Wednesday, December 28, 2005

Expert Perjury Watch (California Edition)

The Medical Board of California is investigating whether Dr. Don J. Schiller, an expert witness the Board has used in disciplinary proceedings, has lied under oath about his qualifications. From the San Diego Union-Tribune story:
In an interview Schiller said that when he testifies as an expert witness he says he was certified by the American Board of Surgery in 1977. But he doesn't volunteer that he has not renewed the certification.

"If I am ever asked if I was re-certified I say 'no,'" Schiller said.

And that's how he testified Sept. 23 in the San Diego case:

"Are you board certified, sir?" deputy attorney general Matyszewski asked, according to a transcript of the hearing.

"I was certified by the American Board of Surgery in 1977," Schiller responded before Matyszewski moved on to other questions about his professional background.

Tuesday, December 27, 2005

Latent Print Identification Scores Partial Success with Massachusetts Supreme Court

From Bob Ambrogi, we learn of the Massachusetts Supreme Court's decision in Commonwealth v. Patterson, No. SJC-09478 (Mass. Dec. 27, 2005), upholding the admissibility of evidence on latent fingerprint identification on "general acceptance" grounds, but rejecting, on the record before it, the admissibility of identifications based on "simultaneous impressions." The latter technique involves piecing together an identification from multiple latent prints, no one of which is complete enough to support a match by itself.

Thursday, December 22, 2005

Busman's Holiday

Whatever this weblog may be, it is not the state. And so we may constitutionally invite our readers to tackle the Christmas Hypothetical from Professor Nesson's 1996 evidence exam.

Wednesday, December 21, 2005

Miller & Miller on "Evidence, Medical & Legal"

We've been alerted to an article by Donald W. Miller, Jr., M.D., and Clifford G. Miller, Esq., in the Fall 2005 edition of the Journal of American Physicians and Surgeons, entitled "On Evidence, Medical and Legal." Among the authors' observations:
In practice, Daubert is vulnerable to manifold corruptions resulting in relevant reliable evidence being systematically excluded in favor of the less reliable. Daubert rules do not correct erroneous theories that have become accepted medical thinking, including theories about what evidence is reliable. Editors can subvert peer review by selecting only reviewers who will reject papers that run counter to or praise papers that support the interests of journal's advertisers or its owners. Lines of independent research contradicting conventional wisdom can systemically remain unpublished.

Such hard-to-publish research may prove that what the scientific community generally accepts as correct is, in fact, wrong. Research follows the funding, resulting in a wealth of publications favoring the funding interests. This can have a disproportionate effect on the weight of evidence, especially for epidemiologic evidence in court.

. . . .

With regard to uncommonly occurring and rare events like adverse drug reactions and vaccine-induced autism, judges need to realize that a CDR [challenge/ de-challenge/re-challenge] case report and CD [challenge/de-challenge] case series alone can prove causation to a very high standard. Courts will be informed of apposite evidence of this kind if, and only if, evidence in medicine and medical science does the informing.
Well worth reading.

Published Research? Bah, Humbug!

A reader has drawn our attention to a thought-provoking article by John P. A. Ioannidis in the November 2005 edition of PLoS Medicine, entitled "Why Most Published Research Findings Are False."

North Dakota Supreme Court Declines Invitation to Adopt Daubert

From our North Dakota correspondent Leonard Bucklin, we learn that the state's highest court issued a ruling yesterday declining to adopt Daubert by judicial decision. From the opinion:

5] [Appellant] Hernandez argues the trial court erred in permitting a licensed private investigator to testify as a handwriting expert without properly exercising the gatekeeping functions required by Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). Hernandez claims this Court must follow the Daubert and Kumho Tire decisions. Hernandez also argues the private investigator lacked the qualifications, proficiency, and scientific methodology to analyze the writing in the Spanish letter, and the court erred in allowing him to testify that Hernandez wrote the letter.

6] This Court has never explicitly adopted Daubert and Kumho Tire. See Howe v. Microsoft Corp., 2003 ND 12, ¶ 27 n.1, 656 N.W.2d 285. Contrary to Hernandez's assertion, this Court is not required to follow Daubert and Kumho Tire, which involved admissibility of expert testimony in federal courts under the federal rules of evidence. This Court has a formal process for adopting procedural rules after appropriate study and recommendation by the Joint Procedure Committee, and we decline Hernandez's invitation to adopt Daubert by judicial decision. See State v. Osier, 1997 ND 170, ¶ 5 n.1, 569 N.W.2d 441 (refusing to adopt procedural rule by opinion in litigated appeal).

See State v. Hernandez, 2005 ND 214 (Dec. 20, 2005).

More on Kitzmiller

A few scattered and frankly partisan thoughts after reading the full Kitzmiller opinion:

(1) From the beginning, "Intelligent Design" was probably on a collision course with itself. Rebuffed in their attempts to keep evolution out of classrooms on explicitly religious grounds, creationism's proponents dressed their ideas in pseudo-scientific regalia and had another go. But that strategy looks to have been doomed from the start, if only because ID is intrinsically unable to satisfy modern standards of scientific inquiry. Judge Jones's opinion devastatingly states the heart of the matter. Modern science explores testable empirical hypotheses that might potentially be falsified by observational fact. Its rejection of supernatural causation is methodologically foundational. Nothing can rescue creationism from that dilemma, once its advocates adopt the tactic of portraying creationism as science. The dilemma is radically insurmountable, so long as ID's fundamental aim is to posit intervention in natural events by some intelligent deity and to establish that hypothesis by scientific means. Even if ID were suddenly accepted in the peer-reviewed literature, and even if the National Academy of Sciences were to bestow its imprimatur, and even if natural selection were meanwhile revealed to suffer from fatal conceptual or empirical flaw, ID's claim to scientific status would founder on its refusal to accept the most basic rules of modern scientific engagement. Creationism can never accept those rules, largely because its entire point is to find ultimate causes in the will of an omnipotent deity, which by definition cannot be subject to nomological principles.

(2) Might a diluted, less theistic version of ID succeed, where ID failed? Under the existing legal tests, that seems doubtful, because whatever new flavor creationists may concoct, the doctrine's roots in fundamentalist activism will probably be impossible to hide. But creationists might have a stronger case, if they were pushing a notion with stronger intellectual bona fides (and not pushing it selectively, the way they have selectively pushed the idea that natural selection is "only a theory," without mentioning that universal gravitation, for instance, is "only a theory" too).

(3) A more modest and defensible version of ID might take either of two approaches. It might try to confine its goals to legitimately scientific ones, or it might simply drop all pretense at science. Let's consider the scientific approach first. Some of ID's legal problems arise from its proponents' refusal to cabin their intellectual ambitions. No doubt it may seem insufficient and unsatisfying, to religious fundamentalists, merely to point to alleged lacunae or failures of coherence in evolutionary theory. But scientizing their program is plainly a doomed project, at least in the public school curricula, so long as creationists remain concerned to go further and argue that divine intervention is somehow a competing scientific model (and a superior one to boot!). Consider a theory with more modest reach. It might be called the RC theory. It might explore the extent to which standard naturalistic models fail to explain Remarkable Coincidences -- felicitous constellations of important facts or regularities necessary to the stability of the universe, or of life as we know it. Could such an inquiry be formalized in scientifically rigorous form, with empirically testable hypotheses? We don't know enough to say. But if so, it might be thought a salutary way for students to explore the limitations of the modern scientific enterprise, which too often is naively presented as the best or sole arbiter of Indubitable Objective Truth. If the students were then permitted to draw their own conclusions . . . .

(4) Alternatively, creationists might abandon their improvident and self-defeating fetishization of science, allow that alternative modes of inquiry into truth are possible, and attempt to infiltrate other parts of the curriculum. Why not a Myths of Origin course? Why not Philosophy of Science? Why not the History or Sociology of Knowledge? Why not, if it comes to that, a Comparative Religions course? Well, maybe we already know why. Maybe the fundamentalist constituency sees its belief-set as the One True Way and would never accept any curriculum that acknowledges even the existence of other viewpoints. If so, then as registered members of the Democratic Party, we have some news for them: Sometimes, we're afraid, you have to take what you can get.

(5) So too for members of the Republican Party, whose posture toward science may also be on a collision course with itself. On the one hand, there is the programmatic desire, among the party elite, to govern largely through an ideology of Official Science, according to which no danger can be counted as serious unless generally recognized as such by an institutional scientific community that happens, by Remarkable Coincidence, to be increasingly dominated by the very corporate interests responsible for creating the dangers in the first place. This philosophy of governance permits critics to be pegged as fuzzy-headed alarmists who should grow up, take a science course, and abandon an insidious cultural pessimism that springs (so goes the ideology) more from ignorance and childish superstition than from the cold, hard, complicated facts. Of course, this is a primarily rhetorical strategy of governance, and one that works only so long as the rhetoric is taken at face value and the science largely ignored. But as ID proponents have already found, science is not some taxicab from which riders may necessarily disembark at will. Once its logic is embraced, consequences follow. And so, on the other hand, the elite must confront those of the rank-and-file who may have little left to them, in late capitalism, except for cherished beliefs to which scientific learning is rightly seen as a major threat. Organized capital operating within a globally competitive economy needs workers and managers who are capable of analyzing empirical reality with eyes wide open, undimmed by religious or ideological preconception. In the long run, it can't afford to train them, in high-school, to disregard whatever scientific teachings may be dismissed, by fundamentalist religiosity, as heretical. And yet that educational program is precisely what many of the rank-and-file will no doubt continue to demand, from organized capital's party of record.

Tuesday, December 20, 2005

"Intelligent Design" Rebuffed in Kitzmiller Decision

We're back in town for a break from our trial, just in time to read today's Kitzmiller ruling, in which U.S. District Judge John E. Jones III enjoins the teaching of "Intelligent Design" as a counterweight to evolution in the public schools of Dover, Pennsylvania.

Although Judge Jones's opinion nowhere mentions Daubert, it does invoke several Daubertian concepts (testability, peer review, general acceptance) in the course of concluding that ID is more a theological position than a legitimately scientific theory.

Judge Jones also uses the phrase "breathtaking inanity" to characterize the Dover school board's vote to include ID in the curriculum.

We're still reading the opinion and we may have more to say later.

Update 12/20/05: By the way, the world has been watching. Here's the lead story from Le Monde.
Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.