1. Science and the Public
When the Public Become
Scientists: Science in the Courts

2. Science in the Courts
• Part 1: The Issue
• Part 2: Standards for Science in the Court
• Part 3: Case Studies
• Part 4: What to Do?

3. The Issue
• In a modern Democracy, there are two
significant times when the public are
asked to decide scientific issues…
• In the ballot box:
• In the jury box:

4. The Issue
A lot of emphasis has been placed on
preparing citizens to understand and
vote on scientific issues
But not as much emphasis has been
placed on preparing citizens to
decide facts in court

5. The Issue
As a result, the administration of justice in
courts has been “hit or miss”, with failures
when it comes to science
“Junk science verdicts, once rare, are now
common. Never before have so many
lawyers grown so wealthy peddling such
ambitious reports of the science of the
things that aren’t so” Peter W. Huber (1)

6. American Science Standards in
Courts of Law
The expert witness has been around since
modern court systems.
It is important to look at several of the
modern “standards” of permissible
evidence in a court of law in the U.S. to
understand the issues.

7. The Frye Rule
• Originated in 1923, in Frye v. United
States(1)
• Evidence from a blood pressure test (a
predecessor to the “lie detector” test) was
brought up in court
• After much debate, this resulted in the
Frye Rule

8. The Frye Rule
The rule stated that in order to
bring scientific evidence into
the witness stand…
It must be “generally accepted
by the scientific community”.
(1)

9. The Frye Rule
The rule stated that in order to bring
scientific evidence into the witness
stand…
It must be “generally accepted by the
scientific community”.

10. The Frye Rule
The Frye Rule was the standard for
introduction of scientific evidence into
courts for 70 years….
from 1923 to 1993 (2)
(2)

11. The Frye Rule
Not everyone agrees as to the efficacy of
the Frye Rule (2)
Some legal analysts say it always worked
Some say it never worked
Some say it worked for awhile, but then
needed to be replaced in modern society
And so it was.

12. The Daubert Rule
The Daubert Rule was established in
Daubert v. Merrell Dow Pharmaceuticals
Inc. (1)
The Daubert rule shifted from Frye’s
singular criterion “generally accepted”, to
four specific tests of adequacy (2)

13. The Daubert Rule
Test 1: “The theory or
technique has been
tested” (1,2)
Test 2: The theory has
been peer reviewed (1,2)

14. The Daubert Rule
Test 3: The potential error
rate is known, and to what
standards this rate this is
controlled
Test 4: It has been
accepted in a relevant
scientific community

15. The Joiner Rule
“The role of judge as gatekeeper was again
affirmed in the 1997 General Electric Co. v.
Joiner” decision, wherein the court stated
that the expert must also draw valid
conclusions from the data that are being
presented” (1)

16. The Kumho Rule
The Kumho Rule followed the Frye and
Daubert Rules, supplementing the latter
(1).
In Kumho Tire Co., LTD v. Carmichael, the
standard was formally found to by the U.S.
Supreme Court to apply to all expert
testimony, scientific or otherwise.

17. Specific Tests
Some specific tests of
adequacy have been
added regarding specific
science, such as DNA
In 1989, People v. Castro
the court ruled “DNA
identification theory and
practice are generally
accepted among the
scientific community”.

18. Case Studies: Charlie
Charlie Chaplin was a notorious womanizer…
And had many affairs,
admitted and unadmitted.
One of these affairs was with
one Joan Berry.(1)

19. Case Studies: Charlie
Ms. Berry turned up pregnant
in 1942, and claimed Charlie
was the father
This was before DNA testing
Chaplin admitted an affair in
March of 1942, but denied
any later affairs (1)

20. Case Studies: Charlie
Testimony revealed Ms. Berry
traveled to Tulsa, OK in
April, January, and
November in that time frame
as well, to sleep with another
man. The child did not look
particularly like Chaplin.
We will return to Chaplin
later.

21. Case Studies: Audi
Many drivers from the 1980’s may recall the
“Audi 5000” situation from 1976 to 1986
Many drivers reported acceleration, even as
auto brakes were pressed (1)

22. Case Studies: Audi
After a famous “60 Minutes” segment,
claims against the car increased (2)
Numerous lawsuits were filed for damages

23. Case Studies: Audi
The National Highway Transportation and
Safety Administration (NHTSA) released a
report in 1989 revealing what AUDI
engineers already confirmed- drivers
pressed the wrong pedals

24. Case Studies: Audi
Despite demonstrating that even at full
throttle, in a court garage, that brakes
would keep a car from moving…
Courts found for drivers, and not Audi

25. Case Studies: Audi
To cite one case of many, a jury in Norris v.
Gatts, a case where a driver accelerated
into a motorcyclist
Later the NHTSA would demonstrate the
engineers’ testimony was right all along

26. Case Studies: FC
Facilitated Communication (FC) was
introduced in 1990, and is allegedly a
method of communication with verbally
impaired children
It involved a “facilitator”
holding the hand of a
subject in a form of
“assisted typing”

27. Case Studies: FC
An example is a child with autism allegedly
typing “IM NOT RETARDED MY
MOTHER FEELS IM STUPID BECAUSE I
CANT USE MY VOICE PROPERLY” (2)
“Communications”
varied from mundane,
to profane, and
frequently included
charges of sexual
abuse

28. Case Studies: FC
FC attracted the interest of, and was
summarily rejected by, the scientific
community, and failed double blind tests
where fabricated information not known to
the child was “facilitated” (1)
Yet it appeared in
courts- a case of
courts “evading their
states test of
scientific
admissibility” (1)

29. Case Studies: FC
It was pointed out that all four Daubert rule
tests fail- there are no standards for the
test, it is rejected by the scientific
community, not peer reviewed, etc.
This has not stopped
some courts from
admitting the
evidence as a form of
“translation” (1)

30. Case Studies: FC
Under the Americans with Disabilities Act,
Auxiliary Aides and Services Section,
affirms courts are obligated to assist in
translation
This has argument has
failed in some cases
(DSS v. Mark & Laura
S.)(2), but not all
(People v. Webb) (3).

31. Case Studies: Cerebral Palsy
Even today, much is not know about the causes
of cerebral palsy, but it is one of the more
common causes of medical litigation
Cerebral palsy affects
between 2.5 to 5.9
infants out of every
1000 births, and rates
haven’t changed much
(1)

32. Case Studies: Cerebral Palsy
Even now, litigation against cerebral palsy is
common.
“Today, this line of attack
has become one of the
most spectacularly
lucrative enterprises
known to lawyers,
quite possibly the
single largest revenue
raiser in all of medical
malpractice.”(1)

33. Case Studies: Cerebral Palsy
Before Electronic Fetal Monitoring (EFM), forceps
and rough delivery were the source of blame
for many CP cases (1)
It was believed forceps
and “rough delivery”
could cause brain
damage.

34. Case Studies: Cerebral Palsy
Doctors did their best to demonstrate that CP can
happen anytime, and the scientific and medical
community provided detailed scientific evidence
that forceps were not to blame
Yet billions of dollars
worth of medical
claims were awarded
by juries despite the
evidence

35. Case Studies: Cerebral Palsy
What’s more- even as forceps were phased out,
Caeserian section deliveries rose 5%, and EFM
used in more births, CP rates remained the
same (1)
Time confirmed what
science had long been
saying

36. Case Studies: Cerebral Palsy
Yet still the lawsuits continue…
Emotional… unfortunate… and perfect for
juries ill prepared to analyze scientific
information.

37. Case Studies: Charlie
So what happened to Charlie?
The jury found for Berry, and
forced Charlie to pay the
claim against him.
Yet…

38. Case Studies: Charlie
Though there was no DNA
testing at the time, there was
blood testing, invented in
1901 (1).
Landsteiner determined the
ABO blood system in 1901.
Joan Berry was type A.
Her child was Type B…

39. Case Studies: Charlie
And Charlie was Type O- and
could not possibly have been
the father (1)
Three expert physicians
testified as such in Charlie’s
defense- to no avail.
And the ruling against him was
affirmed on appeal.

40. What to Do?
As court cases involving DNA, blood testing,
engineered objects, obstetrics, and other
science related topics become more
common…
Juries will be asked to decide cases on
scientific facts- based on large sums of
money, and even life and death.

41. What to Do?
A 2001 survey “Asking the Gatekeepers”,
asked questions of judges about what should
be permissible in court going forward. (1)
400 state level judges were
surveyed, through
proportionate, random,
stratified sampling
representative of judges
handling scientific cases

42. What to Do?
This study, Gatowski et. al. showed several
significant findings:
3. “Judges overwhelmingly support the
“gatekeeping” role as defined by Daubert,
irrespective of the admissibility standard
followed in their state.”

43. What to Do?
Gatowski et. al. “Asking the Gatekeepers
2.“Judges had the most difficulty operationalizing
falsifiability and error rate, with only 5% of the
respondents demonstrating a clear
understanding of falsifiability and only 4%
demonstrating a clear understanding of error
rate”. (1)

44. What to Do?
Gatowski et. al. “Asking the Gatekeepers
3. “Judges “bench philosophy of science”
seemed to reflect the rhetoric, rather than the
substance, of Daubert.

45. What to Do?
Gatowski et. al. “Asking the Gatekeepers
“Judges do not need to be trained to become
scientists, they need to be trained to be
critical consumers of the science that comes
before them.”

46. What to Do?
A review of literature by Ian Spechler, J.D.,
examines differential diagnosis of disease,
etiology (causes), and tort.
“In the courtroom today, unfortunately,
differential diagnosis is being used in a
manner that is more in keeping with the
principles of Malleus Malleficarum than
modern medical science”. (1)

47. What to Do?
A review of literature by Ian Spechler, J.D.,
examines differential diagnosis of disease,
etiology (causes), and tort.

48. What to Do?
Spechler draws several conclusions “Courts
should be skeptical of physicians claiming
to diagnose external causation” (1)
In short, this section of Spechler’s paper states
experts should testify, and do so narrowly
and with cause.

49. What to Do?
And what of juries?
Spechler also concludes that “Because juries
can be easily swayed by evidence offered
by experts, such as physicians with sterling
qualifications, courts should take their
gatekeeping role very seriously.” (1)

50. What to Do?
A Daubert brief?
Satiani, M.D., MBA. has sounded the call for a
“Daubert” brief- a mandatory brief to be
filed by any expert witness presenting
science information (1)

51. What to Do?
The Daubert brief is proposed to be:
“a summary of the plaintiff’s expert’s opinion
along with a resume outlining his/her
knowledge, skill, experience, traning and
education, reputation in the field relevant to
the litigation, and complete details of the
methodology employed by the expert” (1)

52. What to Do?
Satiani also proposes expert eyewitnesses be
required to:
2) Disclose information that has bearing on
the reliability of the testimony
6) An oath by witnesses acknowledging a duty
to disclose all information known to that
person having bearing on the case

53. Potential Points of Discussion
1) Are the Frye and Daubert rules adequate to
allow a judge to act as science
“gatekeeper” to keep “junk science” out of
the courtroom?

54. Potential Points of Discussion
2) What role should judges play in keeping
“junk science” out of the courts?
3) Will better science education help make
“better juries”, and if so- how?
4) Should a form of “Daubert brief” be a
required filing before trials?
5) What else can be done?

55. ”Time was when the courts could only rely on
human testimony. But modern science
brought new aids… scientific means and
instrumentalities have revised the judicial
guessing game of the past into an
institution approaching accuracy in
portraying the truth as to the actual fact… if
the courts do not utilize these
unimpeachable methods for acquiring
accurate knowledge of pertinent facts they
will neglect the employment of available,
potent agencies which serve to avoid
miscarriages of justice”.
–Justice McComb, dissenting in Berry v.
Chaplin
Has anything changed?