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24 November 2015

United States: D.C. Court Considers How to Screen Out 'Bad Science' in Local Trials

D.C. court considers how to screen out ‘bad science’ in local trials
by Ann E. Marimow, The Washington Post, 
24 November 2015

District prosecutors and public defenders are asking the city’s highest court to adopt what they say is a more rigorous standard for screening out “bad science” in criminal cases.

The D.C. Court of Appeals on Tuesday will consider whether to change the rules for how judges admit expert witnesses — a courtroom procedural matter that can have major implications for criminal trials and civil product-liability lawsuits.

If the court decides to switch to the standard used in most states and in federal courtrooms, local judges would be given a more robust role in filtering the evidence juries weigh at trial.

The case before the appellate court involves the question of whether cellphones can cause brain cancer. Plaintiffs have sued cellphone manufacturers and providers in D.C. Superior Court alleging that long-term exposure to cellphone radiation causes brain tumors.

The appellate court is not deciding that specific issue, but the full court is taking the opportunity to weigh how judges decide which experts are allowed to testify.

Lawyers from D.C.’s Public Defender Service say the rules for admitting experts are particularly important in criminal cases because juries often rely heavily on scientific evidence and because unreliable forensic evidence is a leading cause of wrongful convictions.

“Innocent defendants can lose their liberty based on faulty forensic evidence,” according to the defenders’ court filing, which cites techniques such as bite-mark analysis and hair and handwriting identification.

Government lawyers from the U.S. Attorney’s Office and for the D.C. attorney general have also urged the court to adopt the federal rules to ensure that judges have the power to keep out “expert testimony that is unreliable or unhelpful.”

The guidelines for how a judge should distinguish between good and bad science have long been the subject of debate. Under the current standard used in the District, Illinois and a small number of other states, the judge determines whether a methodology or theory has gained “general acceptance” in the expert’s field. The test is known as Frye, a reference to the 1923 D.C. Circuit case.

After a landmark 1993 Supreme Court case known as Daubert, federal courts — and now the majority of states — adopted a more extensive test, making the judge the “gatekeeper” for ensuring that the scientific evidence is “not only relevant, but reliable.”

“It’s about who you trust to screen out or decide what kind of experts the jury gets to hear,” said Edward K. Cheng, a Vanderbilt Law School professor and an author of “Modern Scientific Evidence: The Law and Science of Expert Testimony.”

The appeal in the District was prompted by an August 2014 opinion by Superior Court Judge Frederick H. Weisberg. He took the unusual step of expressing his strong preference for the federal test and highlighted his awkward position in the cellphone case.

One the one hand, Weisberg said, there is not enough evidence for any scientist to conclude with certainty that cellphones cause brain cancer. On the other, because of the District’s current standards for admitting evidence, Weisberg said he would permit the testimony of five experts who would say in effect that cellphones are more likely than not to cause or promote certain brain tumors.

But Weisberg also noted that in a federal courtroom, that testimony was unlikely to be aired.

The experts he admitted under the current D.C. standard, he noted, “would almost certainly be excluded” under the federal standard because the “carcinogenicity of cellphones . . . is such an unsettled science.”

Attorneys for the 13 plaintiffs and a local organization of trial lawyers have urged the court to keep the current standard. Plaintiffs’ attorneys, representing people who suffer from or have died from brain tumors, say the cellphone companies are trying to change the legal standard after the fact because they are dissatisfied with the judge’s ruling. Any change, they said in court papers, would be a “drastic departure” from current practice.

“The case for further empowering judges to exclude evidence from juries is weak and should not be indulged here,” according to the Trial Lawyers Association of Metropolitan Washington, D.C.

Ann covers legal affairs in the District and Maryland for the Washington Post. Ann previously covered state government and politics in California, New Hampshire and Maryland. She joined the Post in 2005.


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