SCIENCE IN EVIDENCE by D. H. Kaye. Cincinnati, Ohio: Anderson Publishing Co., 1997. 409 pages. ISBN: 0-87084-480-6.

Reviewed by Roger Handberg, Department of Political Science, University of Central Florida
 

The O.J. Simpson trial controversy and, more recently, the Department of Justice’s critical report evaluating the F.B.I. Crime Laboratory, have generated great public interest regarding the issue of the reliability and validity of evidence provided in court by expert witnesses. Practicing attorneys and scholars of the trial courts have long been interested in such witnesses and their effects upon decisions. These witness provide in principle scientifically based interpretations of physical evidence, evaluate individuals’ competence, behavior and truthfulness, assist in memory reconstruction, and evaluate often highly contentious claims regarding the effects of environmental pollutants and toxic materials upon humans and their surroundings. This volume provides an overview of this area for prospective lawyers (law students) and practicing attorneys. That intended audience obviously structures what is presented in that the volume presents a mixture of legal and scientific-technical materials with heaviest emphasis upon the former. Professor Kaye closely edits court opinions and reports on various aspects of scientific knowledge as applied in trial court proceedings and reviewed by appellate courts.

The style of presentation is typical law school in that an opinion or report excerpt is presented followed by a combination of questions for the law students to analyze further and some elaboration of particular points to guide their deliberations and analyses. The volume considers at least in passing most of the relevant controversies regarding use of scientific evidence. The biggest issue is when does a particular empirical point or scientific procedure becomes established in law for court use and when does it remain subject to continued dispute. The deficiency from a political science perspective is that there is comparatively little generalized public policy analysis regarding the critical issues of competence in handling, processing and reporting on such evidence. Such myopia reflects the legal decisional process in action. One deals with the issue one case at a time, often neglecting or misconstruing previous decisions.

This concern with scientific evidence comes in two forms. First, clearly, there are significant questions regarding the handling and processing of scientific evidence. The volume deals most extensively with DNA fingerprinting since that issue is the most visible controversy. Arguments over processing such evidence continue as do controversies over how the results are reported. For example, the issue of what probabilities (i.e., Likelihood Ratios) to attach to a particular DNA type is critical in influencing jury deliberations. Should a particular match be reported as 1:10,000 or 1:10,000,000?

This technical decision dramatically alters lay perceptions of the certainty of guilt. Therefore, it remains hotly debated. But none of the parties are disinterested ones, so resolution of the issue remains subject to the vagaries of lawyer and expert witness credibility in court -- a factor which may have little or no relationship to the underlying realities. But, based upon the citations, the question of lab competence is a broader one than just for DNA evidence. In fact, terming much of the evidence "scientific" is possibly a misnomer given the inaccuracies and biases inherent in crime lab processes (whether public or commercial). Crimes do not occur in pristine laboratory settings so generalization to crime scenes may be inaccurate.

The second issue involves the credibility and competence of the expert witnesses called to testify in court. The fungibility of the testimony presented by expert witnesses, depending upon which side has hired them, raises severe questions concerning the reliability and validity of the evidential base being presented. This issue is especially potent regarding psychological evidence, reflecting the nebulousness of many of the underlying concepts. There are no easy answers to these concerns, but given the stakes involved (possibly the death penalty for some defendants), greater discussion would have been useful. In one sense, the book reflects the myopia of the courts: out of sight, out of mind. If attorneys do not raise the issue, it remains subterranean.

Unfortunately, too many law students, while very bright intellectually, are not terribly interested or trained in science or the scientific process. This explains why judges (former law students) continue to allow objections to be raised, ones which have been disposed of long before, but with no closure. Consequently, individuals make a good living testifying in contradiction to established scientific findings with no support for their contrary position except that someone needs an argument to confuse the issue and the court. The result is that the courts are often subject to fads as new techniques come to prominence. Proposals have been made to establish procedures for systematic evaluation of new evidentiary techniques but those have foundered upon the technical incompetence of the bench and the disinterest of the general scientific community in being involved. They complain but do not participate, to the loss of both the legal community and the legal profession.

Regardless, this volume does provide the opportunity to inform interested future lawyers (and judges) regarding the issues, and it may bear fruit in future years. Overall, Professor Kaye has produced a tightly edited work, hitting the major precedents along with a sampling of the controversies underlying selected aspects of the field. The caveats mentioned above do not distract from the value of the volume. The index however is extremely disappointing in its sketchiness. For political scientists, the volume would be a supplementary text in a course considering the trial process. The earlier intense controversies over social science evidence are not considered (i.e., cases involving school desegregation, residential segregation, and legislative apportionment) because they are apparently not deemed scientific. The inclusion of psychological evidence in this volume makes that judgment somewhat suspect.