10th Anniversary Of Supreme Court's Daubert Ruling

scraggly codger writes "Slashdot readers might find it interesting to learn about the ongoing legal controversy over the role of federal judges as gatekeepers for scientific evidence in civil and criminal litigation in the US. Ten years ago the Supreme Court provided guidelines for admissibility of scientific evidence in the Daubert ruling. Readers might find it hard to believe from the text of the ruling, but the result has been a huge increase in the power of judges to exclude scientific evidence from presentation to juries, based on what many scientists and other observers consider an incredibly naive (or perhaps merely self-serving) model of science. There's been a spate of news stories covering the topic, perhaps the most prominent in the WSJ of Friday, 27 June, "'Junk Science' Ban Also Keeps Jurors From Sound Evidence" (regrettably not freely available online). I particularly recommend Daubert: The Most Influential Supreme Court Ruling You've Never Heard Of."

Well

If it means fewer "powerlines cause cancer" lauwsuits brought by gold-digging ambulance-chasers and supported by "experts" paid off by said sharks, that's fine by me.

Re:Well

OT, but I'll comment.

Unfortunately science isn't always as concrete as say mathematics.

Science is not concrete, period. Science is a process of negating existing theories, and positing new ones. And these theories are based upon our observations via our senses. My senses 1st told me that the topic was "10th Anniversary of Supreme Court's Dilbert Ruling".

Science is a way of knowing, not the way of knowing.

Re:Well

The problem with this argument is that Daubert has not and will not reduce the number of tort suits.

What it does do instead is take a lot of credible science out of the courtroom and force jurors to decide on feeling rather than scientific findings.

The defendants could use a reversal of Daubert to their advantage too. Science should not be locked out of the court by over-zealous judges who are motivated by emotion.

Re:Well

Having been on a Medical malpractice jury, let me tell you that your average man on the street does not understand the basic vocabulary of science.

I spent a lot of time explaining that the there is not much improvement between a 30% 1 year survival rate and a 15% 1 year survival rate. With numbers like that the person was likely to die, it was just a matter of how. (The law in our state says that for malpractice there has to be a mistake AND harm.)

Lawyers were out there trying to turn statistics into causal results, the experts were saying no way (to both sides). I must have spent the first hour of deliberation just explaining what the numbers meant, why different experts looking at the same results can get different answers, etc.

Re:Well

I must have spent the first hour of deliberation just explaining what the numbers meant...

What I want to know is, how the hell did you sneak through the jury selection process??

Dogbert

Anyone else read that as the "Dogbert" Reading?

self-serving people? in today's age?

s consider an incredibly naive (or perhaps merely self-serving) model of science

i honestly cannot see why anyone would do anything self-serving, especially in the American democratic system, to sway the masses....(wmd-gwb)..

Considering that it took them 17 years to ...

overturn Bowers v. Hardwick (the 1986 ruling upholding anti-sodomy laws) and since the effects of this ruling allow judges to a) capriciously decide cases and b)protect corporations by excluding "controversial" research that indicates their malfeasance, I'm not holding my breath for a reversal anytime soon.

Re:Considering that it took them 17 years to ...

The anonymous coward is incorrect. The opinions (majority, concurring, and dissenting) are online [cornell.edu] for anyone who wants to know what they really do say.

Hate to say it, but...

...this is an opinion article ("in our opinion") and reeks strongly of a slant in favor of mass-tort attorneys.

Article Translation: "We need all the weapons we can get to launch mass-tort lawsuits, and it's not fair that a judge might have to judge something other than the guilt or innocence of the defendent. Not that they're innocent...we wouldn't sue them otherwise, would we?"

I may sound bitter, but I work for a large legal company (not a firm) and have to deal with the mass-tort vampires all day.

Don't get me wrong, I want to see companies that knowingly fuck over the consumer get their comeuppance, but at the same time, throwing out this ruling would open the floodgates for millions of lawsuits over the smallest infractions that a lawyer could find a scientist to support.

Re:Hate to say it, but...

Even if the piece is mostly hype and bluster opinion, I have to admit that I had never even heard of the ruling until now and have learned something new. It just proves that misinformation and opinion can be educational or at least thought provoking.

"Listen to your enemies because your friends will mostly tell you what you already know"

-Anonymous

He always finds a way!

Dammit! Alex Chiu wins again!!

Actually...I find it quite appropriate...

I mean...look at all the saps who buy magnet bracelets, ionic breeze air purifiers, OxyClean, and a billion other crap products! Yes, valid science might have to wait until it is more accepted before it can be using in court, but I find that the better alternative. This is also why I like the fact that you can't use your goddamn Jesus in court.

Re:Actually...I find it quite appropriate...

Believe it or not, OxyClean works every bit as well as chlorine bleach, without as much of the fading of fabrics and colors. I've used it to clean out coolers, unsightly stains on clothes, and many other things.

No, it doens't work as well as "seen on TV", but it does work.

OMG!

Readers might find it hard to believe from the text of the ruling, but the result has been a huge increase in the power of judges to exclude scientific evidence from presentation to juries, based on what many scientists and other observers consider an incredibly naive (or perhaps merely self-serving) model of science./

Wow!still waiting for that compound sentence to filter through.

Why it will never be overturned

"Your honor, I have here two peer-reviewed, meticulous studies which show how the Daubert decision prevents legitimate science from being submitted ..."

"Evidence denied. Next case!"

That crazy Daubert

Him and his pointy-haired boss

Umm..

So one could have legitimate scientific evidence excluded from court, but a kook on the stand could say "My god (or any other invisible friend) made me do it." and the judge would allow that? fear...

Judging the Judges

This is a great example of the power of judges in our system. The first judge to encounter a new case says

"I can judge this." or "I cannot judge this."

By doing this, he essentially grants or denies himself (and subsequent judges) the authority to govern a situation, use a bit of information, or overule a law enacted by representative government.

Isn't it nice to know that the judicial system is only one third of the whole pie. God bless litigious America.

It's sad

It's sad that good science is gettign trounced in this way. However, conversely, junk science is being used as a means of extortion for so many lawyers. The recent "Fast Food" trial calls are an example. Lawyers and Judges alike are to blame to a certain extent. Not enough are willing to say "We're not going to hear this case because it's baseless and meaningless." If given the chance good science should always win over junk science, but not always. Look at how many people have swallowed the "Greenhouse Theory" despite the vast amounts of good science that refutes it. >

Re:It's sad

It's sad that good science is gettign trounced in this way.

Daubert was written to keep crap out of the courtroom rather than to "trounce" what you characterize as "good science". I wrote an outline on Daubert for a CLE recently (in the context of direct examinations of expert witnesses) and the portion of that related to Daubert is reproduced below as an FYI.

Rather than bowing to fads, Daubert simply requires the following things:

The "Daubert Five" Requirements for Expert Testimony

Expert is qualified
Expert's opinion is supported by scientific reasoning, methodology
Expert's opinion is supported by reliable data
Expert's opinion "fits" the facts of the case, to assist the Jury in understanding evidence or resolving a factual dispute
Expert's opinion is clear, directional, and unbiased enough to qualify for inclusion under Federal Rule of Evidence 403.

The Daubert Standard also calls upon the trial court to scrutinize an Expert's reasoning and methodology to assure that "relevant or reliable" scientific evidence supports the admissibility of Expert testimony. The following non-inclusive factors are to be considered:

Daubert's Admissibility Test for Expert Testimony

Reliability: Whether a scientific theory or technique can be and has been tested;
Peer Review and Publication: Whether the scientific or technical theory or technique has been subjected to peer review and publication. Submission to peer review and publication is not dispositive, but is viewed by the Court as a component of "good science," as distinguished from "junk science."
Error Rate, Standards Controlling Technique's Operation: The known or potential rate of error and the existence and maintenance of standards controlling technique's operation.
Generally Acceptance Factors: Whether the scientific technique or methodology is generally accepted in the scientific community involved. [This is still a factor to be considered despite the abolition of "The Frye Test," of "general acceptance," but it is not dispositive.]
Fitness: Whether the Expert testimony or scientific evidence "fits" the facts of the case so as to "assist" the Jury's understanding of the evidence or to determine a fact in issue."


None of that sounds unreasonable, and in practice it usually works well. I really don't understand why there is all this bitching about the ruling. Perhaps it is simply a generalized ignorance of how the courts work. I honestly don't know.

The "fast food" cases have largely been thrown out. The "McDonalds coffee lady" was reduced to $300,000 on appeal (and the actual evidence in that case was pretty incriminating, plus the plaintiff offered to settle for $15,000 before trial -- McDonald's fucked themselves in that case in about twenty different ways).

Blah, blah, blah...I hate lawyers...blah, blah, blah. Typical /. day.

GF.

Daubert was a big boost for skeptics

The Daubert case is definitely a major milestone in scientific justice. Cecil Adams [straightdope.com] gives a good summary of it here. (He's actually talking about handwriting analysis, and pointing out that while casual graphologists are often quacks, the professionals used by the courts aren't much better.)

I remember hearing (on 60 Minutes IIRC) that a Pennsylvania judge is questioning fingerprint analysis as legit evidence. I bet Daubert is responsible for that contraversy as well. Wonder how that turned out.

I am a lawyer (well, studying to be one)

And in our practice proceedings I have to make Daubert motions quite often. It really helps when you have a scientist/doctor (anyone who is going to give scientific/medical/technical testimony) and you know they don't know what they're talking about. It's really nothing more than a chance to examine their knowledge on certain subjects pertaining to what they're testifying on.

No, you are NOT a lawyer.

Unless you have been called to the bar then you cannot say you are a lawyer. You will find that many jurisdictions take a very dim view to the kind of claim you just made.

The articling students in our firm are just that, students.

Fastest way in the world to

Whats the problem?

instructed judges to examine the scientific method underlying expert evidence and to admit only that evidence that was both "relevant and reliable."

In other words, the science behind the experts testemone should be sound - and reprodusable. As far as beeing relevant... well, you don't want the plaintiff to bring in an expert on lungcancer if the case is about a braintumour, would you?

Basicly, INAL and all that, I read this as "the judge shouldn't turn his courtroom into a show of weird 'science'."

Peter Huber on science and the law

Peter Huber (engineering PHD from MIT; law degree from Harvard) has an interesting book out that deals with this issue:

http://www.phuber.com/huber/js/js.htm

You may also find interesting materials on his web site:

http://www.phuber.com/

The Daubert ruling got me out of jury dury

The defense lawyer wanted to present some evidence based on MRIs that supposedly showed that his client was not legally responsible for his actions. The panel of experts could be gathered until after the trial was supposed to start, so the judge ruled that no questions about the technique could be asked during jury selection (as it might influence us). At the last minute, the defense attorney decided that wasn't acceptable, so we all got to go home.

Cargo Cult Science

The court stated that scientific evidence is admissible only if the principle upon which it is based is " `sufficiently established to have general acceptance in the field to which it belongs.' "

This is just more of the system protecting the sytem. The late, great Dr. Richard Feynman said it best, and said it almost 30 years ago in a speach [brocku.ca] he gave at Caltech.

One of the most relevant passages

It instructed judges to examine the scientific method underlying expert evidence and to admit only that evidence that was both ?relevant and reliable.?

Herein lies the problem. Judges are not scientific experts and cannot be expected to judge the scientific methods used except in the most trivial experiments or studies. I'm not trying to sound elitist here, because frankly neither am I.

If they let the evidence in, however, it will be the jury examining the scientific methods used. Most anyone who gets jury duty and is interviewed for a case that relied on science will be thrown out by one side or the other if they have a college education. The jury simply won't be equipped to properly judge scientific data either.

The only solution I can think of is to have a seperate pre-trial jury for scientific evidence, but the methods of selecting those jurors will be both highly selective to get scientific experts and will probably have to prevent the attorneys for both sides from rejecting them. If we do that, it's no longer really a trial by our peers, but a trial (at least in part) by appointed scientists.

Re:One of the most relevant passages

I just wanted to add one thing that you probably already knew..

"Judges are not scientific experts and cannot be expected to judge the scientific methods used except in the most trivial experiments or studies."

Judges, at least in the Appellate (I should know how to spell that after taking a class just last semester) level, have help understanding scientific and other issues that they are not knowledgeable of through amicus curiae briefs.

These are essentially research papers put together by interested parties that attempt to inform a judge about anything scientifically/psychologically/etc. complicated.

Of course, amicus briefs can be filed by neutral parties or groups in favor of either side, so judges must weigh what both sides offer. But, hopefully, they can get a good idea of whether x evidence or testimony should be allowed in.

Why do I always think I've not made any sense at the end of a post?

no examples? no evidence?

So, we've got the lawyers on one side saying "this evidence should be allowed", and the judges saying "no, it shouldn't". Under the current system, where the judge prevails, apparently this is "chilling". I'm presuming that if the lawyers were to prevail (and therefore be able to admit any "scientific" evidence they damn well pleased), the effect would not be "chilling".

Hmmm. Excuse me while I chew on that one for a second.

Daubert itself suggests the following criteria for determining admissability:

1) is the evidence based on a testable theory or technique;
2) has the theory or technique been peer reviewed;
3) in the case of a particular technique, does it have a known error rate and stan-dards
controlling the techniques operation; and
4) is the underlying science generally accepted?

Not seeing any problems with that so far. I'm also not seeing any good examples of cases which failed because obviously valid expert testimony was barred from the court room. I further note that the anti-Daubert website (see the PDF) claims that "Scientific evidence and opinion is especially crucial in toxic tort cases, when a plaintiff relies on scientific experts to demonstrate causality". That, to me, sounds remarkably similar to: "Shaky science allows us to sue to living shit out of anybody we want to, because even a 1% increase in the occurance of a particular disease sounds scary, and some scientist somewhere will be willing to testify in court for a few bucks."

I don't mean to sound overly cynical, but when I see lawyers complaining about (what judges define as) bad science being disallowed from the courtroom, you're going to have to do a bit better to convince me that I should be up in arms about this.

Whopping Hypocrisy

From the ruling:

"Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly."

Incredible.

The real problem is it's apples and oranges. When they say "law" they mean "court cases". Legislation and common law (i.e., precedent) are infinitely and capriciously mutable. When they say "scientific conclusions" they don't mean "experimental results" but "theory", as the data gained from experiment is immutable, though its interpretation may be mutable, and the point of science is that theory is mutable but provably true within the known scope and margin of error. Whereas, as I said, the law is simply whatever a majority in a body (or an executive alone) accepts as agreeable, if not true. The law does not seek the truth, it seeks decisions consistent with its past decisions.

The law courts are therefore the last place that the validity of scientific theory should be tested.

Daubert is good.

Most civil cases come down to a "battle of the experts." An expert whose opinion is based on no foundation at all is simply not an expert, and his/her testimony doesn't help the jury. It may confuse the jury or skew the issues. That's why it's best that such testimony is completely excluded. That some relevant, good evidence may end up being excluded is a disingenuous argument. Whenever the rules of evidence are applied some good evidence can end up being excluded. Just because something is hearsay doesn't mean it's necessarily false. But it gets excluded nonetheless (unless it falls into an exception to the rule).

Sounds fine to me.

The basic complaints in the article linked is that...

1. Judge are being asked to determine whether or not a scientific evidence is "valid-enough" for juries to consider.

2. Judges are too harsh in the judgement.

So what? Who would you rather have make the decision on the validity of the scientific evidence; a judge who at least has one or more post-graduat degree (even if that is not science related), or some Joe Schmuck who can barely add?

When it comes to a tort lawsuits, emotions rule the day FAR more than scientific evidence. If the jury sees some 12 year old kid with no hair with leukemia, all jury want is SOMEONE to tell them that somebody caused it, no matter how truthful it is.

Just look at Corning! The company is now BANKRUPT all based on what is now fully dis-credited "junk science" that somehow linked immunodeficiency illnesses to silicone breast implants. It doesn't matter than study after study since the lawsuits began have proven the link to be ineffectual at best, the company is still bankrupt.

The article is basically arguing that the Federal judges are setting bars that are too high, that juries should be the ones who decides whether or not the scientific claims are valid. PHOOEY!!! All there are arguing for is a shift in responsibility, and I for one would rather have the responsibliity on shoulders of a person who is TRAINED to judge and decide.

Lawsuits coming to a vendor near you...

I'm curious who funds this group? They seem so happy about Toxic tort suits.

They press on and on about how bad the science is, e.g., how many thousands of chemicals there are, and how hard it is to get accurate science on them:


"This burden on the plaintiff
is considerable because very little is known about the toxicity of the 100,000 chemicals
or their derivatives that are registered for use in commerce. A study by the
National Research Council found that the most basic toxicity data on 75 percent of
the nation's 3,000 high-volume chemicals cannot be found in public records."

"Even when toxicity data is available, researchers rarely reach definitive conclusions that
proclaim: "exposure to toxic substance A will cause disease B." What they do find is that
a group of people, when exposed to a certain substance, are more or less likely to develop
a particular disease or condition than those not exposed."

The question for me is that if this science is so subjective how can they blast the judge for being forced to make a subjective judgement, e.g., it seems the subjective opinion has to be made by someone-- judge or jury. The problem is that a jury is far more likely to buy into the "science" because most people, I honestly believe, don't understand itm and don't want to. If they hear the little guy with numbers, graphs and pretty pie charts they're going to cast a judgement with huge rewards to discourage bad behavior of a company that is " more or less likely to develop a particular disease" by putting the company out of business and stuffing lawyers pockets.

Think about it, how many cell phone companies could withstand the barrage of people blaming them for cancer? Heck even Oreo was sued for transfats in it's cookies. IMHO if you're going to be putting people out of work you better have more than just a "suspicion" the company "might" be causing problems.

The backing of this organization seems to be the "Tellus Institute," a environmental lobby it's no wonder the organization wants to tip the balance of power.

But so what, I'm just an anonymous coward compared to a thousand lawyers and a PDF debiew on slashdot. Bah!

The original intent?

I'm guessing that the original intent of such a rule was due to prevent a bunch of sciencebabble (or whatever the equivilent to "technobabble") being used in court. It's easy to sound convincing if you use a lot of big words, coupled with a few common arguments, and a lot of technical mumbojumbo. As "normal" people, a jury would have a really hard time figuring out legitimate science from some believable crapulence.

That isn't to say that this doesn't shoot down a lot of legitimate science as well. I have to think about thinks like DNA evidence, etc, and what would have happened to such things when they weren't supported by the scientific community at large

Hey! This makes sense!

This makes a lot of sense. Why would someone with lots of money be trounced by poorly-paid scientists who have the incredible guts to imply that the rich guy is not right????

After this is America, where "In gold we trust"...

Daubert on the web

I'm surprised to see this story on /. without a link to Daubert on the Web [daubertontheweb.com]. This is a very important case with a lot of angry followers, and there's some great stuff on this site. I happen to have some of it bookmarked, as IAAL (I Am A Lawyer).

There's also a listing of other cases where this ruling has been applied. One of the most interesting is United States v. Villarman-Oviedo [uscourts.gov], which is a narcotics case where the admissibility of the evidence was confirmed despite the fact that the expert was obviously drunk when he took the stand.

Also, the arson case of United States v. Diaz [uscourts.gov] where the handwriting expert's opion was admissible, despite the fact that the handwriting expert was actually a phrenologist.

Clearly, this ruling has hand a profound negative impact on our judicial system.

Re:Daubert on the web

WTF?

The Villarman-Oviedo case involves an agent testifying about drug slang. Not what most people consider "scientific", but it's admissible under the rules as expert testimony. There's nothing in the text of the opinion about him being drunk.

The Diaz case says nothing about the handwriting expert being a phrenologist. Looks like a pretty run-of-the-mill case to me.
On the other hand, the Daubert on the Web [daubertontheweb.com] website is a great resource for lawyers and those wanting to know more about this issue.

What's the ruling on one out of three? It's not enough to get you a reversal in the Court of Appeals...

WSJ Article

SCIENCE JOURNAL
By SHARON BEGLEY

FROM THE ARCHIVES: June 27, 2003

'Junk Science' Ban Also Keeps Jurors From Sound Evidence

Ellen Relkin was sure that "junk science " played no part in her case. Her client, Lisa Soldo, a healthy mother of a newborn, suffered a massive intracranial hemorrhagic stroke at age 28, soon after starting on a drug prescribed to suppress lactation, and was left severely brain damaged. Ms. Relkin, at attorney with the Manhattan law firm Weitz & Luxenberg, thought science showed that this tragedy was no coincidence. At the very least, she figured a jury should hear the evidence.

None ever did. Thanks to a landmark Supreme Court decision handed down 10 years ago Saturday, science in the courtroom has undergone a radical overhaul.

True, some very bad science has been kept out. Says Jerome Kassirer, former editor of the New England Journal of Medicine, "It was pitiful how people with few credentials, who made a career out of courtroom testimony, were hired to be expert witnesses. That's much rarer now."

But legitimate scientific evidence has also become rarer. Judges are dismissing testimony by physicians as anecdotal, setting standards for scientific evidence higher than what doctors and researchers use, and barring testimony when scientists in different disciplines disagree. In some cases backed by legitimate science, science-and-law scholars told me, judges have ruled that the evidence wasn't good enough, or unambiguous enough, for a jury to hear, and so have dismissed the case before trial.

Plaintiff attorneys deplore the situation, while corporate lawyers generally applaud it. The surprise is how few saw it coming. In its 7-2 decision in Daubert v. Merrell Dow Pharmaceuticals Inc., the Supreme Court ruled that, to be admissible, expert testimony must be based on a testable theory or method that had passed peer review, had a known error rate and standards, and reflected "generally acceptable" science. It instructed judges to be gatekeepers, barring testimony that falls short. At the time, the ruling was seen as a blow to business, as it "rejected a strict standard" that kept "dubious scientific evidence" out of the courts, reported this newspaper.

As a matter of law, Daubert applies to civil and criminal cases. But few criminal defendants can afford a pretrial "Daubert challenge" to expert testimony, says Margaret Berger of Brooklyn Law School. So faulty science still finds its way into criminal cases. Example: Prosecutions in some child sexual-abuse cases still rely on therapist interviews that can be badgering and suggestive, which produce misinformation.

The real impact has been in civil cases involving claims of harm from a pharmaceutical or other chemical. In these cases, some judges have ruled that without epidemiological studies, plaintiffs cannot prove causation. Others have ruled that doctors' testimony -- that a patient developed heart trouble after taking a drug, got better after stopping it and relapsed after going back on it -- doesn't pass Daubert muster.

That, says Dr. Kassirer, shows ignorance of how science works: "In medicine, we make judgments about cause and effect based on all kinds of evidence -- biological plausibility, physiology, animal studies and case reports. There are many valid ways to assess causality; this kind of information ought to go to a jury."

Several judges have thrown out cases in which epidemiology fails to find a twofold increase in risk from the chemical at issue, even though journals publish papers that take seriously risks below this arbitrary cutoff. Others have found inadmissible models commonly used by scientists to assess exposure.

Some judges see scientific disagreement as proof the science is unreliable. That's what Ms. Relkin faced in her Parlodel case. In 1994, with many young women on the drug having had heart attacks, strokes or seizures, and under pressure from the FDA, Sandoz (now part of Novartis) stopped selling Parlodel as a lactation su

Science and Law will never be on the same page

They have fundamentally different ways of looking at the world, so naturally they interact badly.

Science cares about external consistency. Scientists build models of the world, test them, and throw them away when they are inconsistent with observation.

Law cares about internal consistency. One of the most important considerations is precedent - "we did it this way last time". When the world changes, precedent gets overturned - eventually.

Science cares about reality. The gold standard in science is the published, reproducible procedure.

Law cares about verisimilitude - believable stories. The gold standard in law is getting twelve members of the community to believe your story, and not just any twelve people - if a person has any expertise related to the matter in court, they will be filtered out of the jury pool.

Science is never the last word. Observation can always make you change your model. Newton was the last word for centuries, now he's an approximation to Einstein.

Law is supposed to be final, and it defends its finality fiercely - witness the resistance to checking old decisions with new DNA techmology, whereas in science the first thing you do with a new tool is compare it with your old measurements.

Yeah, yeah, I know, Thomas Kuhn, postmodernism, yadda yadda... the above is the idealized way science works - reality is more complex and slow, but by and large peer review works.

The real problem is soft science

The major problem that is addressed in the Daubert ruling is far greater than the misuse of "real" sciences, i.e. physics, chemistry, etc. The Daubert ruling is mostly effective in halting ridiculous pseudo-science and soft sciences, especially "scientifically conducted" psychological studies.

For almost every study in psychology, there are at least 2 studies that contradict the results of that study, and there are studies to contradict those studies. The whole thing becomes one big mess, and is far too nebulous and confusing to be presented as evidence for a jury.

The real problem is drawing the line. Headlines in newspapers claim that "Daubert ruling excludes legitimate scientific evidence" and whatnot, but what is legitimate? Obviously, somebody believes in every scientific theory publicly available, or else it wouldn't be a theory at all, it would just be stupid. And especially in psychology, any result can be reproduced, given the right amount of time, and good resources =P.

The solution, I think, is on a per-case basis: have the judge evaluate the relevant science before the trial begins. If it is accepted, it is admissible. If it is not submitted for approval, or if it is not accepted, then it is not admissible.

The problem with scientists

The cause of all this brouhaha with the legal system is because scientists are those folks who know more and more about less and less until they know everything about absolutely nothing.

Seriously, I think that there is a kind of disconnect between high priests of science and the layity leading to a distrust of what science can offer. How often are there reversals in scientific opinion, such as has happened with eating eggs or drinking moderate amounts of alcohol. Then there are other cases, such as with the use of macro doses of Vitamin C, where lots of folks swear by it and science is either silent or negative. Then there are the cases where science "catches up" to common wisdom and the response is that science once again proves the obvious. Yawn.

It would seem that the judiciary, as members of the scientific layity, are subject to the same opinions about science as many other commoners. They just have the power to do something about it, albeit it in an adverse manner.

So the question might be that in the effort to eliminate junk science, as referred to in the article, judges are promoting a different form of junk science!

WSJ article link @ Corbis

There's been a spate of news stories covering the topic, perhaps the most prominent in the WSJ of Friday, 27 June, "'Junk Science' Ban Also Keeps Jurors From Sound Evidence" (regrettably not freely available online)

Our good friends at Corbis have scanned in this article [corbis.com] for us! There is also a good article at Tech Centeral Station. [techcentralstation.com]

This is tricky.

The standard that is aimed for is "relevant and reliable." Not much to argue with there.

But the political ramifications are great. On the one hand, exclude scientific evidence and risk ignorance of the truth. On the other hand, include scientific evidence and risk politicizing scientific knowledge.

Consider one of the examples given: pollution.

If we don't allow scientific diagnosis and treatment of the various problems associated with pollution, we'll almost surely mis-judge the relevance of pollution and possible routes to equitably manage it.

However, if we seek scientific advice for diagnosis and treatment, scientists will be increasingly be the targets of bribery. The higher the stakes, the more sure the corruption. In that scenario, you get the same bad advice, but you malign the body of the scientific establishment as well.

For evidence of this, look at the international debate on global warming. It's clear that financial interest is biasing the scientific arguments in the US policy analysis. Worse, once this debate is over, we can only assume the taste of money will remain on their tounges. It's easier to get grants for your dream research if you're owed a favor for a political performance.

Further in the future, a stronger political capacity in the sciences could lead to more fundamental changes in the organization of our society. Historically, the ability to control truth and the ability to rule have proved dangerous in solution. If the church cannot be trusted in front of God, why then scientists in front of Reason? Prudence demands keeping both separated from the State.

seems like kind of a natrual ruling

Science is a tricky thing, and when applied to the U.S. court system it becomes even tricker. Both sides need to win and so will lose or fabricate evidence to fit their case. Science, which has few fast acting safeguards against people who will maliciously misuse the process, is a prime area for prosecutors, defense, and all other lawyers to engineer evidence. In most cases, the jury are not trained to understand good science from bad science, so someone has to arbitrate the validity of the claim. The judge is, in many cases, the person who makes the decision. On appeal other judges may agree or disagree.

For instance, some prosecutors, if allowed to spout pseudo science, would have juries believe that a decedents matching DNA at a crime scene is 100% irrefutable evidence that the defendant was at the crime scene, which is absolutely untrue. Bayes Theorem tells us that there is a good probability that the match is accurate, like maybe 99%, but nowhere near the one in 10,000 that many believe. On the other hand, non-matching DNA is plenty good to introduce reasonable doubt. Try to explain Bayes theorem to a jury and you might as well call a mistrial.

The same is true for fingerprinting which has been widely abused. If a complete finger print matches a suspects fingerprint that is pretty good evidence, even without a lot of corroborating evidence. However, the partial print most often lifted of crime scenes is not good enough to match to a suspect. There is conjecture and interpretation involved. When the prosecutor claims that match is perfect, this is abuse of science.

Some will say that only tort lawyers would be afraid of judges vetting evidence. if that were true, why has this ruling had so little effect on judgments. The reality is that individual lawsuits are incredible hard to win, even harder to collect on, and requires the company to have done something really stupid. Stupid things include ignoring 200 hundred years of science attesting to the negative effects of tobacco or engineering cars in such a way that safety margins are ignored. Juries also do not like company feeding on peoples negative self esteem to make a profit, as was shown in the breast implant case. I tell you know that persons who love breasts love breasts of all sizes, and if they require a breast of a certain size psychological help is in order. There is no small breast disease. The case was lost not based on science, which was nonexistent, but because the companies were greedy. It is interesting to note that those judgments. which have been critized as unfair an extreme, has had no apparent effect on the medical industry as they are now marketing contact lenses and prescription skin care to children.

This is complicated stuff

As someone who has conducted more than a few trials and hearings, this decision, its implications, and so forth, are not easily summed up by one-liners and stereotypes taken from television and movies. How many of you out there carping about lawyers and judges have ever witnessed an actual trial from beginning to end? It's a lot more boring and procedural than what you see on TV, but of course, that doesn't make for good TV, so you're not going to see it.

At any rate, the first point I want to make is that someone has to be the gatekeeper. In most matters, it is the judge. I also want to point out that scientific evidence is not the ONLY thing that judges keep out of court. There's a lot of other stuff, too, that kicked out for one reason or another.

The second point I want to make is that judges DO NOT work in a vacuum. They are not just novices off the street and working solely what they are given. In most larger municipalities, there are judges with some technical training or expertise. Further, they know how to do their own research, where to find literature, and it is all at their disposal. They do not want to go into the case ignorant and they are the ones who are routinely assigned these cases. The assignments are not random, by the way. And if it is taking place in the Patent Court, the level of technical expertise they have on hand is quite high. So don't assume that these decisions are being made by the equivalent of someone plucked from the street, because they're not.

And for those of you who like to beat the drum of tort vampires, and so on, consider this: Your attitude is quite prevalent throughout the population. Now, juries are drawn from the general population, right? So the majority of jurors feel the same way you do, and awards are not nearly as high as you might think. In fact, if you ever take a look at types of injuries and the average awards (there are publications and services that compile these things) you'll probably find them quite reasonable.

Now if only they's exclude all testimony from

Psycologists, Psychiatrists, Handwriting Analizers, Lie Detectors etc etc etc...

Bullets

Seems like more bullets for the Ghetto Lottery/Trailer Lottery gun. It is amazing to see how many "victims" come out of these two very specific demographics. Isn't there a national database of tort law offenders? Maybe if there was, people would stop this meniacal idiocy. We, as legitimate consumers, are paying for these windfalls for these losers.

Muggle Science

Does this just exclude muggle science or wizarding science as well?

Biased source?

Much as I imagine Daubert HAS hurt good science in the courtroom, the website [defendingscience.org] pointed to here does not readily disclose the fact that it is actually a front for the Tellus Institute [tellus.org], a non-profit consulting group specializing in pro-environmental litigation and political action.

Judges perform an important gatekeeper function.

Look at the Daubert case itself. Two kids with birth defects. A chemical that was extensively analyzed in the scientific community. And a plaintiff with a really apealing pair of victims and no less then 8 (!) scientists who will testify in exchange for money that they have a theory that they havent published. If this went to trial its easy to imagine that these kids could get 'break the company' levels of damages. Despite that fact that the connection was really tenuous to the defendant... Knocking out junk science works both ways for example both prosecutors and defendants might otherwise demand that their polygraph test be admitted.. Conclusion-if youve got a scientific theory, publish it, and subject it to peer review.

Science Court

The US needs a section of "Science Courts" to clear credible science info for the use of the rest of the court system proper.

Basically, you find a bunch of judges who also have science and engineering backgrounds. "Juries" would be made up of college graduates in Science and Engineering.

They would no concentrate on "right" or "wrong". They would merely vette material claims for it's level of scientific proof and backing. Farsicle, outrageous claims with no basis in research would be held inadmissable irregardless of what nonsense wacko scientist for hire will say.

Seriously, "lay" juries are often woefully unqualified to sift through seriously technical information and decide wether it has legitimacy. Jury trial assures trial by "peers". This concept is often misapplied when dealing with technical issues, especially in cases of medical malpractice.

When dealing with such issues of a highly technical nature, I believe the courts should be required to strive above the "lay" jurymen. They needn't find a doctor or research scientist, but they SHOULD select people with a background that will give them an ability to evaluate evidence scientifically.

Finally, anyone who advertises in legal journals as "expert witnesses" should be disallowed to testify or predudiced for this fact by the judge. Someone "for hire" will often say anything at all. There willingness to offer pay-for-say services nullifies the objectivity that would help them clarify an issue.

At the very least, lawyers should be made to troll through hundreds of unagreeable professors with integrity to find the one crackpot that will say whatevers best for their particular client THAT day.

Experts on Juries

This ruling reminds me of something a friend told me about juries that hear testimony in court from expert witnesses.

Basically, if you happen to have specialized professional training in an area relevant to the case (physics, mathematics, medicine, materials science, etc.), to where you can plausibly tell your fellow jury members that "expert witness A's claim is a real stretch and basically a snowjob and I have to laugh that he kept a straight face the whole time", then a mistrial can result.

The first time I heard this I was apalled that knowledgeable jury members would be discriminated agains (but, hey, we know that pre-trial screening usually does that anyway).

But it was explained to me that court proceedings were very strict and formal in the sense that juries should only consider exactly and only the evidence presented in court. So, in that sense, it's like trying to find jury members that haven't already read in newspapers about the police finding Scott Peterson's having his brother's passport, $10K in cash, an altered appearance, and being within walking distance of the Mexican border. Unless the that evidence is admitted into the court proceedings, then it shouldn't be considered in judging his guilt or innocence.

IANAL, etc.

Re:Speaking as a scientist...

Well, I for one WELCOME our new computer overlords.

Re:Speaking as a scientist...

You probably think I'm about to blast the Dogbert ruling

Who the hell is Dogbert?

Re:Speaking as a scientist...

The whole point was that it gives too much power to judges, who aren't always up on the latest scientific theories or even intelligent about science in the first place. When one person suddenly has the power to dismiss evidence without any reason or process, you remove a check and balance. Suddenly the door is open for self-serving justice with little to no legal recourses for those who can and will be hurt by it. It's the same as the PHBs of the world being allowed to make engineering descisions when they understand nothing about what is going on. Let the judges make legal descisions and let the scientists make scientific descisions.

Re:Speaking as a scientist...

As a "physics genius", why do you have a yahoo account and why are you reading slashdot? Shouldn't you be out Einsteining something?

Re:Shocking

The American legal system is not inadequate per se. What's inadequate is the rigor of law school curricula. OK, the teaching of ethics in law schools is also pretty inadequate. That's the only way I can explain the idiots traipsing around with "Juris Doctor" after their name.

And if the lawyer is very good at cocktail party schmoozing & politics, s/he may well get appointed to the bench. And in law, "the bench" is not where science is performed.