Science in the court.
As we consider the Kopf decision against the State of Nebraska
it is useful to learn a little bit about science in the court.
Three approaches to scientific testimony:
- Frye ruling = scientific testimony falls under general
acceptance in expert community standard (novel science discounted).
- Daubert ruling = broader scope, Judges are gatekeepers
using 4 criteria:
- are the scientific propositions falsifiable?
- is the analytic technique known within the discipline, and
have known error rates?
- has the testimony been subjected to peer review?
- is the testimony generally accepted in the scientific community?
- Kumho ruling = Duabert approach applies to engineers
and other 'expert' testimony, and the four guidelines can be
Some additional thoughts on the topic:
- Scientists are usually hired by one side or the other (the
proverbial hired gun) in an adversarial role. A conflict of interest
is hard to avoid, since the scientist is being paid by one side.
The income is not insignificant, which heightens the potential
for a conflict of interest. The normal stance of a science is
to strive for objectivity.
- The scientist usually participates as some type of expert
witness, and responds to questions directed to her or him. They
are not free to interject what they may see as crucial information
on their own, even if their expertise allows them to better recognize
what is crucial information. In other words, the science introduced
into court is typically constrained by non scientists.
- The Judge acts as "gatekeeper" in terms of deciding
what scientific evidence is admissible.
- The opposing side's job is to attack the credibility of a
scientist or of scientific work that they view as harmful to
the case. Emotional or illogical types of arguments can be used
to do so. For example, if a scientist changes his or her mind
with further thought and/or additional data in their career,
this can be taken as inconsistency.
- The time frame is that of the courts. The possibility of
further research or analysis to a novel question generated during
court proceedings is usually not there.
- There is no subsequent review process (other than by the
opposing team and experts) of the science presented in court.
- Complex events often are the result of multiple factors.
How do you assign individual factor responsibility when you have
multiple necessary preconditions.
Many examples exist of where science did not flourish in the
describes a $900,000 award to a woman whose psychic powers were
damaged by a CAT scan.
What are alternate possibilities to the present system?
Some web resources: