Peer review helps prevent bad science from being published. So why do judges ignore it?

Expert reports and testimony are common in courtrooms. The fate of the judicial adversaries frequently rest on the credibility that a judge or jury vests in one report versus another. Many of those reports and testimonials are, inaccurate,  poorly done, scientifically and logically flawed.

 

However, judges — who are not scientists — admit almost every one submitted regardless of quality or bias because there are no requirements for review by outside third parties: Peer review.

 

Unfortunately, courts don’t use this fundamental and time tested standard of accuracy despite the fact that peer review is accepted, respected, and demanded by every respectable academic journal.

 

This article for example — Bad Science in Court — questions this judicial lapse and asks:

“If peer review is essential to ensure the accuracy of a scientific article, why isn’t it essential to ensuring the accuracy of evidence that could send a defendant to prison or death?”

Peer review is demanded for publication even for far less life-and-death topics such as this piece in the Journal of Marketing Psychology: The Sounds of Silence: Inferences from the Absence of Word‐of‐Mouth.

 

But Courts have no verifiably accurate standard despite the U.S. Supreme Court decision in Daubert v. Dow Pharmacuticals which was supposed (but failed) to bring some degree of scientific rigor to the legal process.

 

Unfortunately, Daubert has multiple crucial flaws (one being relevance over accuracy that were exploited by tobacco companies for many years.

 

This article from the American Bar Association Journal — Courts need help when it comes to science and tech — describes how sloppy, substandard science continues to rule in the courtroom.

 

Peer review is not perfect, but it is the best system devised thus far.

 

Further,  when peer review does go wrong, there are numerous watchdogs — such as Retraction Watch — to shed the harsh glare of transparency on the mistakes. That visibility usually results in the flawed articles being corrected or retracted.

 

However, the same effort and attempts to insure accuracy are shut out of American courts.

Other relevant links

• Judges are terrible at distinguishing good science from bad. It’s time we stopped asking them to do it
• How discredited experts and fields of forensics keep sneaking into courtrooms.