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5 Areas Needing Further Study The National Academies committee also discussed two other areas needing further study: (1) differences between scientists and lawyers and (2) education and training of scientists and lawyers. Cultural Differences Science is not simply a body of knowledge; rather it is an ongoing process of proposing and refining explanations about the world that are subject to further testing. By training and temperament, scien- tists value precision and accuracy, which are gained over extended periods of time often involving the work of many. In contrast, the legal system operates with a different set of values and rules. It seeks resolution on its version of the truth, that is, pragmatic justice at a particular point in time so that "people can get on with their lives" (Frankel, 2001). The standards of evidence that apply in medical practice or scientific research are developed in a collaborative and cooperative manner. In contrast expert testimony comes into the courtroom in an adversarial setting in which each party seeks to present its strongest case. This invariably leads to conflicts among experts representing the parties. In the adversarial process scientific data generally are interpreted by expert witnesses employed by the plaintiffs or the defendants with no assurance of their scientific neutrality or the merit of their testimony (Hulka et al., 2000). Even the testimony of well-known and highly respected scientists can be distorted by other experts, by counsel or by the court. And, the expert might be 17

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DISCUSSIONS OF THE COMMITTEE ON DAUBERT STANDARDS made to feel as if he or she is on trial rather than the defendant. In fact, the adversarial system places great emphasis on discrediting the expert, thereby diverting attention away from the expert scientific opinion. As a result academic scientists have been hesitant to testify as expert witnesses because they are concerned about the potential for bias and loss of their own credibility. Many scientists believe that being used by one side or the other in litigation could impugn their scientific integrity. The committee concluded that further consideration is needed regarding the involvement, role, and responsibilities of scientists in the courtroom. Specifically: Has Daubert altered the role of scientific experts in litigation? What is the appropriate role of scientists in litigation? Has Daubert changed the boundary of expertise that a scientific expert can speak to? How has Daubert changed the relevance of qualifications? Which scientists qualify or are disqualified in Daubert hearings? Is it appropriate to require experts to testify in terms of legal standards, such as reasonable degree of certainty, that are not understood in their own disciplines? How can we provide esteem and prestige to scientists who work with and participate in the legal system? Are there models that could be used to encourage scientists to participate as experts? If experts were selected using a court-appointed process, rather than by adversaries retaining experts, would more scientists be willing to participate? If we moved to a consensus model approach, that is, convening a panel of experts to arrive at a consensus about the reliability of the evidence provided, what protocols should govern the interactions of scientists and lawyers in the courtroom? 18

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Areas Needing Further Study Education of Scientists and Lawyers The scientific and legal communities often display a mutual wariness that has interfered with the development of consistent standards and practices for identifying, reviewing, and receiving expert testimony. The courts need help from the scientific commu- nity in cases requiring analysis of highly technical data. The scientific community is obligated to assist the courts by ensuring that the best science is being used in the interest of social policy. As discussed previously, the culture and standards, as well as the terminology and knowledge base of the two professions are vastly different. Although some organizations have been working hard to provide venues in which the scientific and legal communities can meet and learn from each other, more can be done. The committee identified several questions that should be asked in going forward to ensure that scientific and technical information entered into judicial proceedings meets the highest standards and the public interest. What should students in law schools, graduate schools, and professional schools know about the law and the use of science in litigation? What types of curricula could be developed to encour- age understanding of multidisciplinary issues in law, graduate, and professional schools? What types of programs should be developed to educate scientists and lawyers about the intersection of these two disciplines in a post-Daubert environment? How can we encourage opportunities for the two communities to talk together? How can we encourage more empirical research con- ducted by both lawyers and scientists about the role of science in the courts? 19

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