We examined the dilemmas posed by the involvement of expert witnesses in court cases and the institutional constraints on the ethics of expert testimony. The causes for the incorporation of bad science into legal decisions, potential solutions to this dilemma, and the limitations of these solutions are considered. We concluded that law, science, and experts must respond to the problems posed by expert witnessing.

There is great skepticism about the admittance of expert normative ethics testimony into evidence. However, a practical analysis of the way ethics testimony has been used in courts of law reveals that the skeptical position is itself based on assumptions that are controversial. We argue for an alternative way to understand such expert testimony. This alternative understanding is based on the practice of clinical ethics.

Bioethics represents a dramatic revision of the centuries-old professional ethics that governed the behavior of physicians and their relationships with patients. This venerable ethics code was challenged in the years after World War II by the remarkable advances in the biomedical sciences and medicine that raised questions about the definition of death, the use of life-support systems, organ transplantation, and reproductive interventions. In response, philosophers and theologians, lawyers and social scientists joined together with physicians and scientists to rethink and revise (...) the old standards. Governments established commissions to recommend policies. Courts heard arguments and legislatures passed laws. This book is the first broad history of the growing field of bioethics. Covering the period 1947-1987, it examines the origin and evolution of the debates over human experimentation, genetic engineering, organ transplantation, termination of life-sustaining treatment, and new reproductive technologies. It assesses the contributions of philosophy, theology, law and the social sciences to the expanding discourse of bioethics. Written by one of the field's founders, The Birth of Bioethics is based on extensive archival research into sources that are difficult to obtain and on interviews with many of the leading figures in the moral debates in medicine. A very readable and comprehensive account of the evolution of bioethics, this book stresses the history of ideas but does not neglect the social and cultural context and the people involved. It will serve the information needs of philosophers, ethicists, social historians, and everyone interested in the origins of some of today's most hotly debated issues. (shrink)

When cases are described thinly to protect patient confidentiality, they teach us only what we put into them. Thick description, like myth, allows a fuller moral response.

Following up on a 1989 paper on the subject, this essay revisits the question of ethical expertise in the court room. Informed by recent developments in the use of ethics experts, the authors argue 1) that the adversarial nature of court proceedings challenges the integrity of the ethicist's pedagogical role; 2) that the use of ethics experts as normative authorities remains dubious; 3) that clarification of the State's interest in “protecting the ethical integrity of the medical profession” is urgently required; (...) and 4) that the expertise of the ethicist may be more appropriately used in advising the legislature than in influencing the court. (shrink)

According to Giles Scofield, ethicists can provide expert testimony in descriptive ethics and metaethics, but not normative ethics. Lawrence Schneiderman appears to disagree with this view, and presumably believes that it is appropriate for an expert witness in ethics to provide ethics testimony in all three areas. I draw this conclusion from several claims made in his commentary which aim to show that we would be contending experts if both invited to testify on a case involving claims about futile medical (...) treatment. This disagreement aside, taken together both commentaries suggest that my testimony in the case of Andrew Sawatzky is wanting.In the response that follows I do not engage in a debate about the content of my testimony. (shrink)

The aim of this essay is to describe and reflect upon the concrete particulars of one academician's work as an expert ethics witness. The commentary on my practices and the narrative descriptions of three cases are offered as evidence for the thesis that it is possible to act honorably within a role that some have considered to be inherently illicit. Practical measures are described for avoiding some of the best known pitfalls. The discussion concludes with a listing of the distinctive (...) competencies and understandings that are useful in serving as an expert ethics witness. (shrink)

This article reflects on the author's modest experience as an expert witness in two trials: Osheroff vs. Greenspan (1983), and In the Matter of Baby K (1994). Bioethicists' expertise as scholar-teachers and consultants on particular issues merits qualification by judges as expert witnesses. The article argues that a different kind of expertise – strong moral advocacy – is required to be an effective expert witness. The major lessons of expert witnessing for the author concern the demands and strains on the (...) bioethicist's role as scholar, teacher, and consultant. The Baby K case is analyzed in some detail, due to its importance for bioethics, ethics consultation, and the testimony of bioethicists on either side of the case. Rules of thumb are offered to guide decisions as to choices regarding expert witnessing, as well as a discussion of the interaction of law and bioethics. (shrink)

In February 1999, I received a call from a lawyer at Hill Abra Dewar stating that she had instructions to retain my services as an expert witness in the case of Sawatzky v. Riverview Health Centre. She was representing the Manitoba League of Persons with Disabilities which had intervenor status.In Canada the admission of expert testimony depends upon the application of four criteria outlined in R. v. Mohan by Justice Sopinka. These criteria are: relevance; necessity in assisting the trier of (...) fact, the absence of any exclusionary rule; and a properly qualified expert. The lawyer believed that I could provide the court with relevant, reliable ethics testimony about surrogate decision-making and about medical futility-information that likely would be outside the experience and knowledge of the trier of fact. (shrink)

The role of an expert witness in ethics, as part of a legal proceeding, is examined in this essay. The essay argues that the use of such expertise rests on confusions about normative and non-normative ethics compounded by misunderstandings about the challenges of moral argument in secular, morally pluralistic societies.