Expert Panel Says Science, Technology Increasingly Intertwined with Law

Barbara Rothstein

Each week, viewers of the hit crime drama series "CSI: Crime Science Investigation" watch as Las Vegas investigators use science and technology to identify suspects, reconstruct victims' last hours, reenact crime scenes, verify witness testimony, and solve murder cases—all in less than 60 minutes.

Although some of the show's science may not reflect what actually happens in a forensic lab, a panel of top technical, legal, and judicial experts speaking at AAAS cautioned that science and technology like DNA forensics, neuroscience, and digital technologies are playing an increasing role in criminal investigations and the courtroom.

This intersection of science and law, the panel said, frequently forces judges and juries to deliver rulings and verdicts based upon highly-technical, and sometimes conflicting, expert testimony outside their area of expertise. In addition, the expert witnesses retained by attorneys may refute evidence presented by the opposing side in such a manner that it calls into question the integrity of the scientific methods used or their results.

"Science and law go hand in hand," said U.S. District Court Judge Barbara Rothstein. "But when you bring science into the courtroom, you need to make sure that both legal and scientific experts understand the important differences between their professions."

For example, although the legal system operates under a standard of "more likely than not" in a civil dispute, scientists have the burden of being able to demonstrate statistically that their results are highly unlikely to have occurred by chance. This could lead judges or lawyers to expect experts to offer an opinion that is not scientifically sound. In addition, legal cases are decided through adversarial arguments between two sides, while dialogue among scientists is not expected to produce a "winner."

Rothstein, who directs the Federal Judicial Center, the research and educational arm for the federal judiciary, said that although "science and law are the two professions on which our society is based," there is a significant disconnect between their pursuits that can complicate the use of science in the courtroom.

While law must provide a finite resolution to a conflict, Rothstein said, science "knows no time limits because experiments can be repeated and retested until the truth is gained . . . [with] no reason to rush the results."

John Facciola

Catherine With

Rothstein added that most judges are generalists and sometimes require the use of outside experts to explain complicated scientific concepts. She recalled a case several years ago in Seattle, Washington, during which she arranged for a local university professor to provide her with a 10-week crash course in genetics so she could rule on a case.

Held 30 October in the AAAS auditorium, the afternoon event featured Rothstein alongside U.S. Magistrate Judge John Facciola; Jody Westby, CEO of Global Cyber Risk; Stephen J. Morse, professor of law and professor of psychology and law in psychiatry at the University of Pennsylvania Law School and School of Medicine; and U.S. Army Judge Advocate Major Catherine With, Legal Counsel, Armed Forces Institute of Pathology. Co-sponsored by the Washington Academy of Sciences, the event explored how three areas of science and its applications—neuroscience, digital technologies, and forensic tools—are used in the courtrooms.

Mark Frankel, director of the AAAS Scientific Freedom, Responsibility and Law Program, said that scientists are often wary of lawyers because they fear their research could be misrepresented or manipulated to argue a case.

"Science is tremendously important and powerful in the courtroom," said Frankel. "Because it is so powerful, it's not only important to make sure that sound science is used, but it's critical for scientists and those in legal profession to understand science's possibilities and its limitations."

Due to the use of computers to send emails, perform research, and check account balances, Facciola urged scientists to develop digital technologies that can preserve and access the massive amount of digital information that is increasingly being presented in the courtroom. He added that most cases are front-loaded, meaning that finding and sorting relevant information can take longer than the actual trial and can be very expensive.

"If it ever costs $300,000 to find an email, the rule of law would come to an end and the courtroom would become the playground of the rich," said Facciola. "Scientists can play a key role in aiding data searches using new digital technologies."

Westby, whose firm helps companies identify and manage business risks, gave a brief history of digital forensics beginning with the FBI's Computer Endure Program in 1984. She also said that many states now require individuals testifying about computer forensics in the courtroom to obtain a private investigator license, thereby denying the judge and jury those individuals most expert in computer forensics.

Morse said that in law, neuroscience is often used by criminal defense counsel to show that their client is not responsible because the defendant suffered from a cognitive or control problem. For example, a lawyer might show images of his client's brain lesions, suggesting that they caused the defendant to commit the crime and that the defendant was not guilty. Morse challenged the applicability of neuroscience in such cases. He pointed out that causation alone is not an excusing condition.

"I don't care how many lesions the brain has if the subject is acting rationally," said Morse. "Actions always speak louder than brain images." There is no excuse unless there is a behavioral problem with cognition or control. He added that neuroscience is just the "new kid on the block" as a tool to explain why people commit crimes, joining sociology, psychology, economics, and genetics.

With, who is the Legal Counsel at the Armed Forces Institute of Pathology in Washington, D.C., said in her presentation entitled "Science and the Law: Reel to Real—The Impact of TV's CSI," that there are significant misconceptions about the capabilities of science in criminal investigations.

Calling it the "CSI Effect," With said the police on the popular crime dramas are able to quickly obtain "slam-dunk" evidence that proves the suspect's guilt. Now juries expect the same level of proof.

"Prosecuting attorneys frequently bring up the capabilities of science in forensics during jury selection to make sure that no one has unrealistic expectations about what can be proven without a doubt," she said. "Science clearly plays a vital role in law, and it's important that the legal community address it with the public, but also among themselves."

With offered a new definition of the "CSI" Effect, which she asserted is more reflective of the general public's knowledge of science, both fictionalized and real, gained from television, movies, books, as well as traditional education methods. Due to the availability of such varied perspectives of science, With said that the average member of the jury has more of a composite knowledge of science—from "reel" science to "real" science.

"With such varying understandings of what constitutes science," she said, "it is incumbent upon lawyers, judges and scientists to properly integrate science in the courtroom and present real science and put pseudo science into proper perspective."

Benjamin Somers

17 December 2008