The question of whether the normative testimony of ethics experts should be admissible under the rules of evidence has been the subject of much debate. Professor Imwinkelried's paper is an effort to get us, for a moment, to change that subject. He seeks to turn our attention, instead, to a means by which bioethics experts’ normative analyses might come before the court without regard to the rules of evidence - a means lying formally outside those rules’ jurisdiction. The court, he (...) argues, may freely consider evidence from expert bioethicists so long as it is performing a legislative rather than an adjudicative function. The rules of evidence apply to the court's efforts to find the facts of a particular case, Imwinkelried argues, but they do not constrain the court's investigations relative to its creative law-making efforts. (shrink)

“When the two come into conflict, democracy takes priority to philosophy.”Richard Rorty“There are some people who use philosophy to lead people astray.”St. AugustineAs any seasoned litigator knows, occasionally one interposes an evidentiary objection not simply for the sake of preventing this or that from occurring in court, but also for the purpose of alerting a court to and educating it about the likelihood that it will have to rule on what may prove to be a substantial evidentiary dispute. Instead of (...) waiting until a trial has begun and somebody else’s expert witness is ready, willing, able and - most of all - present to testify, it can be useful to file a motion in limine, a pre-trial motion that seeks to bar or set limits to an expert’s testimony. (shrink)

I am an academically trained philosopher who has taught and written about medical ethics for three decades, who has done extra-mural ethics consultation in clinical and other settings for two decades, and who has served as an expert ethics witness in the courts for more than ten years. Trained as a traditional academic, none of these three pursuits have come easily. Like most philosophers, my education did not prepare me for such responsibilities. Indeed, regardless of a bioethicist's initial background - (...) i.e., health care, law, theology or philosophy - it is invariably necessary to build upon foundational knowledges and abilities in gearing up for work as a health care ethics consultant.Edward J. Imwinkelreid has prepared a remarkable overview of the work of the expert ethics witness from the point of view of the law of evidence. My perspective as a philosopher, an ethicist, and an expert witness, stands in contrast with his. (shrink)

In The Abuse of Casuistry Jonsen and Toulmin describe one view of moral reasoning as follows:Those who take a rhetorical view of moral reasoning… do not assume that moral reasoning relies for its force on single chains of unbreakable deductions which link present cases back to some common starting point. Rather, this strength comes from accumulating many parallel, complementary considerations, which have to do with the current circumstances of the human individuals and communities involved and lend strength to our conclusions, (...) not like links to a chain but like strands to a rope or roots to a tree.Whether or not all moral reasoning resembles “strands to a rope,” bioethics testimony certainly does. Bioethics testimony is eclectic, a composite of many loosely woven strands. Rarely, if ever, is bioethics testimony “a chain of unbreakable deductions.” Rarely is it “pure” ethics, much less pure normative ethics. (shrink)

In the lead article in this symposium issue, Edward Imwinkelried follows other scholars in distinguishing among three types of tasks for ethicists serving as expert witnesses: descriptive ; metaethical ; and normative. He finds agreement that the admissibility of descriptive or metaethical evidence rests upon the usual criteria of helpfulness and reliability. He breaks new ground in arguing that normative evidence typically relates to the judge's legislative rather than adjudicative function and therefore need not satisfy the usual standards for admissibility (...) in order to be considered. (shrink)

Professor Imwinkelried has boldly attempted to justify the admissibility of normative ethical expertise in the face of a legal evidentiary rule requiring a scientific basis for expert testimony. Because ethical testimony is inherently unscientific, Professor Imwinkelried prudently focuses his analysis on circumstances where evidentiary requirements are less strict; those involving the legislative rather than adjudicative function of courts and those in which substantive law overrides normally rigorous evidentiary requirements. While both proposals may have merit and are thoughtful and creative, Professor (...) Imwinkelried ultimately fails to provide sufficient doctrinal support or persuasive rationale for his arguments.Professor Imwinkelrieds argument for the admissibility of “expert” normative ethical testimony has two parts. The major proposition is that, when courts are engaged in legislative functions, they should be permitted to consider all sources of information. The assumption that apparently underlies this proposition is that nothing limits courts’ exercise of legislative powers. (shrink)