Courts have long called upon experts making scientific claims to inform legal proceedings. As the range of scientific knowledge has expanded, so too have questions and challenges about the role and basis of claims of scientific expertise. For instance, how should courts respond when scientific experts do not agree? Even in cases involving widely accepted scientific principles, experts can disagree on methods and interpretation, and in rapidly developing areas of scientific inquiry there can be fundamental differences. The fields of science and law have dissimilar cultures. Whereas scientists can withhold judgment until full information can be obtained, the law requires that decisions be made even if there is incomplete evidence. The law, in the common law tradition, makes determinations based on prior precedent, and it can be slow to adapt to changes in scientific methods or advances in scientific understanding. A recent æ岹ܲ issue on “Science & the Legal System,” published in fall 2018, bridges the divide between science and law.
On October 29, 2018, guest editors Shari Diamond and Richard Lempert hosted a panel discussion at the National Press Club in Washington, D.C., to mark the public release of the æ岹ܲ volume. They presented some of the results from a first ever survey probing the reasons why distinguished scientists choose to be involved or resist involvement in legal matters, including the experiences of those scientists who participate in legal actions and reforms that might make scientists more likely to participate when asked. The panelists included three contributors to the æ岹ܲ issue: distinguished federal judges David Tatel and Jed Rakoff and former federal judge Nancy Gertner.
Professor Diamond described the results of a survey of American Ƶ members, which was undertaken to determine the level of trepidation scientists have about engaging with the legal process. The survey found that 54 percent of respondents had been asked for expert advice at least once. Among those who declined to offer advice, 66 percent said they declined due to time and other commitments, 49 percent deemed the request outside their area of expertise, and 23 percent reported doubts about the legal system. The survey also found that 60 percent of respondents viewed the legal system as somewhat or very successful in producing results that reflect sound scientific knowledge, but 40 percent saw it as somewhat or very unsuccessful.
The increasing variety and complexity of scientific questions before the courts was highlighted in Judge Rakoff’s comments regarding the inadequacy judges often feel in managing the scientific questions that come before their courts. This is not a new problem, and indeed sometimes judges get the science wrong or are subsequently proved incorrect by new scientific understanding. Judge Rakoff noted the Supreme Court decision in Buck v. Bell, upholding the forced sterilization of low-income women based on then current ideas about eugenics. In an effort to ensure that only sound science enters into the courtroom, the federal courts and most states have adopted the Daubert standard, which lays out criteria for judges to make some assessment as to the validity of scientific evidence and testimony.
The implementation of the Daubert standard, however, has not been uniform. Judge Gertner spoke about the resistance to reevaluating forensic evidence despite calls for such a reevaluation from the National Academies and the President’s Council of Science Advisors. Judge Gertner mentioned bite mark evidence as an example. “There really is no there, there. There is no science there.” In criminal cases, she described how precedent and tradition do not readily allow more scientifically rigorous findings to dispute forms of trace evidence that have been admissible without objection for decades. Citing precedent, judges deem the evidence to be admissible and opposing counsel rarely objects. Judge Gertner called on courts of appeal to scrutinize more closely presented trace evidence to encourage lower courts to reform.
Judge Tatel spoke about the different type of relationship that appellate courts have with science because of their role in reviewing the fact-finding done by lower courts as well as in reviewing the actions taken by federal agencies, particularly agencies that make decisions based on science. With regard to agencies, the appellate courts perform a searching and careful inquiry, however the standard of review remains deferential. Judge Tatel gave the example of the U.S. Court of Appeals for the District of Columbia Circuit’s review of the EPA’s&Բ; recent endangerment finding for CO2 and how the court deferred to the expertise of and scientific evidence presented by the agency.
In response to an audience question about the seemingly trivial barriers survey respondents claim prevent their participation as expert witnesses, Richard Lempert pointed out the reasons most survey respondents give are responses that would be seen in an ideal system. Scientists are taking care to engage only in the cases for which they have time and appropriate expertise. This is evidence of a healthy system that can be built upon and improved.
The “Science & the Legal System” issue of æ岹ܲ is part of the Ƶ’s Public Face of Science initiative. Video of the panel discussion at the National Press Club is available at: /events/science-legal-system.