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5
Areas Needing
Further Study
The National Academies committee also discussed two other areas
needing further study: (1) differences between scientists and
lawyers and (2) education and training of scientists and lawyers.
Cultural Differences
Science is not simply a body of knowledge; rather it is an ongoing
process of proposing and refining explanations about the world that
are subject to further testing. By training and temperament, scien-
tists value precision and accuracy, which are gained over extended
periods of time often involving the work of many. In contrast, the
legal system operates with a different set of values and rules. It
seeks resolution on its version of the truth, that is, pragmatic justice
at a particular point in time so that "people can get on with their
lives" (Frankel, 2001).
The standards of evidence that apply in medical practice or
scientific research are developed in a collaborative and cooperative
manner. In contrast expert testimony comes into the courtroom in
an adversarial setting in which each party seeks to present its
strongest case. This invariably leads to conflicts among experts
representing the parties.
In the adversarial process scientific data generally are
interpreted by expert witnesses employed by the plaintiffs or the
defendants with no assurance of their scientific neutrality or the
merit of their testimony (Hulka et al., 2000). Even the testimony of
well-known and highly respected scientists can be distorted by
other experts, by counsel or by the court. And, the expert might be
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DISCUSSIONS OF THE COMMITTEE ON DAUBERT STANDARDS
made to feel as if he or she is on trial rather than the defendant. In
fact, the adversarial system places great emphasis on discrediting
the expert, thereby diverting attention away from the expert
scientific opinion. As a result academic scientists have been hesitant
to testify as expert witnesses because they are concerned about the
potential for bias and loss of their own credibility. Many scientists
believe that being used by one side or the other in litigation could
impugn their scientific integrity.
The committee concluded that further consideration is
needed regarding the involvement, role, and responsibilities of
scientists in the courtroom. Specifically:
· Has Daubert altered the role of scientific experts in
litigation? What is the appropriate role of scientists in
litigation?
· Has Daubert changed the boundary of expertise that a
scientific expert can speak to? How has Daubert changed
the relevance of qualifications? Which scientists qualify
or are disqualified in Daubert hearings?
· Is it appropriate to require experts to testify in terms of
legal standards, such as reasonable degree of certainty,
that are not understood in their own disciplines?
· How can we provide esteem and prestige to scientists
who work with and participate in the legal system? Are
there models that could be used to encourage scientists
to participate as experts?
· If experts were selected using a court-appointed process,
rather than by adversaries retaining experts, would more
scientists be willing to participate?
· If we moved to a consensus model approach, that is,
convening a panel of experts to arrive at a consensus
about the reliability of the evidence provided, what
protocols should govern the interactions of scientists and
lawyers in the courtroom?
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Areas Needing Further Study
Education of Scientists and Lawyers
The scientific and legal communities often display a mutual
wariness that has interfered with the development of consistent
standards and practices for identifying, reviewing, and receiving
expert testimony. The courts need help from the scientific commu-
nity in cases requiring analysis of highly technical data. The
scientific community is obligated to assist the courts by ensuring
that the best science is being used in the interest of social policy. As
discussed previously, the culture and standards, as well as the
terminology and knowledge base of the two professions are vastly
different. Although some organizations have been working hard to
provide venues in which the scientific and legal communities can
meet and learn from each other, more can be done. The committee
identified several questions that should be asked in going forward
to ensure that scientific and technical information entered into
judicial proceedings meets the highest standards and the public
interest.
· What should students in law schools, graduate schools,
and professional schools know about the law and the use
of science in litigation?
· What types of curricula could be developed to encour-
age understanding of multidisciplinary issues in law,
graduate, and professional schools?
· What types of programs should be developed to educate
scientists and lawyers about the intersection of these
two disciplines in a post-Daubert environment?
· How can we encourage opportunities for the two
communities to talk together?
· How can we encourage more empirical research con-
ducted by both lawyers and scientists about the role of
science in the courts?
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Representative terms from entire chapter:
expert witnesses
