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Hon. Barbara Jacobs Rothstein

Barbara Jacobs Rothstein, LLB, is a US District Judge for the Western District of Washington. She was recently appointed Director of the Federal Judicial Center in Washington, DC.

The British mystery writer R. Austin Freeman may have been speaking for many scientists when nearly a century ago he described the difference in the epistemology of science and law as follows (thanks to the Hon. Stephanie Domitrovich for bringing this quote to my attention):

The scientific outlook is radically different from the legal. The man of science relies on his own knowledge and observation and judgment, and disregards testimony. . . . A court of law must decide according to the evidence which is before it; and that evidence is of the nature of sworn testimony. If a witness is prepared to swear that black is white and no evidence to the contrary is offered, the evidence before the Court is that black is white, and the Court must decide accordingly.

The Eye of Osiris (1911)

Is this the way scientists view the courts? Such a description is far removed from the current experience of federal judges. Since the 1993 Supreme Court decision in Daubert v Merrell Dow Pharmaceuticals, Inc, judges have been examining the extent to which the testimony of scientific experts is supported by the methodology and reasoning of those scientists working outside the courtroom. As a result, a generation of judges who shunned courses in science and math have become skilled at assessing the weaknesses of epidemiology studies, spotting excessive extrapolation of research findings, and measuring scientific testimony against the standards of the scientific profession. Observers may differ over whether their strengthened skills are adequate, and they still have much to learn. But today a witness who swears that black is white gets a quick boot out the courthouse door. As a result, the quality of scientific testimony and the foundation of the courts’ decisions have greatly improved.

But even after Daubert, scientists might still agree that the law endorses a somewhat peculiar form of knowledge. In almost all cases scientific testimony is presented by experts chosen by the parties based on the extent to which their arguments further the party’s interests. Expert testimony is revealed in response to questions by attorneys who may not wish to explore the limitations of the testimony. Truth is thought to emerge from the opportunity for cross-examination by the opposing attorney, sometimes a bruising and confusing process. Most importantly, the courts must answer scientific questions and resolve disputes based on the current state of knowledge. Unlike scientists, judges cannot suspend judgment until research studies have addressed their sources of doubt.

I have found this last issue—the timing of the decision—to be the most distinctive difference between the demands of science and the demands of law. Once, when I pressed an expert witness to indicate whether a vaccine had caused an injury, he replied, "Judge, can you ask me in ten years when the research is complete?" "No," I responded. "See that man sitting with his attorney? He needs an answer now." Perhaps the answer will change in ten years, but cases demand immediate answers even when the science may be incomplete.

The Coronado Conference brought scientists and judges together to consider these and other tensions that arise when science is introduced in courts. The results were beneficial to all, with judges gaining a deeper understanding of the difficult issues that must be overcome before scientists are willing to declare a causal relationship between two events, and scientists learning more about the constraints judges face in invoking scientific knowledge when resolving disputes. Scientists may still shake their heads in dismay when judges attempt to engage in scientific discourse, and judges may still wonder why it is so hard for scientists to answer a straightforward question. But the two professions are much closer today than ever before.

This Article Extract Full Text (PDF) Submit a response View Shopping Cart Alert me when this article is cited Alert me when eLetters are posted Alert me if a correction is posted Services Similar articles in this journal Alert me to new issues of the journal Download to citation manager Citing Articles Citing Articles via Google Scholar Google Scholar Articles by Rothstein, B. J. Search for Related Content PubMed Articles by Rothstein, B. J.