A couple or more months ago, I said I was going to follow up my article on artificial intelligence with another on specifically how I use artificial intelligence. I’m going to get to that. I’m delayed because, as to the law, I really don’t use it much. So I’ve had to do a lot of thinking, and trying stuff out. But in fact, I was going to write it today, then ran across some sloppy science writing, and that inspired me more than…well, the sloppy “science” of artificial intelligence. So, I’ll get to it another day.
Introduction: The Dangers of Sloppy Science
It amazes me how science writers too often miss the mark entirely when explaining scientific concepts — even with their own subject matter.
Poorly-communicated science not only misinforms the public but can have far-reaching consequences, especially when this misinformation enters the courtroom. Whether in articles about animal behavior or in the testimony of expert witnesses, clarity and accuracy matter. Misrepresenting science, through oversimplification, outright error, or just poorly testifying leads to serious legal ramifications.
I previously wrote about a classic example of the negative impact of piss-poor science on “justice” in “CSAAS: Pseudoscience & Sexual Molestation.”
Sloppy Science in the Public Sphere
Science writing serves as a critical bridge between complex research and the public’s understanding of that research. Unfortunately, when this writing is sloppy — particularly when it relies on oversimplifications or anthropomorphisms — it distorts how we perceive the natural world. A recent article exemplifies this issue, attributing human-like reasoning to animals based on their behavior.
Bird nests, for instance, must combine sticks and leaves and dirt and grass into a structure of dependable stability and mechanical integrity. Birds apparently know that flexible sticks or twigs provide better stability than rigid rods; physics experiments have shown that the bending of the more flexible materials enables frictional forces that help hold the nest together. Rieser and colleagues suspect that applying more bird knowledge about assembling nest components could help scientists design novel metamaterials for various purposes.
Animal structures must also obey the physics necessary to control temperature, humidity and ventilation within a comfortable range. “Without sufficient air exchange, for instance, animals would suffocate,” Rieser and colleagues write.
Prairie dogs, for example, build extensive burrows with multiple openings. Those openings should differ in elevation, physics analysis shows, to provide proper ventilation (via pressure differences that induce airflow). Field studies show that prairie dog engineers have figured that out for themselves — just as cats figured out how to twist and change body shape when falling.
— Tom Siegfried, “How animals use physics” (July 17, 2024)
There’s no evidence that birds “know” anything about sticks or twigs, or that “prairie dog engineers” exist, let alone “figure out” anything. Animals aren’t sitting around studying physics. There’s no Prairie Dog University where they get degrees in “Burrow Building.”
What happens is, over millennia, certain critters build shit. The ones who build better shit survive. The ones who don’t, die. Over time, those who build better shit develop what real science calls “instincts” that help keep the species alive.
It’s called, perhaps not entirely appropriately, “natural selection.” Or, if you will, “Darwinian evolution.”
You’d think science writers would understand this basic scientific theory.
The birds that built stronger nests survived to pass on their genes, while others did not. This process, often misunderstood or oversimplified by sloppy science writing, is the true engine behind these behaviors.
The Legal Implications of Sloppy Science
When inaccurate science makes its way into the courtroom, the stakes are even higher. In criminal cases like those I handle, people’s freedom is at stake.
Expert witnesses are called upon to provide specialized knowledge in criminal cases.
This court has frequently permitted the use of expert testimony to explain to lay jurors conduct that may appear counterintuitive in the absence of such insight. [citations removed] Invariably, the point of such an explanation is to support another witness’s credibility.
— People v. Ward, 36 Cal. 4th 186, 211 (2005)
The expert witness testimony can make or break a case, as I noted in my article on CSAAS.
The justice system relies on these experts to communicate scientific principles clearly and accurately to judges and juries—both of which groups typically do not have any background in the subject matter.
Imagine a case where an expert witness misrepresents a key piece of scientific evidence. If an expert witness suggests that the information about which they’re testifying is known “to a scientific certainty,” this improperly biases the jury. When combined with a failure to properly explain the underlying principles, it could lead to wrongful convictions (or acquittals).
The courtroom is not a place for sloppy science. When “scientific” testimony is provided, the system depends on accurate, well-communicated expert testimony to reach just decisions. Experts who fail at this task mislead jurors into decisions based on faulty or misunderstood science, undermining the integrity of the justice system.
The Role of Expert Witnesses and Sloppy Science
Animal behaviors are the result of instinct and natural selection, not conscious reasoning. To state that animals somehow “know” or “intuit” what they are doing is to misrepresent how natural selection, or Darwinian evolution work. Non-scientists running across this, who don’t know better, get the wrong ideas about how things work.
Similarly, expert witnesses must ensure that their testimony reflects the true nature of the science involved. As I already said, in criminal cases expert testimony significantly impacts lives.
Consider: in cases involving forensic evidence, such as DNA analysis or other types of pattern analysis, experts must avoid oversimplifying or exaggerating their findings. Saying things like, “to a scientific certainty,” particularly when unsupported by any actual scientific evidence risks leading a jury to convict innocent people.
[T]he trial court [is] to serve as a gatekeeper, not to wave an expert witness through when he flashes a badge.
— People v. Tidd, No. A167548, 2024 Cal. App. LEXIS 532, at *15 (Ct. App. Aug. 29, 2024), citing Sargon Enterprises, Inc. v. University of Southern California, 55 Cal. 4th 747, 772 (2012)
Problematically,
The trial court is given considerable latitude in determining the qualifications of an expert and its ruling will not be disturbed on appeal unless a manifest abuse of discretion is shown.
— People v. Austin, 219 Cal. App. 4th 731, 742 (2013), quoting People v. Davenport, 11 Cal.4th 1171, 1207 (1995).
I say “problematically,” because judges are not scientists, and rare will be the judge who even has scientific training of any kind, let alone enough to spot sloppy science — especially in a particular field.
Misrepresenting science in these contexts can lead to significant miscarriages of justice. Just as sloppy science writing can mislead the public, sloppy expert testimony can mislead a judge or a jury, resulting in an unfair verdict.
Conclusion: Ensuring Accuracy in Science and the Law
The intersection of science and law demands a higher standard of accuracy and clarity than in science alone. Scientists presumably have the proper training to evaluate the statements of their peers. Whether in popular science writing or expert testimony in the courtroom, the consequences of misrepresenting scientific concepts are far-reaching.
Sloppy science writing “only” misleads the public. But sloppy science from “expert witnesses” in the courtroom has serious implications in the legal system, where lives and freedoms are at stake.
As both a criminal defense attorney and someone invested in clear science communication, my skin crawls when either science writers or expert witnesses fail to strive for precision.
Sadly, the only way we currently have to “fix” this problem is no fix at all: defense attorneys must understand the science well enough themselves to ensure the integrity of expert scientific testimony.
Judges don’t have the knowledge, and prosecutors don’t want it. After all, junk science convicts.
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