Good Science in Court: A Bench Responsibility : Creative approaches, such as neutral experts, are needed
In a key ruling last year, the U.S. Supreme Court told federal judges that they can no longer throw up their hands when it comes to admitting complex scientific data into evidence and just let juries decide. The high court gave judges sophisticated new guidelines, intended both to admit new breakthroughs in science that are not yet widely accepted and to bar bad science from court.
The ruling in Daubert vs. Merrell Dow Pharmaceuticals was a welcome first step toward more rational legal decisions involving science and medicine. But it places a tough burden on judges, few of whom are trained in scientific method. And it may mean giving up some of their devotion to the law’s adversarial system, which works poorly when it comes to science.
Judges will get good help soon. Over the predictable objections of trial lawyers, fearing erosion of litigant rights, the Federal Judicial Center in Washington will soon distribute a reference manual on scientific evidence to all federal judges and hold seminars to educate them on science. The American Assn. for the Advancement of Science has begun a court demonstration project, and the Carnegie Commission on Science, Technology and Government recently recommended that science and technology resource centers be set up within federal and state judiciaries.
These efforts deserve support. But judges need not wait. Federal and state judges are even now permitted on their own to call neutral experts to help resolve technical disputes. They rarely do so, for fear of interfering with the adversarial system, but it is a potential antidote to frequent perversion of science by trial lawyers.
If 99 of 100 experts agree on a point, the defendant or plaintiff will surely call the one dissenter, sowing false doubt within a jury.
A recent Stanford study of 65 federal judges who had used neutral experts found all but two were pleased. A key issue is who should pay for these experts. Court funds for such purposes are insufficient. Presumably, the costs must be shared by litigants, at least in civil cases.
The difficulty in absorbing new science is exemplified by the DNA issue in the O. J. Simpson case. There is no doubt that everybody, except identical twins, has a unique genetic makeup. The forensic issue now is how accurate are the tests to determine this genetic “fingerprint.” A 1992 report by the National Academy of Sciences only complicated the matter by issuing overly conservative statistical odds on the chance of two people sharing the same DNA print, and that has muddied the matter in California courts, to the benefit of defendants. Under fire, the academy plans to revisit the issue.
Science stands poised to offer powerful new forensic tools, vastly superior to what is available now. Unfortunately, top scientists, repelled by the adversarial process, have shunned the courts, leaving the field to a handful of paid experts, some of whom are scorned as intellectual prostitutes by their peers. A larger number of competent scientists must take a bigger role in the law.
But science may not always have good or conclusive answers. For example, it will be years before the cause of the various symptoms called “Gulf War syndrome” can be validated or refuted. But government and courts must make decisions now, on the basis of the best available evidence. Law and science may never achieve full accommodation. But the public good requires lawyers and scientists to put aside historic differences and find common ground.
