How is Science Used By . . .
Courts:
“Ordinary” Litigation
Evidence
Serial Litigation
Disciplines: Medicine, chemistry, physics, toxicology,
physical and cultural anthropology, statistics,
engineering, economics, psychology, law, accounting,
biology, document examination, sociology, linquistics,
ballistics and weapons identification.
Cases: Homicide (cause of death), arson, forgery,
possession or sale of controlled substances, antitrust,
environmental litigation, products liability, professional
negligence, Title Seven, personal injury, insanity
defense, embezzlement.
Prevalence: 23% of judges report seeing scientific
evidence more than half the time. . .
The Advocacy System
Selective Use of Data
The Necessity of Deciding
Does The Science Exist?
Birth defects, cancer, diseases
Pipe physics
“More Probable Than Not”
2σ Results
Concepts
What is “Insanity”?
Theories
Elements
Evidence
Relevance
Admissibility
Proof
Scientific Evidence
Helping the Trier of Fact
Hypothetical Questions
vs. Opinion Evidence
vs. Opinions based on
inadmissible evidence
Policy
Gatekeeping vs. Right to a Jury
The Economist’s (Scientist’s) Instinct
The Lawyer’s (Judge’s) Instinct
Do Juries Understand?
Witness Demeanor
Doctrine
Probative Value vs. Unduly Prejudicial
General Rule
Scientific Evidence
Just when a scientific principle or discovery crosses the
line between experimental and demonstrable stages is
difficult to define. Somewhere in this twilight zone the
evidential force of the principle must be recognized, and
while courts will go a long way in admitting expert
testimony deduced from a well-recognized scientific
principle or discovery, the thing from the the deduction
is made must be sufficiently established to have gained
general acceptance in the particular field in which it
belongs”
Frye v. United States
293 F. 1013 (DC Cir. 1923)
Is This a Good Rule?
Does “Science” = Peer Review?
Daubert v. Merrell-Dow
Pharmaceuticals, Inc.
509 US 579 (1993)
The Daubert Factors
1)
2)
3)
4)
Can the knowledge be tested?
Has it been subjected to peer review?
What is the known or potential error rate?
Is the method generally accepted within the community?
Did Daubert Cut Back on Junk Science?
“We recognize that, in practice, a gatekeeping role for
the judge, no matter how flexible, inevitably on
occasion will prevent the jury from learning of
authentic insights and innovations. That, nevertheless,
is the balance that is struck by the Rules of Evidence
designed not for the exhaustive search for cosmic
understanding but for the particularized resolution of
legal disputes.”
Justice Blackmun
Is This a Good Rule?
Rehnquist: “I defer to no one in my
confidence in federal judges; but I am at a
loss to know what is meant when it is said
that the scientific status of a theory depends
on its "falsifiability," and I suspect some of
them will be, too.
I do not doubt that Rule 702 confides to the
judge some gatekeeping responsibility in
deciding questions of the admissibility of
proffered expert testimony. But I do not think
it imposes on them either the obligation or the
authority to become amateur scientists in
order to perform that role.”
Is This a Good Rule?
Faigman Article:
Should we extend the scientific
method to all expertise?
Advocacy vs. Science
Finding and Managing Experts
Pushy Lawyers
Honesty
The Academic Witness
The Professional Witness
How Well Do Juries Perform?
Technical Competence
Teaching the Jury
“Everybody knows . . . ”
Improper Purposes
“California Juries . . .”
Surveys
Beyond the One-Off Case
Legal Interactions Between Cases:
Collateral Estoppel
Institutional Interactions Between Cases:
Human Capital & Financing
Discovery
Junk Science
Strategies
Settlement vs. Litigation
The Pipe Wars
A Seller’s Market
Pushing The Science
Collapse
20
Verdict 2
Mean CASES
10
Verdict 1
0
1979.0
1982.0
1980.0
YEAR
1984.0
1983.0
1986.0
1985.0
1988.0
1987.0
1990.0
1989.0
1993.0
1992.0
What’s Going On?
Pricing Claims
Uncertainty = Science + Juries
Do We Trust The Process?
How Fast Does the System Reach Equilibrium?
Does the System Ever Reach Equilibrium?
Perceptions: The Bendectin Cases
Turning Testimony into Publications
Junk Science
Clinical Ecology
Repressed Memory
Junk Publications
Junk TV
Science by Lawsuit
Elizabeth Loftus