Bench & Bar May/June 2025

FEATURE: INTELLECTUAL PROPERTY

traced back 60 years. In the early days of this burgeoning industry, such businesses used storefront shops, direct mail, printed catalogs, advertisements in popular mag azines, and toll-free telephone numbers to target young students. College students could purchase term papers, essays, theses, and dissertations. Then came the internet. 29 The pressure to publish is a well-known problem in academia. Researchers are expected to produce a steady stream of papers to secure funding, promotions, and professional credibility. As a result, many studies focus on low-hanging fruit—incre mental findings that may not be particularly novel or even reliable. 30 This has led to an overproduction of weak research, much of which may be cited in litigation despite lacking scientific rigor. Recent events underscore the severity of the issue. A major academic publisher recently shut down 19 journals after discovering large-scale research fraud, retracting an astounding 11,000+ papers in just two years. 31 Many of these fraudulent studies were cited by other researchers, creating a ripple effect that polluted the literature. 32 Forensic sciences are not immune to this problem—papers with weak methodologies or outright false conclusions have been used to justify expert opinions in criminal and civil cases alike. One of the most alarming aspects of the publication crisis is the rise of “paper mills”— companies that produce and sell fabricated or low-quality research to aca demics under pressure to publish. 33 In many institutions, researchers must pub lish to secure employment, promotion, or funding, often under explicit mandates. This relentless demand fuels a market for fraudulent studies, which can find their way into seemingly reputable journals and, ulti mately, into courtrooms. The consequences are far-reaching: unreliable or entirely fabricated research may underpin expert opinions, eroding the integrity of both sci ence and justice. Wary practitioners should evaluate experts’ reliance on published research to ensure the integrity of the publishing journal and guard against the use of retracted articles.

Retractions can be identified by reference to searchable online databases such as Retrac tion Watch . 34 FRAUD IN SCIENCE While honest mistakes and flawed meth odologies contribute to unreliable science, deliberate fraud poses an even greater threat to the integrity of expert testimony. When credentialed scientists manipulate data, fab ricate results, or misrepresent conclusions, the consequences can be severe—particu larly in the legal system, where courts rely on scientific evidence to determine guilt, liability, and damages. Attorneys and judges must be aware of this growing problem and take steps to prevent fraudulent science from influencing courtrooms. Scientific fraud is more common than many realize. In one high-profile instance, a researcher specializing, ironically, in the study of honesty was suspended after evi dence surfaced of manipulated data in a decade’s worth of published papers. 35 This type of misconduct is not limited to aca demia—fraudulent forensic experts have provided testimony in criminal cases, lead ing to wrongful convictions and massive case dismissals. According to the National Registry of Exonerations, more than 700 wrongful convictions have been tied to false or misleading forensic evidence. 36 In some cases, experts knowingly presented manipulated or fabricated results, leading to devastating consequences for the accused. 37 Fraudulent research can take many forms. Some researchers fabricate data outright, while others alter existing data to fit desired conclusions. In the forensic context, mis conduct may involve falsified lab results, forged signatures, or intentional misrep resentation of test outcomes. A notorious example involved a state crime lab chemist whose tampering with evidence and falsi fication of test results led to the dismissal of thousands of criminal cases. 38 These instances underscore the critical need for legal professionals to challenge expert tes timony, particularly when it comes from forensic scientists whose work has not been independently reviewed. The problem of scientific fraud and distor tion extends beyond the lab and into the

courtroom, often via well-compensated experts who market their credibility to the highest bidder. As the Center for Public Integrity has documented, some scientists operate as “rented white coats,” defending toxic chemicals and downplaying harm in litigation—even when confronted with overwhelming evidence to the contrary. 39 These experts present themselves as impar tial, but their financial entanglements and pattern of testimony suggest otherwise. This practice further underscores the need for judges and attorneys to probe not just meth odology, but also motivation. Unlike accidental errors, fraud is inten tional and designed to deceive. Yet, it can be difficult to detect, especially when the underlying data is unavailable for review. Many fraudulent studies go unnoticed for years, only to be exposed after serious harm has already been done. Because courts do not routinely verify the accuracy of scien tific claims, attorneys must take the lead in scrutinizing expert witnesses and the research they rely on. Practitioners should: • Demand access to raw data and methodology early – if an expert refuses to provide their underlying data, that may indicate unreliabili ty or manipulation. Use discovery tools to compel disclosure; • Vet the expert’s history for mis conduct or retractions – search databases like Retraction Watch, PubPeer, and court dockets for any history of withdrawn studies, prior Daubert challenges, or ethical vio lations; • Cross-check cited sources for credibility – do not accept an ex pert’s bibliography at face value. Review whether their references come from peer-reviewed, repu table journals or from predatory publishers; • Analyze funding sources and con flicts of interest – research whether the expert’s studies were funded by organizations with a vested inter est in their findings ( e.g. , indus try-funded research); • Identify cherry-picking or selec tive data reporting – request ad

32 may/june 2025