The eye of everyman: Witnessing DNA in the Simpson trial

Social Studies of Science

Volumn 28, Issue 5-6, 1998, Pages 713-740

  Jasanoff, Sheila ^a  

^a HARVARD UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 0032280121     PISSN: 03063127     EISSN: None     Source Type: Journal    
DOI: 10.1177/030631298028005003     Document Type: Article

References (114)

1. These are the dates, respectively, of the beginning of the opening arguments in the criminal trial and of the jury verdict exonerating Simpson on all charges.
2. For a discussion of 'immutable mobiles', see Bruno Latour, 'Drawing Things Together', in Michael Lynch and Steve Woolgar (eds), Representation in Scientific Practice (Cambridge, MA: The MIT Press, 1990), 19-68.
3. Rachel Nowak, 'Forensic DNA Goes to Court with O.J.', Science, Vol. 265 (2 September 1994), 1352-54.
4. Elaine Lafferty with Martha Smilgis, 'The Inside Story of How O.J. Lost', Time (17 February 1997), 28-36.
5. The technique is described in Eric S. Lander, 'DNA Fingerprinting: Science, Law, and the Ultimate Identifier', in Daniel J. Kevles and Leroy Hood (eds), The Code of Codes (Cambridge, MA: Harvard University Press, 1992), 191-210.
6. People v. Castro, 545 N.Y.S. 2d 985 (Sup. 1989). Spurred by criticism from experts on both sides, the court held an extended evidentiary hearing and concluded that DNA typing was a scientifically reliable technique, but that it had not been conducted in accordance with generally accepted procedures in this particular case. As the first decision to exclude DNA typing in a criminal trial, Castro underscored the need for properly validated and standardized procedures. See also Lander, op. cit. note 5.
7. Office of Technology Assessment, Genetic Witness: Forensic Uses of DNA Tests (Washington, DC: US Government Printing Office, 1990).
8. National Research Council, DNA Technology in Forensic Science (Washington, DC: National Academy Press, 1992), and NRC, The Evaluation of Forensic DNA Evidence (Washington. DC: National Academy Press, 1996).
9. National Research Council, DNA Technology in Forensic Science (Washington, DC: National Academy Press, 1992), and NRC, The Evaluation of Forensic DNA Evidence (Washington. DC: National Academy Press, 1996).
10. See, especially, three papers: Michael Lynch, 'The Discursive Production of Uncertainty: The OJ Simpson "Dream Team" and the Sociology of Knowledge Machine', Social Studies of Science, Vol. 29, Nos 5-6 (October-December 1998), 829-68; Arthur Daemmrich, 'The Evidence Does Not Speak for Itself: Expert Witnesses and the Organization of DNA-Typing Companies', ibid., 741-72; and Kathleen Jordan and Lynch, 'The Dissemination, Standardization and Routinization of a Molecular Biological Technique', ibid., 773-800.
11. See, especially, three papers: Michael Lynch, 'The Discursive Production of Uncertainty: The OJ Simpson "Dream Team" and the Sociology of Knowledge Machine', Social Studies of Science, Vol. 29, Nos 5-6 (October-December 1998), 829-68; Arthur Daemmrich, 'The Evidence Does Not Speak for Itself: Expert Witnesses and the Organization of DNA-Typing Companies', ibid., 741-72; and Kathleen Jordan and Lynch, 'The Dissemination, Standardization and Routinization of a Molecular Biological Technique', ibid., 773-800.
12. See, especially, three papers: Michael Lynch, 'The Discursive Production of Uncertainty: The OJ Simpson "Dream Team" and the Sociology of Knowledge Machine', Social Studies of Science, Vol. 29, Nos 5-6 (October-December 1998), 829-68; Arthur Daemmrich, 'The Evidence Does Not Speak for Itself: Expert Witnesses and the Organization of DNA-Typing Companies', ibid., 741-72; and Kathleen Jordan and Lynch, 'The Dissemination, Standardization and Routinization of a Molecular Biological Technique', ibid., 773-800.
13. See, especially, three papers: Michael Lynch, 'The Discursive Production of Uncertainty: The OJ Simpson "Dream Team" and the Sociology of Knowledge Machine', Social Studies of Science, Vol. 29, Nos 5-6 (October-December 1998), 829-68; Arthur Daemmrich, 'The Evidence Does Not Speak for Itself: Expert Witnesses and the Organization of DNA-Typing Companies', ibid., 741-72; and Kathleen Jordan and Lynch, 'The Dissemination, Standardization and Routinization of a Molecular Biological Technique', ibid., 773-800.
14. Federal Judicial Center, Reference Manual on Scientific Evidence (Washington, DC: Federal Judicial Center, 1994), 272-329.
15. See the paper in this Special Issue by Saul Halfon: 'Collecting, Testing and Convincing: Forensic DNA Experts in the Courts', Social Studies of Science, Vol. 28, Nos 5-6 (October-December 1998), 801-28.
16. Kary B. Mullis invented a technique known as 'Polymerase Chain Reaction' (PCR) that permits minute sequences of DNA to be multiplied indefinitely. PCR revolutionized the speed and accuracy of DNA analysis and Mullis, with his bizarre ideas and unbuttoned lifestyle, became a cultural icon. See Emily Yoffe, 'Is Kary Mullis God? (Or just the Big Kahuna?)', Esquire (July 1994), 68-74.
17. Eric S. Lander and Bruce Budowle, 'DNA Fingerprint Dispute Laid to Rest', Nature, Vol. 371 (27 October 1994), 735-38, at 735.
18. Ellen Willis, 'The Wrath of Clark', New York Times Rook Review (15 June 1997), 15 (reviewing Without a Doubt by Marcia Clark, chief prosecutor in the Simpson criminal trial).
19. Not everyone credits Simpson's so-called 'Dream Team' of defense lawyers with very much ingenuity, preferring to argue that it was the prosecution's incompetence that lost the case almost before it started. On this point, see the account by former Los Angeles Assistant District Attorney, Vincent Bugliosi, Outrage: The Five Reasons Why O.J. Simpson Got Away with Murder (New York: W.W. Norton, 1996). As we shall see below, however, the defense lawyers did succeed in bringing the jury into the potentially arcane world of DNA typing by focusing on such mundane activities as sample collection and record-keeping.
20. This phrase was often used by Los Angeles District Attorney Gil Garcetti, under whose direction the prosecution built its case.
21. The Simpson murder case followed closely on the heels of the infamous trials of four white Los Angeles police officers for the brutal beating of Rodney King, an African-American man. The King case was a public relations disaster for the LAPD, especially after the defendant officers were acquitted by a suburban jury in the first trial. According to one line of conventional wisdom, relations between the LAPD and the African-American community were so poisoned by the time of the Simpson trial that even a perfectly conducted prosecution might not have resulted in a conviction. See New York Times (4 October 1995), A1.
22. It is hardly surprising that legal commentators have found relatively little to say about the Simpson jury's refusal to credit the DNA testimony. Race in general, and the personal racism of Detective Mark Fuhrman, a key prosecution witness, have been considered sufficient explanations for an outcome that, for the majority of white Americans, plainly beggared belief. But an irony lost sight of in the rush to accept the race-centred account is that the racial explanation itself was not neutrally distributed by race. It was white Americans for the most part who sought to rationalize an otherwise incomprehensible verdict in terms of race: black Americans, including members of the jury, insisted that the evidence had failed to support a guilty verdict. If race was the major factor in the case, then one of its most palpable effects was to make different racial groups perceive the scientific evidence differently. We are directed again to the question of what makes such discrepancies of vision possible.
23. The phenomenon of credibility has long been of interest to social scientists and has recently emerged as an important focus of inquiry in social studies of science. A partial listing of relevant work includes: Mary Douglas, 'The Social Preconditions of Radical Skepticism', in John Law (ed.), Power, Action and Belief: A New Sociology of Knowledge?, Sociological Review Monograph No. 32 (London: Routledge & Kegan Paul, 1986), 68-87; Augustine Brannigan and Michael Lynch, 'On Bearing False Witness: Credibility as an Interactional Accomplishment', Journal of Contemporary Ethnography, Vol. 16 (1987), 115-46; Steven Shapin, A Social History of Truth (Chicago, IL: The University of Chicago Press, 1994); Shapin, ' "Cordelia's Love": Credibility and the Social Studies of Science', Perspectives on Science, Vol. 3 (1995), 255-75.
24. The phenomenon of credibility has long been of interest to social scientists and has recently emerged as an important focus of inquiry in social studies of science. A partial listing of relevant work includes: Mary Douglas, 'The Social Preconditions of Radical Skepticism', in John Law (ed.), Power, Action and Belief: A New Sociology of Knowledge?, Sociological Review Monograph No. 32 (London: Routledge & Kegan Paul, 1986), 68-87; Augustine Brannigan and Michael Lynch, 'On Bearing False Witness: Credibility as an Interactional Accomplishment', Journal of Contemporary Ethnography, Vol. 16 (1987), 115-46; Steven Shapin, A Social History of Truth (Chicago, IL: The University of Chicago Press, 1994); Shapin, ' "Cordelia's Love": Credibility and the Social Studies of Science', Perspectives on Science, Vol. 3 (1995), 255-75.
25. The phenomenon of credibility has long been of interest to social scientists and has recently emerged as an important focus of inquiry in social studies of science. A partial listing of relevant work includes: Mary Douglas, 'The Social Preconditions of Radical Skepticism', in John Law (ed.), Power, Action and Belief: A New Sociology of Knowledge?, Sociological Review Monograph No. 32 (London: Routledge & Kegan Paul, 1986), 68-87; Augustine Brannigan and Michael Lynch, 'On Bearing False Witness: Credibility as an Interactional Accomplishment', Journal of Contemporary Ethnography, Vol. 16 (1987), 115-46; Steven Shapin, A Social History of Truth (Chicago, IL: The University of Chicago Press, 1994); Shapin, ' "Cordelia's Love": Credibility and the Social Studies of Science', Perspectives on Science, Vol. 3 (1995), 255-75.
26. The phenomenon of credibility has long been of interest to social scientists and has recently emerged as an important focus of inquiry in social studies of science. A partial listing of relevant work includes: Mary Douglas, 'The Social Preconditions of Radical Skepticism', in John Law (ed.), Power, Action and Belief: A New Sociology of Knowledge?, Sociological Review Monograph No. 32 (London: Routledge & Kegan Paul, 1986), 68-87; Augustine Brannigan and Michael Lynch, 'On Bearing False Witness: Credibility as an Interactional Accomplishment', Journal of Contemporary Ethnography, Vol. 16 (1987), 115-46; Steven Shapin, A Social History of Truth (Chicago, IL: The University of Chicago Press, 1994); Shapin, ' "Cordelia's Love": Credibility and the Social Studies of Science', Perspectives on Science, Vol. 3 (1995), 255-75.
27. Case studies and extended discussion on this point may be found in Sheila Jasanoff, Science at the Bar: Law, Science, and Technology in America (Cambridge, MA: Harvard University Press, 1995). See also Brian Wynne, 'Establishing the Rules of Laws: Constructing Expert Authority', in Roger Smith and Wynne (eds), Expert Evidence (London: Routledge, 1989), 23-55. Instructive, as well, is a recent spate of legal writing attacking critical legal studies and critical race theory in much the way that some scientists have attacked science studies: see, for example, Daniel A. Farber, Beyond All Reason: The Radical Assault on Truth in American Law (New York: Oxford University Press, 1997). Notable reviews of this work include: Richard A. Posner, 'The Skin Trade', New Republic (13 October 1997), 40-43; Alex Kozinski, 'Bending the Law', New York Times Book Review (2 November 1997), 7.
28. Case studies and extended discussion on this point may be found in Sheila Jasanoff, Science at the Bar: Law, Science, and Technology in America (Cambridge, MA: Harvard University Press, 1995). See also Brian Wynne, 'Establishing the Rules of Laws: Constructing Expert Authority', in Roger Smith and Wynne (eds), Expert Evidence (London: Routledge, 1989), 23-55. Instructive, as well, is a recent spate of legal writing attacking critical legal studies and critical race theory in much the way that some scientists have attacked science studies: see, for example, Daniel A. Farber, Beyond All Reason: The Radical Assault on Truth in American Law (New York: Oxford University Press, 1997). Notable reviews of this work include: Richard A. Posner, 'The Skin Trade', New Republic (13 October 1997), 40-43; Alex Kozinski, 'Bending the Law', New York Times Book Review (2 November 1997), 7.
29. Case studies and extended discussion on this point may be found in Sheila Jasanoff, Science at the Bar: Law, Science, and Technology in America (Cambridge, MA: Harvard University Press, 1995). See also Brian Wynne, 'Establishing the Rules of Laws: Constructing Expert Authority', in Roger Smith and Wynne (eds), Expert Evidence (London: Routledge, 1989), 23-55. Instructive, as well, is a recent spate of legal writing attacking critical legal studies and critical race theory in much the way that some scientists have attacked science studies: see, for example, Daniel A. Farber, Beyond All Reason: The Radical Assault on Truth in American Law (New York: Oxford University Press, 1997). Notable reviews of this work include: Richard A. Posner, 'The Skin Trade', New Republic (13 October 1997), 40-43; Alex Kozinski, 'Bending the Law', New York Times Book Review (2 November 1997), 7.
30. Case studies and extended discussion on this point may be found in Sheila Jasanoff, Science at the Bar: Law, Science, and Technology in America (Cambridge, MA: Harvard University Press, 1995). See also Brian Wynne, 'Establishing the Rules of Laws: Constructing Expert Authority', in Roger Smith and Wynne (eds), Expert Evidence (London: Routledge, 1989), 23-55. Instructive, as well, is a recent spate of legal writing attacking critical legal studies and critical race theory in much the way that some scientists have attacked science studies: see, for example, Daniel A. Farber, Beyond All Reason: The Radical Assault on Truth in American Law (New York: Oxford University Press, 1997). Notable reviews of this work include: Richard A. Posner, 'The Skin Trade', New Republic (13 October 1997), 40-43; Alex Kozinski, 'Bending the Law', New York Times Book Review (2 November 1997), 7.
31. Case studies and extended discussion on this point may be found in Sheila Jasanoff, Science at the Bar: Law, Science, and Technology in America (Cambridge, MA: Harvard University Press, 1995). See also Brian Wynne, 'Establishing the Rules of Laws: Constructing Expert Authority', in Roger Smith and Wynne (eds), Expert Evidence (London: Routledge, 1989), 23-55. Instructive, as well, is a recent spate of legal writing attacking critical legal studies and critical race theory in much the way that some scientists have attacked science studies: see, for example, Daniel A. Farber, Beyond All Reason: The Radical Assault on Truth in American Law (New York: Oxford University Press, 1997). Notable reviews of this work include: Richard A. Posner, 'The Skin Trade', New Republic (13 October 1997), 40-43; Alex Kozinski, 'Bending the Law', New York Times Book Review (2 November 1997), 7.
32. I use the term 'translations' here as it is used by sociologists of science to describe the moves by which pieces of the natural world are made tractable and believable in communities of scientific or technological practice. See, in particular, Michel Callon, 'Some Elements of a Sociology of Translation: Domestication of the Scallops and the Fishermen of St Brieuc Bay', in Law (ed.), op. cit. note 19, 196-233.
33. Legal scholars and practitioners disagree about the extent to which legal language should be black-boxed and transported from one case to another as fixed doctrine or dogma. Schools of legal interpretation differ, for instance, in their willingness to refer to a rule's original factual context in deciding whether or not to apply it to a new set of facts: see Robert S. Summers, Instrumentalism and American Legal Theory (Ithaca, NY: Cornell University Press, 1982). The difference between the relatively doctrinaire legal realists and the more context-sensitive legal instrumentalists, however, is of degree rather than kind. In either case, language is seen as the primary instrument of persuasion. To acquire rule-like properties, common-law precedents necessarily have to shed their moorings in the messiness of specific facts, just as scientific claims have to cut loose from the contingencies of particular experimental and observational settings. In operating the 'literary technology' of the law, practitioners continually have to judge whether and how far they should deconstruct the applicable legal language.
34. In thinking about belief in the courtroom as a problem of information transfer and mediation (both verbal and visual), I take valuable cues from Bruno Latour: see, especially, Latour, 'On Technical Mediation - Philosophy, Sociology, Genealogy', Common Knowledge, Vol. 3, No. 2 (Fall 1994), 29-64; and his comparison of scientific and religious belief in Latour, 'Opening One Eye while Closing the Other . . . A Note on some Religious Paintings', in John Law and Gordon Fyfe (eds), Picturing Power: Visual Depiction and Social Relations, Sociological Review Monograph No. 35 (London: Routledge, 1988), 15-38, and 'On the Assumptions of the Virgin Mary - A Meditation on Mediation', paper presented at the conference on 'Histories of Art - Histories of Science' (Boston & Cambridge, MA, November 1995).
35. In thinking about belief in the courtroom as a problem of information transfer and mediation (both verbal and visual), I take valuable cues from Bruno Latour: see, especially, Latour, 'On Technical Mediation - Philosophy, Sociology, Genealogy', Common Knowledge, Vol. 3, No. 2 (Fall 1994), 29-64; and his comparison of scientific and religious belief in Latour, 'Opening One Eye while Closing the Other . . . A Note on some Religious Paintings', in John Law and Gordon Fyfe (eds), Picturing Power: Visual Depiction and Social Relations, Sociological Review Monograph No. 35 (London: Routledge, 1988), 15-38, and 'On the Assumptions of the Virgin Mary - A Meditation on Mediation', paper presented at the conference on 'Histories of Art - Histories of Science' (Boston & Cambridge, MA, November 1995).
36. In thinking about belief in the courtroom as a problem of information transfer and mediation (both verbal and visual), I take valuable cues from Bruno Latour: see, especially, Latour, 'On Technical Mediation - Philosophy, Sociology, Genealogy', Common Knowledge, Vol. 3, No. 2 (Fall 1994), 29-64; and his comparison of scientific and religious belief in Latour, 'Opening One Eye while Closing the Other . . . A Note on some Religious Paintings', in John Law and Gordon Fyfe (eds), Picturing Power: Visual Depiction and Social Relations, Sociological Review Monograph No. 35 (London: Routledge, 1988), 15-38, and 'On the Assumptions of the Virgin Mary - A Meditation on Mediation', paper presented at the conference on 'Histories of Art - Histories of Science' (Boston & Cambridge, MA, November 1995).
37. The 'exclusionary rule' is a principle of modern American constitutional law, with historical roots in the late 19th century, that gives courts authority to exclude testimony obtained through constitutionally impermissible searches, such as those lacking a warrant or probable cause. For a scathing criticism of the modern rule, see Akhil Reed Amar, 'Fourth Amendment First Principles', Harvard Law Review, Vol. 107 (1994), 757-819. Amar's evaluation rests on a number of unexamined background assumptions, including the existence of an unproblematic category of reliable evidence' which judges should always endeavour not to exclude. Legal commentaries seldom afford much insight into authors' understandings of such concepts as truth and reliability.
38. The leading American case here is the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
39. Legal accounts of evidence-making can, of course, be quite illuminating, even when they do not dig deeply into the production of scientific claims, because they shed light on the common cultural resources that support the construction of scientific and social credibility. An excellent example of such work is Joseph Sanders, 'From Science to Evidence: The Testimony on Causation in the Bendectin Cases', Stanford Law Review, Vol. 46 (1993), 1-86.
40. Sheila Jasanoff, 'Judicial Construction of New Scientific Evidence', in Paul T. Durbin (ed.), Critical Perspectives on Nonacademic Science and Engineering (Bethlehem, PA: Lehigh University Press, 1991), 215-38.
41. Following David Bloor's influential methodological exposition, the key point, of course, is neither to privilege unquestioningly the claims about truth and falsity put forward by particular actors ('impartiality') nor to offer systematically different causal explanations for true and false beliefs ('symmetry'): David Bloor, Knowledge and Social Imagery (Chicago, IL: The University of Chicago Press, 2nd edn, 1991), 7.
42. See, for example, Simon Schaffer, 'On Astronomical Drawing', paper presented at the conference on 'Histories of Art - Histories of Science' (Boston & Cambridge, MA. November 1995).
43. For particularly illuminating treatments of the relationship between forms of witnessing and the exercise of power, see Steven Shapin and Simon Schaffer, leviathan and the Air-Pump: Hobbes, Boyle, and the Experimental Life (Princeton, NJ: Princeton University Press, 19851, esp. 55-65; and Yaron Ezrahi, The Descent of Icarus: Science and the Transformation of Contemporary Democracy (Cambridge, MA: Harvard University Press, 1990), esp. 67-96.
44. For particularly illuminating treatments of the relationship between forms of witnessing and the exercise of power, see Steven Shapin and Simon Schaffer, leviathan and the Air-Pump: Hobbes, Boyle, and the Experimental Life (Princeton, NJ: Princeton University Press, 19851, esp. 55-65; and Yaron Ezrahi, The Descent of Icarus: Science and the Transformation of Contemporary Democracy (Cambridge, MA: Harvard University Press, 1990), esp. 67-96.
45. Charles Goodwin, 'Professional Vision', American Anthropologist, Vol. 96, No. 3 (September 1994), 606-33.
46. Justice Orton is quoted in a novelistic account of the case by the crime writer Joseph Wambaugh: The Blooding (London: Bantam, 1989), 275.
47. Lander & Budowle, op. cit. note 13, 735.
48. Ian Fisher, 'Ruling Allows DNA Testing as Evidence', New York Times (30 March 1994), B1.
49. A new technique, 'Rapid Elimination Mass Screening' (REMS), has lowered these costs: Terry Kirby, 'Genetic Testing Breakthrough Allows Mass Screening of Suspects', and 'Faster Genetic Fingerprints Help Police', The Independent (London, 26 August 1991), 1, 6. Wambaugh cites a somewhat different figure (£72 for a two-hour blooding): op. cit. note 32, 209.
50. Wambaugh, op. cit. note 32, 214.
51. Among the formal techniques that the law employs for this purpose is the 'chain of custody', establishing the unbroken transfer of physical evidence from the location of the disputed events to the courtroom. A full-blown comparison of the mediations used to produce evidence in science and law could prove instructive.
52. On the importance of language and rhetoric in constructing scientific claims, see Peter R. Dear (ed.), The Literary Structure of Scientific Argument: Historical Studies (Philadelphia, PA: University of Pennsylvania Press, 1991).
53. This is the attribute of perception that the Japanese film-maker Kurasawa famously exploited in his classic work, Rashomon. On the partial and misleading nature of vision, see also G.K. Chesterton, 'The Man in the Passage', in Father Brown Stories (London: Folio Society, 1959), 52-69. Aptly enough for our purposes, the story turns on discrepancies in courtroom testimony by three equally credible witnesses: 'And the figure in the passage, described by three capable and respected men who had all seen it, was a shifting nightmare: one called it a woman, and the other a beast, and the other a devil . . .' (66). As aficionados of Father Brown will recall, each man had seen his own reflection in a mirror.
54. The classic account of inscriptions and their role in producing scientific facts is Bruno Latour and Steve Woolgar, Laboratory Life: The Construction of Scientific Facts (Princeton, NJ: Princeton University Press, 2nd edn, 1986), esp. 45-53, 89 (n 5), 244-46. Scientists, and for that matter other social actors, make choices in deciding how close to the visual signal they will stay in interpreting it: see Shapin (1995), op. cit. note 19, 264-67, and Trevor J. Pinch, 'Towards an Analysis of Scientific Observation: The Externality and Evidential Significance of Observational Reports in Physics', Social Studies of Science, Vol. 15, No. 1 (February 1985), 3-36. On the monopolistic and potentially unlegitimated character of such interpretations, see Shapin, ibid., and Zygmunt Bauman, Intimations of Postmodernity (London: Routledge, 1992).
55. The classic account of inscriptions and their role in producing scientific facts is Bruno Latour and Steve Woolgar, Laboratory Life: The Construction of Scientific Facts (Princeton, NJ: Princeton University Press, 2nd edn, 1986), esp. 45-53, 89 (n 5), 244-46. Scientists, and for that matter other social actors, make choices in deciding how close to the visual signal they will stay in interpreting it: see Shapin (1995), op. cit. note 19, 264-67, and Trevor J. Pinch, 'Towards an Analysis of Scientific Observation: The Externality and Evidential Significance of Observational Reports in Physics', Social Studies of Science, Vol. 15, No. 1 (February 1985), 3-36. On the monopolistic and potentially unlegitimated character of such interpretations, see Shapin, ibid., and Zygmunt Bauman, Intimations of Postmodernity (London: Routledge, 1992).
56. The classic account of inscriptions and their role in producing scientific facts is Bruno Latour and Steve Woolgar, Laboratory Life: The Construction of Scientific Facts (Princeton, NJ: Princeton University Press, 2nd edn, 1986), esp. 45-53, 89 (n 5), 244-46. Scientists, and for that matter other social actors, make choices in deciding how close to the visual signal they will stay in interpreting it: see Shapin (1995), op. cit. note 19, 264-67, and Trevor J. Pinch, 'Towards an Analysis of Scientific Observation: The Externality and Evidential Significance of Observational Reports in Physics', Social Studies of Science, Vol. 15, No. 1 (February 1985), 3-36. On the monopolistic and potentially unlegitimated character of such interpretations, see Shapin, ibid., and Zygmunt Bauman, Intimations of Postmodernity (London: Routledge, 1992).
57. The classic account of inscriptions and their role in producing scientific facts is Bruno Latour and Steve Woolgar, Laboratory Life: The Construction of Scientific Facts (Princeton, NJ: Princeton University Press, 2nd edn, 1986), esp. 45-53, 89 (n 5), 244-46. Scientists, and for that matter other social actors, make choices in deciding how close to the visual signal they will stay in interpreting it: see Shapin (1995), op. cit. note 19, 264-67, and Trevor J. Pinch, 'Towards an Analysis of Scientific Observation: The Externality and Evidential Significance of Observational Reports in Physics', Social Studies of Science, Vol. 15, No. 1 (February 1985), 3-36. On the monopolistic and potentially unlegitimated character of such interpretations, see Shapin, ibid., and Zygmunt Bauman, Intimations of Postmodernity (London: Routledge, 1992).
58. Shapin & Schaffer, op. cit. note 30, 55-63. Boyle and his contemporaries drew analogies between experimentation and the legal process. The veracity of both, they noted, could be established by a multiplicity of witnesses, and right actions could be taken on the basis of knowledge so vindicated. Boyle apparently did not have in mind the particular conundrum that would be created by embedding the experimental space - a 'virtual' court of law - within a real legal proceeding, through the vehicle of expert witnessing. This, however, is the quotidian problem of modern law and modern science.
59. Latour, op. cit. note 2.
60. Inscriptions that appear to speak thus plainly to lay spectators may, of course, seem far more problematic to expert interpreters: see Jasanoff, op. cit. note 20, 128-29.
61. Advertising practices offer some evidence to the widespread cultural acceptance of fingerprints as markers of unique identity. Manufacturers of products such as cars and water faucets have employed fingerprints as part of the iconography that distinguishes their products from others. In 1985, the New York State Department of Taxation used the image of a fingerprint to announce an amnesty programme for tax evaders.
62. Simon A. Cole, 'Witnessing Identification: Latent Fingerprinting Evidence and Expert Knowledge', Social Studies of Science, Vol. 28, Nos 5-6 (October-December 1998), 687-712.
63. 533 So.2d 841 (Fla. App. 5 Dist. 1988), review denied 542 So.2d 1332 (Fla. 1989).
64. Florida v. Andrews, transcript of 20 October 1987 (testimony of Dr David E. Housman), 17.
65. 599 A.2d 960 (N.J. Super.L. 1991).
66. For an account of the technique's discovery, see Paul Rabinow, Making PCR (Chicago, IL: The University of Chicago Press, 1996).
67. State of New Jersey v. Williams, transcript of 7 May 1991 (direct examination of Dr Edward T. Blake), 43-44.
68. In modern democratic societies, both the natural and social sciences are therefore simultaneously engaged in creating and satisfying citizens' demands for legitimating demonstrations. See, for example: Ezrahi, op. cit. note 30; Helga Nowotny, 'Knowledge for Certainty: Poverty, Welfare Institutions and the Institutionalization of Social Science', in Peter Wagner, Björn Wittrock and Richard Whitley (eds), Discourses on Society: The Shaping of the Social Science Disciplines, Sociology of the Sciences Yearbook, Vol. 15 (Dordrecht: Kluwer, 1990), 23-41; Theodore M. Porter, Trust in Numbers: The Pursuit of Objectivity in Science and Public Life (Princeton, NJ: Princeton University Press, 1995).
69. In modern democratic societies, both the natural and social sciences are therefore simultaneously engaged in creating and satisfying citizens' demands for legitimating demonstrations. See, for example: Ezrahi, op. cit. note 30; Helga Nowotny, 'Knowledge for Certainty: Poverty, Welfare Institutions and the Institutionalization of Social Science', in Peter Wagner, Björn Wittrock and Richard Whitley (eds), Discourses on Society: The Shaping of the Social Science Disciplines, Sociology of the Sciences Yearbook, Vol. 15 (Dordrecht: Kluwer, 1990), 23-41; Theodore M. Porter, Trust in Numbers: The Pursuit of Objectivity in Science and Public Life (Princeton, NJ: Princeton University Press, 1995).
70. Williams transcript, op. cit. note 50, 44.
71. Peter W. Huber, Galileo's Revenge: Junk Science in the Courtroom (New York: Basic Books, 1991), esp. 192-213; also see Jasanoff, op. cit. note 20, esp. 45-63, 206-10.
72. 293 F. 1013 (D.C. Cir. 1923).
73. Jasanoff, op. cit. note 20, 61-62.
74. 509 U.S. 579 (1993).
75. For further discussion of the Daubert criteria, see Kenneth R. Foster, David E. Bernstein and Peter W. Huber, 'Science and the Toxic Tort', Science, Vol. 261 (17 September 1993), 1509, 1614; Foster and Huber, Judging Science: Scientific Knowledge and the Federal Courts (Cambridge, MA: The MIT Press, 1997); Bert Black, Francisco Ayala and Carol Saffran Brinks, 'Science and the Law in the Wake of Dauben: A New Search for Scientific Knowledge', University of Texas Law Review, Vol. 72 (1994), 753-85; John L. Heilbron, 'The Affair of the Countess Gorlitz', Proceedings of the American Philosophical Society, Vol. 138 (1994), 284-316; Margaret G. Farrell, 'Daubert v. Merrell Dow Pharmaceuticals, Inc.: Epistemology and Legal Process', Cardozo Law Review, Vol. 15 (1994), 2183-217; Sheila Jasanoff, 'Beyond Epistemology: Relativism and Engagement in the Politics of Science', Social Studies of Science, Vol. 26, No. 2 (May 1996), 393-418; Adina Schwartz, 'A Dogma of "Empiricism" Revisited: Daubert v. Merrell Dow Pharmaceuticals, Inc. and the Need to Resurrect the Philosophical Insight of Frye v. United States', Harvard Journal of Law and Technology, Vol. 10 (1997), 149-237; Anthony Z. Roisman, 'The Courts, Daubert, and Environmental Torts: Gatekeepers or Auditors?', Pace Environmental Law Review, Vol. 14 (1997), 545-76.
76. For further discussion of the Daubert criteria, see Kenneth R. Foster, David E. Bernstein and Peter W. Huber, 'Science and the Toxic Tort', Science, Vol. 261 (17 September 1993), 1509, 1614; Foster and Huber, Judging Science: Scientific Knowledge and the Federal Courts (Cambridge, MA: The MIT Press, 1997); Bert Black, Francisco Ayala and Carol Saffran Brinks, 'Science and the Law in the Wake of Dauben: A New Search for Scientific Knowledge', University of Texas Law Review, Vol. 72 (1994), 753-85; John L. Heilbron, 'The Affair of the Countess Gorlitz', Proceedings of the American Philosophical Society, Vol. 138 (1994), 284-316; Margaret G. Farrell, 'Daubert v. Merrell Dow Pharmaceuticals, Inc.: Epistemology and Legal Process', Cardozo Law Review, Vol. 15 (1994), 2183-217; Sheila Jasanoff, 'Beyond Epistemology: Relativism and Engagement in the Politics of Science', Social Studies of Science, Vol. 26, No. 2 (May 1996), 393-418; Adina Schwartz, 'A Dogma of "Empiricism" Revisited: Daubert v. Merrell Dow Pharmaceuticals, Inc. and the Need to Resurrect the Philosophical Insight of Frye v. United States', Harvard Journal of Law and Technology, Vol. 10 (1997), 149-237; Anthony Z. Roisman, 'The Courts, Daubert, and Environmental Torts: Gatekeepers or Auditors?', Pace Environmental Law Review, Vol. 14 (1997), 545-76.
77. For further discussion of the Daubert criteria, see Kenneth R. Foster, David E. Bernstein and Peter W. Huber, 'Science and the Toxic Tort', Science, Vol. 261 (17 September 1993), 1509, 1614; Foster and Huber, Judging Science: Scientific Knowledge and the Federal Courts (Cambridge, MA: The MIT Press, 1997); Bert Black, Francisco Ayala and Carol Saffran Brinks, 'Science and the Law in the Wake of Dauben: A New Search for Scientific Knowledge', University of Texas Law Review, Vol. 72 (1994), 753-85; John L. Heilbron, 'The Affair of the Countess Gorlitz', Proceedings of the American Philosophical Society, Vol. 138 (1994), 284-316; Margaret G. Farrell, 'Daubert v. Merrell Dow Pharmaceuticals, Inc.: Epistemology and Legal Process', Cardozo Law Review, Vol. 15 (1994), 2183-217; Sheila Jasanoff, 'Beyond Epistemology: Relativism and Engagement in the Politics of Science', Social Studies of Science, Vol. 26, No. 2 (May 1996), 393-418; Adina Schwartz, 'A Dogma of "Empiricism" Revisited: Daubert v. Merrell Dow Pharmaceuticals, Inc. and the Need to Resurrect the Philosophical Insight of Frye v. United States', Harvard Journal of Law and Technology, Vol. 10 (1997), 149-237; Anthony Z. Roisman, 'The Courts, Daubert, and Environmental Torts: Gatekeepers or Auditors?', Pace Environmental Law Review, Vol. 14 (1997), 545-76.
78. For further discussion of the Daubert criteria, see Kenneth R. Foster, David E. Bernstein and Peter W. Huber, 'Science and the Toxic Tort', Science, Vol. 261 (17 September 1993), 1509, 1614; Foster and Huber, Judging Science: Scientific Knowledge and the Federal Courts (Cambridge, MA: The MIT Press, 1997); Bert Black, Francisco Ayala and Carol Saffran Brinks, 'Science and the Law in the Wake of Dauben: A New Search for Scientific Knowledge', University of Texas Law Review, Vol. 72 (1994), 753-85; John L. Heilbron, 'The Affair of the Countess Gorlitz', Proceedings of the American Philosophical Society, Vol. 138 (1994), 284-316; Margaret G. Farrell, 'Daubert v. Merrell Dow Pharmaceuticals, Inc.: Epistemology and Legal Process', Cardozo Law Review, Vol. 15 (1994), 2183-217; Sheila Jasanoff, 'Beyond Epistemology: Relativism and Engagement in the Politics of Science', Social Studies of Science, Vol. 26, No. 2 (May 1996), 393-418; Adina Schwartz, 'A Dogma of "Empiricism" Revisited: Daubert v. Merrell Dow Pharmaceuticals, Inc. and the Need to Resurrect the Philosophical Insight of Frye v. United States', Harvard Journal of Law and Technology, Vol. 10 (1997), 149-237; Anthony Z. Roisman, 'The Courts, Daubert, and Environmental Torts: Gatekeepers or Auditors?', Pace Environmental Law Review, Vol. 14 (1997), 545-76.
79. For further discussion of the Daubert criteria, see Kenneth R. Foster, David E. Bernstein and Peter W. Huber, 'Science and the Toxic Tort', Science, Vol. 261 (17 September 1993), 1509, 1614; Foster and Huber, Judging Science: Scientific Knowledge and the Federal Courts (Cambridge, MA: The MIT Press, 1997); Bert Black, Francisco Ayala and Carol Saffran Brinks, 'Science and the Law in the Wake of Dauben: A New Search for Scientific Knowledge', University of Texas Law Review, Vol. 72 (1994), 753-85; John L. Heilbron, 'The Affair of the Countess Gorlitz', Proceedings of the American Philosophical Society, Vol. 138 (1994), 284-316; Margaret G. Farrell, 'Daubert v. Merrell Dow Pharmaceuticals, Inc.: Epistemology and Legal Process', Cardozo Law Review, Vol. 15 (1994), 2183-217; Sheila Jasanoff, 'Beyond Epistemology: Relativism and Engagement in the Politics of Science', Social Studies of Science, Vol. 26, No. 2 (May 1996), 393-418; Adina Schwartz, 'A Dogma of "Empiricism" Revisited: Daubert v. Merrell Dow Pharmaceuticals, Inc. and the Need to Resurrect the Philosophical Insight of Frye v. United States', Harvard Journal of Law and Technology, Vol. 10 (1997), 149-237; Anthony Z. Roisman, 'The Courts, Daubert, and Environmental Torts: Gatekeepers or Auditors?', Pace Environmental Law Review, Vol. 14 (1997), 545-76.
80. For further discussion of the Daubert criteria, see Kenneth R. Foster, David E. Bernstein and Peter W. Huber, 'Science and the Toxic Tort', Science, Vol. 261 (17 September 1993), 1509, 1614; Foster and Huber, Judging Science: Scientific Knowledge and the Federal Courts (Cambridge, MA: The MIT Press, 1997); Bert Black, Francisco Ayala and Carol Saffran Brinks, 'Science and the Law in the Wake of Dauben: A New Search for Scientific Knowledge', University of Texas Law Review, Vol. 72 (1994), 753-85; John L. Heilbron, 'The Affair of the Countess Gorlitz', Proceedings of the American Philosophical Society, Vol. 138 (1994), 284-316; Margaret G. Farrell, 'Daubert v. Merrell Dow Pharmaceuticals, Inc.: Epistemology and Legal Process', Cardozo Law Review, Vol. 15 (1994), 2183-217; Sheila Jasanoff, 'Beyond Epistemology: Relativism and Engagement in the Politics of Science', Social Studies of Science, Vol. 26, No. 2 (May 1996), 393-418; Adina Schwartz, 'A Dogma of "Empiricism" Revisited: Daubert v. Merrell Dow Pharmaceuticals, Inc. and the Need to Resurrect the Philosophical Insight of Frye v. United States', Harvard Journal of Law and Technology, Vol. 10 (1997), 149-237; Anthony Z. Roisman, 'The Courts, Daubert, and Environmental Torts: Gatekeepers or Auditors?', Pace Environmental Law Review, Vol. 14 (1997), 545-76.
81. For further discussion of the Daubert criteria, see Kenneth R. Foster, David E. Bernstein and Peter W. Huber, 'Science and the Toxic Tort', Science, Vol. 261 (17 September 1993), 1509, 1614; Foster and Huber, Judging Science: Scientific Knowledge and the Federal Courts (Cambridge, MA: The MIT Press, 1997); Bert Black, Francisco Ayala and Carol Saffran Brinks, 'Science and the Law in the Wake of Dauben: A New Search for Scientific Knowledge', University of Texas Law Review, Vol. 72 (1994), 753-85; John L. Heilbron, 'The Affair of the Countess Gorlitz', Proceedings of the American Philosophical Society, Vol. 138 (1994), 284-316; Margaret G. Farrell, 'Daubert v. Merrell Dow Pharmaceuticals, Inc.: Epistemology and Legal Process', Cardozo Law Review, Vol. 15 (1994), 2183-217; Sheila Jasanoff, 'Beyond Epistemology: Relativism and Engagement in the Politics of Science', Social Studies of Science, Vol. 26, No. 2 (May 1996), 393-418; Adina Schwartz, 'A Dogma of "Empiricism" Revisited: Daubert v. Merrell Dow Pharmaceuticals, Inc. and the Need to Resurrect the Philosophical Insight of Frye v. United States', Harvard Journal of Law and Technology, Vol. 10 (1997), 149-237; Anthony Z. Roisman, 'The Courts, Daubert, and Environmental Torts: Gatekeepers or Auditors?', Pace Environmental Law Review, Vol. 14 (1997), 545-76.
82. For further discussion of the Daubert criteria, see Kenneth R. Foster, David E. Bernstein and Peter W. Huber, 'Science and the Toxic Tort', Science, Vol. 261 (17 September 1993), 1509, 1614; Foster and Huber, Judging Science: Scientific Knowledge and the Federal Courts (Cambridge, MA: The MIT Press, 1997); Bert Black, Francisco Ayala and Carol Saffran Brinks, 'Science and the Law in the Wake of Dauben: A New Search for Scientific Knowledge', University of Texas Law Review, Vol. 72 (1994), 753-85; John L. Heilbron, 'The Affair of the Countess Gorlitz', Proceedings of the American Philosophical Society, Vol. 138 (1994), 284-316; Margaret G. Farrell, 'Daubert v. Merrell Dow Pharmaceuticals, Inc.: Epistemology and Legal Process', Cardozo Law Review, Vol. 15 (1994), 2183-217; Sheila Jasanoff, 'Beyond Epistemology: Relativism and Engagement in the Politics of Science', Social Studies of Science, Vol. 26, No. 2 (May 1996), 393-418; Adina Schwartz, 'A Dogma of "Empiricism" Revisited: Daubert v. Merrell Dow Pharmaceuticals, Inc. and the Need to Resurrect the Philosophical Insight of Frye v. United States', Harvard Journal of Law and Technology, Vol. 10 (1997), 149-237; Anthony Z. Roisman, 'The Courts, Daubert, and Environmental Torts: Gatekeepers or Auditors?', Pace Environmental Law Review, Vol. 14 (1997), 545-76.
83. Sheila Jasanoff, 'What Judges Should Know about the Sociology of Science', Jurimetrics, Vol. 32 (1992), 345-59; Jasanoff, op. cit. notes 20 & 27.
84. People v. Ojeda, 225 Ca1 App.3d 404 (1990); Jasanoff, op. cit. note 20, 59-61.
85. Goodwin, op. cit. note 31, 606.
86. Ibid., 619-22.
87. Michel Foucault, 'The Order of Discourse', in Robert Young (ed.), Untying the Text: A Post-Structuralist Reader (Boston, MA: Routledge & Kegan Paul, 1981), 48-78.
88. The People v. Orenthal James Simpson (hereafter cited as 'Simpson trial'), video of pre-trial hearing, 27 July 1994 (author's transcription).
89. Ibid.
90. Shapin & Schaffer, op. cit. note 30.
91. Goodwin, op. cit. note 31, 606.
92. Simpson trial, videotape and transcript of admissibility hearing, 23 February 1995.
93. Ibid.
94. Ibid.
95. See, generally, Smith & Wynne (eds), op. cit. note 20. On the issue of DNA evidence and its deconstruction, see Jasanoff (1992), op. cit. note 58, and Jasanoff, op. cit. note 20, 55-57.
96. The issue subsequently provoked considerable interest in the letter columns of Science: see 'DNA Fingerprinting' (Letters), Science, Vol. 247 (2 March 1990), 1018-19.
97. Lander & Budowle, op. cit. note 13, 735.
98. I am here drawing on, but also extending, the valuable work in science studies on scientists' repertoires of challenge and justification: see, in particular, G. Nigel Gilbert and Michael Mulkay, Opening Pandora's Box: A Sociological Analysis of Scientists' Discourse (Cambridge: Cambridge University Press, 1984); H.M. Collins, Changing Order: Replication and Induction in Scientific Practice (London: Sage Publications, 1985).
99. I am here drawing on, but also extending, the valuable work in science studies on scientists' repertoires of challenge and justification: see, in particular, G. Nigel Gilbert and Michael Mulkay, Opening Pandora's Box: A Sociological Analysis of Scientists' Discourse (Cambridge: Cambridge University Press, 1984); H.M. Collins, Changing Order: Replication and Induction in Scientific Practice (London: Sage Publications, 1985).
100. This is not to say that there is any universal agreement among scientists, or presumably among laypeople, as to what constitutes an adequate control in experimental practice: see Sheila Jasanoff, The Fifth Branch: Science Advisers as Policymakers (Cambridge, MA: Harvard University Press, 1990), 75-76.
101. Zachary R. Dowdy, 'A Ruling vs. DNA Evidence', Boston Globe (12 March 1996), 1.
102. Consider, for example, the different standards for scientific misconduct that came into play during the investigation of MIT biologist Thereza Imanishi-Kari in the so-called Baltimore case: Daniel Kevles, 'The Assault on David Baltimore', New Yorker (27 May 1996), 94-109.
103. Shapin (1995), op. cit. note 19, 268-71. My views here run counter to those of Luhmann and Giddens, as represented by Shapin.
104. Standardized collection methods are equally essential to the project of making credible scientific data, inscriptions, and measurements out of nature's raw materials. For more on this point, especially on the significance of protocols and logbooks, see Bruno Latour, 'The "Pédofil" of Boa Vista', Common Knowledge, Vol. 4, No. 1 (Spring 1995), 144-87.
105. The manual in question apparently was an edition of Barry A.J. Fisher, Techniques of Crime Scene Investigation (New York: Elsevier, 5th edn, 1992).
106. Simpson trial, transcript of 12 April 1995 (testimony of Dennis Fung).
107. Lander & Budowle, op. cit. note 13, 735.
108. Jeffrey Toobin, 'Ito and the Truth School', New Yorker (27 March 1995), 42-18. As the trial wore on, straining patience as well as resources, Toobin's flattering picture of Ito yielded to a more ambivalent one that stressed his indecisiveness and lack of energy.
109. Jasanoff, op. cit. note 20, 66-67, 221-22.
110. AAAS-ABA National Conference of Lawyers and Scientists, 'Enhancing the Availability of Reliable and Impartial Scientific and Technical Expertise to the Federal Courts', Report to the Carnegie Commission on Science, Technology and Government (Washington, DC, September 1991).
111. Lord Harry Woolf, Access to Justice: Final Report (London: HMSO, 1995).
112. 139 L.Ed.2d 508 (1997).
113. Bruno Latour, Science in Action (Cambridge, MA: Harvard University Press, 1987), 96-100.
114. See, for instance, Rorty's claim that the 'hardness of fact . . . is simply the hardness of the previous agreements within a community about the consequences of a certain event': Richard Rorty, 'Texts and Lumps', in his Objectivity, Relativism, and Truth (Cambridge: Cambridge University Press, 1991), 78-92, at 80.