poster 1 of 1998 full-text online casebook

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%

"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%

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%

"The courts do not comprehend the value premises and professional biases which underlie scientific information provided by expert scientific witnesses."

"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."

"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."

"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)."

"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."

"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."

"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."

[Further information with respect to this study, including copies of the Research Report Environmental Decision-Making in Canada: