Scientific evidence has long provided problems for law and science' notes Christie (1990), and reviews, public inquiries, court-appointed experts or environmental tribunals as alternatives to adversarial litigation. As Christie rightly points out, the problem is important because scientific expert evidence is crucial in environmental disputes. It may be equally vital in criminal cases, medicolegal compensation cases, and in torts and contractual disputes.

While institutional changes may well be useful (Buckley 1990a, b), we suggest that the nub of the problem is this: the law converts scientific evidence to legal evidence, generally the testimony of an expert witness. This is subject to legal rather than scientific testing. We also suggest that (a) when scientists and lawyers talk about facts or evidence, each means something different, because (b) differences between science and law are hidden by similarities (Table 1, Table 2); and (c) institutional or procedural changes must address (a) and (b) if they are to succeed.

Two comments in support of (c). ( 1 ) When environmental disputes get into court, the outcome is determined by legal rather than environmental issues. To the jaundiced public eye, technicalities often override realities. (2) As noted by Christie, public inquiries run by lawyers, though valuable in canvassing public opinion, don't seem to handle scientific evidence any better than adversarial litigation. We suggest the problem may he simply that the lawyers in charge are not familiar with environmental issues. Barristers are judged inter alia by their ability to identify fine but critical points of law, and inquiries into issues such as corruption or electoral boundaries seem to test evidence quite carefully. Inquiries into environmental issues, however, seem to canvass and amass opinions rather uncritically. This suggests that familiarity with the subject matter outweighs procedure.

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TABLE 1 Differences between science and law

Aspect	Law	Science
Abstract goal	Justice	Knowledge
Practial aim	Dispute resolution	Understanding
Long-term approach	Legislation	Basic science
Short-term approach	Litigation	Applied science
Definition of terms	Fixed by statutes, rules of statutory interpretation precedent, dictionary	Redefined as required to fit changing knowledge
Facts	Circumstances of case	Exhaustively tested hypotheses
Evidence: concept	Statements by witnesses	Observations which are repeatable, at least notionally
Evidence: how to test	Question witness to determine if honest and competent	Repeat observations or analyse methodology
Evidence: criteria to determine accuracy	Internal consistency, reputation of witness, external corroboration	Repeatability, methodology
Evidence: relevance determined by:	Points of law, facts of case	Function of natural system
Practitioners in adversarial litigation	a. Judge or magistrate b. Counsel	a. (Court-appointed expert) b. Expert witness
Aims of these practitioners	a. Judge: judgement b. Counsel: victory	Truth, vindication; a particular outcome of case; who knows?

Though the differences in the concept of evidence are perhaps the most critical, other differences are also important: for example, the definition of terms. Last year a Queensland judge decided that the legal definition of 'environment' did not include turtles (Bates 1990). An appeal to the High Court of Australia ( 1990) and new legislation were required to correct the problem. A second example: if 'sudden' is too imprecise a term, a scientist can simply specify a precise period of time, be it nanoseconds in atomic physics or millennia in geology. But because standard contracts in comprehensive general liability insurance cover pollution damage only if it is 'sudden and accidental', but do not define 'sudden', courts have had to decide just what period of time was intended or, indeed, whether it is enough that the damage was unexpected. Billions of dollars have been at stake; and the courts have reached conflicting results (Buckley 1990c; McDonald 1991a, b).

If our suggestions are right, then it is critical that scientific expert witnesses and their evidence should he examined and tested by scientists as well as lawyers. So if court-appointed experts are used, their evidence should be open to examination and criticism by all parties. If public inquiries are used, scientists competent in relevant fields should play a leading role in compiling and testing evidence; as in the Resource Assessment Commission. And if an environmental tribunal would permit expert witnesses and their scientific evidence to be examined both by their scientific peers and by legal counsel, then it should indeed by worthy of the support Christie gives it.

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TABLE 2 Similarities between science and law

Broad similarities between the two disciplines:

• both rely heavily on logic, facts and evidence
• both rely heavily on the alternation of deductive and inductive reasoning
• both derive general principles from particular circumstances
• both interpret particular circumstances according to general principles
• both rely on the written record of the past as a context for the present

Instances where science uses legal as well as scientific criteria (Table 1 ) to assess evidence:

• peer review of journal articles or grant applications
• writing scientific review articles
• reporting science in non-scientific media, such as newspapers or government reports

Instances where indadequate replication or controls limits scientific testing of evidence, so legal as well as scientific tests must be used to assess its accuracy:

• very small samples, as in some forensic or environmental evidence
• original event hazardous to human life, health or property, as in arson or violent crime
• original event very slow, as in seepage of polluted groundwater
• original event very large-scale, as in atmospheric pollution from industry

Types of expert evidence which are intrinsically unrepeatable and so must be tested according to legal as well as scientific criteria:

• medical evidence, especially with multiple traumata, predisposing conditions etc
• evidence on likelihood of future illness, e.g. after chronic subclinical exposures
• some epidemiological evidence

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References

Bates G ( 1990) Editorial E.P.L.J. 7, 1-2.

Buckley, R C ( 1990a) Shortcomings in current institutional frameworks for environmental planning and management Bull. Publ. Admin 62,50-56.

Buckley, R C ( 1990b) Trends in environmental law and practice Environ Plan. Law. J. 7, 163-166.

Buckley, R C ( 1990c) Framework for environmental insurance Environ Plan. I aw. J. 7, 229-233.

Christie, E (1990) Science, law and enviromental litigation Search 21, 258-Z60.

High Court of Australia (1990)Judgement, In:

Queensland vs Murphy and Another Leg Rep. 11(18), 1-4.

McDonald, J (1991.a) Guest Editorial Insurance Law J . 4 ( I ), 1-2.

McDonald, J (1991b) Key issue~ in environmental insurance litigation. Environ Plan. Law. J 8, (in press)

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