Slashdot Mirror
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."
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.
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.
Blar.
Unfortunately science isn't always as concrete as say mathematics. Just recently I saw a news article on google news that said powerlines do not in fact cause cancer. Any scientific study that is used as evidence is just a study and must be taken with a grain of salt. That doesn't mean it shouldn't be presented, but it's not a smoking gun.
--------
Free your mind.
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. >
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'."
Everything in the world is controlled by a small, evil group to which, unfortunately, no one you know belongs.
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.
Space for rent, inquire within
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.
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).
Stupid people make stupid things profitable.
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.
To a Lisp hacker, XML is S-expressions in drag.
If you read the whole report, it's pretty apparent that the real chilling effect is not "forcing jurors to decide on feeling" but denying jurors the opportunity to make a decision. Judge has pre-trial discovery hearing, exclude some or all he defendant's scientific support and issues summary judgement tossing out the case BEFORE a jury is even assembled. Science is hard to do honestly (despite all the best intentions in the world it is hard!) Law is hard to do honestly and/or fairly. The probability of someone doing both honestly and competently is vanishingly small.
I'm not really sure why the revised the policy. From the article:
...1923 ruling known as Frye, which held that the methods used by the expert in forming his scientific conclusions must be generally accepted within the expert community. Critics of Frye argued that it often excluded new but legitimate science that had not yet gained a consensus within the scientific community.
This is the way that actual science works. Peer review. Lots of it, for a long time before every scientist starts believing in a result. There's a reason new methods are excluded, and it's because to scientists they aren't fully proven yet. I'm not really sure why they had to change this policy, or even the practical effects that this change had, aside from reading a few cases where perfectly acceptable sounding DNA evidence was excluded by a judge based on technicalities (one of the many things that makes it very difficult to prosecute a rape case). Perhaps the problem comes with the fact that so many conditions gives a judge too much wriggle room. The Fyre condition sounds pretty clear and simple in comparison to a four point checklist. And the new conditions don't open up the new sciences any more than the Fyre condition, so there must have been a different motivation.
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!
"Gentlemen, you can't fight in here! This is the War Room!" -- Dr. Strangelove
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.
Looking at the history, you will find a great deal of garbage science cluttering both the lab and court rooms. We can find a large number of examples of smart people making bad decisions based on garbage science. Look at the large number of people who've fallen for Freud.
I believe that most jurors are trying to make their decisions based on facts...not just emotions...meaning that they are highly susceptible to garbage science.
Jurors and lawyers neither have the time nor the skill to determine what is and what is not sound science. Jurors will make decisions based on whether or not the argument sounds scientfic. They also make decisions based on the credentials of the speaker. Jurors do not have the resources or skill to put each argument through their own independent review. Such reviews need to take place outside the court.
The problem I see is that the decision to include or exclude science in a case is being made by the judge presiding over the case. Since dismissing the arguments at the base of the case effectively determines the winner and loser, it is putting too much power in the hands of the judge.
There should be a process for dismissing bad science...however, it should be through an independent peer review board of scientists, not by a judge who is more likely to be swayed by motives other than the foundations of the science.
This is just more of the system protecting the sytem.
Excellent point. New scientific ideas cannot gain acceptance, because they conflict with established scientific beliefs. Do you really think if someone found solid scientific evidence that the earth is less than 10,000 years old, that it would be accepted in the scientific community? Hell no. Anything less than 4 billion and you're a lunatic. That's one reason why information about creation science is generally either a bit silly or unashamedly religious - the mainstream scientific community will never accept it anyway, so why bother presenting it in a way they could accept if they were willing? Bleh.
$x='S24;r)>63/* h@<5+oZ)32"5cz';$me='phroggy'x$];
$x=~y+ -xz+\0-Tx+;print$_^chop$me for split'',$x;
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 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...
Preventing quack graphologists or more to my point quack psychology from swaying a jury's opinion is a pretty worthwhile idea. There is sooo much junk psychology out there -- and I'd hate to see a return to people being sentenced on "recovered memories." People want to believe "experts" and trust their authority (this concept is not junk psychology). All too often, a trial may come down to which side can afford the most "expert-sounding experts." The funny thing about psychology is that depending on whom you ask, a psychologist will blame only the accused, or the parents, or the school, or the media, or genetics, or or or. We psychologists have an amazing ability to snow people over with bullshit, and the push to publish generates some really questionable science. Lastly, our field does not tolerate reproducing earlier science much. For whatever reason, it's damned hard to get a PhD and gain credibility if you 'merely' reproduce someone else's work. One of the foundations of GOOD science is the replication of results, which weeds out much of the cruft. And one last thing, try getting published with null-results. It almost surely won't happen. Saying so and so, is a "respected, published expert" in such and such field of psychology doesn't always mean much. Said psychologist may have only had the most sensational study that quarter to adopt the alternate hypothesis. Anyway, all that is to say this: we NEED some pretty high bar to prevent junk science for further ruining our courtrooms. peace
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.
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
If you don't want to repeat the past, stop living in it.
I would only emphasize the points made in this post. Daubert analysis and these kinds of evidentiary hearings are enormously complicated. Daubert itself is part of a triology of cases, the other two being Kumho Tire and Joiner. To get a real sense of what is going on, you need to also post the opinions of these two cases. Additionally, it seems to make little sense to post the opinion or discuss its holding on this forum without a discussion of the Federal Rules of Evidence and other issues of procedure. "relevant and reliable" might mean one thing in this forum and stripped out of the legal context but in this case "relevant and reliable" cannot be understood without understading legal relevance, materiality, causation, burdens, presumptions, etc. While this discussion is interesting, it bears little concerete relevance to important legal issues of mass tort, medical malpractice, criminal proof, etc. These issues are far more complex and legal than scientific. As a lawyer, I can't help but feel that these discussions are glossing over the enormously complex issues of legal procedure and torts to devolve into mere shallowing ranting about torts, class actions and uninformed opinions about the function, nature and role of the American judiciary and legal system.
I'll say it again, the LAPD got caught trying to frame a guilty man. The were too many problems with the evidence chain for the prosecution's case to meet the "beyond a reasonable doubt" standard. So OJ was acquitted. He got lucky, if the LAPD had played by the rules he'd be in jail right now.
Veteran, Bermuda Triangle Expeditionary Force, 1992-1951
If you read the report, it IS SAYING that the number of tort suits are going down (at least more are thrown out before it gets to trial). If it didn't than the whole report makes no sense. "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." That assumptions is BS. Most research on human decision making process demonstrate that we make up our minds FIRST, THEN find supporting evidence to reinforce that decision. Jurors make up their minds early then give weight to any "expert" witnesses who will corroborate their decision, which is precisely why "junk science" have been so popular in court rooms - they WORK! This is why it is SO important that jurors are only exposed to CONCLUSIVE (at least nearly so) scientific evidence, and not just let them decide whether or not it IS valid (because whoever agrees with me (the juror) is always valid).
I downloaded their paper, and on the last page it reads:
So, a fund created because of a lawsuit that was heavily influenced by junk science (according to the losers) is paying for a paper that recommends letting (more) junk science back into the courtroom? Your insurance premiums at work...
We call it art because we have names for the things we understand.
What I want to know is, how the hell did you sneak through the jury selection process??
It's very sad that the truth is being modded troll. I can understand overrated or offtopic, but the lie about WMD has even been debunked by Deputy Secretary of Defense Paul Wolfowitz. Modding down a fact as a troll is like rewriting history, voluntary ignorance that has always accompanied injustice. We like to believe the image of evil usually portrayed by Hollywood & Disney: an evil mastermind who revels in sinfulness and thus is nothing like us. The truth is different. Most criminals rationalize their transgressions. From the stolen goods that the insurance will pay for, to the jews that would have been gassed by someone else anyway, we shape and filter the facts until they fit our truth, our reality, our conscience.
By manipulating our truth (or having it manipulated) we can be made to commit the most horrendous crimes. Of course, most of us believe that everybody else can be deceived, but not them. Accept the fact that you may be wrong. If you disagree with someone, enter the debate and argue until you are either defeated or until you win. Either way, if the opponent has a decent intelligence you will probably face arguments that you never even considered. If you lose, you may not be gallant enough to admit it to your opponent, but adjust your standpoint nonetheless.
And never mod someone as a troll just because you disagree with them. Ask them for proof and enter the debate...