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Re: Scientific Certainty
Posted by: J L Mazerat (IP Logged)
Date: October 26, 2022 11:11AM
First, I will not say my way is the right way. If a person thinks it is necessary to put in a report or in testimony a phrase to explain the methodology use that is a personal decision.
It is my opinion that a person need not support an opinion with a phrase of any type. The facts are what supports the opinion reached.
What you seem to be indicating is that the use of the phrase, “To a degree of scientific certainty” is telling the trier of fact that the scientific method was used in the development of the opinion. If I were to go out on the street an ask a person walking buy to define the meaning of the phrase how many would relate to the scientific method. Also ask the same person what the scientific method is. What percentage would get it correct?
In saying that a reasonable degree is a qualitive statement then there must be a number or percentage to go with it. Most of those I have asked this question to have said more than 50%. When the follow-up question was asked as to how much over 50%, the answers have been all over the place. In using this, one making a statement that most lay person do not understand. If they do not understand, how is it helping?
Who is the court? It may be the judge, or it may be the jury. How many persons on the jury know what NFPA 921 is and how it should be used? When you state, “This initially speaks to Daubert and the reliability of your methodology” what do you mean? Is the fact that you use the scientific method a guarantee that your opinion is correct?
I think there is a difference in using that phrase in place of wording saying I follow the scientific method. The first positive aspect of using the term I found with the scientific method is that they cannot ask you to qualify with a percentage the use of the scientific method. That’s one less place they can attack you. The other positive aspect about saying I follow the scientific method is that it is recognized in the forensic profession, where many in the forensic science profession do not believe in the phrase, “To a reasonable degree of scientific certainty”. The person that uses this phrase is left to explain why their reasoning for using it is better than that of the U.S. Department of Justice and the National Institute for Standards and Technology. Good luck on explaining it.
I state my investigation was conducted in accordance with the scientific method as outlined in the National Fire Protection Association’s Guide for Fire and Explosion Investigations.
In addressing the Daubert requirements the reliability of the methodology comes from it acceptance by the forensic science community, as well as the general scientific community and numerous courts. I have never had a judge or have read where a judge did not accept this as to the validity of the methodology.
I agree that the judge is not supposed to allow the jury to hear determinations or opinions produced with an unreliable methodology. What you must remember is that the judge will decide if the methodology used is acceptable. There is nothing that requires the judge to exclude another methodology.
The United States Court of Appeals for the Eight Circuit stated in Randy Russell and Antoinette Russell vs Whirlpool Corporation, “We have held NFPA 921 qualifies as "a reliable method endorsed by a professional organization," Fireman's Fund Ins. Co. v. Canon U.S.A., Inc., 394 F.3d 1054, 1058-59 (8th Cir. 2005), but we have not held NFPA 921 is the only reliable way to investigate a fire.”
As I previously said, the phrase, “To a reasonable degree of scientific certainty” does nothing but give the opposing attorney the opportunity to attack your creditability. If you can only say your certainty is above 50% then that means you have an uncertainty level as high as 49.9% that your conclusions are wrong. What is the value of putting yourself in this situation. If the court requires me to state a level of certainty I will say, ”My level of certainty to me is clear and convincing based on the evidence available.” By saying this, they cannot request a qualitative number.
Jim Mazerat
Forensic Investigations Group
It is my opinion that a person need not support an opinion with a phrase of any type. The facts are what supports the opinion reached.
What you seem to be indicating is that the use of the phrase, “To a degree of scientific certainty” is telling the trier of fact that the scientific method was used in the development of the opinion. If I were to go out on the street an ask a person walking buy to define the meaning of the phrase how many would relate to the scientific method. Also ask the same person what the scientific method is. What percentage would get it correct?
In saying that a reasonable degree is a qualitive statement then there must be a number or percentage to go with it. Most of those I have asked this question to have said more than 50%. When the follow-up question was asked as to how much over 50%, the answers have been all over the place. In using this, one making a statement that most lay person do not understand. If they do not understand, how is it helping?
Who is the court? It may be the judge, or it may be the jury. How many persons on the jury know what NFPA 921 is and how it should be used? When you state, “This initially speaks to Daubert and the reliability of your methodology” what do you mean? Is the fact that you use the scientific method a guarantee that your opinion is correct?
I think there is a difference in using that phrase in place of wording saying I follow the scientific method. The first positive aspect of using the term I found with the scientific method is that they cannot ask you to qualify with a percentage the use of the scientific method. That’s one less place they can attack you. The other positive aspect about saying I follow the scientific method is that it is recognized in the forensic profession, where many in the forensic science profession do not believe in the phrase, “To a reasonable degree of scientific certainty”. The person that uses this phrase is left to explain why their reasoning for using it is better than that of the U.S. Department of Justice and the National Institute for Standards and Technology. Good luck on explaining it.
I state my investigation was conducted in accordance with the scientific method as outlined in the National Fire Protection Association’s Guide for Fire and Explosion Investigations.
In addressing the Daubert requirements the reliability of the methodology comes from it acceptance by the forensic science community, as well as the general scientific community and numerous courts. I have never had a judge or have read where a judge did not accept this as to the validity of the methodology.
I agree that the judge is not supposed to allow the jury to hear determinations or opinions produced with an unreliable methodology. What you must remember is that the judge will decide if the methodology used is acceptable. There is nothing that requires the judge to exclude another methodology.
The United States Court of Appeals for the Eight Circuit stated in Randy Russell and Antoinette Russell vs Whirlpool Corporation, “We have held NFPA 921 qualifies as "a reliable method endorsed by a professional organization," Fireman's Fund Ins. Co. v. Canon U.S.A., Inc., 394 F.3d 1054, 1058-59 (8th Cir. 2005), but we have not held NFPA 921 is the only reliable way to investigate a fire.”
As I previously said, the phrase, “To a reasonable degree of scientific certainty” does nothing but give the opposing attorney the opportunity to attack your creditability. If you can only say your certainty is above 50% then that means you have an uncertainty level as high as 49.9% that your conclusions are wrong. What is the value of putting yourself in this situation. If the court requires me to state a level of certainty I will say, ”My level of certainty to me is clear and convincing based on the evidence available.” By saying this, they cannot request a qualitative number.
Jim Mazerat
Forensic Investigations Group
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