Working Paper: Free Evaluation and Its Insufficiency

The determination of a matter in litigation in modern judicial systems depends on two things:

(I)                a finding that certain facts exist or existed;

(II)             an application of certain rules to such facts, whereupon a final judgment is rendered[1].  

In order to make a factual finding, the court relies on evidence brought by parties. The modern adjudication is based on the rationale ascertaining of facts and a rational application of rules, to replace the ancient modes of proof based on the intervention of the deity such as the ordeal or the battle[2]. This tradition originated in the Enlightenment period and has been characterized in the West as the rationalist tradition[3]. Both common law and continental law have recognized that, the jury or the court shall be in principal free to evaluate the evidence based on the ordinary agree of knowledge and the ordinary rules of experience it owns[4]. From the continental perspective, Jolowicz argues that, it is for judges to evaluate the proofs according to his/her own appreciation of them[5]. From the common law perspective, Barzun argues that, modern evidence law tells judges whether a given piece of evidence is admitted only; it does not attempt to instruct the fact finder how to evaluate it[6]. 

However, it is commonly recognized that some technical matters may go far beyond the ordinary agree of knowledge and experience the court or the jury owns. From the common law perspective, when the judge considers his/her own knowledge or experience is insufficient, he/she may allow the parties to bring their experts witnesses to offer technical opinions[7]. From the continental perspective, in France, it is well recognized that, on a technical matter, the judge shall generally call upon an expert rather than rely on his/her personal experience even he/she thinks it is sufficient[8]. Similarly, in Germany, judges need to explain why they consider their own knowledge is sufficient to decide the technical questions[9]. It is thus necessary to seek the technical advice out of the court room from experts, in order for the judge or the jury to understand the significance of the evidence and to make necessary inferences[10].

In the early time, the court overcame the technical difficulties by two means. The first method was to impanel a special jury with specific experience fitted to know the technical issues before the court[11]. Second, the court could call skilled persons into the court to help resolve technical questions[12]. Taylor mentioned that in the early development of English rules of evidence, experts were thought as helpers of the court, rather than expert witness brought by parties[13]. Hand even indicated that, in an urban community, where the questions involving special skill would come up, it was a well-established practice in the fourteenth century that specially quailed people should decided those technical cases[14]. Later, it became well-established in the interpretation of commercial instruments, and in the eighteenth century, it extended from the complex facts to points of law[15].

Similarly, in France, it is tradition for judges to rely on the experts to determine to the technical matters[16]. Although Judges are not bound by the expert’s opinion, in practice, they tend to rely on the expert’s technical opinions[17].

Moreover, the modern rational method of settling disputes is based on the assumption that factual questions and legal questions can be clearly ascertained and divided[18]. In cases involving prospective analysis, it is not for the court to decide that certain facts exist or existed but to predict whether certain risks or economic effects will materialize in the future. The questions thus raise whether the use of currently existing evidence procedures is sufficient for the court to predict the future events or whether the court has the expertise to conduct prediction by itself. Especially, for measures coping with uncertain risks, the limit of science cannot offer the court certain answers for uncertain risks[19]. In other words, uncertain risks are the facts which cannot be ascertained by the court on the basis of scientific evidence. In cases concerning scientific issues, it is even doubtful that courts can clearly divide factual questions from legal arguments when reviewing whether a ban or a restricted measure is necessary or sufficient to avoid certain risks[20]. 

Therefore, based on the practice established by the English and French courts in the past and the new challenges brought by the cases involving non-legal evidence before the European Courts nowadays[21], it might be necessary to rethink the modern rational method employed by the court in deciding technical measures involving a prospective analysis of the facts . Is it still appropriate to allow the court to use its own knowledge and experience to determine the technical measures? Is it sufficient for the court to rely on expert witnesses brought by the parties to determine the technical matters? These questions would be answered in the following Chapters.

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[1] L. Rosenthal, ‘The Development of the Use of Expert Testimony’, 2 Law & Contemp. Probs. 402 1935, at 403.

[2] R. F. Taylor, ‘A Comparative Study of Expert Testimony in France and the United States: Philosophical Underpinnings, History, Practices, and Procedure’, 31 Tex. Int’l L. J. 181 1996, at p. 185.

[3] See W. Twining, Rethinking Evidence, Cambridge 2006, at pp. 75-80 and T. Anderson, D. Schum and W. Twining, Analysis of Evidence, Cambridge 2005, at pp. 78-87.

[4] J. A. Jolowicz, On Civil Procedure, Cambridge 2000, at pp. 213-215. L. Rosenthal, ‘The Development of the Use of Expert Testimony’, 2 Law & Contemp. Probs. 402 1935, at p. 403.

[5] J. A. Jolowicz, On Civil Procedure, Cambridge 2000, at p. 213.

[6] Charles L. Barzun, Rules of Weight, Notre Dame L. Rev., Vol. 83 No. 5 (2007-2008), at p. 1957.

[7] Thus, it is inevitable for the judge to decide between conflicting expert testimony and it is the judge’s constitutional duty to do so, see J. A. Jolowicz, On Civil Procedure, Cambridge 2000, at pp. 257-258.

[8] J. A. Jolowicz, On Civil Procedure, Cambridge 2000, at p. 259.

[9] Ibid, at p. 259.

[10] L. Rosenthal, ‘The Development of the Use of Expert Testimony’, 2 Law & Contemp. Probs. 402 1935, at p. 404.

[11] L. Hand, ‘Historical and Practical Considerations Regarding Expert Testimony’, 15 Harv. L. Rev. 40 1901-1902, at p. 40.  Nowadays, in four canons of Switzerland, civil matters could be heard in commercial court composed of three judges and two assessors drawn from the local chambers of commerce, see F. Dessemontet and T. Ansay (eds.), Introduction to Swiss Law, Kluwer 2004, at p. 289.

[12] R. F. Taylor, ‘A Comparative Study of Expert Testimony in France and the United States: Philosophical Underpinnings, History, Practices, and Procedure’, 31 Tex. Int’l L. J. 181 1996, at p. 186.  Similarly, under French Civil Procedural Law, expert evidence can be seen as an extension of the court, see J. A. Jolowicz, On Civil Procedure, Cambridge 2000, at p. 234 and J .Beardsley, ‘Proof of Fact in French Civil Procedure’, (1986) 34 Am. J. Comp. L. 459, at p. 480.

[13] R. F. Taylor, ‘A Comparative Study of Expert Testimony in France and the United States: Philosophical Underpinnings, History, Practices, and Procedure’, 31 Tex. Int’l L. J. 181 1996, at p. 186.

[14] See J. A. Jolowicz, On Civil Procedure, Cambridge 2000, at p. 229 and L. Hand, ‘Historical and Practical Considerations Regarding Expert Testimony’, 15 Harv. L. Rev. 40 1901-1902, at p. 42.

[15] L. Hand, ‘Historical and Practical Considerations Regarding Expert Testimony’, 15 Harv. L. Rev. 40 1901-1902, at p. 43.

[16] R. F. Taylor, ‘A Comparative Study of Expert Testimony in France and the United States: Philosophical Underpinnings, History, Practices, and Procedure’, 31 Tex. Int’l L. J. 181 1996, at pp. 186-188.

[17] Under French Civil Procedural Law, expert evidence can be seen as an extension of the court, see J. A. Jolowicz, On Civil Procedure, Cambridge 2000, at p. 234 and J .Beardsley, ‘Proof of Fact in French Civil Procedure’, (1986) 34 Am. J. Comp. L. 459, at p. 480.

[18] C. E. Foster, Science and the Precautionary Principle in International Courts and Tribunals-Expert Evidence, Burden of Proof and Finality, Cambridge 2011, at p. 6.

[19] The so-called uncertainty paradox happened between scientific experts, judges, regulators indicated by Asselt and Vos in their works would be detailed discussed in the next Chapter, see M.B.A. Van Asselt and E. Vos, ‘Precautionary Principle and the Uncertain Paradox’, (2006) Journal of Risk Research 9 (4), at pp. 317-318. Also, in US Law, the doctrine of the frontier of science recognized the limits of science to offer the courts the answer, see Martin Shapiro, ‘The Frontiers of Science Doctrine: American Experiences with the Judicial Control of Science-Based Decision-Making’, in Joerges, Ladeur and Vos (eds.), Integrating Scientific Expertise into Regulatory Decision-Making: National Traditions and European Innovations, Nomos Verl.-Ges., 1997, pp. 327-328.

[20] C. E. Foster, Science and the Precautionary Principle in International Courts and Tribunals-Expert Evidence, Burden of Proof and Finality, Cambridge 2011, at p. 6.

[21] C. Joerges, ‘Scientific Expertise in Social Regulation and the European Court of Justice: Legal Framework for Decentralized Governance Structures’, in Joerges, Ladeur and Vos (eds.), Integrating Scientific Expertise into Regulatory Decision-Making: National Traditions and European Innovations, Nomos Verl.-Ges., 1997, p. 295.