7
Scientific Research in the Context of the Legal System

“The cross-examination process is the tool that we utilize in the courtroom along with the advocacy of lawyers. What I think is missing from some scientific research that’s done for purposes of litigation is the opportunity for there to be a true peer review process.”

— Marsha Rabiteau

EYEWITNESS IDENTIFICATION RESEARCH

A social scientist described a notable—and rare—success story in which a psychological insight led to substantial change in the operation of the legal system—in this case, police lineup procedures. The insight grew out of eyewitness identification research that began in the 1970s. The problem was that the identification of guilty parties by eyewitnesses had great credibility in the courtroom even though the error rate of mistaken identification was high.

Psychologists attempted without success to convince the justice system of the unreliability of the technique through the 1980s and early 1990s. As long as 25 years ago, however, extensive psychological research with eyewitness identification had begun to expose the weaknesses of the technique. Psychologists found that witnesses tended to point to the person in the lineup who looked most like the perpetrator relative to the other people in the lineup—but who was not necessarily the perpetrator. They made a relative, not an absolute, judgment. Because someone in a lineup



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The Age of Expert Testimony: Science in the Courtroom - Report of a Workshop 7 Scientific Research in the Context of the Legal System “The cross-examination process is the tool that we utilize in the courtroom along with the advocacy of lawyers. What I think is missing from some scientific research that’s done for purposes of litigation is the opportunity for there to be a true peer review process.” — Marsha Rabiteau EYEWITNESS IDENTIFICATION RESEARCH A social scientist described a notable—and rare—success story in which a psychological insight led to substantial change in the operation of the legal system—in this case, police lineup procedures. The insight grew out of eyewitness identification research that began in the 1970s. The problem was that the identification of guilty parties by eyewitnesses had great credibility in the courtroom even though the error rate of mistaken identification was high. Psychologists attempted without success to convince the justice system of the unreliability of the technique through the 1980s and early 1990s. As long as 25 years ago, however, extensive psychological research with eyewitness identification had begun to expose the weaknesses of the technique. Psychologists found that witnesses tended to point to the person in the lineup who looked most like the perpetrator relative to the other people in the lineup—but who was not necessarily the perpetrator. They made a relative, not an absolute, judgment. Because someone in a lineup

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The Age of Expert Testimony: Science in the Courtroom - Report of a Workshop always looks more like the perpetrator than the other people in the lineup, witnesses tend to choose that person rather than choosing no one. By using a sequential system, in which witnesses were shown a single pic-ture at a time without knowing whether they would see any more, the accuracy rate rose significantly. Even after this finding had been established, however, the court system resisted any changes. Psychologists tried explaining it directly to the police, testifying as expert witnesses in court, and talking to the media. But general change did not begin until DNA testing arrived in the 1990s. It soon became apparent that DNA evidence had the capacity not only to convict but to exonerate those convicted mistakenly. Criminal justice researchers were able to show that 84 percent of these mistaken convic-tions were based on eyewitness evidence. In 1997, Attorney General Janet Reno, having seen this evidence, ordered the National Institute of Justice to develop the first set of national guidelines on eyewitness evidence and to include the substantial body of findings regarding eyewitness evidence produced by research psychologists. This set in motion the substantial change that has now taken place. The social scientist listed several factors that finally led to change: (1) the scientists had clear experimental evidence; (2) they had publicized that evidence in leading, peer-reviewed psychology journals; and (3) they developed their own policy recommendations based on evidence, learned which policy makers could effect change, and lobbied those policy makers for change. RESEARCH DESIGNED TO INFLUENCE COURT PROCEEDINGS The session moderator, a scientist, suggested that courts may ask several questions about research whose results are used to influence court proceedings. First, does the content of the research meet the standards for scientific evidence discussed in Daubert? Second, is the provenance of the evidence appropriate: Is the organization or the person who did the research trustworthy? In what context was it issued? The moderator went on to say that experts bringing evidence to trials may gather their information in two ways. The first is “before-the-fact” science, where the literature in the field is surveyed and presented by the expert. The second is “after-the-fact” science in which actual experiments or other research is done to answer a question in the context of particular litigation (such as the breast implant controversy). After-the-fact science has several virtues. It is relatively frugal, because the goal is clear and specific, and it is highly focused, so that the scientist can design the research to answer a specific question.

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The Age of Expert Testimony: Science in the Courtroom - Report of a Workshop DOES SPONSORSHIP OF RESEARCH CAUSE BIAS? Research that is sponsored to influence litigation, however, is regarded by the public and by segments of the research community with some cynicism. An example discussed at the workshop was the Women’s Health Professionals Study, which produced large amounts of valuable information. The study drew a firestorm of attacks in the press when the New England Journal of Medicine revealed that one of the researchers had been paid as a consultant by four legal firms representing two manufacturers of breast implants. The press also revealed that Brigham Women’s Hospital had received grants from Dow Corning to study silicone breast implants in a separate study. The publicity stimulated questions about whether sponsorship had compromised the integrity of the research. Workshop participants noted that even without evidence of bias, such controversies can pressure some research institutions to limit the funding contributions they will accept from industry, which often means that needed research is not carried out. INDUSTRY-SPONSORED RESEARCH A corporate lawyer said that industry has many incentives to main-tain high standards of objectivity in the research it sponsors. “Industrial science has a certain transparency,” she said. “Cooperation is key. Safety and good science are the friends of profit.” The consequences for industry of either under- or over-reporting data can be extremely expensive, she pointed out. Therefore a code of “Good Laboratory Practices” has been in force since 1979 for many research-intensive industries that mandates a variety of measures, including retaining raw data about product development for 10 years or for the life of any resulting product. In addition, she said, enforcing federal agencies (such as the EPA or the FDA) tend to monitor industry studies to ensure that they are designed properly to answer questions about safety and other pertinent issues. Another participant described how industry-sponsored drug tests for the Food and Drug Administration are performed. “Admitting new products is one of the most critical regulatory decisions we make as a nation,” he said, “and it’s critical to get our studies right on safety and efficacy.” Drug studies are financed by the same prescription drug companies who intend to profit from the drugs; a similar process is followed for decisions about medical devices, food additives, and animal drugs. Because the format of these double-blind, placebo-controlled studies is standardized and because the FDA is often involved in the design of the studies, the agency has built up sufficient expertise and experience to produce objective and reliable results. For example, companies are required to examine

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The Age of Expert Testimony: Science in the Courtroom - Report of a Workshop all existing studies on the topic and submit the results of those studies whether they are favorable or not. (One participant pointed out that such a sweeping approach is virtually impossible to duplicate in a judicial setting.) THE DIFFICULTY WITH TOXIC CHEMICALS One participant discussed the difficulty in finding objective information about toxic chemicals. Few organizations or individuals can afford to do independent studies of human populations exposed to low levels of the thousands of chemicals that are potentially toxic, so there is little independent information in the literature. The need to know more about such chemicals usually arises in reaction to a lawsuit in which an expert, perhaps using animal studies or workplace studies, begins to formulate opinions. In rare cases, the plaintiff may fund a study, but the litigation context of the testimony may bar the plaintiff’s expert evidence from admissibility.22 “The litigation context of the research is a factor that goes to weight,” said the participant, “but I don’t think it belongs on the admissibility scale. If it did, then the expert witness for the industry ought to be able to be excluded for the same reason.” To balance the scale, he suggested, courts should require full disclosure of all possible biases, including the studies that were performed, that were not performed, and that were performed but rejected. Under present rules, the workshop participants were told, the opposing party has no discovery rights to reveal what parts of a particular study are being reported and what parts are not being reported. STRUCTURING RESEARCH FOR LITIGATION An engineer described his own initial reluctance to serve as an expert witness and said that he had decided to testify because of the need to “get credible technical testimony into the courtroom.” He said that the cases had differed widely in subject matter and type of procedure. Even though he accepted funding from litigants for research on several specific questions, he felt that his work was impartial, his results interesting, and his testimony consequential as evidence. He did learn that scientific research 22   Companies do perform some pre-production testing on many chemicals in an effort to avoid future product liability or federal regulation. Note the current “voluntary” programs to screen 1,000 High Production Volume Chemicals that might be endocrine disrupters or otherwise threaten the health of children.

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The Age of Expert Testimony: Science in the Courtroom - Report of a Workshop standards are not always congruent with court admissibility standards, but he felt that the experience had been useful in providing important information for the courts, establishing objective technical testing on a controversial issue, and in learning more about the intersection of the legal and scientific worlds. He added that he did not consider himself to be a “hired gun” or a professional witness, having participated in just three trials and one arbi-tration in 30 years. He suggested a series of simple principles by which experts could both participate meaningfully in litigation and also main-tain their integrity: Design and perform the work on your own professional and ethical terms Publish all results in peer-reviewed journals, irrespective of the outcome Strive for equal objectivity whether working for the plaintiff or the defendant. Another participant underlined the importance of doing one’s best science for use in the courtroom. One reason is that cross-examination will tend to expose any weaknesses in methodology or conclusions. Another reason, of more general consequence, is that the effects of litigation may go beyond the finding of facts in specific cases to ultimately influence public policy. Although the criteria required for regulation are often more demanding than those required for admissibility of evidence, the public discussion of issues during litigation may prompt more extensive investigation by researchers.