Reading the Archive: Historians as Expert Witnesses

Luker, T

Reading the Archive: Historians as Expert Witnesses

Luker, T

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Publisher:: Flinders Law School
Publication Type:: Journal Article
Citation:: Flinders Law Journal, 2016, 18 (2), pp. 241 - 267
Issue Date:: 2016

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Field	Value	Language
dc.contributor.author	Luker, T https://orcid.org/0000-0003-2063-4791	en_US
dc.date.issued	2016	en_US
dc.identifier.citation	Flinders Law Journal, 2016, 18 (2), pp. 241 - 267	en_US
dc.identifier.issn	1838-2975	en_US
dc.identifier.uri	http://hdl.handle.net/10453/74432
dc.description.abstract	In a substantial study into the relationship between law and history in Australian jurisprudence, Curthoys, Genovese and Reilly found that when historians appear as expert witnesses in Australian courts, they have often not been well received. While it is acknowledged that historians have particular skills in identifying relevant sources in archives, Australian courts have generally been resistant to the idea that they bring special interpretative skills, because lawyers and judges believe that the hermeneutic processes involved in the interpretation of historical documents is a skill in which they are already well versed. A number of developments have occurred in relation to the role of historians as experts in the decade since this study. For example, the Federal Court of Australia has introduced procedural rules for expert conferences and for the production of concurrent evidence of expert witnesses. In this article, I will discuss the legal reception of expert opinion evidence from historians through an investigation of what has happened in the period since the mid-2000s. This research suggests that the collision that occurred between historians and the law during the 1990s subsequently resulted in an impasse between the disciplines of law and history. Legal counsel are disinclined to call historians as expert witnesses; historians themselves have resiled from the role of witnesses, and have been critical of courts’ failure to recognise the particular value of their skills in reading an archive. The article will report on empirical research conducted into the role of historians as expert witnesses in Australia and will include reference to transnational research conducted in New Zealand and Canada.	en_US
dc.publisher	Flinders Law School	en_US
dc.relation.ispartof	Flinders Law Journal	en_US
dc.title	Reading the Archive: Historians as Expert Witnesses	en_US
dc.type	Journal Article
utslib.citation.volume	2	en_US
utslib.citation.volume	18	en_US
utslib.location.activity	Australia	en_US
utslib.for	1801 Law	en_US
pubs.embargo.period	Not known	en_US
pubs.organisational-group	/University of Technology Sydney
pubs.organisational-group	/University of Technology Sydney/Faculty of Law
utslib.copyright.status	open_access
pubs.consider-herdc	false	en_US
pubs.issue	2	en_US
pubs.publication-status	Published	en_US
pubs.volume	18	en_US

Abstract:

In a substantial study into the relationship between law and history in Australian jurisprudence, Curthoys, Genovese and Reilly found that when historians appear as expert witnesses in Australian courts, they have often not been well received. While it is acknowledged that historians have particular skills in identifying relevant sources in archives, Australian courts have generally been resistant to the idea that they bring special interpretative skills, because lawyers and judges believe that the hermeneutic processes involved in the interpretation of historical documents is a skill in which they are already well versed. A number of developments have occurred in relation to the role of historians as experts in the decade since this study. For example, the Federal Court of Australia has introduced procedural rules for expert conferences and for the production of concurrent evidence of expert witnesses. In this article, I will discuss the legal reception of expert opinion evidence from historians through an investigation of what has happened in the period since the mid-2000s. This research suggests that the collision that occurred between historians and the law during the 1990s subsequently resulted in an impasse between the disciplines of law and history. Legal counsel are disinclined to call historians as expert witnesses; historians themselves have resiled from the role of witnesses, and have been critical of courts’ failure to recognise the particular value of their skills in reading an archive. The article will report on empirical research conducted into the role of historians as expert witnesses in Australia and will include reference to transnational research conducted in New Zealand and Canada.

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http://hdl.handle.net/10453/74432