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."

Comments

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

[Lane.exe]

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.

Peter Huber on science and the law

[the end of britain]

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/

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

[Gorm the DBA]

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.

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

[Rev Snow]

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

Re:One of the most relevant passages

[Damned]

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?

WSJ article link @ Corbis

[morcheeba]

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 for us! There is also a good article at Tech Centeral Station.

This is complicated stuff

[Pettifogger]

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.

Re:Well

[EvilTwinSkippy]

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:It's sad

[guacamolefoo]

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.