A New Day – A New Edition of the Reference Manual of Scientific Evidence

It’s an event that happens about once every ten years – a new edition of the Reference Manual on Scientific Evidence.  This sort of thing gets science-geek-nerd lawyers excited.  Today, the National Academies of Science released the new, third edition of the Manual today.  The work has grown from the second edition into a hefty volume, now over 1,000 pages. Shorter than War and Peace, but easier to read than Gravity’s Rainbow.  Paperback volumes are available for $71.96, but a PDF file is available for free.

Unlike the first two editions, which were products of the Federal Judicial Center, the new edition was produced under the supervision of an ad hoc committee – the Committee on the Development of the Third Edition of the Reference Manual on Scientific Evidence – under the auspices of the National Academies’ Committee on Science, Technology and the Law.  See Media Release from the National Academies.

The release of the Third Edition of the Manual was accompanied by a ceremony today at the National Academies’ Keck Center in Washington, DC.   Dr. Cicerone, President of the National Academies, and Judge Barbara Rothstein, director of the Federal Judicial Center, gave inspirational talks on the rightful, triumphant, aspirational role of science in the courtroom, and the Manual’s role of ensuring that science gets its day in the adversarial push and shove of litigation.

Co-chairs, Judge Kessler and Dr. Kassirer introduced the other members of the ad hoc committee, and the substantive work that makes up the Third Edition.

Other members of the ad hoc committee were:

  • Hon. Ming Chin, Associate Justice of the Supreme Court of California.
  • Hon. Pauline Newman, Judge, U.S. Court of Appeals for the Federal Circuit.
  • Hon. Kathleen O’Malley, Judge, U.S. Court of Appeals for the Federal Circuit.
  • Hon. Jed S. Rakoff, Judge, U.S. District Court for the Southern District of New York.
  • Channing R. Robertson, Ph.D., School of Engineering, Stanford University.
  • Joseph V. Rodricks, Ph.D., Environ Corp.
  • Allen J. Wilcox, Ph.D., Senior Investigator in the Epidemiology Branch, of the NIEHS.
  • Sandy L. Zabell, Professor of Statistics and Mathematics, Northwestern University.

The Third Edition has some notable new chapters on “Forensic Identification Expertise” (Paul Giannelli, Edward Imwinkelried, and Joseph Peterson), on “Neuroscience” (Henry Greely and Anthony Wagner), on “Mental Health Evidence” (Paul Appelbaum), and on “Exposure Science” (Joseph Rodricks).

Other chapters that were present in the Second Edition are substantial revised and updated, including the chapters on “Statistics” (David Kaye and the late David Freedman), on “DNA Identification Evidence” (David Kaye and George Sensabaugh), on “Epidemiology” (Michael Green, Michal Freedman, and Leon Gordis), and on “Engineering” (Channing R. Robertson, John E. Moalli, and David L. Black).

The chapter on “Medical Testimony” (John Wong, Lawrence Gostin, and Oscar Cabrera) is also substantially revised and expanded, with new authors, all for a welcomed change.

A substantial portion of the new addition incorporates chapters from the second addition with little or no change:

Justice Stephen Breyer’s “Introduction,” the late Professor Margaret Berger’s essay on “The Admissibility of Expert Testimony,” David Goodstein’s primer on “How Science Works,” as well the chapters on “Multiple Regression” (Daniel L. Rubinfeld), on “Survey Research” (Shari Diamond), and on “Toxicology” (Bernard Goldstein and Mary Sue Henifin).

Also new in this edition is the support of private organizations, the Starr Foundation and the Carnegie Corporation of New York.

Judge Kessler explained how the Supreme Court’s decision in Daubert introduced “rigorous standards” for scientific evidence in federal courtrooms.  Expert witnesses must follow the reasoning, principles, and procedures of modern science.  Lovely sentiments, and wonderful if heeded.

The public release ceremony ended with questions from the audience, both live and from the webcast.

To provide some comic relief to the serious encomia to science in the law, Dr. Tee Guidotti rose to give a deadpan imitation of Emily Litella.  Dr. Guidotti started by lecturing the gathering on the limitations of frequentist statistics and the need to accommodate Bayesian statistical analyses in medical testimony.  Dr. Kassirer politely interrupted Dr. Guidotti to point out that Bayesian analyses were covered in some detail in the chapters on statistics and on medical testimony.  Without missing a beat, Dr. Guidotti shifted blame to the index, which he claimed failed to identify these discussions for him.  Judge Kessler delivered the coup de grace by pointing out that the discussions of Bayesian statistics were amply referenced in the index.  Ooops; this was a hot court.  A chorus of sotto voce “never minds” rippled through the audience.

One question not asked was whether there are mandatory minimum sentences for judges who fail to bother to read the relevant sections before opining on science issues.

The Third Edition of the Manual appears to be a substantial work.  Lawyers will ignore this work at their peril.  Trial judges of course have immunity except to the extent appellate judges are paying attention.  Like its predecessors, the new edition is likely to have a few quibbles, quirks, and quarrels lurking in the 1,000 plus pages here, and I am sure that the scrutiny of the bar and the academy will find them.  Let’s hope that it takes fewer than a decade to see them corrected in a Fourth Edition.

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