Didactic Trial Procedures
| DOI | 10.1177/136571279800200305 |
| Author | Edward Imwinkelried |
| Published date | 01 July 1998 |
| Date | 01 July 1998 |
| Subject Matter | Correspondence |
CORRESPONDENCE
Didactic
trial
procedures
Dear
Editors
Igreatly appreciated Mr Edmond's critique
at
(1998) 2 E &P 13-31
of
my own article
published
at
(1997) 1 E &P128-48,
which
put
the
case for didactic
trial
procedures. I
am
pleasantly
surprised
that
my
modest
proposal
generated
some controversy
and
found Mr Edmond's discussion
of
the
sociology
of
science informative. However, in
re-reading Mr Edmond's article I
must
conclude
either
that
he misread my proposal or
that
he is
taking
aposition
which
is
both
simplistic
and
dangerous.
The first possibility is
that
he simply
misinterpreted
my article. My
modest
proposal
was for a
judge's
lecture
limited
in scope to judicially noticeable propositions. The
term
'judicial
notice' was used at five
points
in my article. I
thought
that
I
had
made
it
patent
that
the
proposal was restricted to
situations
in
which
there
was
such
extensive empirical validation
and
widespread scientific consensus
that
the
fact
would qualify for
judicial
notice
under
Federal Rule
of
Evidence 201(b)(2). I was
astounded
that
the
term
'judicial
notice'
did
not
appear
in Mr Edmond's article.
Drawing
upon
the
sociology
of
science, Mr Edmond
points
out
that
equally
credentialled
scientists
can
have
antagonistic
perspectives on a
particular
topic. Mr
Edmond argues
that
in
that
event, it
would
be
inappropriate
for
the
judge
or
court-appointed
expert
to
lecture
the
jury
on
that
topic. Iconcur. My proposal would
come
into
play only
when
the
topic satisfies
the
standard
for
judicial
notice.
Where
two perspectives on
an
issue
each
enjoy a
substantial
following,
the
judge
should
deny
the
request
for
judicial
notice. Thus,
the
limitation
on my proposal to judicially
noticeable propositions would largely
meet
Mr Edmond's concerns.
The second possibility,
which
Ifind
troubling,
is
that
Mr Edmond rejects
the
distinction
between
judicially
noticeable scientific propositions
and
other
scientific
hypotheses. For instance, apassage
at
p. 13
of
his article could be
read
as
contending
that
in
the
light
of
the
sociology
of
science,
the
distinction
is
untenable
and
that
judges
are
incompetent
to
determine
whether
sufficient
validation
and
consensus
exist to
meet
the
standard
for
judicial
notice. If
that
is Mr Edmond's position, I
disagree.
First,
there
is a defensible
distinction
between
judicially
noticeable propositions
and
other
scientific 'facts'. Iagree
with
Mr Edmond's
assertion
that
an
expert's
values
and
biases
can
affect his or
her
claims
about
phenomena.
However,
the
validity
of
Mr
Edmond's
generalisation
is limited. Purportedly, scientific propositions differ widely
in
the
extent
of
their
empirical
validation
and
general acceptance. Consider afresh
hypothesis based
upon
the
facts
of
Daubert.
Suppose
that
one
of
the
30 published
epidemiological studies
of
Benedictin
had
found arelative
risk
ratio exceeding 2.0.
Given
the
possibility
that
aresearcher's biases
could
impact
on
the
study,
it
would still
be
rational
for a
woman
to
continue
to use Benedictin. However, as a toxicologist
THE
INTERNATIONAL
JOURNAL
OF
EVIDENCE
&
PROOF
205
To continue reading
Request your trial