Introduction
At a Glance
Section titled âAt a Glanceâ| Metadata | Details |
|---|---|
| Publication Date | 2018-09-24 |
| Journal | Daedalus |
| Authors | Shari Seidman Diamond, Richard Lempert |
| Institutions | American Bar Foundation, American Academy of Arts and Sciences |
| Citations | 2 |
Abstract
Section titled âAbstractâExperts bedeviled the legal system long before seventeenth-century Salem, when the townâs good citizens relied on youthful accusers and witchcraft experts to identify the devilâs servants in their midst. As in Salem, claims of expertise have often been questioned and objections raised about the bases of expert knowledge. Expertise, then and now, did not have to be based on science; but the importance of science and the testimony of scientific experts has since medieval times been woven into the fabric of the English jurisprudence that Americans inherited. In cases as long ago as 1299 we find examples of courts seeking help from âscientists.â In that year, physicians and surgeons in London were called on to advise the court on the medical value of the flesh of wolves.1 In 1619, two physicians offered the opinion that a wife could bear a legitimate child âforty weeks and nine daysâ after the death of her husband.2 Throughout this period, medical authority was called on by the coronersâ courts to determine whether a death was due to suicide or to other causes, a crucial determination because suicide was a felony that entitled the Crown to take possession of a deceasedâs estate.3 Medical testimony is still the most common form of scientific expertise presented in court, but expert advice on legal matters has expanded exponentially, reflecting the enormous range of scientific knowledge that modern scholarship has produced.Although recognizing the need for scientific assistance, judges soon learned that sources claiming scientific expertise did not always agree. For example, in the 1781 trial of Folkes v. Chadd, the issue was whether the construction of an embankment, as opposed to natural forces, had caused the deterioration of Wells Harbor. The first trial introduced engineering testimony from a well-credentialed Fellow of the Royal Society. By the third trial in 1783, prestigious engineering experts testified on both sides and were subjected to vigorous cross-examination. The disagreement, in retrospect, was understandable: more than two hundred years later, science still cannot provide a definitive answer to the question posed in that litigation.4 Yet the legal system then as now needed to resolve the dispute between the parties, and the scientific evidence offered was the best they had to work with. As the trial system and the law of evidence developed, courts and juries have continued to struggle to make use of the conflicting expert advice they receive. Judges and juries, lacking the scientific knowledge of experts, both face difficult challenges in understanding and applying expert scientific testimony. Not surprisingly, they occasionally get the science they are supposed to evaluate wrong, and what the legal system has accepted as sound science has not always withstood the test of time.How well factfinders do in understanding and applying science is a matter of some controversy, but it is not the only issue that arises at the interface of law and science. The two fields are in many ways culturally distinct. Good science often involves the withholding of judgment until more evidence has accumulated. The law requires that decisions be reached upon the conclusion of trials regardless of gaps in the available evidence. Science seeks empirical truths regardless of their implications, and scientists ideally share in a common truth-seeking mission. Litigants aim at persuading a judge or jury to favor their side regardless of where the truth lies; harsh questioning and emotional appeals are not out of bounds if they serve that end, even when it is scientists being questioned. Often in modern litigation, the law must be informed by scientific evidence as communicated by the views of the scientists who present it. These are typically experts chosen and paid by parties because, regardless of the lawâs needs, scientists, with rare exceptions, cannot be forced to contribute what they know. Science is in principle always open to revision as additional evidence accumulates. The law can be slow to change and its treatment of science may be determined by precedent, even when a scientific consensus recognizes that the science that supported the precedent is no longer regarded as sound.The essays in this volume deal with tensions and areas of overlapping interest at the interface of science and the legal system. Many of the essays are written by scientist-lawyer teams. This is no accident; in selecting authors we tried wherever possible to match across disciplines to highlight and bridge potential gaps in perspectives. In some cases, we selected single authors who themselves are both scientists and legal scholars. Our goal was to avoid the silo mentality that too often creates obstacles to useful discourse between science and law.The essays in this issue are divided into three sections. The essays in the first section examine the science-law interface by focusing attention on two sets of key players: the judges who determine what scientific evidence will be considered by the legal system, and the scientists and engineers with the expertise to provide that assistance. The authors of the first two essays have closely studied the history, discourse, and decision-making of U.S. courts when they are called on to deal with scientific evidence as gatekeepers and decision makers. The third essay provides a perspective from the other side of the law-science divide. It presents the first published survey results from a sample of distinguished scientific and engineering experts who were asked about their views of the legal system and about their participation in it (or not).The five essays in the second section provide insights into the interactions between scientific expertise and the legal system by focusing on specific fields: neuroscience, patents, eyewitness identification, forensic evidence as a whole, and fingerprint evidence in particular. Each of these contributions highlights what science can offer, but also analyzes the obstacles that arise in obtaining and evaluating scientific advice in a legal context.The authors in the third section tackle the difficult procedural challenges posed by the interaction between scientific experts and legal factfinders. These three essays consider modest and not-so-modest changes to the traditional conduct of American legal proceedings that might improve both the presentation and evaluation of scientific evidence.The issue closes with a look at the continuing dialogue between members of the scientific and legal communities.Now for a closer look.In the volumeâs opening essay, Sheila Jasanoff addresses an issue fundamental to any discussion of science and the law: what determines the reception given ostensibly scientific claims when they enter the legal system and are reinterpreted in a legal context? Jasanoff argues that judicial common sense, rooted in judgesâ cultural understandings, forms the lens through which scientific claims are assessed by courts. She makes a powerful case for her view of how judicial authority and judgesâ commonsense understandings of the import and validity of scientific claims provide the standards that effectively determine how scientific evidence is perceived and used by courts. Her perspective cautions against analyses that too frequently begin and end with Daubert v. Merrell Dow Pharmaceuticals, the Supreme Court case that firmly established the judgeâs role as gatekeeper when courts are offered scientific evidence. She uses an extensive analysis of Kumho Tire Co. v. Carmichael, a case that made it clear that Daubert extended to engineering and technical experts to show how the standards for admitting scientific evidence, which the Daubert court tried to draw from their understanding of how scientific truths are established, are easily submerged by judgesâ commonsense perspectives on what methods and theories make for sound scientific or technical conclusions. Her analyses of later cases highlight limits on the guidance that Daubert can give, for science may background some legal questions but be unable to answer them.In closing her essay, Jasanoff argues that one cannot expect judges to think like scientists when evaluating scientific evidence, but she contends that we can demand of judges who confront scientific issues more than unreflective common sense. The challenge is not to make scientists of judges but rather to reflect on how judges should go about thinking about science and to find ways of encouraging judges to appreciate what science can tell them and see beyond their own common sense. Although Jasanoff does not say it, the task becomes more difficult as ideology affects judgments.Linda Greenhouse, closely scrutinizing how members of the U.S. Supreme Court have responded to scientific evidence, provides a detailed study of the ways that law and medical science have intertwined in the jurisprudence surrounding abortion, beginning with Roe v. Wade. Greenhouse tells us that the case law began with a focus more on protecting medical doctors in their exercise of professional judgment from the threat of prosecution than on the interests that pregnant women had in choosing to terminate a pregnancy. As Greenhouse describes the case law, an elaborate dance has been occurring between science and the law, with each in turn taking steps forward and back. Which partner is moving forward depends on legal understandings of the deference courts owe legislative fact-finding and limits on this deference when the facts do not even arguably stand up to scientific scrutiny.In Whole Womanâs Health v. Hellerstedt, for example, the question was whether courts should defer to the Texas legislatureâs assertion that protecting the safety of women getting an abortion requires that doctors who perform abortions must have hospital admitting privileges (a requirement that would, in effect, close most abortion clinics). The U.S. Supreme Court rejected the legislation, which ignored the compelling medical evidence that requiring hospital privileges does nothing to protect women needing more medical attention than a clinic can provide. But the path to the Supreme Courtâs decision was rocky. The decision of the District Court that initially heard the case, finding that the facts were inconsistent with the legislative claim, was reversed by the Circuit Court on appeal on the respectable-in-theory but unjustified-in-context claim that federal courts should defer to legislative fact-finding on the need for health-related regulation. The Court of Appeals also refused to stay its decision pending appeal to the Supreme Court. By the time the Supreme Court eventually upheld the District Courtâs decision enjoining enforcement of the statute, in 2016, about half of Texasâs abortion providers had permanently closed their doors. Although science-based evidence eventually prevailed in this case, an important lesson from this dance between law and science is that judges vary in their openness to what science and technology can offer, with ideology sometimes motivating a failure to accept even strong scientific evidence.We, Shari Diamond and Richard Lempert, coeditors of this volume, describe the results of a survey that many Academy members participated in-our thanks! Conducted with the cooperation of the American Academy of Arts and Sciences, the survey examines the views of the legal system held by some of the nationâs most distinguished scientists and engineers, including what motivates them to participate or to refuse to participate in lawsuits when asked. We began the project with some doubt that the legal system was soliciting assistance from the kinds of scientific and engineering experts whose accomplishments have led to Academy membership-or that, perhaps, such experts were being asked but were unwilling to participate. The results showed that these concerns were unwarranted. A majority (54 percent) of respondents reported having been asked for advice, and most of those asked had agreed to participate at least once.Nonetheless, we found that the experts reported that lack of time frequently limited their participation, and that they sometimes turned down requests due to a discrepancy between their area of expertise and the scientific issues they were asked about, suggesting that greater participation might be promoted through a more effective matching system. In addition, respondents endorsed several potential changes in procedures used by the legal system that might increase their willingness to participate. Some of these potential changes are discussed in greater depth in the third section of this volume. Finally, we found an intriguing relation between participation and belief in the ability of the legal system to deal well with scientific matters, including some evidence that participation fuels higher opinions. This is a relationship that deserves further investigation.More than any other contribution to this volume, Jules Lobel and Huda Akilâs essay on law and neuroscience is positioned on an active and changing border between law and science. Courts are increasingly being asked to consider neuroscience evidence. To date, neuroscience has had the greatest impact on legal processes on the criminal side, where neuroscience evidence can reveal deficiencies in an accusedâs brain that suggest the intent behind a criminal action was in part the result of physiological abnormalities. The evidence can even have constitutional significance, as in Roper v. Simmons, the case that barred executing juveniles, influenced in part by evidence regarding the neurological development of youthful brains. Civil litigation too may be transformed by neuroscience. The civil justice system has long resisted awarding damages or other relief based on emotional pain unaccompanied by noticeable physical harm. Such suits were regarded with suspicion because of the subjective nature of claims of emotional harm and the difficulties of finding objective proof. But to the extent that neuroscience can provide imaging evidence that a claimantâs brain deviates from normal human physiology, the claim of emotional harm is objectively supported and physical harm is shown to be present.Much of the Lobel-Akil essay is devoted to a close look at cases arguing that long-term solitary confinement is unconstitutionally cruel and unusual. Although lawyers opposing extended solitary confinement have few if any scientifically rigorous studies of people to draw on, considerable animal research and a body of neuroscience theory supports the claim that peopleâs brains undergo seriously harmful and likely permanent changes when they are denied social contact and environmental stimulation over long periods of time. To the extent this new research moves the dial on the practice and legality of long-term solitary confinement, it will also tell us something about the law. Most people, judges included, do not need neuroscience to convince them of the horror of isolating people in small confined spaces with almost no social contact for years on end. Yet the law may need scientific evidence in support of what almost everyone knows before it will discard the fiction that solitary confinement differs simply in degree, rather than in kind, from the normal deprivations that anyone imprisoned suffers. This may be one area in which scientific evidence can resolve differences between conflicting common-sense beliefs.Rebecca Eisenberg and Robert Cook-Deegan write about an area in which science and the law are intertwined to the point where they cannot be untangled: the U.S. patent system. The authors focus their attention on the Bayh-Dole Act, which changed prior law by not only allowing but also encouraging organizations that develop patentable inventions through research funded by federal agencies to acquire proprietary rights to these inventions. The goal was to promote the commercialization of the fruits of federally funded science. Universities were the most visible intended beneficiaries, and the image of universities as entities working for the common good by advancing and sharing knowledge created halo effects without which Bayh-Dole might never have become law. The benefits of Bayh-Dole were, however, later extended from non-profits and small businesses to large corporations by a low visibility amendment.Eisenberg and Cook-Deegan document the effects of Bayh-Dole by focusing on how universities responded to their new rights in light of the income streams these rights enabled. In many cases, it appears, monetary concerns dwarfed whatever perceived commitment to the common good universities benefited from when the case was made for Bayh-Dole and in their later patent-related legislative lobbying. In a number of instances, universities claimed patent rights to stifle or extract profits from commercial activities that seemingly would have occurred without a universityâs patentable contributions. Indeed, some universities have gone further, on occasion selling their rights to patent trolls who make their money by threatening to disrupt or prevent commercialization. Senators Bayh and Dole would, one suspects, not be pleased by some university actions their law has enabled.Eyewitness testimony, the subject of Judge Jed Rakoff and Elizabeth Loftusâs essay, is the single most common factor contributing to wrongful convictions for serious crimes. Rakoff and Loftus briefly discuss why eyewitness testimony is such powerful evidence before reviewing what we know about the causes of eyewitness then that have been made to increase eyewitness and to help factfinders the and of eyewitness testimony in essay not only ways in which the social have been used to identify in eyewitness testimony and ways to but also ways in which this knowledge has led to procedural to increase the of eyewitness testimony and the ability of to evaluate key made by the authors is the between system and (or The has to do with the eyewitness are how are for of this are and in many scientific have led to procedural posed by the by in human and more difficult The best we may be to Rakoff and Loftus is to judges and on that, if make eyewitness that they can do a of an in in an of the of forensic science effectively with the forensic she highlights issues that are now both the forensic science and the of forensic science and of has been an important and in these as they to and one can see Her are not are they rather they both deficiencies in forensic science and ways of and being including by forensic science to improve the and of the forensic science evidence they supports her claim that one may see the of the forensic as a half or half by to a of cases that in the of and of each In the of a in which evidence a the and the who presented the evidence agreed that the was with the expert even testimony with evidence, the judge the and the In the case, the trial judge refused to even a to determine if the evidence offered by the prosecution was to be precedent that it. The two cases may be but the of evidence are well that if it is regarded as to be judicial against other frequently offered forensic science evidence would no matter how the scientific however, that further is and between research scientists and in the legal system as the best for to forensic science effectively of to factfinders is crucial to and present results from an that whether the that fingerprint use to their the that of possible find that the two most scientifically ways of on fingerprint of which claims that two have the of when to other ways that might that two an is to say that she two respondents are not to differences in the used to that study is important an study a written and but it is a first in other areas where social science have legal such as the eyewitness discussed in the essay, began with small by more elaborate studies in the and in the and are intriguing that they should research to what they have both scientists and the legal system to in on ways that for can improve and begin their essay by suggesting that two of judicial and are not an objective in the of the and research suggesting that, with the American of litigation, people see decisions that them as when they have had an to provide to the decision and to have their on the other is by some as likely to increase when an expert judge closely proceedings and are not with scientific matters are at not only does to the of experts who may not be of the best available expert but as a can expert and the experts their even when they think they are being out the potential between and and the research to it, and at more of scientific evidence the of the American system. These the of testimony that opposing experts in to each the of in which experts before the to present and discuss their and changes in jury likely to increase the ability of to expert testimony and judge where the of the scientific evidence The authors not the potential benefits from such changes but also potential and difficulties of in the essay is a more in other we can be that some to jury are likely to improve the evaluation of expert testimony, we need more research that other those to expert and the presentation of expert and discuss the challenge that scientific evidence often for judges and difficulties in understanding which side to when the experts present conflicting scientific testimony and the in the have in their prior knowledge for one analysis to the The authors three methods the law has to help courts evaluate court experts, court and Court experts, like the experts, evaluate the evidence and may in court, subject to cross-examination. is to make their views if they which in turn that their may rather than be a to testimony. Court experts may also contribute without for example, getting the parties to on a common or on the methods to be used in their Court science serve a like a judgeâs law they the judge in evaluating the scientific evidence in the case the law by legal and in opinion a can evidence, through help with and issue for a judge to a case on scientific evidence, they can be chosen for their expertise in the of these procedures is in common and they are they also as and point potential These the they on parties and the that they may have on if the science is not Experts may be in their relationship to the parties, but they may favor or scientific methods or of and begin their essay by the fundamental that motivates several of the with the and to evaluate expert testimony knowledge of the subject matter at issue than that by the experts whose testimony they are evidence must be for by this is not for the legal system, and point to of human including the to which may be by to how is and the use of Yet the and essay is more than about the of judges and juries to deal with expert scientific evidence. point to the importance of in evaluating conflicting expert claims and to the ways in which the of trials and decision-making work to of most in the and essay is the number of studies they can that provide an empirical for procedures and that are likely to the of and judges to and evaluate the claims experts is how few of the studies have been to a body of allowing an to say with will rather than is to must and that we should take a scientific to on those that will best judges and juries to with modern scientific their closing essay, Judge and highlight the challenges posed by the of science and the law and discuss one of the most important in to bridge gaps between these the of that members of both to work on issues that are raised at their and Judge one of the most important of this the on and a new that the of the of Sciences, and In their essay, and describe the concerns that the of the and the legal that these then highlight some of the including its on and and the its of a that a look at the scientific of the forensic an a that an about the forensic both the legal and scientific have been well with experts of this has an important role to in the of the science offered to courts and the ability of courts to evaluate that of this volume, we are by the range of new and insights about the relationship between science and the legal system by the essays in this The authors do not provide to of the challenges presented by the interface between science and the legal system. The and procedural obstacles will to from to the science-law however, provide for about between science and law.