Scientific evidence is used in courts of law as a basis of judgment because of its independence of the parties in conflict. I will show the inevitable, fundamental conflict between the fair treatment of scientific evidence and the adversarial system by citing a case study on the protocol of cross-examination (2008) in which the authors were an expert witness (T.H.) in a court case concerning the effects of electromagnetic fields on health. After the examination in chief, the defendant’s attorney attempted to fabricate a scientific fact by asking T.H. a leading question. Although making such an attempt is regarded as misconduct in science, it has been regarded as a “Golden Rule” of advocacy (The Golden Rules of Advocacy, Oxford University Press) and is a commonly employed strategy (see, for example, Feder’s Succeeding as an Expert Witness). Although asking leading questions in testimony is not controlled, at least in Japan, it is undeniable that it leads to the fabrication of scientific evidence. We demonstrated this by applying the Golden Rule of advocacy to the theory of thermodynamics. I will discuss how the expert evidence with scientific incertitude can adequately be utilized in law courts, with new court procedure, Concurrent Evidence” introduced in Australia.
About Tsuyoshi HONDOU
Tsuyoshi Hondou is an associate professor at the Graduate School of Science at Tohoku University (Sendai, Japan). He has a PhD in Physics from Tohoku Univ. (1994). He has studied the effects of electromagnetic waves from mobile phone technology. He is currently working on the role of scientific evidence in law. He is member of the Japanese Society for S&T Studies and the Japan Law Foundation.
Graduate School of Science, Tohoku University, Sendai Japan
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