BOSTON—Ten years ago, when Elizabeth Loftus agreed to serve as an expert witness in a high-profile trial around the outing of Central Intelligence Agency agent Valerie Plame, she was no rookie. The cognitive psychologist at the University of California, Irvine, had been using her knowledge about human memory to testify in legal cases for three decades. But the opposing side’s prosecutor threw her a surprise. He found places in her academic papers where she pointed out flaws and inconsistencies in other groups’ memory studies—a common way that scientific authors explain why the present work is valuable. Now, she was citing those previous papers to bolster an argument in the case. “Are you trying to fob flawed data on this court?” she remembers him asking. “He was using our [scientific] culture against me.”
That impression of the legal system—as absolutist, adversarial, and unconcerned with scientific nuance—has been around for decades. But how common is the view among scientists, and how does it change after the experience of testifying or consulting on a case? “There’s lots of anecdotes, but nothing really modern and systematic,” said Shari Diamond, a professor of psychology and law at Northwestern University School of Law in Chicago, Illinois, on a panel today alongside Loftus here at the annual meeting of AAAS, which publishes Science. She presented results of a new survey of scientists, which shows that although negative views are common, serving in a legal case generally seems to improve them.
Diamond and her co-chair on the survey, sociologist and law professor Richard Lempert of the University of Michigan in Ann Arbor, targeted an elite group—scientists and engineers who had been elected fellows of the American Academy of Arts & Sciences, a policy research center based in Cambridge, Massachusetts. The 367 online respondents were overwhelmingly older men—with a median age of 71—nearing the end of academic careers in math, physical science, biology, or social science. Roughly half had been asked to participate in a legal case, and 72% had done so.
Among those who refused the invitation, age-old doubts about the legal system were common. Whereas more than half cited bad timing or other commitments as reasons for refusing, nearly a quarter also expressed distrust of the legal system, and about a fifth were concerned that lawyers were after their reputation more than their knowledge, Diamond and Lempert report.
To look for evidence that experience in court might change scientists’ attitudes, Diamond and Lempert compared people who had participated in cases to the best available control: those who were willing and had accepted an invitation but hadn’t participated, presumably because cases were settled. That comparison suggests participation can brighten a scientist’s view of the court. For example, 25% of the would-be participants believed that lawyers can understand science, and the number rose to 43% in those with court experience. And belief that scientists in the court were treated with respect also varied—38% in the “would-bes” versus 57% in “had-beens.”
In Loftus’s decadeold case, the judge ultimately refused to admit her testimony. But the clash of cultures hasn’t dissuaded her from continuing to serve. In the survey, however, 28% of participants said they were unlikely or extremely unlikely to take part in future cases. But they also gave feedback about what would make them more willing to come back: Nearly 60% said they’d like to meet privately with an opposing expert to write a joint report on areas where they agreed and disagreed. The idea that jurors could ask experts questions after their testimony got a similar level of support.
Those responses offer clues for bumping up participation, Diamond says. “We would like to see scientists be more willing to engage, because they have something to offer,” she says. “It’s important that the legal system get the best quality science it can get.”
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