Expert Knowledge as a Condition of the Rhetorical Situation in Criminal Cases

Abstract

In the scope of a Swedish research project on expert knowledge as a basis for legal decisions, this article focuses on serious criminal cases. Using a model that describes rhetorical situations as well as empirical material based in 150 court decisions, the aim is to analyze the conditions surrounding the use of expert evidence in criminal law processes, to what extent and by whom such evidence is used, and how it affects the outcome of the cases.The rhetorical situation in criminal case is reconstructed to include the urgent issue and the thereby related discourse, in order to retrieve relevant conditions, which could be identified as evidentially favorable or unfavorable to the suspect and the prosecutor respectively. It is concluded that there is a theoretical imbalance between the parties’ to the benefit of the defendant. Empirically grounded analysis of the criminal cases shows, however, that the defendant’s theoretical advantage does not correspond to the actual situation in court. The results indicate that the defendant usually adopts a passive stance and therefore does not use favorable constraints effectively. The study has also shown that the defendant’s options to win the case increase when they actually use written expert evidence and expert witnesses. (Less)