Wednesday, July 20, 2005

Scientific evidence in court: publication event

Today the American Journal of Public Health published a Special Supplement on Scientific Evidence and Public Policy. [Full disclosure: one of the Reveres was closely connected with the Coronado Conference where most of the papers were presented.]

This is the first full scale attempt by scientists and science scholars to come to terms with the new rules on scientific evidence spawned by the 1993 Daubert decision which requires federal trial courts to make a preliminary determination whether evidence presented by scientists is "relevant and reliable." In making the trial judge the "gatekeeper," Daubert places a burden on the judiciary to make judgments about science they may or not be better equipped to make than a jury. In two subsequent Supreme Court decisions the trial court's judgment has been made difficult or impossible to reverse on appeal and the procedure extended to include testimony by all manner of experts, not just scientists.

While the principle of assuring only relevant and reliable scientific testimony is presented to a lay jury sounds commonsense and uncontroversial, in practice it has turned out to be anything but. Like many things that "sounded like a good idea at the time," this one has bowed to the inexorable Law of Unintended Consequences, among them a dramatic reversal of the burdens on scientific evidence required for criminal versus civil actions (it is now much easier to get questionable science into a criminal prosecution than to get clearly valid evidence into a civil case about money damages), a disincentive for scientists to get involved as helpers to the court and the jury, the exclusion of clearly relevant and reliable scientific evidence by skillful lawyering designed to cast doubt in the judge's mind about facts accepted by most scientists (think of climate change in the political setting), etc. The Daubert tangle has turned into just that: an intellectual tangle.

Thus this AJPH Supplement is a welcome and unique addition to a literature that has been mostly authored by and from the perspective of lawyers. Legal scholars and judges are represented, but they are in the minority. The tone is set by scientists and science scholars. Among the distinguished cast of characters: epidemiologist David Michaels (former Assistant Secretary at the Department of Energy), epidemiologist Kenneth Rothman and biostatistician Sander Greenland (co-authors of an authoritative textbook on epidemiology), epidemiologists Richard Clapp and David Ozonoff (Boston University School of Public Health), toxicologist Ron Melnick (National Institute of Environmental Health Sciences), science scholars Sheila Jasanoff (Harvard's Kennedy School of Government), Sheldon Krimsky (Tufts University) and Carl Cranor (UC-Riverside), philosopher of science Susan Haack (University of Miami), cognitive scientist George Lakoff, psychologist Neil Vidmar (Duke University), and also legal scholars Peter Neufeld (The Innocence Project) and Joe Cecil (Federal Judicial Center) and constitutional scholar Margaret Berger (Brooklyn Law School). Additional contributions were solicited by the Journal and deal with tobacco legislation, the Data Quality Act and other topics of interest to practicing scientists and public health practitioners. The Introductory Note was written by Federal Judge Barbara Rothstein, currently Director of the Federal Judicial Center in Washington, DC.

These papers are critical and analytical. The Coronado Conference organizers hoped it would be a significant contribution to an important public policy issue and further the public debate. You can decide for yourself. Most of the papers were supported by the Project on Scientific Knowledge and Public Policy (SKAPP) and all of them can be downloaded as .pdf files for free at the SKAPP website.