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Science and Law – Part 1

April 26, 2007

-Read part 0 here

Truth in Science and Law

Science as a independent research topic, and science used in the aid of convicting both look for truth. The difference between the two activities is the context:
For the most part, facts produced to serve the aims of litigation do not grow out of, nor play a part in, the same kinds of social interactions as do the facts produced in basic research science or even in regulatory science.
Because of the different contexts, there’s also a difference in what is regarded as “truth”. A simple illustration is in the judiciary: to convict a suspect, facts have to be “proved” beyond reasonable doubt. In a strict sense this is not a proof, as doubt may always exist. It’s not a mathematical formula that can be proven. So, in short, what is true for the law, doesn’t need to be true for science.
There are four differences between Truths in science and law:

  • A truth in science should be valid in a general case, whereas truths in the law is only of interest in specific cases. With this notion, it immediately becomes clear that the way the scientific community eastablished facts doesn’t work in law: in most cases there’s no peer review, hence no replications of the fact. Also, the purpose of science is to advance the knowledge, so that that knowledge of today can be used tomorrow. In contrast, the purpose of science in the law is to use the knowledge of today for things that happened in the past. This leads to enormous costs in order to reduce any doubt, needed for a just process. Those resources could be used more efficiently.
  • Delay. Among with the enormous cost comes a long delay to iron out all the doubts. But it is necessary; otherwise the defense can easily punch a hole in the argument: “In civil cases, plaintiffs need only demonstrate by a perponderance of the evidence that their version of the case is more likely than not to be true. In criminal cases, the defendant needs the quantum of evidence that produces a reasonable doubt in the jury’s mind in order to be acquitted. Legal evidence, in other words, need not and should not be held to scientific standards of robustness.
  • It’s “ethically and practically questionable” that foolproof science can be used to remove any doubt, as it’s mostly “the poor, the disadvantaged, and the racially makred who are actually executed.” Especially in an adversarial system like the US, the judge doesn’t have an active role in finding the truth. He / she listens to both parties, and hopefully tries to distill the truth from that. A good (expensive) defense lawyer is essential in the creation of doubt; in this way the poor aren’t likely to be acquitted.
  • Law has the final word in the conviction (situation in the US). This is illustrated by a 1993 Suppreme Court decision, “which held that a claim of actual innocence is not enough to reopen a criminal conviction based on a fair trial; the prisoner, who is no longer entitled to a presumption of innocence, must also show constitutional error.” Or, to put it differently, science can be used to convict someone, but it can’t be used to free an already convicted prisoner (unless there’s a constitutional error). In the Netherlands this is a little different, but comparable (Puttense moordzaak). Therefore, a scientific truth and a legal truth aren’t the same.
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