EARLIER this month, Connecticut resident Jay Black and his lawyer used an
unprecedented defence in a paternity suit filed by the mother of a
three-year-old child. Although two DNA tests identified Black as the father, he
claims infection with human papilloma virus could have altered his DNA, skewing
the test results. Gordon Carmichael, a microbiologist at the University of
Connecticut Health Center in Farmington, agreed to testify that the virus would
damage the DNA of cells it infected, and that genetic tests on these cells could
be unreliable.
鈥淭he people that do the genetic testing say it鈥檚 absolutely ridiculous,鈥� says
assistant state attorney general Wilbur Ward Dinegar, who is acting for the
child. He points out that no one has ever shown that human papilloma virus can
alter the results of paternity tests. 鈥淩ight now, it鈥檚 a pretty far-out theory.
If Dr Carmichael is right, we鈥檙e looking at a Nobel laureate.鈥� Nonetheless, the
judge admitted this testimony as evidence, and is expected to return a verdict
in August. In child cases of this type no jury is present. This particular judge
has a scientific background so Dinegar feels confident in his ability to make a
critical assessment of the evidence.
But what would happen if the judge knew nothing about science? From the birth
defects allegedly caused by the morning sickness drug Bendectin to the case of
nanny Louise Woodward, accused of killing a baby, juries have found themselves
facing two or more expert witnesses who confidently contradict each other.
Growing concern about the courts鈥� handling of science has recently led to
reforms on both sides of the Atlantic that are designed to curtail the number of
experts-for-hire and to promote the use of independent witnesses.
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One of the most contentious 鈥渏unk science鈥� problems in recent years has been
the thousands of silicone breast implant cases coming to trial in the US. Last
week, the National Academy of Sciences in Washington DC concluded that breast
implants did not cause cancer, immune disease or neurological problems. Yet
since 1984, when experts first appeared in court backing theories of a link
between implants and damage to the immune system, juries have considered the
evidence and come to exactly the opposite conclusion, awarding women millions of
dollars in damages.
Because the immunology in these cases was so complex, three judges took the
unusual step of appointing a panel of independent experts in 1996 to review the
evidence. These experts concluded last December that there was no link between
silicone and immune disease. Although federal judges have had the power to
appoint outside experts for decades, they rarely do so. Several other court
cases in recent years, especially the 1993 Supreme Court ruling on expert
testimony in the Bendectin case, have established that US judges have a
responsibility to keep dubious science out of the courtroom.
Now the American Association for the Advancement of Science in Washington DC
has announced that, for the next five years, it will provide federal judges with
neutral experts. 鈥淥ur expert comes in without any allegiance to a particular
side,鈥� says project leader Mark Frankel, who believes fringe testimony by
partisan scientists 鈥済ives a bad name to all of science鈥�.
English judges may also be rejecting the adversarial system when it comes to
scientific testimony. On 26 April, new procedural rules governing all civil
litigation in England and Wales came into force, after an inquiry by Lord Woolf
concluded that the old system was too slow and costly. 鈥淥ne of the things that
can happen, and may happen far more, is the appointment of court experts [by the
judge],鈥� says Chris Hughes of the British Medical Association.
In the past, the plaintiff and defendant had to find their own expert
witnesses, explains Matt Kelly, a specialist in personal injury law from the
General Council of the Bar in London. Now all expert witnesses will be obliged
to explain the reasoning behind their opinions and highlight prominent issues
where scientists disagree. Judges can restrict the number of experts who
are called, or insist that both parties agree on one shared expert. Janine
Collins, with the Medical Defence Union in London, says that the new rules
should 鈥渆liminate those experts who have given opinions for one side over the
other鈥�. Many lawyers and scientists welcome the prospect of a shift away from
experts who serve opposing parties.
No axe to grind
鈥淪cientific testimony has become a recognised issue that judges have to deal
with,鈥� says Peter Huber, whose 1991 book Galileo鈥檚 Revenge: Junk Science in
the Courtroom sharpened the debate about science in the courts. 鈥淎 judge
with no axe to grind can go out and choose a name and is much more likely to get
neutral feedback. The mere threat of a judge appointing an expert gives a big
impetus towards settlement.鈥�
Those who support reform believe juries should be protected from 鈥渏unk
science鈥� because it鈥檚 easy for expert witnesses to pull the wool over the eyes
of scientifically illiterate jurors. Not everyone agrees. Neil Vidmar of Duke
University in Durham, North Carolina, is a leading researcher on jury behaviour.
鈥淭here is a body of evidence rejecting these claims about juries,鈥� he says. His
studies show that more often than not, independent doctors and judges agree with
juries鈥� verdicts when it comes to malpractice cases.
Some critics say, however, that a fundamental cultural clash will always make
the courts dissatisfied with scientists and vice versa. 快猫短视频s like to
reserve judgment until other studies confirm their findings, while juries and
judges are required to pass judgment based on the available information.
Sometimes the science central to a case is genuinely in dispute: well-qualified
experts looking at the same data can reach different conclusions. In those
cases, critics argue, turning to an independent expert might potentially usurp
the jury or judge鈥檚 fact-finding role in the courtroom. Studies with mock juries
suggest juries find court-appointed experts highly convincing and tend to go
along with their views.
鈥淭here is experimental evidence that neutral experts鈥� opinions are taken very
seriously by the jury,鈥� says Joseph Saunders at the University of Houston Law
Center. Vidmar agrees that 鈥渢he neutral expert is likely to have more weight
than an individual from the adversary system鈥�.
Carlton Carl, who is spokesperson for the Association of Trial Lawyers of
America in Washington DC, believes that juries should be especially wary of
experts who purport to be neutral. 鈥淓xperts, by their very nature, have biases.鈥�
His association opposes the appointment of outside experts, and believes 鈥渏uries
are intelligent enough to receive information from both sides and make an
informed decision鈥�.
Though courts might welcome greater involvement of neutral scientists, no one
knows whether scientists will be prepared to leave their labs for the courtroom.
Finding neutral experts for the breast implant panel proved a time-consuming
task. 鈥淭hese experts did not want to participate,鈥� says Vidmar. Unfortunately,
those scientists who are least willing to spare time from their cutting-edge
research are the ones whose opinions would be most valued by the court.
Frankel is betting that the AAAS will be able to find scientists who are
prepared to heed the call. 鈥淲e see this as a public service that gives them an
opportunity to serve the court, not one side or the other,鈥� Frankel says. 鈥淭hese
are critical policy decisions that affect our lives. We鈥檙e interested in getting
good science into the decision-making process.鈥�