how is science used by... courts: “ordinary” litigation evidence serial litigation
Post on 19-Dec-2015
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How is Science Used By . . .Courts:
“Ordinary” Litigation
Evidence
Serial Litigation
Disciplines: Medicine, chemistry, physics, toxicology, physical and cultural anthropology, statistics, engineering, economics, psychology, law, accounting, biology, document examination, sociology, linquistics, ballistics and weapons identification.
Cases: Homicide (cause of death), arson, forgery, possession or sale of controlled substances, antitrust, environmental litigation, products liability, professional negligence, Title Seven, personal injury, insanity defense, embezzlement.
Prevalence: 23% of judges report seeing scientific evidence more than half the time. . .
The Advocacy SystemSelective Use of Data
The Necessity of DecidingDoes The Science Exist?
Birth defects, cancer, diseasesPipe physics
“More Probable Than Not”2σ Results
Theories
Elements
Evidence
Relevance
Admissibility
Proof
Hypothetical Questions
vs. Opinion Evidence
vs. Opinions based oninadmissible evidence
Gatekeeping vs. Right to a Jury
The Economist’s (Scientist’s) Instinct
The Lawyer’s (Judge’s) Instinct
Do Juries Understand?
Witness Demeanor
Policy
Probative Value vs. Unduly Prejudicial
General Rule
Scientific Evidence
Doctrine
Just when a scientific principle or discovery crosses the line between experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from the the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs”
Frye v. United States293 F. 1013 (DC Cir. 1923)
Daubert v. Merrell-Dow Pharmaceuticals, Inc.509 US 579 (1993)
The Daubert Factors1) Can the knowledge be tested?2) Has it been subjected to peer review?3) What is the known or potential error rate?4) Is the method generally accepted within the community?
Did Daubert Cut Back on Junk Science?
“We recognize that, in practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance that is struck by the Rules of Evidence designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes.”
Justice Blackmun
Is This a Good Rule?
Rehnquist: “I defer to no one in my confidence in federal judges; but I am 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 suspect some of them will be, too.
I do not doubt that Rule 702 confides to the judge some gatekeeping responsibility in deciding questions of the admissibility of proffered expert testimony. But I do not think it imposes on them either the obligation or the authority to become amateur scientists in order to perform that role.”
Is This a Good Rule?
Faigman Article: Should we extend the scientific method to all expertise?
Advocacy vs. ScienceFinding and Managing ExpertsPushy Lawyers
HonestyThe Academic WitnessThe Professional Witness
How Well Do Juries Perform?
Technical Competence
Teaching the Jury“Everybody knows . . . ”
Improper Purposes“California Juries . . .”
Surveys
Beyond the One-Off Case
Legal Interactions Between Cases:
Collateral Estoppel
Institutional Interactions Between Cases:
Human Capital & FinancingDiscoveryJunk Science
Strategies
Settlement vs. Litigation
The Pipe Wars
A Seller’s MarketPushing The ScienceCollapse
YEAR
1993.0
1992.0
1990.0
1989.0
1988.0
1987.0
1986.0
1985.0
1984.0
1983.0
1982.0
1980.0
1979.0
Me
an
CA
SE
S
20
10
0
Verdict 1
Verdict 2
What’s Going On?
Pricing ClaimsUncertainty = Science + Juries
Do We Trust The Process?How Fast Does the System Reach Equilibrium?Does the System Ever Reach Equilibrium?
Perceptions: The Bendectin Cases
Turning Testimony into Publications
Junk Science
Clinical EcologyRepressed MemoryJunk Publications
Junk TV
Science by Lawsuit
Elizabeth Loftus