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Question 3
When science enters the courtroom, juries are faced with several problems. The jury, made up of
people who do not necessarily have any scientific background or training, are expected to consider
in their decision making process evidence that they may not understand, nor understand the
methods by which it was obtained. The so‐called ‘lay juries’ that are part of our judicial system are
criticised for being scientifically illiterate and incompetent involving in matters involving science and
technology1. In this essay I will outline some of the problems that juries face when dealing with
science, and some ways the situation could be improved upon. First though, I must explain the role
of the jury in law.
A jury is made up of 12 people, selected at random, who supposedly represent a cross‐section of
society. The jurors do not know each other or have any knowledge of or interest in the case they are
hearing. The jury emphasises that society is judging, not just the law, they allow moral decisions to
enter the legal system2. This is of particular value to judges, as the jury can arrive at a decision the
judge may desire, but be unable to deliver as he/she is bound by legal conventions3. Another
important property of the lay‐jury is that it forces the trial to be presented in a clear and simple
manner, one that the general public can understand.
“The jury not only represents the public at the trial, its presence ensures a publicly
comprehensible exposition of the case. ... I do not think the public would or should be satisfied with
a criminal justice system where citizens stand at risk of imprisonment for lengthy periods following
trials where the state admits that it cannot explain its evidence in terms commonly
comprehensible.”4 (Lord Ruskill, 1986)
Perhaps the most important role of the jury is to keep the law ‘honest’ and prevent it becoming
arcane5. Through the involvement of public citizens, the jury places a constraint on government and
the interpretation and application of laws that affect the lives, liberties and reputations of other
citizens6.
“...no tyrant could afford to leave a subject’s freedom in the hands of twelve of his
countrymen. So that trial by jury is more than an instrument of justice and more than one wheel of
the constitution: it is a lamp that shows that freedom lives.”7 (M. Galanter, 1990)
So the jury is an invaluable and central part of a democratic legal system, but with cases in the
twentieth and twenty‐first centuries involving more and more scientific evidence that is beyond the
understanding of the general public, the jury is not qualified to analyse the evidence. The question of
whether the jury need to understand expert evidence in order to make a fair decision, or whether
they can just take the opinion of an expert witness, is a major one. Ideally, the ultimate meaning of
the scientific message remains intact no matter what forms and contexts it passes through8.
Therefore, the role of the expert witness is to translate the expert evidence into language that the
jury can understand. Unfortunately, this relies on the ability of the expert to express the evidence
clearly and effectively, and on scientific competence of the jurors.
The scientific competence, or incompetence, of juries and society in general is possibly the biggest
problem that juries face when science enters the courtroom. The criticism of their verdicts in
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scientific cases by certain legal commentators poses other problems of whether their verdicts will be
upheld in the appeals courts or accepted by the public.
The majority of critical jury literature is based on the belief that the majority of the public are
scientifically illiterate. These beliefs have been reinforced by extensive surveys of formal scientific
literacy in the UK and USA9.
Jury inconsistency in federal trial outcomes is another cause of criticism for the lay jury. Toxic tort
cases have attracted interest as critics portray juries as irrationally inconsistent in their preferences
of evidence from plaintiff and defendant in seemingly identical cases. One of the conclusions drawn
from this variation in verdict across putatively identical trials is that juries could not ‘properly’
understand evidence and were therefore unable to rationally evaluate it. This has led to much
debate in the USA over whether the Fifth Amendment right to ‘due process’, which implies rational
evaluation, overrides the Seventh Amendment right to a trial by jury in civil cases10.
These toxic tort cases, however, were far from ‘identical’. They featured different juries, different
experts, different plaintiffs and defendants and occurred in different locations. There are too many
variables for anyone to expect uniformity of verdict across all the toxic torts in the USA, and while
the jury are criticised for being inconsistent, judicial review of evidence and jury verdicts in such
cases has also lacked consistency11. Also, some commentators have celebrated the absence of jury
verdict consistency as evidence of genuine political independence12.
Another problem faced by the jury is that of conflicting expert opinion and ‘junk science’. A
scientifically illiterate jury is ill equipped to deal with the conflicting testimony of experts and it has
been said that experts offer no help at all to jury decision making. Verdicts often do not appear badly
affected by conflicting expert testimony, as a decision in favour of either party when experts cannot
agree appears reasonable13.
“But how can the jury judge between two statements each founded upon experience
confessedly foreign in kind to their own? It is just because they are incompetent for such a task that
the expert is necessary at all. ... One thing is certain; they will do no better with the so‐called
testimony of experts than without, except where it is unanimous. If the jury must decide between
such they are as badly off as if they had none to help.14” Judge Learned Hand
In the case of conflicting expert testimony, juries do not simply tend towards the testimony of the
witness rated higher on experience; rather the persuasive force of an expert’s argument depends on
their ability to explain clearly the basis for their argument15.
Junk science can also enter the court thanks, in part, to jury incompetence and their inability to tell it
from valid science. The incentive is that the case may be swayed by the jury using this evidence that
has little or no grounding in fact.
“Junk science is impelled through our courts by a mix of opportunity and incentive. ‘Let‐it‐
all‐in’ legal theory creates the opportunity. The incentive is money: the prospect that the Midas‐like
touch of a credulous jury will now and again transform scientific dust into gold.16”
Junk science is not only a blight to individual cases and the credibility of jurors; it also undermines
the public’s confidence in the courts.
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“In the end, judicial power depends on getting facts right – and on having the public
perceive as much. When the real scientists catch up with junk science verdicts, as they inevitably
will, courts end up in disrepute.17”
Ultimately, all of the above problems can be dealt with in a number of ways. Juries can be excluded
from judging scientific aspects of a case, or juries on scientific cases can be made up of experts,
more able to understand the evidence, ignore junk science and choose more effectively between
conflicting expert opinions. This solution would, however, bring society a step away from its own
legal systems, beginning to undermine the whole point of a jury, and where does that kind of
movement stop? Juries don’t have much understanding of law either. It would also become difficult
for the courts to justify verdicts to the public, as the expert jury could not ensure the case is at a
level of general scientific understanding.
A better solution to the problem of junk science would be the screening of scientific evidence before
it goes before a jury. Particularly in tort cases, this would cut down on potentially influential junk
science and possibly reduce verdict inconsistency. This would, however, have to be done by a panel
of experts who do not represent society, and would therefore be limiting societies role in the
judiciary system, though this may be a price worth paying if it avoids excluding the jury completely
However, all of the problems mentioned in this essay could be vastly improved by a greater
knowledge of science in the public domain. The more qualified the general population, the more
able they are to judge scientific evidence and still represent a cross section of society. A good start to
this would be to allow juries to take notes in court, and to provide them with transcripts, allowing
them to make more informed judgements at the end of lengthy cases.
Word Count
1453
References
1. Edmond G. and Mercer D. (1997). Scientific literacy and the jury: reconsidering jury ‘competence’. Public Understanding of
Science. 6, p329
2. Crozier I. (2008). Science and the law: juries and science. Science and Society 1A. slides 3‐4
3. Knittel E. and Seiler D. (1971). The merits of trial by jury. Cambridge Law Journal. 30, p321 (cited in Edmond G. and Mercer D.
(1997). Scientific literacy and the jury: reconsidering jury ‘competence’. Public Understanding of Science. 6, p333)
4. Roskill Lord. (1986). Fraud Trails Committee Report. HMSO, London. p196 (cited in Edmond G. and Mercer D. (1997). Scientific
literacy and the jury: reconsidering jury ‘competence’. Public Understanding of Science. 6, p333)
5. Crozier I. (2008). Science and the law: juries and science. Science and Society 1A. slide 4
6. Edmond G. and Mercer D. (1997). Scientific literacy and the jury: reconsidering jury ‘competence’. Public Understanding of
Science. 6, p331
7. Galanter M. (1990). The civil jury as regulator of the litigation process. University of Chicago Legal Forum. pp201‐271 (cited in
Edmond G. and Mercer D. (1997). Scientific literacy and the jury: reconsidering jury ‘competence’. Public Understanding of
Science. 6, p331)
8. Fiske J. (1990). Introduction to Communication Studies. Routledge, London. (cited in Edmond G. and Mercer D. (1997). Scientific
literacy and the jury: reconsidering jury ‘competence’. Public Understanding of Science. 6, p339)
9. Edmond G. and Mercer D. (1997). Scientific literacy and the jury: reconsidering jury ‘competence’. Public Understanding of
Science. 6, p336
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10. Edmond G. and Mercer D. (1997). Scientific literacy and the jury: reconsidering jury ‘competence’. Public Understanding of
Science. 6, pp336‐337
11. Edmond G. and Mercer D. (1997). Scientific literacy and the jury: reconsidering jury ‘competence’. Public Understanding of
Science. 6, p347
12. Edmond G. and Mercer D. (1997). Scientific literacy and the jury: reconsidering jury ‘competence’. Public Understanding of
Science. 6, p334
13. Edmond G. and Mercer D. (1997). Scientific literacy and the jury: reconsidering jury ‘competence’. Public Understanding of
Science. 6, p334
14. Edmond G. and Mercer D. (1997). Scientific literacy and the jury: reconsidering jury ‘competence’. Public Understanding of
Science. 6, p336
15. Diamond S.S. and Casper J.D. (1992) Blindfolding the jury to verdict consequences: damages, experts and the civil jury. Law and
Society Review. 26, p558 (cited in Edmond G. and Mercer D. (1997). Scientific literacy and the jury: reconsidering jury
‘competence’. Public Understanding of Science. 6, p333)
16. Edmond G. and Mercer D. (1997). Scientific literacy and the jury: reconsidering jury ‘competence’. Public Understanding of
Science. 6, p337
17. Huber P.W. (1990) Junk science and the jury. University of Chicago Legal Forum. pp296‐298 (cited in Edmond G. and Mercer D.
(1997). Scientific literacy and the jury: reconsidering jury ‘competence’. Public Understanding of Science. 6, p337)