Title: National Conference on Science and the Law Proceedings. Series: Research Forum Author: National Institute of Justice Published: NIJ, July 2000 Subject: Criminal justice system 251 pages 630,000 bytes ------------------------------ Figures, charts, forms, and tables are not included in this ASCII plain-text file. To view this document in its entirety, download the Adobe Acrobat graphic file available from this Web site or order a print copy from NCJRS at 800-851-3420 (877-712-9279 for TTY users). ------------------------------ NATIONAL CONFERENCE ON SCIENCE AND THE LAW Proceedings San Diego, California April 15-16, 1999 Sponsored by: National Institute of Justice American Academy of Forensic Sciences American Bar Association National Center for State Courts In Collaboration With: Federal Judicial Center National Academy of Sciences July 2000 NCJ 179630 ------------------------------ Julie E. Samuels Acting Director National Institute of Justice David Boyd, Ph.D. Deputy Director National Institute of Justice Richard M. Rau, Ph.D. Project Monitor Opinions or points of view expressed in this document are those of the authors and do not necessarily reflect the official position of the U.S. Department of Justice. The National Institute of Justice is a component of the Office of Justice Programs, which also includes the Bureau of Justice Assistance, Bureau of Justice Statistics, Office of Juvenile Justice and Delinquency Prevention, and Office for Victims of Crime. ------------------------------ Preface The intersections of science and law occur from crime scene to crime lab to criminal prosecution and defense. Although detectives, forensic scientists, and attorneys may have different vocabularies and perspectives, from a cognitive perspective, they share a way of thinking that is essential to scientific knowledge. A good detective, a well-trained forensic analyst, and a seasoned attorney all exhibit "what-if" thinking. This kind of thinking in hypotheticals keeps a detective open-minded: it prevents a detective from ignoring or not collecting data that may result in exculpatory evidence. This kind of thinking in hypotheticals keeps a forensic analyst honest: it prevents an analyst from ignoring or downplaying analytical results that may be interpreted as ambiguous or exculpatory evidence. This kind of thinking in hypotheticals keeps attorneys thoroughly prepared: it prevents a prosecutor from ignoring alternative theories of the crime that will surely arise in the defense, and it keeps the defense open to raising alternative theories. Our adversarial system of justice relies on thinking in hypotheticals, examining each possibility, looking at all the angles because we expect proof beyond a reasonable doubt. We have already seen too many times what happens when "what-if" thinking breaks down. Consider what happens when a detective refuses "what if" thinking. Exculpatory evidence is not collected at the crime scene; an innocent person may be convicted. Evidence is collected in such a sloppy manner that it cannot be processed by the crime lab; a guilty person may be set free. Consider what happens when a forensic analyst refuses "what if" thinking. A crime lab technique has been accepted for the last 50 years; no one has questioned its validity or reliability because everyone just believes that it works; people may be wrongfully convicted or exculpated by a scientifically unsound technique that is presented as scientific evidence. Or consider what happens when "what if" thinking breaks down in the courtroom. Judges naively accept whatever scientists with a particular set of credentials tell them, the scientist-witness is allowed to represent both the opinions of the entire scientific discipline as well as specific opinions with regard to the case, and the expert witness industry is thriving. Currently, the criminal justice profession has several mechanisms for ensuring that "what-if" thinking does not break down. Daubert--and now Kumho--hearings can highlight serious deficiencies in traditionally accepted forensic sciences. Training for judges and lawyers can upgrade their ability to determine the value of scientific evidence and to distinguish between good investigative leads, which may result from pre- scientific techniques, and solid scientific evidence, which derives from the scientific method. Research by academics or scientific organizations such as the National Academy of Sciences can provide answers to methodological dilemmas which face any science moving from the laboratory to the crime scene. Law enforcement training can provide detectives and departments with best practices for investigation and evidence collection, such as the National Institute of Justice's recent publication on crime scene investigation. Technical working groups that are discipline based, such as the National Institute of Justice's Technical Working Group on Eyewitness Evidence, can provide checks on scientific and investigative procedures and interpretation of results. But even with such homologous ways of thinking, judicial decisions, and educational safeguards in place, science and law continue to be uneasy partners. Questions about this partnership form the basis for the following papers, from scientists, attorneys, and judges, which all address, from differing aspects, the relationship between science and law. It is hoped that by facing these questions directly we shall find answers that enable us to use science and law in the service of truth and justice. Carole E. Chaski, Ph.D. Executive Director Institute for Linguistic Evidence, Inc. Georgetown, Delaware ------------------------------ Table of Contents Preface Executive Summary Welcoming Remarks --David G. Boyd Keynote --C. Thomas Caskey Panel I. Conceptions of Science: Defining the Disconnect --Joshua Lederberg --Margaret Berger --William Gardner Panel II. Admissibility: The Judge as Gatekeeper --Sam C. Pointer, Jr. --Edward J. Imwinkelried --Myrna S. Raeder Luncheon Address --Thomas D. Pollard Panel III. "Junk" Science, Pre-Science, and Developing Science --Andre A. Moenssens --Michael J. Saks --Carole E. Chaski --James E. Starrs Panel IV. Scientific and Demonstrative Evidence: Is Seeing Believing? --Mark Garcia --Robert J. Humphreys --Samuel A. Guiberson --Ronald Reinstein Panel V. Jury's Comprehension of Scientific Evidence: A Jury of Peers? --David G. Boyd --Neil Vidmar --Lawrence M. Solan --Arthur H. Patterson --Shari Seidman Diamond Panel VI. Science, Technical Knowledge, and Skill: Who Is an "Expert"? --Vaughn R. Walker --Paul C. Giannelli --Lawrence M. Mckenna Panel VII. Expert Witnesses: Is Justice Ruined by Expertism? --Barry A.J. Fisher --Bert Black --E. Michael McCann Summary Discussion --David G. Boyd ------------------------------ Executive Summary The National Conference on Science and the Law brought together scientists, jurists, lawyers, and academics to foster understanding of science among legal professionals and of the legal system among scientists. The conference, held April 15-16, 1999 in San Diego, California, provided a forum to examine issues of concern to legal professionals and scientists and to improve communication between the two groups. The meeting was sponsored by the National Institute of Justice, the American Academy of Forensic Sciences, the American Bar Association, and the National Center for State Courts, in collaboration with the Federal Judicial Center and the National Academy of Sciences. Conference speakers explored how conceptions of science work in a judicial environment; the role of judges as gatekeepers for scientific evidence; how to distinguish between junk science, prescience, and science that's currently under development; using technology in the courtroom; juries and how they relate to scientific evidence; and how experts are defined and the effect they have, especially in the scientific arena, as providers of evidence in court. This summary provides a few highlights of the conference. Transcripts of the proceedings following the summary. Participants discussed the perceived "disconnect" between science and the law, problems that can arise when the two converge in the courtroom, and ways to promote greater understanding and appreciation of what both disciplines seek to achieve. One speaker explained that one of the major conflicts between law and science is that "lawyers would like to see science, when it is used in the courtroom, if not infallible, at least mostly accurate, mostly immutable, and certain. That is the very factor that, in the legal mind, makes the evidence also 'reliable.'" "In the scientific community, by contrast, knowledge is forever changing," he continued. "It is adapting; it is sometimes reversing direction, and thereby also advancing. In the process of advancing scientific knowledge, science may also be correcting erroneous conclusions of the past, despite the fact that these now out-of-date conclusions may already have become embedded in our case law as legal principles that are due great deference, if not controlling effect. It's very hard for courts to abandon holdings, rules based on scientific tests--whatever 'scientific' may have meant to a particular judge--that were adopted many years ago, in many jurisdictions, and by some eminent jurists." Another speaker said that the "source of the disconnect between science and criminal law is that we have not made a sufficient effort as a society to develop rigorously evaluated forensic methods." He said that while there are differences between science and the law, they are not "unbridgeable." "There is important conceptual work to be done to construct these bridges," he said. "But what really needs to be done to connect the fields is empirical research to develop reliable forensic procedures." Another speaker said he does not see the "clash" between science and law that other conference participants mentioned, and that the criminal justice system should use science more. He said that if the overall quality of expert testimony in criminal cases is to be improved, the focus should be on crime laboratories and ensuring that the laboratories are fully funded and provided with the resources to be run as scientific laboratories. He also said he favors scientific evidence because of problems with other types of evidence such as eyewitness identifications and confessions. One speaker suggested that a national forensic commission or board be created that could mandate policies and procedures for forensic practitioners. He added that judges and lawyers also have a responsibility to improve their level of science and technical knowledge as it relates to their professions. Conference participants discussed at length and repeatedly referred to three U.S. Supreme Court cases that cover admissibility of expert witness testimony--cases one conference participant called the "expert trilogy": Daubert v. Merrell Dow Pharmaceuticals, Inc., General Electric Co. v. Joiner, and Kumho Tire v. Carmichael Co. Daubert requires judges to determine if expert scientific testimony is based on sound science before allowing it into evidence. Kumho Tire expanded the scope of the Daubert decision, requiring that any expert, scientific or otherwise, be scrutinized before testifying. In Joiner, the Court ruled that trial judges can specify the kind of scientific testimony that juries can hear. Regarding using technology in the courtroom, speakers said that during a trial, visuals can enhance the witness and his or her credibility. Diagrams, photographs, and physical evidence can be very powerful and in some ways can overshadow a witness. In their everyday life, jurors are accustomed to visuals. Experts who work well with juries are the ones who can break down their information to make it as understandable as possible to a nonexpert. While computer simulation can be helpful, one speaker cautioned that in some cases visuals can be far more effective if they are simple illustrations of witnesses' testimony (e.g., a crime scene diagram illustrating where the parties were positioned and what route they took, based on their testimony). On juries' comprehension of expert testimony, one speaker said that while some studies have shown that jurors have difficulty responding to "probalistic complex statistical evidence," the literature on the subject "tends to paint the jury as a competent decisionmaker. If the jury is communicated to properly by the lawyers and experts and instructed properly by the judge, it performs reasonably well most of the time." Another speaker said, "I promise you that I am not going to answer any questions about jurors' comprehension of scientific evidence, and the reason I'm not going to answer any questions about it is because I don't think there's a question. I don't think there's an issue. It's really very simple, which is, sometimes human beings understand things and sometimes they don't. And when they understand it, it's usually because somebody made it clear to them, and when they don't, it's usually because someone didn't make it clear to them." The tone of the conference was largely hopeful and positive. As one scientist said at the meeting, "When it comes to the law . . . scientists are generally pretty mystified about what you all do. Thus, I think that we have a lot to learn from you and you from us. Scientists wonder particularly about the way the courts handle technical matters. Thanks to meetings like this, these concerns are rapidly being transformed into thoughtful discussion and engagement and, hopefully, action on some fronts." ------------------------------ Welcoming Remarks David G. Boyd Director Office of Science and Technology National Institute of Justice Washington, D.C. Mr. David G. Boyd: The National Institute of Justice is probably best known for its work in police soft body armor, the body armor that you see most police wear. And we're particularly proud of the development of that technology, because it's credited now with saving well over 2,000 police officers' lives. But we've also had a very long and distinguished history, as the forensic community knows, in the forensic sciences, and in fact, even with a very tiny budget, we've been the primary funders of research and development in the forensic sciences in the law enforcement community over the last several years. Earlier, we did little projects: trace evidence; we funded the initiation of the laboratory accreditation programs--of the development of programs to certify the proficiency of lab technicians and such. And for years, we had a very large forensic laboratory handbook that was in wide use. Coming into the modern era, we still have a forensic laboratory handbook, but it's now on a single CD-ROM. Our greatest contribution, however, I think, was in DNA, where beginning years ago, back in the 1980s, shortly after the British first established its effectiveness as an identification tool, we funded the projects to bring the first of the technology to the States. And over the next few years we were fortunate enough to be in a position to be able to fund all of the initial developmental work in each of the major areas that contributed to today's success of DNA identification technology. And what we've done now, now that we have more money--because Congress finally has provided a significant enough funding base so we can actually begin to fund some serious things--is that we have begun, for the first time, to look at the request of the forensic field itself, at the scientific foundation of a number of forensic techniques that have been used for a long time. Now I'd like to tell you we did that because we were farsighted, and we really knew this was a serious thing, and we ought to be on top of it. But there was a thing called Daubert, which got our attention in a very big way, and caused us to begin to make some serious investments in the very expensive and very painful work of looking at the foundation for each of these. Now, your work here in this conference today is a critical part of that. And in fact, the breadth of that responsibility, I think, is clear just from the topics that you're going to be covering as you look through the conference agenda and at those who are currently sponsoring it. In fact, it's a very impressive cover: the American Academy of Forensic Sciences, the American Bar Association, and the National Center for State Courts who are cosponsoring the conference with us in collaboration with the Federal Judicial Center and the National Academy of Sciences. Today, you're going to look at conceptions of science--that's an interesting starting point. How do conceptions of science work in a judicial environment? At the role of the judges as gatekeepers for scientific evidence; at how we might usefully distinguish among junk science, prescience, and science that's currently under development; at the reliability of eyewitness evidence; at how juries look at evidence; and finally, how we go about defining an expert and what the impact is of experts, especially in the scientific arena, as providers of evidence in court. Now, we have a very impressive list of speakers, beginning with our keynoter, Dr. Caskey, whom you'll hear from in just a moment. But I think it's appropriate that I start by thanking a number of folks who have done all of the hard work to pull this together, and I'm not going to try to talk about all of the things they've done, but let me suggest that they've been meeting on a fairly regular basis in person and telephonically for some time, fighting through all of the nitty- gritty little details of how to put together a conference like this. Joe Cecil, from the Federal Judicial Center; Carole Chaski, who helped structure the agenda, who is the executive director of the Institute for Linguistic Evidence and has been a fellow at NIJ for some time; Barry Fisher, who is an old friend of the program, not old--but a friend of the program for a long time, who is the past-president of the American Academy of Forensic Sciences along with past-president of any number of other things, including the American Society of Crime Laboratory Directors, and director of the Los Angeles County Sheriff's Department Crime Laboratory; Anne-Marie Mazza, of the National Academy of Sciences; Tom C. Smith of the American Bar Association; Anjali Swienton, in my own office, who has done a lot of the odd jobs running around to pull things together; and CSR, who actually did the nitty gritty of getting things printed, getting it put in the right place, setting up the reservations, and all the rest. And so, I'd like to thank all of those people for their hard work, and I'd like to thank you for being here to help us begin to look very, very carefully at this very real issue of introducing science. We're going to see more and more hard science evidence, because it's increasingly possible for us to detect things. One of the questions you may at some point want to ask yourselves is, How do we determine when we've arrived at a point that we can detect too much in too small quantities, and what does that mean for us? And so with that, I'd like to turn it over to Dr. Caskey, who is the senior vice president of Human Genetics and Vaccines Discovery at Merck Research Laboratories, and if you haven't read his biography, you really should. He has a very impressive list of awards, and he's a really busy fellow. He is an adjunct professor in the Department of Molecular and Human Genetics, Medicine, Biochemistry, and Cell Biology at Baylor College of Medicine. He's board certified in internal medicine, clinical genetics, and biochemical and molecular genetics. He's received a distinguished faculty award and distinguished service professor award. He's an adjunct professor in the Department of Molecular Genetics and Microbiology at the University of Medicine and Dentistry of New Jersey. How do you do your job as the vice president? At any rate, let me turn it over to Dr. Caskey. ------------------------------ Keynote C. Thomas Caskey Senior Vice President Human Genetics & Vaccines Discovery Merck & Co., Inc. West Point, Pennsylvania Thank you very much. Well, I couldn't turn down the opportunity to participate in this meeting. This is an area of my great interest but has not been an area of my immediate research activities over the last 4 to 5 years. I have transitioned into the pharmaceutical industry and have focused on drug development. I now realize this amazingly liberal organization has invited a Philadelphia drug dealer to come and address you. [Laughter] I thank you for that opportunity. Today it's fashionable to be sure that you give disclosures from the start in your talk. I work for Merck, a legitimate pharmaceutical corporation. We're not involved in diagnostics, and we're not affiliated with activities that would relate to the legal or forensic area. We do use genetic markers in our discovery research. There is one area where Merck has made a rather significant contribution to your forensic program. Merck has developed, over the last 5 years, the Merck Gene Index. It is an effort to characterize all the genes of man. The Merck policy has been to make it available to the public in an unencumbered way. That has been achieved through the Merck Genome Research Institute. Thus we have provided the database which is the largest resource for your genetic STRs and SNPs. The second area is my past genetic research, which focused on the STR genetic markers. Our involvement was early in the development of the STRs for forensic application, and then, at a later time, focused on SNPs. As I look back on this history, I feel Baylor College of Medicine made a mistake because I applied all of the patent royalties derived from these to the M.D./Ph.D. program in the medical school. If we had thought ahead to the future, we would have applied the income to the law schools and not the medical schools; that's where we needed persuasive power. I have an intense interest in this application of DNA technology. I now state my interest, not conflict disclosures. I have an intense interest in the public acceptance of DNA technology. I personally feel that it is one of the most important DNA applications. In the court, where (slide 1) participants are not always blessed with truthfulness, DNA provides truth in evidence, which empowers the courts for just decisions. These are my DNA areas of interest. As one prepares for such a lecture, there are sometimes flashes of your past experimentation and experiences that suddenly come to light out of many years of dormancy. As I reflected, there was a flash of four scientists working in the laboratory at Baylor College of Medicine about 10 years ago. We had been asked to help in the assistance of the resolution of what is now referred to as enemy and blue-on-blue casualties that had occurred in the Gulf War. We worked with Robin Cotton in these studies. We worked intensively for no more than 10 days to examine all the casualty cases that had been submitted and characterized by standard forensic analysis for applying the new STR DNA technology. We resolved all cases submitted to us in this 10-day period and found an error rate of approximately 35 percent in the assignment of these cases by standard forensic methodology. The DNA technology had made its contribution for this situation and pointed the way to the future. It was absolutely clear from this early experimentation effort that we had a handle on a technology that was fast and simple and had a precision for diagnosis that we had not experienced in the area of forensic science. As I look back on my scientific experimentation days and discovery days, I will remember this one with special favor. (Slide 2.) These are the areas that I would like to cover in my comments today. The first will be detection technologies, which you may hear more about than you wish throughout the meeting, but I feel obligated to cover this with you. I wish to emphasize the areas for wider applications of the technologies, and introduce to you some of the issues we are considering in medicine concerning identification of traits which influence individual behavior. I want to bring to reality issues we consider carefully in medicine. A major consideration is, when do we apply these newly gained diagnostic tools for the benefit of health and, in your case, the benefit of the safety of the population and individual care? These issues condense to the concept of risk-benefit--always a debatable issue and one which this organization needs to consider. Presently I'll make points that illustrate why you need to be worried about it. (Slide 3.) There are a variety of DNA strategies that have been used in the past for disease gene discovery. They represent a progression of increasing discovery that has occurred in our knowledge of the human genome. Complex repeats were the repeats that were identified by restriction fragment analysis and shepherded by Alex Jeffries. If you'll remember, he used restriction fragment cleavage of complex traits to develop a spectrum of changes which could be highly informative for personal identification. The second DNA marker was the simple tandem repeats (STRs), which we've already commented on. The new category of single nucleotide polymorphisms (SNPs) and STRs have been accepted by the courts. An interesting spin on this technology recently emerged from sequence information of whole genomes. Such analysis was applied most recently in the malicious infection of a victim of HIV. In this case, the HIV sequencing identified the origin of the infecting agent, associating a perpetrator with the pathogenic disease that occurred in the victim. I bring this case to your attention where entire genome sequencing is now accepted in the courts. There may well be other applications that we're not aware of at the present time that would identify malicious agents that are used in crime situations. Certainly the public health spread of TB and terrorist use of germ warfare are additional possibilities. (Slide 4.) Let's start with complex repeats, the technology of Alex Jeffries. I cannot pass up the opportunity to remind you of what an incredible advancement was provided to us by Alex's insight into the utility of these complex repeats. These were satellite sequences that he had been studying as a research tool when the Leicester rape/murder cases came to his attention. He was located at the University of Leicester. And there were two conclusions that emerged from studies which impact not only the technology's acceptance, but the application of the technology. It's remarkable that both occurred in the very first application. You'll remember an individual with ill health came forward and volunteered himself as the perpetrator of the two crimes. While there were no witnesses to the crime, the confession to both crimes could have closed the case. Alex relates the officers were satisfied that a resolution to the case had occurred. Alex insisted he apply his new technology to confirm the confession. His studies quickly proved this was not the person who committed the crimes. Thus the very first DNA test that was applied excluded a person from the crime. The true perpetrator of the crime was concerned that this technology might, in fact, identify him as the murderer/rapist! It was a small village from which the scientist proposed searching for the perpetrator. The perpetrator persuaded one of his drinking buddies to submit his DNA in place of his own. You can call that sample switching or you can call it confusion. The point is, there was going to be a sample analyzed wrongly in the case, and it would clear the individual who committed the crime. Good detective work actually revealed the plot; DNA diagnosis was correctly applied in the case, identifying the murderer. This one case said so much about the future of the field. What are some of the features of the current technology? It is highly informative; it is gel-based; it's semi-automated for pattern recognition and matching; and you can develop mathematical algorithms to determine its characteristics. It is not very adaptable to PCR technology. Some people may argue that you can take elements of this and apply it, but basically, it's a gel-based pattern matching system and, therefore, has complexity for presentation in the courts. It also has a limitation in many crime scenes because of the amount of DNA material that is available for analysis. This is beautiful early technology. (Slide 5.) Let's examine the simple tandem repeats. Simple tandem repeats are highly informative. They are PCR-requisite. It is therefore extremely sensitive. We were able to show these STRs could be multiplexed with quite good fidelity to increase the power of informativeness. The analysis of multiplexed STRs provided a powerful informative (match) number from a limited number of reactions. STR analysis is automatable. With the application of the Perkin-Elmer automated DNA sequencing instrument, one can, with software packages, quickly obtain the matching information or mismatching information with high automation. So it's taking more and more technicians out of the process and, therefore, reducing the likelihood of human errors. STRs are degradation-insensitive. They are very small; only 300 base pairs to 500 base pairs. A substantial amount of degradation of DNA can occur since only trace amounts of DNA can be amplified. STRs add a sensitivity and power to detection (matching) that is very impressive, and currently superior to all other genetic matching techniques. We became involved in STR development quite fortuitously. It's fun to reflect on the discovery. We had carried out the very first automated DNA sequencing on a human disease gene (Lesch-Nyhan - HPRT) with the group at the University of Heidelberg. We identified a tetrameric repeat and found it to be polymorphic. This stimulated our database searching to explore how common these genetic markers were in the genome. One of the first to be discovered was a CAG repeat. It was found in the androgen receptor. And you can see that when we began to characterize the population distribution of the number of repeat units of the CAG triplet repeat that it was really broad. Furthermore, as we looked from population group to population group--and we just did simple analysis in this illustration of individuals declaring themselves to be Caucasian, Black, or Hispanic--you could see population variation in the frequency. We established that the marker was highly informative and that one would need sufficient databases to be able to draw conclusions with regard to the significance of any match between a crime scene specimen and a suspect for the crime scene, i.e., databases. There were many others discovered by this approach. I wish to illustrate the growth of the STR database. There were more than 1500 STRs readily found at the time of this slide preparation 4 years ago. This is the contribution of the Merck Genome Institute to this objective. The repeat spectrum of simple triplet repeats is both frequent and varied. They're spaced at probably every 200,000 to 500,000 base pairs. If you take into account the 3.0x109 bp of MAN, they are abundant and highly informative. I wish to make a point about STR stability. This was an issue early in the discussion of STRs. We had the opportunity to gain some experience from the study of human heritable diseases. There are now eight human heritable diseases that are the consequence of expansion of triplet repeats (STRs). They're all neurologic diseases. Furthermore, these diseases have the feature of anticipation. Anticipation describes the disease progressing in severity and frequency within a family, generation to generation level. The basis for anticipation was discovered by association of the expansion of the triplet repeat in fragile X in myotonic dystrophy, generation to generation. The more severe the disease, the larger the triplet repeat. We documented the polymorphic variation of STRs and their cause of anticipation in the human heritable diseases. STRs can be unstable genetic elements. They are not unstable to the point it limits utility. They are extremely useful if STRs are used within a defined range of triplet repeat. Generally, a repeat below 36 to 40 is stable. Once you exceed that number, instability becomes evident. This technology has been applied so extensively that we know even when you apply the size criterion, rarely will mutation in STRs be observed. This is a dramatic representation of the difference in the STRs of a patient who had virtually no symptoms of myotonic dystrophy but gave rise to a son who had extensive myotonic dystrophy at the clinical level and had a tremendous expanded triplet repeat. If you look in the blue at the size of his triplet repeat found in his bloodstream, you can see some evidence of the instability. These are all STRs just from his blood. But look at the STRs from his sperm. Thus his progeny has had a tremendous expansion of the triplet repeat, and virtually, he could bear no offspring that were not affected with disease. So why do I tell this story? One, STRs are highly stable if you choose the right ones; even the ones you choose properly will occasionally have expansions and mutations. This is replication DNA error that occurs most commonly in germ cells, not somatic cells. Thus identity matching has tremendous accuracy. I don't expect you to look at all the details of this slide. This is the application of the STR technology by the 377 Perkin-Elmer instrument. It can detect an STR that has a unit length difference of one or two base pairs within a triplet repeat; therefore, a unique marker for that repeat over a range of 500 to 700 base pairs. In addition to the STR polymorphisms, it can detect unique variations in an STR repeat that occur for a single individual. Such variation provides incredible precision. By automation, the cost has decreased; the throughput increased; and analysis is automated. STRs are definitely the technology that will dominate the field for years to come. It's simpler, faster, more precise, and more easily controlled with internal controls. Let's now discuss single nucleotide polymorphisms. They can be highly informative. (Slide 6.) What is meant by single nucleotide polymorphisms? Single nucleotide polymorphisms are single base pair alterations differing from individual to individual, and they are generally bi-allelic. This informative power of each STR is limited compared with the informative power of the triplet repeat, which has multiple alleles (repeats). What is the advantage of the SNP? The SNP variation is frequent. I've given you estimates on the STR. Every 500 base pairs will have a single nucleotide polymorphism. It might be at a frequency of 0.1, 0.001, or, ideally, at 0.5. They will not exceed 0.5. By judicious selection of an inventory of single nucleotide polymorphisms and multiplex amplification of PCRs the informative character can be made very powerful. It is a critical factor in this application that automated analysis be developed. The preferred method at present is the DNA chip. It will be the automated DNA chip analysis that will win the day. Degradation of DNA can be overcome by PCR since these are small 300 to 500 base pair elements. This technology has already been accepted in the courts with a very early entry of the DQ kit assay. It will be possible to have single nucleotide polymorphisms for every gene. There's no difficulty in this objective since genes are generally between 5,000 and 50,000 base pairs and the frequency of SNPs is 1 in every 500 base pairs. This is a powerful genetic reality for medicine which allows detection of disease. Such a risk association is shown in the chip data related to cystic fibrosis carrier detection. Apex technology uses nucleotides corresponding to the gene of interest, and fixed to the chip. The patient sample is hybridized to the chip target. All four bases are read by color and diagnosis of the SNP is made. I would now like to share my thoughts on broader applications of the technology. I can remember in the early days there was a reticence to apply the technology unless you had identified a perpetrator. The perpetrator was typically incarcerated when we carried out the DNA analysis. DNA analysis is now being used as an investigative tool. The first occasion it was used in the Houston area as an investigative tool was in the bandana rapist cases. These events were occurring on the west side of Houston where 23 rapes were committed in a small area by a rapist who wore a facial bandana. The investigators were searching for a single perpetrator. Our DNA analysis on the cases indicated five perpetrators. The investigative groups changed their focus from a single individual to five rapists. The DNA investigative tool gave investigative guidance. There is ample data to suggest a small number of individuals commit the majority of crimes--an ideal application for DNA investigations. The striking example would be terrorists who are small in number, create great havoc, and frequently operate at distant locations. Thus we may be looking for a very, very small number of individuals within that society who have a high repeat rate. Aggressive use of DNA as an investigative tool would be helpful to such investigations. Toward this utility it would be convenient and extremely productive to improve the efficiency of the DNA investigation at Federal, State, and urban levels. Let me expand. (Slide 8.) There are two types of databases you could share. The first would be databases on DNA variation in populations. For example, the population in California may differ from the population in Texas, and both differ from the population of the Northeast. The ability to compare databases develops a greater confidence in identification accuracy. The second database is more sensitive and involves sharing the DNA databases for convicted perpetrators and unsolved crime events. Such would allow identifications of a single perpetrator who commits crimes throughout the United States. The computer can be used as an investigative tool nationwide to be able to associate a crime or detach a crime from other similar crimes in different jurisdictions. There are two types of databases that I think would be extremely useful in this research: 1) convicted criminals and 2) unsolved crimes. I wish to make a comment on multiple DNA methods. I recognize there is an effort to standardize the methodology for the crime lab, thus permitting sharing of databases. We have found in the Human Genome Initiative and also in medicine that the software writers are, in fact, quite agile in their ability to handle different databases. Such would drive various technologies toward a single high-utility database. What occurred in the Human Genome Initiative is that scientists adapt best, simplest, cheapest, and most accurate. Thus in the early days, rather than have arguments about what DNA method has the most advantages, the software writers can provide data for comparisons. The scientists quickly start hitting the most useful databases. Thus we have seen genome science databases closed down because they were replaced by more highly useful databases. Thus, in your debate, do not be stymied by the competition. The software writers will allow you the opportunity to test those programs that are most useful. I wish to put forward for your consideration wider applications of the technology for convicted criminals. I think about this application frequently since my home State of Texas has significant numbers of convicted individuals whose trial preceded DNA testing. These cases frequently are based on circumstantial evidence. There should be an initiative from this forensic community to demand retrospective DNA analysis on these cases. Capital cases would have high priority. I'll relate one story out of the Houston area that speaks to such a need. There was a rape case where the victim was considered very intelligent and quite observant and thus a reliable witness. However, having failed to identify a suspect from several lineups, she was taken home by the investigating officer. As they were driving out of the police station they passed a used car lot. With great assurance, she identified a salesman standing out front as the rapist. The court moved forward with the charges against the suspect based on the eyewitness identification. The investigating officer suggested DNA technology determine the association of this individual to the rape. We rapidly excluded this individual and obtained his release. Thus, rather than be incarcerated for several months, he was cleared of the crime within days and returned to his family. That's a successful case. You can be assured there are individuals wrongly accused incarcerated. There is a need to apply this technology not only prospectively but retrospectively to ensure fairness in the law. I'm constantly reminded of this gentleman from Texas because DNA analysis led to freedom. The incarcerated deserve the same technology application. I feel we should supplement the databases. Let me expand. I would first suggest the military Desert Storm analysis be carried out retrospectively, because the military had not collected DNA samples on the troops. Today DNA samples are stored but not analyzed. Such databases would enhance criminal investigative accuracy and aid utility. Let's examine other individuals who might be in high-risk categories: auto license owners, pilots, police officers, and firefighters. These are high- risk individuals where DNA identification would have utility. Let me fully expand. We need this technology for a database that permits searching on all individuals, much as we now use fingerprints. The fear that such a database could be tested is ridiculous. We should persuade law enforcement agencies to embrace this technology to the point where there is comfort that their data is used as a source of investigations on every crime committed in the United States, using DNA methods. Medical licenses are a second category to test. Also lawyers' bar licenses, government employees' Social Security identification, and newborns could all contribute to the database. We should move to this objective of a universal technology and a complete DNA database in the United States. (Slide 12.) At present we collect DNA on all newborns in the United States for health reasons. The risk/benefit is obvious for the newborn since it alerts physicians to the need for early intervention therapy. We are willing to submit newborns' blood samples for the DNA database and investigative purposes. Thus DNA testing for many treatable diseases is standard practice. Can forensics be justified in the same manner--benefit to society? The Human Genome Initiative will expand these opportunities. We are now able to undertake complex traits such as hypertension, diabetes, and depression, to name a few. But one of the areas this group needs to consider is behavioral traits. These include alcoholism, drug abuse, depression, and schizophrenia. And for each of these four diseases there are genetic loci identified which identify genetic risk markers. In the future we will know which genes affect behavior. At a conference this last week (slide 13) devoted to manic depression (bipolar) disease, it was stated that the criminal incarceration rate was elevated by as high as a factor of 5 for individuals who carry this diagnosis. Thus, there is no doubt that some genes we are investigating for medical purposes could, in fact, impact the area of criminal behavior. At present it is acceptable to develop drugs for bipolar disease, for example, that intervene in its pathology. Imagine you are able to establish that there is a clear association in incarcerated populations, that depression is a risk factor for abnormal behavior--that is, a risk factor for incarceration. This could lead to modification of criminal therapy. (Slide 14.) Thus the ongoing research for human heritable diseases is relevant to criminal risk traits. The future for criminal behavior traits identification is promising. Such identifications allow tremendous options. There are social and behavioral traits that now are being investigated. These include child abuse and rape. We could all probably agree on identifying such genetic risk factors. Others are nonmedical, but societal, such as parking ticket offenders, software copiers, and computer virus designers. I add a few of these newer asocial behaviors for your consideration. I wish now to make some recommendations that don't relate to this meeting. These are trial and fairness issues. (Slide 15/16.) I really feel strongly that we should provide incarcerated persons state-of-the-art DNA studies. This would be particularly important for capital crimes where the death penalty applies. A forensic review could be conducted by an expert panel to determine whether there was any evidence available that would allow application of the new DNA technology retrospectively. I feel we have an obligation to not only provide DNA evidence to new trials but also for individuals who are incarcerated. We need to evaluate the DNA methods for wide acceptance of a uniform method. I'm suggesting here the equivalent to the Guthrie method of newborn analysis. We have achieved this in medicine. It can be achieved in forensic science. The STR technology will satisfy the forensic demand for the next 10 years. Over the next 10 years, the SNP technology will improve. I predict you'll see SNP technology come into its own on the basis of economy and precision. There is a need to establish rules on use of technology. I've used two examples there. One is serious and the second frivolous (the airline multiple booker). The limits need to be set. To implement genetic research studies on antisocial behavior is a controversial item. I remind you of the medical efforts presently ongoing in bipolar disease and schizophrenia. The purpose of this point is to illustrate that in the future individuals might benefit from FDA-proven therapeutic agents which could alter asocial criminal behavior. I'm frequently reminded in this research of the research of Jasper Rhein. Jasper studies (slide 17) dogs. The genetic variation in behavior of dogs is large. All dogs derive from the wolf. We recognize that a cocker spaniel, a pit bull, and a retriever differ. Jasper would argue that these dogs have been bred for their behavioral traits. Man is outbred. But his point is, there are, in fact, genetically determined traits that determine the characteristics of derivatives of the wolf. Some I think frequently of--Flip behaviors are extreme (the famous line of Flip Wilson's Geraldine--"The devil made me do it"). Behavior patterns are driven by endogenous elements--genes- -that we do not fully understand at this time. We will have this understanding in time, however, and we must be wise in its application to forensic science. Thank you very much. Slide 1. DNA TRUTH Slide 2. DNA Variation --Detection Technologies --Wider Applications --Disease (Behavioral) DNA Markers --Rules for Presymptomatic Disease (Behavioral Diagnosis) Slide 3. DNA Variation --Complex Repeats --Simple Tandem Repeats --Single Nucleotide Polymorphisms --Genome Sequence Slide 4. Complex Repeats --Highly Informative --Gel Based --Semi-Automated --Pattern Matching --PCR Incompatible Slide 5. Simple Tandem Repeats --Highly Informative --Highly Automated Gel Analysis --Multiplex Analysis --PCR Requisite/Sensitive --Degradation Insensitive Slide 6. Single Nucleotide Polymorphisms --Highly Informative --PCR Requisite/Sensitive --Multiplex Analysis --Multiple Detection Methods o Automated DNA Chip Analysis o Automated Gel Based Analysis --Degradation Insensitive --Accepted in Court Slide 7. Genome Sequence --Mitochondrial DNA --Nuclear Genes --Infectious Agent DNA Slide 8. Prospective Wider Applications --Crimes Associated with High Recidivism o Rape o Child Abuse/Molestation o Assault o Murder o Terrorist Slide 9. Prospective Wider Applications Shared Databases o Federal o State o Urban Slide 10. Prospective Wider Applications --Databases o Convictions o Unsolved o Multiple Methods Slide 11. Retrospective Wider Applications --Convictions Based on Circumstantial Evidence o Rape o Child Abuse/Molestation o Assault o Murder Slide 12. Vision for Implementation --Supplement Fingerprint Files o Military*/Auto, Pilot, and Gun Licensees o Law Enforcement Agency Employees o Medical Licensees o Lawyers Bar Licensees (Prosecutors Only) o Government Employees o Social Security Identification o Newborns *In Place Slide 13. Disease DNA Markers --Transplantation Database --Newborn Screening-Inborn Error of Metabolism --Hypercholesterolemia --Colon Cancer --Breast Cancer --Sickle Cell Anemia/Thalassemia --Cystic Fibrosis --Triplet Repeat Diseases, Neurodegenerative Slide 14. Behavioral/Neurological/Affective Disease Research --Schizophrenia --Manic Depressive --Ethanol/Drug Addiction --Autism --Migraine Slide 15. Anti-Social Behavior Traits Genetic and/or Acquired --Rape --Child Abuse --Violent Behavior --Parking Ticket Offenses --Software Copying --Designing Computer Virus Slide 16. Recommendations --Apply DNA Methods to Prisoners Incarcerated on Circumstantial Evidence Where Forensic Materials Are Available. --Apply DNA Methods to All Rape/Child Abuse/Assault/Murder Cases as an Investigative Method. --Expand Database Sharing Regardless of Method of DNA Analysis, i.e., Access to DNA Information on Convicted Individuals and Active Cases. Slide 17. Recommendations --Evaluate DNA Methods for Acceptance of a Uniform Method, i.e., the Guthrie Test for Identification. --Establish Rules of Usage Which Are Acceptable to the U.S. Public, i.e., Missing Children Identification or Airline Multiple Booker. --Implement Genetic Research Studies to Investigate Genetic Predisposition to "Anti- Social" Behavioral Traits. ------------------------------ Panel I. Conceptions of Science: Defining the Disconnect Moderator: William Gardner Associate Professor of Medicine and Psychiatry University of Pittsburgh School of Medicine, Montefiore University Hospital Pittsburgh, Pennsylvania Panelists: Joshua Lederberg Sackler Foundation Scholar The Rockefeller University New York, New York Margaret A. Berger Suzanne J. and Norman Miles Professor of Law Brooklyn Law School Brooklyn, New York Mr. David G. Boyd: Now, we turn to our first panel, and I love the title of this one. Professor Gardner is going to lead a panel that includes Joshua Lederberg and Margaret Berger in "defining the disconnect." Professor Gardner? Dr. William Gardner: Thank you very much. We will proceed by each speaking 20 minutes on this topic. Then we will have a round of rejoinders and comments on each other's talks. Our first speaker will be Professor Joshua Lederberg, past president of the Rockefeller University, research geneticist, and a Nobel Prize winner. Dr. Lederberg? Dr. Joshua Lederberg: I appreciate the opportunity for this presentation. I have an opportunity to learn a lot. I've already learned a good deal from my discourse with Dr. Gardner and Margaret Berger, and we may have refined out a lot of the areas of incomprehension. You may be having less of a quarrel than I would have guessed before we got started. My comments are going to be much more abstract than Dr. Caskey's enormously informative presentation, but I will have some prescriptions at the end, and so, bear with me on that. But let me also say that I encountered a book just 24 hours ago; I had the opportunity to read it on the airplane. It's by Kenneth Foster and Peter Huber. It's called Judging Science. I read it through on the airplane coming over here, and I found that, in fact, it embodied considerable confirmatory details, almost all of the perspectives and remarks that I'm about to make. I assure you I did not intentionally plagiarize it, but it's going to sound that way as I go through my remarks, and I do commend it to you very strongly. The culture of law and the culture of science do converge in seeking truth, but for science, this is an end in itself. For the law, this quest is but part of a machinery that aspires to social harmony; to consensual acceptance of pragmatic justice. The adjectives are all important. Science often invites protracted controversy. Justice is often quietistic and, for example, by negotiated settlements, may even enforce the nondisclosure of truths. Truth is then an interest subordinate to that of quieting conflict. This may be particularly troublesome when third-party and public interests may even be excluded from such disclosures. We are also acquainted with the concept of legal fictions. The Encyclopedia Britannica describes this as "a rule, assuming as true, something that is clearly false. A fiction is often used to get around the provisions of constitutions and legal codes that legislatures are hesitant to change or to encumber with specific limitations. Thus, for a legislature, it is easier to turn back the official clock from time to time than to change the law or the constitution." In my community, we would be quite troubled about scientific fictions of that ilk, like changing the clock. But not to belabor the point too far, it is my understanding that established legal fictions are beyond questioning by scientific experts or jurors in the courtroom. Now, I have read a little about the history of fictions, and I understand their constructive role, to put it boldly, in empowering judicial legislation. But I also have to remark how the prevalence of such fictions mystifies the lay and the scientific onlooker and may be one of the most important reasons that it is hard for outsiders to understand what the law really means when it is, in fact, so pervasively penetrated by these fictional constructions. If there was ever an example of the social construction of reality, this would be it. Science's principal role is the discovery of generalizable truths: the laws of nature, of greatest use in predicting the consequences of future acts or in postdicting complicated paleological or historical or cosmological data. The law is most often concerned with establishing the facts or inferences about concrete, historic events: who done it? But that ascertainment may depend on the application of scientific laws, which is why we are here. Scientists might find themselves relating to law in any of several roles, principally as expert witnesses, the commonest zone of intersections; as jurors, tasked with the weighing of evidence; or as an aberration, even as defendants, possibly charged with fraudulent manufacture or concealment of data or of meretricious interpretation or plagiarism. These do not especially concern us here, but I only bring it up to point out that, in fact, the code of science is generally far stricter than the criminal law, and questions have been raised about the appropriateness of due process against alleged infractions on the part of offices of research integrity of Federal granting agencies that go far beyond what would be permitted in conventional judicial proceedings. By the way, I applaud that strictness of the code; don't misunderstand me. To go back to my list of roles, as an expert witness, a scientist is uncomfortable playing the hired gun, and with the understanding that one could probably find an expert with formally acceptable qualifications who will deliver whatever opinion anyone wishes--or who is in a position to pay enough for. And the public interest may suffer from the courts having limited access to disinterested expertise, in contrast to what is brought forward by the adversarial process. For my part, I have refused involvement as an expert when I was cautioned that I could only respond to questions raised by counsel; that it was not my responsibility to volunteer information no matter how relevant I felt it was, especially that which might be adverse to the interests of my employer. My scientific code enjoins me to reveal all the evidence, and especially that which might diminish the claims I was trying to assert. This is my expectation in my scientific discourse with every one of my scientific colleagues and competitors, that they will go out of their way to inform me of what might be potential flaws in their argument; they will eventually be found out anyhow, and we have no sensible exchange unless we operate by that shared ground rule--not perfectly enforced, but it is pretty well. In fact, retrospectively, great historic figures have been criticized for publishing only the experiments that seem to have worked according to their prior expectations, and that goes back even to Gregor Mendel and to Robert Millikan's historic experiments at a time when our criteria of statistical balance and insight were less finely refined than they are today. As advisors to public regulatory, procurement, or quasi-judicial bodies, scientists are subject to criminal penalties if they do not disclose their conflicts of interest. Adversaries are expected to be thoroughly interested, evidence that in most settings, scientists are expected to play a disinterested role. This now applies even in many journals as a condition of accepting research papers that we disclose what might be financial or other interests. Besides disinterestedness, as pointed out by Robert K. Merton, our great sociologist, universalism, the sharing, publication of data, and a system of organized skepticism are cardinal features of the scientific process and the key to its efficiency and authenticity. Of these, universalism--equal standing, regardless of personal origins--is one further norm shared between the scientific code and the U.S. Constitution. The others are hard to achieve in the judicial context. Expert testimony is, in principle, not secret, but in practice, it is rarely subjected to the same scrutiny as published articles that are part of scientific discourse. Its authenticity, then, depends solely on the competence and integrity of the witness and should not be confused with the weight of scientific authority, which can only be properly invoked when it is subject to the process of critical discourse throughout the entire scientific community. Skilled adversarial counsel, as an alternative, could impeach the testimony of a specific witness, but this continues to give advantage to those who can afford to buy those skills. These imperfections apply to scientific judgments by any expert body outside the courtroom or in it, left to the judgment of the expert without the validation of critical external discourse. New technological tools like the Internet may make more feasible forms of publication enhancing that organized skepticism. I do not know of any disinterested retrospection on the quality of expert testimony in run-of-the-mill cases. I don't know how much there is, really, to worry about. There has not been that kind of analysis, as far as I am aware, which might help us decide how much to invest in ameliorating the system. There have been many suggestions directed to giving courts access to independent expertise, and I'm sure there will be much discussion about this at the conference. To turn to another role, not much talked about, as jurors, in fact or in prospect, scientists may be in the sharpest confrontation with judicial workings. Here, I find the rules of evidence the most troubling, however indispensable they are for justice. The exclusion of evidence obtained by unlawful search has plainly obstructed truth-finding in many well-celebrated cases. It also undoubtedly has encouraged reform in police practice. Less comprehensible to me is the exclusion of ancillary information, like prior arrests and convictions regarded as prejudicial to the defendant, as if the juror is unable to exercise his own critical judgment about matters that are not directly probative. Admonitions to jurors--you see this in the TV presentations about courtroom trials--admonitions to jurors to disregard testimony inappropriately conveyed, although you've heard it, lead to a kind of internal hypocrisy or a mental gymnastics most would find impossible to verify. Above all, on the part of the juror, to be barred from asking questions directly would cut against the grain of career-long investigative experience in cutting to the chase and solving complex problems, a skill in which scientists can claim some established expertise. But no sensible attorney on either side is likely to find the scientific temperament acceptable to their conception of what they seek in a juror. Remedies: I've already discussed one; I want to repeat it: peer discourse. And by this, I mean far beyond peer review, far beyond the initial gatekeeping that's involved in getting papers published in a journal. That's only the first step in the process. The important function of peer review is publication; it is out there. It is there for your friends, your critics, your adversaries, the whole world to examine the texture of your argument and its feasibility, and there is an ample basis for rebuttal, and that is how scientific progress is, in fact, made. We've seen an outstanding example of this phenomenon, probably unprecedented in forensic history, in the way that the quality of DNA evidence and the necessity for precautions and so on have been very thoroughly debated in the scientific and technical community. We wouldn't be very much troubled if the same degree of attention had been given to other complex litigation in which scientific issues had been raised. But my other recommendation is the redefinition of expertise. I would say the expert is the person who could be reasonably regarded as possessed of the integrity and the wit to understand and articulate the current state of knowledge on a given topic and particularly to give a balanced account of current controversy. Thank you very much. Dr. William Gardner: Our next speaker will be Professor Margaret Berger, who is professor at the Brooklyn School of Law. She is a noted expert on legal evidence. Dr. Margaret Berger: Thank you very much. I greatly appreciate the invitation to be on a program with such eminent authorities, and I will try to pick up on comments that Dr. Lederberg made with my take on the differences between science and the law. First of all, as Dr. Lederberg also said at the beginning, science and the law, of course, have very different goals. He spoke of the goal of the law as quieting conflict, and I would not agree with that completely. I would say that the essence of the law is doing justice, and I think that doing justice and science become incompatible or at least have problems with each other at various points. The insistence on justice means that in deciding how to handle a scientific issue, the law at times will take account of factors that are simply irrelevant to a scientist, and the resulting determination may be viewed by the scientist as antithetical to good science. And that is really, I think, in many instances, because the scientist does not realize that there are extraneous policy objectives that dictate that decision and that the determination does not rest on scientific grounds at all. The best available scientific solution is not always compatible with policy concerns grounded in achieving justice. Let me start, since we just heard so much about it, with DNA evidence. Certainly, we all know, after listening to Dr. Caskey and what we can see as the developments in the field, that it's only a question of time before experts in cases involving DNA used for identification purposes are not going to speak any longer about the probability of a random match. There is going to be so much evidence available that the law will clearly decide at some point that everyone's DNA profile is unique, and the expert is going to be able to speak, once the law decides on what that definition of uniqueness is, not about the probabilities of a match but the fact that if there is a match, this means that the two samples being tested come from the same source. I think that we all know that that moment will probably come in the fairly near future and that it is going to be a triumph of scientific endeavor. From the standpoint of the law, however, that scientific achievement might possibly have undesirable results. One possibility is that the police efforts directed to solving a crime will focus more and more exclusively on simply finding crime scene biological samples that can be tested for DNA and less and less on finding traditional kinds of evidence, an endeavor that may be boring, dangerous, and time-consuming. Why would this be problematic, given the strength of DNA evidence? One reason is that we know that deliberate and inadvertent error will creep into any human endeavor, and other kinds of evidence would act as a check on the reliability of DNA results and check erroneous results from creeping in. Furthermore, we probably don't want the police to lose skills they need in cases in which DNA evidence is not going to be available. If, ultimately, lawmakers see a link between inadequate police work and ever-increasing reliance on DNA typing, they might react by finding that the loci at which testing will be done should be limited, so that the probability associated with a match would not alone suffice for a conviction. Now, I'm not saying that this will happen or that this should happen; I'm just suggesting that science can lead to results in the nonscientific world, in the real world, that the law at times will confront by making a policy determination that is not going to be compatible with the best scientific solution, simply because the spheres of the two disciplines are so very different. The same kind of thing can happen with toxic tort cases. Let me give you a hypothetical. Imagine that epidemiological studies indicate that persons who are exposed to the defendant's product at work are at a greatly increased risk of developing a particular disease that is not, however, a signature disease. Let's say that the product was made in a number of different formulations, and additional epidemiological studies plus animal studies plus any other kind of study that can be done--in vitro studies, whatever --strongly point to one particular formulation. Let's call it formula X. That's the culprit. Workers exposed to defendant's formula A, B, C don't seem to be at any more of an increased risk for the disease than the population at large. Let's say the latency period for this disease after exposure to formula X is over 20 years. Consequently, with regard to most workers, records are no longer in existence showing which formula they were exposed to. All that they can prove is they worked in a place where defendant's product was in use, but they have no evidence to prove which formula was the one to which they were exposed. If plaintiffs who are now trying to bring actions against the defendant must prove as part of their case that they were exposed to formula X, then a large number of them will not be able to meet this burden. Even though, from a scientific standpoint, only defendant's formula X is implicated in causing excess disease, the law might, perhaps, be concerned about defendants getting a windfall with regard to all these people with the disease who cannot prove their exposure to formula X, and these are, after all, persons who never had the relevant records in their possession. Any records that existed were probably in the possession of defendants or third parties. Under these circumstances, who should bear the risk? Again, this is really not a scientific issue but a policy question. If the courts relieve plaintiffs of proving which formula they were exposed to, scientists may read these decisions as another instance of the law ignoring science. They know that defendant's formulas A, B, and C don't cause harm, but again, this would simply be another instance of the law deciding that justice requires something other than the best scientific result. A second difference between law and science, which, again, is a difference that Dr. Lederberg alluded to, is that science is interested in generalizable truths, and the law is interested in the specific fact. And this conflict between the two that arouses the most controversy undoubtedly occurs when science and technology are used to recreate the truth of an event that occurred in the past. In such a situation, the person trained in the law immediately begins to pick away at the generalizations of science in light of the particular facts of the case. The lawyer sees every case as potentially an exception to the general scientific rule. The lawyer's nitpicking questions may be of little interest to the scientist, who is interested in the big picture and who deals with case-specific contingencies by means of an error rate, but to a criminal defense lawyer, the possibility of error signals reasonable doubt. Furthermore, scientists may misconstrue the nature of the lawyer's attack. For instance, some scientists undoubtedly thought, in the early days of DNA evidence in the courts, that ignorant lawyers simply did not understand the basic theory of DNA evidence. But if you look at some of those challenges--there may have been some lawyers falling into that category as well--but in addition, you had lawyers who were raising issues about DNA that simply had not been of any significance when work was being done in the laboratory. For instance, the accuracy of DNA testing when the evidence had been degraded by having been buried underground for 2 years is simply not something that the scientist doing research projects in the laboratory had to worry about. Now eventually, of course, when certain kinds of questions keep coming up in court and are used to attack an expert, additional research may be done. But case-specific kinds of questions have a habit of arising about issues about which there simply has been no research. Now, the law's insistence on not ignoring the facts of the particular case being litigated can be seen in the Supreme Court's latest opinion on the admissibility of expert proof. One advantage of being early on the program is that I get to be the first person to mention the Supreme Court's latest decision in the Kumho Tire case, which I'm sure we will be hearing a lot more about before this program ends. It was decided on March 23, 1999, and in Kumho Tire v. Carmichael Co., the Court considered the admissibility of an engineer's expert testimony that he could tell that the tire on plaintiff's minivan had blown out as a result of a manufacturing or design defect. The trial court initially rejected the expert's intended testimony because his theory had not been assessed pursuant to the four factors the Supreme Court had identified as bearing on reliability in its 1993 opinion in Daubert, a case which purported to deal with the admissibility of scientific expert testimony. The four factors which the Court had discussed in Daubert were 1) whether the theory had been tested; 2) whether it had been subjected to peer review or publication; 3) what the error rate was connected with the theory; and 4) the degree of acceptance of the theory in the scientific community--the relevant scientific community. In the Kumho case, the plaintiff asked for reargument, and it was granted by the trial court, which reconsidered and held that the Daubert factors should be applied flexibly and that the four factors were simply illustrative. The Eleventh Circuit, however, reversed, finding that the Daubert test was applicable only when the case involved the application of scientific principles rather than skill or experience-based observation. Engineering, according to the Eleventh Circuit, did not necessarily involve science, and therefore, the trial court had used too stringent a test. The Supreme Court has reversed again, and found that the trial court had not abused its discretion in excluding the testimony as unreliable. And it has made a number of statements in the course of its opinion which I am sure we will be talking about. It concluded that Daubert's general principles applied to all "the expert matters described in Rule 702," which is the applicable rule of evidence. The bottom line of Kumho is that all expert testimony must be reliable. The point that I'm concerned with here is not whether Kumho leads to the greater exclusion of expert evidence or even what the factors are that must be applied. The point I'm interested in is the light that Kumho sheds on the law's preoccupation with the specific facts of the case being litigated. Justice Breyer's opinion for the Court considers how the trial judge should go about determining the reliability of proposed expert testimony. The Court declined to set out general hallmarks of reliability that every scientific theory would have to satisfy and pointed out that the listed factors in Daubert were meant to be helpful, not definitive. "Indeed," said the Court in Kumho, "those factors do not all necessarily apply even in every instance in which the reliability of scientific testimony is challenged." The Court explained why it declined to set forth a general rule for assessing reliability. I'd like to read that: "The conclusion, in our view, is that we can neither rule out, nor rule in, for all cases and for all time the applicability of the factors mentioned in Daubert, nor can we now do so for subsets of cases categorized by category of expert or by kind of evidence. Too much depends upon the particular circumstances of the particular case at issue." In other words, the Supreme Court recognized that in assessing the reliability of an expert's theory, the theory must be assessed in the context of the facts of the individual case. In the legal system, the general principles that purport to establish what happened must be tied closely to the case-specific facts of the matter being litigated. The meaning of Justice Breyer's statement that "too much depends upon the particular circumstances of the particular case at issue" emerges in part III of the Kumho opinion, where the Court applies its approach to determine whether the trial judge was justified in excluding the engineer's proposed testimony. The intensity of this case-specific inquiry is immediately apparent. It is really quite extraordinary that an opinion by the Supreme Court of the United States should contain such a detailed analysis of the facts and that the subject of the Court's exhaustive scrutiny should be one warn, old, repaired automobile tire, a picture of which accompanies the opinion. The Court states that the specific issue is not "the reasonableness in general of a tire expert's visual and tactile inspection to determine whether over-deflection caused the tire's tread to separate from its steel-belted carcass. Rather, it was the reasonableness of using such an approach, along with [the expert's] particular method of analyzing the data thereby obtained, to draw a conclusion regarding the particular matter in which the expert testimony was directly relevant." But I don't want to bore you with all of the detailed facts about this tire which the opinion relates, including rim flange impressions, tread depth, discolored sidewalls, bead groove patterns, and much more. The Court's message, I think, is clear: Abstract theories are inadequate unless they are anchored to the facts of the case. But this insistence of the law on the facts may cause considerable tension when an expert seeks to offer an opinion, whether during the pretrial stage, at deposition, or at the actual trial. Experts who are professional witnesses, of course, know what to expect, and forensic scientists certainly fall into this category. But the scientist who has little experience in the law may feel that this insistence on facts rather than on the general validity of the theory on which his or her opinion is based is simply badgering about insignificant details, especially since the vehicle for bringing out these facts is cross-examination by the other side. Cross-examination and the adversary system are not the way the scientific community goes about reaching consensus with regard to a dispute. The resulting distaste that many scientists feel with the way the law delves into the reliability of a proffered expert opinion has at least two unfortunate ramifications. In the first place, many qualified persons, such as Dr. Lederberg, who would be of great value to the legal system, particularly as the importance and prevalence of scientific and technological issues in our courts continue to grow, want nothing to do with litigation. This is so not only because they view the legal process as distinctly unpleasant and unscientific and therefore a waste of time, but also because they know most of their peers agree with this assessment, so that participating in judicial proceedings will not enhance their professional standing in their chosen disciplines. The second unfortunate result is that for some who do appear as experts, the perceived defects of the legal enterprise produce a mindset that somehow justifies making claims in court that these persons would not dream of making in the context of their professional fields. I have long thought that some of the professional societies might consider codes of ethics for their members who testify in court or might have columns in their publications in which they publish some excerpts from testimony given in court. I think a little peer review would be very helpful. Some expert witnesses seem to conclude that almost anything goes in judicial proceedings, because everything is an adversarial game rather than a search for the truth. I don't believe that that is so. Even though scientific conclusions may not be the sole factors that control a court's determination, and even though the law seeks to ascertain the truth by procedures that vary tremendously from the scientific approach to achieving a consensus, and even though the law's concern with particular past events produces a focus on the specific rather than on the general, this does not mean that when the law is seeking to ascertain the truth that it will tolerate a double standard of truth-telling by experts. In Kumho, the Supreme Court expressed this clearly when it stated that in order to ensure the reliability and relevancy of expert testimony, the trial judge must "make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." The bottom line of the Court's decision in Kumho was: "No one has argued that the expert himself, were he still working for Michelin, where the expert had worked for years, would have concluded in a report to his employer that a similar tire was similarly defective on grounds identical to those upon which he based his conclusion here." At this point, law and science converge. The expert cannot offer judgments in court that he or she is incapable of making in his or her professional life outside the courtroom. Achieving this objective is not easy, given some of the differences just chronicled that separate lawyers and judges. Greater understanding of these differences and more appreciation of what the other discipline is seeking to achieve might produce a better utilization of scientific and technological expertise in courtrooms. An occasion such as this meeting is a wonderful starting point, because it offers the opportunity for constructive dialogue among those who play many different important roles when science and technology enter the legal system. I look forward to a stimulating and educational 2 days. Thank you. Dr. William Gardner: One difference between the cultures is that if you're a professor in a medical school, you can't talk without a slide. [Set up slides.] I'm in the Departments of Medicine and Psychiatry at the University of Pittsburgh School of Medicine; I'm a working scientist in the area of health services research and also a coinvestigator in several studies of the relationship between mental illness and violence, the topic that Dr. Caskey commented on. In my comments, I want to be a bit of a devil's advocate. There's a premise in this discussion that there are fundamental conceptual differences between law and science. Clearly, there are major cultural differences. And each field has totally impenetrable jargon and so forth. There are different styles of writing. I can't believe what an enormous challenge it must be for law professors to put 20 pages of thought in 150 pages of text. So I agree that there are differences. The second premise is that these barriers are a principal obstacle to the use of science in the courtroom, and that's the serious thing that we are here to address. Professor Berger gave an excellent account of this point of view. I'm going to argue the other point of view, that the significance of Kumho was to increase the connection between law and science. So, what does Kumho require? The bottom line of Kumho is that judges must determine whether expert testimony--all expert testimony, not just scientific testimony--has a reliable basis. Moreover, the following answer for "Why does this have a reliable basis?" won't cut it. You can't just say, "I am professor of this, that, or the other from Harvard and Oxford and the Sorbonne all at once"; that's not good enough. You have to give specific reasons and justification for your testimony, which is entirely within the scientific spirit. But, what are the criteria for reliability? There, as Professor Berger pointed out, the gate has been opened. Kumho says that the four tests that Daubert put forward aren't always necessary criteria. They are meant to be illustrative. I am confident that they are sufficient criteria: if a given piece of expert testimony met all those tests it will be admitted to the courtroom. But the four Daubert tests are not always required. In fact, Kumho said that it is the judge's task to determine the criteria for reliability of expert testimony. We're now putting judges in the role of being metascientists, of coming up not only with whether a piece of scientific testimony or expert testimony is reliable, but also of determining the criteria for judging that reliability. It's quite a burden. Nevertheless, I still think that the thrust of Kumho increases the integration between science and the law. You can see this in Justice Breyer's discussion of Carlson, the engineer in the Kumho case. Justice Breyer's writing on this is a cogent scientific criticism of the methodological basis of Carlson's testimony. As in any scientific criticism of an empirical study, it hews closely to the facts about the procedures actually used, rather than discussing abstractions. I must say that I was surprised that Professor Berger believes that science differs from law because science is over concerned with abstraction, and less with particular facts. If Professor Berger has the view that scientists are not concerned with specific facts surrounding a piece of evidence, then she needs to come to visit my lab, because the process of science involves an exacting tearing apart of the specific circumstances that surround a given experimental finding. There are, of course, sciences with large bodies of abstract law. I suspect that if quantum mechanics is ever an issue in a trial that you are part of, you will be subjected to testimony about abstract law. However, many sciences consist primarily of empirical generalizations, as opposed to abstract laws. Almost all of clinical medicine, for example; and the process of diagnosis is precisely finding out, with some sort of reliable determination, about the facts of a particular case at hand. So a focus on abstract law as opposed to specific facts is not a difference between science and law. In the Kumho case, Carlson testified that a tire blowout was due to a faulty design. He considered four tire features. He used the rule that if two of these features were absent, then the design was faulty. Such a rule is not different in kind from any number of medical procedures you can find in diagnostic manuals, most strikingly in psychiatry. Now, what did Breyer say? Breyer was not concerned whether tire failure analysis was a science. I am critical about the supposed distinctions among prescience, postscience, junk science, real science, and the like. The distinction seems to imply that nonscientific disciplines can't have reliable procedures, and might be taken to imply that a procedure within a science is reliable just because it is associated with that science. In fact, within well-established sciences, whenever you want to introduce something new, you've got to go through the same process of empirical validation. Furthermore, as Breyer mentioned, you have examples such as a person who can reliably distinguish between different scents of perfume. Perfume discrimination is not a scientific procedure, but you can validate it using an empirical, scientific method. So if Breyer was not concerned about the scientific status of tire failure analysis, what was he concerned about? His concern was that there was no basis for believing that the particular criteria and the specific cutoff that Carlson proposed to a court reliably indicated the design fault. (This is, again, an example of how science can focus on the specific as well as the abstract.) If Carlson wanted to provide such testimony, he needed to validate his rule. I'm currently working on a paper that reports the validation of a screening test for certain childhood psychosocial problems. I can't just assert that the test is valid based on my expertise and experience dealing with children with these problems; I have to provide data on the error rates of the screening test. So why is there a perception of a disconnect between law and science? In my view, Breyer is not asking for any sort of validation for testimony that a scientist would consider to be unusual. Similarly, the kinds of empirical validation that scientists can offer are not foreign to the law. Science just asks, "How often does it work under specified conditions?" I think it's a matter of just going out and doing the empirical validation. For criminal justice in particular, the testing of evidentiary procedures must be exceedingly thorough. We need to know that a procedure works not only in the lab, not only in the pristine situation, but that it also has been tested where it's actually applied, out in the rain at a crime scene. But this is just like clinical medicine. In mammography, one is interested not just in lab studies of radiology issues. You also want to know whether the actual clinical deployment of mammography in hospital settings, in primary care offices works reliably and whether mammography has different error rates across those different settings. The particulars of a case, the actual circumstances in which it was used, is a matter of intense concern in clinical work. Validation is a big job. It takes a lot of people, and it takes a bunch of money to do these studies. But I want to make sure that we understand that the validity of a medical procedure or other scientific work does not rest on anybody's credentials as a scientist, however strong. Even if Dr. Lederberg presents something, he is going to have to provide data backed up by rigorous methods. So I think that the true source of the disconnect between science and criminal law is that we have not made a sufficient effort as a society to develop rigorously evaluated forensic methods. DNA evidence is an example of what needs to be done. In addition, we need to develop a set of methodological principles for what I would call, and maybe is called, for all I know, jurimetrics. This would be a discipline similar to biometric analyses that would give researchers a clear idea of how to develop reliable methods. Above all, we need to cultivate and grow a research community through extramural, peer-reviewed grant funding. The NIH extramural system was the real horsepower that produced the fascinating results that Dr. Caskey reviewed. Finally, while we do this research, we need to make sure we're paying close attention to the ethical, legal, and social implications of science. In this light, I can't help but comment on one aspect of Dr. Caskey's talk. It is true, as he mentioned, that the prison populations have many more people with mental illnesses than does the general public. However, if you statistically quantify the evidential value of knowing that someone has a psychiatric illness, its value for predicting a violent behavior is extremely small, almost to the point of negligibility in many cases. As this example shows, we want to be very careful that we are not only doing the best possible science, but that we also take enormous care in presenting it. So, yes, there are differences between science and the law. However, I don't see them as being at all unbridgeable. There is important conceptual work to be done to construct these bridges. But what really needs to be done to connect the fields is empirical research to develop reliable forensic procedures. Thank you. Dr. William Gardner: Now we'll start our process of brief rejoinders among our panel. Dr. Lederberg. Dr. Joshua Lederberg: Well, let me respond to something that Margaret Berger alluded to when she talked about formula X. I guess the conclusion that she recited is a very good example of a legal fiction. Let us, for purposes of equity and some other direction, disregard what has been said about the specificity of formula A, B, C, D, and E, because that will, in some way, enable a possibility of recovery among those who had been injured by X, and we certainly want to not disallow that possibility. Now, from a scientist's point of view, as long as this is transparent, as long as the judge understood what was going on, you might say the responsibility of the scientific expert ended right there. If I react to the conclusion, it's then not as a scientist, it's as a citizen. Is it, in fact, justice to impose a liability on a provider who had, in fact, done nothing wrong, had not been negligent, merely produced the materials? In fact, that particular provider had done no injury, but in order to serve the interests of compensation for an injured category, was lumped together with the other providers who were included in X. Dr. Margaret A. Berger: Oh, no. I'm saying that defendant made all the formula but only formula X caused the disease. Dr. Joshua Lederberg: Well, then there is no ambiguity about the culprit and the question is whether there is a larger category of those to be compensated and those who were actually injured. I'd put that in a different category. But let me give a hypothetical alternative, because there have been cases of exactly that sort, where you have several providers of potentially toxic materials--in other words, the case that I was then presenting and where the courts had reached a somewhat similar conclusion, but my questions are, one, is that really justice? And there will be an argument about that, and then, two, is it good social policy? Because if, in fact, you impose penalties on individuals for acts over which they have no control and, in fact, where they were not, in fact, personally culpable, that obviously is going to have a chilling effect in the future. And we know today that there are sources of medical devices and medical materials who have opted out of the market because it is too capricious, it is too unpredictable what someone else might do that might then bear on their own activities. Those are not scientific questions, though. Those are public policy ones. Dr. Margaret A. Berger: Well, I would like to ask Dr. Gardner in terms of his presentation of Kumho, whether he really is saying that, in each instance now, when one is going to introduce expert testimony, one has to validate the theory of the expert by research, and I'd like to draw a distinction at this point between the criminal case and the civil case, which nobody has mentioned. But certainly when we're talking about the criminal case--and I assume that most of you here are probably more interested in that--we are talking about the prosecution with the burden of proof and also with enormous resources, both of money and also often with technical and scientific expertise, because they did the research in the first place. Research is going forward, can go forward in the area of DNA under the auspices of government funding. We all know about the genome project. It seems to me that in the criminal case there is an obligation to validate. It's very different from a policy point of view than saying to the plaintiff in a civil lawsuit--I'm talking now about an individual plaintiff who is not part of a huge class of plaintiffs, where there may be funding and interest in doing some research-- saying to this plaintiff, who is trying to sue for a defective tire, "From now on, you can't prove anything involving a tire unless there are tire studies." Now, I don't think the court in Kumho is suggesting that that has to be done. I think that's why the opinion is so open-ended, and I think that's why so much is left to the discretion of the trial judge, but if you were to take this approach--and again I'd like to ask Dr. Gardner what he thinks--then that would be the consequence. That you would have to have, for every expert opinion, regardless of what it rests on, some empirical validation. The money for that is simply not there in many of these cases. That really would be tantamount in some areas of law to saying to plaintiffs, although in theory, you have a right to collect under tort law or under contract law, in practice, there is simply no way that you are ever going to be able to prove your case. Dr. William Gardner: I agree that the situation for criminal and civil situations is different. I know that I do not have your knowledge of what those differences are, but I agree that the situations are different. I was particularly thinking of the criminal case here and of issues that Dr. Caskey was talking about, for example, people wrongfully convicted of capital crimes. I absolutely want to see empirical validation of scientific procedures in criminal justice on a routine basis. I want to see empirical validation in civil cases as well. In my view, plaintiffs have a right to collect when there is good reason to think that they suffered harm that was caused by the defendant. If there is expert testimony about that causation, then there should be scientific evidence supporting that causation. If there is no evidence supporting that causation, other than the expert saying so, then I would say to the courts, "Get this charlatan out of here." Dr. Margaret A. Berger: May I respond? Dr. William Gardner: Please. Dr. Margaret A. Berger: I would just like to ask you another question. It seems to me that the most interesting question raised by Kumho is what to do about clinical physicians testifying about causation, which seems to me is not what they do in their ordinary lives when they are rendering diagnoses. They are saying perhaps this is this disease and not that disease. I need to know which is which in order to treat, but that is not always the same as knowing what caused the disease. Dr. William Gardner: First, I'm a statistician, not a medical doctor. However, I observe a lot of diagnoses being made. Suppose a doctor sees a patient, looks at a chest x-ray, sees a certain pattern there and says, "Yes, this is community-acquired pneumonia." What she is saying is that the person's lungs are infected and that infectious agent is the cause of the illness. I would argue that diagnoses typically do involve a causal attribution. Dr. Margaret A. Berger: But those aren't the kinds of issues that arise in toxic tort litigation. Dr. Joshua Lederberg: I know there's been another case in which there was the allegation that medicine is not a science and therefore not subject to the rules of Daubert. I am not a practicing physician, but I spent many years working with people who were developing computer-based aids to diagnosis, and I got a pretty good handle--Jack Myers--regarding how they operate. Now, they pretended to be empiricists. They pretended to use nothing but, you know, Bayesian logic, that they had the statistics of a certain number of cases that had been corroborated and that they would accumulate a set of statistics in their head. The fact is that there's an enormous amount of tacit knowledge. When somebody goes and looks at that picture on the screen, yes, the fine detail of differential diagnosis is often not dependent on a finely-grained understanding of etiology, but the overall context is. A person looking at that radiograph knows what a lung looks like, he knows the structures, he knows its development, he knows its circulatory pattern. He has seen, you know, dozens of alternative pathologies that you might call personal experience, but it has a very deeply textured scientific and theoretical base. Furthermore, it is publicly accessible. And the judgements that are made on the basis of that experience in clinical judgement are under very close scrutiny by a very tightly-knit community. So, in my view, there's no question that that fits the criterion of a scientific endeavor. Dr. William Gardner: Perhaps we can have questions from the floor. Participant: [Inaudible.] The first is I think there's a certain resistance that currently exists in the study of behavioral traits as they relate to behaviors that are outside of the law. The medical community is having no difficulty in studying traits of schizophrenia [inaudible]. I think there is a considerable concern that we're not in a position to be able to undertake societal behavioral traits, and I think the time is now to start that work. It's either resistance or it's just totally out of focus for a community that has that [inaudible] contact responsibility. For example, I could illuminate with my simple dog analogy, incarceration rate, et cetera, that [inaudible] there are genetic factors to behavior [inaudible]. Anybody who thinks that's wrong, put some money down and I'll be happy to take your money and time. Let me finish up. Now, what I think is a really debatable issue, though, is what is the weighting of genetic environmental factors in this particular circumstance. That would be very important for me to know as I begin to think about how I'm going to -- [inaudible]. If it's 98-percent environmental effects and 2- percent genetic, then I know I've got to focus all my spending on trying to alter the environmental effects to achieve better social behavior [inaudible]. Now, let me give you a couple of medical situations that will reinforce why I have [inaudible] determining genetic predisposition for asocial behavior. Let's take coronary artery disease. We know that diet influences [inaudible]. We know that weight influences it. We know that hypertension influences it. These are environmental factors. Secondly, we know that there is a tremendous genetic weighting toward coronary artery disease. Now, if you look at outcomes research and what we've done to improve health outcome in the case of susceptibility to coronary artery [inaudible], progress is greatest in that of drug development, because drugs are affecting specific pathways that are predisposed to coronary artery disease. So, if you had spent all your money on altering diet, offering some other method other than drugs, hypertension, or by weight, you would not create the impact on this disease that is being created now by antihypertensive, [inaudible], variety of excellent agents that are modifying coronary artery disease. The second example I would use is just to repeat an example [inaudible] child [inaudible] PKU and you don't [inaudible] that child, no medications in PKU, it's just dietary restriction. The child that has dietary restriction in the case of PKU ends up with normal intelligence. The child who does not has disease. Before I spent money on the intervention, I'd want to sort out [inaudible] tremendous resistance to obtaining genetic information. Dr. William Gardner: Dr. Lederberg? Dr. Joshua Lederberg: The question of criminal genetic personalities has beleaguered serious human genetic study for well over a century, and it's easy to elicit a lot of confusion about that enterprise. I don't want what Dr. Caskey has said to get in the way of getting on with the job. For one thing, I think it's a mistake to discuss the research enterprise in the same breath as we're talking about mass screening, mass collection of data, and so on, because it's plainly grossly premature, and I think some of the opposition that will be provoked by this kind of discussion is a misunderstanding that there ought to be a movement in the near future to collect data to apply principles of what genetic component or determination there is for criminal activity in the foreseeable and near future. We're a long, long way from the scientific basis for that, so I think there ought to be a very clear distinction between those enterprises. Now, it's a very hard problem. It's hard enough getting at the genetic etiology of the primary diagnoses of schizophrenia, of manic depressive illness, and so forth, than to go the first step-- a step further about how it interacts with other existential environmental factors that then results in criminal behavior, and even the remark about incarceration. It would be very hard to put down that the critical factor is, these are the people who get caught. No, that's not a joke either. We have no data on the primary incidence connected with these diagnoses. Now, it's perfectly common sense that people who are atypical in their psychosocial reactions are more likely to get caught up in the claws of the law and more likely to do things that are inappropriate, but it is such a complicated pathway, from the gene to the final phenotype that it's a tough enterprise. I subscribe to your view that this ought to be investigated and ought to be investigated more thoroughly than it's been. It will be a lot easier to do once you've completed the enterprise of having a SNP for every gene, because in principle, when you have segregating pedigrees, you will be able to tease out genetic correlations right away. A very serious part of the problem is we simply have not had the appropriate tools for this intricate examination until, really, tomorrow afternoon at 3 p.m. And an enormous amount has been claimed on behalf of these approaches which has absolutely fallen to the ground. So, by all means, let's do it, but be very humble about the complexity of the task. Dr. C. Thomas Caskey: The acquisition of the knowledge, the science and research, my point is [inaudible] the application of the knowledge requires, just as we do in medicine, a risk-benefit analysis--what is the benefit to the patient and to the public of applying this technology versus the downside--and that has to be applied in every circumstance. I illustrated breast cancer one and breast cancer two. There's a heck of a lot of debate out there right now as to whether those tests should, in fact, be applied if you do not have a definitive therapeutic dressing for that particular risk factor. So, risk-benefit comes next. First is the discovery. Dr. Joshua Lederberg: The pathogenetic pathway for breast cancer is already very complicated. It's enormously simpler than it is for criminal behavior. Dr. William Gardner: Professor Faigman. Dr. David Faigman: I have a question for Margaret Berger. Margaret, of course you're aware that many courts distinguish between general causation and specific causation. I'll just take an example of silicone implants. General causation, of course, is whether silicone implants are associated with atypical connective tissue disorder, specific causation being whether the particular plaintiff's connective tissue disorder is attributable to silicone implants. Do you read Kumho as abolishing the distinction between general causation and specific causation, and if not, how do you see the role of general causation after Kumho, especially in the clinical medical context? Dr. Margaret A. Berger: Certainly a wonderful question to which I do not know the answer. I do not know whether the Court was thinking in those terms at all. Certainly the court seems to say that the person who is going to decide this in the first instance is the trial court, and the abuse of discretion standard, which the Court emphasizes over and over again, is, I think, going to cause problems, ultimately, in terms of just the kind of question you've raised. I don't see how you can end up having different answers to some very basic questions like that. They're going to differ depending on who the trial court was. Whether these questions are going to fall within the abuse of discretion area or whether, ultimately, the court is going to have to say that some of these are issues of law that are going to have to be resolved as matters of law by the various circuit courts, I really don't know. Dr. William Gardner: Bert Black had his hand up. Mr. Bert Black: I'd like to take up a point that Dr. Lederberg made about whether or not clinical medicine is or is not science. There are probably two polar cases on this now. One is a case from the Fifth Circuit that holds quite clearly that clinical medicine is science, and in fact, it quotes somebody, maybe one of your colleagues, a former colleague from Yale, Alton Finestein, pointing out that, whether it is an epidemiologist, a clinician, or other scientist, determining causation is a scientific enterprise. And then there is a case from the Second Circuit called McCulloch, and in the McCulloch case, the court said you have an experienced physician, and based on his experience, he's qualified to reach conclusions about causation. To me, it seems that Kumho Tire is saying that even experience-based testimony has to be validated in some sense, which supports the Fifth Circuit, saying that clinical medicine is science, and in fact, does away with the approach of the Second Circuit. And I would like the comments of both Dr. Lederberg and Dr. Berger on that point. Dr. Joshua Lederberg: Well, I think that's a good case to apply my suggestion for the definition of an expert witness, and that's the one who has both the wit and the integrity to report on the current state of play of knowledge on the part of others in the field, work that has been published, the critical discourse that others have offered. So, I wouldn't want to pay much account to a physician who said, based on my personal experience, this is the direction of causation if this individual was not in a position to understand what everybody else in the world had been working on, the research that they'd been doing, and so forth, and to fit his personal experience into that context. Dr. Margaret A. Berger: Again, I am really not sure about what Kumho would necessarily say in this situation, because, on the one hand, it seems to say that personal experience and knowledge will count for a great deal. I am not at all sure that Kumho is saying that a tire expert's theory, Mr. Carlson's theory in the Kumho case itself, would have had to be thrown out by the court if it weren't so clear that this was an old, worn-out, abused tire that should have been taken out of service a long time ago, that the expert couldn't even tell how many miles it had been driven, no one knew how many miles it had been driven, it was a second-hand vehicle, and that, under those circumstances, the Court just couldn't believe that there was any cause for this tire blowout other than old age--precisely--a natural death, and that was it. Given that, in what is really a fairly simple case--compared to what we have been talking about today in terms of DNA and predicting character traits and whatnot--I think it's easy to read Kumho very equivocally as to what would be required with a tire. When you start applying this opinion to far, far more complicated cases such as Bert Black has been referring to, I do not know what the courts are going to do. They have a great challenge on their hands, and I think that they will deal with it in part in the context of the cases in which these issues arise. I do think that, despite the fact that, of course, Kumho says nothing about distinguishing between criminal cases and civil cases, neither does Rule 702, that of course there should be some differences that the courts will take into account, because the courts, too, are there to do justice, and I think that they are not oblivious to these differences. How can one be? I think that's what makes this a fascinating topic for all of us. These are very, very difficult questions. Dr. William Gardner: I think we have time for perhaps three questions at most, if we're very quick on both our questions and our replies. Participant: [Inaudible.] Dr. William Gardner: Let me comment, and then I'm sure Dr. Caskey will want to comment. The first part of your question was do scientists have a self-critical awareness about the social implications and the ethical aspects of the science that's done. There are now well-established rules and regulations on research ethics and how experiments with human subjects have to be conducted. That's different from what you're talking about, but it is an issue on which the medical sciences, at least, have had to address ethical issues about how we conduct our work. I would also point to the program on the ethical, legal, and social implications (ELSI) that is part of the human genome project. A fixed percentage of the money of the human genome project has been devoted to sponsoring research and discussion of the social and ethical implications of that science. It's hard to evaluate how much ELSI has accomplished, having watched it from a distance. I think that simply making the effort to systematically examine the implications was a very positive development. Dr. C. Thomas Caskey: I think, in science, we have the same difficulty that you have in the legal system. Our discovery rate is incredibly high right now. But how you act on that discovery is being taken much more cautiously. And in the genome project, these issues are debated extensively. I'll give you two examples. The discovery of the cystic fibrosis gene was made a long time ago. There was a great debate on whether we should embark upon a nationwide screening program for the CF gene, and after due deliberation--and there were parties in both camps, now's the time to act, now's not the time to act. Out of that discussion came the following decision for 1999 and probably a few years. Couples who wish to find out if they are at risk for bearing a child with cystic fibrosis should have the option of genetic testing to determine their risk. It's a family, prenatal diagnostic decision. The application of the CF testing for the general population was not recommended, because it was felt that the risk outweighed the potential benefit for the general population. So, CF testing is available, but CF testing is perceived to be of use in only certain settings. A second example, discovery of the Huntington's Chorea gene. You can do a molecular diagnosis for Huntington's disease that will predict, 10 years, 15 years from now, you will have that disease, and be very accurate, quite accurate, in that prediction. So, the question is do we begin now widely applying the Huntington's Chorea diagnostic situation to any [inaudible]. The decision that was made was the following. The diagnostic is so precise that anyone who comes in with a movement disorder should not deny the application of that test, because it gives you proof and precision. Now, when you extend beyond the index case, the affected individual, this gets to be something that is optional for any family member, and they should only use the testing with applicable instructions. So, these are some examples of how the availability of the diagnostic was there as soon as the genes were discovered, but the application can come in a variety of formats. Dr. William Gardner: Dr. Lederberg can add the last comment. Dr. Joshua Lederberg: I just also wanted to refer that Attorney General Reno has taken a special interest in the topic and has mandated a commission being managed by the National Institute of Justice on the use of DNA forensic evidence under the CODIS regime from, really, all of the aspects that you're concerned about. Shirley Abrahamson, who's Chief Justice of the Supreme Court of Wisconsin, is chairing that commission. Dr. William Gardner: I'd like to thank everyone on the panel and the audience for a very stimulating discussion. ------------------------------ Panel II. Admissibility: The Judge as Gatekeeper Moderator: Sam C. Pointer, Jr. Chief Judge U.S. District Court, Northern District of Alabama Birmingham, Alabama Panelists: Edward J. Imwinkelried Professor of Law University of California, Davis, School of Law Davis, California Myrna S. Raeder Professor of Law Southwestern University School of Law Los Angeles, California Chair, Criminal Justice Section, American Bar Association Dr. Richard Rau: [in progress] There would be a court case in the meantime that would make this session even more significant, but the second title for it--"The Judge as Gatekeeper"--I think, is rather appropriate. I asked the panel if they shouldn't talk about Kumho here, but unfortunately I can't really impose that on them. The moderator is the Chief Judge of the U.S. District Court in the Northern District of Alabama, and we're very pleased that he's here. I think you know his credentials. Then Professor Edward Imwinkelried. If you'll look in your program--I don't think we have to introduce these people to you in any detail. I'll let them speak for themselves, and I think you'll be impressed. Judge Sam C. Pointer, Jr.: Thank you very much, Dick. Let me start off with a little bit of a disclaimer. Toward the end of the session, someone raised issues about general and specific causation in the context of breast implant litigation, and as at least my bio indicates, I've been involved in the Federal coordination of some 27,000 of those cases. Many of you would be aware from news media reports yesterday and today--newspapers, TV--that we have some unusual problems in that case, actually, right at the moment. Namely that the plaintiffs filed on Tuesday of this week a motion to vacate the court appointment of four experts whom I had appointed to be mutually objective to assist under Rule 706 in that litigation. And the allegation in this motion to vacate the appointment is that one of the panelists engaged in inappropriate communications and relationships with one of the defendant manufacturers. That particular motion will be heard by me next Monday, and depending upon what happens there, we are scheduled on Tuesday to go forward with essentially the trial examination of these four experts. My disclaimer is this, for those of you who have sort of followed some of that in the newspaper. I am not receiving any honorarium for appearing here. My expenses are being paid by the Federal Judicial Center on a Government per diem basis, and though we have some people in this audience who are involved in or interested in that litigation, to the best of my knowledge, none of them are involved in any kind of payment to me. We will be dealing with the issue of the judge's role as a gatekeeper. Ed is going to start off with something about a way of analyzing what judges have done, or perhaps should be doing, in the way of treating Daubert motions--typically, preliminarily, in motions in limine, though sometimes at trial--and perhaps how the case decisions are coming out based upon what is actually presented to the judge. Myrna will then follow up with some additional comments on that subject, as well as getting to some of the problem areas, perhaps solutions or changes in how we go about this. I'll be coming back to give some reflections on this subject area, really based on about 28 years of being a Federal trial judge, because 28 years ago, we had at that point issues about the judge's role in handling expert testimony. Although it's gotten much more prolific, in many respects the problems have only become better defined, not newly emerging. And in that context, I will be talking about the tools that perhaps judges are using or may use and, indeed, will make a few comments about difficulties in trying to deal with either court appointments of experts or with the use of others to assist the court in making Daubert-type opinions. Because of the time limitations, although my two colleagues were originally to be given 20 minutes in which to make presentations, I'm going to exercise some judgment on this, and drop them down to 16 minutes per individual. This will give us more time for dialogue. I'll impose appropriate standards of limitation on myself. I think I can live up to that; at least I'll be embarrassed if I don't. I should say that, when we were talking in the early morning session about different cultures between those in the legal profession and those in the scientific community, some indication was that you can tell the differences by whether slides are used or not. My two colleagues share, to some degree, both science and law, and accordingly, they'll be using maybe two or three slides each and not a full presentation. Ed? Dr. Edward J. Imwinkelried: [Dr. Imwinkelried's remarks are presented in manuscript form.] The Judge as Daubert Gatekeeper: Adapting Old Maps to the Unfamiliar Terrain of the "Brave New World" In his opinion on remand in Daubert, Judge Alex Kozinski opined that the new Daubert test [1] would propel the Federal courts into a brave new world.[2] Judge Kozinski added that the judiciary's performance of its new gatekeeping role would prove to be a "daunting task."[3] It can be unsettling whenever anyone conjures up images of Huxley's Brave New World.[4] It can be positively unnerving if one speculates about the implications of thrusting a seemingly conservative institution such as the judiciary into a visionary future. Although the American judicial system ordinarily proceeds by gradual evolution rather than dramatic evolution, the system has another important characteristic: its exquisite adaptability.[5] The courts have repeatedly demonstrated their capacity to adapt to even radical developments such as the advent of technologies.[6] By way of example, the courts are now in the midst of the process of accommodating traditional First[7] and Fourth Amendment[8] principles to the novelties of cyberspace. My thesis today is that adaptability can serve the courts well in the context of performing their assigned gatekeeping and screening tasks under Daubert.[9] To be more specific, as intimidating as these new tasks might appear to the typical judge who lacks formal training as a scientist,[10] the judge can find reconnoiter in this brave new world by analogizing[11] to a familiar body of law. That body of law is the jurisprudence governing the initial burden of production or going forward at trial. There are several parallels between that body of doctrine and the judge's screening duty under Daubert. In both cases, the judge is performing a gatekeeping duty. Under the initial burden, the judge decides whether the cause of action, crime, or defense should be submitted to the jury. Under Daubert, the judge must decide whether a particular item of evidence ought to be submitted to the jury. Assuming that the judge assigns a party the burden on a particular fact of consequence at trial, this body of law determines whether the party has made out a submissible case and is entitled to have the factual dispute resolved by the trier of fact.[12] For purposes of this seminar, the corresponding question is whether the proponent of purportedly scientific testimony is entitled to have it submitted to the jury. The trial judge conducts his or her gatekeeping inquiry under Daubert for the express purpose of answering that question. In addition, under the jurisprudence governing the initial burden of production, in determining whether the proponent is entitled to get to the jury on a particular issue, the judge considers both the proponent's evidence and the contrary evidence submitted by the opponent.[13] The common denominator is that in Daubert, Judge Blackmun made it clear that Rule 104(a) governs the issue of whether the proponent's proffered testimony constitutes admissible "scientific . . . knowledge" within the meaning of that expression in Rule 702.[14] Under Rule 104(a), the judge attempting to screen out "junk science" must consider the evidence on both sides, pro as well as con,[15] on the issue of whether the proponent's testimony qualifies for admission under Daubert. Finally, in both settings, the proponent and opponent progress through various stages. Under the initial burden of production, the proponent can: lose because his or her showing is too weak,[16] reach the trier of fact when the issue is rationally arguable,[17] or fail because the opponent's contrary showing is overpowering.[18] As we shall see, the scientific evidence cases suggest that the proponent and opponent of that type of testimony can work through comparable stages. To be sure, there are differences between the two bodies of doctrine. The foremost distinction is that, when the judge passes on the question of whether the proponent has met the burden of going forward, the judge must ordinarily[20] accept the proponent's testimony at face value. The judge may not consider the credibility of the proponent's testimony. In contrast, when the judge assesses the testimony on a foundational or predicate question under Rule 104(a), the judge is entitled to pass on the credibility of the testimony.[21] However, that difference does not preclude using the sequence of stages for analysis under the initial burden for the purpose of developing a similar model under Daubert. It is true that under Rule 104(a), the judge must evaluate the credibility of the foundational testimony. However, after the judge has done so and identified the believable testimony on both sides, the judge must decide whether to admit the proponent's testimony. The Daubert decision comes after the credibility determinations. At the point of decision, the judge could theoretically use the same basic model to guide his or her decision. My contention today is twofold. First, in the process of evaluating the Daubert foundation, the judge can identify differing states of the record similar to the various states of the record under the initial burden of production. Second, and just as importantly, the identification of the type of state of the record can guide the judge's Daubert ruling, in much the same way as it dictates the judge's decision under the initial burden of production. We may be able to use the law governing the different states of the record under the initial burden of production as a rough map to help us find our way in the brave new world of Daubert. The objective of this short article is to develop these two theses. The first part of the article reviews the jurisprudence on the initial burden of production. This part distinguishes among five different states of the record under the initial burden and indicates the appropriate judicial ruling for each state. The second part of the article constructs the parallel to the gatekeeping inquiry under Daubert. Using examples drawn from published opinions, this part of the article argues that there are likewise at least five different states of the Daubert record. Further, the article contends that in each state, the judge should make an admissibility decision similar to the judicial ruling for the corresponding state of the record under the initial burden of production. ONE TERM OF THE COMPARISON: THE JURISPRUDENCE UNDER THE INITIAL BURDEN OF PRODUCTION OR GOING FORWARD In some jurisdictions in certain civil actions arising under contract[22] or tort[23] law, a defendant's insanity is treated as a defense to liability. Assume that a defendant properly raised the issue of his or her insanity by way of an affirmative defense in the responsive pleading. When a fact of consequence is properly raised at the pleading stage, at trial the judge must assign the initial burden on the fact to one of the litigants.[24] In most cases, the initial burden follows the burden of pleading; the party with the burden of raising the issue in the pleadings also has the initial burden of production or going forward on the factual issue.[25] Thus, in our hypothetical, the civil defendant would probably have the initial burden. In an attempt to meet that burden, the civil defendant could present any logically relevant, admissible evidence, including competent opinion testimony. A person's insanity is a proper subject for both lay[26] and expert[27] opinion testimony. Given that allocation of the initial burden and the admissibility of both types of opinion testimony, at our hypothetical trial the defendant and plaintiff could progress through the following stages, inter alia:[28] A. STAGE #1: The Burdened Party (the Civil Defendant) Fails to Produce Any Evidence to Sustain the Initial Burden of Production. Suppose that the defense attorney counted on one of the defendant's acquaintances[29] to testify that at the relevant time, the defendant was acting irrationally. However, the prospective witness fails to appear at trial. Consequently, the defense case-in-chief includes no admissible evidence that the defendant was insane. At the instructions conference after the close of all the evidence, the defense attorney requests that the judge instruct the jury on the defense of insanity. This state of the record presents the easiest decision for the trial judge. In this state of the record, the judge must deny the request. The judge makes a peremptory ruling, withdrawing the issue of the defendant's insanity from the jury.[30] In effect, the judge proclaims the burdened party's loss on the issue as a matter of law without ever submitting the issue to the jury. Since the record contains no competent evidence of the defendant's insanity, it would be irrational for the jury to infer insanity.[31] B. STAGE #2: The Burdened Party (the Civil Defendant) Fails to Produce Sufficient Evidence to Sustain the Initial Burden of Production. Vary the facts in the hypothetical. Now assume that the expected defense witness appears. However, the witness's testimony is not nearly as definite as the defense attorney had hoped for. The defense attorney anticipated that the witness would express a definite opinion that the defendant was acting irrationally at the relevant time. However, the witness's testimony is much more guarded. The witness is willing to testify only that the defendant "might have been acting a bit peculiar." Once again, after the close of the evidence the judge and parties retire to chambers for the instructions conference and, as in the previous variation of the hypothetical, the defense attorney asks the judge to instruct the jury on the defense on insanity. This is a more difficult case for the judge than the initial variation. In that extreme variation of the fact pattern, the defense failed to present any eviden