Science and the Public When the Public BecomeScientists: Science in the Courts
Science in the Courts• Part 1: The Issue• Part 2: Standards for Science in the Court• Part 3: Case Studies• Part 4: What to Do?
The Issue• In a modern Democracy, there are two significant times when the public are asked to decide scientific issues…• In the ballot box:• In the jury box:
The IssueA lot of emphasis has been placed on preparing citizens to understand and vote on scientific issuesBut not as much emphasis has been placed on preparing citizens to decide facts in court
The IssueAs a result, the administration of justice in courts has been “hit or miss”, with failures when it comes to science“Junk science verdicts, once rare, are now common. Never before have so many lawyers grown so wealthy peddling such ambitious reports of the science of the things that aren’t so” Peter W. Huber (1)
American Science Standards in Courts of LawThe expert witness has been around since modern court systems.It is important to look at several of the modern “standards” of permissible evidence in a court of law in the U.S. to understand the issues.
The Frye Rule• Originated in 1923, in Frye v. United States(1)• Evidence from a blood pressure test (a predecessor to the “lie detector” test) was brought up in court• After much debate, this resulted in the Frye Rule
The Frye RuleThe rule stated that in order to bring scientific evidence into the witness stand…It must be “generally accepted by the scientific community”.(1)
The Frye RuleThe rule stated that in order to bring scientific evidence into the witness stand…It must be “generally accepted by the scientific community”.
The Frye RuleThe Frye Rule was the standard for introduction of scientific evidence into courts for 70 years…. from 1923 to 1993 (2) (2)
The Frye RuleNot everyone agrees as to the efficacy of the Frye Rule (2)Some legal analysts say it always workedSome say it never workedSome say it worked for awhile, but then needed to be replaced in modern societyAnd so it was.
The Daubert RuleThe Daubert Rule was established in Daubert v. Merrell Dow Pharmaceuticals Inc. (1)The Daubert rule shifted from Frye’s singular criterion “generally accepted”, to four specific tests of adequacy (2)
The Daubert RuleTest 1: “The theory or technique has been tested” (1,2)Test 2: The theory has been peer reviewed (1,2)
The Daubert RuleTest 3: The potential error rate is known, and to what standards this rate this is controlledTest 4: It has been accepted in a relevant scientific community
The Joiner Rule“The role of judge as gatekeeper was again affirmed in the 1997 General Electric Co. v. Joiner” decision, wherein the court stated that the expert must also draw valid conclusions from the data that are being presented” (1)
The Kumho RuleThe Kumho Rule followed the Frye and Daubert Rules, supplementing the latter (1).In Kumho Tire Co., LTD v. Carmichael, the standard was formally found to by the U.S. Supreme Court to apply to all expert testimony, scientific or otherwise.
Specific TestsSome specific tests of adequacy have been added regarding specific science, such as DNAIn 1989, People v. Castro the court ruled “DNA identification theory and practice are generally accepted among the scientific community”.
Case Studies: CharlieCharlie Chaplin was a notorious womanizer…And had many affairs, admitted and unadmitted.One of these affairs was with one Joan Berry.(1)
Case Studies: CharlieMs. Berry turned up pregnant in 1942, and claimed Charlie was the fatherThis was before DNA testingChaplin admitted an affair in March of 1942, but denied any later affairs (1)
Case Studies: CharlieTestimony revealed Ms. Berry traveled to Tulsa, OK in April, January, and November in that time frame as well, to sleep with another man. The child did not look particularly like Chaplin.We will return to Chaplin later.
Case Studies: AudiMany drivers from the 1980’s may recall the “Audi 5000” situation from 1976 to 1986Many drivers reported acceleration, even as auto brakes were pressed (1)
Case Studies: AudiAfter a famous “60 Minutes” segment, claims against the car increased (2)Numerous lawsuits were filed for damages
Case Studies: AudiThe National Highway Transportation and Safety Administration (NHTSA) released a report in 1989 revealing what AUDI engineers already confirmed- drivers pressed the wrong pedals
Case Studies: AudiDespite demonstrating that even at full throttle, in a court garage, that brakes would keep a car from moving…Courts found for drivers, and not Audi
Case Studies: AudiTo cite one case of many, a jury in Norris v. Gatts, a case where a driver accelerated into a motorcyclistLater the NHTSA would demonstrate the engineers’ testimony was right all along
Case Studies: FCFacilitated Communication (FC) was introduced in 1990, and is allegedly a method of communication with verbally impaired children It involved a “facilitator” holding the hand of a subject in a form of “assisted typing”
Case Studies: FCAn example is a child with autism allegedly typing “IM NOT RETARDED MY MOTHER FEELS IM STUPID BECAUSE I CANT USE MY VOICE PROPERLY” (2) “Communications” varied from mundane, to profane, and frequently included charges of sexual abuse
Case Studies: FCFC attracted the interest of, and was summarily rejected by, the scientific community, and failed double blind tests where fabricated information not known to the child was “facilitated” (1) Yet it appeared in courts- a case of courts “evading their states test of scientific admissibility” (1)
Case Studies: FCIt was pointed out that all four Daubert rule tests fail- there are no standards for the test, it is rejected by the scientific community, not peer reviewed, etc. This has not stopped some courts from admitting the evidence as a form of “translation” (1)
Case Studies: FCUnder the Americans with Disabilities Act, Auxiliary Aides and Services Section, affirms courts are obligated to assist in translation This has argument has failed in some cases (DSS v. Mark & Laura S.)(2), but not all (People v. Webb) (3).
Case Studies: Cerebral PalsyEven today, much is not know about the causes of cerebral palsy, but it is one of the more common causes of medical litigation Cerebral palsy affects between 2.5 to 5.9 infants out of every 1000 births, and rates haven’t changed much (1)
Case Studies: Cerebral PalsyEven now, litigation against cerebral palsy is common.“Today, this line of attack has become one of the most spectacularly lucrative enterprises known to lawyers, quite possibly the single largest revenue raiser in all of medical malpractice.”(1)
Case Studies: Cerebral PalsyBefore Electronic Fetal Monitoring (EFM), forceps and rough delivery were the source of blame for many CP cases (1) It was believed forceps and “rough delivery” could cause brain damage.
Case Studies: Cerebral PalsyDoctors did their best to demonstrate that CP can happen anytime, and the scientific and medical community provided detailed scientific evidence that forceps were not to blame Yet billions of dollars worth of medical claims were awarded by juries despite the evidence
Case Studies: Cerebral PalsyWhat’s more- even as forceps were phased out, Caeserian section deliveries rose 5%, and EFM used in more births, CP rates remained the same (1) Time confirmed what science had long been saying
Case Studies: Cerebral PalsyYet still the lawsuits continue…Emotional… unfortunate… and perfect for juries ill prepared to analyze scientific information.
Case Studies: CharlieSo what happened to Charlie?The jury found for Berry, and forced Charlie to pay the claim against him.Yet…
Case Studies: CharlieThough there was no DNA testing at the time, there was blood testing, invented in 1901 (1).Landsteiner determined the ABO blood system in 1901.Joan Berry was type A.Her child was Type B…
Case Studies: CharlieAnd Charlie was Type O- and could not possibly have been the father (1)Three expert physicians testified as such in Charlie’s defense- to no avail.And the ruling against him was affirmed on appeal.
What to Do?As court cases involving DNA, blood testing, engineered objects, obstetrics, and other science related topics become more common…Juries will be asked to decide cases on scientific facts- based on large sums of money, and even life and death.
What to Do?A 2001 survey “Asking the Gatekeepers”, asked questions of judges about what should be permissible in court going forward. (1)400 state level judges were surveyed, through proportionate, random, stratified sampling representative of judges handling scientific cases
What to Do?This study, Gatowski et. al. showed several significant findings:3. “Judges overwhelmingly support the “gatekeeping” role as defined by Daubert, irrespective of the admissibility standard followed in their state.”
What to Do?Gatowski et. al. “Asking the Gatekeepers2.“Judges had the most difficulty operationalizing falsifiability and error rate, with only 5% of the respondents demonstrating a clear understanding of falsifiability and only 4% demonstrating a clear understanding of error rate”. (1)
What to Do?Gatowski et. al. “Asking the Gatekeepers3. “Judges “bench philosophy of science” seemed to reflect the rhetoric, rather than the substance, of Daubert.
What to Do?Gatowski et. al. “Asking the Gatekeepers“Judges do not need to be trained to become scientists, they need to be trained to be critical consumers of the science that comes before them.”
What to Do?A review of literature by Ian Spechler, J.D., examines differential diagnosis of disease, etiology (causes), and tort.“In the courtroom today, unfortunately, differential diagnosis is being used in a manner that is more in keeping with the principles of Malleus Malleficarum than modern medical science”. (1)
What to Do?A review of literature by Ian Spechler, J.D., examines differential diagnosis of disease, etiology (causes), and tort.
What to Do?Spechler draws several conclusions “Courts should be skeptical of physicians claiming to diagnose external causation” (1)In short, this section of Spechler’s paper states experts should testify, and do so narrowly and with cause.
What to Do?And what of juries?Spechler also concludes that “Because juries can be easily swayed by evidence offered by experts, such as physicians with sterling qualifications, courts should take their gatekeeping role very seriously.” (1)
What to Do?A Daubert brief?Satiani, M.D., MBA. has sounded the call for a “Daubert” brief- a mandatory brief to be filed by any expert witness presenting science information (1)
What to Do?The Daubert brief is proposed to be:“a summary of the plaintiff’s expert’s opinion along with a resume outlining his/her knowledge, skill, experience, traning and education, reputation in the field relevant to the litigation, and complete details of the methodology employed by the expert” (1)
What to Do?Satiani also proposes expert eyewitnesses be required to:2) Disclose information that has bearing on the reliability of the testimony6) An oath by witnesses acknowledging a duty to disclose all information known to that person having bearing on the case
Potential Points of Discussion1) Are the Frye and Daubert rules adequate to allow a judge to act as science “gatekeeper” to keep “junk science” out of the courtroom?
Potential Points of Discussion2) What role should judges play in keeping “junk science” out of the courts?3) Will better science education help make “better juries”, and if so- how?4) Should a form of “Daubert brief” be a required filing before trials?5) What else can be done?
”Time was when the courts could only rely on human testimony. But modern science brought new aids… scientific means and instrumentalities have revised the judicial guessing game of the past into an institution approaching accuracy in portraying the truth as to the actual fact… if the courts do not utilize these unimpeachable methods for acquiring accurate knowledge of pertinent facts they will neglect the employment of available, potent agencies which serve to avoid miscarriages of justice”.–Justice McComb, dissenting in Berry v. ChaplinHas anything changed?