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The Psychological Foundations of Evidence Law$
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Michael J. Saks and Barbara A. Spellman

Print publication date: 2016

Print ISBN-13: 9781479880041

Published to NYU Press Scholarship Online: May 2017

DOI: 10.18574/nyu/9781479880041.001.0001

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Scientific and Other Expert Evidence

Scientific and Other Expert Evidence

(p.202) 7 Scientific and Other Expert Evidence
The Psychological Foundations of Evidence Law

Michael J. Saks

Barbara A. Spellman

NYU Press

Although most evidence that comes to court is non-technical—observations of everyday events by witnesses, records of business and other routine activities—an important and growing minority of evidence is scientific or technical. Such evidence has great potential for helping to resolve what might otherwise remain unfathomable. But expert evidence demands much of judges and juries. Judges must serve as gatekeepers, deciding whether the evidence meets standards for admissibility (under Daubert), but judges are poorly equipped to evaluate the claims of various disciplines. In their turn, jurors are expected to understand and rationally use expert testimony that is admitted. So we have a paradox. By its definition, expert evidence occupies intellectual territory beyond the competence of judges and jurors. Moreover, it typically comes to court skewed, exaggerated, and cherry-picked. Further, it will almost certainly be contested. How are judges and juries to intelligently sift for helpful truths under such conditions? Human minds did not evolve to intuit statistical (and especially not probability) data, but instead to be persuaded by stories, by conclusions asserted by proclaimed authorities, and by superficial characteristics of speakers (witnesses). The acceptance of “social truth” and the use of System 1 thinking predominate. Research psychologists have been seeking ways to present scientific evidence that are more consistent with how the human mind functions. In addition, researchers have been exploring rapid teaching techniques for bringing laypeople to higher levels of numeracy and inferential competence.

Keywords:   competence, data, judges, juries, numeracy, scientific evidence, social truth, statistical, system 1 thinking, technical

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