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