FWO Fellow at Ghent University, Ghent, Belgium
This final chapter offers a conclusion to my research on forensic history which I have presented in this book. I reviewed Clio’s Modern Paradox in forensic history. Furthermore, I discussed the European and American experiences with historians serving as expert witnesses. From these theoretical and practical issues on historians working as expert judicial witnesses I have come to a number of conclusions on the controversial involvement of historians in tobacco litigation as expert judicial witnesses. To end, I discuss the courtroom as a performative and fact-making theatre for historians and I define my concept of the forensification of history.
Every once in a while, every once in a while, there’s a day with an absolute right and an absolute wrong, but those days almost always include body counts.
President Bartlett (Aaron Sorkin’s The West Wing)
I set out to research forensic history. In order to achieve this ambitious goal, I have made a systematic and interdisciplinary analysis of the interaction between history and law when historians enter the courtroom as expert witnesses. Although history and law had been interrelated since the time of the ancient Greeks and Romans, historians were and are not welcomed in court by the legal profession. Despite the fact that historians have been called upon to testify in court as expert judicial witnesses at an exponential rate in transnational justice tribunals, post-World War II trials, post-Holocaust trials, Holocaust denial trials, indigenous peoples trials in Commonwealth countries, and in civil litigation in the United States, forensic history remains a controversial activity for a historian to engage in.
The first part of my research has provided me with a theoretical framework to portray the litigation discussed in parts II and III of this book on. The theoretical discussion addressed the low level of legitimacy the historical discipline has in the public sphere in contrast with the past, which is very much alive in our society. I called this relationship: Clio’s Modern Paradox. I argued that historians had to look critically at their own discipline to explain the discrepancy in social appraisal between the historical discipline and the past. I have identified three elements which, I argue, account for the problems which history is facing in court: namely (1) the quest undertaken by historians to turn their discipline into a science; (2) the dangers posed by postmodern relativism; and (3) a lack of theoretical conceptualization. These are three elements within the historical discipline which undermine its legitimacy to present historical facts. Historians are having trouble abandoning the idea of positivist objectivity. We have seen that it is still used as a selling-point in historical consulting. This notion that historians can simply find and state “the facts” is hopelessly antiquated and should be abandoned in favour of a new form of objectivity. This does not mean historians have to run to the other side of the theoretical field and join postmodern relativism, which would cut the band between historical fact and historical narrative. I have argued that a good proposal for a form of intersubjective objectivity can be found somewhere in the middle of those extreme positions, neither presenting it as a given nor as impossible to attain. Inspired by practical standards from the study of law, I have proposed an intersubjective form of objectivity which is achieved through peer review as well as publication of research and primary sources enabling source checking by their fellow historians. Although, I have not argued in favour of a “Code of Historical Conduct”, which would offer a dogmatic view on the historical practice, constructed from imperatives without any nuance, I have argued that the historical discipline is in need of a basic ethical guides which lists the very basic requirements which historians and historical research have to fulfil. It is with great reluctance and reservation that such a code should be constructed, yet I argue that the historical discipline can only prosper by adhering to an ethical code. Collective theoretical conceptualization and effective adherence by the majority of the historical discipline, for example to the code proposed by Antoon De Baets, offers clarity and reliability, and thus legitimacy in the eyes of employers, clients, lawyers, judges, and perhaps the general public. Forensic history in the form of litigation-driven history, confronts historians in a tangible manner with the most basic problems of the historical discipline, namely funding, advocacy, ethics, transparency, and thorough and reliable historical research. Historians involved in litigation-driven history, public as well as academic, should take the time to discuss and critically reflect upon their practices, in order to overcome Clio’s Modern Paradox and make Clio’s entrance into the chambers of Justitia a more accepted practice.
The second part of the book addressed three waves in which historians have been active as expert witnesses. From my European perspective, I have addressed the post-World War II and the post-Holocaust trials in Israel, Germany, and France. Except for the Ludwigsburg paradigm and the relative success of the Irving-trial, the European experience with expert witnessing has been generally negative. History has been abused predominantly in the interest of political convictions to rewrite history on trial. Furthermore, I have also examined American civil litigation in which historians are called to testify. The practical guide to expert witnessing has given an overview of the consecutive steps that are taken before and on trial by an expert witness. This practical guide offered a manner to concretize expert witnessing and demonstrate the meaning of what it means to “serve” as an expert witness, how they are recruited, how expert historians and consulting firms construct witness reports, in what way experts cooperate with lawyers, and what it means to be deposed or appear on the stand. It showed expert witnessing at work on a practical level. Furthermore, I have examined under which rules of evidence an expert opinion is given in the American legal system. The Daubert rule represents a simplified definition of the Popperian concept of science. Its demand for a verifiable theory with a retrievable error-rate is not suited to review historical expert opinion. In my view, the court should distinguish between different kinds of knowledge that are presented in court. Concerning the historical discipline, Daubert’s other condition of peer review, should be stressed in favour of the others.
By contrasting the American and European experiences of expert witnessing, I reassessed Alain Wijffels’ idea of a forensic form of history from his editorial History in Court, published in 2001. Wijffels argued that historians should remain active in the preparation of historical arguments used in court but that they should not enter “the turf” [as he called it] of lawyers and judges, because the legal environment forces history into a legal straightjacket which historians would do well to avoid. Essentially, Wijffels argued in favour of historians as fact-delivers which lawyers and the court can use as they please, or in the words of the Latin adage: da mihi facta, dabo tibi ius. In contrast, I have argued that witnessing is an essential part of forensic history, since witnessing in court is a public affair which is open to close scrutiny by opposing counsel, the historical community, and the general public. Any historian willing to risk their professional reputation on the stand to defend the version of history that he believes is the most truthful will make sure his historical research cannot be discredited. This risk results in the fact that some of the historical research carried out in litigation-driven history offers examples of the best historical works that the discipline has to offer. The counterargument to Wijffels’ proposal is that it is a self-fulfilling prophecy, limiting the historians’ involvement to the grey areas of consulting with little or no paper trial, sets the door wide open for advocacy and historical distortion.