Book Review

Golan, Tal. (2004). Laws of Men and Laws of Nature: The History of Scientific Expert Testimony in England and America. Cambridge, Massachusetts: Harvard University Press. Pp. 325. ISBN-10 0-674-02580-6 (pbk.). $22.95

Abstract:
Tal Golan’s book Laws of Men and Laws of Nature: The History of Scientific Expert Testimony in England and America is a relatively brief and thoroughly engaging treatment of an important yet mostly neglected topic, and should be of interest to students, teachers, and practitioners of both science and law.

Book Review:
In light of the public’s recent interest in the intersections of science and the law, as well as the incorporation of forensics into many science classes, Tal Golan’s Laws of Men and Laws of Nature: The History of Scientific Expert Testimony in England and America (2004, Harvard University Press) is a fascinating, well-written, and thoroughly researched perspective on this neglected topic, covering the last few centuries. Comprised (disappointingly) of only six chapters, it is a relatively brief, yet engrossing and clever history that leaves the reader wanting more, particularly from this author, who has an engaging but scholarly writing style. Chronological and yet contextual in style, the first chapter of the book deals with the earliest appearances of science in matters of law in Europe, while chapters two and three address legal and scientific issues in Victorian England and later across the Atlantic in America, as the industrial revolution brings about a deluge of litigation. The remaining chapters are concerned with, in order, the development, utilization, and acceptance into the courts of microscopic blood analysis techniques, x-ray images, and polygraph technology.
According to Golan, recurrent themes that seemed to resonate vividly concerning scientific expert testimony in American and English courts of law, both in the Victorian and modern eras, were the conundrum of conflicting scientific opinions, as well as the financial issue of whether scientists should be paid for their testimony or not. In addition, the ability of jurors, judges, and lawyers to understand and effectively utilize scientific concepts in courts of law to achieve fair and accurate legal outcomes was an essential issue. For science educators, this book should reinforce that a general public that is equipped with a fair degree of scientific literacy, coupled with critical thinking skills, is a highly desired and valuable product. This principle is the same over the centuries and across the oceans, regardless of whether a case involves heating whale oil, patent litigation over a chemical process, medical malpractice, advances in microscopy, x-ray technology, DNA, or polygraph tests.
The “professionalization” of science was a hastened tremendously in Victorian times. Meetings, journals, societies, correspondences between scientists, and industrialization of scientific developments all contributed to this, but surprisingly the paid testimony of scientists in court cases seemed to also be one of the most prominent factors. Up to this point in time, the practice of science was mostly limited to landed gentlemen and aristocracy who took up science as a way to spend their otherwise idle time, since they did not have to work for a living, and this group seemed particularly critical of what they perceived as the “prostitution” of science in the courtroom. This divide, particularly in England, between the wealthy gentlemen who indulged their spare time as scientists and those who actually made their living from testifying, collecting, writing, and experimenting, continued to grow. In America, on the other hand, the use of science to make a living or even achieve great wealth was not seen as being a danger to the “purity” of science and its quest for knowledge and understanding of the natural world.
Another major theme of this book is the visual nature of much of the scientific evidence and testimony in a legal setting, and the potential for variability, or even unscrupulousness, in its interpretation. The author discusses how photographs, microscopic evidence, and x-ray exposures could be interpreted from both a subjective and objective view point. Is such evidence to be taken at face value for what it represents, or should the human element of the production and interpretation of this type of evidence be given precedence? Who is qualified to obtain such evidence, and further, to interpret and explain it? Golan’s answer is that some types of visual evidence, such as surveillance camera footage, can stand alone and essentially speak for it self, while other types, such as x-ray images, require a trained and trusted specialist to produce the image and clarify its meaning. Golan discusses in an enlightening manner how new technologies such as lie-detectors were gradually accepted by the courts and society in general, and how scientific court room testimony sometimes contributed to the creation of entirely new disciplines and specializations in science and medicine, with new knowledge often originating when experiments were recreated for the benefit of the courts.

Was it the adversarial nature of the courts, or the moral and ethical degradation of the scientists involved that created the greatest problems for expert scientific testimony over the centuries? The apparent conflict between the procedures of law and methods of science seem to Golan to be the root cause, especially that lawyers, judges, and jurors who lacked scientific backgrounds and knowledge were being asked to decide cases on their scientific merit. The author goes further, expounding that scientists were not entirely at fault, when they appeared to be at odds on the witness stand. The vagaries of science, from differing methods and interpretations, are part of what make it a unique enterprise. One never “closes the books” on any scientific topic, believing that we know everything there is to know about it. The reproducibility and nature of continuous questioning in science served to instigate many of the apparent conflicts with the absolute nature of law and the legal system. This is not to say that there were not some devious charlatans or even legitimate, well-meaning scientists who in effect did indeed sell their testimony to the highest bidder at times.
One of the few reservations about this book was the absence of any in-depth treatment on DNA technology and its role in the modern courtroom. It is also possible the author did the reader a disservice by not presenting and discussing at least some of the major cases in which the “mad doctors” of insanity trials played a role. Golan unfortunately glosses over these potentially significant episodes by stating they are covered sufficiently elsewhere, and it would have been enlightening to see how the “soft sciences” played out in court, especially in relation to how the “hard sciences” were involved, both in the Victorian and modern ages. Of course, Golan devotes an entire chapter to the development and early use of lie-detectors or polygraph machines, which again seems incongruous to me, in terms of discussing one aspect of psychology and the law and not the other. Nevertheless, chapters five and six, on the use of x-ray images and polygraph results in court, illuminate the greatest difference in the early and later chapters. As the twentieth century dawned, new technologies like these created a demand for specialists to administer, supervise, and explain the results in court and likewise for the courts to accept them as the valid procedures and evidence they were. This continues even today with new medical imaging, DNA, and other forensic technologies.
Overall Laws of Men and Laws of Nature is a fascinating and informative read on a mostly neglected yet important topic, and it will definitely enhance anyone’s knowledge of the history of expert scientific testimony in courts of law. For science educators, this reading also reinforces that teachers have the responsibility of being sure their students understand that science is an inquiry-based and dynamic process, and not just a static collection of facts. Just as there is historically no one definitive “scientific method”, students must be aware that science is open-ended, accomplished through a variety of techniques, its results are subject to interpretation, and its theories are subject to change as new data become available. Scientists, science teachers and students, and productive and responsible citizens in general should all be open-minded and receptive of new thoughts and points of view on any given topic. At the same time, the population should also be scientifically literate and prepared to think critically and be skeptics if necessary. Golan’s book brings to mind the long-running advertisements that suggest that “four of five dentists recommend product X”. Students need to be aware that these dentists and their opinions, like many of the scientific expert witnesses and their testimony in this book, should be subject to scrutiny and must be considered in the context in which they and their opinions are presented. This includes the dynamic nature of science, possible financial entanglements, and the social and legal climate of the time and place in question. This book is heartily recommended for science educators, students, attorneys and anyone interested in forensics, law, or science.