COMMENTARY: Commentary: "Putting Scientific Peer Review in the Courtroom: How an age-old technique can help courts solve their junk-science problem," by David L. Faigman, published by Scientific American on December 18, 2015. (David L. Faigman is the John F. Digardi Distinguished Professor of Law at the University of California Hastings College of the Law. He also holds an appointment at the University of California San Francisco, School of Medicine (Psychiatry). He is CEO and co-founder of JuriLytics, LLC, a company founded to bring academic peer review to expert testimony (www.jurilytics.com);
GIST: "Courts in the United States process huge quantities of scientific information. Every day, they must determine the validity of expertise ranging from acoustics to zoology, in matters ranging from civil slip-and-fall cases to criminal prosecutions that may result in prison sentences or even execution. In federal courts and in virtually all states, judges are expected to be “gatekeepers,” responsible for assessing the validity of the scientific or technical expert testimony offered by the parties. Judges are expected to distinguish the scientific wheat from the pseudoscientific chaff. Yet most judges do not have the ability to fulfill this responsibility adequately. They have little or no background in science. Indeed, many went to law school because they were straight-A students in history or sociology but had no appetite for biology or statistics. As a practical matter, judges have largely failed in carrying out their responsibilities to evaluate the science offered in their courtrooms. But the problem of gatekeeping in research was solved by scientists long ago. That solution is peer review.........The question is, how do we provide judges a mechanism by which to assess mainstream scientific opinion? Peer review works for science, but can it work for the courts? Properly done, peer review nearly always involves some level of anonymous evaluation by scientists actively engaged in similar research. If the law could access a similar system of independent evaluation to assess the methods and principles underlying expert testimony, it would produce a host of benefits. It would give courts a window into the mainstream views of the respective scientific field, and the reports of peer reviewers would provide neutral evaluations of the bases for the expert opinion. Over time, if peer review becomes an accepted—or expected—process, the party experts themselves will likely better conform their own opinions to those of the mainstream........However much peer review processes might empower attorneys, the real beneficiaries of the independent perspectives offered by mainstream scientists are the courts. Currently, the only similar mechanism available to courts are appointed experts, an expensive and controversial method. When confronted by battling experts, peer review provides judges with the independent perspective they need to evaluate conflicting opinions. In civil litigation, the relatively modest costs would be borne by the parties and their testifying experts would be given the opportunity to respond to the reviews. Admittedly, criminal cases present greater challenges, because there are fewer resources available. Nonetheless, courts and prosecutors typically have modest budgets available to support expert testimony and some of these funds could be redirected to finance peer reviews. Peer review has the potential to provide judges a sorely needed window into mainstream science. Through that window, courts are able to see the bases for expert evidence and are able to assess its level of acceptance within the scientific community. Accordingly, it is time that peer review, an age-old solution to scientific assessment, is brought to bear on the perennial problem of bringing scientific sensibilities into the law."
The entire commentary can be found at:
http://www.scientificamerican.com/article/putting-scientific-peer-review-in-the-courtroom/?WT.mc_id=SA_BS_20151218
See comment by Mike Bowers on his Blog "CSIDDS: Forensics in Focus:"..." This is a “how to do it” from Law Professor David L. Faigman at Hastings of UCBerkeley. He shows an extensive review on where the US courts are on this subject and why they are not always reliable. He has some interesting proposals on “gatekeepers” and experts’ testimony."
http://csidds.com/2015/12/19/dialogue-about-science-peer-review-in-the-courts-scientific-american-faigman/
