Evidence IN and Evidence OF science

1. Evidence IN and Evidence OF science 1. Boyle’s literary technologies (description, modesty, iconography, vitrual witnessing, etc. etc.) 2. standards for achieving status as a science or as a scientist or as a scientific method 3. what do/should non-scientists think about scientific evidence? what distinguishes science from pseudoscience? what is the evidence (broadly speaking) of “scientific integrity”?

2. Evidence from Science: Scientific Evidence in a Court of Law Q: why is this important? A: because of the different status of lay testimony v. expert testimony; i.e. because they can say different things in court lay testimony: restricted to personal knowledge; “that which a person knows, or claims to know, via direct employment of the person's five senses”;ex. “I know that a red car was parked in the driveway because I saw a red car parked there” expert testimony: restriction to personal knowledge is suspended

3. a qualified expert may testify to matters not within the expert's personal sensory experience, and to opinions not ultimately based on personal knowledge. may testify as experts only if they can claim scientific, technical, or other specialized knowledge that will help a jury to understand the evidence or determine a fact in issue expert testimony: considered as factlay testimony: considered as one person’s experience BUT:how to determine if someone is an “expert”?how to determine if something is “a science”?who makes that determination? who gets to speak in the name of science?

4. primary issue: demarcation (i.e. where to draw the line?) what are the stakes? • engineers' opinions on whether a product's poor design renders it needlessly unsafe - accountants' opinions on whether someone has followed prudent accounting practices - physicians' opinions on whether some particular bodily insult was the cause of someone's medical condition- economists' opinions on whether a firm possesses monopoly power- statisticians' opinions on whether a firm's employment decisions correlate closely with race or gender - forensic opinions on matches between samples of DNA, blood, hair, etc.- appraisers' estimates of the value of property AND anything having anything to do with science (environmental, pharmaceutical, medical, biological, social, ethical, etc.)

5. taking it in order: FRYE decision (1923) prosecutors tested defendant with an early lie detector test FRYE was convicted appealed saying that the test was not scientific and therefore could not be used as evidence court of appeals agreed with FRYE that the test had not yet gained “general acceptance” among the scientific community and therefore could not be used

6. to quote: “Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” attorneys had to demonstrate that the theory/method/test/science that they were relying on was “generally accepted” by a particular scientific field "general acceptance" was viewed as unduly restrictive, because it sometimes operated to bar testimony based on intellectually credible but somewhat novel scientific approaches i.e.it was conservative about what counted as “science”

7. Rule 702 of the Federal Rules of Evidence (1973) “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” - more liberal criteria than Frye- relax the traditional barriers to "opinion" testimony Daubert v. Merrell Dow Pharmaceuticals (1993)Q: Which standards apply to the admission of scientific evidence: Frye or FRE 702?

8. Background of Daubert - expectant women typically suffer from mild to extreme nausea- starting in the mid 1950’s the drug Bendectin began being marketed for nausea - Jason Daubert and Eric Schuller born with limb-reduction birth defects- they (and their parents) file suit against Merrell Dow alleging that Bendictin caused the abnormalities After extensive discovery but before trial, Merrell asked for summary judgment on the grounds that the plaintiff had not presented any admissible evidence that Bendectin causes birth defects -- a necessary element of the lawsuit.

9. Merrell’s expert says that he looked at the entire published literature on Bendectin and human birth defects (over 30 published studies involving 130,000 people) and found that none of these studies found Bendectin to be a human teratogen. Plaintiffs counter with the testimony of eight well credentialed experts, who testfied that their own animal studies, chemical structure analyses, and the unpublished "reanalysis" of previously published human statistical studies found that Bendictin COULD cause human birth defects. the court used the Frye standard and determined that plaintiffs evidence did not have "general acceptance" within the scientific community found in favor of Merrell (as did the Appeals Court)

10. on to the Supreme Court!!! Supreme Court found that FRE 702 superceded the Frye standardandordered the case back to the District Court to be tried looking deeper: what is the importance of Daubert? 1. Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. (syllabus c) i.e. judges determine what does and does not count as “science”

11. 2. Two criteria for determining expert “scientific” testimony:A. expert testimony must assist the trier of fact (goes to “fit” or relevance or evidence) B. “The subject of an expert's testimony must be "scientific . . . knowledge." The adjective "scientific" implies a grounding in the methods and procedures of science. Similarly, the word "knowledge" connotes more than subjective belief or unsupported speculation…must be derived by the scientific method ” • 3. lists factors to be considered when making this determination • whether the theories and techniques employed by the scientific expert have been tested • whether they have been subjected to peer review and publication • whether the techniques employed by the expert have a known error rate • whether they are subject to standards governing their application • whether the theories and techniques employed by the expert enjoy widespread acceptance

12. 4. presumes the neutrality of the scientific method“The inquiry envisioned by Rule 702 is, we emphasize, a flexible one. Its overarching subject is the scientific validity--and thus the evidentiary relevance and reliability--of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.” all this gets hashed out at a “Daubert hearing” in which representatives of both sides of the case sit down with a judge and present their arguments as to the evidenciary reliability and the “scien-ticity” of the evidence they want to use in trial Case Study: BrainWaveScience http://desmoinesregister.com/news/stories/c4788993/13992070.html

13. for Thursday: “Cargo Cult Science” • - what are the hallmarks of “scientific integrity”? does this sound at all familiar? • who belongs to the “cargo cult”? • what’s wrong with reflexology, ESP, para-psychology, etc.? • what are the differences between “poor science” and “good science”?

14. re: museum assignment- this should be an analysis, not a report • use concepts and statements we have encountered in class • worry less about the CONTENT of the museum and more about 1. how that content is presented2. how you the viewer are positioned by the displays3. how aspects of the museum can be seen to make certain arguments about how you should think about and/or relate to “Science” if you aren’t sure what in the world I am talking about, or if you want some helpful suggestions about how to invent this assignment:come talk to me soon!