Science in the courtroom: the mouse that roared.

• Author: Binnie, Ian
• Position: Canada

[I]f matters arise in our laws which concern other sciences and faculties, we commonly call for the aid of that science or faculty which it concerns, which is an honourable and commendable thing. For thereby it appears that we do not despise all other sciences but our own, but we approve of them and encourage them ... (1)

INTRODUCTION

We live in an age dominated by science and technology. The question I want to address is whether the courts are doing a proper job of resolving disputes where an appreciation of such technical matters is necessary. The litigation of scientific and technological issues--symbolized perhaps by the mouse in the courtroom, whether it be the Harvard Mouse (2) or the Stuart Little mouse, a rodent with human brain cells, (3) or even worse, the mysterious Schroedinger's cat which can be shown by physicists to be simultaneously alive and dead (4)--is a prospect that leaves much of the legal community justifiably shaking in its Luddite boots. But however daunting, the task of making courts more science friendly is important to sustaining the legitimacy of courts as dispute resolution institutions.

Science disputes are hitting the courts at an increasing velocity. In cases involving tort, environmental, intellectual property and criminal law, the admission and use of expert scientific or technical testimony is often crucial to the outcome. These cases frequently raise policy concerns that collide. For example, there have been very interesting disputes dealing with customized bacteria used to fight oil spills and other pollution, where scientists have designed a bacterium that has no counterpart in nature. But of course, once the pollution is eaten up, the bacteria keep on reproducing. If a court does not understand exactly what was modified and what the consequences of unleashing such organisms into the environment are, how can a court determine legal questions related to liability and remedies? From a scientific standpoint, one of the solutions to the problem of natural reproduction is to build into the organisms a so-called "suicide gene" so that at a certain point, the bacteria simply die. That sounds like a good idea, but then Monsanto came along with a genetically-modified soy bean containing a suicide gene and critics said, "This is contrary to the Competition Act because you're forcing the farmer to go back to Monsanto every year to buy seed." (5)

Recently, a group of scientists visited the Supreme Court of Canada. They told us that nanotechnology (6) will create the next big wave of litigation. Harnessing so-called quantum nanotechnology, governments will be able to make devices to listen to private communications, however cleverly encrypted, and the legitimate parties to the communication will not be able to tell whether their communication has been intercepted or not. Other nanoscientists are working on a customized molecule to dust the site of brain surgery. It seems the dust will prevent scar tissue from forming and thus allow the tissue to knit. But what if the dust has disastrous unexpected side-effects? There are also applications of nanotechnology to deliver medicines to the right place in the body. But what is the legal liability if the delivery fails or runs amok and the patient is injured or dies? It is important that parties injured by such scientific initiatives, as well as those defending against the claims, have confidence in a court's ability to understand and evaluate the expert evidence.

Lawyers and Scientists Seem to Inhabit Different Universes

Superficially, and misleadingly, the cultures of the lawyer and the scientist seem to have much in common. (7) We all try to act on "evidence" and use comparable indicia of expertise and testing in the search for reliability. Conclusions are drawn from the accumulated evidence through logic, deduction and induction. Yet in truth, we largely inhabit mutually skeptical solitudes, and where these solitudes rub together the result is often not pleasurable for either discipline, especially for the judge. For instance, the idea of "evidence" seems to mean something quite different to scientists than to judges. In science, "evidence" is not equivalent to "proof". (8) For the most part, theories cannot truly be "proved" in the sense that they become indisputable. Almost all scientific conclusions are considered provisional. (9) Theories can be supported by more or less evidence and may eventually come to be accepted as the dominant or most likely explanation of observed phenomena. The phrase "consistent with" to a scientist merely means that something cannot be excluded as an explanation. It does not connote any particular weight, association or commonality. However, to judges, lawyers, and the public this phrase is often interpreted to mean that there is a "match". (10)

The average judge is likely to have little background in science generally; much less particular expertise in the field to which the dispute relates. Even worse, while the lawyers have had months and perhaps years of preparation, the judge hits a dispute cold and is expected to get "up to speed" within a few of days on matters which the expert witnesses have spent a professional lifetime attempting to understand. The predicament of the judge was well summarized by Justice Frank Muldoon, a larger-than-life figure, who sat for years as one of the leading judges in the Federal Court, Trial Division. The topic was a patent dispute involving the dryer-added clothes fabric conditioner called BOUNCE. Unilever had claimed that the coating (animal fat and sugar extract) on the substrate of Procter & Gamble's dryer sheet violated a Unilever patent. Legions of experts were called by both sides to argue about how this animal fat mixture distributed itself on clothing during the dryer cycle. Millions of dollars hung in the balance. After a lengthy trial in which there were periodic outbursts from Muldoon J. complaining that all this talk of surfactants, contact angles, and surface tension was incomprehensible, he eventually exploded in his final reasons for judgment as follows:

A judge unschooled in the arcane subject is at difficulty to know which of the disparate, solemnly-mouthed and hotly contended scientific verities is, or are, plausible. Is the eminent scientist expert with the shifty eyes and poor demeanour the one whose "scientific verities" are not credible? Cross-examination is said to be the great engine for getting at the truth, but when the unschooled judge cannot perceive the truth, if he or she ever hears it, among all the chemical and other scientific baffle-gab, is it not a solemn exercise in silliness? (11) As counsel for Unilever, I took little comfort in this cri de coeur (although Unilever won the case), but the fact of the matter is that judges and jurors may have no means of assessing credibility except through the usual clues applicable to witnesses generally. Even body language and physical appearance, as Muldoon J. observed, may well be misleading when it comes to expert witnesses. (12) In the absence of anything better, the court may be overly impressed with credentials and reputation, and too little focussed on the validity and content of the scientific testimony itself, which may have been presented in a disjointed and confusing manner.

In a criminal case, the Manitoba Court of Appeal criticised the way in which a scientific point was argued for just this reason:

It can be seen that Crown counsel was inviting the jury to determine a question of science on the basis of their impression of the demeanour of the witnesses. (113) Yet the same flaw appears frequently in judge-alone cases. In Lubrizol Corp. v. Imperial Oil Ltd., (14) a patent case involving heavy molecular weight dispersants in motor oils, the evaluation of the expert witnesses by the trial judge includes the following:

Each witness, especially the expert witnesses, received very careful scrutiny by myself with attention paid not only to their answers, but also to their demeanour, out-of-line advocacy, evasiveness, (15) My note on that day reads: "Dr. Klaus would be a better witness if he showed more confidence in counsel who are experienced and competent." (16) After hearing Billmeyer's evidence in reply, I had written as one of my comments: "Impressive, straightforward, very convinced that he's right in his observations and conclusions." (17) What is the scientific community to think about the administration of justice if experts are to be judged like travelling salesmen on the basis of their ability to project confidence and conviction? One hesitates even to ask. Here are a few representative complaints from some experts who felt "burned" by their trial experience:

1. "There is no opportunity to explain evidence or interpretation oneself, no assurance that counsel will explain it clearly or in a sophisticated fashion, and no opportunity to correct errors or crudities which creep in."

2. "There is no guarantee that counsel will even understand the arguments the expert has made, and consequently no guarantee that questions which may be posed by the judges will be correctly or clearly answered."

3. "The expert witness is almost entirely at the mercy of counsel on both sides. The expert must depend on counsel to present his or her views fairly and forcefully.... [scientists] do not get an opportunity to defend themselves against misquotation or selective quotation by opposing counsel." (18)

   A common thread woven through these complaints is the impression (perhaps false) among some scientific experts that the legal system suffers from amateurishness when it deals with scientific matters. Our courts are said not to be scientific enough in their approach to scientific evidence. Legal academics, too, sometimes offer observations surprising enough to make scientists rub their eyes, as in the case of Stephane Beaulac and Pierre-Andre Cote, professors of law at the Universite de...