Scientific Truth and the Courts

As a nonscientist, I am not qualified to question The New York Times' editorial conclusion that there is no association between spermicides and birth defects (The Scientist, January 26, 1987. P. 13). But I do question its conclusion that "both law and science seek after truth."

By | March 9, 1987

As a nonscientist, I am not qualified to question The New York Times' editorial conclusion that there is no association between spermicides and birth defects (The Scientist, January 26, 1987. P. 13). But I do question its conclusion that "both law and science seek after truth." Until all those involved in the resolution of problems such as in Wells v. Ortho recognize that law does not necessarily seek truth—except in some very long-range, societal sense not relevant to the short-term needs of these kinds of cases—the socioscientific dispute-resolution process will continue to try to find scientific truth (whatever that may be at the moment) using methods which can be designed to achieve a very different objective. As a result, far too often it will continue to fail.

Our legal process seeks to make it possible for people to live together on this planet in harmony. It does so by taking into account a great number of different and sometimes conflicting concerns, of which truth is only one. Often the process actually excludes important evidence in order to achieve the desired result, which it characterizes as "justice," "fairness" or "equity"—not "truth." Whether or not the Miranda rule is modified as result of the current attack on it, all are agreed that a court may not consider even the most important evidence such as a confession if it has been obtained through police brutality or other misconduct such as entrapment. Similarly, confidential communications between a client and his attorney are privileged from disclosure in court no matter how relevant, and a statute of frauds rejects evidence not in proper written form.

For the most part, our legal process achieves its objectives quite satisfactorily. But as Wells and a burgeoning number of other cases suggest, it sometimes fails miserably when dealing with a socioscientific controversy. In such cases, society demands a result based on the best scientific truth available, not one concerned primarily with the judicial objective of affording the litigating parties their day in court.

How can we best obtain scientific truth in court? By recognizing that the adversarial legal process is not well suited to the assignment, and by using the scientific method to find truth, employing techniques to ensure that the scientific product will be as credibly received by the legal world as it is by the scientific community. For issues of sufficient societal significance, the "state of the science conference" approach will produce a scientific consensus of such persuasive character that few will attack it even in the most adversarial legal proceeding. For issues of less importance, the use of impartial scientific advisory panels, such as those selected by the National Academy of Sciences or the Environmental Protection Agency, and court-appointed scientifically qualified referees and advisers can be helpful.

Professional societies, too, can play an important role, if they recognize their obligation to do so. One New York professional society, at its own expense, assembled a "truth squad" to follow a so-called "expert" wherever he testified. Members of the squad would then testify and present the overwhelmingly contrary opinion of the expert's scientific peers. I heard this panel appear as friends of the court in the Midland Nuclear Power licensing proceeding in the 1970s. The effect on the licensing panel, the parties, and the public was immediate, apparent and dramatic in impeaching the witness.

Societies, educational institutions and courts should make it very clear in ethical standards and ad hoc advisories that an expert's obligation is to do what he is sworn to do—tell the truth, the whole truth and nothing but the truth, not to say only that which appears to be helpful to the party paying him. If he ignores this obligation, he will incur the wrath of his colleagues in addition to that of the cross-examiner.

There is much to be done, but the first step is to recognize that trying to find scientific truth by using the adversarial dispute-resolution process is like trying to put on too small a shoe—it won't fit. Important changes are needed. If they are to come, it is far more likely they will come from the scientific rather than the legal community. This is because lawyers are representatives of their clients, not principals, and try to do what they believe their clients want. It is up to the science community to act, and soon.

Policy Guideline 8 of the Chemical Industry Institute of Toxicology (CIIT) is a model of the way in which science and scientists should conduct themselves when involved in legal dispute-resolution proceedings. After providing that CIIT witnesses will not accept fees for testifying or even reimbursement for out-of-pocket expenses for travel and the like, it provides in part that "CIIT's participation in adversarial proceedings in which it is not a party, whether voluntarily or by compulsion, will be nonadversarial. It will satisfy itself that all parties have appropriate and timely access to information furnished by it to any party, or to it by any party. Its responses to requests will not vary predicated upon the adversarial position of the requesting party. It will otherwise seek to avoid adversarialism in connection with its participation, which will be limited to expert testimony on scientific matters related to its respective fields of expertise."

Scientific testimony given under such rules would do much to avoid a Wells result.

Wessel is adjunct professor of law at Georgetown University Law Center and
general counsel to several chemical industry associations. His address is
Swidler & Berlin, 1000 Thomas Jefferson St., N. W, Washington, DC 20007.

Editor's note: See also "Becoming an Expert Witness," The Scientist, February 23, 1987, pp. 14, 28.

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