Properly Citing Science in Expert Witness Reports
Forensic engineers and scientists are supposed to bring engineering and science to the courtroom. Too often, however, they bring pseudo-science, or worse, pure opinion masquerading as science. Rulings, like Frye and Daubert in the US, have reduced the amount of junk science in courtrooms, but we still see some experts playing tricks to sidestep these rules.
One common trick is to create slack between the opinion and the science purported to support the opinion. This slack is achieved by not citing the science directly in the body of the report, but instead providing a list of relevant or supporting articles at the end of the report. Slack between the opinion and the science maximizes an expert’s wiggle room when the opinion is challenged. It also allows an expert to inflate the article list to make it appear as though there is considerable science supporting the opinion.
When publishing real science in real journals, references to the science must be cited directly within the article. This allows readers of the science to know exactly how, when and for what the authors are relying on the prior work of other scientists. Including references that are not cited in the body of the article is not permitted. Only in popular science magazines and books (which are generally not peer-reviewed) are lists of additional articles or suggested reading materials common.
So why are some experts citing science differently in the courtroom than in the scientific world? Because it is easier, benefits their client and they have been allowed to get away with it.
If you receive an expert report where the science is not directly cited in the body of the report, we suggest you return it and ask the expert to i) properly cite the articles relied upon within the body of the report, and ii) delete the articles that are not relied upon. This will improve the quality of the reports from your own experts, and simplify the analysis and rebuttal of the reports from the opposing experts. It will also help rid the courtroom of some residual junk science.