Bench & Bar May/June 2025

FEATURE: INTELLECTUAL PROPERTY

IS THE VALUE OF COURTROOM SCIENCE WANING? THE DISTURBING TREND OF BAD SCIENCE * BY JUDGE DAVID TAPP AND KATHERINE TAPP

P referred narratives, 1 unreliable research findings, 2 beautified data, 3 zombie studies, 4 forensic quack ery, 5 charlatanism, 6 scientific chop-shops, 7 outright fraud and fabrication 8 —all are increasingly common euphemisms used to describe scientific research. Given these issues, and recent changes in the rules of evidence, attorneys and judges in Kentucky must be more vigilant than ever in scruti nizing expert testimony. Most practitioners are familiar with the fall of once-trusted forensic techniques, such as bite-mark analysis, now discredited in criminal cases. 9 However, anxiety is growing regarding the validity of research applica ble to a broader range of litigation. And, to some extent, that concern is part of a wider public conversation. The COVID-19 pan demic amplified public skepticism toward experts, and recent revelations of research misconduct have deepened that distrust: “Public-health officials wonder if they

have sufficient clout for the next national emergency. Science is losing its place as a source of truth.” 10 As one recent com mentator noted, “I worry about it giving science a further black eye, just as the public’s confidence in science and sci entists is sinking to new depths.” 11 Indeed, scientific journals are retracting papers at record rates—over 5,000 in 2022 alone, compared to just 150 in 2002. 12 At the same time, some scientists manipulate data, rais ing fundamental questions about whether courts are relying on flawed evidence. 13 Change in the forensic sciences, and the resulting use of that science in courtrooms, is incremental. “[T]he law follow[s] the science, which is what we want to see.” 14 And—in all candor—litigants generally “care less about scientific truth than about identifying available evidence that will sup port their position.” 15 This is not to say that

j u d g e s

and law yers, when presented with convincing foundational

testimony, should doubt the veracity of scientific research and opinion testimony. What it does mean is that, like other consumers of scientific data, we need to be cognizant of the ongoing debate and increasing recognition that some scientists are charlatans peddling snake oil. 16 We can do this by taking a proactive approach in challenging unreliable scientific testimony. This article examines the growing skepti cism surrounding expert testimony and offers practical guidance for Kentucky prac titioners. We explore three key concerns: the replication crisis, the impact of flawed publication practices, and the growing problem of scientific fraud. Understanding

30 may/june 2025