The Role of Science in Making Good Decisions
by Mark S. Frankel , Ph.D.
Director, Program on Scientific Freedom, Responsibility and LawDirectorate for Science and Policy Programs
American Association for the Advancement of Science
June 10, 1998
Mr. Chairman, members of the Committee, my name is Mark Frankel. I head the Program on Scientific Freedom, Responsibility and Law in the Directorate for Science and Policy Programs at the American Association for the Advancement of Science  (AAAS). Founded in 1848, AAAS is the world’s largest federation of scientific and engineering societies, with nearly 300 affiliates. This year we are celebrating our 150th anniversary.
The Association supports the House Science Committee’s undertaking of a National Science Policy Study and just last month submitted a formal statement presenting its views on key issues to be addressed in the development of a new science policy. (The May 1998 statement issued by the AAAS Board of Directors is titled, A Framework for Federal Science Policy) I welcome, therefore, this opportunity to testify before you today on the role of science in informing legal and policy decisions that have substantial scientific or technical components.
These matters have long been an integral part of the AAAS mandate, which charges us with improving “the effectiveness of science in the promotion of human welfare.” The Association has in various public statements over the years advocated the incorporation of good scientific research and information into the public policy process. And we have put in place a series of programs intended to do just that. More than twenty years ago, AAAS created and has since administered the Congressional Science and Engineering Fellowship Program, which has sponsored more than 500 scientists and engineers who have worked on the staffs of more than 200 personal and committee offices in the House and Senate. Similar programs have placed science and engineering Fellows in the U.S. Department of State, the U.S. Agency for International Development, the Environmental Protection Agency, the White House Office of Science and Technology Policy, and other federal agencies. These programs have been widely recognized as making a valuable contribution to the use of science and technology by policy makers in both the legislative and executive branches of government.
Science, of course, is only one factor to be considered when making public policy. It is, however, a critical one because of its limiting or empowering effects on decisions. This holds true whether the decisions are being made in regulatory agencies, Congress, or the courts. It is the latter which is the focus of my testimony today.
Courts are increasingly faced with litigation that presents complex issues of science and technology. In an address to the February 1998 AAAS Annual Meeting, Associate Justice Stephen Breyer of the U.S. Supreme Court observed that the law “increasingly requires access to sound science….because society is becoming more dependent for its well-being on scientifically complex technology,…[T]his technology,” he went on to state, “underlies legal issues of importance to all of us.” He then proceeded to refer to several cases on the Supreme Court’s docket for the 1997-98 term that were profoundly affected by the presence of highly technical considerations. The consequences of such litigation have also grown due to the high stakes involved, often financial, but as the two right-to-die cases decided last year by the Supreme Court [Washington v. Glucksberg, 117 S. Ct. 2258 (1997); Vacco v. Quill, 117 S. Ct. 2293 (1997)] demonstrate, life and death as well.
In light of this increasingly complex litigation, questions have been raised about the ability of judges or juries to make reasoned decisions. Indeed, the Carnegie Commission on Science, Technology, and Government’s 1993 report, Science and Technology in Judicial Decision Making, referred to “widespread allegations that the judicial system is increasingly unable to manage and adjudicate science and technology…issues” (p. 11). The Commission went on to state that “If these claims go unanswered, or are not dealt with, confidence in the judiciary will be undermined as the public becomes convinced that the courts as now constituted are incapable of correctly resolving some of the most pressing legal issues of our day” (p. 11).
The primary way that we educate judges and juries on complex scientific matters is through the use of expert witnesses, almost always retained by the parties to the litigation, airing their differences in an adversarial setting. Serious reservations have been expressed about this approach, however, some by judges themselves. In a 1991 survey of federal trial judges, the Federal Judicial Center found that “Judges’ doubts regarding the credibility of testimony by the parties’ experts were common,” with one commenting that “The main issue is whether the parties’ experts are ‘real’ experts or simply ‘hired guns’” (Joe Cecil and Thomas Willging. “Court-Appointed Experts: Defining the Role of Experts Appointed Under Federal Rule of Evidence 706,” Federal Judicial Center, 1993).
This uneasiness with parties’ experts is heightened by the fact that the adversarial system, relying as it does on critical cross-examination to expose weaknesses in a witness’ testimony, is often ill suited to educating the trier of fact, whether it be judge or jury. Rather, what often occurs is that experts from the two parties are pitted against one another, with lawyers on each side trying to destroy the credibility of the other party’s witness. Such tactics are not likely to enlighten either judges or juries about the validity of a scientific methodology or of the conclusions drawn from disparate data.
Questions regarding the validity of scientific evidence and the credentials of some experts are the background to the Supreme Court’s 1993 decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. The plaintiffs in the lawsuit were two minor children and their parents who claimed that the children’s birth defects had been caused by their mothers’ prenatal use of the anti-nausea drug, Bendectin. The Federal District Court granted the defendant summary judgment, ruling that plaintiff’s evidence did not meet a standard of “general acceptance” within the scientific community. Eventually, the Supreme Court was called upon to determine the proper standard for the admissibility of expert scientific testimony in federal trials.
AAAS joined with the National Academy of Sciences in filing an amici curiae brief in the case. Our purpose in filing this brief was not to comment on the alleged teratogenicity of Bendectin, a matter on which the Association has no particular expertise. Rather, we were motivated by our strong belief that the courts would benefit from an impartial view on what constitute the best procedures, methods, and standards for the courts to use in evaluating expert testimony and evidence. We took the position that the “courts have the authority and the responsibility to exclude expert testimony that is based upon unreliable or misapplied methodologies,” and urged that the courts “accomplish this difficult task by applying the same criteria that scientists themselves regularly apply in picking and choosing the theories, explanations, and methods upon which they build their own work.”
In what has turned out to be a landmark decision, the Court ruled in Daubert that federal trial judges must act as gatekeepers in order to exclude unreliable evidence from the courtroom. The Court stressed that a trial judge must determine “whether the reasoning or methodology underlying the testimony is scientifically valid,” and will “assist the trier of fact.” In urging judges to think like scientists, the Court cited the AAAS/NAS brief to the effect that “Science is not an encyclopedic body of knowledge about the universe. Instead it represents a process for proposing and refining theoretical explanations about the world that are subject to further testing and refinement” (113, S. Ct. 2795).
In December 1997, the Supreme Court issued an opinion in another case that addressed scientific evidence, General Electric Co. v. Joiner. Although the central issue in that case was the appropriate standard of appellate review following a trial judge’s decision to exclude testimony, the Court also gave further guidance for reviewing scientific evidence. While Daubert drew a distinction between how an expert draws conclusions, that is, the methods employed, and the conclusions themselves, Joiner held that methodology and conclusions are not entirely distinct and may be considered as linked together. That is, if an expert’s conclusion is not supported by valid reasoning, it should be excluded.
While it is too soon to assess the effects of the Joiner decision, Daubert’s impact has been considerable. As of January 1998, Daubert had been cited in more than 1100 decisions, about two-thirds of which were in federal courts. A review of those cases has concluded that “Most trial judges have heeded the Supreme Court’s admonition to act as gatekeepers, and their review of admissibility is generally more detailed and in depth than in pre-Daubert cases” (Bert Black. “Post-Daubert and Joiner Caselaw: The Good, the Bad, and the Ugly,” unpublished manuscript).
To respond to the challenges posed by the heavy load of cases involving complex scientific matters, generally, and by the post Daubert/Joiner decisions, particularly, AAAS has proposed a Demonstration Project that would identify highly-qualified, impartial experts to advise and educate the courts in the scientific and technical fields involved in the decisions they must make. Daubert has asked judges to evaluate evidence for its admissibility according to criteria that scientists apply in their rigorous. review of each other’s work. Joiner has likely made this task more difficult by instructing trial judges that neither Daubert nor the Federal Rules of Evidence “requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. [that is, when the sole authority for the assertion is the fact that the expert himself said it]. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.”
In light of these challenges, it is reasonable to expect that judges will increasingly call upon court-appointed experts for assistance. Federal Judge Jack Weinstein thinks this way as well, observing in 1994 that due to the Daubert decision “Rule 706 of the Federal Rules of Evidence [which gives federal judges the authority to appoint their own experts] will be relied upon more frequently. Daubert hearings will be required, and a deeper appreciation of scientific issues by judges will be expected” (“Learning, Speaking, and Acting: What Are the Limits for Judges?” Judicature, 1994, p. 326 ). However, several of the judges interviewed for the Federal Judicial Center survey referred to earlier voiced concern with the difficulty in identifying such experts and commented on the need for greater access to candidates who are both independent and knowledgeable.
We are confident that judges will take advantage of the AAAS offer to provide a slate of candidates to serve as court-appointed experts in cases in which the court has determined that the traditional means of clarifying issues under the adversarial system are unlikely to yield the information that is necessary for a reasoned and principled resolution of the disputed issues. These experts can serve as a sounding board for the court as it considers the scientific significance of the evidence, and are well positioned to assess the degree to which proffered evidence conforms to scientific standards, whether it is based on methods generally accepted by the scientific community as valid and reliable, and whether the connection between data and conclusions is well reasoned.
The Demonstration Project, which has been developed over a period of several years under the auspices of the AAAS-American Bar Association Science and Technology Section National Conference of Lawyers and Scientists, would be implemented over a period of five years, be national in scope, and available to the federal courts. AAAS will serve as the locus of a coordinating mechanism between the courts and the scientific and engineering communities, working closely with other scientific and engineering societies, research institutions, and other resources. A project advisory board, composed of judges, attorneys from the defense and plaintiff’s bars and legal scholars, and representatives from the science and engineering communities, will oversee all aspects of the project. They will appoint several subcommittees to help project staff conduct the demonstration. A formal evaluation will be done by the Federal Judicial Center, the research and education arm of the federal judicial system. There will be two dimensions to the evaluation: one will focus on the operations of the coordinating mechanism and the other will be a qualitative assessment of how the demonstration affected the cases in which it was used.
I can provide more details about how the AAAS Demonstration Project will work following my oral testimony, if you wish. Let me simply conclude by noting that the appropriateness of court-appointed experts to assist trial judges in meeting their new responsibilities has been reinforced in both the Daubert and Joiner opinions. Justice Breyer, in a Concurring Opinion in Joiner, cited AAAS as an appropriate organization to fill this role. And in his address at the 1998 AAAS Annual Meeting, he specifically endorsed the AAAS Demonstration Project.
Mr. Chairman, thank you again for this opportunity to address an important set of issues, to review our proposal for responding to a critical aspect of those issues as they unfold in the decision-making processes of the judiciary, and to contribute to your development of a new science policy for the nation.
American Association for the Advancement of Science
Founded in 1848, AAAS is the world’s largest federation of scientific and engineering societies, with nearly 300 affiliates. AAAS counts more than 143,000 individual scientists, engineers, science educators, policy makers, journalists, and interested citizens among its members, making it the largest general scientific organization in the world. It is also the publisher of the weekly journal, SCIENCE. The objectives of the Association are to further the work of scientists, facilitate cooperation among them, foster scientific freedom and responsibility, improve the effectiveness of science in the promotion of human welfare, advance education in science, and increase the public understanding and appreciation of the importance of the methods of science in human progress.
Mark S. Frankel
Mark S. Frankel, Ph.D., has been director of the AAAS Scientific Freedom, Responsibility and Law Program since 1990 where he develops and manages the Association’s activities related to science, ethics, and law. He is staff officer to two AAAS committees-the Committee on Scientific Freedom and Responsibility and the AAAS-American Bar Association Science and Technology Section National Conference of Lawyers and Scientists. He is editor of the Program’s quarterly publication, Professional Ethics Report.
Dr. Frankel is currently directing or co-directing projects related to the ethical and policy implications of human germ-line interventions, the responsible use of animals in biomedical and behavioral research, improving patient safety and reducing errors in health care, the ethical dimensions of the Human Genome Diversity Project, the uses of anonymity on the Internet, and intellectual property and ethical standards for electronic publishing in science.
He serves on the Board of Directors of the American Medical Association’s National Patient Safety Foundation, is a Fellow of AAAS, and is on the editorial boards of several professional journals. He has authored, co-authored, or edited twelve books, including The Genetic Frontier: Ethics, Law and Policy, Good Science and Responsible Scientists: Meeting the Challenge of Fraud and Misconduct in Science, and Evaluating Science and Scientists. He co-directed a project that produced a series of five videos on Integrity in Scientific Research, which is widely used in seminars and courses on the responsible conduct of science. Prior to joining the AAAS staff in 1986, Dr. Frankel served on the faculty at Wayne State University and was director of the Center for the Study of Ethics in the Professions at the Illinois Institute of Technology in Chicago.