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

Abstract

This article focuses on the use of expert knowledge as a basis for legal decisions in serious criminal cases. Using a model that describes rhetorical situations, as well as empirical material based on 150 court decisions, the aim is to analyse 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 cases is reconstructed to include the exigence (urgent issue that requires addressing) and, thereby, the related discourse, in order to retrieve relevant conditions, which could be identified as evidentially favourable or unfavourable 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 favourable constraints effectively. The study also shows that the defendant’s chances of winning the case increase when they use written expert evidence and expert witnesses.

Keywords

• Legal reasoning; expert knowledge; criminal law process; rhetorical situation; rhetorical constraints
• Legalreasoning;expertknowledge;criminallawprocess;rhetoricalsituation;rhetoricalconstraints