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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.
Anyone else read that as the "Dogbert" Reading?
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)..
We're like rats, in some experiment! -- George Costanza
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.
...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.
blog |
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.
Well, I for one WELCOME our new computer overlords.
If tits were wings it'd be flying around.
"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!"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...
Trolling is a art,
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 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. >
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.
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.
IAALS.
http://www.phuber.com/huber/js/js.htm
You may also find interesting materials on his web site:
http://www.phuber.com/
"Oh, the tragedy of math gone wrong. I can't even talk about it." -Wil Wheaton http://www.wilwheaton.net
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.
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
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
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.
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!
As a "physics genius", why do you have a yahoo account and why are you reading slashdot? Shouldn't you be out Einsteining something?
riding round the world on an old motorcycle
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.
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.
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.
-----[0_o]-----
We are not amused.
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.
HIV Crosses Species Barrier... into Muppets
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.
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.
IAAL
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
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 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.