Expert Signs and Legal Burdens

Abstract

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.