Kitzmiller failed to follow Daubert standard of review for scientific questions
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),
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.