In this submitted draft article Mireille and Serge explore the ’fair trial’ as a good practice for the construction of public proof. If proof signifies closure on matter(s) at hand, and public is taken to signify both ’access to’ and ’participation in’ the construction of proof by the publics concerned, we contend that the ’fair trial’ is a good example of building public proof and that its backbone constraints can be of great interest to the defenders and advocates of participative Technology Assessment (pTA). We start by referring to the controversial nature of expertise, its evolution towards public proof, the double constraints the latter calls for and the development of pTA. We then move into the history of judicial proof, discussing three types of legal proof that are associated with three types of criminal trial and three types of societies: épreuve in the mediative trial in societies without government; preuve in the inquisitorial trial of the absolute state and finally the integration of preuve and épreuve in the ’fair trial’ of the democratic constitutional state. Finally, we compare the construction of public advice within pTA with the construction of public proof within the jury trial, as they both involve laypersons in the construction of their final opinion. PS. The original text contains 46 footnotes

Public proof and the testing of expertise in courts: what might be relevant for participatory Technology Assessment? (26 oktober 2005)
Paper submitted for publication with co-author Serge Gutwirth
Provisional version, not for quotation. Do only refer to the final published version, authored with Serge Gutwirth (submitted, pending acceptance)

Public proof and the testing of expertise in courts: what might be relevant for participatory Technology Assessment?

By Mireille Hildebrandt and Serge Gutwirth

1 Introduction: the ’fair trial’ as good practice

In this article we explore the ’fair trial’ as a good practice for the construction of public proof. Other than citizens’ panels and other forms of participative Technology Assessment (pTA), the ’fair trial’ has a long history of linking state authority with public decision-making on a case-to-case basis. Matters of fact, intertwined with matters of concern, have always been the core-business of the courts for they have a wide experience with the testing of expertise.

The ideal type of the ’fair trial’ embodies a set of constraints that protect those that speak truth against power, while at the same time providing authority for the verdict reached. If proof - other than evidence - signifies closure on matter(s) at hand, and public is taken to signify both ’access to’ and ’participation in’ the construction of proof by the publics concerned, we contend that the ’fair trial’ is a good example of building public proof and that its backbone constraints can be of great interest to the defenders and advocates of pTA practices.

Hereunder we start by referring to the controversial nature of expertise, its evolution towards public proof, the double constraints the latter calls for and the development of pTA (par. 2). We then move into the history of judicial proof, discussing three types of legal proof that are associated with three types of criminal trial and three types of societies: ?preuve in the mediative trial in societies without government; preuve in the inquisitorial trial of the absolute state and finally the integration of preuve and ?preuve in the ’fair trial’ of the democratic constitutional state (par. 3). After this we shall compare the construction of public advice within pTA with the construction of public proof within the jury trial, as they both involve laypersons in the construction of their final opinion (par. 4). We commit closure with some tentative conclusions (par. 5).

2 From ’expertise’ to ’public proofs’ and pTA

In the academies and salons of the 16th-18th centuries public proof was understood as a public demonstration of the truth of a particular proposition on a matter of fact. Such a demonstration became the hallmark of a successful experiment and - in the course of time - of an objective truth. This type of public experiment involved both experts (those that designed and developed the artificial constraints that discriminate the experiment from experience) and laypeople (that were in fact part of an elite, presumed to have better judgement). In the 19th century, after moving out of the salons and academies, into the universities and laboratories, this model of public demonstration transformed into a more exclusive type of experiment. The ’public’ became restricted to peers who could testify/verify/falsify the process of experimentation and its results on the basis of their exclusive access to specialised knowledge and training, without which the experiments would not make sense. This evolution has lead to two separate but interrelated problems: science is no longer a public undertaking, and science produces knowledge that is permanently under threat of contestation within the community of scientists. In a way, since then, scientific proof is no longer public proof. But at the same time our lives, societies and environments are ever more affected by scientific (arte)facts, produced in the laboratory, and disseminated in our common world (food, tools, technologies, medicine, physical and virtual infrastructures, etc.). Following Latour’s Politics of Nature the questions now are: How to bring the sciences that produce these facts back into democracy? How to organize public proof? The challenge we face is that public proof is not only about matters of fact (relevant in the laboratory) but also about matters of concern (relevant in the field, in the real world).

Thus expertise has turned into an essentially contested concept. The problems submitted to experts appear to be more complex and entangled with social and other contexts than the well-defined problems scientists are trained to deal with. Indeed, scientists establish scientific proof about phenomena that they isolate in a prepared, purified and controlled (laboratory) setting. Away from this setting, however, scientific proof loses the authority it can claim within the confines of a controlled environment. In this specific sense scientific knowledge turns out to be local knowledge, that needs new types of proof if it is to survive outside the laboratory. In other words, scientific claims do not provide beyond-doubt and readily applicable knowledge about real-life situations. Notwithstanding their scientific robustness, they remain provisional and contestable in real life. Hence, when scientists are called to act as experts, they are compelled to leave the solid ground that guarantees the validity of their scientific knowledge.

For this reason traditional expertise has found itself short-circuited both by the limited scope of scientific proof and the complexity and uncertainty of the situation outside the laboratory. As a consequence, the traditional idea that laypeople can defer their judgement on matters of fact to experts has been eroded and turned around into the more challenging idea that matters of concern will have to be decided upon in a process involving both those that are affected (what Dewey calls a public ) and those that claim relevant scientific expertise. The shift from ’matters of fact’ to ’matters of concern’ actually renders the concept of expertise itself dependent on the matter at hand and demands the integration of the knowledge of ’laypeople’ on the basis of their experience. This raises issues like the partition between professional and non-professional expertise, between experiment and experience and between epistemai and doxa. Moreover, since expertise is often called upon when decisions must be made about whether and which risks should be taken in case of uncertainty, democracy demands that these decisions are not only based on the best available scientific knowledge (of scientists and experts), but also involve the participation of all those concerned, that is all those who may be affected by the risks taken.

The shifts described above inspired the Society for Social Studies of Sciences (4S) and the European Association for the Study of Science and Technology (EASST) to devote their common conference of August 2004 in Paris to the issue of ’Public proofs - Science, Technology and Democracy’ (Public Proofs 2004). The organisers of the conference motivated their choice as follows:

’The divide between, on the one hand, experts who could be trusted for their access to indisputable matters of fact and, on the other, the general public waiting for enlightenment and defining societal values, has been erased. Yet there is no sure way of providing an alternative to this state of affairs where scientists are uneasy about the new suspicions they trigger (witness the various ’Science Wars’ episodes) and where administrators, politicians, activists and citizens do not know how to handle scientific expertise, which no longer merits neither total confidence nor total distrust. The incredible extension of ’conspiracy theories’ is a sad symptom of a difficult transition between two regimes of relations between science and the general public. Thus, the question of providing public proofs has taken on a new prominence: those proofs inherit all the problems of the former scientific proof, but, in addition, they have to take into account all the problems of providing agreement’.

Hence, ’public proofs’ must meet two conditions. On the one hand they must be based on robust knowledge (knowledge that resists controversies and tests within the relevant scientific community) while on the other hand they must assemble, gather and convince the concerned citizens and publics; they must permit agreement and assent. The organisation of public proof should thus involve a double set of constraints: those of robust scientific knowledge and those set by the concerned publics.

Participatory technology assessment (pTA) is a relatively new development of traditional technology assessment (TA), which focused on scientific evaluation of the possible impacts of emerging technologies on society. Other than TA, it is not a matter of asking experts to give their expert opinion about policy choices, but a matter of asking lay persons to take part in a structured process of knowledge construction concerning these policy choices. In several reports the actual workings and the possible impact of pTA has been investigated, indicating that while no general prescriptions can be given for a successful pTA practice, this does obviously not mean that their success depends on arbitrary proceedings. The question how the process of knowledge construction develops within for instance a citizens jury, depends on the type of issues that are at stake, on the question who initiated the process, on the selection-procedure of the jurors and the freedom they have to change the initial articulation of the issue that is at stake, on the time-limit imposed, on the freedom they have to invite experts, on the way their findings are reported and on the impact they can expect to have on specific policy choices. Nevertheless it seems important to recognise that some generic features of successful pTA can be disclosed, for instance those related to the framing of the question, the diversity of opinion of the selected jury, the freedom to reframe the issues and to invite dissenting experts. Some of these generic features concern procedural constraints aimed at reaching a well-informed reconstruction of common sense and this raises the question what pTA could learn from what lawyers do in court.

Below we will explore the historical emergence and salient features of the ’fair trial’, claiming that some of the specific constraints that constitute its pertinence for constitutional democracy are equally relevant for other types of public proof. We are not arguing for the transplantation of general precepts of one domain to another, but inviting pTA advocates to examine the historical emergence of generic principles for public construction of proof in court, to understand the solutions that lawyers fabricated to prevent premature decisions-taking that will not hold - in the end.

3 Public proof and legal procedure

3.1. Preuve and ?preuve

As lawyers we are tempted to answer the question of how to organise public proof in terms of procedure, by which we mean ’the way to organise closure’. In the history of legal procedure, especially of the criminal trial, two distinct ways to reach closure can be distinguished, best indicated by the French words ?preuve (test, trial) and preuve (result of an inquiry, a proof).

?preuve is like a mutual test; it involves a risk on both sides. Historically we are talking about the medieval mediative trial: a co-ordinate way to deal with uncertainties in a situation where there is no government, no monopoly on violence and thus no investigative power. As Foucault describes in his Brazilian conferences on La v?rit? et les formes juridiques ’in such a procedure there is no judge, no verdict, no truth, no investigation, nor any witness to know who is speaking the truth. The decision, not on who has told the truth, but on who is right, is trusted to a contest, to the challenge, to the risk both are running’. In other words we are dealing with a jurisdiction that is voluntary, where proceedings are oral and where those that share jurisdiction form a society of peers. This means five things: first of all, disputes and/or alleged violations of norms cannot be brought into ’court’ unless the ’parties’ wish to do so; second, the verdict of the ’court’ cannot be implemented by force upon a party; third, since the law is not written it is not conceived of as something that pre-exists the trial and only needs implementation; fourth, the judge is a peer of the ’parties’, his authority depends on personal attributes not on a hierarchical relationship; fifth, as a consequence, the judge cannot find the law unless the parties agree about it, so the judge needs the co-operation of the parties. The law has to be reconstructed by all of them each time a case is at hand.

Preuve on the other hand refers to the unilateral decision on matters of fact, made after an investigation. Historically we are speaking about the modern trial (the continental inquisitorial and the common law jury-trial that developed in the royal jurisdiction under the authority of absolute monarchies). It is a sub-ordinate way of dealing with transgressions of the royal legal order, and it presumes the royal monopoly on violence and the power and competence to investigate. The risk of the procedure is no longer with both parties; it rests entirely with the accused. The preuve for this reason eventually evokes torture and its setting; it is blatantly ’vertical’ compared to the horizontal process of the mediative trial. Foucault uses the term enqu?te to indicate the contradiction with the ?preuve. While the ?preuve speaks for itself (it is a test amongst peers that does not require a verdict to confirm its outcome), the preuve is a decision taken after an enqu?te is held. The preuve is not a contest amongst peers.

Furthermore, for Foucault the enqu?te is a legal procedure destined to establish the truth, calling witnesses to testify what they saw. This is - for him - the beginning of a rational procedure of investigation that holds the germ of the scientific revolution of the 17th century, in which humans are asked to testify to what they have seen during the experiments in the salons and academies. The procedure that uses the enqu?te or inquiry (the inquisitorial procedure) is no longer a means of solving a conflict between parties like the ?preuve, but a means to unilaterally establish the truth. In common law jurisdiction the same shift can be seen at the end of the Middle Ages when jurors are distinguished from witnesses, who are no longer allowed to serve as juror in the same case.

While Foucault emphasises truth finding, we will shift the emphasis to the establishment of hierarchy that is presumed by investigation. In a society without a state, reaching consensus on matters of fact cannot be discriminated from reaching consensus on matters of concern. As mentioned in the introduction matters of fact originally depicted issues to be resolved, not established truth. Tracing the history of the term ’thing’ into its Scandinavian and Germanic roots, we find that a Thing was the assembly of free men that discussed matters of public interest. The Thing was the public, not in the sense of a group of spectators but in the sense of a gathering of those that decide on issues of public interest. The question who belonged to the public as well as the question what was a matter of ’public’ interest was in the hands of the public; this introduces a circle but not necessarily a vicious one. Modern distinctions as between facts and values or matter of fact and matter of concern have no relevance in such a situation. The political and the legal were not differentiated as separate ’systems’ but aspects or dimensions of a reality in which gods, things and humans lived together in pleasant or unpleasant (dis)harmony. The difference between a procedure that uses an ?preuve and one that uses a preuve is first of all that in case of a preuve a hierarchical relationship has developed between the parties and the judge, who is now representing a government. Those that share jurisdiction have become subjects of a ruler. Criminal jurisdiction is now compulsory and this means again five things: first, in criminal cases, the initiative to bring a case to court is with the government; second, the verdict is imposed upon the offender; third, especially in continental procedure, the - written, substantive - law precedes its implementation; fourth, the judge derives his authority from the government and stands in a hierarchical relation to the defendant/offender; fifth, as the judge does not depend on the co-operation of the defendant his verdict on matters of fact and law is unilateral, his judgement shares the authority of the state.

Taking inspiration from L?vy-Bruhl we could define both preuve and ?preuve as mechanisms to establish closure in cases of uncertainty. Like legal proof, public proof is called for in matters of uncertainty. ?preuve solves the uncertainty by organising a - ritualised - (con)test; preuve solves the problem by organising an investigation. ?preuve stands for co-ordinate justice, preuve for subordinate justice. ?preuve is premodern in the sense that a distinction between what is true and who is right cannot be made and is eventually of no interest. Preuve is modern in the sense that it objectifies, puts matters in a vertical relation; an enqu?te (the prerequisite of the preuve) presumes a subject (originally the king) that investigates an object (his subject).

3.2. ’Fair trial’

The contemporary ’fair trial’ performs the paradoxical task of both constituting and restricting the state’s ius puniendi. Beyond the transformation from the mediative trial by peers in a society without a state to the inquisitorial trial of the subjects of an absolute monarch, the ’fair trial’ of citizens incorporates the constitutive constraints that are central to the democratic constitutional state. In the ’fair trial’ subordinate and co-ordinate justice are integrated: while the defendant is object of investigation, he is also a legal subject, compensated for the asymmetries inherent in the criminal trial by an artificial ’equality of arms’ that will enable him/her to contest the charges. Though the relationship between judge and defendant remains vertical, enabling an investigation (enqu?te) and a unilateral verdict that shares the authority of the state, the relationship between defendant and prosecution is both vertical (due to investigative competence of the prosecution) and horizontal, enabling a contest on the matters of fact and norm. Contradictory procedure - both in its adversarial and in its continental form - integrates contest and investigation, or preuve and ?preuve.

As indicated above, the process-model of the ’fair trial’ organises and performs public proof: the point of the criminal trial is to reach closure in a matter of uncertainty that concerns all that share jurisdiction, since the legal certainty that is established has legal consequences for all. Defence and prosecution, are given the (legal) means to participate in the construction of the evidence, while judge and jury actually perform closure (construction of proof). Prosecution and the jury represent those that share jurisdiction (the relevant public); the publicness of trial and verdict assures access for those that are affected by the closure.

3.3. The role of laypeople in the legal procedures of preuve, ?preuve and ’fair trial’

For the purpose of this article it is important to focus upon the fact that the legal construction of closure in the ’fair trial’ confronts laypeople with legal experts: defendant, witnesses and jury are laypeople as far as professional legal expertise is concerned. In the continental trial closure is performed by the judge as legal expert, while in the adversarial trial the jury may (co-)perform closure in matters of fact and/or sentencing. Apart from this type of participation by laypeople and legal experts, the ’fair trial’ often involves other specialised experts (psychiatrists, experts in ballistics ...) that are invited to contribute to the establishment of the facts.

Following the distinction between ?preuve and preuve one could say that expertise as such typically belongs to a trial in which investigation (enqu?te) is the main instrument to attain closure, while in a trial that is exemplified by the ?preuve scientific expertise does not seem to fit. The mediative trial seeks to ritualise a contest or to pacify the parties, while the inquisitorial or even adversarial trial seeks to establish the transgression of a legal rule in order to sanction it. While the mediative trial is not only concerned with matters of fact (it does not practice the distinction between fact and norm), the inquisitorial and adversarial trial are based on the assumption that the truth can be established (in the case of an offence) and that this truth will legitimise the exercise of the ius puniendi and the application of the rule. Expertise then often is a part of the investigation (enqu?te) aimed at discovering this truth.

Regarding the difference between continental and common law, we have to note that the Anglo-American adversarial trial always integrated a large degree of co-ordinate justice into its structure. Even when in the end such trial performs closure by a unilateral decision that shares the authority of the state, and therefore cannot be termed a mediative trial, it does incorporate elements of a contest. Historically the common law trial was less focused on implementation of a pre-existing substantive law than on the resolution of conflict; less focused on legal rules than on the case at hand (’remedies precede rights’). Since the last decades of the 20th century, however, osmosis is taking place between adversarial Anglo-American and inquisitorial Continental-European legal systems and their respective practices. It should then be no surprise that the ’fair trial’ is indebted to a certain extent to the adversarial trial, as the ’fair trial’ also integrates vertical and horizontal elements with the purpose of creating equality of arms. Though the contradictory nature of the ’fair trial’ is not equivalent with the adversarial structure (that is built to accommodate the jury), as we have seen above it does create room for a contest on matters of fact and norm. The ’fair trial’ is basically a hybrid construction, invented and maintained by the European Court of Human Rights on the basis of art. 6 of the European Convention of Human Rights. The Member States that have to comply with the Court’s interpretation. As these Member States are part of different legal traditions (inquisitorial and adversarial) the Court’s interventions amount to a complex creative co-construction of an ideal type that coheres a diversity of actual trial procedures.

The position of an expert can now be viewed from the perspective of both ?preuve (contest) and preuve (investigation). As far as some kind of contest is integrated in the ’fair trial’, experts can expect contestation during the trial; testifying on the basis of one’s expertise then implies taking the risk of being refuted. As far as a trial is entirely based on the logic of authoritative investigation the - court-appointed - expert will be consulted by the judge, who will defer to the expert opinion in his judgement, presuming the expert has access to an objective truth. Thus ?preuve might imply possible contestation of expertise, while preuve would tend to imply consultation and deference. One could say that the articulation of adversarial and inquisitorial elements in the ’fair trial’ process thus brings together aspects of preuve and ?preuve into one type of trial. The influence of the ’fair trial’ as an ideal type for criminal procedure in constitutional democracies in the field of expertise affects continental European courts as they increasingly become the theatre of controversies amongst experts, and Anglo-American legal practice where both the exclusion of experts by the judge and the accreditation of court-experts exist or have been proposed.

4 Trial jury and pTA jury: comparison of constraints

4.1 Juries in court

In the preceding paragraphs we have indicated a concern for the construction of ’public proof’ and claimed an important role for both pTA and the ’fair trial’, after wich we have explained how the ’fair trial’ creates a middle ground on which scientific expertise can be challenged and reconstructed. We now would like to explore if and how the constraints of the ’fair trial’ may be of interest for the further development of pTA. To that end we will focus upon the implication of the laypeople’s jury in the courts’ decision-making processes.

The trial jury embodies the participation of laypeople in the judicial process. In court they are confronted with both legal expertise and the assertions of other experts. In the common law jury trial it is the laypeople’s jury that decides the facts of the case (e.g. the guilt of the defendant in the criminal trial). Trials with a jury put on stage a triangular communication process between laypeople, legal professionals and other experts. For this reason the jury trial may be of interest for other initiatives that involve laypeople in the testing of expertise Put in another way, we contend that the long-term experience of courts and juries within the setting of the ’fair trial’ can teach us something that is relevant for pTA-initiatives.

While juries have a predominant Anglo-American connotation, they also exist in most Continental European countries. However, during the last 100 years the role of the jury has been significantly reduced, particularly in England, where juries today are no longer implied in civil cases, while in criminal cases the proportion of affairs that end up before a jury is around two percent. In the United States juries are still widespread en very popular in both civil and criminal cases, but procedures do exist that empower judges to limit the role of the jury and many proposals of legal reform tend to scale down the intervention of juries in the judicial process. In continental Europe the jury was heavily promoted during the revolutionary years and the Enlightenment period. Juries were praised and put forward in the process of reform of the criminal law because it was believed that they would guarantee transparency and immediacy (both pertaining to the oral character of the trial), freedom of proof and evidence (and more particularly the admissibility of witnesses) and democratic control of the judges, who were thoroughly distrusted at that point in time, especially in France. In that light the jury was expected to act as a countervailing power in the system of checks and balances that constitutes democracy and rule of law.

Trial juries exist and proceed in very different forms and settings. These differences pertain to aspects such as 1) the selection of jurors and their representativeness (are they selected at random? is there a quality check? is participation to the jury limited to local citizens? can the jurors be challenged by the parties? and if so, is the challenge subject to motivation or does it take the form of a discretionary repudiation?); 2) the organization of the jury’s work (is the jury totally passive or can the jurors ask questions or require further inquiries? is there a cooperation between the judges and the jury or not? are jurors isolated from the world during the proceedings or are the limitations of their freedom rather shallow?); and 3) their powers and competencies (do the juries participate into other judicial actions than deciding upon the merits of the case, such as the determination of the punishment? e.g. grand juries decide whether a person can be accused and prosecuted, while verdict-juries decide cases)?

Despite these different forms and settings some conclusions can be drawn as to the success of lay participation in the construction of public proof in court. First, we think that the experience of the jury-courts demonstrates that laypeople can fully participate in the decision-making process about complex technical and scientific issues. The presence of a jury obliges professional actors in the process to reduce complexity and make efforts to clarify their points. Whereas judges are definitely in a better position to master the legal and procedural issues of a case, there is no reason to believe and no research demonstrating that legal professionals are more gifted than laypersons to decide about the facts (what happened?) of the case. As regards the production of evidence by the parties and experts, the judge acts as a guardian of the applicable rules of evidence, which concern the admission and the presentation of evidence. The judge functions as a gatekeeper, but the decision about the facts in the end remains a matter of common sense whether made by a judge or a layperson. However, opinions are voiced in favour of ’an exception of complexity’ that would make it possible to remove a case from the jury and bring it before three professional judges; the appointment of ’special and qualified juries’ in certain specific matters (notably financial en economic matters); the replacement of juries by competent administrative authorities or by experts (for example in antitrust cases) and a splitting up of the question addressed to the jury in an elaborate questionnaire, making it possible to check the jury’s reasoning. On the other hand one can argue that juries are even better instances of decision than the judges with regard to the decision on the facts and in coping with expertise. This is the case because juries have to make a collective decision (by unanimity in US criminal juries and by majority e.g. Belgian criminal juries). The collective dimension implies that the juror’s basic intuitions about facts, evidence, expertise and guilt must be discussed, negotiated and mutually put to test within the jury. Even if a particular juror would not be able to grasp the complexities of a case, the process of consensus building will result in a more balanced understanding of the facts than would be possible for one or three judges or a set of experts (who may, indeed, be biased by their professional knowledge). We find this a valid counter argument to the persistent opinion that juries are incapable to deal with the factual complexity of cases.

Second, the success of the jury and its generally favourable reception by the larger public question our traditional idea of representation in the same sense as pTA practices do. It appears that even a random selection of jurors can develop into an interested public that brings living concerns into the interpretation of legal norms and thus participates in the further construction of the law. Even if the process turns out to be a long and exhausting road, juries generally get more and more involved and interested in the proceedings. From this perspective a jury can be understood as a public under construction. According to the traditional concept of representation, a jury is not representative because it is not elected and hence it does not mirror the population; it does not represent the ’general public’ in the traditional meaning of a parliamentary democracy. Moreover, juries are generally assigned a passive role and they are held to answer a limited and precise list of questions with a simple ’yes’ or ’no’, without motivation, after a closed and secluded deliberation. Such reasoning can easily minimize the surplus value of participation and deliberation. We would rather argue that the jury’s primary function is to infuse public and community concerns into the legal system, thus reconstructing and re-presenting the common sense of a population (especially when unanimity is required as this will require substantial efforts to convince one another and look at the issue from all perspectives). In a way juries represent active participation in decentralized self-government.

Third, the success of the participation of laypeople in the evaluation of evidence in court seems to be dependent of the procedural safe guards of the ’fair trial’ and the real-time mise en sc?ne of the judicial event with its ritualised and organised distribution of positions, roles and speeches. Everything here seems to depend on the way contest (?preuve) and investigation (preuve) are integrated: ’equality or arms’, transparency, independence, burden of proof and the framing of the question(s) cannot be taken for granted but have to be organised and maintained.

Finally, it should be noted that a jury trial incorporates some of the elements deemed essential for pTA practices: independence of the participants, guaranteed by the legal position they hold; the quality of the exchanges, guaranteed by the ’equality of arms’ they have been attributed; the directed confrontation of parties; the possible multiplicity of parties, experts and amicus briefs; the structured debates about evidence and proof; and finally the effect, well described by Sheila Jasanoff, that courts can have upon the further construction of sciences. The trial jury in fact shares some of the attributes of the Germanic/Scandinavian Thing, discussed above when describing the mediative trial and the contest (?preuve) it entails. When Latour opposes Dingpolitik to Realpolitik, he refers to the fact that the Thing assembled humans around the things (issues) that affected their lives (and vice versa), and to the fact that these things/issues were dissolved by means of a kind of due process. This is what pTA attempts to organise: instead of allowing scientific policy advice to shortcut decision processes via deterministic knowledge claims of indisputable Science (Realpolitik), they aim to allow the relevant publics to reconstruct scientific knowledge for a shared world (Dingpolitik). As Latour indicates, to organise and maintain such a Thing we do however need a strong state that lends its authority to such due process: we need the integration of preuve and ?preuve, contest and investigation, equality sustained by authority. This is precisely the core of the ’fair trial’.

4.2 Trial jury and citizen’s jury in pTA

The judicial setting is a peculiar one that abides by very specific constraints that are for instance related to the fact that the court must perform closure, which implies it must decide about the facts of the case in order to fulfil its obligation to pronounce a judgement. In the court the roles, functions, competencies and mise en sc?ne of the actors (the judges, the parties, the prosecution or minist?re public, the experts, the witnesses, etc.) are strictly and formally regulated to create a setting wherein equality of arms are fostered and protected. This is of course very different in a pTA citizen panel that cumulates all these roles and functions . Also, judicial settings respond to aims such as the establishment of legal certainty and dispute resolution, while pTA-fora aim to create an informed common sense around the application of science and technology in order to advise public policy. Keeping in mind the differences we shall now compare the jury in a ’fair trial’ to the citizen’s jury in pTA procedures on three points. First we will consider the framing of the issue, second we will look into the burden of proof (presumption of innocence and principle of precaution) and third we will look into the way the jury gains access to information and puts expertise to test.

4.2.1 Framing the issue

To begin with, the trial jury in criminal cases is generally faced with a closed question: guilty or not guilty? This seemingly simple question involves a whole range of legal and factual determinations that are intertwined (e.g. guilty of what?) and in the course of the process expertise may be hired to elucidate on matters of fact, while all the action is aimed at answering the straightforward question with a simple ’guilty’ or ’not guilty’. It should be understood that in criminal cases the presumption of innocence determines that as long as the question cannot be answered with a high degree of certainty, the verdict will have to be ’not guilty’. Regarding the question to be answered it is also important to note who has the competence to formulate the question: in both common law and continental law the prosecutor has a monopoly on the articulation of the charges, while being constrained by the legislator (or the common law) as to what charges can possibly be filed.

On the other hand, the pTA citizen’s jury may or may not be faced with a question it cannot change. Also, the degree to which the question is open to a plurality of answers will depend on the setting; possibly the answer will be formulated in a further set of questions, to be answered before a certain technology should be implemented. This openness is at once an advantage and a disadvantage. It means that in some cases citizens can participate in the articulation of the question, while in other cases the question may be formulated in a way that excludes discussion of preliminary questions. Glasner for instance gives the example of a jury that addresses the following question: ’What conditions should be fulfilled before genetic testing for people susceptible to common diseases becomes available on the National Health Service (NHS)?’ Obviously the question whether genetic testing in itself is a good thing is passed over. Interestingly, the commissioning body was a large transnational pharmaceutical corporation. But even if a citizen’s jury has room to reformulate the question or take on other questions it deems relevant, this openness may be a disadvantage because it may lessen the chance to have an impact on policy-makers. As Pimbert and Wakeford note, pTA procedures created ’from below’ (civil society instead of government) often take more space to frame the questions, while at the same time they have ’relatively weak links with the formal policy process’.

4.2.2 Burden of proof: presumption of innocence and principle of precaution

A second point of consideration is that in the criminal trial - due to the presumption of innocence - only the highest degree of certainty counts as legal proof. In matters of policy making the principle of precaution could fulfil a similar role, meaning that as long as citizens are not convinced of the desirability and/or necessity of certain technologies while expecting serious problems, these technologies should provisionally not be introduced. However the precautionary principle is not usually applied in relation to the kind of ’proof’ constructed in a citizen’s jury, but rather in relation to a traditional risk analysis that is based on technological and scientific expertise. An important issue is that while the trial jury has the competence to create legal consequence in the matter of guilty/not guilty, the citizen’s jury has no such competence and depends on the agenda of those it advises. Apart from that the presumption of innocence may lead to acquittal, after which the case is closed, while the principle of precaution does not have to result in such final decisions. If conclusive evidence for or against implementation of certain technologies is not - yet - available, this could be an incentive for further investigation. The principle should be understood as promoting research and participation of the concerned, not as prohibiting risk.

4.3.3 Putting expertise to the test

A third point to consider when comparing legal and pTA citizen’s juries, concerns the information they access during trial or deliberation. In principle a trial jury has no opportunity to actively intervene in the questioning of witnesses or expert-witnesses and they also lack the competence to invite experts. For all this they depend on the parties involved. Their task is to listen and then deliberate amongst themselves until a decision is reached. During their service as jurors they are not allow to speak to witnesses or public; they are segregated and forced to reach consensus within a limited amount of time (sometimes juries vote, and sometimes a jury ’hangs’ meaning they cannot reach a unanimous or majority verdict). The citizen’s jury on the other hand can generally decide to hear specific experts and take the lead in questioning them. This may seem advantageous, but whether this is the case will depend to a large extend on the composition of the jury. While in court the parties are clearly stakeholders with opposite interests, trying to get to the bottom of things, a jury that does not incorporate the greatest diversity of relevant stakeholders may not go to the bottom of things, e.g. because certain aspects of the issue are not brought forward with enough force. With Pimbert and Wakeford we claim that in matters of public concern ’the concept of stakeholder should include those who are ’stake-less’, having been marginalized by prevailing socio-economic forces’.

If - again - we understand a public in the sense of Dewey as those affected by a certain policy, than this public (whether or not marginalized) should be present in the jury to remind everyone what is ’at stake’. The ’fair trial’ is organised in such a way that expertise can be put to test if this is relevant for the outcome of the case. The contradictory nature of the trial is ensured by legal means - with legal consequence - and the involvement of legal professionals on both sides should guarantee that these instruments of contestation are not lightly waived. The opposing interests of both parties thus form an intelligent network of checks and balances that should prevent for instance the state from exerting undue influence on the defendant to plead guilty. The fact that in real life the pressure to enter plea negotiations has risen may be an indication that the relation between power relations and ’fair trial’ is out of balance. In the case of the citizen’s jury many different configurations are practised, depending on who is funding, the size of the budget, what is at stake, which initial information is made available, who decides on the invitation of experts etc. Pimbert and Wakeford differentiate between pTA created from above (convened by government agencies) and those created from below (convened by civil society organisations), suggesting that both the framing of the questions and the contradictory nature of the issues may differ depending on who initiated the whole process. From the perspective of constitutional democracy we would like to contend that other than pTA set up by civil society or commercial enterprise, a government is obligated to invest in sustainable pTA-structures that incorporate the checks and balances needed to reach an interesting and legitimate outcome. In that sense pTA - just like the ’fair trial’ - needs a state that lends its authority to the contestation of its own authority (the paradox of the constitutional democratic state).

5 Closing remarks

According to a standard story about the relationship between science and law, Science is characterised by a quest for certainty while Law is decisional and authoritative. Science would be descriptive and law normative. Building on the inherently provisional and controversial nature of scientific knowledge we propose a different approach: while science delivers provisional knowledge, case law must perform closure. The legal procedure incorporates the fact that it has to perform closure under conditions of uncertainty: whatever the complexity of the case the judges must decide, they must establish a truce. The legal procedure organises public proof in a way that at once justifies and authorises decisions that have legal consequence. In the ’fair trial’ this legitimisation is based on both adherence to democratic legislation and the contradictory structure of the trial. On the one hand, if violation of a legal rule is established (preuve) punishment or compensation is awarded; on the other hand this establishment is prepared by a contest (?preuve) between prosecution and defendant who are given the means to have a ’fair’ fight. The public nature of the ’fair trial’ consists in the fact that all that share jurisdiction (and thus suffer/enjoy the consequences of a court’s decision) have access to the construction of the proof, while those that suffer or enjoy the direct impact of the verdict participate in the construction of the evidence.

PTA aims to contribute to the formation of public opinion regarding emerging technologies. In many ways the assessment includes and advances public understanding of science, implying the reconstitution of scientific knowledge in contexts outside the laboratory. According to the final report of the European project on method and impact of technology assessment ’TA should be seen as a necessary link in the process of decision making and not as a substitute for it’. In legal procedural terms pTA is focused on the construction of evidence, leaving the decision on proof to the political process. Other than the proceedings of a ’fair trial’ pTA prepares evidence for policy and legislation, not for a judicial verdict. The outcomes of pTA practices form just a small part of the advice given to policy-makers and legislators, who are by no means obligated to base their decisions on the findings of pTA. Summing up we could say that while legal procedure specialises in closure, pTA seeks to influence those that perform closure in the public sphere.

As to the publicness of ’fair trial’ and pTA, in the sense of transparency, access and participation, both work with a limited amount of actors that actually participate in the process. In both cases these actors do not represent the ’general public’ in the traditional meaning of parliamentary democracy. It is obvious that this traditional (modern, individualist, rationalist) conception of representation has become controversial and that pTA is one of the experiments to develop new democratic practices that can transform democracy into a mixture of classical representation, rational deliberation and inclusionary participation.

In this contribution we traced the central features of the ’fair trial’ by means of a historical and systematic comparison to the mediative and inquisitorial trial in order to recover procedural tenets that can be of importance for pTA practices. The integration of coordinate and subordinate justice in the ’fair trial’ offers specific ways of ensuring a discussion that allows a diversity of opposing opinions, combining (con)test and investigation. The framing of the issue, the burden of proof and the manner in which expertise is put to the test have been discussed as crucial points of interest for both the jury trial and pTA practices. Additionally, our short overview of the role of the jury shows that laypeople can fully participate in the decision-making process about complex legal, technological and scientific issues. The jury experience does not corroborate the position that the assumed ’ignorance’ of the laypersons is a reason to exclude them from decision-making processes about professional or technological matters. On the contrary, when taken seriously, laypeople can not only very well grasp the matters at hand, but also can participate actively in the framing of relevant and stimulating questions about these matters. While the point cannot be that pTA should imitate the ’fair trial’, we think those that pTA practice will benefit from the experience of the long struggle of the ’fair trial’ to incorporate adequate checks and balances in a field as sensitive as the state’s ius puniendi.

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