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GARY EDMOND[*]
The connections between the advocate’s concept of the ‘theory of a case’, ideas about ‘coherence’, historians’ concerns about narration, sociological interest in constructing reality ... are crying out to be mapped and explored. (Twining, Rethinking Evidence)
In line with much of Jasanoff’s analysis, this article challenges the assumptions motivating the vast majority of existing law-science accounts. [4] This implies the need for a modified orientation to scientific evidence, and, more particularly, the interaction of the legal system and the sciences. Below I have attempted to utilise resources from the sociology of scientific knowledge (SSK) to provide a detailed re-consideration of the manner in which scientific evidence and idealised images of science were deployed in the Chamberlain inquests, trial, appeals and Royal Commission. Having provided an example of an alternative interpretation of one particular law-science interaction (the zoo experiment), my account will then problematise and refine some of the purported implications of legal deconstruction. They will be seen as inadequate descriptions of what occurs during legal proceedings and in public representations of scientific knowledge for both the sociologist of science and other participants. It is my contention that Jasanoff’s failure to differentiate the audiences in legal settings has led to some fundamental exaggeration of the potential for the legal system to provide a coherent and pervasive mechanism for enhanced public understanding of law, politics and science. [5]
The Chamberlain story is arguably Australia’s most famous criminal case. The Chamberlains’ nine week old daughter, Azaria, disappeared during a family camping trip to Ayers Rock (now Uluru) in September 1980. The parents claimed that a dingo had taken their baby from the family tent. Azaria’s body was never found, but most of her clothing was recovered one week later, some kilometres away. After examination of the clothing and some preliminary inquiries, certain “core” members of the police investigation team were convinced of human rather than dingo intervention. [6] This suspicion led to an intensified police investigation, two coronial inquests, a trial, several appeals and ultimately, a Royal Commission. [7] At the first coronial inquest, Coroner Barritt absolved the Chamberlains of responsibility for Azaria’s disappearance (and death) but did not eliminate the possibility of human agency in relation to the condition and location of the recovered clothing. The residual uncertainty from the Barritt Inquest combined with a “disjointed” but ongoing investigation, intense media interest and more extensive forensic “evidence”, eventually led to the quashing of the first coronial findings and the conduct of another coronial inquest. A second coroner, Galvin, determined that with the addition of fresh evidence the Chamberlains now had a case to answer. Lindy was charged with murder and her husband, Seventh Day Adventist Pastor Michael, was charged with being an accessory after the fact. In a trial lasting six weeks a jury found both the Chamberlains guilty as charged. That verdict survived appeals to the Federal and High Courts. However, the Chamberlains, in combination with their energetic and committed supporters, were determined to secure acquittal. Intense lobbying, further testing and the discovery of new “corroborative” evidence which was able to be integrated into the existing accounts and narrative constructed by the Chamberlains and their legal representatives led to a Royal Commission in 1987. The Commissioner found that the jury “could not properly convict on the evidence as it now appears”. Lindy was released from gaol. The Chamberlains, now divorced, are “legally free”. Rather than “innocent”, their status is “not guilty” or “not proven guilty”.
There are many in the Australian community who remain highly suspicious, if not committed, to belief in the Chamberlains’ – but especially Lindy’s – guilt.
Narrative accounts provide descriptions of “action and belief in ways, appropriate to the particular interpretative context ... .” [8] The trial:
... provides a vivid example of how the ability to see a meaningful event is not a transparent, psychological process but instead a socially situated activity accomplished through the deployment of a range of historically constituted discursive practices. [9]
Rather than consider scientific and legal accounts “as more or less accurate renditions of some putative reality, we should view them as designed for their robustness in an argumentative arena.” [10]
The zoo experiment – to be considered below – was linked to and formed part of a narrative which the Prosecution had assembled against the Chamberlains. At trial, the Prosecution had combined a number of disparate elements to build their circumstantial case for infanticide. In addition to the forensic testimony, they sought to emphasise inconsistencies in the Chamberlains’ accounts [11] in conjunction with a description of their actions surrounding the disappearance reconstructed [12] to appear irrational and, over time, highly suspicious. [13] The chief prosecutor, Barker QC, seemed to intertwine the Chamberlains’ Adventist religiosity with their “mysterious” behaviour. [14] The Chamberlains’ “anachronistic” religion provided a powerful contrast to the ensemble of hard scientific and forensic evidence. [15]
Barker insisted in his opening and closing statements that only two alternative findings were available to the jury: dingo abduction or infanticide. Forensic evidence was introduced to suggest that the Chamberlains’ account was a complete fabrication and to provide a platform on which to build an alternative account. The Prosecution’s forensic evidence suggested that foetal blood had been found in the Chamberlain car. The blood had been discovered after an exhaustive examination and had included a spray pattern – consistent with the arterial spray of a child – underneath the passenger side dash. Scissors removed from the car, clothing worn by Lindy and a camera bag were among the additional items which had been found or observed to have traces of blood which was possibly foetal. When Azaria’s clothing was found and examined, the damage was assessed by scientists and technicians retained or consulted by the State to be the result of cutting by scissors. Small tufts of cotton associated with cutting the jumpsuit as well as human hairs, consistent with a baby’s, were found in the car and camera bag.
This collection of contested “facts” formed the Prosecution case. These scientifically buttressed facts seemed to make, the otherwise bizarre, Prosecution narrative plausible. The narrative and the facts were constructed interdependently and served to accommodate and support each other. The investigation and case construction drew upon the tacit knowledge of lawyers, scientists and technicians. The narratives, even early proto-type versions contributed (even at the level of suspicion) to the provision of an investigative framework. Because of particular orientations, not all artefacts were deemed relevant or even interesting. “This process of reinterpretation to distil a comprehensive, ultimate version can produce firm conclusions only by disregarding copious interpretative uncertainties.” [16] What counts as evidence is irreducibly linked to particular reconstructed narratives. [17]
The Prosecution linked their forensic evidence and reconstructions of some of the eyewitness testimony to a claim that Lindy had cut her daughter’s throat in the family car with a pair of scissors. Then, Lindy was alleged to have returned to the family tent, some twenty metres from where her husband and others were cooking dinner, to remove her blood stained clothing. In the process, it was suggested that she transferred blood to a variety of items sitting in the tent. The Prosecution narrative was deliberately vague about the precise order and timing of what then allegedly transpired. The strength of the forensic evidence was supposed to mediate the uncertainty surrounding the exact timing of the events which followed. The Prosecution contended that sometime after killing Azaria, during an extensive search undertaken by several hundred people, Lindy revealed to her unsuspecting husband what she had done. Subsequently, one or both of them buried, and later exhumed the body and removed the clothes. Later in the night one of the Chamberlains allegedly cut the clothing, after the blood had congealed, and placed it near a dingo lair several kilometres from the hotel to which they had been transferred.
In contrast, the Chamberlains and their lawyers claimed that a dingo had entered the tent, seized the baby and withdrawn. During the seizure blood was allegedly deposited upon various items in the tent. The discovery of the damaged clothes in the vicinity of several dingo dens one week after the disappearance was portrayed as consistent with the Defence’s dingo abduction account. This account was supplemented with eye-witness testimony and the observations of Aboriginal trackers.
At the Barritt inquest, before the Prosecution narrative included the foetal blood they claimed to have discovered in the Chamberlains’ car, the Defence narrative provided an explanation sufficient to sustain the Chamberlains’ “innocence”. After the “discovery” of foetal blood in the car, and a second inquest which recommended laying charges, it became tactically imperative for the Defence to expand their narrative to account for (or create “reasonable doubt” around) a variety of novel “facts” which were unable to be accommodated within the bounds of the narratives adopted for the inquests.
The Prosecution held the advantage of having had several years to construct a variety of cases – tempered by the ever changing and increasingly refined reconfiguration of an assortment of artefacts and tests derived from their ongoing investigation. They were able to repeatedly confront the Chamberlains through their ability to deem certain artefacts as evidence, specifically tailored to particular narratives. Whilst the Chamberlains were certainly cognisant of elements of these emerging antagonistic cases, their testimony from earlier inquests and recorded police interviews served as a limit to the plausible restructuring of their defensive claims. During the Galvin Inquest, the content of the evidence against the Chamberlains was withheld until after they had testified so that they could only anticipate and respond to leading and incriminating questions in the most tentative manner. Although ultimately deemed inadmissible in the trial, the transcript of that testimony effectively restrained the range of useful ad hoc defences they could credibly construct.
By the end of the trial, the Chamberlains’ reconstructed and expanded narrative had not “adequately” dispelled the alleged presence of blood on the camera bag and in their car. They adopted a supplementary strategy, enlisting a number of eminent academic biologists to contest the blood testing undertaken by the scientific arm of the Prosecution. So, whilst the blood in the car might not have been fully explained, scientists were introduced by the Defence to suggest the tests indicating its foetal origins were improperly conducted and unreliable. It was the Defence’s contention that the reliability of the scientific tests was rendered even more suspect because the tested blood had denatured in a car in the outback of northern Australia experiencing extreme diurnal temperature ranges.
Throughout the various inquests, trials, appeals and the Royal Commission surrounding the disappearance of baby Azaria, scientists, technicians and lawyers regularly referred to experiments and tests. As might be anticipated from expert testimony presented in adversarial settings, the various experiments were the subject of some, occasionally acrimonious, disagreement. 18 There was no simple consensus among the scientists or lawyers over the appropriate methods for conducting experiments, the suitability of tests and their limitations, the competence of the experimenters, the utility of application to the particular case or the conclusions which could be “legitimately” drawn. 19
Rather than conceiving of scientific experiments as establishing indisputable facts on which jurors, coroners, appellate judges and a Royal Commissioner could simply adjudicate, a more complex notion of experiment can be developed which introduces the process of construction, framing, deconstruction and reconstruction involved in producing “acceptable” (temporarily “stabilised” or “closed”) and tractable interpretations. [20] Even stabilised interpretations are able to be “opened” and subject to revision for all sorts of reasons. It will be argued that the meaning and management of experiments in the Chamberlain inquests and trial were subject to considerable negotiation and demarcation. [21] Not every aspect of every experiment was challenged. Some objections were directed toward an entire experiment whilst others focused upon specific features of an experiment which were perceived as especially troublesome. Experiments function as epistemic persuasive nodes in competing narratives – often having their role in the construction of those narratives subsequently obscured. The constant surveillance and management of the legitimate bounds and meanings of experiments in legal contexts are closely related to the interests of the parties.
Whilst philosophically and sociologically experiments can be described as indeterminate, this does not mean that any interpretation can freely or convincingly be ascribed to them. [22] This is particularly important in legal forums – which are structured to routinely convince/persuade some participant(s) (usually judge and/or jury) to decide or justify decisions in certain desired ways. Indeterminacy effectively provides a mechanism for manipulating and managing particular representations or constructions. [23] Both the Prosecution and the Chamberlains’ counsel shifted their positions, depending upon the context and on what they claimed to be the meaning or implications of particular experiments for their over-arching narratives. The semantic flexibility of experiments and their management by various lawyers and scientists will be illustrated below through the example of the so-called “zoo experiment”. [24] The use of the zoo experiment across the inquests, trial and appeals infuses it with a diachronic aspect which allows consideration of the various interpretations in relation to shifting attitudes 1998] SCIENCE IN COURT 369 to the Chamberlains’ guilt. Before commencing this study I will provide a brief account of the experiment, though it should be recognised that even the description of this activity as some kind of “adequate” scientific experiment was, on occasion, contentious. [25]
During the inquests and trial, the zoo experiment was packaged and challenged in a variety of ways. The attacks included challenges to its scientific adequacy and legitimacy. [26] The zoo experiment had been undertaken by Prosecution scientists and technicians. Whether embarking upon the zoo experiment went beyond the necessary diligence of forensic investigators (implying an interest in its outcome) or affirmed the normative image of their relentless search for “the facts” remained unexplored. In undertaking the experiment, it seemed, the Prosecution had little to lose. The zoo experiment may not have been essential to the Prosecution case or the eventual decision to lay charges, but it was certainly capable of providing an evidentiary supplement if interpreted in a manner favourable to the Prosecution. It contributed to a cumulative evidential edifice, even if the experiment was subsequently displaced by more “convincing” forms of “evidence”. Such processes, often omitted from official accounts and the reconstructions provided by scientists, have received little attention in legal literature.
Harold Kuchel, [27] a botanist consulted by police for his opinion in regard to vegetable matter embedded in Azaria’s jumpsuit was a member of the council of the Adelaide zoo. He suggested to his fellow investigating scientists that an experiment might be conducted at the zoo. In his own words, Dr Kuchel: “merely made the contact [with the director] – and then passed it over to Dr Brown.” [28] Following this encouragement, Dr Brown, a forensic odontologist, and others (including Dr Scott, a forensic biologist) conducted a number of experiments related to the Chamberlain investigation in zoos and wildlife parks. For the moment, however, we will focus on the proposed jumpsuit experiment, designated as the zoo experiment.
The zoo experiment was conducted on the first and second of October, 1980. In the early evening, a skinned goat with its forelegs and head removed, was dressed in a singlet, nappy, fully buttoned jumpsuit and placed in a dingo enclosure at the zoo. Azaria was reportedly dressed in a singlet, nappy, jumpsuit, matinee jacket and booties on the night of her disappearance. Dr Brown provided the experimental clothing and the zoo staff prepared the goat carcass. The captive 370 SYDNEY LAW REVIEW [VOL 20: 361 dingo, in whose enclosure the carcass was to be placed, had not been fed for five days.
The experiment began later than the investigating scientists had planned. Darkness limited their opportunity to observe what took place:
Macknay: ... darkness impeded you from observing terribly much of what actually occurred between the dingo and the goat carcass? – – – Brown: Yes, it was not possible to remain after dark. The following day the clothing was recovered. Is that correct? – – – Yes. [29]
The following morning, the kid had been devoured and the articles of clothing were collected and taken back to various laboratories for examination. It is worth noting that individuals, interested in the Chamberlains’ defence, wrote to Taronga Park Zoo in Sydney seeking to make arrangements to conduct zoo experiments of their own. The director declined access.
(i) Clothing from the Zoo Experiment
The clothing from the Adelaide zoo experiment was dirtier and had sustained considerably more damage than the recovered clothing warn by Azaria. There were only two studs undone on the jumpsuit when recovered from the dingo enclosure, and the carcass had been removed. The zoo experiment artefacts contained many hairs subsequently identified as consistent with dingo hair and further testing indicated the presence of dingo saliva.
(ii) Azaria’s Clothing
The condition of Azaria’s clothing, which had deteriorated over the years from age and the “depredations of scientists”, [30] was roughly as follows. It was blood stained, primarily around the collars of the singlet and jumpsuit. This staining was used to suggest bleeding from the head or neck or both. There was damage to the material of the jumpsuit. It was found with only two studs done up and the investigators made no positive identification of dingo hairs or saliva on the clothing. [31] There was some debate as to whether the clothing had been exposed to rain during the week before discovery.
The zoo experiment was planned and performed by scientists routinely involved in criminal investigation. Reconstructing the goals of the experimentalists is not a simple process because, as Gilbert and Mulkay have argued, the represented aims and meanings of experiments change over time and according to context. [32] Together, expert testimony, case introductions, summaries and expert reports provide occasions where some of the objectives held by the scientists in regard to the zoo experiment were publicly canvassed.
The zoo experiment appears, from its design, to be a simulation of a dingo attack on a small child to allow the actual attack and various articles of clothing to be compared with the Chamberlain account and artefacts. Such an aim is supported by the use of similar clothing (nappy, singlet and jumpsuit) wrapped around a modified goat carcass, the attempt to record the experiment on video and the decision not to feed the dingo for the preceeding five days to encourage an attack. [33] Dr Brown’s report included a map of the dingo enclosure which indicated the position from which the various items of clothing were recovered the morning after the experiment. The production of the video, the map of the location of clothing and placing clothing on a young goat all suggest that the zoo experiment was originally conceived with fairly broad aspirations. [34] It was designed to obtain some impression of dingo behaviour and compare the extent of damage (rather than merely the type of damage) with the jumpsuit allegedly worn by Azaria Chamberlain. Such an experiment was occasionally implied to be some type of replication. [35] I will refer to this as the “broad” purpose of the zoo experiment. Other experimental aims included collecting saliva stained clothing for Dr Scott to examine, teeth marks on fabric for Dr Brown and hairs on clothing for Dr Harding (forensic biologist) – all for comparison with the condition of Azaria’s clothing. This will be denoted as the “narrow” purpose.
In addition, there was at least one – unanticipated – feature of the Prosecution’s zoo experiment amenable to appropriation by the Defence. [36] The number of studs undone on the experimental jumpsuit, from which the kid had been removed, was fewer than the number undone on the recovered Chamberlain jumpsuit. This led the Defence into a precarious boundary management situation. On the one hand they sought to contest the scientific legitimacy of the zoo experiment or to exclude the Prosecution’s broad interpretations and even challenge the utility of narrower interpretations whilst on the other hand upholding the importance of the number of studs, primarily as an indication of dingo capabilities.
Such experimental aims, findings and interpretations were the subject of considerable negotiation throughout and across the various legal forums. [37] Both “sides” sought to emphasise those aspects of the experiment and its purpose, methodology and conduct which assisted their interests whilst simultaneously undermining the claims made by their opponents. [38] Over time and in varying contexts, there were changes in the manner in which the zoo experiment was deployed. Its strengths and limitations were provided with divergent representations at different times by participants. Typically, the most conservatively (or narrowly) structured readings of the zoo experiment, those by the Prosecution scientists, were generally revealed during their crossexamination. In contrast, the most expansive (or broad) interpretations were made during re-examination and in counsel’s opening and closing addresses which generally precluded further challenges or adverse comment from interested or opposing counsel.
The following sub-sections focus upon the framing of the zoo experiment. Legal, scientific and judicial criticisms of the zoo experiment are developed more fully in the later section considering legal deconstruction.
It became apparent, even at the Barritt Inquest, that the counsel representing the Chamberlains were highly critical of the zoo experiment, especially its broader purposes. The strenuous criticism raised at the Barritt Inquest meant that during inquests and the trial, those lawyers and expert witnesses representing the State often employed the narrow or more constrained interpretation of the zoo experiment which was less susceptible to the criticism raised by counsel representing the Chamberlains. Whilst part of the driving force behind the experiment was to examine the overall damage inflicted on clothing by a dingo, as this aspect of the zoo experiment became an area of perceived vulnerability, it received less overt emphasis, especially in the answers provided by investigating scientists during cross-examination. Instead, when questioned, the Prosecution lawyers and scientists shifted the emphasis of the zoo experiment from some of its broader purposes to one which was ostensibly a means of collecting samples of dingo saliva, hair and teeth marks in clothing.
As contexts varied, extrapolations from the zoo experiment expanded and contracted. The same person might articulate divergent interpretations in different settings or at different stages of their testimony. The broader aims of the zoo experiment espoused at the inquests by Dr Scott were refined by the more narrowly defined and contextually defensible aims espoused by Dr Brown during his vigorous cross-examination at the trial. Whereas Dr Kuchel and Dr Scott had initially expressed a desire to “prove certain things”, [39] under cross-examination Dr Brown originally attributed his aims and involvement to a more modest experimental purpose. He merely wanted “[t]o get some material upon which we could compare the marks on the clothing that was provided that was from Ayers Rock which we knew or understood to have been produced by a dingo.” [40] Dr Brown was extremely careful in providing his testimony at the Galvin Inquest after a disappointing session at the Barritt Inquest. This time, he located his procedures and experimentally derived claims in established methodologies drawn from textbooks and reinforced through his own international experience:
... the procedure that I followed as it’s been laid down in the textbooks, and from my experience in other countries as well, requires a comparison be made and the purpose of obtaining the sample from the dingo in the zoo was purely just to get a comparison with the marks which were produced by what was reasonably understood as being produced by a dingo ... [41]
The narrow orientation to the zoo experiment was reinforced by Dr Brown during cross-examination:
Rice: You freely admit, do you not, that the zoo experiment had really many objectionable features as a scientific experiment as far as the simulation of the removal of clothes and the devouring of the contents of the body were concerned? ... – – – Brown: ... I agree only that it was satisfactory for the purpose of which I had conducted the experiment and that was to obtain marks in similar materials that I had to examine. [42]
With this more restricted interpretation of the purpose of the experiment temporarily conceded by this witness, Rice’s criticism shifted from the experiment to the attributes of the experimenter:
Rice: And this was the first time you had ever conducted any experiment with this object [compare marks in clothing] in view? – – – Brown: ...Yes. [43]
This last example suggests two things. First, that the desired interpretation of particular evidence is actively constituted and in legal contexts often only temporarily sustained. And second, containing and eroding the credibility of “evidence” form only part of an ongoing process of critique which, as Collins has skilfully demonstrated, supplies opportunities for differentiation and deconstruction with no (philosophically) absolute – though often tangible empirical [44] Once the more damaging aspect of the zoo experiment – the broad interpretation – was “contained” the cross-examiner could shift attention to other considerations enabling further attacks on even the more narrowly defined interpretation of the zoo experiment.
The similar tactic of reverting to the narrow construction of the zoo experiment was also adopted by Prosecution counsel in their own statements. In the face of a barrage of experimental limitations, Sturgess claimed a modest role for the zoo experiment at the Galvin Inquest:
It is no part of the material that I am seeking to present that because the clothing that was used in the dingo experiments was torn in a particular fashion that similar clothing will always be torn in that particular fashion. [46]
Barker made a similar representation in his opening address at the Trial: The object of this was not to determine how long it took a dingo to extract a goat from a jumpsuit. The object of it was to get fabric with bite marks on it, which contained dingo saliva which is what was achieved. [47]
At its broadest, the zoo experiment could be represented as capable of providing a direct parallel with the alleged dingo abduction of Azaria Chamberlain. Used in this way, the Prosecution could crudely compare the two sets of artefacts. Wittgenstein suggested that apparent relationships of similarity and difference depend upon classification rather than intrinsic ontological features. [48] Pinch adds to this that a similarity “relationship can only be constructed within a body of conventions” or within a form of life. [49] The “crafting” of difference between the two sets of . clothing enabled the Prosecution to attribute these differences to the absence of dingo involvement in the Chamberlain case rather than to idiosyncratic differences which might be symptomatic of two separate incidents involving dingoes. [50]
During re-examination at the trial, Sturgess asked Professor Chaikin (textile scientist) to compare the two jumpsuits. This comparison was for the purpose of creating the impression that the zoo experiment jumpsuit was substantially different from Azaria’s jumpsuit.
Sturgess: Was the appearance anything like the appearance of the damaged areas on the Azaria Chamberlain jumpsuit? – – – Chaikin: No, they were not. [51]
A similar approach was adopted during the re-examination of Dr Sims (forensic odontologist).
Barker: An experiment was carried out at Adelaide zoo? – – – Sims: Yes.
Did you see the jumpsuit? – – – ... yes, I did see the jumpsuit ... .
What did you notice about it? – – – There was a great deal more damage to the jumpsuit than there was in this particular one we have in evidence.
Were they in any way similar? – – – No. [52]
Whilst Professor Chaikin provided little commentary on the zoo experiment, his description of the condition of that jumpsuit emphasised differences between the two jumpsuits. He described the zoo jumpsuit as much dirtier and more difficult to examine than Azaria’s jumpsuit. Such evidence provided an obvious means to distinguish the two jumpsuits in a framework where “differences” could support the Prosecution’s hypothesis that the jumpsuit known to have been chewed by a dingo was in a demonstrably different condition to Azaria’s jumpsuit. This feature was emphasised, even though elsewhere it was not described as the purpose or even a legitimate function of the zoo experiment.
At the trial Phillips’ closing address inadvertently reinforced a similar point to that emphasised by Professor Chaikin:
... the zoo jumpsuit was heavily contaminated with dirt which prevented proper investigation of the nylon fibre ends. He [Chaikin] said that the sample he could examine properly was too small to make a proper conclusion of the mode the fibres had been broken. In other words to put it in the scientific terms with which we are thoroughly familiar his control failed. His dingo suit from the zoo was his control, and through contamination with dirt there wasn’t enough material there for him to make a proper comparison. [53]
Phillips argued that the experimental jumpsuit could not function as an experimental “control” [54] for Professor Chaikin because the effects of exposure to a dingo rendered it difficult to examine with a scanning electron microscope and it was therefore not susceptible to comparison with Azaria’s jumpsuit – which had been inspected. Without departing from the narrow confines of the zoo experiment Phillips inadvertently provided a powerful implicit differentiation between the condition of the two jumpsuits. In an attempt to explain that the zoo experiment was not appropriate for some purposes – such as broader forms of comparison – Phillips reinforced that very differentiation – the two jumpsuits were different. As we will shortly see, on other occasions Phillips was endeavouring to emphasise at least one apparent similarity between the two jumpsuits.
Throughout the litigation Rice endeavoured to contain and undermine the contention raised by the Prosecution that the broad use of the zoo experiment supported their claim that the damage to Azaria’s clothing was inconsistent with damage caused by a dingo. Having adopted such a position in regard to the Prosecution’s broad use of the experiment, Rice proceeded to employ a feature of the experiment – which was only conducive to a very broad reading – to provide an indication about the behaviour of dingoes or of dingo propensities in support of the case he was constructing for the Chamberlains. Whereas Rice had provided a multitude of factors to distinguish between the zoo and the night at Ayers Rock, including emphasising differences between wild and captive dingoes, a live child and an animal carcass and the availability of food, these various criticisms receded when one feature of the zoo experiment which was susceptible to powerful deployment in support of the Defence narrative was adduced. Azaria’s jumpsuit and the zoo experiment jumpsuit both had one glaringly obvious feature in common: the two upper press studs of both garments were undone on recovery. [55]
When the zoo experiment was introduced through Dr Brown during the Galvin Inquest, Rice interrupted Dr Brown’s testimony to object, claiming it was: “[t]he most unscientific experiment ever conducted.” Having reiterated many of his earlier criticisms (deconstruction) from the Barritt inquest at some length, Rice subsequently claimed the otherwise problematic experiment as efficacious for demonstrating some dingo propensities.
... one thing emerging from it, namely that a dingo has the capability of removing a meaty object from a jumpsuit, leaving two only press-studs, much to the surprise of everybody; two, only, undone in order to extricate it ... [56]
In his summation at the trial Phillips repeated Rice’s contentions. [57]
Conversely, in the face of the Defence appropriation of the zoo experiment, the Prosecution attempted to question the validity of drawing any useful conclusions from the number of studs found undone on the zoo experiment jumpsuit. When Dr Scott, who had earlier provided a broad rationale for undertaking the zoo experiment, was questioned about the importance of finding the carcass removed and only two studs undone on the zoo experiment jumpsuit he provided qualifications which served to undermine the significance or relevance of that aspect of the experiment.
Rice: You are aware now, or not, that the jumpsuit at the zoo experiment had two pressed studs only open? – – – Dr Scott: Yes.
Did you not bring that to mind, did you? – – – No, we — I think we set up the experiment in that form for that reason. On the basis of the information which we gleaned from the results at the zoo, I do not believe that really is particularly relevant because we were looking at quite a different situation. [58]
By retreating to the relative sanctity of the narrow interpretation this Prosecution witness could attempt to diminish the importance of the Defence’s concerns. Dr Scott provided a limit to the extrapolation Rice sought to draw on the broader interpretation of the experiment that enabled his own interpretation of the zoo experiment to appear more modest, and importantly, as the intended outcome of a planned experiment.
In attempting to convince the coroner, jury, appellate courts and Royal Commissioner of the legitimacy of each of the competing narratives, counsel sought not only to bolster the credibility and claims of their own scientists but also to attack the claims, approaches and credentials of opposing scientists. [59] The process of attacking, unravelling and ironicising [60] knowledge claims in legal contexts has been described as “legal deconstruction”. [61] The legal deconstruction of scientific evidence has been discussed by a number of commentators including Wynne, [62] Collins and Pinch, [65] but has received its most extended treatment in the work of Sheila Jasanoff. [66]
In a number of recent books and articles, Jasanoff has promoted the notion that legal forums provide a mechanism for the deconstruction of science.
For sociologists of science, deconstruction means nothing more arcane than the pulling apart of socially constructed facts during a controversy. That facts should lend themselves to deconstruction is a straightforward corollary of their original construction. The adversarial structure of litigation is particularly conducive to the deconstruction of scientific facts, since it provides both the incentive (winning the lawsuit) and the formal means (cross-examination) for challenging the contingencies in their opponents’ scientific arguments. [67]
For Jasanoff, “[d]econstruction [educates and] empowers the public by exposing the interpretative flexibility for different social actors involved in formal disputes.” [68]
The deconstruction of science is made possible by the social construction, or constitution, and framing decisions involved in the production of scientific knowledge. For the purpose of the following discussion the possibility of deconstructing scientific knowledge is not in dispute. Rather, the value of legal settings for engaging in and exposing what can be understood as the deconstruction of science – exposing the socially constituted and contingent nature of scientific knowledge – is portrayed as more complex than Jasanoff would seem to indicate. The remainder of this paper will explore the formidable claims Jasanoff makes for legal deconstruction and compare these with the example of the apparent deconstruction of the zoo experiment in order to evaluate Jasanoff’s theoretical contentions. It will be suggested that deconstruction is informed by the vantage point of the observer, and it would be illegitimate to attribute the perspective held by a sociologist of science to other participants in legal settings. In addition it will be argued that an awareness of the social construction of scientific knowledge is not one of the experiences which regularly follows from exposure to scientific controversy in legal or scientific settings.
Earlier I explored the framing of the zoo experiment. I argued that this experiment was susceptible to deployment in a variety of situations depending upon the degree of constriction placed upon its interpretation. But criticism of the zoo experiment went beyond delimiting or authorising acceptable meanings. The zoo experiment provides an accessible example – because it is largely devoid of complex technical considerations – of the deconstruction of scientific evidence in legal settings. Indeed, it was apparently designed, as I have indicated above, to function as both a collection of artefacts for further analysis and to varying degrees as a propaedeutic, as a comparison to Azaria’s clothing based almost entirely on visual resemblance. Because the zoo experiment seemed and could be represented as ad hoc, it was susceptible to criticism as being nonscientific. Such an argument served to undermine the credibility of the Prosecution investigative scientists and technicians (Brown, Kuchel, Scott, Cocks). Because the experiment was also susceptible to representation as simple and obvious, the scientific indicia could be dropped allowing the Defence (and even the Prosecution) to draw upon the features which supported their case, whilst ignoring or rejecting its scientific status. This is an aspect of deconstruction which Jasanoff does not seem to explore. The various participants have an interest in constructing and deconstructing and expanding and contracting the same experiment on different occasions during the same case. The meaning and apparent constructedness of the zoo experiment varied markedly, even for the one side. The development of narratives and the processes of construction and deconstruction are fundamentally dynamic, simultaneously apprehensive and responsive to the requirements of the forum and the claims of opponents and allies. [69] The Barritt Inquest was the first of the Coronial inquiries. Whilst there are legal rules prescribed and traditions to follow, the manner of running each proceeding with its own special considerations is unique. This first inquiry, with its particular framing of evidence, was influential on all subsequent proceedings. Because of the number of proceedings, this influence extended to the Galvin Inquest and Trial. [70]
The Barritt Inquest provided lawyers with an opportunity to “test” arguments and the limits of their opponent’s case(s). At the Barritt Inquest, among other factors, counsel for the Chamberlains were effective in portraying the investigative and experimental efforts pertaining to the zoo experiment as illegitimate. That is, in conjunction with the entire Prosecution submission, they did not warrant the rejection of the Chamberlains’ account. Some of the arguments raised there by Rice are discussed below. Although many of these same criticisms were raised and developed at the Galvin Inquest and Trial, they did not appear to make the same impact. One of the reasons for this is that evidence is evaluated as part of an overall case. [71]
The apparent strength of a case effectively determines what can count as evidence, with some role played by the attacks through crossexamination and general scepticism about the credibility of particular evidence or witnesses. What counts as evidence is dialectically determined through the interaction of the artefacts, investigations and legal and investigative culture and traditions. [72] As a case becomes more compelling even some of the less convincing testimony or evidence might still be integrated or reframed to contribute to an even stronger case. [73]
At this stage it will be useful to explore some empirical examples of how deconstruction can be used to assist our understanding of the manner in which the meaning of science is negotiated in legal settings. In the following examples I have relied primarily upon the sociological concept of boundary-work to illustrate how scientific evidence is represented, constructed and deconstructed.
(i) Extra-scientific boundary-work: Science v Non-science
Gieryn has suggested that “boundary work”, the demarcation between scientific and non-scientific activities, and between “different” types of scientific activities, is regularly accomplished in practical settings. [74] Legal forums provide an opportunity for sociologists to observe the active construction and demarcation between what constitutes scientific or expert knowledge, but also which areas of established science or expertise are judged relevant to the particular proceedings. [75] Mulkay and Gilbert [77] and Gieryn have all suggested that science is distinguished from non-science through actively contrasting ideal images of science, such as those described by an empiricist or constitutive repertoire with contingent or social elements which are seen to compose nonscientific activities. [78] Such contrasts are a common feature of boundary-work and legal deconstruction.
Some features of Gieryn’s analysis which are particularly useful to understanding legal proceedings involving the use of scientific expertise in relation to boundary-work are his notions of “expansion”, “monopolisation”, “protection” and “expulsion”. Expansion describes attempts to extend authority into domains which are occupied, susceptible to occupation, or claimed by other professionals. At trial, counsel actively suggest that the expertise of the witnesses they introduce is the most appropriate for the particular factual nexus exemplified by the narrative or trial strategy (theory) being advocated. Monopolisation, which was a feature of argument surrounding the admissibility of the zoo experiment, concerns attempts to exclude rival knowledge claims by defining them as “pseudo”, “deviant” or “amateur”. Protection involves the “erection of walls to protect the resources and privileges of those inside. Successful boundary-work of this kind is measured by the prevention of the control of science by outside powers.” [79] Finally, expulsion is the process whereby insiders exclude or expel those determined not to be “real” members. This often involves maintaining the social credibility of the group. In actively constructing and policing boundaries, the:
characteristics attributed to science vary widely depending upon the specific intellectual or professional activity designated as “non-science,” and upon particular goals of the boundary-work. The boundaries of science are ambiguous, flexible, historically changing, contextually variable, internally inconsistent and sometimes disputed. [80]
In the Chamberlain case, boundary-work which suggested the zoo experiment to be unscientific was employed in an attempt to preclude its admission under the rules of evidence (even the broader standards employed in Coronial Inquests). The circumstances of particular cases contribute to tensions surrounding boundary demarcation. The novelty of the contended factual nexus underlying a case may require the interpretation – framed as application – of legal categories of expertise to determine who can legitimately testify. [81] Where there are no pre-existing categories of expertise – such as a dingo attack on clothing expert – which can be simply applied to the technical “problem” at hand, participants in the legal forum actively negotiate and construct the legitimacy of the involvement of certain types of expertise. [82] Different ways of perceiving and framing the issues at stake may figure significantly in determining the type of expertise required. Similarly, the type of techniques, equipment and experts available might also influence the shaping of any inquiry as well as specific results and more general conclusions.
At the Barritt Inquest, Rice was wide-ranging in his attack on the zoo experiment.
Mr Rice: What I am concerned about is that evidence of this sort which really lacks certain defined bases such as similarity of material, the creation of an effigy without a head, the planting of it in a dingo den that is occupied by a dingo or dingoes who had been in captivity for an ill-defined period who are undoubtedly subject to regular feeding, who lack the spirit of competitiveness in their natural habitat, and other factors which come to mind but which I do not enumerate at the present time: it just seems to me that that type of experiment might well lead others to conclude that certain things would happen necessarily, whereas it is for Your Worship to determine on the evidence of real facts what happened, to the extent that that evidence is forthcoming. I do not know whether fundamentally any expert or any person claiming expertise in the habits of dingoes was ever consulted in relation to this experiment. ... It may be, of course, that it can be admitted to establish certain things that are sought to be established by the experimentor, Dr Brown and his colleagues, but it certainly lacks all the indicia of a scientific experiment – apart from those I have mentioned [relating to tooth marks of dingoes]. One of the essential features they ... lack is that no-one saw the dingo or whatever – but the dingo undoubtedly – dispose of the goat flesh inside the effigy, and of course goodness knows whether goat flesh in its skinned condition in any ways resembles the flesh of a child who appears in its ordinary form. So there are innumerable factors which go to separate this so called experiment from anything based on a proper scientific basis. ... [it would be] unwise and unsafe to allow it to be admitted. [83]
Rice’s objections covered a wide range of potential “problems” with the zoo experiment. Most of the objections were structured to confront the value of any comparison between the zoo experiment artefacts and Azaria’s clothing. They were raised to prevent the zoo experiment from being admitted into evidence. Rice endeavoured to frame the experiment as lacking “all the indicia of a scientific experiment”.
There were a number of instances where evidence that was admitted was described by those opposing its tender as lacking the appropriate “indicia” of science. Having provided such a long list of potential problems with the jumpsuit experiment, Rice contrasted it to the methods of basic physics:
The most unscientific experiment ever conducted. I am sure Doctor Brown with his background of knowledge of scientific experiments, even basic physics, would agree that it lacks all the indicia of a controlled scientific experiment. [84]
Despite the criticism, Rice accepted that there were some aspects of the experiment which might have been legitimately scientific, namely the collection of teeth marks for comparison. Rather than provide some simple notion of deconstruction, this example appears to depend on a pervasive belief in some hierarchy surrounding the harder or core sciences to generate the contrast to the zoo experiment. [85] Exposing limitations to the particular experiment and describing it as non-scientific seems only to strengthen the mythologies surrounding the putatively methodologically purer sciences. It will be contended below that even where there is localised or particularised deconstruction this does not invariably undermine the eventual reconstruction of knowledge claims, or their representation as adequate scientific practice/knowledge. The “apparent” deconstruction of science in particular settings or circumstances might not impair more generalised ideal images of science maintained by particular audiences.
When faced with this criticism which suggested that the zoo experiment was flawed, Dr Brown chose to emphasise the collection (narrow purposes) aspect of the experiment:
Rice: And you regard that as a scientific experiment, do you? – – – Brown: I regard that as providing me with information on comparable material for the purpose that I was looking for it.
And you regard that experiment you conducted as a scientific one? – – – Well, we could argue about the semantics of the word scientific.
And you adhere to the method that you adopted as being a proper scientific approach? – – – It was sufficient for the purpose. [86]
When repeatedly challenged over the sufficiency of the experiment, Dr Brown adopted a pragmatic defence, shifting the framing of the experiment. The experiment was for the collection of various samples and was sufficient for these more “narrow” purposes. Dr Brown also expressed a willingness to qualify or nuance the specific meaning of “scientific”. At this narrow construction, the scientific status of the zoo experiment was open for negotiation. In describing it as a collection process Dr Brown could defend his conduct by not committing himself one way or the other, and protect the test results and observations which were derived from it. The scientific locus could be displaced from the actual zoo experiment to subsequent scientific evaluation of the artefacts in the laboratories of Scott, Brown and Harding.
(ii) Inter-scientific Boundary-work: Science v Science
Another means of attacking technical and scientific expertise is to emphasise the demarcation between professional realms. [87]
The utility of boundary work is not limited to demarcation of science from nonscience. The same rhetorical style is no doubt useful for ideological demarcations of disciplines, specialities or theoretical orientations within science. [88]
This type of boundary-work functions to restrain the expert from testifying in areas which might be made to appear outside their area of competence. The areas of competence and expertise are actively being negotiated and managed by the various protagonists. Lawyers try to maintain boundaries by suggesting particular experts are not members of the “relevant scientific community” or through emphasising a lack of familiarity with, or more formally, lack of study or publications on, a particular subject. [89]
An example of one of the boundary problems experienced by the State at the Barritt Inquest occurred when Dr Brown – Prosecution odontologist – misunderstood his counsel’s (Macknay) lead in re-examination and effectively agreed he had no experience in the constructed realm of expertise pertaining to bite marks on clothing. Opposing counsel (Rice) was quick to suggest Dr Brown should not have been offering evidence under the expert opinion rule. [90] Dr Brown had effectively excluded himself from inside the very boundary – of animal bites on clothing – which his counsel had endeavoured to construct for him to testify. This was a serious mistake which Dr Brown was careful to rectify in later appearances.
Mr Macknay: Do you have experience in bite marks in material — clothing?
– – – No, I do not think I could claim experience with bite marks in clothing.
How was it then that you were able to examine the clothing in this case and form conclusions?
Mr Rice: Well, he did it and that is the end of it. It is not a question of how he came to do it, and that is terribly important.
Mr Macknay: In my submission it is not terribly important, Your Worship.
[Dr Brown asked to leave]
If the matter was left as it is no doubt it may suit my learned friend in that at the end of the inquiry he could say: “Well, of course, the last answer that Dr Brown gave effectively reduced his evidence to nil.” In my submission that would be placing a construction on the answer that is not perhaps the case. Perhaps the doctor is able to go on and explain reasonably and creditably why he can form the opinions he has, and if of course he does have expertise in that area then the evidence is of the utmost importance in trying to ascertain the truth.
The Coroner: However, the difficulty about it is that his last answer accords with basically what he said were his qualifications originally [odontologist not textiles expert]; he never really made any greater claim to expertise than what his last answer would suggest. That is perhaps where the difficulty lies. [91]
Rice then took advantage of his successful boundary campaign by questioning the motivation, enthusiasm and impartiality of this Prosecution witness. [92]
Mr Rice: He [Brown] has ventured in, like Sherlock Holmes and many experts who put the pipe in their mouth and cap on, and for some reason or other, motivated by the best of motives, go outside their expertise and make observations which they are not entitled to make at all as a matter of strict law. [93]
Dr Brown’s statement not only served to exclude him from the realm in which he was to supply evidence but it provided Rice with an opportunity to lampoon. In his closing address at the Barritt Inquest, Macknay described Dr Brown, as having “left the court quickly under a cloud”. 94
(iii) Credibility
The credibility of witnesses is actively constructed and deconstructed by lawyers in legal settings. Lawyers are not limited to using the good scientist/bad scientist dichotomy but are able to emphasise a variety of categories in dealing with the individual scientist or institution – much like in boundary management – to imply some deficiency. Examples include the emphasis of empirical and applied against theoretical and pure sciences or practices, as well as training, experience and professional history. [95] Again, such strategies are employed by lawyers to support their own narrative and undermine the credibility and plausibility of their opponents. Laboratory practice and procedures are most easily deconstructed by contrasting the techniques actually employed with those set out in protocols, authoritative textbooks and by eminent scientists. Any deviation requires explanation and repair work (types of reconstruction). Even discrepancies which might be seen as trivial or irrelevant among expert communities might necessitate attention in other (here legal) contexts if some negative inference can be imputed. Credibility is also created through institutional associations during training and employment. [96] Over time both sides in the Chamberlain case made recourse to increasingly prestigious authority and individuals. [97] The case provides an example of escalation. By the stage of the Royal Commission many of the witnesses were from overseas, and internationally eminent. This contrasted notably with the scale of the Barritt Inquest.
Whilst the boundary between science and non-science was invoked to assail the zoo experiment over its admissibility into the legal forum, once it had been admitted other tactics designed to delegitimise the experiment, the experimenters and the results were pursued. Many of the issues raised to challenge the validity of the zoo experiment more abstractly were subsequently used to demonstrate some of the assumptions and limitations behind the experiment and experimenters.
Rice: Well, do you know of the actual chewing mechanism of the dingo? – – – Brown: Only as — it is a carnivore.
Nothing specific though? Have you ever made a study of the eating habits of a dingo? – – – Not of the dingoes, no.
Let alone eating or chewing clothes? – – – No.
... do you know when this goat kid was killed? – – – It was killed during – shortly before we arrived?
Well, do you mean by that an hour or two or within an hour or three? – – – Within an hour or two.
Do you know whether it had been left to bleed immediately after slaughter? – – – No.
Do you know what loss of blood there was from it? – – – No. [98]
This section of transcript forms only part of a much longer cross-examination which can be understood to comprise a series of questions and distinctions characteristic of deconstruction. They suggest that Brown might not be “properly” qualified for the task at hand, and that by stretching beyond the appropriate bounds (constructed and managed by Rice), that he may have been acting in a “nonscientific” manner. Brown was portrayed to have made numerous questionable assumptions and have been improperly qualified to undertake the zoo experiment. In this way the credibility of Brown’s acts and conclusions might have been rendered suspect or at least uncertain. [99]
(iv) Self-De(con)struction
In adversarial contexts it is in the testifying witnesses’ (and counsel’s) interests to know about potential sources of vulnerability to their evidence and credibility. Narratives are assembled defensively, sensitive to the dynamic and interactive proceedings. Where aspects of the case may be vulnerable, providing opportunities for powerful attack if part of the evidence sought to be elicited was introduced by the opposition during cross-examination, it is sometimes in the interest of the side calling the witness to expose perceived “limitations” themselves. Such an approach affords the benefit of providing the first articulation of a perceived problem, and allows the expert to appear informed and impartial (conforming to popular conceptions of the norms of science) [100] in their presentation of evidence by drawing attention to its possible limits. Where litigation spans some considerable time period these types of concerns are able to be refined diachronically. [101]
At the first inquest there was discussion over the significance of the amount of dingo hair on the zoo jumpsuit. Extrapolation to Azaria’s jumpsuit (consistent with a broad reading of the experiment) was problematised by the lawyers and coroner:
Mr Rice: I might mention at this stage that I will be making certain submissions to Your Worship in relation to the experiment and any reference to the hairs there collected in the so called experiment because what we do not know is whether the controlled sample – namely, the dog – what condition it was in and all sorts of variable factors, including its manginess or otherwise or disposition to shed hairs but there were many other factors which I will – – – The Coroner: Another factor of course also which would affect that side of it is — I only happened to notice the other day where my dog camps, the hair that has moulted from him during the moult season is still around in his camp and all over the place. So it would not even be a question of – – –
Mr Rice: I thought it appropriate to mention at this junction in case anybody drew immediate conclusions or drew inferences which could not be sustained and particularly as it was an experiment and as Your Worship knows experiments and demonstrations are not the end all of anything necessarily.
The Coroner: No, well, they have to be — I think — qualified in every aspect that requires qualification otherwise they can be totally misleading. [102]
By the time Harding testified at the Barritt Inquest these same limitations were introduced not by the counsel for the Chamberlains, but by Harding, the Prosecution hair expert.
Harding: It occurred to me at the time of thinking about this that the experiment did not show whether these hairs were by direct contact of the clothing with the dingo at the zoo or whether this experiment happened in a pen where there could have been a lot of dingo hairs, and other hairs for that matter, on the ground or floor or whatever you call it and the clothing came into contact with that and picked up hairs, so it could give a false impression. If I might just add to that, I have since learned that there were perhaps problems with the moulting time of the dingo or dingoes. There is a large number of imponderables there, really, which make the interpretation very difficult and probably not of a great deal of value. [103]
Despite these limitations Barker actively encouraged the jury to read something into the difference between the number of hairs removed from each of the jumpsuits. In his summation at the trial, speaking on the issue of hair removed from the zoo experiment, Phillips reflected earlier criticisms which had questioned the legitimacy of drawing any significance from the number of hairs on the clothing. He described the existence of hairs on clothing from the zoo experiment as a “dead issue” which “I would be surprised if Mr Barker referred to” given that Harding, Rice and Barritt had apparently challenged the legitimacy of the extrapolation from one context to the other. [104]
Despite Phillips’ assertion, Barker did take the opportunity in his closing address to encourage the jury to draw an inference from the relative absence of dingo hair on Azaria’s jumpsuit. Such a comparison drew directly upon the number of hairs which had been removed from the zoo experiment clothing:
Barker: ... but I suggest you would think, would you not, that somewhere in some place on some article you would find at least one hair which could be positively proved to have come from a dingo. Remember that Doctor Harding had some 100 dingo hairs from the zoo jumpsuit to use for comparison purposes. ... The Crown says the absence of hairs, like the absence of saliva, is negative evidence pointing to a positive conclusion which is this that the baby was not taken by a dingo. Therefore she was murdered. [105]
Neither the limitations expressed by the hair expert Harding nor Phillips’ comments prevented Barker from making the most out of comparisons through the adoption of a very broad use of the zoo experiment. A use which tended toward interpreting the zoo experiment as an attempted replication of a dingo attack.
Whilst limiting the experimental context and the extrapolation of claims which might be conducive to constructing the appearance of a witness’s “neutrality”, counsel (and judges) will have other opportunities for translating and simplifying that same evidence, often excluding the very qualifications which contributed to the construction of the credibility of the particular witness in the first place. [106]
(v) Constraints on Deconstruction
One method of eroding the importance of these constructed boundaries was to stress that without continually crossing their borders no knowledge could be produced. These limits to deconstruction – themselves another type of boundary alignment – were expressed by Macknay at the Barritt Inquest. Whilst he acknowledged that Dr Brown’s testimony had been shown to transgress the appropriate legal standards – what might be conceived as a classic case of boundary deconstruction – Dr Brown’s testimony was nevertheless portrayed by the Prosecution as useful because the alternatives to such exclusion could be presented as absurd:
Even if Dr Brown was an expert in bite marks in clothing, he would be subject to proper attack on the basis that he is not an expert on animal bite marks. So for Dr Brown to be an entirely satisfactory expert, he would have to be an expert in dingo bite marks in clothing. [107]
This type of reconstruction suggested that the boundary-work undertaken by the Defence was implicitly vexatious and required standards which were unrealistic. Such deconstructionist efforts could always be made on an ad hoc basis. It is not surprising that the Prosecution actively criticised the deconstructive efforts of the Defence, because the Prosecution could not entertain “reasonable doubts” if their case was to triumph.
Across the various proceedings the zoo experiment became less important in the overall narrative structures adopted by the Prosecution. The ease with which it could be attacked contributed to its retention by the Defence. The zoo experiment seems to have been one of the influential factors initially used to support a pervasive belief among investigating scientists and police that the Chamberlains had murdered Azaria. In this sense the zoo experiment helped to sustain the momentum of investigation and an atmosphere of suspicion. When additional support was generated to push for a new inquest, albeit guided by a modified Prosecution narrative, the role and importance of the zoo experiment could be retrospectively down-played, allowing the Prosecution to portray its purpose as merely an opportunity for collecting samples. However, as I have attempted to demonstrate, on many occasions the Prosecution made far more ambitious claims for its otherwise modest experiment.
One final example provides some indication of the importance of narratives to the interpretation of various evidentiary artefacts across trials and legal proceedings. In a sense it serves as an example of judicial reconstruction. Again, the example focuses upon the zoo experiment. After Galvin found that the Chamberlains had a case to answer and were subsequently found guilty at trial, they launched a series of unsuccessful appeals. It was not until the Royal Commission that the Chamberlains’ narrative was formally re-invigorated – mainly through eminent scientists criticising the methods employed in the scientific investigation. Without going into detail regarding the lengthy proceedings I wish to comment on the use and meaning of the zoo experiment in Justice Morling’s final report.
In his report of the Royal Commission, Justice Morling briefly referred to the zoo experiment:
Prior to the first inquest Mr Brown had carried out an experiment at Adelaide Zoo with a jumpsuit similar to the one worn by Azaria enclosing the body of a young kid with its head severed and its legs shortened. The dingoes used in the experiment managed to remove the meat from the jumpsuit, opening only its top two studs. The jumpsuit suffered considerable damage in the experiment, but perhaps less than might be expected. At the trial the defence claimed that the Adelaide Zoo experiment proved that a dingo could easily undress a baby, but no reference was made to it as showing the ability of a dingo to cut fabric with its teeth. [108]
This is virtually all Justice Morling says about the zoo experiment. By the time of the Royal Commission much of the scientific disagreement surrounding the Chamberlain conviction was focused upon the identification of foetal blood and determining whether the damage to Azaria’s clothing had been caused by teeth or scissors. Here, the zoo experiment is portrayed by Morling to simply favour the
Defence. The many qualifications and modalities which had been introduced by the Defence in order to contain the Prosecution’s broader claims were dropped, [109] even though they might be seen to be equally applicable to this new interpretation of the experimental results. That is, this new interpretation is equally susceptible to Rice and Phillips’ deconstruction, although when integrated into a judicial justification, the justification makes no reference to the lengthy criticism which the experiment received during the earlier proceedings. Justice Morling actually reframed the zoo experiment.
As a subsidiary aspect of inquiry, the zoo experiment failed to produce any information relevant to the (now) more primary aspect; whether dingoes can cut with their teeth. Justice Morling seems to have accepted the Defence’s claim regarding the dextrous capacities of dingoes. He also suggests that the amount of damage to the zoo experiment jumpsuit is indicative of something. In taking such a stand he transcends the broadest position adopted by the Defence at any of the previous proceedings. Here, the broadest possible interpretation of the zoo experiment is represented as assisting – not the Prosecution, but – the Defence. Rather than just an exemplification of difference, other pieces of evidence embedded in a new narrative enable the novel explanation that the zoo experiment stands, in part, for less artefactual damage than might be imagined in the case of a dingo attack.
Having explored one particular example of the construction, framing, deconstruction and reconstruction of scientific evidence, I now return to consider some of the social implications of this work. This will involve some reflection upon the zoo experiment in relation to Jasanoff’s democratic aspirations for an improved public awareness of the politics of science and technology through the adversarial deconstruction of scientific knowledge in legal and regulatory contexts. Whilst I accept that the scientific evidence tendered in these settings can be and often is “deconstructed”, it will be argued that the extent and awareness of deconstruction is contextual and subjective – that is, non-determinative. Whilst STS and SSK might eventually contribute to enhanced consideration and evaluation of science and technology in legal and regulatory settings, and more widely, it appears that many of the assumptions and commitments held by sociologists of science are a pre-requisite to facilitate such interpretations.
At the beginning of this article, the work of Jasanoff was introduced in relation to some of the implications of legal deconstruction. She contends that:
At their most effective, legal proceedings have the capacity not only to bring to light divergent technical understandings of experts but also to disclose their underlying normative and social commitments in ways that permit intelligent evaluation by lay persons. [110]
Jasanoff has made a number of qualified claims about the effectiveness of deconstruction in providing a form of lay education about the social constitution of scientific and technological knowledges “The overall effect of maintaining a dialogue between experts and the people, mediated by the legal process, appears to have been salutary.” [111] This is because government actions “however arcane or esoteric must be explained in terms that are comprehensible to non-expert audiences.” [112] As I will show, “education”, “understanding” and “comprehension” are vastly more complex than the simplistic and predominantly unexplicated categories Jasanoff provides.
Having made considerable claims for the democratic utility of legal deconstruction, enabling the laity to understand if not partake in decisions influenced by technical and scientific expertise, Jasanoff provides some qualifications to the impact of “civic education” in practice. “Adversary procedures, however, can be indiscriminately deconstructive in their impact and can obfuscate as well as advance critical inquiry.” [113]
Jasanoff acknowledges that protracted controversy or endless deconstruction are not “synonymous with civic education”. Otherwise some of the civil rights and products liability litigation in the US “would have marked the pinnacle of judicial achievement.” [114] Whilst the legal process often enables, and sometimes facilitates the scrutiny of scientists and science, Jasanoff reveals:
we find that the legal process exposes the cognitive and social commitments of individual expert witnesses more predictably than it identifies structurally or institutionally conditioned contingencies in scientific knowledge. [115]
In some ways, an analysis which suggests that by discrediting particular scientists and scientific knowledge the more general image of science is not eroded has similarities with Michael’s analysis of differences between generalised idealised images of science in comparison to the more localised deployment and interpretation of scientific knowledges. [116] The implications for deconstruction (and reconstruction) of science in particular instances as opposed to science more generally will be discussed below.
Jasanoff qualifies the process of deconstruction through the pragmatic need for legal institutions to maintain their social authority. The use of scientific knowledge and expertise to support decision-making provides one such source of authority available to legal decision-makers. “There is, however, a bias toward maintaining the institutional authority of science even in these orgies of deconstruction; legal fact-finders are as committed to showing that truth exists as the scientists whom they interrogate on the stand.” [117]
It is my contention that scientific evidence is rarely viewed or reconstructed into legal decisions in the absence of narratives developed, often post factum, and argued to conform (and demand conformity to) legal procedures and conventions. As I will suggest (in line with Jasanoff’s previous statement) legal narratives incorporating scientific evidence are themselves dependent upon prevalent public conceptions of science. “Deconstructed” science seems to be reconstructed through pervasive public images and commitment to the general utility and progress of science. In turn these are predicated upon idealised notions of neutrality, a universal and efficacious method and a range of prescriptive norms. [118] Returning to the zoo experiment, Morling’s reasoning included reference to the zoo experiment but he offers an interpretation which is inconsistent with those preceding it. As the weight of evidence shifted up to the Royal Commission the zoo experiment was accounted for in a variety of ways. The various interpretations and representations can generally be understood to conform to the preferred overall interpretation of the scientific evidence by the proponent(s) of particular narrative accounts.
In Jasanoff’s admittedly brief and qualified discussion of civic education, she provides little indication of any differentiation of the audience privy to legal settings and the manner and mediation through which they experience their “deconstruction”. [119] Jasanoff appears to imply that exposure to the crossexamination of scientists involved in public disagreement provides the audience with the opportunity to observe how science is “really” constituted and operates. This is a feature of her category of civic education, where the courts – through their provision of opportunities for deconstruction – provide a source from which to derive an enhanced understanding of the role of expertise in the polity. [120] She suggests that the legal system plays a “vital part in exposing the presumptions of experts and holding them accountable to changing public values and expectations.” [121] However, the evidence Jasanoff offers to support these claims is open to alternative readings (something completely different) which are not based upon constructivist perspectives and do not facilitate the enhanced public understanding of science in the ways that she seems to indicate.
One such alternative framework through which to interpret the interaction of law and science has been provided by those insurance company and corporate think-tanks who have sponsored the development of the concept “junk science” as a pervasive social problem. [122] Proponents of the concept “junk science” suggest that much of the perceived law-science “problem” is created by lax evidence admission standards and unscrupulous lawyers and scientists contributing to an influx of “junk science” in courts and regulatory agencies. [123] The positivist “junk science” perspective is diametrically opposed to Jasanoff’s constructivist position and her aspirations for constructivist civic education via the legal system.
The “junk science” perspective is just one rationalisation of scientific controversy in legal settings. On adopting such a framework, proponents receive an explanatory grid to account for scientific disagreement and the existence and motivation of scientists who partake in “pathological” or “junk” science. The model also supplies a means of explaining disagreements when they are at least temporarily resolved in legal settings. If the decision conforms with the preferred outcome then the “mainstream” truth can be seen as “winning out”. [124] If the decision is unfavourable then a legal system – corrupted by reformist ideologues who have encouraged lax evidence admission standards and liberal tort law – has enabled cash-driven charlatans to enter. [125] Where there is scientific uncertainty the legal standards of “beyond reasonable doubt” and “on the balance of probabilities” can be introduced to supplement the explanation of any result.
For those adhering to this “junk science” perspective, the appearance of deconstruction is merely an epiphenomenal, and generally undesirable, component of contemporary litigation. The appearance of symmetrical crossexamination – which is certainly not a feature of most legal encounters where scientific evidence is produced – could be seen as an element of a legal system which, for the “junk science” critique, has regrettably and indefensibly given equal time to Nobel laureates, charlatans and crack-pots. [126] Additionally, from the “junk science” perspective lawyers are seen to be retained in order to attack “good science” as much as “junk science”. What Jasanoff describes as deconstruction, at least some substantial component of the legal community (and beyond) prefer to understand as pathology. [127] Even if social aspects of mainstream science are “exposed” in the process, this seems to have limited application to science more generally, and the courts themselves are not symmetrical in their approach to, nor acceptance of, the alleged deconstruction. [128] For example, when Brown was criticised by Barritt for his evidence at the first inquest, neither Brown nor Barritt seems to have understood this as a deconstruction of his evidence. Brown’s response was to seek the admonition of other respected – and friendly – scientists. He was to testify at the Galvin Inquest and Trial, despite the coronial censure.
Another approach to understanding scientific controversy and uncertainty has been through the use of the category “trans-science”. The concept of “transscience” was originally defined by Weinberg in the following manner:
Many of the issues which arise in the course of the interaction between science or technology and society — eg, the deleterious side effects of technology, or the attempts to deal with social problems through the procedures of science—hang on the answers to questions which can be asked of science and yet which cannot be answered by science. [129]
Despite offering some problematisation of the boundaries around science, policy and trans-science (more than appears in the work of Wagner, below) Weinberg calls for the separation of science from trans-science: “One must establish what the limits of scientific fact really are, where science ends and trans-science begins.” Following from Weinberg, the most recent development of the concept of ‘transscience’ has been pursued by Wagner. Wagner provides limited discussion of the process in which knowledge shifts from a trans-scientific stage to a scientific one. Areas of knowledge surrounded by controversy, and often litigation, are explained in terms of the criteria of “trans-science”. Similarly, resolution of any expert disagreement is described by the shift in domains: from trans-science to science. Wagner provides little sense of the complex negotiations over the status of a particular body of knowledge and its ‘authority’, nor does she (nor can she employing trans-science) describe at what stage and why a body of studies becomes unambiguously scientific or which studies, results or disciplines are ‘relevant’ to such an evaluation. [130] Weinberg and Wagner both employ the notion of trans-science to describe areas of scientific uncertainty where policy and science are forced to combine. Unfortunately, as for the “junk science” perspective, the label “trans-science” performs most of the “work” in their analyses and does not provide, nor seem to allow, a more detailed appreciation of the various ways in which science and policy interact and are mutually constituting or the manner in which scientific uncertainty is itself constructed and managed.” [131]
The majority of existing accounts of the Chamberlain case have adopted approaches resembling the “junk science” and “trans-science” models to explain changes in relation to the scientific evidence across the litigation and appeals. In these accounts poor scientific work and problems with legal standards are described as responsible for the “problems”. Such accounts are able to celebrate the eventual recognition and triumph of “proper science” as the truth winning out – usually framed as the uncovering of a “miscarriage of justice” – and often set against the hurdles imposed by an ossified legal system and unscrupulous and negligent scientists. I have endeavoured to problematise such simplistic and whiggish representations by demonstrating the flexibility in the manner in which evidence is negotiated in legal settings.
Jasanoff contends that legal deconstruction, at its best, affords an insight to a better understanding of how technological and scientific knowledge claims are constructed. In practice however, deconstruction is a much more unpredictable tool for social and analytical understanding and reform. Even in instances where deconstruction of scientific knowledge claims appear to be usefully accomplished, this cannot be understood separately from other features of a specific case or narrative and a more general image of legal and scientific institutions, authority and norms. To suggest that cross-examination provides a vehicle for exposing some sociological reality presupposes much. It fails to appreciate that crossexamination has developed as part of the persuasive strategies of lawyers rather than as a tool to symmetrically expose the constitution of scientific knowledge. It is usually in the lawyers’ interests to attack the particulars of their opposition’s scientific evidence, whilst insinuating that their own scientific witnesses and scientific evidence are typical of a more wholesome and normative scientific pursuit – which as I have indicated, might be characterised as science-ingeneral. [132] The boundaries for such activities are forever being renegotiated.
In developing her analysis, Jasanoff seems to ethnocentrically suggest that the audiences at the formally administered “orgies of deconstruction” characteristic of legal settings, might share the sociologist of science’s perspective. But this has not proven to be the case. Not only have such audiences predominantly failed to share her (and my own) social constructionist framework when engaging in or viewing the cross-examination of scientists, but legal commentators and scientists have not adopted her constructivist accounts of these processes. [133]
What appear to be arguments couched in a deconstructionist raiment – or what might be conceived as such by some sociologists – are regularly employed in legal settings. However the arguments are not motivated by, and may not include, the philosophical and sociological underpinnings – including aspects such as symmetrical relativism and reflexivity – characteristic of some versions of social constructionism or the sociology of scientific knowledge. [134] Considerations such as for whom the alleged deconstruction is taking place, in conjunction with the theoretical grounding of the particular participant (viewer) are vitally important to the ultimate evaluation of what is seen to be occurring when scientists are vigorously cross-examined in legal settings. Whilst it might be appropriate for sociologists in the SSK or STS tradition to describe the legal forum as “encouraging” what can be interpreted as forms of deconstruction: “it seems more realistic to suppose that they actually take part (unreflectively) in social negotiation, while nevertheless believing there is a “natural consensus” to be revealed.” [135]
In the Chamberlain case, the jury went against the Defence’s (“attempted”) deconstruction of science and the corroboration of independent witnesses in accepting the Prosecution case. It is not clear that these central participants in a six week trial possessed any type of sociological constructivist perspective or enhanced civic understanding when it comes to science and technology. [136] Sure, the jury might realise that scientific evidence could be attacked in court, but – as Jasanoff astutely observes – the attacks implicate particular institutions and individuals and do not necessarily extend to include public faith in science more comprehensively. The criticisms produced by the various sides do not have to be believed. Ultimately a decision must be reached. A judge or jury could believe that deconstruction was part of the function of being a lawyer, regardless of the specific claims made by lawyers. In this way it is futile to consider deconstruction divorced from the specific circumstances surrounding a case, the particular setting in which it is attempted, and without reflecting upon public faith in institutions like the courts, the police and forensic laboratories.
Another feature of Jasanoff’s work is her reluctance to discuss the social inequalities lying behind legal deconstruction. Like other forms of education, civic education and efforts at deconstruction in legal contexts reflect access to resources. In part, forms of legal deconstruction can be bought. Parties embroiled in litigation involving scientific evidence usually have to run tests and pay scientists. The party with the greater resources can usually purchase a better “deconstruction” (for example, O.J. Simpson) – or in the case of mass torts “construction” (for example, pharmaceutical corporations). [137] Even where the deconstruction of science might be readily accomplished it will not always be seen as the appropriate legal strategy. These features only exacerbate the erratic nature of any proposed civic education available through the legal system.
In suggesting that cross-examination provides an informative focus on the deconstruction of scientific knowledge, Jasanoff exaggerates the potential for deconstruction to demonstrate the social construction of science. Not only are there alternative analytical frameworks through which to describe and understand the proceedings of legal forums concerned with science – such as that provided by the “junk” science perspective – but factors which are frequently referred to as non-scientific are often the focus of criticism for perceived law-science “failures”. [138] In comparison with the dissonance generated by scientific controversy, responsibility for “failures” or the appearance of problems can shift from scientific-epistemological concerns and focus in other directions such as toward legal and quasi-legal institutions or procedures including evidence admission standards or the competence of jurors, judges, lawyers and police. There are many places to lay responsibility for perceived failures. Nonepistemological recriminations contribute to enabling the eventual reconstructions, drawing upon idealised notions of pristine science devoid of social contaminants or identifying superior forms of scientific knowledge and activity, to be invoked as part of an authoritative “closure”.
Another of the problems stemming from legal deconstruction is that few adequate explanations for the precise manner in which scientific knowledge is eventually “re-assembled” have been articulated. That is, how can scientific knowledge claims which have their social origins “exposed” be reconstructed into persuasive and legitimate bases upon which to sustain decisions? The reconstruction of scientific knowledges is undertaken by judges and administrators to legitimate decisions, often with immediate and dramatic consequences. There is a paradox between the simultaneous existence of orgies of legal deconstruction and the apparent broad public confidence in the utility, efficacy and progress of science and technology which decision-makers frequently draw upon in rationalising their decisions. Whilst sometimes uncertainties are “exposed”, if science was obviously deconstructed in legal settings the ability to produce socially meaningful decisions would require explanation.
It is my contention that assaults upon science in legal settings can proceed because of two factors. First, there are a variety of non-constructivist frameworks through which participants and audiences can conceptualise proceedings. This means that audiences can reject or trivialise any of the deconstructive efforts as being epiphenomenal features of the legal system itself, inappropriate scientific processes, or the result of uncertainty. The second factor depends on the availability of images of science, scientific efficacy and scientific achievement which are outside – and therefore transcend – the particularised and targeted assaults on scientific testimony which may proceed in specific legal and quasilegal settings.
Despite the recurrent “deconstruction” of science in legal settings, constructivist perspectives have been and will continue to be rejected outright. This in itself suggests something about the opaqueness of legal settings and their ability to expose what might be initially conceived as the “obvious” deconstruction of knowledge claims. The judiciary has provided no indication of recognition or interest in the sociological aspect of legal deconstruction. Deconstruction which must necessarily be equally applicable to the legal system itself – including its forms of procedure and justification – might erode some of the legitimacy of traditional justifications and mechanisms for adjudication. [139] At the end of the day judges and administrators are required to provide convincing reasons for their decisions. Even if these participants were cognisant of some type of deconstruction which was equally applicable to all knowledge claims, their commitment to the existing legal structures and their need to regularly maintain a “firm” epistemological basis for decisions effectively requires them to adopt a register which often incorporates simplistic images of scientific knowledge. The degree and “effectiveness” of deconstruction in the particular setting will no doubt influence the manner and type of claims which might be built into any decision, but it is unlikely that the degree of constructedness “exposed” will be clearly expressed in the actual decision, especially the re-construction of the position favoured by the decision-maker. It would be problematic to suggest there was one simple and uncomplicated perspective on the degree of constructedness of any knowledge claim. It might be anticipated that deconstruction would be incorporated unevenly into the rationalisation process of any individual adjudication. In defending or legitimating a decision, a reason provider may well selectively emphasise or discard some of the “deconstruction” derived during proceedings. The qualifications may be dropped from the perspective they favour. Such a tendency was exemplified by Justice Morling’s comments on the zoo experiment. The reconstructed judicial narrative can represent a successful investigation and prosecution or defence as simple, linear and obvious rather than an instructive public dissection of science’s cadaver. [140]
Having provided a constructivist account of the zoo experiment in the Chamberlain case I have endeavoured to provide a more comprehensive and plausible contextual interpretation than prevailing accounts addressing relations between the legal system and the sciences. In undertaking this interpretation, unexplicated concepts such as good and bad science, the scientific method, charlatans and hired guns, neutrality, objectivity or distinctions between the norms and purposes of science and law have not been invoked as if the reification of some idealised version of science could provide the required explanation, namely extracting the “proper” interpretation of scientific evidence. Rather this account serves to problematise these categories, and suggests the need to adopt a range of alternative perspectives to facilitate an enhanced understanding of the complex relations between the legal system and the sciences, including a recognition that law and science occasionally coalesce to co-produce what are peculiarly lawscience hybrid knowledges. This approach also suggests new ways of considering apparent forensic scientific failures and ways to conceptualise the impact of law reform, especially as it pertains to expert opinion evidence, the jury, courtappointed experts, expert panels and science courts. In doing so, I have drawn substantially upon recent work in science and technology studies, and have attempted to enhance the discussion of some of the social implications of legal deconstruction, especially those drawn from the important work of Jasanoff. Precisely how these perspectives might influence – if at all – the manner in which lawyers, judges and scientists admit, present and evaluate evidence is difficult to anticipate. Thus far the deconstruction of science in legal and regulatory contexts does not seem to have produced an obvious public response involving enhanced understanding, nor has it provided the conditions for widespread participation. In some ways, the tendency and ability of decision-makers to reconstruct deconstructed scientific knowledge has actually contributed to the strengthening of myths surrounding scientific knowledge and the belief that social and political factors contaminate “proper” scientific practice. However, gradually replacing representations of the nature of science, especially those which challenge an apolitical and value-free essence, might eventually raise new considerations for ongoing negotiations over the appropriate roles and conditions for scientific and legal knowledge.
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URL: http://www.austlii.edu.au/au/journals/SydLawRw/1998/16.html