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Bernstein Cited in Forbes Article

An article in Forbes magazine examining the concept of science in the courtroom contained comments from Professor David Bernstein and referenced his forthcoming article on the topic for the Iowa Law Review.

The article's author maintains that in order to ensure valid scientific testimony, courts should have multiple labs evaluate evidence. He postulates, too, that the root of reform requires rethinking the adversarial aspects of the legal system.

"The adversarial system is premised on the theory that if you have two liars testifying, the truth will come out," says Bernstein, who in his forthcoming article offers a critique of what he refers to as "connoisseur testimony" in which weight is given to witness credentials, as opposed to concrete scientific evidence.

An Expert? Prove it, Forbes, June 2, 2008. By William Baldwin.

Excerpt:
"Lawyers and scientists have completely different ways of discovering truth. The lawyers' way is dueling witnesses.

"This is as good as any in determining which of two people is lying about a police shootout. It is no good in determining whether a hair sample matches that of the murder defendant or whether Vioxx caused a heart attack. Do heavy objects fall faster than light ones? Scientists answer with an experiment. A court would answer by having the jury hear from two experts, one saying yes, the other saying no. It would make as much sense to have the jury watch a medieval jousting contest between the two witnesses. 'The adversarial system is premised on the theory that if you have two liars testifying, the truth will come out,' says David Bernstein, a professor at George Mason University. In a forthcoming article for the Iowa Law Review, he critiques what he calls 'connoisseur testimony.' A witness says that X causes Y and backs up the statement not with an objective test but with his diplomas and his years of experience. You could use connoisseur testimony to convict someone of witchcraft. Asbestos plaintiffs claim to have spots on their lungs. Do they? A recent report by the Manhattan Institute notes that plaintiff physicians find abnormalities in 95.9% of X rays; nonaligned radiologists find them in 4.5%. Here's a radical thought on how to get at the truth. Take 50 supposedly abnormal films and shuffle them with 50 taken from people never exposed to asbestos but matched in sex, age and smoking habits. Now ask the plaintiffs' expert to pick out the abnormal ones. A witness for the prosecution testifies that he can match hair samples with 98% accuracy? Forget the credentials. The judge should make him pass a blind test. It won't happen. When it comes to science, judges are steeped in a long tradition of welcoming junk into the courtroom."

Read the article