Abstract
In place of the traditional epistemological view of knowledge as justified true belief we argue that artificial intelligence and law needs an evidence-based epistemology according to which scientific knowledge is based on critical analysis of evidence using argumentation. This new epistemology of scientific evidence (ESE) models scientific knowledge as achieved through a process of marshaling evidence in a scientific inquiry that results in a convergence of scientific theories and research results. We show how a dialogue interface of argument from expert opinion, along with its set of critical questions, provides the argumentation component of the ESE. It enables internal scientific knowledge to be translated over into a wider arena in which individual nonexpert citizens and groups can make use of it. The external component shows how evidence is presented and used in a legal procedural setting that includes fact-finding, weighing the credibility of expert witnesses, and critical questioning of arguments. The paper critically reviews the standards of admissibility of scientific evidence using the ESE.
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Notes
Webster’s New World Dictionary 1305.
Working Group on Teaching Evolution, National Academy of Sciences, Teaching About Evolution and the Nature of Science 27 (1998).
These scholars think that science aims at a descriptive and explanatory account of experience.
Aristotle (1831, 7, 1011b26–8).
Einstein (1954).
For details about inconsistency in science, see French and da Costa (2003).
But at the “macro” (paradigmatic) level, where the proponents of a new—even, revolutionary—theory do battle with those protecting the status quo, more research may not be the key to resolution. See Weed (2007).
See Twining (2006) (explaining that one of the assumptions of the rationalist tradition of evidence and proof is that “[e]stablishing the truth about particular past events in issue in a case (the facts in issue) is a necessary condition for achieving justice in adjudication; incorrect results are one form of injustice”).
See Damaška (1997). Damaška suggests that the conventional jury courtroom will probably be confined to a very narrow category of causes and blue-ribbon juries, or special expert panels will find acceptance in many types of civil proceedings. Id. at 148.
Folkes v. Chadd, 3 Dong KB 157,159, per Lord Mansfield (1782).
This means that it must be applied to solve a problem.
Isaac Newton (1687, 1713, 1726). "Rules for the study of natural philosophy", Philosophiae Naturalis Principia Mathematica, Third edition. The General Scholium containing the 4 rules follows Book 3, The System of the World. Reprinted on pages 794–796 of I. Bernard Cohen and Anne Whitman's 1999 translation, University of California Press, ISBN 0-520-08817-4, 974 pp.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993).
Green (1992), cited in Daubert amici curiae brief of Nicolaas Bloembergen et al.
The European Environmental Agency defines three classifications of scientific uncertainty: risk (known impacts and known probabilities), uncertainty (known impacts and unknown probabilities), and ignorance (unknown impacts and unknown probabilities). See Harremoës et al. (2001).
Under determination implies that there is always room for questioning the validity and reliability of any scientific test of any scientific hypothesis. See McMullin (1995).
The acts of misconduct on the part of Zain included (l) overstating the strength of results; (2) overstating the frequency of genetic matches on individual pieces of evidence; (3)misreporting the frequency of genetic matches on multiple pieces of evidence; (4) reporting that multiple items [of evidence] had been tested, when only a single item had been tested; (5) reporting inconclusive results as conclusive; (6) repeatedly altering laboratory records; (7) grouping results to create the erroneous impression that genetic markers had been obtained from all samples tested; (8) failing to report conflicting results; (9) failing to conduct or to report conducting additional testing to resolve conflicting results; (10) implying a match with a suspect when testing supported only a match with the victim; and (11) reporting scientifically impossible or improbable results. See re Investigation of the W. Va. State Police Crime Lab., Serology Div., 438 S.E.2dW. Va. 501, 503 (1993).
The list below is taken from the summary in Godden and Walton (2006), 261–286.
The Gettier problem is considered a problem in modern epistemology issuing from counter-examples to the definition of knowledge as justified true belief. The problem owes its name to a three-page paper published in 1963, by Edmund Gettier, called "Is Justified True Belief Knowledge?", in which Gettier argues that this definition is not necessarily the case. See Gettier (1963).
Based on the flaws of both foundationalism and coherentism, Haack set up a foundherentist criteria. See Haack (1994). It is not sure whether this new theory is helpful for the justification for beliefs.
Byrne and Johnson-Laird (1989). Each mental model represents a possibility: people deduce that a conclusion is necessary—it must be true—if it holds in all of their models of the premises; they infer that it is probable—it is likely to be true—if it holds in most of their models of the premises, and they infer that it is possible—it may be true—if it holds in at least one of their models of the premises.
Frye v. United States, 293 F. 1014 (D.C. Cir. 1923).
The trilogy of cases began with Daubert v. Merrell Dow Pharmaceuticals, Inc., General Electric Co.v. Joiner, and Kumho Tire co. v. Carmichael.
The Frye case involved a murder trial in which the defendant sought to demonstrate his innocence through the admission of a lie detector test that measured systolic blood pressure. The court rejected the evidence, stating:
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. [See Frye v. United States, 54 App. D.C. 46, 293 F. 1014 (1923)].
Over time, a number of courts and commentators found the “general acceptance” test seriously wanting. See Strong (1970) (“The Frye standard, however, tends to obscure these proper considerations by asserting an undefinable general acceptance as the principal if not sole determinative factor”); (Giannelli 1980) (“[T]he problems Frye has engendered—the difficulties in applying the test and the anomolous results it creates—so far outweigh [its] advantages that the argument for adopting a different test has become overwhelming”); McCormick (1982) (Frye’s “main drawbacks are its inflexibility, confusion of issues, and superfluity”).
Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 592–594 (1993).
Giannelli (2003, 7–12). The commentary accompanying the revised rule recites the “Daubert factors” and then goes on to explain that: Courts both before and after Daubert have found other factors relevant in determining whether expert testimony is sufficiently reliable to be considered by the trier of fact. These factors include: (1) whether experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying; (2) Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion; (3) Whether the expert has adequately accounted for obvious alternative explanations; (4) Whether the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting; and (5) Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give. …The amendment [to Rule 702] does not distinguish between scientific and other forms of expert testimony. The trial court’s gatekeeping function applies to testimony by any expert. While the relevant factors for determining reliability will vary from expertise to expertise, the amendment rejects the premise that an expert’s testimony should be treated more permissively simply because it is outside the realm of science. See FED. R. EVID. 702 Advisory Committee’s Note (2000 Amendments).
Daubert v. Merrell Dow Pharm, Inc., 43 F.3d 1311, 1315 (9th Cir.).
Kumho Tire co. v. Carmichael. 526 U.S. 137 (1999).
FED. R. EVID, 702 (2009).
But she thinks that surviving the long-term process of review by the scientific community is a much better indicator of scientific validity. See Haack (2007b).
Erica Beecher-Monas remarks that over the past decade, courts throughout the common law system have taken an increasingly antithetical approach to expert testimony. In civil cases, and in criminal DNA identification cases, courts appear to be actively engaged in scrutinizing the scientific testimony that comes before them. Defense attorneys appear to have little difficulty in challenging questionable scientific testimony. Research scientists are brought into the discourse as experts for the parties or the court. Courts are articulating the bases for their admissibility decisions, and these decisions are being reviewed on appeal. In the criminal cases, however, where criminal identification procedures other than DNA are concerned, each of the participants in the legal process has failed. Prosecutors repeatedly present experts whose testimony they have reason to know is (at best) dubious. Defense attorneys fail to bring challenges to the scientific validity of even patently flawed expert testimony. Courts, when challenges do arise, fail to engage in serious gatekeeping. And reviewing courts refuse to find shoddy gatekeeping to be an abuse of discretion. The consequence of this antithetical approach to admissibility is that the rational search for truth, in which the adversary system is supposedly engaged, is taken seriously only in civil cases. While the civil courts are busy minutely scrutinizing scientific studies proffered as the basis for expert testimony, the criminal courts are admitting into evidence testimony (again, with the exception of DNA) for which those studies have never been done. See Beecher-Monas (2009, Article 2).
See, e.g., Heinzerling (2006). The report on the forensic sciences in the United States released by the National Academy of Sciences on February 18, 2009, has noted the situation is very different in civil cases from criminal cases. The party who loses before the trial court in a nonfrivolous civil case always has the right and incentive to appeal to contest the admission or exclusion of expert testimony. In addition, plaintiffs and defendants, equally, are more likely to have access to expert witnesses in civil cases, whereas prosecutors usually have an advantage over most defendants in offering expert testimony in criminal cases. And, ironically, the appellate courts appear to be more willing to second-guess trial court judgments on the admissibility of purported scientific evidence in civil cases than in criminal cases. See the National Academy of Sciences (2009, 71). See also Faigman et al. (2007–2008) (discussing studies suggesting that courts “employ Daubert more lackadaisically in criminal trials—especially in regard to prosecution evidence—than in civil cases—especially in regard to plaintiff evidence”); Risinger, op. cit., supra note 52, p. 100 (“The system shipwreck I fear is that in 10 years we will find that civil cases are subject to strict standards of expertise quality control, while criminal cases are not. The result would be that the pocketbooks of civil defendants would be protected from plaintiffs’ claims by exclusion of undependable expert testimony, but that criminal defendants would not be protected from conviction based on similarly undependable expert testimony. Such a result would seem particularly unacceptable given the law’s claim that inaccurate criminal convictions are substantially worse than inaccurate civil judgments, reflected in the different applicable standards of proof”).
Daubert vs. Merrell Dow Pharmaceuticals, 1993, p. 2795.
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Acknowledgments
This paper was supported by grant 70873134, Study on Evidence Management within the Model of Factual Investigation, from the National Natural Science Foundation of China and by grant 410-2005-0398, Argumentation in Artificial Intelligence and Law, of the Social Sciences and Humanities Research Council of Canada.
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Walton, D., Zhang, N. The epistemology of scientific evidence. Artif Intell Law 21, 173–219 (2013). https://doi.org/10.1007/s10506-012-9132-9
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DOI: https://doi.org/10.1007/s10506-012-9132-9