[NOTE: Updated on 15 November 2009 to link to videos of Prof. Schauer's presentation at the University of Buffalo's Baldy Center HT Jim Milles.]
Professor Frederick Schauer of the University of Virginia School of Law has published a revised draft version of Can Bad Science Be Good Evidence? Lie Detection, Neuroscience, and the Mistaken Conflation of Legal and Scientific Norms, forthcoming in Cornell Law Review, and will present this paper at The Baldy Center for Law & Social Policy, at the University of Buffalo Law School, on November 12, 2009. (Videos of that presentation are available here. HT Jim Milles.) Here is the abstract:
“As the capabilities of cognitive neuroscience, in particular functional magnetic resonance imaging (fMRI) ‘brain scans,’ have become more advanced, some have claimed that fMRI-based lie-detection can and should be used at trials and for other forensic purposes to determine whether witnesses and others are telling the truth. Although some neuroscientists have promoted such claims, most aggressively resist them, and arguing that the research on neuroscience-based lie-detection is deeply flawed in numerous ways. And so these neuroscientists have resisted any attempt to use such methods in litigation, insisting that poor science has no place in the law. But although the existing studies have serious problems of validity when measured by the standards of science, and [although it is] true as well that the reliability of such methods is significantly lower than their advocates claim, it is nevertheless an error to assume that the distinction between good and bad science, whether as a matter of validity or of reliability, is dispositive for law. Law is not only about putting criminals in jail, and numerous uses of evidence in various contexts in the legal system require a degree of probative value far short of proof beyond a reasonable doubt. And because legal and scientific norms, standards, and goals are different, good science may still not be good enough for some legal purposes, and, conversely, some examples of bad science my, in some contexts, still be good enough for law. Indeed, the exclusion of substandard science, when measured by scientific standards, may have the perverse effect of lowering the accuracy and rigor of legal fact-finding, because the exclusion of flawed science will only increase the importance of the even more flawed non-science that now dominates legal fact-finding. And thus the example of neuroscience-based lie detection, while timely and important in its own right, is even more valuable as a case study suggesting that Daubert v. Merrill-Dow Pharmaceuticals may have sent the legal system down a false path. By inappropriately importing scientific standards into legal decision-making with little modification, Daubert confused the goals of science with those of law, a mistake that it is not too late for the courts to correct.”
Tags: Baldy Center for Law and Social Policy, Daubert, Daubert v. Merrill-Dow Pharmaceuticals, Evidence information systems, Evidence rules, Evidence standards, Federal Rule of Evidence 702, fMRIs as legal evidence, FRE 702, Frederick Schauer, functional magnetic resonance imaging as legal evidence, Legal evidence information systems, Legal evidence rules, Legal evidence standards, Lie detection systems, MRIs as legal evidence, Neuroscientific evidence, Neuroscientific evidence and law, Polygraph systems, Rule 702, Scientific evidence, Scientific evidence and law, University of Buffalo Law School
