Sigma Xi, The Scientific Research Society

Science and the Courts

Author(s): Francisco J. Ayala and Bert Black
Source: American Scientist, Vol. 81, No. 3 (May-June 1993), pp. 230-239
Published by: Sigma Xi, The Scientific Research Society
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Science and
As debate continuesover how courts should handle expert testimony,
judgesmight dowell to considerwhat makes science scientific
Francisco J.Ayala and Bert Black
Fran?sco ]. Ayala isDonald Bren
Professor ofBiological Sciences
andprofessor ofphilosophy at the
University ofCalifornia, Irvine.
He isa member of theNational
Academy of Sciences, theAmeri?
can
Academy ofArts and Sciences
and theAmerican Philosophical
Society and ispresident-elect of the
American Association for theAd?
vancement of Science. A native of
a
Spain, he received Ph.D. from
Columbia University in 1964 and
an
became American citizen in
1971.His scientificresearch con?
cerns
population genetics, molecu?
larevolution and evolutionary bi?
ology; he has also lecturedand
written extensivelyon thephiloso?
a
phy of science. Bert Black is part?
nerwith theBaltimore law firm
of
Weinberg and Green. He currently
chairs theAmerican Bar Associa?
tion'sStanding Committee on Sci?
Evidence, and he isa mem?
entific
ber of theNational Conference of
lawyers and Scientists.He was
co-counsel on theamicus brief
filed bythe AAAS and the NAS in issues, but ithas
support ofMerrellDow in the
Daubert case.He holds a law de?
gree from theYale Law School and
anM.S. in civil
engineering from
theGeorgia Institute ofTechnolo?
Address
gy. forAyah: Depart?
ment ofEcology and Evolutionary
Bblogy, University ofCalifornia, testimony before the jury hears it.Under both
Irvine,CA 92717.
230 American Scientist, Volume
the Courts
knowledge takesmany forms, from
Human art to religion, fromphilosophy to athletic
skill. But scientific knowledge is unique in the
systematic understanding it provides of the
world within and around us and the won?
drous technologies that have derived from it.
Although most people appreciate that scientif?
ic knowledge is special, they know science
only by its fruits.They do not understand how
science works through the formulation and
testing of hypotheses, nor do they understand
the institutional mechanisms science has de?
veloped for sharing and evaluating results.
Small wonder, then, that legal and public
policy decisions based on scientific knowledge
present a persistent problem. Nowhere has this
problem been more apparent than inAmerican
courtrooms,where scientificevidence isbecom?
ing increasingly important and controversial.
The legal debate about science has now
reached the U.S. Supreme Court, which on
March 30 heard oral arguments in a case that
may change theway all federal courts, and
many state courts, handle scientific evidence.
The case of Daubert v.Merrell Dow Pharma?
ceuticals involves claims that Bendectin, a drug
once widely prescribed to combat morning
sickness during pregnancy, caused birth defects
in the children of some mothers who took it.
The case marks the firsttime the high court has
ever directly considered what standard should
govern the use of science in the courtroom, and
ithas focused the spotlight of public attention
on the judiciary's failure to develop clear and
consistent guidelines for evaluating scientific
evidence. The Court's decision, expected this
summer, ultimately may turn on narrow legal
sparked a broad debate about
how nonscientists such as judges can sort out
competing scientific claims.
Within the traditional framework of the
law, the question of how courts should handle
science typically has reduced to whether or
not judges should evaluate and screen expert
the common law and the codified Federal
81
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Rules of Evidence adopted in 1975, judges
have the authority to limit the admissibility of
evidence if itwill cause confusion or unfair
prejudice. But neither the common law nor
the Rules provide much guidance on how
best to evaluate the validity and reliability of
evidence that purports to derive from science.
Although there are exceptions, courts by and
large do not consider what traits and what
mode of reasoning make science scientific.
The judicial reluctance to apply scientific
standards has resulted in a record best
described as mixed and inconsistent. A few
courts, such as theU.S. Court of Appeals for
the Fifth Circuit, have analyzed expert testi?
mony to determine "whether it connects the
facts to the [expert's] conclusion in a scientifi?
cally valid way," but other courts have
reached decisions clearly at odds with scientif?
ic reality, sometimes even explicitly declining
to apply scientific standards when science is at
issue. In a recent case involving a claim that a
spermicide had caused birth defects, the U.S.
Court ofAppeals for the Eleventh Circuit held
that science does not matter for the law, only
whether the judge or jury "found sufficient
evidence of causation in a legal sense."
Bizarre decisions that fly in the face of sci?
as the 1944 paternity
entific knowledge?such
judgment against Charlie Chaplin, who in
court magically became the father of a young
girl whose blood typemade paternity impos?
sible?harm both science and the law. They
feed the perception that clever lawyers can
turn trials intomanipulative games inwhich
the facts don't really count, and they create
the impression that science is about hunches
and crude analogies. Worse yet, the decisions
of judges to allow scientists to give testimony
based mostly on their personal biases may
legitimate misunderstandings and groundless
fears that can thwart progress and cause real
harm. Verdicts based largely on quackery
have driven some beneficial pharmaceuticals
out of production and have greatly reduced
research in fields such as contraception.
^^^^^B/ ^^^^H* ^^^m*?^!^

1. Controversy over the use of scientific evidence has reached the U.S. Court, which is expected to rule this summer in Baubert
Figure Supreme
v.Merrell Dow Pharmaceuticals, a lawsuit inwhich theplaintiffsclaim thattheanti-nausea drug Bendectin caused birthdefects. In thisdrawing
prepared fortelevisionby courtroomartistBettyWells, Charles Fried, attorneyforMerrell Dow, is shown presenting oral argumentsbefore the
on March as the the use of scientific evidence inmost U.S. courts since 1923; the test,which
Court 30. A judicial rule known Frye test has governed
establishes as the standard for deciding what evidence is admissible, does not require judges to consider the traits and
"general acceptance"
modes of reasoning that characterize science.

The solution to these problems is for courts
to hold experts to the same standards scientists
themselves use in evaluating each other's
work. Although no definition fully captures all
that constitutes science, relatively straightfor?
ward practical criteria have developed over the
years, along with institutional review mecha?
nisms such as peer review. Courts should not
turn to peer review as the only test for admissi
bility, but by understanding what traits scien?
tists consider during the review process, and
how this process is part of the overall fabric of
science, they can resolve courtroom disputes
about science farmore consistently and intelli?
gently than in the past.
Moving BeyondFrye
Most contemporary legal scholarship about sci?
entific evidence begins with a discussion of Frye
v. United States, decided 70 years ago
by the
U.S. Court of Appeals for the District of Co
lumbia. Although not the primary focus of this
article, the so-called Frye test is still central to
the ongoing legal debate. It illustrates how legal
thinking on scientific evidence has failed to
come to grips with the fundamental question of
how to separate science from nonscience.
The facts of theFrye case are not complex. At
his murder trial, James Alphonso Frye's attor?
neys wanted to present evidence that he had
a
passed systolic blood-pressure deception test,
a forerunner of the
polygraph lie detector. The
judge said no, and Frye was convicted. He
filed an appeal, but in the now-famous 1923
ruling,theCourt ofAppeals upheld both his
conviction and the trial judge's ruling that the
testwas inadmissible. In a brief decision, the
court made the first significant effort to pro?
vide judicialguidanceon theproperhandling
of evidence that purports to be scientific. The
court wrote that the principle underlying sci?
entific evidence must be "sufficiently estab

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All use subject to JSTOR Terms and Conditions
 lished to have gained general acceptance in the
particular field inwhich itbelongs/
The Frye ruling has proven attractive to judges
because itprovides an apparently simple short?
hand rule?"general acceptance"?for resolving
complicated questions. In theDaubert case and
inmany others, the debate over scientific evi?
dence is framed largely in terms ofwhether and
how to apply J- rye, although the 1975 Federal
Rules of Evidence have added a new element to
CRN
the debate. Before theRules were enacted, com?
M mon-law decisions such as Fryewere the only

C guidance courts had on how to deal with expert

testimony.Since 1975, part of the debate has been
AF about whether theRules have supplanted Frye.
Under the Rules, qualified experts are al?
lowed to testify about "scientific, technical or
other specialized knowledge" if their testimony
"will assist [in understanding] the evidence or
jeans \ 1kb to determine a fact in issue." Many courts have
interpreted this language tomean that scientific
evidence must be 'helpful and reliable" to be
admissible, a testno more illuminating and just
as much a shorthand rule as "general accep?
tance." Some lawyers have argued that the
Rules are more liberal than Frye, and that evi?
dence thatwas inadmissible before their adop?
tion can now be introduced. Published deci?
sions, however, indicate that in practice there is
no great differencebetween the two approaches.
Although comparative analyses of Frye and
theRules of Evidence have dominated the legal
literature on scientific evidence since 19/5,we
believe thisdebate obscures what should be the
primary issue. The search fora simple shorthand
rule and continued efforts to apply one or the
other shorthand alternatives have kept courts
and the legal profession from understanding
how to separate valid science from speculative
opinion. They have focused attention on the re?
sult of the scientific reasoning process, rather
than on the quality of the reasoning itself.The
well-publicized and continuing controversy over
the use of DNA evidence to identify criminal
suspects exemplifies the need for judges to ex?
amine, step by step, the reasoning and method?
ology underlying scientific evidence and to ap?
ply the standards and criteria of science.
Figure 2. DNA typing, a controversial form of scientific evidence used for identifying crim?
inal suspects, relies on the comparison of autoradiographs in which small fragments of
A Case Study: DNA Typing
DNA cut by restriction enzymes appear as bands; the banding patterns are created by elec
is commonly extracted from biological material such as blood, semen or
DNA typing has enormous potential for pro?
trophoresis. DNA
hair found at a crime scene, and compared with DNA from a suspect's blood; it is also com? viding very precise identifications. Using vari?
in cases where paternity is an issue. In the top two samples, band patterns in seg? ous methods, laboratories can extract DNA
pared
ments of a mother's (M) and child's (C) DNA are compared with those of an
alleged father from biological material such as blood, semen
(AF) and a control. Paternity was supported by the test because the alleged father's DNA or hair leftat a crime scene, or in the vagina of
the child's at locations where the mother's did not The lower panel shows pat? a rape victim. Because certain
regions of hu?
matched
terns from a case where DNA from bloodstains on a suspect's clothing (jeans and shirt) was man DNA are
highly polymorphic?that is,
compared withDNA fromthedefendant'sown blood (D) and fromtheblood of amurder have great variability?there are de?
they
victim (V). Columns 1,2,3,9 and 10 are controls; the column labeled lkb has markers every
tectable differences between DNA fromdiffer?
one kilobase. The tended to incriminate the suspect because the samples from
comparison
ent individuals. In the laboratory, enzymes are
the defendant's clothing matched the victim's blood but did not match the defendant's. The
a used to cut DNA at specific sites in order to
probability of coincidental match was estimated at one in 33 billion. The validity of vari?
ous statistical techniques to estimate the of random genetic matches remains extract polymorphic regions for comparison.
probabilities
controversial, making DNA typing
an area where judges must carefully consider reasoning
DNA typing involves alleles?genes thatvary
and methodology. (Courtesy of Cellmark Diagnostics, Germantown, Maryland.) from one individual to another?from three to

232 American Scientist, Volume 81

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 five locations ("loci") in the genome. Because
each individual has two alleles (one from each
parent) at each locus, a three-locus testwould
involve the comparison of six alleles. Any diver?
gence between samples, even of one allele,
would exonerate a suspect, unless the laboratory
conducted testing incorrectlyor used contami?
nated or deteriorated samples. Indeed, in some
cases DNA evidence has allowed even convicted
parties to prove their innocence. Last year, for
example, a convicted rapistwho had been iden?
tifiedpositively by two victims and sentenced
to two life terms plus 335 years was cleared by
DNA tests after serving fouryears inprison.
The interpretationof samples that appear to
match ismore problematic. To evaluate how
strongly such a match indicates identification,
one must estimate the likelihood that itoccurred
by chance. For example, ifa particular set of al?
leles were found in themajority of people, a
match would be virtuallymeaningless. The task
of determining the probability of a random
match would be relatively simple if alleles oc?
curred completely independently of one another
and ifthe occurrence of the alleles in the general
population were known?two conditions that
exist. that determine traits
rarely Many genes
such as hair color and eye color are associated
(blue eyes and blond hair, for example), and it
remains unknown whether polymorphic DNA
segments are involved in such associations. More
important,theactual occurrence ofmost alleles in
any given population group isunknown.
Inpractice, the issues involved indetenr?ning
the likelihood of a random match are many. Ifa
suspect has an exact twin, it is certain thatat least
one other person existswith identicalDNA. Sib?
lings have a one-in-four chance of having a
match at any given locus, sowhen a suspect has
a brother or a sister and a four-locus test is con?
ducted, there is at least a one-in-256 chance that
the sibling's DNA would match. This chance
would be even higher ifthe siblings' parents had
a common allele or ifone parent were homozy
gous (had received identical genes from two par?
ents) at one ormore of the loci tested.For amem?
ber of a given ethnic group, such as American
Indians, the likelihood of a chance match might
be significantlyunderestimated ifbased on the
frequency of an allele's occurrence in a different
ethnic group, such as thewhite population. The
variation of polymorphic DNA-segment patterns
among ethnic groups has yet tobe fullyexplored.
The problem of defining the comparison pop?
ulation group has been discussed at great length
invarious scientificpublications and in an April
1992 reportpublished by theNational Academy
of Sciences. There aremethods thatallow forrea?
sonably conservative probability calculations,
and it is somewhat reassuring thatan analysis of
theFederal Bureau of Investigation's DNA-pro
file databank found no exactly matching pairs
in five-locus profiles. The closest relationship
among 7.6 million pairwise comparisons in
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volved a three-locusmatch. (It should be noted
that the number of individuals in the FBI data?
base is still fairlysmall, just a few thousand, and
the sample may not be truly representative of
theplurality ofU.S. subpopulations.)
Theory, Technique and Application
The complexity of the scientific issues sur?
rounding DNA typing suggests that judges
need a standard more sophisticated than "gen?
eral acceptance" or ''helpfulness and reliability"
to determine the admissibility of a DNA analy?
sis in a specific case. The statistical issues are the
subject of continuing debate, and so are the var?
ious methods used to separate and identify
DNA segments for comparison. One method
may be reliable and valid, another less so. It
makes no sense simply to say thatDNA testing
is or is not "reliable" or "generally accepted."
Science involves
farmore than
Most scientistswith training inmolecular biolo?
gy and population genetics would accept DNA
typing evidence as probative, but most also observational
view itwith some caution, since it involves the
confluence ofmany theories and technologies.
reports.Science
Most courts facedwith a choice about the ad?
missibility of DNA-typing evidence have ad?
also explains
mitted it,but only a few, such as theAlabama
Supreme Court, have undertaken a very so?
and clarifies
phisticated analysis. The Alabama example
comes from the case ofWaylon Dwight Perry, relationships.
who was tried and convicted in 1988 for the
murder of Bryce Wallace. DNA from blood
stains found on the strangled victim's clothing
and on the frontdoorknob of his house were
compared with Perry's DNA, and an expertwit?
ness from the laboratory that conducted the
analysis testified that the results showed a
match, and that therewas only a one-in-209 mil?
lion probability that ithad occurred randomly.
Perry's attorney objected at trial that the test
was not trustworthyand carried thatobjection to
theAlabama Supreme Court, which found that
the lower court had conducted an inadequate
review. The state Supreme Court7 s decision set
fortha three-part test,under which trial judges
must consider the validity of a theory, the tech?
niques based on that theory and the application
of the techniques in a specific case. The court
found that the scientific theoryunderlying DNA
typing was generally accepted and valid and
that techniques were available for applying the
theory in a reliableway. The problem in thePer?
rycase was an inadequate review of exactly how
the technique had been applied. On remand, the
trial court held an evidentiary hearing and af?
firmedPerry's conviction. The Alabama Court of
Criminal Appeals upheld this second conviction,
noting that thedefendant7 s own expert had con?
ceded that the chance of a random match was
one in 300million.
The Nature of Science
When judges undertake the kind of sophisticat?
ed review seen in the Perry case, they need at
1993 May-June 233
 will be proven false. Indeed, many scientists
Scientific consider falsif iability themost important char?
acteristic separating science from other forms
explanations of knowledge. An explanation or hypothesis
must be capable that cannot be subject to the possibility of re?
jection based on observation or experiment
cannot be regarded as scientific.
ofbeingproven The foregoing discussion suggests a loose def?
false.At a inition of science as "knowledge about the uni?
verse on thebasis of explanatory principles sub?
minimum, the ject to the possibility of empirical falsification/'

logicalformofa
But other reasonable definitionsmight also be of?
fered. In any event, no definition by itselfpro?

hypothesismust vides adequate guidance on how to sortout com?

peting scientific claims. To gain a real sense and
make itamenable feel forwhat makes science scientific one must
look to examples from the history of science and
to testing. consider thenature of scientific thinking.
History reveals that the process of scientific
discovery is rarely neat and tidy. Scientific
knowledge grows through two intertwined
kinds of intellectualeffort:invention or discovery,
and validation or corroboration. Most new sci?
entific ideas begin with imagination and conjec?
ture. Justas Newton is said tohave been inspired
by a falling apple, so the pioneering organic
chemist August Kekule said he came upon the
hexagonal-ring model thatwe now know as the
and conjecture are often the
Figure 3. Imagination
source of important scientific these
ideas, although benzene ringwhile dozing in front of his fire?
ideas are accepted only after numerous and
ar?
place. He imagined the flames as snakelike
challenges
tests. The pioneering chemist August Kekule told fan?
rays of atoms mockingly dancing in frontof him.
ciful stories to explain how he first imagined the

hexagonal structure of the benzene ring. The tales Suddenly, one snake appeared tobite itsown tail,
were Otto Witt and which gave Kekule the inspiration he needed.
spoofed by Kekule's colleagues,
Emil Jacobsen, who in 1886 published a pamphlet that Once a new idea or discovery has been artic?
replaced the carbons in benzene rings with monkeys. ulated, itsvalidation requires that itgo through
(Reproduced from Kekule Centennial, American
empirical testing capable of proving it false.
Chemical Society 1966.) The testing process involves observation and
experimentation, which may suggest addition?
least a basic understanding of the characteris? al hypotheses and alternative explanations,
tics that separate science from other forms of leading in turn to further experiments, and so
knowledge and of theway inwhich scientists on. Three examples from the history of science
conduct and evaluate their work. Although illustrate how this process works in practice
Scientific there is no cookbook-like formula for resolving and what happens when it is ignored or when

knowledgetends disputes about scientific validity, the scientific scientists seek shortcuts.
community has developed criteria and institu? Judges, then,must recognize that scientific
tobe cumulative tionalmechanisms for identifyingvalid science. knowledge is not static and that new explana?
Scientific knowledge differs in important tions are continually being put forthand tested;
and progressive, ways from common sense or knowledge ac? in fact, an experiment that appears to corrobo?
in the course of rate one hypothesis may inspire a scientist to of?
and a hypothesis quired
Day-to-day observations
ordinary experience.
reveal many facts? fer an alternative explanation and then to con?
duct an experiment to corroborate it. In their
thatdoesnotfit for instance, that children acquire different
traits from each parent, or thatmanure in? creativity,theirability to generalize by induction,
withaccepted creases crop yield. But they seldom answer the scientists are not so different fromphilosophers
or even artists.What distinguishes science is the
question, "why?" Science, on the other hand,
shouldbe
theories tries to explain why events take place and to process by which scientific knowledge is justi?
organize thatknowledge systematically. fied or validated.
regardedwith Science shares the characteristics of explana?
tion and systematic organization with other Science and Pseudoscience
great skepticism. forms of systematic knowledge, such as math? Gregor Mendel's elucidation of the principles
ematics and philosophy. But empirical science of genetics, which wove together theory and ex?
is distinguished from these forms of knowl? periment, provides a classic example of science
edge by another principle: empirical testing. at itsbest. The origin ofMendel's theory of in?
Because a scientific explanation must be sub? heritance lay in some experiments theAustrian
ject to such testing, it is always possible that it botanist and monk conducted with peas grow

234 American Scientist, Volume 81

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 ing in themonastery garden. Mendel found nied or denounced on the grounds that noth?
plants that differed in a single traitand, by sys? ing could possibly be right that contradicted Hypotheses
tematically breeding like and different plants, the superior ideology ofMarxism-Leninism.
based only on
came up with several generalizations. He sum? The huge body of contradictory evidence that
marized his results in a law: Hybrid plants pro? emerged from the failure of his agricultural
duce seeds that are one-half hybrid, one-fourth ^interpretations
practices was blamed on subversion by farm?
pure-bred for thedominant traitand one-fourth ers and enemies of the people.
Errors in science are not always monumental
ofpre-existing
pure-bred for the recessive trait.He also formu?
lated a second law, stating that traitsare inherit? aberrations caused by political prejudice, as in data, and
ed independently of one another. the case of Lysenkoism. Farmore commonly, sci?
Mendel's famous reporton his discoveries be? entific errors are committed because even well unsubstantiated
gins with the experiments that led to the formu? qualified scientists sometimes violate theproper
lation and testing of these two principles of in? procedures of scientific investigation. Most of? bysubsequent
heritance, followed by speculation about how ten the process of empirical testing is bent or ig?
the two principles might be explained. Midway nored, perhaps with thebest ofmotives. The sto? experimental
through thepaper he advances what isproperly ryof Robert Koch's effortsto develop a vaccine should
testing,
called a hypothesis to account forhis previous for tuberculosis provides a notable example.
results and for the two laws. The second half of Koch is still known today fordeveloping the be treatedvery
the paper is dedicated to the derivation of pre? postulates that guide the study of infectious
dictions from the theory and a report of the ex? diseases. Before he turned his attention to tu? critically.
periments he conducted to test these predictions. berculosis, he had conducted many important
The structure of the paper reveals how good experiments, discovering the complex life cycle
science proceeds. Mendel wrote just after for? of anthrax and the cause of cholera. In the 19th
mulating his theory that it "would fully suffice century tuberculosis was themajor cause of
to account for the development of the hybrids death among young men and women, and
in the separate generations"?that is, that the Koch received great acclaim in 1882 when he
hypothesis was consistent with his previous announced that he had discovered the dis?
experiments. But, of course, the theory had ease's cause, the tubercle bacillus. For this dis?
been designed to fit the results, and Mendel covery, he laterwon theNobel prize.
knew that new testswere required "in order Koch also soon announced that he had dis?
to bring these assumptions to an experimental covered a substance thatwould protect against
proof." The experiments followed in due
course, confirming segregation and indepen?
dent assortment in both egg and pollen cells.
The work of Trofim Denisovich Lysenko
stands in sharp contrast toMendel's. Lysenko
earned unique prominence in the annals of ge?
netics not as a scientist but as a charlatan. Dur?
ing the 1930s he began promoting a view that
was carefully tailored to support the new com?
munist ideology in the Soviet Union: He de?
nounced genetics as a capitalistic science that
perpetuated the notion of qualitative differ?
ences among plants, animals or people. He
maintained that such immutable differences do
not exist; rather,differences between individu?
als are the result of environmental effects and
can be radically modified by exposing organ? A valid
isms to appropriate environmental challenges.
Rather than following Mendel's principles and
hypothesis
systematically selecting and breeding crop
plants for desirable traits, Lysenko claimed
cannot be self
crops could be improved by exposing seeds or
young plants to suitable conditions. contradictory.
4. Robert Koch failed to conduct
Today Lysenko is best known for having Figure experimental
of a vaccine
testing before announcing the discovery
crippled the Soviet agricultural economy and, for tuberculosis in 1882. A cartoon appearing at the time
with help from Stalin's brutal regime, having
in theBerlinpublicationUlk depictedKoch as thenew
destroyed the scientific practice of genetics in St. George, slaying a serpent labeled "tuberculosis
his country. But he did so by completely abro? bacillus." Koch refused to identify his curative sub?
gating the traditional practices of science. He stance, however, and when the fanfare died down itbe?
avoided properly designed tests that could fal? came clear that itwas effective neither as preventive nor

sify his theories; instead, he supported his cure. Scientific error is frequently the result of failures,
claims with crude experiments that could be even by eminent scientists such as Koch, to follow the
was de
interpreted atwill. Contrary evidence proper procedures of scientific investigation.

1993 May-June 235

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 the disease and even cure it.He would not,
however, open up his work for review by other
scientists and refused for a year after his an?
nouncement even to identify the supposedly
curative substance. Nevertheless, his discovery
?. Dom strains
was received with great fanfare, and the Ger?
hqtu
man government undertook a campaign to in?
oculate itspopulation against thedread disease.
Unfortunately, Koch had done virtually no
experimental testingof his vaccine, which even?
tually proved ineffectiveas either preventive or
DNA grown innormalnitrogen cure. He had assumed, on the basis of limited
evidence, that an injection of dead bacilli would
result in a local reaction thatwould be protec?
tive if the person laterwere infectedwith live
bacilli. Late in a remarkable career,he had to en?
dure the scorn of themedical community that
had celebrated his early discoveries.

Corroboration and Falsification

-
bothstrands heavy The contrast between Mendel's methodology
and the stories of Lysenko and Koch highlights
theway inwhich ideology, hubris, overconfi
dence or just plain sloppiness can pervert sci?
ence. It also explains in part why judges and
other nonscientists who have to base decisions
on scientific informationneed tounderstand the
importance of properly formulating hypotheses
and corroborating them through testing.A few
straightforward criteria allow one to judge, even
i?-**^ iiwnctinoiecuie if imperfectly,when a hypothesis is sufficiently
?s.??, 1 snino iignt,
^ 1 strandheavy corroborated to be commonly accepted and to
serve as thebasis formaking practical decisions.
Testing a hypothesis involves at least four
different activities. First, the hypothesis must
first-generation daughtermolecules
be examined for internal consistency and re?
jected if it is self-contradictory or otherwise
logically ill-formed. Second, the logical struc?
ture of the hypothesis must be examined to as?
certainwhether ithas explanatory value?that
~
ootn siranos raw is,whether itmakes the observed phenomena
%hvbrid molecule intelligible in some sense and whether it an?
swers the question, "why?" A purely tautolog?
ical hypothesis should be rejected because it
has no explanatory value. Third, the hypothe?
sismust be examined for consistency with hy?
potheses and theories that are commonly ac?
rtfflHri^igffnftfflitkHi daughtermolocuioo cepted in the particular field of science, and to
see whether it represents any advance with re?

Figure 5. Critical tests provide the dearest corroboration of sdentific hypotheses. An elegant spect towell-established alternative hypothe?
is the Matthew Meselson and Franklin ses. Obviously, lack of consistency with accept?
example provided by experiment performed by
Stahl in1958 to testthepredictionsof thedouble-helix model ofDNA proposedby James ed theory cannot always be grounds for
Watson and FrancisCrick in1953.Themodel predictedthatthereplicationofDNA issemi a
rejecting hypothesis. Some of the greatest dis?
conservative?that is, that each daughter DNA molecule consists of one parental, or con? coveries in science departed daringly from the
served, strand and one newly synthesized strand. In particular, the double-helix
past. But the greater the departure from estab?
model
made a unique prediction for the second generation. Bacteria grown on a medium contain? lished knowledge, the more a hypothesis
ing normal, or "light," nitrogen incorporate nitrogen in both strands of theirDNA (top pan? should be viewed with caution.
el),Meselson and Stahl grew bacteria using a heavy isotope, 15N,which became incorporat?
ed into both strands of theirDNA aftermany generations. Heavy DNA can be distinguished Finally, a well-formulated hypothesis that
from light DNA in a centrifuge tube. The bacteria were transferred to a medium
containing
explains observed phenomena and is consis?
so that DNA would be and DNA would be tentwith accepted theoriesmust still be tested
lightnitrogen newly synthesized light parental
heavy. DNA was extracted after one generation of replication and again after a second gen? empirically. Testing is accomplished by pre?
eration. The DNA of the first new generation turned out to be a hybrid medium-density dicting what should be observed if the hypoth?
molecule. Half of theDNA extracted from the following generation was light, and half was esis is correct and then seeing if the predictions
ofmedium density,
a result consistent
only with a semiconservative mode of replication. accord with what is actually observed. Any

236 American Scientist, Volume 81

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meaningful test can result in the falsifying of a comes. A critical test thuswill corroborate one
it a Broad
hypothesis, and is only when hypothesis hypothesis and falsify the others.
survives such efforts at falsification that itbe? An example of how a critical test can crys?
comes corroborated and accepted. tallize understanding and certainty is the ex? generalizations
The foregoing description of sciencemay sur? periment conducted by Matthew Meselson are farmore
prise some: It contradicts the popular view that and Franklin Stahl in 1958, testing the double
science establishes purely objective factsand ab? helix model of DNA proposed five years earli? to
difficult
solute objective truth.But there is an important er by JamesWatson and Francis Crick.
asymmetry between verifying the truthof a hy? The proposal of the double-helix model is corroborate
pothesis and corroborating by it attempts at fal? now considered the beginning ofmolecular bi?
sification.A universal statement about the nat? ology, one of the great revolutions in science. thanprecise
ural world can be falsified by even a single But alternative models were not immediately
a can statements,
counterexample. But universal statement rejected.Meselson and Stahl set out to test the
never be proved absolutely true,no matter how Watson and Crick model's prediction that the andhave little
many observations seem to verify it.The next replication of DNA is semiconservative?that
observation may still show it to be false. is, that each daughter DNA molecule consists
A trivial example illustrates the difference of one parental strand, or conserved strand,
explanatory
between verification and surviving falsifica? and one newly synthesized strand. Other power.
tion. One might hypothesize that apples are models predicted either that the parental DNA
made of iron, and predict from this hypothesis is fully conserved or that the parental mole?
that they should fall to the ground when cut cule is degraded into fragments and both
from a tree.Apples do in fact fallwhen they daughter DNA molecules are newly synthe?
are cut off, but this does not verify that they sized from these and other fragments.
are made of iron. Testing the hypothesis fur? Meselson and Stahl produced bacteria that
ther, one to it had a heavy isotope of nitrogen in theirDNA
might attempt falsify by predict?
ing that ifapples are made of iron they should and transferred the bacteria to a medium con?
sink inwater. When it is observed that apples taining lightnitrogen. Two of the threemodels
do not sink, the hypothesis is falsified. predicted that the next generation of bacteria
Of course, in order fora hypothesis tobe fal would be of intermediate density, because one
sifiable (and hence testable), itmust be inconsis? strand of DNA in each molecule would have
tentwith some possible state of affairs in the heavy nitrogen and one would have lightnitro?
a unique
empirical world. If a hypothesis has any scien? gen. But thedouble-helix model made
tific
merit, the predictions derived from must
it prediction for the following generation: thathalf
be sufficientlyprecise that they limit the range
of possible compatible observations. Indeed, the
informationcontent of a hypothesis ismeasured
by the number of statements that are inconsis?
tentwith it?the class of "potential falsifiers."
As the philosopher Karl Popper once put it:
"Not fornothing do we call the laws of nature
laws': The more they prohibit themore they
say." Broad statements consistentwith all possi?
ble states of affairs in thenatural world?for ex?
ample, "birds have wings because God made
them so; fishdo not for the same reason"?lack
are not scientific.
empirical content and hence

Critical Tests
Because scientific hypotheses can be falsified
but not absolutely established, they can only
be accepted contingently. This does not mean,
however, thatwe have the same degree of con? Figure 6. Polygraph (lie-detector) tests and other methods of establishing the veracity of
fidence in all hypotheses thathave not yet been a witness have been the subject of much debate related to the nature of scientific evi?
falsified. A hypothesis that has passed many dence and what constitutes "general acceptance" in a scientific community. In the case
cor?
empirical testsmay be said to have been
of Dowd v. Calabrese, a judge refused to agree that a survey of psychophysiologists
could be used to establish that polygraph was as scientific.
roborated. The degree of corroboration de? testing generally accepted
The decision in this case recognized that such opinion polls are a shortcut around the
on the number of tests sur?
pends not simply in science, which require the "maturation of a
accepted methods of reaching agreement
vived, but rather on their severity. Severe tests consensus." A forerunner of the polygraph, the systolic blood-pressure deception test,
are thosemost likely to have outcomes incom?
was ruled inadmissible a federal appeals court in 1923 in the landmark Frye ruling
by
patible with the hypothesis if it is false. The that set the legal standard still in use inmany jurisdictions. The Frye court said that the
more precise the tested predictions, themore scientific evidence must be "sufficiently established to have
principle underlying
severe the test.A critical or crucial test is an in the particular field inwhich itbelongs." In this news pho?
gained general acceptance
experiment forwhich competing hypotheses tograph from the 1950s, two Seattle polygraph examiners are shown demonstrating

predict alternative, mutually exclusive out what was then a fairly new technology.

1993 May-June 237

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 theDNA molecules would be intermediate in
The more
density and halfwould be light.This prediction
was borne out by the density measurements of
experiments that each generation, corroborating thedouble-helix
an
fail tofalsify
model's prediction and rejecting the other two.
Other critical experiments corroborated other
explanation or predictions of thedouble-helix model, and mol?
ecular biologists soon were proceeding on the
the
hypothesis, assumption that theDNA structure is indeed a
more
double helix. Ensuing advances inmolecular bi?
corrobo?
ology have furthercorroborated thishypothesis
in innumerable ways.
rated, or reliable, The double-helix model's predictions would
it becomes. certainly pass any legal test of "general accep?
tance" today, but looking back therewere ear?
lier earmarks that a court could have used to
identify themodel as an example of good sci?
ence. Scientists moved quickly to test the hy?
pothesis against other plausible explanations
ofDNA structure. The willingness of scientists
to "bet the farm" on a particular hypothesis,
by investing their time, resources and prestige
in experiments that depend on its validity, is
the surest sign that they consider it the right
explanation.
The process of falsification is certainly subject thatmay guide theirwork. Because submitting
tohuman error. If the prediction tested does not
in fact logically follow from thehypothesis, erro? tablish priority fora new discovery or idea, the
neous conclusions may result. An observation
Figure 7. Spraying of Agent Orange during the Vietnam War was the focus of product-li?
ability litigation initiated by Vietnam veterans and involving much testimony about sci?
entific issues. A federal district-court
judge inNew York examined the logic structure be?
hind one expert's testimony and concluded that the expert's analysis was "so guarded as
to be worthless." The case, which was settled out of court, is an example of a judge's will?
ingness to consider the reasoning behind evidence that purports to be scientific.
238 American Scientist, Volume 81
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or experiment may be performed or interpreted
erroneously. Thus, scientistsusually require that
the falsifyingobservation be repeatable.
Institutional Review Mechanisms
The process of empirical testing is far from
simple and trivial, and errors can happen all
too easily. Scientists thus usually require that
testing be repeatable, particularly before reject?
ing important or previously well-corroborated
theories. To minimize such problems, and to
facilitate reliance on previous work when con?
ducting new research, science has developed a
number of institutional review mechanisms.
Because science is a cumulative endeavor in
which each scientist must build on thework
of others, the scientific community places great
emphasis on weeding out false ideas.
Peer review represents both an effort to po?
lice scientific claims and an attempt to assure
theirwidest possible dissemination. The pres?
sure on scientists to publish derives not only
from narrow concerns about recognition and
career advancement, but also from the desire
of all scientists to learn of new developments
a paper for peer review is the best way to es?
process serves to get new information out fast
as well as to control its quality. The comments
of peer reviewers help proponents of new hy?
potheses to improve their research and inter?
pretations.
The review of scientific ideas takes place in a
variety of contexts. Informal review can occur
when scientists discuss theirwork with one an?
other at the laboratory bench, during conver?
sations and seminars, and at scientific meet?
ings. Formal peer review is generally an
integral part of the scientific publication
process and the process by which funds are al?
located for the conduct of research. Any claim
thatwould significantly add to or change a
body of scientific knowledge must be regarded
quite skeptically if ithas not been subjected to
some form of peer scrutiny,preferably by sub?
mission to a reputable journal.
Active Judicial Review
The Alabama Supreme Court's handling of
DNA-typing evidence in the Perry case dis?
cussed above illustrates that courts are capable
of undertaking the kind of sophisticated analy?
sis of scientific evidence thatwe have suggest?
ed. Other cases further establish that judges
have the ability to look closely at the reasoning
underlying an expert's conclusions and to ap?
ply scientific standards to that reasoning.
A 1978 New York trial-court decision in a
case called People v. Collins shows that thor?
ough and knowledgeable review of scientific
claims need not be restricted to appellate
courts. The issue in the case was the admissi
bility of "voiceprint" evidence. The defendants
 inCollins allegedly had made telephone calls in
furtherance of an extortion scheme, and some
of the calls had been recorded. When the state
moved to admit evidence based on a compari?
son of graphical depictions of the recordings
and recordings of the defendants' speech pat?
terns, the court, though couching its analysis in
terms of general acceptance, undertook a thor?
ough review of the science at issue.
Citing a book about the scientific method,
theCollins court found it "certainly reasonable
to expect science towithhold judgment on a
new theory until ithas been well tested in the
crucible of controlled experimentation and
study. Such a procedure would require replica?
tion of original experiments, and scrutiny of
the results in various scientific journals." The
court also addressed the problem of defining
the scientific community inwhich the evidence
ought to have general acceptance, recognizing
"that expertise in disciplines tangential to the
one under consideration could have significant
bearing on the issue under discussion."
In the end the court declined to allow ad?
mission of the voiceprints, which had not been
accepted for voice identification. The only
study that supported such use had not been
replicated. Thus, the court held, "[i]n this case
... it is not
surprising that so few qualified sci?
entists accept this technique, which acceptance
would necessarily be predicated on prelimi?
nary and incomplete experimentation."
Other courts have considered thepresence or
absence of peer review as a critical element in
their evaluation of scientific evidence. Indeed,
whether a failure to submit research results to
thepeer-review process is adequate grounds for
excluding evidence based on the research is one
of the issues in theDaubert case now before the
U.S. Supreme Court. In the 1974 case of John?
ston v. United States, a Federal District Court in
Kansas rejected the testimony of experts called
by the plaintiffs to establish that their diseases
had been caused by exposure to low-level radi?
ation. The court expressed its outrage and dis?
appointment that "these witnesses say and con?
clude thingswhich, in the Court's view, they
would not dare report in a peer reviewed for?
mat." InDowd v. Calabrese, thedefendants in a li?
bel action attempted to overcome judicial reluc?
tance to admit polygraph evidence. They
conducted a survey of psychophysiologists to
establish its "general acceptance," but the court
rejected this opinion-poll approach. "The scien?
tific community uses entirely differentmeth?
ods," the court wrote. "Defendants' polling
short cut cannot substitute for these time-hon?
ored procedures, which are time honored pre?
their exposure to the herbicide Agent Orange
had harmed them, a federal district judge in
Claims thathave
New York rejected one expert's testimony after
not been subject
finding that his reasoning "amounts to this:
[the plaintiffs] complain of various medical topeer review
problems; animals and workers exposed to ex?
tensive dosages of [dioxin, a trace contaminant shouldbe treated
inAgent Orange] have suffered from related
difficulties; thereforeassuming nothing caused skeptically,
the [plaintiffs'] afflictions, Agent Orange
caused them." Such an analysis, the court held, especiallyif
was "so guarded as to be worthless."
theyrepresent
Conclusion a significant
Science and the law are often seen as very differ?
ent areas of endeavor, with differentcultures and
different standards. In fact, scientific and legal
departurefrom
reasoning are inmany ways quite similar. In
both science and the law, rational explanations
generallyaccepted
must connect evidence to conclusions about the scientific
knowledge.
evidence. The realitywith which scientists deal
outside the courtroom is not magically trans?
formedwhen theybecome expertwitnesses. As?
suring that science remains scientificwhen it
goes to court requires more than simple short?
hand rules like "general acceptance" or "help?
fulness and reliability." Instead courtsmust un?
derstand the fundamental traits thatdistinguish
science from other forms of knowledge and
must, like scientists, avail themselves of peer re?
view and othermechanisms to separate real sci?
ence from the pale imitations sometimes con?
jured up purely for legal purposes.
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