A glimmer of hope on courtroom junk science
In a Viewpoint in February 1998, I raised the issue “what questions can jurors reasonably decide?” and suggested a way to deal with technical or scientific issues ahead of the jury trial. My hope was (and is) that genuinely settled scientific issues not be subject to competing “expert witnesses” who could only hope to confuse the jury.
A recent jury summons reminded me to see if anything had happened since. In February, the American Association for the Advancement of Science (AAAS) stepped into the breach with a project, called Court Appointed Scientific Experts (CASE), that will help federal judges obtain independent scientific and technical experts.
The federal courts have long had a way to deal with such problems. Federal judges have the authority to appoint independent experts, although judges apparently use the authority little, if at all. Their reluctance is understandably based on the difficulty of establishing who is a qualified friend-of-the-court expert in the case at hand. The AAAS project demonstrates a solution. On request from a judge, the CASE project staff attempts to identify qualified independent experts for the particular case. They enlist the aid of professional societies and institutions. In addition, a Recruitment and Screening panel of distinguished scientists and engineers makes discreet inquiries on an expert's credentials as well as his or her ability to communicate with a lay audience. An advisory committee, headed by Judge Pamela Ann Rymer of the U.S. Court of Appeals for the Ninth Circuit, has subcommittees looking into problems like conflict-of-interest screening. Subcommittees now in place include Education, Professional Standards, and Evaluation. Funding for CASE comes from the Leland Fykes Foundation and the Open Society Institute. I applaud what appears to be a worthy attempt to solve a nagging problem. The pessimist in me fears that whatever the success of CASE, nothing will be done to extend it. I hope I am wrong. And even if it goes forward, will it trickle to the state courts in my lifetime?
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