The Epistemology of Admissibility: Why Even Good Philosophy of Science Would Not Make for Good Philosophy of Evidence

Abstract

Brian Leiter* I. INTRODUCTION In its 1923 decision in Frye u. United States,l United States Court of Appeals for District of Columbia set out what was, for seventy years, most influential test for admissibility of evidence in federal court. In Frye, question was whether results of a lie detector test were admissible on behalf of defense. The Court of Appeals agreed with trial court that such evidence was inadmissible, famously holding, that evidence be sufficiently established to have gained in particular field in which it belongs.2 In 1993, United States Supreme Court ended Frye's reign of influence with its decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.3 Holding that Federal Rule of Evidence 702,4 governing admissibility of evidence, did not codify Frye's general acceptance test,5 Court went on to say that key question was whether any proffered piece of evidence constituted scientific knowledge within meaning of Rule.' The Court then enumerated a nonexclusive list of factors for courts to consider in assessing whether proffered evidence constitutes scientific knowledge: for example, whether theory on which evidence is based is falsifiable (in Karl Popper's sense);' whether the theory or technique has been subjected to peer review; and whether theory enjoys general acceptance.' Since Daubert, trial judges must now weigh a complex set of philosophical and methodological factors in deciding upon admissibility of proffered evidence, rather than falling back upon simple proxy of general acceptance. The Supreme Court's repudiation of Frye as exclusive test for admissibility of evidence has already generated substantial scholarly literature.9 From a philosophical standpoint, most interesting recent discussion has been Heidi Feldman's argument that Daubert's rejection of Frye and its broadening of criteria for admissibility serve to bring Federal Rules of Evidence in line with what Feldman dubs revised empiricist philosophy of science, and thus with actual practice.lo Feldman commends this move toward a more approach to admissibility, especially because its consequence will be, according to Feldman, a greater recognition of uncertainty, especially in area of mass tort litigation.l2 In this Article, I take issue with Professor Feldman's argument. For even if revised empiricist philosophy of science were dominant, or even correct, philosophy of science, there would be no reason to think admissibility standards ought to conform to it: Feldman seems to confuse philosopher's question, What is best account of method? with lawyer's question, What is best criterion for judges to use in deciding admissibility of evidence? Yet philosopher can provide lawyer with good epistemological reasons for keeping these questions separate-reasons that Feldman ignores or downplays. Philosophy of science and rules of evidence are both concerned with norms: norms for how scientists should form beliefs in former case; norms for how juries should form beliefs about disputed matters of fact in latter case. A central theme of contemporary epistemology has been need to tailor our normative advice about belief formation to realities of how epistemic processes-processes for acquisition of knowledge-work, whether they involve individual mechanisms (e.g. perception) or social mechanisms (e.g. trials).l3 In particular, norms for belief formation must be sensitive to epistemic limits of would-be knowers: that is, handicaps-intellectual, cognitive, temporal, material-that all real operate under. If differ, as of course they do, from knowers that comprise juries and that sit on bench, then it should be surprising, from perspective of naturalized epistemology, that same norms for belief-formation should apply to both groups. …

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