I'm from Missouri

This site is named for the famous statement of US Congressman Willard Duncan Vandiver from Missouri : "I`m from Missouri -- you'll have to show me." This site is dedicated to skepticism of official dogma in all subjects. Just-so stories are not accepted here. This is a site where controversial subjects such as evolution theory and the Holocaust may be freely debated.

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Location: Los Angeles, California, United States

My biggest motivation for creating my own blogs was to avoid the arbitrary censorship practiced by other blogs and various other Internet forums. Censorship will be avoided in my blogs -- there will be no deletion of comments, no closing of comment threads, no holding up of comments for moderation, and no commenter registration hassles. Comments containing nothing but insults and/or ad hominem attacks are discouraged. My non-response to a particular comment should not be interpreted as agreement, approval, or inability to answer.

Sunday, April 26, 2009

Kitzmiller failed to follow Daubert standard of review for scientific questions

Every time I think that I have discovered everything that is bad about the Kitzmiller v. Dover decision, I discover something new. A decision that the Darwinists regard as a masterpiece is in reality a piece of junk.

The Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), is considered to be the de facto federal standard of judicial review for scientific questions. Daubert is based on the Federal Rules of Evidence. Daubert has been adopted as a standard of review by many states as well. However, I have been aware for a long time that although the Kitzmiller v. Dover opinion has a ~6000 word section that rules on the scientific merits of evolution and intelligent design, KItzmiller does not cite Daubert, the pertinent rules in the Federal Rules of Evidence, or any other standard of review for scientific questions. I thought that this very serious omission of the Daubert standard might have just been an oversight on Judge "Jackass" Jones' part, but recently I discovered what might be the real reason for the omission. In the Q&A session in Jones' recent talk at Case Western Reserve University, a questioner asked about the Daubert standard. Judge Jones' response showed that he mistakenly believed that Daubert applies only to jury trials, and that belief could be the reason for his failure to cite Daubert in his Kitzmiller opinion. The Daubert opinion discusses jury trials but does not indicate in any way that the decision is restricted to jury trials. Daubert's syllabus does not even mention jury trials at all. The rules of the Federal Rules of Evidence that the Daubert decision is based on are not restricted to jury trials. There is no reason whatsover to believe that Daubert is restricted to jury trials. And I assert that Daubert and the Federal Rules of Evidence are applicable not only to the admissibility and excludability of evidence but also to the analysis and evaluation of evidence.

I assert that Judge Jones' rulings on the scientific merits of evolution and intelligent design are not consistent with the Daubert standard. The Kitzmiller opinion says (pages 88-89),
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After this searching and careful review of ID as espoused by its proponents, as elaborated upon in submissions to the Court, and as scrutinized over a six week trial, we find that ID is not science and cannot be adjudged a valid, accepted scientific theory as it has failed to publish in peer-reviewed journals, engage in research and testing, and gain acceptance in the scientific community.

Prior to Daubert and the adoption of the Federal Rules of Evidence, the standard of review for scientific questions was the Frye test (from Frye v. United States), which was general acceptance in the scientific community. Daubert ruled that this general acceptance would no longer be the sole criterion. Daubert also ruled that scientific arguments could not be rejected solely on the basis of lack of publication in peer-reviewed journals (incidentally, such publication is evidence -- but not proof -- of general acceptance). However, Daubert also ruled that general acceptance in the scientific community and publication in peer-reviewed journals could be factors in the judicial review of scientific questions -- they could just not be controlling factors.

The opinion of the court says in Daubert,

The District Court granted respondent's motion for summary judgment. The court stated that scientific evidence is admissible only if the principle upon which it is based is " `sufficiently established to have general acceptance in the field to which it belongs.' " . . . .

The United States Court of Appeals for the Ninth Circuit affirmed. 951 F.2d 1128 (1991). Citing Frye v. United States, 54 App. D.C. 46, 47, 293 F. 1013, 1014 (1923), the court stated that expert opinion based on a scientific technique is inadmissible unless the technique is "generally accepted" as reliable in the relevant scientific community . . . . .

The court emphasized that other Courts of Appeals considering the risks of Bendectin had refused to admit reanalyses of epidemiological studies that had been neither published nor subjected to peer review. 951 F. 2d, at 1130-1131. Those courts had found unpublished reanalyses "particularly problematic in light of the massive weight of the original published studies supporting [respondent's] position, all of which had undergone full scrutiny from the scientific community."

The merits of the Frye test have been much debated, and scholarship on its proper scope and application is legion. Petitioners' primary attack, however, is not on the content but on the continuing authority of the rule. They contend that the Frye test was superseded by the adoption of the Federal Rules of Evidence. We agree. (emphasis added) . . . .

Here there is a specific Rule that speaks to the contested issue. Rule 702, governing expert testimony,provides:

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." (note: Rule 702 has since been amended)

Nothing in the text of this Rule establishes "general acceptance" as an absolute prerequisite to admissibility. Nor does respondent present any clear indication that Rule 702 or the Rules as a whole were intended to incorporate a "general acceptance" standard . . . .

Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability, see S. Jasanoff, The Fifth Branch: Science Advisors as Policymakers 61-76 (1990), and in some instances well grounded but innovative theories will not have been published, see Horrobin, The Philosophical Basis of Peer Review and the Suppression of Innovation, 263 J. Am. Med. Assn. 1438 (1990). Some propositions, moreover, are too particular, too new, or of too limited interest to be published. But submission to the scrutiny of the scientific community is a component of "good science," in part because it increases the likelihood that substantive flaws in methodology will be detected. See J. Ziman, Reliable Knowledge: An Exploration of the Grounds for Belief in Science 130-133 (1978); Relman and Angell, How Good Is Peer Review?, 321 New Eng. J. Med. 827 (1989). The fact of publication (or lack thereof) in a peer reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised . . .

Finally, "general acceptance" can yet have a bearing on the inquiry. A "reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community." United States v. Downing, 753 F. 2d, at 1238 . . . . .

Respondent expresses apprehension that abandonment of "general acceptance" as the exclusive requirement for admission will result in a "free for all" in which befuddled juries are confounded by absurd and irrational pseudoscientific assertions (note: this is one of the places where juries are mentioned, but there is no indication that the decision was intended to apply only to jury trials) . . . . . .

Petitioners and, to a greater extent, their amici exhibit a different concern. They suggest that recognition of a screening role for the judge that allows for the exclusion of "invalid" evidence will sanction a stifling and repressive scientific orthodoxy and will be inimical to the search for truth.

Excellent point! The message that Judge Jones is giving to scientists and the publishers of peer-reviewed scientific journals is this: "If you want intelligent design to be rejected by the courts, don't show any support for it -- even when deserved -- and don't publish it in peer-reviewed scientific journals."

Unfortunately, Daubert does not mention that censorship and pressure to conform could prevent a good scientific idea from getting peer-reviewed publication or general acceptance.

The Daubert opinion of the court concludes,

The inquiries of the District Court and the Court of Appeals focused almost exclusively on "general acceptance," as gauged by publication and the decisions of other courts. Accordingly, the judgment of the Court of Appeals is vacated and the case is remanded for further proceedings consistent with this opinion.

I assert that the Kitzmiller opinion gave more weight to general acceptance and peer-reviewed publication than is warranted by the Daubert standard. In any event, the Kitzmiller opinion's failure to cite Daubert and the pertinent rules of the Federal Rules of Evidence is a very serious omission.

Anyway, my main position is -- as I have frequently stated -- that scientific questions in the evolution controversy should be declared by the courts to be non-justiciable. These questions are like the question of how many angels can dance on the head of a pin. Questions are non-justiciable when there is “a lack of judicially discoverable and manageable standards for resolving the question.” Vieth v. Jubelirer, 541 U.S. 267 (2004). Even if a court could reach fair decisions on scientific questions about evolution after several weeks of scientific testimony, appellate courts would not want to rubber-stamp a district court's decisions about those questions, nor would appellate courts want to hear or review several weeks of scientific testimony. In Massachusetts v. EPA, the Supreme Court treated the global warming question as non-justiciable.
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10 Comments:

Blogger Erin said...

Larry,
With your comment censoring. . .it's not moderation. . .policy, do you ever feel like you're talking to yourself? All of us reasonable people feel that you are. Debate isn't just between people who agree, darling.


Love,
Erin

Sunday, April 26, 2009 10:33:00 PM  
Blogger Larry Fafarman said...

Don't give me that "darling" and "love" crap, you lousy troll.

My comment policy is quite generous -- I generally publish all comments except the following --

(1) Comments containing nothing but scoffing (like yours).

(2) Comments that gossip about my private affairs.

(3) Comments that lie about objective facts.

Monday, April 27, 2009 10:38:00 AM  
Anonymous subbie said...

I'm not from Missouri, but I did go to law school there. Your piece on the Kitzmiller opinion completely misses the mark.

Daubert is the standard that courts are to use in evaluating the admissibility of expert witness testimony. It says nothing whatsoever about standards to use in deciding ultimate questions. It simply has no relevance whatsoever to Judge Jones's opinion.

Wednesday, June 17, 2009 7:35:00 PM  
Blogger Larry Fafarman said...

>>>>>> I'm not from Missouri <<<<<

I'm not from Missouri, either. The heading of this blog explains the reason for the name.

>>>>>> Daubert is the standard that courts are to use in evaluating the admissibility of expert witness testimony. <<<<<<

No, it's for scientific expert witness testimony.

>>>>>> It says nothing whatsoever about standards to use in deciding ultimate questions. It simply has no relevance whatsoever to Judge Jones's opinion. <<<<<<<

The Kitzmiller opinion has a ~6000-word section on the scientific merits of intelligent design.

All of this stuff is in the original post. Please read the original post before commenting.

Wednesday, June 17, 2009 9:07:00 PM  
Anonymous subbie said...

>>>>>>The Kitzmiller opinion has a ~6000-word section on the scientific merits of intelligent design.

All of this stuff is in the original post. Please read the original post before commenting.<<<<<<

I read the original post. I've also read the Kitzmiller opinion.

You are correct, Daubert addresses the admissibility of expert scientific evidence. But that doesn't mean that it's relevant to all questions of science. Daubert concerns the admissibility of expert scientific evidence. It says nothing whatsoever about how to analyze that evidence once it's admitted.

No where in the Kitzmiller opinion is there any question about the admissibility of any evidence, expert or not. Thus, there is no reason to cite Daubert.

Complaining that Kitzmiller didn't cite an opinion about the admissibility of expert scientific evidence makes as much sense as complaining that it didn't cite Celotex Corp. v. Catrett when there's no summary judgment motion.

Thursday, June 18, 2009 10:55:00 AM  
Blogger Larry Fafarman said...

My answer to subbie is split into two parts because I am limited to 4096 characters per comment.

PART 1

subbie says,
>>>>>>>Daubert concerns the admissibility of expert scientific evidence. It says nothing whatsoever about how to analyze that evidence once it's admitted. <<<<<<

It is true that the emphasis in Daubert is about admissibility, including emphasis on Federal Rules of Evidence Rule 702, which is about admissibility. However, Daubert's rules for admissibility can also be applied to analyzing the evidence once it's admitted. Here is a summary of the Daubert rules, from the case syllabus --

(c) Faced with a proffer of expert scientific testimony under Rule 702 [of the Federal Rules of Evidence], the trial judge, pursuant to Rule 104(a), must make a preliminary assessment of whether the testimony's underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue. Many considerations will bear on the inquiry, including whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate, and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community. The inquiry is a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate.

Can you think of any reason why the above rules in bold should not be applied to a final evaluation of evidence after the evidence has been admitted for consideration? If these rules in bold are not applied to a final evaluation of evidence, what rules do you propose applying in their place? In fact, I already addressed this issue in the original post -- I said, "I assert that Daubert and the Federal Rules of Evidence are applicable not only to the admissibility and excludability of evidence but also to the analysis and evaluation of evidence." Exclusion of the Daubert rules from final evaluations of evidence would seem to me to be very arbitrary and nitpicking. Also, admissibility in regard to pre-screening of evidence really applies only to jury trials because evidence may be pre-screened for a jury but is not pre-screened for judges in non-jury trials.

END OF PART 1

Thursday, June 18, 2009 8:12:00 PM  
Blogger Larry Fafarman said...

PART 2

Reply to subbie (continued) --

Also, the Daubert rules have been expanded to include FRE Rules 701 and 703, which deal with actual testimony of admissible evidence and not just the issue of admissibility. Wikipedia says,

In 2000, the Supreme Court approved amendments to the Federal Rules of Evidence relating to opinion evidence and expert testimony to conform to the "Daubert trilogy." In addition to amending Rules 701 and 703, Rule 702 now includes the additional provisions which state that a witness may only testify if, "1) the testimony is based upon sufficient facts or data 2) the testimony is the product of reliable principles and methods, and 3) the witness has applied the principles and methods reliably to the facts of the case."

>>>>>> No where in the Kitzmiller opinion is there any question about the admissibility of any evidence, expert or not. Thus, there is no reason to cite Daubert. <<<<<<

There was a dispute over the admissibility of Barbara Forrest's expert testimony. There was a voir dire hearing to determine the admissibility of Forrest's expert testimony. Forrest testified not as a scientific expert but as an expert on the history of creation science and intelligent design.

Also, as I explained in preceding statements, IMO there were other good reasons to cite Daubert.

Daubert was mainly about FRE Rule 702 but Judge Jones also failed to cite other FRE rules governing expert testimony, i.e., Rule 701 and Rules 703-706. Also, Judge Jones apparently mistakenly believed that the Daubert rules apply only to jury trials. I said in the original post,

. . . KItzmiller does not cite Daubert, the pertinent rules in the Federal Rules of Evidence, or any other standard of review for scientific questions. I thought that this very serious omission of the Daubert standard might have just been an oversight on Judge "Jackass" Jones' part, but recently I discovered what might be the real reason for the omission. In the Q&A session in Jones' recent talk at Case Western Reserve University, a questioner asked about the Daubert standard. Judge Jones' response showed that he mistakenly believed that Daubert applies only to jury trials, and that belief could be the reason for his failure to cite Daubert in his Kitzmiller opinion. The Daubert opinion discusses jury trials but does not indicate in any way that the decision is restricted to jury trials. Daubert's syllabus does not even mention jury trials at all. The rules of the Federal Rules of Evidence that the Daubert decision is based on are not restricted to jury trials. There is no reason whatsover to believe that Daubert is restricted to jury trials.

>>>>>>> Complaining that Kitzmiller didn't cite an opinion about the admissibility of expert scientific evidence makes as much sense as complaining that it didn't cite Celotex Corp. v. Catrett when there's no summary judgment motion. <<<<<<

You don't need to exaggerate to make a point.

Thank you for your constructive comment.

Thursday, June 18, 2009 8:20:00 PM  
Anonymous Anonymous said...

Larry Fafarman wrote; "Can you think of any reason why the above rules in bold should not be applied to a final evaluation of evidence after the evidence has been admitted for consideration?"

--fyi: Daubert deals with the admissibility of scientific expert witness testimony, as you said, but you should be aware that the Supreme Court later, in Kumho Tire v. Carmichael, expanded the Daubert rule to non-science expert testimony as well. So Daubert is the rule of admissibility for any expert witness testimony

And to answer your question, yes, of course, I can think of a reason. The Daubert standard is one of many available rules (it happens to be a judicial rule, many rules of evidence are legislative--but, of course, interpreted by courts in actual cases) for an advocate to argue to try and keep a piece of evidence from being admitted "into evidence" (i.e., the factfinder is allowed to weigh that piece of evidence in determining if it proves a fact).

If a trial judge rules that a piece of evidence is admissible (like I said, there are many rules a lawyer could use to argue a piece of evidence should not be admissible), he doesn't do an about face during the trial. An appellate court could find judge error at the trial for admitting a piece of evidence, but once a trial judge admits a piece of evidence, he's gone through any of the many arguments the opponent of the evidence may have made).

You don't seem to understand the procedure.

Thursday, February 11, 2010 6:05:00 PM  
Blogger Larry Fafarman said...

>>>>>>> --fyi: Daubert deals with the admissibility of scientific expert witness testimony, as you said, but you should be aware that the Supreme Court later, in Kumho Tire v. Carmichael, expanded the Daubert rule to non-science expert testimony as well. <<<<<<<

Yes, I knew that.

>>>>>> The Daubert standard is one of many available rules (it happens to be a judicial rule, many rules of evidence are legislative--but, of course, interpreted by courts in actual cases) for an advocate to argue to try and keep a piece of evidence from being admitted "into evidence" (i.e., the factfinder is allowed to weigh that piece of evidence in determining if it proves a fact). <<<<<<

To my knowledge, the courts have never clearly stated that the Daubert standards apply only to the admissibility of evidence and not to the evaluation of admitted evidence. A lot of people assume that the Daubert standards also apply to the evaluation of admitted evidence -- and the Daubert standards make good sense when applied to the evaluation of admitted evidence.

>>>>>> If a trial judge rules that a piece of evidence is admissible (like I said, there are many rules a lawyer could use to argue a piece of evidence should not be admissible), he doesn't do an about face during the trial. An appellate court could find judge error at the trial for admitting a piece of evidence, but once a trial judge admits a piece of evidence, he's gone through any of the many arguments the opponent of the evidence may have made). <<<<<<

That is absolutely absurd -- there is absolutely no reason why a judge could not or would not admit evidence into consideration and then reject that evidence after considering it.

>>>>> You don't seem to understand the procedure. <<<<<

Bozo, you should never accuse people of not understanding something without first giving them a chance to explain, clarify, or elaborate.

Friday, February 12, 2010 10:38:00 AM  
Blogger Larry Fafarman said...

Also, Anonymous, you should go back and read my replies to "subbie," Parts 1 and 2.

Friday, February 12, 2010 10:50:00 AM  

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