Debunking Sham Science in the Courtroom

It’s no secret attorneys can usually find an expert witness to say just about anything they want, but this becomes particularly problematic when that expert is testifying regarding complicated scientific or medical issues about which lay jurors have no knowledge, background or understanding.  An opposing expert may be peddling snake oil while yours has medical literature on his or her side, but how is a jury supposed to know who’s the fraud and who’s the real thing?
 
We’ve noticed the issue of sham science in the courtroom particularly rears its head in relation to neuroscience – perhaps no surprise given the complexity of the field.  In fact, scholarly research has found that specious neuroscience can be used to dupe people who have no background in the field – a group that would include most jurors.
 
In our experience, the use of brain scans is an area where jurors are particularly vulnerable to experts willing to mislead.  Technologies such as SPECT scans and functional MRIs (fMRI) produce colorful, compelling visual images that unscrupulous experts can manipulate into showing whatever they want them to show.  These images take on added significance among jurors accustomed to such high-tech forensic presentations from TV shows such as CSI.

Based on recent trial experiences, we believe the best tactic to combat such sham science is to use your own experts to unmask exactly what the opposing expert is doing – taking them “behind the curtain,” so to speak.  It is not enough to simply have your experts offer a competing interpretation of a brain scan, because it can be too difficult for lay jurors to sort through complicated scientific testimony and figure out who is right.  Instead, we recommend unleashing your expert to attack his or her counterpart’s methodology. 
 
For example, during a recent trial involving alleged brain damage, the plaintiff’s neuroscience expert relied on a bright, multicolored SPECT scan to highlight areas of supposed damage.  Based on exit interviews, we know jurors found this very compelling – that is, until they heard from the defense expert.  The defense expert testified how the plaintiff expert’s color scale used is intended not to diagnose areas of brain damage but only to highlight previously known damage for presentation purposes (such as at conferences or in medical literature) because it uses bright colors to make extremely small differences look more dramatic.  In other words, it was a complete misuse of technology intended to mislead the jury.  Jurors told us after the trial that the defense expert “destroyed” the plaintiff on this issue.
 
Although jurors may not be neuroscience experts, they’re smarter than we often give them credit for.  They’re capable of understanding how they’re being misled by sham science, but it’s up to you to show them exactly how that’s happening rather than just asking them to believe your expert’s word instead of the plaintiff’s.
 
If you have a case where sham science comes into play, we’d love to help you figure out how to address it.  Contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net to find out how we can help.