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The rules permit a judge to call her own experts but that rarely happens. In other words, for example, as to any particular issue in a legal case, such as the correctness of a decision made by a doctor with respect to a patient's treatment, a medical expert will be presented by each party, one offering the opinion that the doctor's decision was not coincident with best medical practice, and the other offering the opinion that it was.

Each side, then, presents one or more experts and judges and juries must decide which expert to believe. It is not uncommon for the very competition itself to undermine the authority of the expert and to call into question the entire enterprise of expert witnessing. Political concern has been expressed that in personal injury trials too many plaintiffs are winning large jury awards based in shoddy scientific evidence offered by persons who are professional trial experts without strong continuing scientific lab experience and knowledge, while, in criminal cases, defense attorneys increasingly routinely use expert testimony to challenge the reliability of the scientific basis of forensic evidence, including, for example, even long-accepted fingerprint and hand-writing evidence, thereby undermining prosecutors' cases.

Statutes providing a right to state-funded DNA evidence for indigent clients are being promoted. While there are serious epistemological difficulties with natural science evidence and issues about the capacity of judges and juries to evaluate all expert evidence, qualitative social-scientific, or humanistic, rather than natural scientific or quantitative social-scientific, expert testimony has always fit uneasily within this body of law.

Kitzmiller v. Dover Area School Dist., F. Supp. 2d (M.D. Pa. ) :: Justia

Persistent issues include the qualifications of experts, the methods they use, and the kinds of opinions they can give. Social scientific and humanistic knowledge about human behavior is seen to be much closer to the kinds of common sense judgments that are reserved for the jury or judge and to blur the lines of authority. At the extreme, the very relevance of such knowledge is at issue. In some courts, experts testify both through written reports and through in-court spoken testimony. The written report is often cast in the form of an affidavit, a form of lawspeak that demands a declarative style which enacts a level of certainty about matters with which many academic experts are uncomfortable.

In-court testimony presents other issues. Testifying in response to questions from lawyers makes it difficult for experts to fill out and qualify their testimony in a way that both fits with their disciplinary epistemology and is ultimately persuasive. The very narratives that justify the opinion are often excluded. The legal question will rarely be exactly parallel to the expert's research question. It is in the gap between the two that the question of relevance and materiality falls. Finally, cross-examination often focuses on distracting and sometimes extraneous efforts to catch up the expert in small contradictions or ambiguities—or even contrived deficiencies of training—without the possibility of full explanation.

Some religious traditions have built-in experts, that is, they have elders or theologians or shamans, persons with knowledge and office with whom political authorities have historically consulted or negotiated, and to whom they have sometimes submitted, about religion that comes into conflict with governance. Some modern states have offices or ministries that fill this function, either formal remnants of earlier established churches or the various hybrid descendants of such churches, but growing religious diversity or perhaps more accurately growing acknowledgment of religious diversity continues to challenge the practicality of such efforts.

Such expertise may even be rejected as inherently illiberal so that what counts as religion comes to be defined in pseudo-scientific or vernacular terms. Neither do the individual states. Within the very broad and often ambiguous and contradictory parameters set by the Supreme Court, individual agencies at the state and federal level, including taxing authorities, correctional institutions, the military services, zoning authorities, law enforcement, etc.

This practical lack of consensus about what counts as expertise in religion is exacerbated by the lack of consensus among those who study religion in the US as to what counts as religion.

Supreme Court Upholds Health Care Law, 5-4, in Victory for Obama

Notwithstanding this lack of agreement and the decentralized decision-making about religion by legal authorities in the US, however, religion experts have testified in American trials for a long time, Christian theologians, as well as academic scholars of various religious traditions, and of comparative religions—historians, sociologists and anthropologists. They testify in every kind of case, civil and criminal. A largely dispersed and ad hoc set of practices governs the admissibility of experts on religion in these cases. Yet expert testimony about religion is, in fact, often offered in court and often cited in judicial opinions.

While there is a great deal of research on the use of expert testimony generally, its reliability and its effect on jury decision-making, there is very little academic theorizing of these issues as they pertain to religion. As an example of the latter, in the well-known nineteenth century polygamy case, Reynolds v. Reynolds was recently affirmed in Employment Division v. Smith , in which the Court held that religious motivation to use peyote did not provide a constitutional justification for violation of laws regulating controlled substances.

The two cases are interesting in evidence terms, not in doctrinal terms. The epistemological difficulties considered in this article cut across doctrinal differences about the proper interpretation of the First Amendment. Cemetery regulations limited memorialization to small flat plaques, flush with the ground, regulations that were designed to facilitate lawn maintenance and the movement of heavy equipment for grave-digging but which were also consistent with trends in cemetery design. The City subsequently changed its policy and decided to start enforcing the rules by removing existing grave decorations.

The plaintiffs claimed that both the cemetery rules and the city's enforcement of the rules violated the free exercise clause of the First Amendment to the US Constitution, the Florida Constitution, and the Florida Religious Freedom Restoration Act. Three academic experts in religion testified for the plaintiffs and two for the City of Boca Raton, each offering an opinion as to whether the grave decorations built by the plaintiffs were religious. We had five different theories of what constitutes religion and whether the plaintiffs' activities should be so described.

In the end, the judge developed his own theory of religion in his opinion in the case, using his own religious knowledge as a member of a conservative Presbyterian Church as well as picking and choosing among the views of the courtroom experts.


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There was no jury. Indeed, he revealed a deep and very Protestant skepticism about the significance of the history of Christian burial offered by the church historian as well as the methods of Jewish legal practice employed by the Orthodox rabbinical expert, substituting instead his own lay evangelical understanding of the importance of Christian history and how scripture should be read.

In doing so, he arguably refused to implement the evident intent of the Florida statute to protect religious persons from laws that impinge on their religious practices, whether conventional or not.

The Conflict Between Religion and Evolution

Religious studies as a field is deeply divided on defining religion. Indeed one might say it is constituted centrally by an argument over what counts as religion and whether what counts as religion can be understood apart from a particular political consensus on the issue. Experts in free exercise cases are usually testifying about a particular religious tradition, supporting a party's claim to be acting consistently with her religious tradition.

The testimony of all of the expert witnesses in the Warner case revealed the gap that may open in these cases between the expert's description of a particular religious tradition and the witness' own version of that tradition. The capacity of the court to adjudicate the orthodoxy of the witness' practices is deeply problematic in a country in which religion is disestablished and the free exercise of religion is guaranteed.

Academic experts in establishment clause cases are testifying to the religiousness or secularity of activities of the government or of agents of the government. Most Establishment Clause cases involve schools because historic anti-Catholic prejudice in the US has made schools a focus of political and constitutional concern, but there also are a set of cases concerning directly the possible religiousness of symbols or practices of elected officials, such as government recognition of Christmas as a national holiday or the placing of images of the Ten Commandments in public places as a gesture of moral exhortation.

Many expert witnesses at the trial testified concerning intelligent design. Echoing the standard for scientific evidence under the Federal Rules of Evidence, Judge Jones, the judge in the Kitzmiller case, found that intelligent design is not science but religion because science is defined by methodological naturalism and ID lacks an empirical foundation in the scientific method. That is, if it does not meet the Daubert standard, then it must not be scientific and therefore must be religion. He also found, though, that ID is not merely not science. It is a deliberate fraud.


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Whether ID is religion within the meaning of the Establishment Clause is a different question. To teach ID in science classes may be to teach scientific nonsense, but, one might argue, it is not therefore to teach religion. Proponents of ID are anti-establishment in the sense of being against big government and big science. Some of them are striving to make space for a biblical account of human origins. But ID has no specific religious content.

Its proponents have learned that lesson from the fate of creationism. Judge Jones' decision in the Kitzmiller case was underwritten by the various experts who testified at the trial. Among them was a Christian theologian who described ID as bad theology, the product, in effect, of religious ignorance. It was not just bad science, he said, it was also bad religion. Note: Origins of Life is not taught. A month later, the Dover School Board announced that, beginning in January , teachers would be required to read the following statement to students in the ninth grade biology class at Dover High School:.

Legislatures in various states introduced bills that required the teaching of evidence against evolution. Some school boards on their own initiative added it to the curriculum. One such board controlled the Dover Area School District. Dover is a small town in Pennsylvania. These rulings were not well received by the teachers at Dover High School. It is not biology. By then, however, 11 parents had already filed a lawsuit against the Dover Area School District. Kitzmiller v Dover Area School District Intelligent design went on trial in federal court in Harrisburg, Pennsylvania, in October Both sides assembled teams of attorneys and a number of prominent experts.

The trial, which lasted six weeks, gave intelligent design an exhaustive academic and legal examination. Many compared it to the Scopes case that had put evolution on trial 80 years earlier. Unlike the Scopes trial, both sides presented numerous scientific experts, who testified on the underpinnings of evolution and of intelligent design ID. Defense experts presented three days of testimony by Dr. Michael Behe, the leading scientific advocate of ID.

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The defense experts also testified about gaps and problems in evolutionary theory. District Court Judge John E. Jones listened to the scientific testimony.