Scientists, physicians, and other experts are often called to advise the judicial system. Their specialized expertise explains important topics such as crime scene evidence, DNA, and ballistics. Behavioral scientists and clinicians inform courts of the influences of mental illness or the significance of controversial behaviors, from aggression and sexuality to amnesia and hyperactivity. Courtroom experts consequently play an important role in developing case law, precedent, and social policy. Recent examples include U.S. Supreme Court rulings on assisted suicide, and application of the death penalty to minors.
The dominant ethics of this kind of work is generally described as one of objectivity and truth. (1, 2) Experts strive to be as objective as possible and present the truth as closely as they can determine it. Indeed, experts in court take the well-known oath "to tell the truth, the whole truth, and nothing but the truth."
To those exposed to narrative ethics, however, this framework poses a number of important difficulties. Objectivity is widely recognized as an elusive goal, influenced by the expert's unique personal perspective, and her unique path to the courtroom encounter. Some argue that objectivity is also influenced by receiving a fee for one's testimony and appearing for one side or the other in an adversarial setting. In fact, some professions like journalism and forensic psychiatry recognize that "striving for objectivity" is more attainable than objectivity itself. Post-modern thinking is evident here from the philosophers that recognized influences on the observer rather than on the observed.
Truth, similarly, is influenced by perspective. Ezra Griffith, the eminent cross-cultural and forensic psychiatrist, has written powerfully on the differences between the non-dominant and dominant culture's perspective on judicial "truth."(3) Historic oppression of minority cultures and other indirect devaluations consequently shade one's view of what is true and just. Griffith is among those who are beginning to challenge the hegemony of principles like objectivity and truth in governing expert courtroom testimony.
Indeed, a number of forensic scholars have begun to write on the use of narrative in forensic, or courtroom, ethics. (4, 5) They are more cognizant of the influences from their parent disciplines, from their own upbringing, education, training, and life experience. These are influences which determine which side experts tend to work with (prosecution or defense), the methodologies they apply, and the kinds of cases they participate in. The personal narrative of experts influences the politics of their courtroom involvement: whether they participate in death penalty, social justice, cross-cultural, or religious cases.
An important part of recognizing the place of narrative is recognizing a distinction between the expert's professional and personal ethics and those of the legal system. Attorneys follow an ethic of procedure that guides a legal system often described as imperfect procedural justice.(6) It is a historical and professional narrative evolving from centuries of social and judicial discourse. This is a system governed by rules rather than outcome; following the procedures is the best course for deciding the best result. For experts this is again problematic because the rules or procedures may keep important evidence from them, or keep them from testifying on certain parts of a case.
The challenge for negotiating this dilemma is the challenge of describing the "whole truth." It is not enough for experts simply to adopt the ethic of the legal system. The legal profession's narrative developed in a different manner than the expert's profession. The expert's profession and her own credibility require a certain balance in the testimony, an obligation to honor her profession's narrative as well as the law's.
Because the absolutes of the legal system (guilty or innocent, liable or not) may not admit the probabilities of forensic science, experts must recognize the limitations of the law's professional narrative. Discussions with attorneys, the judge, or the parties involved can be mechanisms for assuring that the expert's opinion is not inappropriately limited. Experts and attorneys frequently hold discussions on the limits of the evidence, the bounds the judge will place on the testimony, and the leeway the expert has in answering the ultimate legal question (the question for the judge or jury). These are all methods for assuring that the expert's professional narrative is not confounded by the narrative of the law.
Avoiding the absolutes of legal parlance is critical to effective testimony. Experts have an obligation to admit the scientific uncertainty inherent to their measurements, and pursue alternative explanations (if only to disprove them). The narrative of their professions and the expert's own narrative as an honest practitioner require this. It is not their role to state absolutes in an effort to win the case; that is the attorney's job. Again, the expert is governed by a different professional narrative.
Part of the use of narrative in forensic work also includes a recognition of the individual evaluee's (defendant or plaintiff's) narrative in arriving in court. The narrative of the person involved in the judicial struggle helps humanize a system of procedures, rules, and abstract principles like objectivity and truth. Some of us involved in this discussion consequently see a place for the use of narrative tools for enriching courtroom disputes.
The story-telling features of narrative may consequently allow a better understanding of the values, beliefs, and cultural practices of persons who meet within the community's legal apparatus. The appreciation of context, both personal and social, can then inform the court's response. This is already an important part of the reason behind mitigation hearings. The defendant's narrative, the reasons that punishment should be mitigated, or lessened (e.g., the presence of mental illness, childhood trauma, dependence of family members etc.), are described to the court. Conversely, narrative finds its way into court as victim impact statements, wherein crime victims describe the crime's effect on their lives.
Because perspective is increasingly recognized as an important determinant of ethical analysis, narrative can expand our understanding of conflicting viewpoints. There is less need to depend on abstract (and unattainable) notions of objectivity or truth. Indeed as we have seen there is already a place for narrative in the courtroom: mitigation, victim-impact, and testimony on cross-cultural practices are all appropriate for narrative testimony. Explaining the defendant (or plaintiff's) road toward the judicial encounter and emphasizing her humanity is part of this next frontier in the law. Expert testimony that grows to accommodate developments in narrative ethics consequently enriches our understanding of the human experience while reminding us of the imperfections of abstract principles.
- American Academy of Psychiatry and the Law, Ethics Guidelines for the Practice of Forensic Psychiatry, 1995, Amer Acad Psychiatry Law, Bloomfield CT
- American Academy of Forensic Sciences, proposal to the Board of the Committee on Good Forensic Practice, 1999
- Griffith EEH. Ethics in forensic psychiatry: a cultural response to Stone and Appelbaum. J Am Acad Psychiatry Law, 26:171-184, 1998
- Candilis P, Martinez R, Dording C. Principles and narrative in forensic psychiatry: toward a robust view of professional role. J Am Acad Psychiatry Law 29: 167-173, 2001
- Weinstock R. A broadened conception of forensic psychiatric ethics. J Am Academy Psychiatry Law 29:180-185, 2001
- Rawls J. A Theory of Justice, esp. at pp 85-86, Belknap Press, Cambridge MA 1971