CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, November 24, 2017

Stein on Experts and Disagreement

Stein alexAlex Stein (Brooklyn Law School) has posted Expert Testimony and the Epistemology of Disagreement (Seton Hall Law Review, Vol. 48, Forthcoming) on SSRN. Here is the abstract:
This Comment contributes to the special volume of the Seton Hall Law Review, Experts, Inference and Innocence: Symposium in Honor of the Work of D. Michael Risinger. 

In this Comment, I connect science-driven postconviction relief to the epistemology of disagreement — a young and rapidly developing discipline that analyzes the effects of a disagreement on the truth-value of the underlying opinion. Specifically, I argue that when a prosecution’s expert makes an inculpatory finding and then finds out that an equally informed and honest expert — an “epistemic peer” — arrived at a different opinion indicating that the defendant might be innocent, she ought to scale down her level of confidence in her own opinion. This epistemological mandate calls for granting defendants postconviction relief. In Daubert jurisdictions, which broadly admit expert testimony into evidence, courts should grant such relief as a matter of course. In jurisdictions in which expert testimony is only admissible when it satisfies Frye’s “general acceptance” requirement, postconviction relief should only be granted when a new development in science and technology undermines the trial testimony of the prosecution’s expert.

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