Article I, 1018 ALBJ, Vol. 31, No. 5. 48

PositionVol. 31 5 Pg. 48

Article I

Vol. 31 No. 5 Pg. 48

Utah Bar Journal

October, 2018

September, 2018

Utah Rule 702, the Scientific Method and the Search for Court Room Truth


In State v. Clopten, 2015 UT 82, 362 P.3d 1216, the Utah Supreme Court reviewed the admissibility of expert eyewitness testimony. Id. ¶¶ 46-56. The court made an important distinction between the procedure of admitting reliable scientific testimony under Rule 702 of the Utah Rules of Evidence and the scientific evidence itself. "Even our lengthy discussion of eyewitness memory science in Clopten I is five years old and we expect that some of the scientific findings on which Clopten I relied have already been called into question by subsequent research. We would not have expected otherwise when Clopten /was decided." Id. ¶ 53; Clopten I, 2009 UT 84, 223 P.3d 1103.

The court's conclusion recognizes that we live in an era of ever increasing scientific knowledge. Under Rule 702 (c), evidence meets the threshold showing of reliability if the evidence is "generally accepted by the relevant expert community." Utah R Evid. 702 (c). What is generally accepted science yesterday may not be accepted science today. The court expressed the conviction that today's accepted scientific evidence will not be sufficient tomorrow. And recognition of scientific change is a good thing. Otherwise, we would still be burdened by scientific racism, eugenics, and social Darwinism. All of them were considered good science in the courts of the past century.

Consider the seminal federal case, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The minor children and their parents claimed that a drug, Bendectin, caused birth defects known as "reduced limb syndrome." Id. at 582. Bendectin reduced maternal nausea in the first trimester of pregnancy. Id. There never was a study of side effects in a controlled population. Id. Plaintiffs argued that Bendectin was chemically similar to an earlier anti-nausea drug, Thalidomide. Id. at 583. Thalidomide was known to cause reduced limb syndrome. Id. This Supreme Court decision stressed the now familiar criteria of peer review, publication, the known or potential rate of error, and submission to the scrutiny of the scientific community as the framework of admissibility of scientific evidence. Id. at 593-94.

Merrell Dow decided the costs of defending its drug outweighed the expected sales. The drug was withdrawn from the market. The removal resulted in conclusive proof that Bendictin did not cause reduced limb syndrome. There were as many reduced limb cases after the drug was removed as there were when it was on the market. In exonerating Bendictin, science provided a definitive answer to causation.

Repressed memories of sexual abuse show the same scientific change. The Utah Supreme Court held that repressed memories of sexual abuse could toll the statute of limitations until such time as the victim recovered memory of the events. Olsen v. Hooley, 865 P.2d 1345, 1348 (Utah 1993) "Memory repression is a psychological process that actively prevents a memory from being recalled." Id.

Shortly after this decision, there was a legal counter attack. Accused sexual abuse perpetrators sued the psychologists and therapists who had aided individuals in recovering false memories. By the turn of the twenty-first century, the phenomena of repressed memories disappeared entirely from therapeutic literature. See Kenneth S. Pope, Pseudoscience, Cross-examination, and Scientific Evidence in the Recovered Memory Controversy, 4 Psychol. Pub. Pol'y& L. 1160 (1998).

Where does scientific uncertainty leave lawyer and judges? The problem is that lawyers and judges must make decisions in the here and now. They can not wait for a decade to allow future science to sort out all of the issues. Therefore, there is inherent risk that the evidence presented to a fact finder will turn out to be wrong.

Judges could deny admissibility of any theory that sounds fishy The commentary to Utah Rule 702 warns against such sloppy thinking.

Judges are to apply "rational skepticism" to scientific claims. This does not mean that a...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT