The Age of Expert Testimony Science in the Courtroom: Report of a Workshop (2002) / Chapter Skim
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4 The Scientist's Role in the Courtroom
4 The Scientist's Role in the Courtroom
Pages 15-21
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From page 15... ...
From the point of view of the scientist, the courtroom is "someone else's turf, where the rules are different and unfamiliar." This situation, said one veteran scientific witness, "is a challenge that used to Frighten me and continues to worry many of my colleagues as they consider whether to step into the courtroom." Common concerns of scientists are that they will be embarrassed publicly, their results may be misunderstood or used out of context, and that they may be branded as a "hired gun" for one side or another of an issue. One reason scientists are uncomfortable in the courtroom is that they are neither trained in nor comfortable with the formalism of the legal adversary proceeding as a mechanism to resolve scientific differences.
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From page 16... ...
Even so, some scientific, engineering, and medical experts feel a responsibility to make themselves available to offer courtroom testimony; some of whom go so far as to define a collective responsibility to do so. Their reasoning is that the best way to provide sound evidence for legal questions is to provide the most qualified experts.
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From page 17... ...
As one brief filed in Daubert suggested, "Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry.''l3 This statement is followed in the Daubert opinion by a quote from Karl Popper, another eminent philosopher of science, who wrote in the 1930s: "[T] he criterion of the scientific status of the theory is its falsifiability or refutability or testability.''l4 Chief Justice Rehnquist was sufficiently perplexed by this assertion to offer a mild dissent: "I defer to no one in my confidence in federal judges, but I'm at a loss to know what is meant when it is said that the scientific status of a theory depends on its falsifiability, and I expect some of them will be confused, too.l5 Workshop participants found no problem with refutability, or testability.
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From page 18... ...
As the software people say, 'It's not a bug, it's a feature'." Because scientific areas have different standards for assessing evidence, experts can in good faith disagree over interpretations of data and other evidence. Even though scientists strive for consensus, every respected scientific journal reflects the lively debates that precede consensus.
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From page 19... ...
It is possible to say that cigarette smoking increases the likelihood of lung cancer in large populations, for example, but virtually impossible to say with certainty from epidemiological studies alone whether a particular individual's cancer was caused by smoking. An epidemiological study is said to be sound when its conclusions meet certain generally accepted criteria.
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From page 20... ...
· The use of such a hard standard obscures the fact that any risk means that some people could be harmed by the agent in question. For example, the relative risk of "passive" smoking a person who never smoked but lives in proximity to smokers is reliably shown to be about 1.2, i.e., the risk of developing lung cancer is elevated about 20 percent by passive smoking.
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From page 21... ...
"When medical necessity is at stake in health insurance coverage cases," he said, "the plaintiffs' and the managed-care organizations' experts are almost always allowed in." Similarly, when the insanity defense is at issue in criminal cases, clinical experts are permitted to opine not merely about psychiatric diagnosis and symptoms but also about perceived responsibility of the examined individual "without Daubert or Kumho standing in the way."
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