Juries and scientific expertise

The United States legal sys­tem – at least, the judi­cial process in the court­room, whether those be civil or crim­i­nal tri­als – is based fun­da­men­tally on the notion that an adver­sar­ial process is the best one for arriv­ing at the truth of the mat­ter. That is, each side presents their case in their own way, and after their back-and-forth argu­ments, a neu­tral jury deter­mines which side is closer to cor­rect. Perhaps more accu­rately stated, one side presents its case, while the other side attempts to show it hasn’t been proved – but fun­da­men­tally, it’s an oppo­si­tional process.

The main idea is that each side should take charge of their own fate, in a kind of court­room ana­log to cap­i­tal­ism and free-market indi­vid­u­al­ism, and that this self-determination is the best way to pro­duce fair­ness and truth. The judge serves merely as the umpire ensur­ing each side fol­lows the rules, which them­selves are designed to cre­ate a level play­ing field between the par­ties. The jury must decide whose facts to believe.

This presents prob­lems when the facts at issue are steeped in sci­en­tific dis­pute. In the American sys­tem (and, per­haps to a lesser extent, in all coun­tries fol­low­ing the Anglo-American legal approach), sci­ence and sci­en­tific evi­dence emerges and is inter­preted through the actions of the par­ties involved. Expert wit­nesses tes­tify for a par­tic­u­lar side, and are employed by a par­tic­u­lar side.

This also presents some prob­lems for sci­en­tific experts, who have his­tor­i­cally grounded them­selves in dis­in­ter­est­ed­ness and objec­tiv­ity. How does one keep out the influ­ence of one’s employer, either out of self-interestedness or just a lack of access to any­thing but what one’s own side provides?

While the U.S. judi­cial sys­tem has devel­oped a num­ber of meth­ods to deal with these prob­lems – from var­i­ous rules of evi­dence, to stan­dards for judg­ing sci­en­tific evi­dence from Frye to Daubert–there are still prob­lems for sci­en­tific exper­tise in the court­room. As just one exam­ple, how do you enforce rules against per­jury if an expert is tes­ti­fy­ing to a the­ory? How are lay juries – con­sist­ing of specif­i­cally of peo­ple unfa­mil­iar with the evi­dence, the case, and the facts – sup­posed to eval­u­ate and decide between com­pet­ing sci­en­tific claims?

Scientists and oth­ers have come up with a num­ber of sug­ges­tions, but all of them have involved too many changes to the process for lawyers and judges to agree on imple­ment­ing them. Appointing experts as direct advi­sors to the court, for exam­ple, inter­feres with tra­di­tional ideas of the judge as a neu­tral umpire, merely ref­er­ee­ing each side’s zeal­ous advo­cacy. (Contrast this with European meth­ods, which place approved experts in direct ser­vice to the judge, who, inci­den­tally, often gath­ers evi­dence as well as over­see­ing the trial.) Putting sci­en­tists into the jury isn’t too pop­u­lar with lawyers either – typ­i­cally, spe­cial knowl­edge dis­qual­i­fies you instead, because lawyers don’t want jurors with pre­con­ceived knowl­edge or ideas.

But at the very least, why not allow experts – jurors who are “peo­ple hav­ing ordi­nary skill in the art”–in the jury on patent tri­als? Or how about elim­i­nat­ing juries for patent tri­als entirely? (England, our common-law mother, did this already.) But the Constitution can make such dis­tinc­tions between types of cases prob­lem­atic, and in any case, lawyers and judges are invested in the cur­rent sys­tem. Questioning its fair­ness in one kind of case might lead to ques­tion­ing it in other situations.

So what to do? How can juries pos­si­bly decide between equally com­pelling and appar­ently valid sci­en­tific the­o­ries? Do we need to change the sys­tem? Or can lay juries do just fine, despite the sci­en­tific com­plex­i­ties of many cases?

Related arti­cles by Zemanta

• The Daubert Standard (socyberty.com)
• SFgate.com Chevron: Outtakes prove col­lu­sion with expert (sfgate.com)