Author:	N Kathleen Sam Banks Senior Lecturer in Law, University of Huddersfield
Subjects:	Evidence (Law) (Other articles) Evidence Expert
Issue:	Volume 6, Number 4 (December 1999)
Category:	Refereed Articles

Contents

• Introduction
• The Need for Expert Evidence
• Raising Voices of Authority: The Ascendancy of Science?
• Law's Empire-Building
• Conclusion
• Notes

Introduction

1. What do they know?

   The need for expert, [1] often social science,[2] evidence in criminal law cases is well-known. Indeed, for law to resort to outside assistance is hardly a concept foreign to the shores of England and Wales. As early as 1554 Saunders J said:

   If matters arise in our law which concern other sciences or faculties we commonly apply for the aid of that science of faculty which it concerns. This is a commendable thing in our law. For thereby it appears that we do not dismiss all other sciences, but our own, but we approve of them and encourage them as things worthy of commendation.[3]

2. Expert evidence is admissible to "furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury."[4] Without this kind of evidence, women accused of murdering their abusive partners, for instance, might appear to be impulsive killers who act upon the slightest provocation or opportunity. Evidence is needed to put these actions into perspective: to address such genuine and natural questions as, "If it was as bad as she says it was, why didn't she leave?" The development and judicial recognition of battered woman syndrome[5] in domestic violence[6] cases has lent important support for and insight into the particular psychological forces at work in these cases. Concurrent with this development has been a growing body of legal literature about domestic violence and battered woman syndrome, and the application and use of this evidence in court. This literature covers a wide expanse of legal territory, from that which measures and examines data concerning the prevalence of this type of violence against women,[7] assesses the availability, utility and implications of criminal law defences open to women who kill their abusive partners,[8] to analyses of the impact of class and culture on domestic violence.[9]

3. I approach the use of evidence of battered woman syndrome from a somewhat different angle. I am interested in the use and interpretation of this kind of expert evidence as it is used in criminal cases, and how this material is received, shaped and transformed from one sort of information into another. In particular, I am curious about how some information is privileged and legitimated by the courts while other information is discounted and rejected, and how "scientific fact" is thus transformed into "legal fact", the only kind acceptable to the court. Using the example of expert evidence in domestic violence cases, in this paper I examine the use of social science evidence in court from a legal and ideological stance, and demonstrate how this information is manipulated and transformed by law and the trial process. This is not an examination or critique of a defence of battered woman syndrome itself, which has been done elsewhere.[10] Rather, my interest is in what the use of expert evidence can tell us about the courts and the ways this information is received and interpreted.

4. While most of the law I refer to is sourced in England and Wales, I draw on the law in other jurisdictions such as Canada, Australia and the United States to assist me in demonstrating law's hegemony. Indeed, it may be observed that local laws are often reflective of wider, more universal principles and ideologies. It is my intention to make a few general points by reference to some specific examples as found in the use of expert evidence in trials. And those points are these: that law and science are engaged in a struggle over what constitutes the truth and who ultimately determines what the truth is; and that in furtherance of its campaign to be the ultimate arbiter of the truth, law employs a number of mechanisms to control both access to and interpretation of information within its own domain.

   The Need for Expert Evidence

5. A woman who kills the partner she says was abusing her may wish to put forward in her defence evidence that she had been battered and suffered battered woman syndrome. If successful, this evidence may go some distance in explaining her actions and could result in her being acquitted of murder, though possibly convicted of manslaughter on the basis of raising the partial defences of provocation[11] or diminished responsibility.[12] These defences leave a woman with the choice of casting herself as bad ("I was provoked and lashed out") or mad ("I'm mentally unstable"), neither of which may accurately or adequately capture her reasons for her actions.

6. Self-defence, as a justification[13] to the charge of murder, often seems unavailable because the facts and circumstances of the killing may not easily correspond with self-defence as it is traditionally constructed. For example, a woman might kill her abuser in a period of relative calm after a battering rather than during, the timing of which tends against the more traditional view of acting to protect herself or prevent a crime. If the event is over, how can it be said that she is protecting herself? Self-defence as it is traditionally interpreted is more accommodating of actions done in the heat of the moment.[14] Indeed, waiting until the abuser is asleep or has his back turned and is walking away appears calculating, opportunistic and malicious - at first blush the very opposite of self-defence and likely questionable to a trier of fact attempting to understand why the defendant did what she did.

7. Similar difficulties arise with the partial defence of provocation. The scenario outlined above might not fit within the usual provocation template of a "sudden and temporary loss of self-control".[15] This is illustrated by the rejection of provocation in such a "cumulative provocation" situation in R v Duffy, itself concerned with a woman who killed her batterer. The Court of Appeal quoted with approval a statement by Devlin J that "a long course of conduct causing suffering and anxiety are not themselves sufficient to constitute provocation."[16] The Court was further at pains to distinguish the differing motives for the defendant's actions, stating that "circumstances [such as a history of abuse] which induce a desire for revenge are inconsistent with provocation".[17]

8. This idea was echoed in R v Thornton,[18] where Beldam LJ said that "the sudden and temporary loss of control" requirement was "just as, if not more important"[19] in cases of cumulative provocation in order to distinguish between those who killed in the heat of the moment and those who "had time to think and reflect and regain self-control"[20] and then strike the fatal blow(s).

9. Importantly, the strict view in Duffy and Thornton has been tempered by findings in R v Ahluwalia.[21] Here, the Court of Appeal held that in such "slow burn" cases, a delay or "cooling off period" between the battering event and the killing would not necessarily undermine a defence of provocation. Rather, Taylor LJ said, it was for the jury to interpret the meaning of the time between the actions of the victim and the defendant's response.[22]

10. In each of these cases it might be desirable to present expert evidence in order to explain the effects on the woman of living with a battering partner, why she finally killed her abuser and to assist the jury in the interpretation of any delay between the batterings and the final fatal acts of the defendant. The expert evidence will almost certainly be psychiatric evidence. In cases where the defendant pleads diminished responsibility, medical evidence is a necessity[23] and a jury can not return a verdict of manslaughter on the ground of diminished responsibility absent medical evidence of an abnormality of the mind arising from one of the causes specified in the legislation. It is here at the intersection of sense and common sense that expert evidence and domestic violence collide. The evidence is adduced in an attempt to answer the "why didn't she leave?" question and to dispel commonly held assumptions and myths about women and the lives they live with their abusive partners who batter them. These include the beliefs that in fact the beatings were not as bad as she said they were (otherwise she would leave), or that she must have enjoyed them in some masochistic way (otherwise she would leave).

11. Yet the evidence is admissible only if it relates to something that the lay person would not be able to understand unaided. Common sense surely tells someone to leave a situation that is harmful to her - doesn't it? Why is that so difficult to understand? The difficulty with defences such as self-defence and provocation is that they are predicated on masculinist norms of appropriate response to violence - the "reasonable man" or "ordinary person".[24] But to the battered woman, reality as she senses and experiences it may be far different from that of a person who has not lived that particular life. Expert evidence is needed to displace a juror's "common knowledge" or "common sense" where their own "logic, drawn from their own experience, may lead to a wholly incorrect conclusion".[25]

12. Thus, absent an understanding of the dynamics of battered woman syndrome at work in domestic violence, jurors would be unable to comprehend why the defendant stayed in the situation when exit was so obviously logical, necessary and apparently simple (just leave). Of course, the necessity of bringing an expert into court to explain women's experiences says much about just who the law has in mind when it conceptualises an "ordinary person".[26]

13. The use of evidence of battered woman syndrome to shift commonly held myths and misconceptions about the lived experiences of women raises two overlapping areas of investigation. One is the use of expert, scientific information in the courts and how this is interpreted. The other is the interrelationship between law and science, the claims they make to truth and legitimacy, and the struggle for territory between the two. Any claim to objectivity about human behaviour is open to question and challenge: law's such claims are certainly so. These issues will be examined in the next section of this paper. As will be shown, law has its own interpretation of information that is quite independent of any scientific information and will use it for its own purposes.

    Raising Voices of Authority: The Ascendancy of Science?

14. Science has long laid claim to universal, objective truths, epitomised by the 17th-century writings of Isaac Newton and the triumph of the rationality of science over medieval superstitions. Newton's Philosophiĉ Naturalis Principia Mathematica[27] sought to demonstrate that dispassionate rational thought was a better way to achieve understanding than relying on impressed opinion. He reasoned that nature was more machine than organism, and that natural acts such as the orbit of a planet were calculable rather than outgrowths of mystery or the actions of ancient gods.

15. At the heart of this reasoning was a faith in the human intellect which, properly applied, was capable of seemingly infinite understanding and could expose ideas to experimental verification. That ideas were capable of verification gave rise to the belief that rational, objective, universal truths existed and need only be "found" or discerned by the superior intellect of reason that separated the subject from the object.[28] Therefore, the use of such reason, in combination with a researcher unhindered by his or her own beliefs and assumptions, meant that, first, a "correct" or "right" answer existed, and second, that it was possible to find the "right" or "correct" answer to any given scientific question. Science was thus endowed with the mantle of objectivity, exactness, consensus and neutrality.[29]

16. This, then, gives life to the compelling image of a scientific "expert", a person skilled in rational scientific methodology and endowed with authority,[30] coolly and dispassionately hypothesising, testing, verifying or refuting theories and giving legitimacy and validity to particular scientific "facts".[31] These thus become science's holy grail of "the truth", and science was seen as representing a superior form of knowledge.

17. Yet this confidence in the rationality of science and the legitimacy of "the truth" obscures important questions about science's claims to neutrality and objectivity. For one thing, the sciences - including social sciences - are as fragmented and pluralistic as law or any other field of intellectual inquiry and thus any claims to consensus of opinion ought to be received with some degree of scepticism. This fragmentation and lack of consensus is readily apparent in trials that feature a so-called "battle of the experts", where two opposing expert witnesses contradict each others' findings to varying degrees.[32]

18. Interestingly, the adversarial process itself may also serve to undermine any consensus that does exist within the sciences: Adversary procedures are indeed a wonderful instrument for deconstructing "facts", for exposing the contingencies and hidden assumptions that underlie scientific claims, and thereby preventing uncritical acceptance of alleged truths. The adversary process is much less effective, however, in reconstructing the communally held beliefs that reasonably pass for scientific truth. Cross-examination, in particular, privileges skepticism over consensus. It skews the picture of science that is presented to the legal fact finder and creates an impression of conflict even where little or no disagreement exists in practice.[33]

19. Moreover, scientific "facts" are themselves the product of social construction. In a direct refutation of Newton's belief in the rationality and objectivity of science, the facts that scientists produce and present to the world are not simply objective observations of the mysteries of nature. Rather, scientific "facts" are produced by human agency through the institutions and processes of science, and hence they invariably contain a social component...Observations achieve the status of 'facts' only if they are produced in accordance with prior agreements about the rightness of particular theories, experimental methods, instrumentation techniques, validation procedures, review processes, and the like. These agreements, in turn, are socially derived through continual negotiation and renegotiation among relevant bodies of scientists.[34]

20. In other words, in science, as with so many things, all is not as it seems, and truth is contingent on certain factors such as experimental or interpretive conventions. Judges or jurors, as the "finders" of fact, become participants in the social construction of science, and help shape an image of reality that is some distance removed from the neutrality and objectivity that science claims.

21. The relatively rapid rise and decline of absolute faith in the reliability of DNA evidence provides a good example of the contingency of scientific truth: Eight years ago [in 1989], it was celebrated as 'the single greatest advance in the 'search for the truth,' and the goal of convicting the guilty and acquitting the innocent, since the advent of cross-examination. Six years ago, it was endorsed by the U.S. Congress's Office of Technology Assessment. Four years ago, it received a mixed blessing from the National Academy of Sciences. Three years ago, the Arizona Supreme Court held that it was erroneously admitted into evidence in a brutal child sex-murder case. Last year, it was the centerpiece of the notorious murder case against O.J. Simpson. This year, the National Academy issued a second report on it, and the Arizona Supreme Court revisited it.[35]

22. Initially, DNA evidence of "genetic fingerprints" seemed conclusive evidence of identity, with the chances of two unrelated individuals having the same multilocus genotype ranging from hundreds of thousands to several million to one. Thus, this particular piece of evidence appeared to be a powerful weapon in the identification armoury and readily seemed to provide proof of identity beyond a reasonable doubt.[36]

23. But the retreat from unbounded faith in DNA evidence in a reasonably short period of time has been dramatic. One of the controversies and scientific disputes about this evidence focuses on the method of testing the sample. Different DNA testing laboratories use different methods for sample testing, with the implication that different methods may yield different results and conclusions. Another dispute centres on the procedure for calculating the frequency with which matching profiles are present in a random sample of the general population, known as the "random match probability". Again, differing methods of measuring and interpreting the resulting data may lead to the belief that DNA evidence is far less conclusive than originally believed.[37] The impenetrable fortress that this sort of evidence was believed to be appeared to leave open many windows for error to enter.

24. Despite controversy in methods of testing and interpretation of results, science still maintains its aura of authority as oracle of "the truth" with respect to certain types of information and evidence. Disputes over the interpretation of scientific evidence do little to challenge science's overall superior claim to certain information. Indeed, if anything, they tend to enhance the claim by science that only science can properly deal with such difficult matters. Disputes, then, are disputes about meaning, not underlying fact.

25. There remains a dogged belief in the rationality and objectivity of science and the existence of scientific facts based on indisputable truths. In part this is achieved by science establishing dominion over certain types of information and holding itself out as the only true source of verity. Science makes the claim that its specialised knowledge gives it privileged access to certain facts. This is assisted by law, which permits scientific expert witnesses to testify precisely because law acknowledges that science's expertise gives it access to privileged facts and respects its knowledge of autonomous disciplines beyond law's ken. Law thus admits science into its own realm for the specific purpose of providing information not otherwise accessible.

26. However, at the same time that law recognises science's authority, law is also careful to limit the encroachment of science into law's domain. Law achieves this through rules specifically designed to address expert evidence, its admission and use, and by the selective interpretation of the actual evidence presented. In so doing law asserts its own claims to authority and legitimacy and attempts to establish itself as the true oracle. Thus, at the heart of the relationship between law and science is a border dispute between the two disciplines in a struggle over the territory of knowledge and information.

    Law's Empire-Building

27. Law uses a variety of mechanisms to control access to its own domain. Then, once information is permitted within law's territory, law also manipulates that information to its own ends. At one level, access is controlled by the rules of evidence governing the admission of certain information: information must pass certain legal muster before it can be "properly" admitted into evidence. At another level, law maintains its hegemony over knowledge and the use of information through rules of interpretation designed to make law appear to be a neutral, objective oracle or diviner of "the truth". The expert evidence rule as discussed earlier is but one of the ways in which law controls the gates to its kingdom. Firstly, expert evidence cannot come to court under its own power - it must wait to be invited. That is, expert evidence may be admitted only where the subject of the inquiry raises issues calling for expertise or that is beyond the knowledge of the judge or jury. Evidence from expert witnesses must of course pass the legal hurdles of appropriate expertise[38] and relevance.[39] The expert evidence rule is itself an exception to the opinion evidence rule, which states that in general, opinion evidence is inadmissible:[40] a witness may only testify to facts he or she personally actually perceived, and not to any inferences drawn from those facts.[41] Once admitted, the weight accorded to expert evidence is entirely a matter for the finder of fact, which can, as with any kind of evidence, accept all of it, some of it or none of it.

28. This latter point emphasises yet another of law's controlling mechanisms. Witness credibility and reliability is a matter for the court to decide: the finder of fact will determine whether, and to what extent, a witness's testimony is to be believed and relied upon. Credibility and reliability sometimes hangs on issues that have little or nothing to do with actual law and everything to do with appearance. In this sense, the expert is both witness and an exhibit, to be assessed and judged. In an account of her experiences as an expert witness in Canadian courts and tribunals, Professor Valverde describes the dilemma she faced in literally appearing as an expert in gay rights cases:

    One of the most humiliating moments in my career as an expert came when I caught myself changing my outfit over and over again before a human rights hearing, thinking all the while about how best to satisfy law's desire. Should I wear a dress? No, not academic enough. Should I wear this jacket? No, too masculine. Did I own any items of clothing that were sufficiently authoritative but still non-masculine? As I critically evaluated my wardrobe I realized that I was acting like a rape victim who worries that the clothes she wears to court will speak louder than her words. I then realized that I was not just an expert; I was also an exhibit. [42]

29. Appearance - and particularly clothing - retains a curious hold over credibility in ways that have nothing to do with the veracity of a witness's testimony. One judge's advice to expert witnesses appearing in court makes this point explicitly: Obviously, a neat, poised appearance and courteous disposition will also go far towards indicating credibility as a witness? Conversely, a sloppy appearance or loud, disrespectful behavior will be likely to produce an unfavorable impression upon the court. When this occurs, one's testimony may not be lent as much credence as it might merit, which result might ultimately be harmful to the individuals involved in contested cases where there is conflicting evident.[43]

30. As these passages indicate, credibility is enhanced if one "looks professional". But why should this be a factor? Surely whatever a witness wears has nothing to with the truth of their testimony or evidence. Rather, dress is imbued with all sorts of signifiers indicating a sometimes bizarre combination of authority, responsibility and deference, as illustrated Professor Valverde's comments above, manifested as "respect for the court". [44] Thus, a witness who declined to show the proper respect for the court would not be taken as seriously as one who did. This is yet another example of law exerting its dominion over those who appear before it and manipulating behaviour to its own ends to ensure that it is taken seriously.

31. Expert evidence in criminal cases[45] may be further constrained by the ultimate issue rule.[46] This rule seeks to prevent an expert witness from expressing his or her opinion on an ultimate issue - that is, the very issue which the court is attempting to determine. Thus, a witness may give testimony as to whether, given certain variables such as body weight and units of alcohol consumed over a specified time, a driver would have more than the legal limit of alcohol in her blood while driving. However, the issue of whether in fact the driver was driving while under the influence remains a question for the judge or jury. At the heart of this rule is the danger that the witness may usurp the function of the factfinder, especially in jury trials: "witnesses are called to testify, not to decide the case."[47]

32. There is considerable criticism of the ultimate issue rule,[48] not the least that fears that the expert will usurp the jury's job are undermined by the fact that a jury is free to reject any part of the expert's evidence, and that conflicting expert testimony points to greater uncertainty rather than confidence in the expert's testimony.[49] In any event, the rule is inconsistently applied and in large part ignored.[50] Lord Parker CJ observed that [t]hose who practice in the criminal courts see every day cases of experts being called on the question of diminished responsibility, and although technically the final question 'Do you think he was suffering from diminished responsibility?' is strictly inadmissible, it is allowed time and time again without any objection.[51]

33. There is an additional fear that the expert's evidence may play an unduly dominant part in the jury's decision-making because of the "aura of science" lent to the evidence and by the witness's status as "expert". Indeed, the very presence in court of a witness labelled an "expert" shrouds them with an authority and credibility which they may not necessarily possess but that the jury may believe she may have. On this point, Lawton LJ in R v Turner said of evidence that:

    In such a case if it is given dressed up in scientific jargon it may make judgment more difficult. The fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves; but there is a danger that they may think it does.[52] [emphasis added]

34. In other words, law retains the ultimate power to determine what to believe, irrespective of who says it. Law has established these rules of evidence in order to defend and maintain its own claims as the ultimate arbiter of truth. Moreover, law makes the rules by which law plays. Thus, scientific "facts" are inadmissible unless they are beyond the understanding of the finder of fact, and are presented by an "expert" appropriately qualified and accepted by the court and consist of accepted scientific information and satisfy the requirement of relevance.

35. The attempt to limit expert witnesses to presentations of fact alone and the ultimate issue rule goes some way to demonstrate law's tenacious grip on what it considers its own property. The danger to which Lord Justice Lawton refers in the quote from Turner indicates law's fear that expert witnesses may be seen to wield too much power and influence within law's own domain. Reminders to juries in summations that they need not accept any of the expert's findings further reinforces the idea that law has the last say on whether the evidence is believed or not. It remains the case that the "nation's justice system determines factual issues that cannot be settled in any other forum."[53]

36. In addition to rules of evidence designed to limit the intrusion of other forms of information into its territory, law also employs its own rules for the interpretation of information in an effort to cast itself as the true oracle of the truth. These rules give law the appearance of rationality, logic, neutrality and objectivity, thus enhancing law's claims as sole arbiter of "the truth". Law's claim to objectivity is readily seen in the interpretive rules that guide a judge through the legal use of language and information in court: the search for "the truth". The process by which the legal interpreter searches for the truth is carefully constructed to appear logical, rational and value free. Moreover, it is seen to make sense in its entirety: [54] rational rules or principles are applied to a given situation to lead to or indeed even compel a particular result, adding to the body of precedent that compels similar results in similar situations. The rules of interpretation provide an objective standard to which the interpreter must adhere, and provide disciplining rules which "specify the relevance and weight to be assigned to the material...as well as [provide rules] that define basic concepts and that establish the procedural circumstances under which interpretation must occur."[55]

37. These hidden structural principles are "axioms of the logical structure of the legal system. Their acceptance is "necessary...for the (optimum) coherence of a legal system."[56] These rules, then, operate on much the same principles as the rules of grammar, which lead an interpreter along various formal, well-defined and well-known paths to reach the "correct" answer - the objective truth. These interpretive rules are given authority and legitimacy through an interpretive commonality which "recognizes and adheres to the disciplining rules used by the interpreter and that is defined by its recognition of those rules."[57]

38. Thus, while recognising that determining the meaning of a given rule allows for some subjective personal elements, a judge's creativity is constrained within the framework of interpretation. Authority and legitimacy are further enhanced by an appellate process which focuses on the application or misapplication of the rules themselves rather than on the interpreter, maintaining the integrity of the interpretive process itself. Thus, the quest for truth, in law, becomes a standardised search using formalised rules in a formalised way which lead to a particular answer - the legal truth. Law maintains its claim as sole adjudicator of the truth by controlling both entry onto the field of play and the rules by which the game is played. As well, once admission into law's domain is gained, law manipulates information for its own purposes, again to establish, assert and maintain its sovereignty.

39. Law's use of social science evidence, for example, demonstrates that simply because information is recognised in one field does not give it automatic entrée into or acceptance by law. For instance, in determining whether two gay men could form a family, the Federal Court of Appeal in Canada stated that while "sociologically speaking" the men might constitute "a sort of family", legally speaking they were not.[58]

40. Here, it is clear that law trumps social science. Law retains superiority over the "truth" of the statement that gay men can be "family". Expert evidence itself is manipulated in court to sometimes astonishing degrees, to the extent that it bears little resemblance to the evidence as initially admitted. The video evidence in the first so-called Rodney King trial[59] in 1992 in the United States provides an excellent example of how expert evidence can be turned around upon itself in a battle of interpretive authority.

41. A witness videotaped four Los Angeles police officers apparently beating Mr King after an automobile incident. These officers were charged with excessive use of force. The videotape became the central piece of evidence used in the trial by both the prosecution and defence, each of whom called "use of force" expert witnesses in an attempt to put the video evidence into "proper" context for the jury. At first glance, the videotape seemed to speak for itself and demonstrated the officers' guilt beyond a reasonable doubt. To buttress this, the prosecution produced as an expert witness in the use of force the very man who wrote the training manual outlining the appropriate use of force. This expert stated that the force used in the video was excessive and beyond the bounds of that set out in the training manual. However, a defence expert witness was brought in to deconstruct the videotape and show the judge and jury what he, as an expert, could "see" that the judge and jury could not. Played at normal speed by the prosecution, the tape depicted what appeared to be the savage beating of one unarmed man by four officers armed with police batons. In the hands of the defence expert witness, the evidence changed dramatically. Slowed to single frame-by-frame viewing, the expert manipulated the evidence to demonstrate that the officers were not using excessive force but were instead "engaging in a rational form of professional practice with discernible periods of measured action, assessment and response."[60]

42. The defence depicts Rodney King as a dangerous black man, high on PCP, who is a threat to the officers. There is little doubt that the defense constructs this specific narrative by drawing upon inflammatory stereotypes and racist cultural ideologies. The defense masks these invocations of standard views on race by depicting the officers as simply responding to the obviously 'aggressive' moves of Rodney King with carefully reasoned and institutionally prescribed means. In this way, the beating is professionalized and moved into the realm of science, thus allowing the use of experts who can comment upon the defendants' behavior...Mr King thus becomes the one in control of the encounter because the officers were only responding to his actions with the methods appropriate to their training and profession.[61] Here, the very evidence that appeared so damning initially is manipulated to become the defence's best evidence of innocence. [62] This was further enhanced by a defence witness able to provide a "streetwise" interpretation of events directly at odds with the prosecution's use of force expert, who was depicted as having theoretical and academic rather than (the more relevant and useful) practical knowledge.

43. Here a particular interpretive authority is employed to manipulate the same facts into two utterly different stories, shifting the emphasis from seemingly objective facts to the production of facts. But this production of fact is only possible once the facts have been introduced and formulated within the framework of accepted legal practice. That is, these facts cannot stand on their own, and law not only accepts the facts on its own terms and ensures that the facts conform to law's rules, law keeps the final say over what they mean. The facts must first gain admittance to the legal playing field by way of relevance and then are subject to law's own rules of interpretation, filtered through the lens of an acceptable expert and ultimately pronounced upon - as "truth" or not - by the court as finder of fact, whose job it is to determine veracity.

44. Thus, law retains ultimate dominion over what constitutes "the truth". Law not only maintains authority over its own territory, it only grudgingly concedes expansion of its domain. New and "radical" ideas - such as "gay families" and a "battered woman syndrome" - are permitted only within limited terms within limited contexts within limited rules designed to constrain new growth and at the same time ensure law's hegemony. In this way, attempts to change the law end up simply reinforcing it instead.

45. For example, in conceding spousal benefits to same-sex partners, the British Columbia Supreme Court ensured the continuing dominance of heterosexist familial ideology by requiring same-sex couples to cast themselves as closely as possible to the traditional heterosexual family model in order to obtain medical benefits. This places equality-seeking same-sex couples in an impossible catch-22 situation of either conforming to a heterosexual spousal model and thus reinforcing the heterosexual framework, or deliberately choosing not to cast themselves in the traditional heterosexual spousal framework, thus not reinforcing that model but possibly imperilling a spousal benefit claim. [63]

    Conclusion

46. "Battered woman syndrome" presents cogent evidence of law's control, manipulation and narcissism.[64] As both evidence and ideology, "battered woman syndrome" represents many of law's hegemonic and narcissistic tendencies: medicalised to admit it, syndromised to accept it, legalised to explain it. All in order to authorise it.

47. Law makes a number of demands of evidence before it may be granted an audience. In order to gain admittance to law's empire, evidence of battered woman syndrome must first be transformed into a context that law recognises. In this instance, the evidence becomes expert evidence, comprising something the finder of fact would be unable to understand unaided. Here, "common sense" assumptions ("Why didn't she leave?") and myths ("It couldn't have been as bad as she said it was," or, "She liked it.") are countered with expert, psychiatric, scientific evidence of the realities of battered woman syndrome. Additionally, this expert evidence must consist of well established, scientifically-accepted procedures or fields of expertise, possessed of both relevance and reliability. Thus medicalised and syndromised, the evidence is proffered to law, but only then within the strict confines of legally-acceptable material.

48. Law demands that evidence satisfy its own, legally-articulated requirements of necessity, admissibility, weight, credibility and reliability, and further filters evidence through the ultimate issue rule and rules of interpretation. Only when it is satisfied that the evidence has met law's own requirements and rules will law then pronounce upon the evidence as finder of fact, ultimately authorising it as "truth" where it sees fit. In so doing, law retains its authority over science, or indeed any other field of inquiry, as the ultimate diviner of the truth. Thus, to return to the comments of Saunders J in 1554, while law does approve of and encourage outside assistance, it does so only on law's own terms and reserves for itself the power to decide what that outside assistance ultimately means: to ask of experts, derisively, "What do they know?"