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Journal Article 3.1: Stygall, G. (2001, August). A different class of witnesses: Experts in the courtroom. Discourse Studies, 3(3), 327-349.

Abstract: This investigation examines the discursive history and contemporary courtroom discourse of expert witnesses in Anglo-American courts, incorporating the methods of Michel Foucault into a Critical Discourse Analysis framework. The history of experts is marked by a profound discontinuity in the role of experts, during the late medieval period, with experts relegated to a witness role instead of a juror role--that of the privately knowledgeable investigator--they previously held. Examination of the discourse of contemporary experts in three high-profile U.S. trials documents a different witness status for experts along three parameters: amplification of question responses; the use of the contrastive discourse marker well to express professional disagreement with their interlocutors; and the embedding of professional practices into so clauses. These parameters stand in sharp contrast to ordinary witness discourse. The study concludes with a discussion of the stakes in legal control of expert witnesses including asymmetrical access to experts by economic status, the possible suppression of some expert testimony by recent U.S. Supreme Court decisions, and the hierarchicalization of expert knowledge.

Journal Article 3.2: Simon, R. J. (1970, June). “Beyond a reasonable doubt”: An experimental attempt at quantification. The Journal of Applied Behavioral Science, 6(2), 203-209.

Abstract: In American courts the burden of proof for determining guilt in criminal trials is the presentation of evidence which would lead “a reasonable man” to believe “beyond a reasonable doubt” that the defendant did indeed commit the act for which he was charged. This standard is applicable to all criminal acts irrespective of their heinousness or the circumstances under which they were committed. In instructing the jury, the judge explains his use of the phrase “beyond a reasonable doubt” by relying primarily upon paraphrases and by using what he believes are synonymous terms. Thus, a typical instruction sounds like this:

Reasonable doubt is one a reasonable person has after carefully weighing all the testimony and is one a reasonable person would act or decline to act upon. It is not a capricious doubt or a fanciful doubt or a doubt arising in anyone’s mind because of any sympathy for the defendant. It is in essence what the words obviously mean--a reasonable doubt. A reasonable doubt may arise not only from the evidence produced but also from a lack of evidence.

The purpose of this research is to find out how subjects who are expected to apply that standard, namely, members of a jury, interpret its meaning, and to understand the relationship between the jurors’ interpretation of the instruction and their verdict. From anecdotal evidence, it seems that the public translates the phrase “beyond a reasonable doubt” into “almost certain,” “practically sure,” “with only the slightest doubt”; or, if we were to restate the instruction in terms of a percentage or a probability, over a go per cent likelihood that the defendant committed the act for which he was charged.

The findings reported in this paper describe one attempt at obtaining, if not a more accurate, at least a more easily communicated and a more reliable definition of the standard “beyond a reasonable doubt.”