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The last article in this series [NLJ, Aug. 23] noted that there is some consensus that relevant descriptive and metaethical testimony should be admissible. Yet there is sharp controversy over the third type of evidence, normative testimony. There are several different positions on the question of the admissibility of normative information. The most restrictive view: Reject normative testimony One position is that the courts should almost always reject normative testimony. Pellegrino & Sharpe, “Medical Ethics in the Courtroom: The Need for Scrutiny,” 32 Persp. In Biology & Med. 546 (1989); Scofield, “Is the Medical Ethicist an ‘Expert’?,” 3 Bioethics Bull 1. (Winter 1994). The critics of normative testimony question the propriety of admitting such testimony in the courts of a morally pluralist society. Western normative ethics includes several major schools of thought. One is the consequential or teleological school. The most prominent example of this school is utilitarianism, championed by Mill and Bentham. Utilitarians inquire which course of conduct will produce the greatest net utility. A second dominant school is deontologism, advocated by Kant. According to this school, the morality of an act is independent of its consequences. Rather, the principle on which the person acts is morally decisive. Just as multiple ethical systems exist in the general population, there are competing systems in bioethics. One is principlism, perhaps the most popular approach, founded by Beauchamp and Childress. They argue that many ethical issues can be resolved by applying the principles of autonomy, nonmaleficence, beneficence and justice. However, others subscribe to casuistry, espoused by Jonsen and Toulmin. They appeal to practical, case-based reasoning. Instead of relying on universal principles, they search the historical record for precedents to ascertain whether there is a strong consensus for the resolution of ethical issues. The opponents of admitting normative testimony point to this variegated ethical landscape. They see profound disagreements among the various schools and even disagreements among proponents of the same school. For example, while some utilitarianians believe that the calculation should focus on the utility produced by the general rule, others claim that the focus ought to be on the utility yielded by the specific act. In short, consensus on moral issues is shrinking. These disagreements do not appear to lend themselves to resolution on any objective basis. There is no objective method of validating moral beliefs to demonstrate that they are superior to, or more “correct” than, competing moral views. The opponents of admitting normative ethical testimony argue that although trained ethicists may possess superior expertise on descriptive and metaethical matters, they do not qualify as experts on normative issues. An expert must be more competent to draw the inference in question than the trier of fact. In the opponents’ view, on normative questions all people are equally moral agents and experts. Trained ethicists have no superior competence on normative matters to qualify them specially as moral arbiters. When it comes to normative issues, trained ethicists have no special access to or monopoly on moral truth. The intermediate view: Consider all of the factors Although they do not propose the routine admission of normative testimony, Delgado and McAllen oppose a rigid rule excluding normative testimony. Delgado and McAllen, The Moralist as Expert Witness, 62 B.U. L. Rev. 869 (1982). While their classic article appeared after the enactment of the Federal Rules of Evidence, Delgado and McAllen analyze the question of the admissibility of normative testimony according to common-law standards. They take the position that normative testimony should be admissible when several factors cut in favor of its introduction. First, the testimony must be genuinely helpful. Applying the helpfulness test, the authors compare two types of cases: “If ethical considerations are not relevant at all, or if the issues are not sufficiently difficult to require the analysis of an expert moralist, the court should bar the witness as a matter of evidence law. By contrast, when the issues are novel [and] difficult . . . testimony by individuals with normative expertise can supplement the judge’s and jurors’ general understanding, and thus facilitate principled decisionmaking.” Id. at 902-03. In the latter situation, the receipt of the testimony can aid the court in reaching a more informed decision. Second, the proffered expert must represent a certain type of school of moral thought. The school must be consonant with both the law and the “considered moral judgments” of a significant number of people in society. If the testimony is based on an adequate school with established tenets and methodology, the admission of the testimony would not be unfair to the opponent; the opponent will be able to counter the testimony through cross-examination and the presentation of rebuttal testimony resting on the same school. The authors give utilitarianism, deontologism and the religious traditions as illustrative examples of acceptable schools. However, they caution: “Courts should reject the unadorned self-interest of Machiavellian moral philosophy or the anarchistic ethical view of Nietzsche as sources of ethical expertise. Radical existentialists would pose problems because they believe that there are no right or wrong answers, and that each individual must choose what is ‘right’ for himself or herself. Similar concerns would justify excluding ethical egoists in the tradition of Hobbes. Id. at 904-06.” Some commentators have challenged the position taken by Delgado and McAllen. Spielman and Agich, “The Future of Bioethics Testimony: Guidelines for Determining Qualifications, Reliability, and Helpfulness,” 36 San Diego L. Rev. 1043 (1999). These commentators believe that Delgado and McAllen do not go far enough. These commentators point to several considerations arguably favoring the more liberal admissibility of normative ethical testimony. To begin with, outside the courtroom, bioethical consultations are now commonplace. 1975 Federal Rules ease common-law restrictions The Federal Rules of Evidence, enacted in 1975, materially ease the common-law restrictions on the admission of expert testimony. The advisory committee explained that it wanted to “broaden the basis for expert opinions beyond that current in many jurisdictions and to bring the judicial practice in line with the practice of the expert themselves when not in court.” Moreover, albeit limited, the judicial experience with ethical expert testimony seems to have been satisfactory. In a 1994 study of judicial decisionmaking in cases litigating the termination of life-sustaining medical procedures, “almost half of the one hundred fifty responding judges reported that the testimony of bioethicists had been ‘persuasive or useful.’ ” Mishkin, “ Proffering Bioethicists as Experts,” Judges J., Summer 1997, at 50. Only limitations should be those in statutory scheme? Although Delgado and McAllen urge evidentiary restrictions that exceed the limitations prescribed by the text of the Federal Rules, these commentators argue that the only limitations should be those set out in the statutory scheme. According to this view, even normative testimony ought to be admissible so long as it satisfies the statutory requirements that: The witness qualify as an expert under Rule 702; the substance of the testimony amount to “scientific, technical or other specialized knowledge” within the meaning of that expression in Rule 702; and that the testimony assist the decision-maker. If the testimony meets those minimal thresholds, the testimony is presumptively admissible, and the judge should refrain from engrafting further requirements onto the statutes. The proponents of this view insist that the use of these standards will lead to more informed judicial decision-making in legal disputes implicating moral questions. They concede that even otherwise admissible normative testimony should be excluded when it either merely restates the controlling legal standard or conflicts with the controlling standard. In those situations, the judge could bar the testimony as irrelevant under Federal Rules of Evidence 401-02 or as cumulative under Rule 403. Hence, in these situations, the liberal view leads to the same outcome as the intermediate position. However, the net effect of adopting the liberal view would probably be admitting normative testimony more often than under either the intermediate or the restrictive positions. While this article describes the division of sentiment over the admissibility of normative testimony, the fourth and final article in this series will address the merits of the disagreement. As that article will explain, to a significant degree all three schools rest on the mistaken assumption that the formal rules of evidence apply to normative information. That article will develop the thesis that in many cases, normative information may be input, but through informal judicial notice of “legislative” information rather than through the formal submission of evidence. Edward J. Imwinkelried has been appointed the Edward L. Barrett Professor of Law at the University of California, Davis School of Law.

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