Expert signs and legal burdensINTERNATIONAL JOURNAL FOR THE SEMIOTICS OF LAW, Forthcoming
Expert signs and expert evidence generate a justification problem in legal factfinding:
factfinders cannot form a justified belief about the relevant matter, nor justify
the acceptance of an expert testimony, insofar as they do not understand it. The different
profiles of factfinders in different legal systems (with jury trial or not) do not
make a substantial difference for the point addressed, namely the epistemic or doxastic
impasse generated by the inability to understand expert signs, for this occurs everywhere.
However, legal systems have a way out of the impasse: burdens of proof.
Burden rules govern the outcome of a case. If a burden is not discharged, decision
must be against the burdened party. After discussing various aspects of the “Daubert
trilogy” and performing a semiotic analysis of one case in particular (Kumho), the
paper explores the impact that legal burdens have on expert evidence issues.