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Re: Scientific Certainty: There is no such an animal
Posted by: John Lentini (IP Logged)
Date: October 02, 2022 03:52PM

The US DOJ says,

Department forensic laboratories will review their policies and procedures to ensure that forensic examiners are not using the expressions "reasonable scientific certainty" or "reasonable [forensic discipline] certainty" in their reports or testimony. Department prosecutors will abstain from use of these expressions when presenting forensic reports or questioning forensic experts in court unless required by a judge or applicable law.

The National Commission on Forensic Science said,

Forensic discipline conclusions are often testified to as being held “to a reasonable degree of scientific certainty” or “to a reasonable degree of [discipline] certainty.” These terms have no scientific meaning and may mislead factfinders about the level of objectivity involved in the analysis, its scientific reliability and limitations, and the ability of the analysis to reach a conclusion. Forensic scientists, medical professionals and other scientists do not routinely express opinions or conclusions “to a reasonable scientific certainty” outside of the courts. Neither the Daubert nor Frye test of scientific admissibility requires its use, and consideration of caselaw from around the country confirms that use of the phrase is not required by law and is primarily a relic of custom and practice. There are additional problems with this phrase, including:

• _There is no common definition within science disciplines as to what threshold establishes “reasonable” certainty. Therefore, whether couched as “scientific certainty” or “[discipline] certainty,” the term is idiosyncratic to the witness.

• _The term invites confusion when presented with testimony expressed in probabilistic terms. How is a lay person, without either scientific or legal training, to understand an expert’s “reasonable scientific certainty” that evidence is “probably” or possibly linked to a particular source?

Recommendations
The National Commission on Forensic Science recommends that the Attorney General take the following actions:

Recommendation #1: The Attorney General should direct all attorneys appearing on behalf of the Department of Justice (a) to forego use of these phrases when presenting forensic discipline testimony unless directly required by judicial authority as a condition of admissibility for the witness’ opinion or conclusion, and (b) to assert the legal position that such terminology is not required and is indeed misleading.

Because the Government is the primary proponent of forensic discipline testimony in criminal prosecutions and because of its duty to seek justice, Government attorneys should eschew usage of this phrasing and appropriately challenge any suggestion to a trial court that such language be used when forensic discipline testimony is presented. Science should be used in the courtroom to clarify and elucidate rather than obscure.

Recommendation #2: The Attorney General should direct all forensic science service providers and forensic science medical providers employed by Department of Justice not to use such language in reports or couch their testimony in such terms unless directed to do so by judicial authority.

Although the impetus for this terminology came from courts and lawyers, forensic scientists and medical examiners in some instances have come to embrace its use. Adopting this recommendation will provide further support for the abandonment of this terminology and spur discussion and development of appropriate and clearer phrasing.

Recommendation #3: The Attorney General should, in collaboration with NIST, urge the OSACs to develop appropriate language that may be used by experts when reporting or testifying about results or findings based on observations of evidence and data derived from evidence.

The scientific community, through the OSAC structure, may be best positioned to propose language that conveys the nature of the examination itself, including an expression of the uncertainty in the measurement or in the data, the bases for any opinion (the underlying information, studies, observations) and the limitations relating to the results of the examination. Adopting this recommendation will help develop language based on and supported by scientific data and principles that can be useful to judges and juries.

My 2 cents:

The expression was an incantation made up by lawyers. It started out in medical malpractice cases as "To a reasonable degree of medical certainty."

I use the expression: "To a reasonable degree of professional certainty."

There is no such thing as "scientific certainty."



Subject Views Written By Posted
  Scientific Certainty 601 J L Mazerat 10/02/2022 02:25PM
  Re: Scientific Certainty: There is no such an animal 458 John Lentini 10/02/2022 03:52PM
  Re: Scientific Certainty: There is no such an animal 314 J L Mazerat 10/02/2022 04:52PM
  Re: Scientific Certainty: There is no such an animal 269 J L Mazerat 10/08/2022 10:21AM
  Re: Scientific Certainty: There is no such an animal 280 J L Mazerat 10/14/2022 03:24PM
  Re: Scientific Certainty 266 J L Mazerat 10/07/2022 11:03AM
  Re: Scientific Certainty 299 dcarpenter 10/11/2022 12:46PM
  Re: Scientific Certainty 262 J L Mazerat 10/14/2022 09:49AM
  Re: Scientific Certainty 244 dcarpenter 10/17/2022 09:53AM
  Re: Scientific Certainty 231 J L Mazerat 10/25/2022 09:02AM
  Re: Scientific Certainty 232 dcarpenter 10/25/2022 02:38PM
  Re: Scientific Certainty 217 J L Mazerat 10/25/2022 08:31PM
  Re: Scientific Certainty 237 dcarpenter 10/26/2022 09:44AM
  Re: Scientific Certainty 218 J L Mazerat 10/26/2022 11:11AM
  Re: Scientific Certainty 228 dcarpenter 10/29/2022 04:41AM
  Re: Scientific Certainty 217 J L Mazerat 10/29/2022 08:36AM
  Re: Scientific Certainty 208 dcarpenter 11/03/2022 09:42AM
  Re: Scientific Certainty 247 J L Mazerat 11/03/2022 06:37PM
  Re: Scientific Certainty 212 dcarpenter 11/04/2022 08:33AM
  Re: Scientific Certainty 256 J L Mazerat 11/05/2022 06:15PM
  Re: Scientific Certainty 215 dcarpenter 11/07/2022 01:19PM
  Re: Scientific Certainty 225 CJN 11/07/2022 03:56PM
  Re: Scientific Certainty 217 dcarpenter 11/07/2022 04:29PM
  Re: Scientific Certainty 217 CJN 11/07/2022 05:36PM
  Re: Scientific Certainty 217 dcarpenter 11/09/2022 11:03AM
  Re: Scientific Certainty 249 J L Mazerat 11/10/2022 09:36AM
  Re: Scientific Certainty 211 J L Mazerat 11/07/2022 06:20PM
  Re: Scientific Certainty 205 dcarpenter 11/09/2022 10:20AM
  Re: Scientific Certainty 208 J L Mazerat 11/09/2022 08:33PM
  Re: Scientific Certainty 205 dcarpenter 11/10/2022 09:03AM
  Re: Scientific Certainty 210 J L Mazerat 11/10/2022 01:12PM
  Re: Scientific Certainty 221 dcarpenter 11/10/2022 01:55PM
  Re: Scientific Certainty 212 J L Mazerat 11/11/2022 09:00AM
  Re: Scientific Certainty 218 J L Mazerat 11/29/2022 09:30AM
  Re: Scientific Certainty 233 Rsuninv 10/26/2022 11:38AM
  Re: Scientific Certainty 224 J L Mazerat 10/26/2022 01:17PM
  Re: Scientific Certainty 216 J L Mazerat 10/26/2022 02:50PM
  Re: Scientific Certainty 208 J L Mazerat 10/27/2022 09:06AM
  Re: Scientific Certainty 215 J L Mazerat 10/29/2022 09:51AM
  Re: Scientific Certainty 277 John Lentini 10/15/2022 01:18PM
  Re: Scientific Certainty 236 J L Mazerat 10/15/2022 05:44PM
  Re: Scientific Certainty 232 John Lentini 10/31/2022 02:23PM
  Re: Scientific Certainty 219 J L Mazerat 10/31/2022 04:33PM
  Re: Scientific Certainty 242 Fire 11/08/2022 09:47AM
  Re: Scientific Certainty 236 J L Mazerat 11/26/2022 09:33AM


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