Just Evidence: The Limits of Science in the Legal Process

Commonwealth of Massachusetts, Executive Department, Press Release, April 28, 2005.

Commonwealth v. Colon-Cruz , 393 Mass. 150 (1984) (on the grounds that the capital punishment law enacted by the state legislature encouraged defendants to plead guilty rather than seek a jury trial, thus forgoing their right against self-incrimination).

LeBlanc S. , “Romney Prepares to File ‘Scientific’ Death Penalty Bill,” Boston Globe, December 28, 2004, at <http://www.boston.com/news/local/massachusetts/articles/2004/12/28/romney_prepares_to_file_scientific_death_penalty_bill/> (last visited March 20, 2006).

Merton R. K. , “The Normative Structure of Science,” in The Sociology of Science: Theoretical and Empirical Investigations (Chicago: University of Chicago Press, 1973): 267–278.

Daubert v. Merrell Dow Pharmaceuticals, Inc , 509 U.S. 579 (1993).

General Electric Co. v. Joiner , 139 L.Ed.2d 508 (1997).

Bacon F. , “Of Truth,” in Vickers B. , ed., The Essays or Counsels Civil and Moral (Oxford: Oxford University Press, 1999): 3–5.

For firsthand accounts of this seminal discovery of twentieth century biological sciences, see Watson J. D. , The Double Helix: A Personal Account of the Discovery of the Structure of DNA (New York: Signet, 1968); Crick F. , What Mad Pursuit: A Personal View of Scientific Discovery (New York: Basic Books, 1988).

Golan T. , Laws of Men and Laws of Nature: The History of Scientific Expert Testimony in England and America (Cambridge, MA: Harvard University Press, 2004).

Frye v. United States , 293 F. 1013 (D.C. Cir. 1923).

Dumit J. , Picturing Personhood: Brain Scans and Biomedical Identity (Princeton, NJ: Princeton University Press): at 121–122.

Nelkin D. and Tancredi L. , Dangerous Diagnostics: The Social Power of Biological Information (New York: Basic Books, 1989): at 10.

Quoted in Dumit, Picturing Personhood, supra note 11, at 123.

Cole S. , Suspect Identities: A History of Fingerprinting and Criminal Identification (Cambridge, MA: Harvard University Press, 2001).

Goodwin C. , “Professional Vision,” American Anthropologist 96, no. 3 (1994): 606–633.

Jasanoff S. , “Expert Games in Silicone Gel Breast Implant Litigation,” in Freeman M. and Reece H. , eds., Science in Court (London: Dartmouth, 1998): 83–107.

For an overview of the role of this technology in criminal identification, see Lazer D. , ed., DNA and the Criminal Justice System: The Technology of Justice (Cambridge, MA: MIT Press, 2004). Early legal controversies about the technique's adoption are reviewed in Jasanoff S. , Science at the Bar: Law, Science, and Technology in America (Cambridge, MA: Harvard University Press, 1995); Golan T. , Laws of Men and Laws of Nature: The History of Scientific Expert Testimony in England and America (Cambridge, MA: Harvard University Press, 2004).

For the history and accomplishments of the Innocence Project, see their website, at <http://www.innocenceproject.org/> (last visited March 9, 2006).

Quoted at The Pew Forum on Religion and Public Life website, Event Transcript: Governor George Ryan: Address on the Death Penalty, at <http://pewforum.org/events/index.php?EventID=28> (last visited March 9, 2006).

Quoted from an anonymous referee report on an earlier draft of this article.

Hoffman J. L. Bieber F. R. , “Report of the Governor's Council on Capital Punishment,” Indiana Law Journal 80, no. 1 (2005): 1–27. Also available online at <http://www.mass.gov/Agov2/docs/5-3-04%20MassDPReportFinal.pdf> (last visited March 9, 2006).

Id., at 4.

Id., at 5.

Lewis R. , “Romney Files Death Penalty Bill,” Boston Globe, April 29, 2005, at A1.

Associated Press, “House Defeats Romney Death Penalty Bill,” November 15, 2005, posted at <http://www.kucinich.us/phpBB2/viewtopic.php?p=20076#20076> (last visited March 9, 2006).

Glod M. and Shear M. D. , “DNA Tests Confirm Guilt of Executed Man,” Washington Post, January 13, 2006, at A1.

See Jasanoff S. , The Fifth Branch: Science Advisers as Policymakers (Cambridge, MA: Harvard University Press, 1990): at 250 (suggesting that the degree of certainty sought from science should be proportional to the ends to be achieved).

Gibbons M. Limoges C. Nowotny H. Schwartzman S. Scott P. , and Trow M. , The New Production of Knowledge (London: Sage Publications, 1994).

Jasanoff S. , “What Judges Should Know about the Sociology of Science,” Jurimetrics 32, no. 3 (1992): 345–359. On regulatory science more specifically, see Jasanoff , The Fifth Branch, supra note 11, at 76–83.

In the silicone gel breast implant litigation, where hundred of thousands of claims were at stake, multiple epidemiological studies conducted after the lawsuits began appeared to disconfirm plaintiffs' initial complaints of immune system disorders caused by leaked silicone. Although such concentrated research attention is unusual in litigation science, the case has been read by some as confirming the law's inability to distinguish between good and bad science. Angell M. , Science on Trial: The Clash of Medical Evidence and the Law in the Breast Implant Case (New York: Norton, 1996).

See, for example, Dean C. , “Where Science and Public Policy Intersect, Researchers Offer a Short Lesson on Basics,” New York Times, January 31, 2006, at 1, (quoting Kennedy Donald , editor of Science, supporting this view of replication).

The football star and media figure Simpson O. J. was tried and acquitted in 1995 for the double murder of his wife Nicole Brown and her friend Ronald Goldman. Subsequently, in 1997, Simpson was tried and held responsible in a civil trial for having wrongfully caused their deaths. Details of the scientific evidence in the criminal trial may be found in the Simpson O. J. Murder Trial and DNA Typing Archive, 1988–1996, Collection No. 53-12-3037, Cornell University Library, Ithaca, New York.

Council Report, supra note 21, at 5.

Jasanoff S. , Science at the Bar: Law, Science, and Technology in America (Cambridge, MA: Harvard University Press, 1995): at 50–52, 206–210.

Olsson K. , “Death Wish,” Boston Globe Magazine, January 1, 2006, at 18.

For illustrations of this discrepancy in DNA identification cases, Halfon S. , “Collecting, Testing and Convincing: Forensic DNA Experts in the Courts,” Social Studies of Science 28, nos. 5–6 (1998): 801–828.

See, for example, Harvey v. Horan , 278 F.3d 370, 373 (4th Cir. 2002), petition for rehearing and rehearing en banc denied, 285 F.3d 298 (4th Cir. 2002) (denying prisoner's claim for post-conviction DNA testing on the ground that legal finality cannot be sacrificed to changes in technology).

Herrera v. Collins , 506 U.S. 390 (1993).

Massachusetts Citizens Against the Death Penalty, “Governor Romney's Imperfect ‘Perfect’ Death Penalty Bill,” at <http://www.mcadp.org/Imperfect.htm> (last visited March 9, 2006).

Vaughan D. , The Challenger Launch Decision: Risky Technology, Culture, and Deviance at NASA (Chicago: University of Chicago Press, 1996).

Wynne B. , “Unruly Technology,” Social Studies of Science 18, no. 1 (1988): 147–167.

Jasanoff S. , ed., Learning from Disaster: Risk Management after Bhopal (Philadelphia: University of Pennsylvania Press, 1994).

Columbia Accident Investigation Board, Report, Volume 1, Washington, DC: CAIB, August 2003, at 130.

Broad W. and Wade N. , Betrayers of the Truth: Fraud and Deceit in Science (Oxford: Oxford University Press, 1985): at 64.

Merton , “Normative Structure,” supra note 4.

Wade N. , “Korean Scientist Said to Admit Fabrication in a Cloning Study,” New York Times, December 16, 2005, at A1.

“Trooper Goes on Trial on Charge of Faking Fingerprint Evidence,” New York Times, March 28, 1994, at B5.

“Police Faking Fingerprints to Solve Cases,” ABC World News Tonight, February 15, 1994, Transcript # 4032–5, at <http://www.law-forensic.com/cfr_fab_fp_3.htm> (last visited March 9, 2006).

Nordheimer J. , “Trooper's Fall Shakes Both Police and Public,” New York Times, November 15, 1992, at 1, 1.

American Society of Law, Medicine & Ethics, DNA Fingerprinting and Civil Liberties, Report of Workshop 2, Cambridge, MA, September 17–18, 2004, at <http://www.aslme.org/dna_04/work2/report.php> (last visited March 9, 2006).

Cole S. , “Is Fingerprint Identification Valid? Rhetorics of Reliability in Fingerprint Proponents' Discourse,” Law and Policy 28, no. 1 (2006): 109–135, at 116.

Jasanoff S. , Designs on Nature: Science and Democracy in Europe and the United States (Princeton: Princeton University Press, 2005): at 52–54.

Angier N. , “Variant Gene Tied to a Love of New Thrills,” New York Times, January 2, 1996, at A1.

Morrell V. , “Evidence Found for a Possible ‘Aggression’ Gene,” Science 260 (1993): 1722–1723. See also Stevenson R. W. , “Researchers see Gene Link to Violence but Are Wary,” New York Times, February 9, 1995, at 29.

Koshland D. , “Sequences and Consequences of the Human Genome,” Science 246, no. 4927 (1989): at 189.

Lewontin R. C. , Biology as Ideology: The Doctrine of DNA (New York: Harper Collins, 1993): 19–37.

See, for instance, Duster T. , Backdoor to Eugenics (New York: Routledge, 1990): 53–56.

Barinaga M. , “Is Homosexuality Biological?” Science 253 (1991): 956–957.

Pool R. , “Evidence for Homosexuality Gene,” Science 261 (1993): 291–292; see also Hamer D. H. Hu S. Magnuson V. L. Hu N. Pattatucci A. M. L. , “A Linkage between DNA Markers on the X Chromosome and Male Sexual Orientation,” Science 261 (1993): 321–327.

Angier N. , “Study Suggests Genes Sway Lesbians' Sexual Orientation,” New York Times, March 12, 1993, at A11.

Wickelgren I. , “Discovery of ‘Gay Gene’ Questioned,” Science 284 (1999): at 571; Marshall E. , “NIH's ‘Gay Gene’ Study Questioned,” Science 268 (1995): at 1841.

Allen G. , “Modern Biological Determinism: The Violence Initiative, The Human Genome Project, and the New Eugenics,” in Fortun M. and Mendelssohn E. , eds., The Practices of Human Genetics (Dordrecht: Kluwer, 1999): 1–23.

Id., at 2.

Pennisi E. , “The Human Genome,” Science 291, no. 5507 (2001): 1177–1180.