Document Type

Article

Publication Title

William and Mary Law Review

Publication Date

1998

Abstract

Conflicts of interest have significant implications for the reliability of scientific expert testimony. However, the courts' treatment of conflicts is not always in accord either with the treatment of conflicts in scientific practice or with the particular problems that scientists' conflicts present in court. In response, this Article proposes two basic changes in the treatment of scientific expert testimony. First, courts should strive to separate issues of bias from issues of scientific validity-the two sets of issues are now conflated at times. Second, courts should pay more attention to biases of scientists who perform the research underlying expert testimony, whereas now the focus is almost exclusively on the biases of the witnesses who testify. More generally, this Article casts doubt on the wisdom of Daubert's deference to scientific standards for determining evidentiary admissibility. The scientific questions that come before courts are generally both contentious and uncertain. When such questions are at issue, conflicts of interests often alter not only normal scientific research practices, but also the two most frequently used criteria of scientific validity relied upon by Daubert: peer review and general acceptance in the scientific community. Although the Daubert criteria may be valid in most scientific contexts, they are likely to function least well for exactly those scientific issues that come before the courts.

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