Tuesday, May 1, 2012

May Day musings

With today's eventual headlines centered around the Socialist themes of May Day, I thought I'd tackle the death of reason and enter a few musings for the record.

A Daubert motion is a motion, raised before or during trial, to exclude the presentation of unqualified evidence to the jury. This is a special case of motion in limine, usually used to exclude the testimony of an expert witness who has no such expertise or used questionable methods to obtain the information. Who gets to determine if the witness is/isn't an expert?

Although trial judges have always had the authority to exclude inappropriate testimony, previous to Daubert, trial courts often preferred to let juries hear evidence proffered by both sides. Once certain evidence has been excluded by a Daubert motion because it fails to meet the relevancy and reliability standard, it will likely be challenged when introduced again in another trial. Even though a Daubert motion is not binding to other courts of law, if something was found not trustworthy, other judges may choose to follow that precedent. Of course, a decision by the Court of Appeals that a piece of evidence is inadmissible under Daubert would be binding on district courts within that court's geographic jurisdiction. Brady v. Maryland means always having to say you're sorry ...

The Court in Daubert offered "general observations" of whether proffered evidence was based on the scientific method, although the list was not intended to be used as an exacting checklist: Empirical testing: the theory or technique must be falsifiable, refutable, and testable. Subjected to peer review and publication (yes, those outdated and ancient texts are still valuable as references - who knew?). Known or potential error rate and the existence and maintenance of standards concerning its operation. Whether the theory and technique is generally accepted by a relevant scientific community.

With rationality and reason as a guide, mankind has made great strides over the centuries. As regards Daubert, if one seeks to progress science, why not play by the rules. Have a novel idea. Subject the idea to the scientific method. Test it. Improve it. Write it down. Share it with others. Have them repeat your tests. Did they come to the same results? If not, why? If yes ... great. Refine. Test more. Publish ... followed by the inevitable profiteering book tour.

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