Dædalus Journal of the American Academy of Arts & Sciences Fall 2018 Science & the Legal System Shari Seidman Diamond & Richard O. Lempert, guest editors with Sheila Jasanoff · Linda Greenhouse Jules Lobel · Huda Akil · Rebecca S. Eisenberg Robert Cook-Deegan · Jed S. Rakoff Elizabeth F. Loftus · Jennifer L. Mnookin Joseph B. Kadane · Jonathan J. Koehler Nancy Gertner · Joseph Sanders · Daniel L. Rubinfeld Joe S. Cecil · Valerie P. Hans · Michael J. Saks David Baltimore · David S. Tatel · Anne-Marie Mazza Dædalus Journal of the American Academy of Arts & Sciences “Science & the Legal System” Volume 147, Number 4; Fall 2018 Shari Seidman Diamond & Richard O. Lempert, Guest Editors Phyllis S. Bendell, Managing Editor and Director of Publications Peter Walton, Associate Editor Heather M. Struntz, Senior Editorial Associate Committee on Studies and Publications John Mark Hansen, Chair; Bonnie Bassler, Rosina Bierbaum, Marshall Carter, Gerald Early, Carol Gluck, Linda Greenhouse, John Hildebrand, Philip Khoury, Arthur Kleinman, Sara Lawrence-Lightfoot, Alan I. Leshner, Rose McDermott, Scott D. Sagan, Nancy C. Andrews (ex of½cio), Jonathan F. Fanton (ex of½cio), Diane P. Wood (ex of½cio) Inside front cover: When scientists appear in court today, they are not being prosecuted for their scientific views, but what science tells them may be ignored or, worse, faulty analyses may prove more convincing than sound science. The challenge of getting courts to recognize and accept sound sci- ence is still with us. (Top) Joseph-Nicolas Robert-Fleury, Galileo before the Holy Office, 1847, Paris, Musée du Luxembourg. (Bottom) dna sequencing gel © 2018 by Larry Mulvehill; witness testimony © 2018 by Hero Images Inc. Contents 5 Introduction Shari Seidman Diamond & Richard O. Lempert Connecting Science and Law 15 Science, Common Sense & Judicial Power in U.S. Courts Sheila Jasanoff 28 The Supreme Court & Science: A Case in Point Linda Greenhouse 41 When Law Calls, Does Science Answer? A Survey of Distinguished Scientists & Engineers Shari Seidman Diamond & Richard O. Lempert Accommodation or Collision: When Science and Law Meet 61 Law & Neuroscience: The Case of Solitary Confi nement Jules Lobel & Huda Akil 76 Universities: The Fallen Angels of Bayh-Dole? Rebecca S. Eisen berg & Robert Cook-Deegan 90 The Intractability of Inaccurate Eyewitness Identifi cation Jed S. Rakoff & Elizabeth F. Loftus 99 The Uncertain Future of Forensic Science Jennifer L. Mnookin 119 Certainty & Uncertainty in Reporting Fingerprint Evidence Joseph B. Kadane & Jonathan J. Koehler Communicating Science in Court 135 Alternatives to Traditional Adversary Methods of Presenting Scientifi c Expertise in the Legal System Nancy Gertner & Joseph Sanders 152 Scientists as Experts Serving the Court Daniel L. Rubinfeld & Joe S. Cecil 164 Improving Judge & Jury Evaluation of Scientifi c Evidence Valerie P. Hans & Michael J. Saks Continuing the Dialogue 181 Bridging the Science-Law Divide David Baltimore, David S. Tatel & Anne-Marie Mazza Dædalus Journal of the American Academy of Arts & Sciences The pavement labyrinth once in the nave of Reims Cathedral (1240), in a drawing, with ½gures of the architects, by Jacques Cellier (c. 1550–1620) Dædalus was founded in 1955 and established as a quarterly in 1958. The journal’s namesake was renowned in ancient Greece as an inventor, scientist, and unriddler of riddles. Its emblem, a maze seen from above, symbolizes the aspiration of its founders to “lift each of us above his cell in the labyrinth of learning in order that he may see the entire structure as if from above, where each separate part loses its comfortable separateness.” The American Academy of Arts & Sciences, like its journal, brings together distinguished individuals from every ½eld of human endeavor. It was char- tered in 1780 as a forum “to cultivate every art and science which may tend to advance the interest, honour, dignity, and happiness of a free, independent, and virtuous people.” Now in its third century, the Academy, with its more than ½ve thousand members, continues to provide intellectual leadership to meet the critical challenges facing our world. Dædalus Fall 2018 Subscription rates: Electronic only for non- Issued as Volume 147, Number 4 member individuals–$51; institutions–$168. Canadians add 5% gst. Print and electronic © 2018 by the American Academy for nonmember individuals–$57; institutions– of Arts & Sciences $210. Canadians add 5% gst. Outside the United Introduction States and Canada add $24 for postage and han- © 2018 by Shari Seidman Diamond dling. Prices subject to change without notice. & Richard O. Lempert Institutional subscriptions are on a volume-year The Supreme Court & Science: A Case in Point basis. All other subscriptions begin with the © 2018 by Linda Greenhouse next available issue. When Law Calls, Does Science Answer? A Survey of Distinguished Scientists & Engineers Single issues: $15 for individuals; $38 for insti- © 2018 by Shari Seidman Diamond tutions. Outside the United States and Canada, & Richard O. Lempert add $6 per issue for postage and handling. Prices Universities: The Fallen Angels of Bayh-Dole? subject to change without notice. © 2018 by Rebecca S. Eisenberg Claims for missing issues will be honored free & Robert Cook-Deegan of charge if made within three months of the The Intractability of Inaccurate Eyewitness Identification publication date of the issue. Claims may be © 2018 by Jed S. Rakoff & Elizabeth F. Loftus submitted to [email protected]. Members of The Uncertain Future of Forensic Science the American Academy please direct all ques- © 2018 by Jennifer L. Mnookin tions and claims to [email protected]. Certainty & Uncertainty in Reporting Fingerprint Evidence Advertising and mailing-list inquiries may be © 2018 by Joseph B. Kadane addressed to Marketing Department, mit Press & Jonathan J. Koehler Journals, One Rogers Street, Cambridge ma Improving Judge & Jury Evaluation of Scientific Evidence 02142-1209. Phone: 617 253 2866. Fax: 617 253 1709. © 2018 by Valerie P. Hans & Michael J. Saks Email: [email protected]. 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Phone: 617 253 2889; U.S./Canada 800 207 8354. Postmaster: Send address changes to Dædalus, Fax: 617 577 1545. Email: [email protected]. One Rogers Street, Cambridge ma 02142-1209. Periodicals postage paid at Boston ma and at The typeface is Cycles, designed by Sumner additional mailing of½ces. Stone at the Stone Type Foundry of Guinda ca. Each size of Cycles has been sep arately designed in the tradition of metal types. Introduction Shari Seidman Diamond & Richard O. Lempert Experts bedeviled the legal system long before sev- enteenth-century Salem, when the town’s good cit- izens relied on youthful accusers and witchcraft ex- perts to identify the devil’s servants in their midst. As in Salem, claims of expertise have often been ques- tioned and objections raised about the bases of expert knowledge. Expertise, then and now, did not have to be based on science; but the importance of science and the testimony of scientific experts has since me- dieval times been woven into the fabric of the English jurisprudence that Americans inherited. In cases as long ago as 1299 we find examples of courts seeking help from “scientists.” In that year, physicians and surgeons in London were called on to advise the court on the medical value of the flesh of wolves.1 In 1619, two physicians offered the opinion that a wife could shari seidman diamond, a bear a legitimate child “forty weeks and nine days” af- Fellow of the American Academy ter the death of her husband.2 Throughout this peri- since 2012, is the Howard J. Trien- od, medical authority was called on by the coroners’ ens Professor of Law and Professor of Psychology at the Northwestern courts to determine whether a death was due to sui- University Pritzker School of Law, cide or to other causes, a crucial determination be- and Research Professor at the Amer- cause suicide was a felony that entitled the Crown to ican Bar Foundation. take possession of a deceased’s estate.3 Medical testi- richard o. lempert, a Fellow mony is still the most common form of scientific ex- of the American Academy since pertise presented in court, but expert advice on legal 1993, is the Eric Stein Distinguished matters has expanded exponentially, reflecting the University Professor of Law and enormous range of scientific knowledge that mod- Sociology, emeritus, at the Univer- ern scholarship has produced.