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Trials and Tribulations: Science in the Law Susan Haack University of Miami School of Law, [email protected]

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Trials and Tribulations: Science in the Law Susan Haack University of Miami School of Law, Shaack@Law.Miami.Edu University of Miami Law School University of Miami School of Law Institutional Repository Articles Faculty and Deans 2003 Trials and Tribulations: Science in the Law Susan Haack University of Miami School of Law, [email protected] Follow this and additional works at: https://repository.law.miami.edu/fac_articles Part of the Evidence Commons, and the Law and Society Commons Recommended Citation Susan Haack, Trials and Tribulations: Science in the Law, Fall Daedalus 54 (2003). This Article is brought to you for free and open access by the Faculty and Deans at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. Susan Haack Trials & tribulations: science in the courts “I should like to know” [asked Mr. Chi- mining factual truth, in both criminal chely] “how a coroner is to judge of evi- and civil cases, courts very often need dence if he has not had a legal training?” to call on scientists: on toxicologists and “In my opinion,” said Lydgate, “legal tool-mark examiners, epidemiologists training only makes a man more incompe- and engineers, serologists and psychia- tent in questions that require knowledge trists, experts on pcbs and experts on of another kind. People talk about evi- paternity, experts on rape trauma syn- dence as if it could really be weighed in drome and experts on respiratory disor- scales by a blind Justice. No man can judge ders, experts on blood, on bugs, on bul- what is good evidence on any particular lets, on battered women, etc. For, as sci- subject unless he knows that subject well. ence has grown, so too has the legal A lawyer is no better than an old woman system’s dependence on scienti½c evi- at a post-mortem examination. How is he dence; it has been estimated that by 1990 to know the action of a poison? You might around 70 percent of cases in the United as well say that scanning verse will teach States involved expert testimony, most you to scan the potato crops.” of it scienti½c. Such testimony can be a powerful tool for justice; but it can also –George Eliot, Middlemarch (1872) be a powerful source of confusion–not to mention opportunities for oppor- Justice requires just laws, of course, and tunism. just administration of those laws; but it Who could have imagined, when dna also requires factual truth. And in deter- was ½rst identi½ed as the genetic materi- al half a century ago, that dna analysis Susan Haack is Cooper Senior Scholar in Arts and would by now have come to play so large Sciences, professor of philosophy, and professor of a role in the criminal justice system, and law at the University of Miami. Internationally in the public perception of the law? known for her work in philosophy of logic, episte- Even twenty years ago, forensic scien- mology, pragmatism, philosophy of science, and tists could tell only whether a blood the law of scienti½c testimony, Haack is the author sample was animal or human, male or of several books, most recently “Manifesto of a female, and, if human, of what type (the Passionate Moderate” (1998) and “Defending least common blood type being found in Science–Within Reason: Between Scientism and 3 percent, and the commonest in 43 per- Cynicism” (2003). cent, of the U.S. population). Then, in the mid-1980s, dna ‘½ngerprinting’ © 2003 by Susan Haack made vastly more accurate identi½cation 54 Dædalus Fall 2003 possible, to probabilities of the order of on the reliability of memory, perception, Science in a billion to one; and by now new tech- and eyewitness testimony, that less the courts niques have made it possible to amplify than half a century later psychological and test the tiniest samples. evidence would play a signi½cant role At ½rst, such evidence was strenuously in such landmark constitutional cases contested in court; but as its solidity, as Brown v. Board of Education (1954), or and its power to enable justice, became that by now it would have come to play unmistakable, the ‘dna wars’ gradually so large a role in the criminal justice sys- died down. By the spring of 2002, dna tem–or that it would be the focus of testing had exonerated more than a hun- seemingly endless controversy? For dred prisoners, including a signi½cant while the work of experimental psy- number on death row, and helped con- chologists on eyewitnesses, memory, vict numerous rapists and murderers. In etc., has indeed proved useful, clinical at least one instance, it both exonerated psychologists’ and psychiatrists’ diag- and convicted the same person: after noses of this syndrome and that, and es- serving nearly eleven years of a twenty- pecially their theories about the repres- ½ve-to-½fty-year sentence for rape, Kerry sion and recovery of traumatic memo- Kotler was released in 1992 when newly ries, have been the subject of heated bat- conducted dna tests established his in- tles in the courtroom, in the press, and nocence; less than three years after his in the academy. release, he was charged with another In the mid-1980s, testimony of alleg- rape, and this time convicted on the ba- edly repressed and recovered mem- sis of dna analysis identifying him as ories came to public attention in the the perpetrator. McMartin Preschool case–the longest Even so, dna evidence can present U.S. criminal trial ever (six years), and problems of its own: police of½cers and one of the most expensive (around $15 forensic technicians make mistakes– million). But in 1990 the seven defen- and have been known deliberately to fal- dants were acquitted of the ritual sexual sify or misrepresent evidence; juries may abuse that, under the influence of thera- misconstrue the signi½cance of expert pists, numerous children at the school testimony about the probability of a ran- had claimed to remember. George dom match with the defendant, or of in- Franklin spent nearly seven years in formation about the likelihood that a prison for the murder of nine-year-old sample was mishandled–and attorneys Susan Nason, convicted on his daugh- have been known to contribute to such ter’s supposed memory of the event, misunderstandings; criminals devise recovered under hypnosis twenty years devious ways to circumvent dna iden- afterward; he was released in 1996, after ti½cation–and at least one prisoner, ap- his daughter also ‘remembered’ his com- parently hoping to exploit the potential mitting two other murders, with respect for confusion, has petitioned for a dna to one of which he could be unambigu- test that, as he must have anticipated, ously ruled out. (Franklin later sued con½rmed his guilt. prosecutors and the experts who testi- And who could have imagined, when ½ed against him for wrongful prosecu- Hugo Münsterberg urged in his On the tion and violation of his civil rights.) By Witness Stand: Essays on Psychology and the late 1990s, it began to seem that crit- Crime (1908) that the law avail itself of ics such as experimental psychologist the work of experimental psychologists Elizabeth Loftus, who had maintained Dædalus Fall 2003 55 Susan all along that supposedly repressed and atric and clinical testimony, experimen- Haack on recovered ‘memories’ could be the result tal psychologist Margaret Hagen writes science of therapists’ suggestive questioning, of “charlatans and greedy frauds.” were vindicated. But recently the ‘mem- But other scientists–like Eliot’s Dr. ory wars’ have flared up all over again, Lydgate–think the real problem is, rath- this time in legal claims ½led against er, that jurors, attorneys, and judges are Catholic priests accused of sexual abuse too illiterate scienti½cally to discrimi- of children and young people. nate sound science from charlatanism. Norman Levitt, for example, comment- Why has the legal system found scien- ing in Prometheus Bedeviled (1999) on the ti½c testimony hard to handle? Ever “noisome travesty” of the O. J. Simpson since there have been scienti½c witness- trial, complains that “the basic princi- es, lawyers and legal scholars–like ples of statistical inference were opaque Eliot’s Mr. Chichely–have had their to all concerned except the witnesses doubts about them. The commonest themselves. The lawyers . , the judge, complaint has been that venal scientists the dozens of commentators . , and brought in by unscrupulous attorneys certainly the woozy public–all seemed will testify to just about anything a case utterly ignorant as to what . statistical demands. In 1858, the Supreme Court independence might mean . All the observed that “experience has shown other scienti½c issues encountered the that the opposite opinions of persons same combination of neglect and eva- professing to be experts may be ob- sion.” tained in any amount”; in 1874, John Or- There surely are venal and incompe- dronaux wrote in the American Journal of tent scienti½c witnesses, and there surely Insanity that “If Science, for a consider- are scienti½cally ignorant and credulous ation, can be induced to prove anything jurors, attorneys, and judges; but the fa- which a litigant needs in order to sustain miliar complaints gloss over many com- his side of an issue, then Science is fairly plexities. Scienti½c testimony may be open to the charge of venality and per- flawed by outright fraud, or, more often, jury, rendered the more base by the dis- by the overemphatic presentation of guise of natural truth in which she robes scanty or weak evidence; it may be solid herself.” More than a century later, in science misapplied by a poorly run labo- Galileo’s Revenge (1991), Peter Huber was ratory, or serious but highly speculative sounding a similar theme: junk science and controversial science, or sloppily –“data dredging, wishful thinking, truc- conducted scienti½c work, or pseudo- ulent dogmatism, and, now and again, scienti½c mumbo jumbo.
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