In the academic domain, psychologists don’t review the validity of medical causation. So why do we ask courts to perform these analyses in highly specialized fields from acoustics to zoology? According to JuriLytics LLC co-founders Amit Lakhani and David Faigman (acting chancellor and dean of UC Hastings College of the Law), litigators can now help courts with unbiased science, and in the process, better serve clients.
Blog | Frye Posts
The Defense Reseach Institute's monthly magazine For the Defense recently featured an article written by Professor David Faigman and Dr. Amit Lakhani entitled "Measuring the Expertise in Expert Opinion." The article describes that many of the risks in using expert witnesses stem from the lack of credibility when fighting the "battle of the experts." The article goes on to describe a solution whereby litigators can offer judges unbiased and neutral science to help gain an advantage using peer review.
This past summer, the Open Science Collaboration published a piece in Science detailing their efforts to reproduce key findings in articles derived from three top journals in psychology. They were able to replicate less than half of the 100 studies that were completed (roughly 40%). Justice demands certainty; now, psychology (and likely many other fields) provides even less than once was thought. Some might be tempted go as far as to dismiss science altogether as a “special” category of evidence. This reasoning belies an important fact – the vast majority of science is reproducible. Expressing surprise that new studies cannot be reproduced can be likened, in some sense, to expressing surprise that cases of first impression are sometimes overturned.
In analyzing issues of scientific integrity in the courtroom, it is important to keep in mind that almost everyone, attorneys and judges alike, agree that adversarial bias in expert testimony is the largest problem facing the system. Cross-examination of experts traditionally has been the check on this bias. However, given its zero-sum nature (i.e. both sides use it), judges and juries alike often get more confused after the dust has settled. In using neutral experts, problems abound in determining how experts are selected, what their roles are, and how parties can be effectively protected from their undue influence. Interestingly, these same issues, more or less, manifest already in science itself – and yet almost every scientific community has turned to and tuned the peer review process to inject scientific validity into the system. Now, it is time to do the same in the legal system, where to problem is further magnified by the adversarial process.
CEO David Faigman just published an article in Bloomberg BNA about the challenges litigators and courts have faced regarding scientific evidence and how peer review can alleviate those challenges. The piece first details the historical issues that have frustrated the admissibility determinations of scientific evidence. Even in the current regime in federal courts, Daubert, which obligates judges to be "amateur scientists," the analytical demands judges face are unrealistic. Peer review, however, may be the practical solution to the problems that have plagued scientific evidence under Daubert AND Frye.