Poster 12
ELEMENTS OF A CIVIL LAWSUIT
PARTICIPANT ATTITUDES
Scientific Evidence in the
Courts:
Views from the Bench, the
Bar, and the Lab
Introduction
The management of environmental encompasses a wide
variety of disciplines, including scientific research, risk analysis, risk
communication and risk policy development to name but a few. However,
Canada, like many other British common law jurisdictions including the
United States has entrusted its legal system with the responsibility of
being the ultimate decision‑maker with respect to many if not most
environmental risk management issues. In doing so, these countries
implicitly rely upon a presumption that these formalized
decision‑making institutions possess adequate and appropriate tools to
achieve our compelling need to protect and sustain our environment for the
benefit of current and future generations. These tools must necessarily
include an ability to effectively interpret and adjudicate the state of
scientific knowledge concerning the most critical environmental issues. The
literature and the experiences of the authors with these
decision‑making processes raised serious doubts about this
presumption. This led to the initiation of a research project to determine
the existence and nature of problems with the use of scientific information
in these institutions. We examined the perceptions of four of the primary
participants in environmental trials and administrative environmental
hearings ‑‑ the judiciary, administrative tribunal members,
legal counsel and members of the scientific community located in three
Canadian provinces and two territories. This poster sets out some of the
interesting results of that Study. (The narratives on this poster are
supported by the tables on the next poster.)
Quality
of Scientific Information
-
The Study found a high level of agreement from
judges, legal counsel and scientists that problems exist in environmental
trials and other legal proceedings with respect to the quality of scientific
information introduced at these proceedings.
-
The Study also obtained a general consensus that one
of the causes of these problems was inadequate understanding by expert
scientific witnesses of these environmental decision making processes.
-
A second cause of problems with the quality of
scientific information strongly identified by all of the respondent groups
is influence on expert scientific witnesses by legal counsel.
Communication of Scientific
Information
-
It was generally agreed by the judges, lawyers and
scientists surveyed that problems exist in environmental trials and other
legal proceedings with respect to the communication of scientific
information.
-
Scientists were strongly of the view that a major
problem with the communication of scientific evidence in the courts is the
distortion of scientific information by cross examination conducted by
opposing legal counsel. Judges and lawyers tended to see this as only a
minor problem.
-
The majority of Study respondents generally found
the quality of communication between the scientific and legal communities to
be only with a significant percentage of scientists finding it to be
"poor".
Comprehension of Scientific Information
-
A high level of agreement was obtained from judges,
legal counsel and scientists that problems exist with respect to the
comprehension/ understanding by the legal community of scientific
information presented in the form of expert evidence by expert scientific
witnesses.
-
One source of this problem strongly identified by
scientists and legal counsel (less enthusiastically by the courts) is that
courts do not understand the value premises and professional biases which
underlie scientific information provided by expert scientific witnesses.
-
There was also strong consensus between the judges,
lawyers and scientists that failure to cross examine or effectively
cross‑examine expert scientific witnesses creates a problem in the
comprehension of scientific evidence.
Uncertainty With Respect to Scientific Issues
-
The Study found a high level of agreement between
judges, lawyers and scientists that problems are created in
environ‑mental trials and other legal proceedings by uncertainty with
respect to scientific issues.
-
There was a high level of agreement between the
Study respondent groups that a significant problem is in translating
scientific certainty into legal certainty.
-
However, while a large percentage of members
of the science community participating in the Study took the view that a
major problem is created in that decisions by courts of law fail to
acknowledge scientific uncertainty, this view was not equally shared by
judges and lawyers.
Overall Ability of Legal Institutions to Address
Scientific Issues
-
The Study found a high level of agreement between
judges, legal counsel and expert scientific witnesses that legal
institutions in their current form have problems in addressing scientific
issues.
-
There was considerable disagreement between the
scientific and legal communities with respect to the source of these
problems. Scientists strongly indicated that a leading reason for this
conclusion is that existing legal environmental decision‑making
processes are poorly suited to address scientific issues. Judges and lawyers
were less inclined to embrace this view.
-
Finally, there was considerable agreement between
scientists and judges that a problem is created by the fact that the
motivations of expert scientific witnesses and legal counsel are
incompatible.
Poster 12a
ELEMENTS OF A CIVIL LAWSUIT
PARTICIPANT ATTITUDES
TABLES SUPPORTING SURVEY
RESULTS
Quality
of Scientific Information
"Problems exist in environmental trials and
other legal proceedings with respect to the quality of scientific information provided in the form of
expert evidence by expert scientific witnesses."
|
|
Judges
|
Legal Counsel
|
Expert Scientific Witnesses
|
Range
|
|
Strongly Agree
|
5.6%
|
11.4%
|
10.6%
|
5.6 - 11.4%
|
|
Agree
|
50.0%
|
47.7%
|
57.6%
|
47.7 - 57.6%
|
|
Undecided
|
27.8%
|
17.0%
|
18.8%
|
17.0 -27.8%
|
|
Disagree
|
16.7%
|
20.5%
|
12.9%
|
12.9 - 20.5%
|
|
Strongly Disagree
|
0.0%
|
3.4%
|
0.0%
|
0.0 - 3.4%
|
"Inadequate understanding by expert scientific
witnesses of the trial or other legal
proceeding in which they are participating."
|
Major Problem
|
22.2%
|
11.5%
|
17.6%
|
11.5% - 22.2%
|
|
Minor Problem
|
38.9%
|
47.2%
|
36.4%
|
36.4 - 47.2%
|
|
Not a Problem
|
22.2%
|
11.5%
|
25.8%
|
11.5 - 25.8%
|
|
Undecided/No Opinion
|
0.0%
|
5.7%
|
7.0%
|
0.0. - 7.0%
|
|
Unfamiliar With Concept
|
0.0%
|
0.0%
|
0.0%
|
0.0 -0.0%
|
"Influence from legal counsel in the
preparation of expert scientific witnesses prior to giving evidence at environmental trials and other legal
proceedings."
|
Major Problem
|
22.2%
|
11.5%
|
17.6%
|
11.5% - 22.2%
|
|
Minor Problem
|
38.9%
|
47.2%
|
36.4%
|
36.4 - 47.2%
|
|
Not a Problem
|
22.2%
|
11.5%
|
25.8%
|
11.5 - 25.8%
|
|
Undecided/No Opinion
|
0.0%
|
5.7%
|
7.0%
|
0.0. - 7.0%
|
|
Unfamiliar With Concept
|
0.0%
|
0.0%
|
0.0%
|
0.0 - 0.0%
|
Communication of Scientific Information
"Problems exist in environmental trials and
other legal proceedings with respect to the communication of scientific information provided in
the form of expert evidence by expert scientific witnesses."
|
Strongly Agree
|
0.0%
|
11.4%
|
27.1%
|
0.0 - 27.1%
|
|
Agree
|
61.1%
|
50.0%
|
54.1%
|
50.0 - 61.1%
|
|
Undecided
|
11.1%
|
11.4%
|
9.4%
|
9.4 -
11.4%
|
|
Disagree
|
27.8%
|
26.1%
|
9.4%
|
9.4-‑ 27.8%
|
|
Strongly Disagree
|
0.0%
|
1.1%
|
0.0%
|
0.0 - 1.1%
|
"The distortion of scientific information as a
result of the use of cross examination by opposing legal counsel."
|
Major Problem
|
16.6%
|
15.9%
|
50.5%
|
15.9 - 50.5%
|
|
Minor Problem
|
38.8%
|
38.6%
|
32.9%
|
32.9 - 38.8%
|
|
Not a Problem
|
5.5%
|
15.9%
|
3.5%
|
3.5 - 15.9%
|
|
Undecided/No Opinion
|
11.1%
|
1.1%
|
3.5%
|
1.1 - 11.1%
|
|
Unfamiliar With Concept
|
0.0%
|
1.1%
|
0.0%
|
0.0 - 1.1%
|
"Communication between the scientific and legal
communities."
|
Very Good
|
12.5%
|
2.3%
|
2.4%
|
2.3 - 12.5%
|
|
Good
|
18.8%
|
30.7%
|
15.3%
|
15.3 -30.7%
|
|
Fair
|
56.3%
|
47.7%
|
52.9%
|
47.7 -- 56.3%
|
|
Poor
|
12.5%
|
15.9%
|
24.7%
|
12.5 - 24.7%
|
|
Very Poor
|
0.0%
|
3.4%
|
4.7%
|
0.0 - 4.7%
|
Comprehension of Scientific Information
"Problems exist in environmental trials and
other legal proceedings with respect to the comprehension/understanding by
the courts and/or legal counsel of scientific information presented in the
form of expert evidence by expert scientific witnesses."
|
Strongly Agree
|
11.1%
|
19.3%
|
29.4%
|
11.1 - 29.4%
|
|
Agree
|
44.4%
|
53.4%
|
49.4%
|
44.4 - 53.4%
|
|
Undecided
|
16.7%
|
8.0%
|
11.8%
|
8.0 -16.7%
|
|
Disagree
|
22.2%
|
19.3%
|
9.4%
|
9.4 -
22.2%
|
Poster 12b
ELEMENTS OF A CIVIL LAWSUIT
PARTICIPANT ATTITUDES
TABLES SUPPORTING SURVEY RESULTS, CONTINUED
"The courts do not comprehend the value
premises and professional biases which underlie scientific information provided by expert scientific
witnesses."
|
|
Judges
|
Legal Counsel
|
Expert Scientific Witnesses
|
Range
|
|
Major Problem
|
22.2%
|
32.9%
|
38.6%
|
22.2 - 38.6%
|
|
Minor Problem
|
38.8%
|
26.1%
|
36.2%
|
26.1- 38.8%
|
|
Not a Problem
|
5.5%
|
15.8%
|
8.4%
|
5.5 - 15.8%
|
|
Undecided/No Opinion
|
5.5%
|
5.6%
|
8.4%
|
5.5 - 15.8%
|
|
Unfamiliar With Concept
|
0.0%
|
0.0%
|
1.1%
|
0.0 - 1.1%
|
"Reliance by the Courts on Cross-Examination
for the Purposes of Clarifying and Testing Expert Scientific Evidence
Creates a Problem in Circumstances Where Cross‑Examination is Not
Conducted or is Not Effectively Conducted."
|
Major Problem
|
44.4%
|
31.7%
|
45.8%
|
31.7 - 45.8%
|
|
Minor Problem
|
27.7%
|
34.1%
|
22.3%
|
22.3 - 34.1%
|
|
Not a Problem
|
0.0%
|
10.2%
|
5.8%
|
0.0 - 10.2%
|
|
Undecided/No Opinion
|
0.0%
|
3.3%
|
14.1%
|
0.0 - 14.1%
|
|
Unfamiliar With Concept
|
0.0%
|
1.1%
|
2.3%
|
0.0 - 2.3%
|
Uncertainty With Respect to Scientific Issues
"Problems exist in environmental trials and
other legal proceedings where the scientific information provided in the
form of expert evidence results in uncertainty with respect to one or more
scientific issues."
|
Strongly Agree
|
5.6%
|
11.4%
|
23.5%
|
5.6 - 23.5%
|
|
Agree
|
72.2%
|
48.9%
|
60.0%
|
48.9 - 72.2%
|
|
Undecided
|
5.6%
|
12.5%
|
14.1%
|
5.6 - 14.1%
|
|
Disagree
|
16.7%
|
26.1%
|
2.4%
|
2.4 -26.1%
|
|
Strongly Disagree
|
0.0%
|
1.1%
|
0.0%
|
0.0 - 1.1%
|
"Translating the level of scientific certainty
and uncertainty found within scientific information provided in the form of
expert evidence at environmental trials and other legal proceedings into the
level of legal certainty and uncertainty required to meet legal standards of
proof (such as beyond reasonable doubt required in
criminal/quasi‑criminal trials or proof beyond reasonable doubt
required in civil trials and by the due diligence defense in
criminal/quasi‑criminal trials)."
|
Major Problem
|
44.4%
|
39.8%
|
69.3%
|
39.8 - 69.3%
|
|
Minor Problem
|
22.2%
|
22.7%
|
23.5%
|
22.2 - 23.5%
|
|
Not a Problem
|
16.6%
|
7.9%
|
3.5%
|
3.5 - 16.6%
|
|
Undecided/No Opinion
|
0.0%
|
1.1%
|
1.1%
|
0.0 - 1.1%
|
|
Unfamiliar With Concept
|
0.0%
|
1.1%
|
0.0%
|
0.0 - 1.1%
|
"Decisions by courts of law often fail to
acknowledge that a degree of "uncertainty" with respect to
scientific issues may exist, thereby giving a false sense of scientific
certainty to a decision."
|
Major Problem
|
16.6%
|
25.0
|
44.7%
|
16.6 - 44.7%
|
|
Minor Problem
|
27.8%
|
23.8%
|
37.7%
|
23.8 - 37.7%
|
|
Not a Problem
|
11.1%
|
13.6%
|
7.0%
|
7.0 - 13.6%
|
|
Undecided/No Opinion
|
16.6%
|
4.5%
|
7.0%
|
4.5 - 16.6%
|
|
Unfamiliar With Concept
|
5.5%
|
0.0%
|
1.1%
|
0.0 - 5.5%
|
Overall Ability of Legal Institutions to Address
Scientific Issues
"Problems exist in the use of legal
decision‑making institutions (such as courts of law) and legal
procedures (such as rules of court
and rules of evidence) for the resolution of scientific issues in
environmental decision-making."
|
Strongly Agree
|
5.6%
|
6.8%
|
22.4%
|
5.6 - 22.4%
|
|
Agree
|
55.6%
|
45.5%
|
62.4%
|
45.5 - 62.4%
|
|
Undecided
|
16.7%
|
14.8%
|
12.9%
|
12.9 -16.7%
|
|
Disagree
|
11.1%
|
29.5%
|
0.0%
|
0.0 -
29.5%
|
|
Strongly Disagree
|
11.1%
|
3.4%
|
1.2%
|
1.2 - 11.1%
|
"The existing legal process is poorly suited to
address scientific issues ."
|
Major Problem
|
7.8%
|
22.7%
|
58.8%
|
7.8 - 58.8%
|
|
Minor Problem
|
27.8%
|
30.7%
|
28.2%
|
27.8 - 30.7%
|
|
Not a Problem
|
11.1%
|
9.1%
|
1.1%
|
1.1 - 11.1%
|
|
Undecided/No Opinion
|
11.1%
|
4.5%
|
9.3%
|
0.0 - 7.0%
|
|
Unfamiliar With Concept
|
0.0%
|
0.0%
|
0.0%
|
0.0 - 0.0%
|
"The motivations of expert scientific witnesses
and legal counsel in environmental trials and other legal proceedings are
incompatible, in that the
primary goal of scientists is the attainment of scientific truth, whereas
the primary objective
of legal counsel is to resolve jurisprudential
disputes which may contain scientific issues."
|
Major Problem
|
33.4%
|
17%
|
52.9%
|
17.0 - 52.9%
|
|
Minor Problem
|
27.8%
|
28.4%
|
27.0%
|
27.0 - 28.4%
|
|
Not a Problem
|
5.5%
|
15.9%
|
9.3%
|
5.5 - 7.0%
|
|
Undecided/No Opinion
|
5.5%
|
5.7%
|
7.0%
|
0.0 - 7.0%
|
|
Unfamiliar With Concept
|
5.5%
|
0.0%
|
0.0%
|
0.0 - 5.5%
|
[Further
information with respect to this study, including copies of the Research
Report Environmental Decision-Making in Canada:
Do you have any additions or
comments?
E-mail us at wagner9@attglobal.net |