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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."
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.
sulli
RTFJ.
...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.
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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.
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.
Practice Kind Randomness and Beautiful Acts of Nonsense.
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.
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 he gave at Caltech.
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.
It's nothing but crumpled porno and Ayn Rand.
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.
ZFS: because love is never having to say fsck
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.
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!
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
I'm surprised to see this story on /. without a link to Daubert on the Web. 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, 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 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.
Consensual sex is boring.
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.
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We are not amused.
The problem is not the idealized view of science here, but rather the different standards applied. If we're going to take the idealized view of science, how it ought to work (and I think more or less does over the long haul, despite the short-term problems), to be fair, take the same view of the law. If you do, you find they don't have fundamental disagreements that interact badly.
For example, you say Science cares about reality. You fail in the next point by not crediting Law with the exact same concern. You say all they're concerned with is a believable story to satisfy the audience (jury). But the exact same thing as true of Science (the audience being their peers). In both cases, you could characterize their behavior as concern with constructing a "believable story", but in both cases, they're doing this in order to try to find the truth of the matter.
Similarly, Science stubbornly rejects revision, just as Law does, and for very good reason. One does not throw out a successful theory on a whim. Again the two are quite alike.
As for the first point, I would just flat out deny the claim regarding "external consistency". Inconsistency with observation is more often that not a problem of internal consistency. The observations themselves are too theory-laden to argue otherwise in most cases. And in any case, scientists are very, very quick to look for alternate explanations when things don't come out right, and very, very slow to indict previous theory and observations. In effect, scientists are quite concerned with precedent, as are judges.
The two are not the same thing, but they are alike in most of the ways you're claiming they're different...
"Convictions are more dangerous enemies of truth than lies."
I wondered, why not make the background ink on the checks bleachable so that if anyone bleaches anything written with a Bic pen, the background ink will come off too making the tampering obvious?
Since the film took place back in the 1960s I decided to do an experiment. I wrote myself two checks for One Zillion Dollars and dunked one in Bleach and one in Muriatic acid from the hardware store. ( Muriatic acid is another name for Hydrochloric acid and is used as a cement cleaner ). The Bic pen ink on the check soaking in Bleach was uneffected, the Pen ink in soaking in 30% HCl was turning red. The background ink on the one soaking in bleach was turning greenish, and the background of the check soaking in HCl was uneffected. I let the checks soak a while.
When I removed the checks from their soaking solutions, the paper was not in pieces, but it was definately weakened by the strong chemicals. I decided to try one last test: After washing the checks in water, I redunked each of them into the other solution. The one that had been soaking in HCL lost all BIC Pen markings immediately on contacting the bleach. The one that had been soaking in Bleach lost most markings soon after touching the HCL.
Aha! says I. I think I know what is going on! Even after washing in water, there is some residual chemical in the paper of the check. In the case of the check soaking in Hydrochloric acid, that acid was enough to liberate some free chlorine from the bleach. In the case of the check that had been soaking in bleach, the residual bleach had enough clorine that when the acid liberated it, it could bleach the check. I assume that you could use any acid, not even particularly strong ones like HCL to liberate chlorine from bleach. I think vinegar might work, and not damage the paper so much as HCL. Or a weak solution of HCL would work too I guess.
The only problem I see with this method of crime ( aside from the fact that it is a crime and that you'd get caught - dont try this at home kids! ) is that the security paper takes on a greenish tint after contacting the bleach. No doubt one of the colors in the background is made to be susceptible to bleaching for security purposes so that altered checks clearly stand out as green. ( the green component must not be suceptible to bleach )
Of course I tossed the experimental checks out. ( they were written from my bank account so who would I be stealing from? Me! )
Eat at Joe's.
IANAL: The fact that we have to have a legal super class interpret the law is the biggest indication that the whole thing is a scam. (Truth be known, the lawyers have only a good guess about what the judge and jury will rule).
This article is interesting because the lawyer super class has appointed itself the position of determining what is and and is not science. Scientific arguments don't go through a peer to peer review, they go through a legal review.
The self appointed super class that judges science has the worst history for backward thinking than just about any group. They brought us the flat earth rejection of Galileo and Copernicus, and the Scopes Monkey trial.
Science depends on peer review. Rather than having a judge review science for a case, it should be judged by an independent panel of scientists (hmmm, it would employ scientists...its good to keep them off the streets.)
Rule by law is a good thing...rule by lawyers is a bad thing. The fact that reasonable people have a hard time discussing issues is a good indication that we are in the latter situation.