and that make a specific study of this context necessary.
This research aims at:
· verifying whether and how the dynamics of an expert’s communication in court can be traced back to the problem of science communication in general and of public science communication in particular
· underlining specific characteristics of science communication in court, where particular legal problems have to be taken into account
· proposing a sample of a “general table on science communication”, in order to be able to analyse every possible communication between the different parties of a legal proceeding.
Many questions have to be answered during this research: who are those who communicate science in legal proceedings? To whom do they address their speech? Which kind of scientific information enters the court and how is it communicated to the judge, to the public and to the social parties? What do the scientific and legal parties expect from the communication of science, and what are its real results? In what way and how much is scientific truth negotiated and transformed into the normal procedure of science communication in court?
A first attempt at finding an answer to these questions has been field investigation. Ethnographic research on communication (Matera, 2000) has been made to enter the context in which science and the law cooperate; different experts, judges and lawyers have been interviewed, in an attempt to know the opinion of the main characters of this context of cultural production, who witness the continuously changing relationship between science and society.
The “expert” communicating with “non-experts”, that is judges, lawyers and other parties involved in legal proceedings, has been taken particularly into account. He plays a key role in the process of science communication: he is in the middle of different communication flows and has to follow different communication models, modifying not only his language, but also his interaction with his different interlocutors, each of whom looking for a different truth.
Materials and method
Twelve narrative interviews (Atkinson, 1998) have been collected in this research and divided into two groups: experts and non-experts (such as lawyers, judges, journalists, scientists and others). The interviews have been recorded on audiocassettes and then integrally transcribed.
The narrative method (Atkinson, 1998) used in the research is based on “open” interviews that differ from others in their being non-structured, that is, with no specific questions to be answered by the interviewed person. The result of this kind of “open” interview is not a series of specific answers to a series of questions, but a sort of “story” guiding the interviewer to enter the “other” world, the one in which science and the law meet, focusing on the people (experts, judges, lawyers) and on their modes of communication (Matera, 2002).
The communicative events (Duranti, 1999) between the researcher and the interviewed people have been of paramount importance to approach experiences and cultural contexts whose understanding would have otherwise been very difficult. This approach does not aim at replacing a quantitative analysis, but to complement and integrate it. The result of the combination of the two methods could be a sort of bridge between the macroscopic analysis of events and the personal experiences of experts, judges and lawyers in particular contexts of space, time and culture.
The narrative approach can bring to the attention of the interviewer new readings and new details that s/he had not met in his/her experiences and that quantitative analyses, based on previously known concepts, would not have underlined. Narratives present mainly personal experiences that no data, questionnaire, or news could express (Bruner, 1990).
Analysis of the interviews
The analysis of the interviews has brought out new considerations on the peculiarity of science communication in court and has led to the identification of new ways of bringing together social research on science communication and the complex and ever-changing reality of the court.
The following points have emerged from the analysis of the interviews:
1) There are many people communicating and there are even more communicative flows. Experts speak of science in different ways and with different legal parties. The different legal parties speak of science in different ways both among themselves and with the experts. The analogy between the public communication of science in court and the so-called “Venice model” (Greco, 2002) is evident. The “Venice model” is based on the assumption that in the post-academic era the public communication of science follows more than one direction to reach different audiences in different ways, not necessarily bound to the scientific community.
The following are examples taken from the interviews:
· Sometimes the judge has to coordinate a discussion on scientific matters. He can have some difficulties, and so can the state prosecutor and the defence counsel. The cross-examinations are technical and the discussion is between expert and advisors; after it has been placed in the minutes I can ask the expert further explanations if there is still something unclear (from the interview with a judge)
· Communicating with a vast audience is a must nowadays, but our relationship with the media is particularly complex. I have spoken with them, I still speak with them, I have been interviewed, and I think this kind of relationship is necessary. I believe in information. But today lawsuits are carried out on paper and this situation needs to be controlled in some way. Italy has been having a morbid tendency towards anticipating news, these past few years. And this kind of communication can have an important influence on lawsuits. After all, judges are human and can be influenced by the media (from the interview with a member of the RIS – scientific investigation group)
· The hearings in which advisors discuss among themselves are the longest and most difficult ones, because of the complexity of their communication methods. Everyone does his/her best, lawyers, judges, state prosecutors, advisors, experts (from the interview with a defence counsel)
· As a defence counsel, I tell my technical advisor what my necessities are, what I need the expert’s report to say. He then tells me to what extent scientific truth meets my reconstruction. So we exchange opinions and needs. I am, in fact, a means between the advisor and the judge, though my reconstruction is not authentic, it is partial, and the judge avails himself of the court-appointed advisor (from the interview with a defence counsel).
· It is difficult to get information from an expert, particularly during legal proceedings or before their reports have been deposited. But during the investigation we have many other ways of obtaining information on the expert’s report. We won’t have his/her direct statement, but it is our job to be able to make others say the things we need in order to reconstruct the news. It is a delicate matter, more at risk of legal action than others. We have to be careful (from the interview with a crime news correspondent)
2) The different communication flows are full of expectations. Every communication act has a more or less explicit and recognisable aim. Expectations depend on a number of variables that are mainly linked to the professional, anthropological and psychological profile of the communicator. For example, if, on the one hand, a psychiatrist is interested in defining the psychological profile of the defendant accepting the difficulties s/he may have in answering the questions of the penal code, the judge, on the other hand, wants an irrefutable answer to his question regarding the defendant’s being of sound mind.
The following are examples taken from the interviews:
· The language of the psychiatrist, the theoretical basis of psychiatry and that of law are completely different: the law sees only black or white; psychiatry sees all the nuances of greys. And this difference is a problem for the law and for the experts that are forced to give irrefutable answers. The best example is the issue of establishing the sound mind of a person: the needs of psychiatry and those of the law are not the same (from the interview with a psychiatry consultant)
· Communication depends on who the interlocutors are: if the judge is there to listen to the expert, then the expert can communicate in standard terms; if the opposing party is present and wants to answer back, then the expert will use academic and technical terms. This is strategy, and all the interlocutors in a legal proceeding have to be aware of the different aspects of communication depending on who is talking and who is listening (from the interview with the editor in chief of a Master’s program in legal sciences, Parma)
· At the Master’s course in legal sciences I understood what a law graduate does not know. I understood that there are different worlds. If the professor dictates the energy formula, the scientist will write “E=ma”, the judge “energy equals mass times acceleration”. But the same thing is valid in the opposite sense. Then we started to understand each other. And I understood that if they did non understand me it was I who was communicating in the wrong way (from the interview with a physics consultant, RIS external adviser)
· Scientific communication in court is poor, and the reason of this lies in the conflict between legal and scientific culture. Jurists have a classical education and are proud of it, scientists have a techno-scientific education and are proud of it too (from the interview with the editor in chief of the Master in legal sciences, Parma)
· Judges rely too often on their experts (from the interview with a toxicology consultant)
· The court asks me to come in as an expert because they know me as an expert in specific subjects. The fact that the judge calls people he knows usually works, because he recognises your expertise. It can sometimes happen that the judge calls people he does not know well and that are not expert in a specific field. And then a number of problems arise, ranging from harsh challenges in court to later petitions and legal overcharge (from the interview with a court-appointed expert in civil proceedings)
· The name of the expert is often important. For example the name of the professor, bound to other similar cases that have aroused great interest (from the interview with the director of the C.I.S.M., Italian centre for mass spectrometry, Florence)
· The technical language is not criticised by the judges but by the advisors, and the judges attend the discussion among experts that understand each other (from the interview with a toxicology consultant)
3) Technical communication in court has many different parties, but it is possible to identify one group (the experts’) with strong internal cohesion, surely stronger than that with the other parties.
The following are examples taken from the interviews:
The followings are examples taken from the interviews:
· It is our job to identify the scientific truth and to make the other parties in the proceeding understand it correctly (this observation recurs in almost every interview)
· We always have the same approach to the matter: a strong objectivity during the research phase and the compilation of our report (from the interview with a RIS member)
· Globally speaking I would say that scientific evidence has greatly improved certain proceedings; ten years ago they would have been dismissed or would have remained unsolved, because they did not have the kind of scientific information we have today (from the interview with a RIS member)
· The expert in legal sciences is of paramount importance today. I have seen famous University professors being appointed for expertise, though they were not experts in legal sciences (from the interview with a physics consultant, RIS external advisor)
4) A particular feature is common among experts and not among the others interviewed: frustration about the result of communication. The problem of science communication in court is not only a language problem, then, but also a more complex one. It is a conflict between bearers of different truths. While the expert’s problem is that of being understood, the other parties’ problem is a different one: whether or not to accept a particular scientific truth in identifying the legal truth. Scientific communication in court is not only a language problem or a problem of scientific education, but also the “dynamic result of an epistemic conflict about whether objective truth can be negotiated” (Greco). Three different truths meet and sometimes clash in court: the truth of common sense, the scientific truth and the legal truth. The scientific truth meets that of common sense and sometimes clashes with it in general, making it difficult for scientists and non-experts to communicate. The court context is even more peculiar, because there is a third truth competing with the others. And communication is, in this way, even more difficult. And that’s not all: out of these three truths, one is in itself superior (that is, it prevails on the others): the legal truth. The interviews show that one truth is “truer” than the others, in court, and it is not the scientific truth, but the legal truth identified by the legal and scientific parties together. It seems, then, that the analogy with the general problem of science communication, identified by the group ICS (innovation in scientific communication), is not perfect and that science communication in court has important peculiarities of its own.
The following are examples taken from the interviews:
a) experts’ frustration:
· The judge takes his decisions by interpreting scientific investigations that he often does not understand (from the interview to a RIS member)
· We avail ourselves of a technology that is more up-to-date than the legal parties’ scientific education (from the interview to a RIS colonel)
· The fact is that experts and legal parties speak two different languages (from the interview to a psychiatry consultant)
· As far as scientific communication in court is concerned, I can say that the difficulty is conveying a correct message, in the sense of being correctly understood (the interview with the director of the C.I.S.M.)
· The main problem in every expertise and consultancy is language (from the interview with a toxicology consultant)
· In a way scientific truth is objective, but in the legal context there is a legal truth (from the interview with a RIS colonel)
b) non-expert’s opinion of the experts’ job:
· We ought not to forget that the consultancy is an evaluation: it has its starting point in objective facts, but also the expert is evaluating. The judge follows the expert’s opinion if he thinks it is sound, otherwise he refuses it. Because he is the “perito peritorum”, in the sense that he decides which opinion to follow when experts and advisors disagree (from the interview with a judge)
· The judge’s job is to reconstruct the event in legal language starting from the reports of experts and advisors. Their consultancy is one of the elements in the reconstruction of a story that needs many other factors to combine (from the interview with a judge)
· The judge does not have direct contact with the scientific truth. And when I say scientific truth, I refer to a technical opinion based on very sound facts and careful technical investigations and evaluations. But each expertise is different. The psychiatric one, for instance, is the less certain. For the judge the scientific truth is an incontrovertible truth and it is as valid as other non-technical, human truths, such as the reasons for a crime (from the interview with a judge)
· The problem of a person’s sound mind has nothing to do with the judge’s understanding of the psychiatric language. The judge is obliged by the penal code to ask this question. The question must be that of the 85th section, that makes sound mind a requirement to establish criminal liability (from the interview with a defence counsel)
5) One of the results of this research is a clear indication for the improvement of methodology.
Towards a general table for the analysis of scientific communication flows
The field research carried out and the analysis of the interviews have underlined the occurrence of several variables in common with the general problem of science communication that can be investigated also in other research contexts, or in other situations of communication.
The common points are the following:
Who is the communicator?
The interpretation of meaning cannot overlook the professional, anthropological and psychological features of the interviewed people.
Who does s/he communicate with?
The scientific information entering the court can have different forms, depending on whether the interlocutor is another expert, a judge, a lawyer or a social party.
What does s/he communicate?
Science communication can be formal, informal and public.
How does s/he communicate?
The communication modes between two speakers of science in legal proceedings are nine:
- – Oral formal communication
– Written formal communication
– Electronic formal communication
– Oral informal communication
– Written informal communication
– Electronic informal communication
– Oral public communication
– Written public communication
– Electronic public communication
Where does s/he communicate?
The communication mode also depends on the place in which the communication takes place.
In which context does s/he communicate?
The situational context (Matera, 2002) of a communication event can be formal, informal and public, and it influences the possible communication flows.
What are his/her expectations and results?
Depending on the form of science communication in court the interlocutors have particular expectations and obtain particular results. Quite often the experts’ expectations and results differ from those of the other legal parties, since they communicate to establish and reconstruct different truths.
The aim of this research on science communication in court was the identification of the communication “bridges” connecting the different interacting social parties (or groups of social parties). A generic sample table that could be used in other researches and could underline every possibility of communication seems appropriate.
The starting point could be the following statement, referred to a single communication “bridge” and based on the information collected from the interviews:
“X communicates with Y through nine communication possibilities, in particular social places and contexts. For these possibilities, X has specific expectations and obtains specific results”.
The same thing can be said in the opposite direction:
“Y communicates with X through nine communication possibilities, in particular social places and contexts. For these possibilities, Y has specific expectations and obtains specific results”.
The speaker: X
Institutional profile ______________
Techno-scientific profile ______________
Anthropological profile ______________
Psychological profile ______________
Finally, a table could be created for each place of science communication, with information on X and his different scientific “habitus” (Bourdieu, 2003). Through this table, an analysis of the nine communication possibilities that have actually occurred for each of the interlocutors (Y, Z, W) should be possible.
This table has obviously to be compared with the one resulting from the analysis of Y’s communication with X, mainly to be able to see whether expectations and results are similar or not. This could be a way of identifying the most usual forms of scientific communication in a particular context (Greco, 2002) and the opinions of the interlocutors on their functioning.
The analysis of the interviews has revealed a clear analogy between the public communication of science in court and the proposal of the “Venice model”. Experts communicate science in different ways and with different interlocutors. But they are not the only ones speaking of science in court: judges, lawyers and others speak of science among themselves with different expectations and results, not depending on the expert’s mediation. This analogy allowed the creation of a general table on communication that can identify every possible “bridge” of scientific communication in court.
The narrations have nonetheless allowed the identification of some peculiarities of scientific communication in the legal context, that distinguish it from the general pattern. First of all, the problem regarding the conflict of experts’ and jurists’ expectations in the legal proceeding. While the expert’s priority is the correct understanding and use of the scientific truth, the other legal parties have another starting point: the acceptance of a scientific truth, or its refusal, in order to reconstruct what is considered the highest truth in legal contexts, that is the legal truth.
1) Atkinson R., L’intervista narrativa, Raffaello Cortina, 1998
2) Bourdieu P., Il mestiere di scienziato, Feltrinelli 2003
3) Bruner J., Act of meaning, Cambridge, Harvard University press, 1990
4) Chin M.W., Genetics and law: a challenge for lawyers and judges in the new millenium, “Notizie di Politeia”, 65 (monographic issue): 103-115; 2002
5) Deason E.E., Court appointed expert witnesses. Scientific positivism meets bias and deference, “Oregon law review”, 77, 59-71; 1998
6) Duranti A., Etnografia del parlare quotidiano, Carocci, 1999
7) Edmond G., Mercer D., Representing the sociology of scientific knowledge and law, “Science communication”, vol. 19 No. 4. ; 1998
8) Faigman D.L., Science and the law: is science different for lawyers?, “Science”; 2002
9) Freeman M. and Reece H. (Ed.), Science in court, 1998
10) Greco P., Communicating in the post-academic era of science, “Jekyll.comm”, N.1; 2002 – http://jekyll.sissa.it/jekyll_comm/editoriale_jek0_eng.pdf
11) House of Lords, Science and technology, the III report; 2000.
12) Irwin A., Wynne B., Misunderstanding Science? The public reconstruction of science and technology, Cambridge University Press, 1995
13) Jasanoff S., Coming of age in science and technology studies, “Science communication”, vol.20 No 1, 91-98; 1998
14) Jasanoff S., STS and Public policy: getting beyond deconstruction, “Science, Technology and society”, vol.4, n. 1, 59-72; 1999
15) Jasanoff S., The life sciences and the rule of law, “Journal of molecular biology”, vol 319, n. 4, 891-899; 2002
16) Jasanoff S., Beyond epistemology: relativism and engagement in the politics of science, “Social studies on science”, vol 26, n 2, 393-418; 1996
17) Jasanoff S., Nelkin D. Science, technology and the limits of Judicial competence, “Science”, vol 214, pp. 1211-1215; 1981
18) Jasanoff S., Gillet J., Becoming an expert witness, “The scientist”, vol 9, n. 3, 271-273; 1987
19) Jasanoff S., La scienza davanti ai giudici, Giuffrè Milano 2001 (Cambridge Mass, 1995)
20) Matera V., Etnografia della comunicazione, Carocci; 2002
21) Merton R.K., Science and democratic social structure, “Social theory and Social Structure”, Free Press, New York, 604-615; 1968
22) Montesperelli P., L’intervista ermeneutica, Franco Angeli; 2000
23) Pickering A. a cura di, La scienza come pratica e cultura, Edizioni di comunità; 1997
24) Raza G., Sing S., Dutt B., Public science and cultural distance, “Science Communication”, Vol.23, n.3, 293-309; 2002
25) Santosuosso A, Redi C.A., The need for scientist and judges to work together: regarding a new European network, “Health and Quality of Life Outcomes” 2003 1:22
26) Santosuosso A., Redi C.A., Garagna S., Zuccotti M. I giudici davanti alla genetica, Ibis editore 2002.
27) Sheperherd I., Science and governance in the European Union. A contribution to the debate
28) Tallachini M.C., Doubleday R., Politica della scienza e diritto. Il rapporto tra istituzioni, esperti e pubblico nelle biotecnologie, “Notizie di Politeia”, n 62; 2001
29) Treise D. Weigold M.F., Advancing science communication, “Science Communication”, Vol.23, n.3, 310-322; 2002
30) Woo J., The construction of science and knowledge in courts: the use of scientific evidence and experts in software copyright case, “Science communication”, vol. 23, no. 3: 264-292; 2002
31) Wynne B., Misunderstood misunderstandings: social identities and public uptake of science, “Public Understand. ” 1, 281-304; 1992
32) Ziman J., Il lavoro dello scienziato, Laterza; 1987
33) Ziman J., Essay on science and society, “Science”, 1998
34) Ziman J., La vera scienza, Dedalo 2002
Translated by Elena Morando, Scuola Superiore di Lingue Moderne per Interpreti e Traduttori, Trieste, Italy