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As is usual when Professor Elliott writes about turning retrospective judge-oriented procedural rules into prospective attorney-oriented procedural incentives, his proposal for dealing with scientific testimony not accepted within the scientific community is both interesting and provocative. It also serves as an apology for those judges who are so in awe of science that they believe that only they or their peers in the scientific establishment-and not the common folk selected for jury service-are likely to understand the complex truths that science yields. Professor Elliott starts with the assumption that there is a need for some kind of judicial intervention to control jury access to scientific evidence that is unacceptable to the scientific establishment: evidence that currently prestigious scientists consider "quackery" or "junk science." ' However, his presumption in favor of screening scientific evidence (a perspective widely held by judges and others who have addressed the issue) remains unsupported by any substantial legal argument or meaningful data. It is based on the paternalistic notion that judges are capable of understanding that which will mislead jurors and, in fact, that judges can determine which scientific evidence will mislead jurors into finding a scientific "truth" that is not there. Those who support the presumption in favor of screening scientific evidence (the "screeners") misapprehend the role of science in the courtroom, disregard the abilities of juries as fact finders (while overestimating that of judges), fail to consider the inherent (rather than instrumental) value of procedures that provide for admission of scientifically questionable evidence, and fail to distinguish between the use of novel scientific evidence in civil and criminal cases.

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Boston University Law Review



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Comment, Scientific Evidence



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