29 August 2018 – With so much controversy in the news recently surrounding POTUS’ exposure in the Mueller investigation into Russian meddling in the 2016 Presidential election, I’ve been thinking a whole lot about how lawyers look at evidence versus how scientists look at evidence. While I’ve only limited background with legal matters (having an MBA’s exposure to business law), I’ve spent a career teaching and using the scientific method.
While high-school curricula like to teach the scientific method as a simple step-by-step program, the reality is very much more complicated. The version they teach you in high school consists of five to seven steps, which pretty much look like this:
I’ll start by explaining how this program is supposed to work, then look at why it doesn’t actually work that way. It has to do with why the concept is so fuzzy that it’s not really clear how many steps should be included.
It all starts with observation of things that go on in the World. Newton’s law of universal gravitation started with the observation that when left on their own, most things fall down. That’s Newton’s falling-apple observation. Generally, the observation is so common that it takes a genius to ask the question “why.”
Once you ask the question “why,” the next thing that happens is that your so-called genius comes up with some cockamamie explanation, called an “hypothesis.” In fact, there are usually several explanations that vary from the erudite to the thoroughly bizarre.
Through bitter experience, scientists have come to realize that no hypothesis is too whacko to be considered. It’s often the most outlandish hypothesis that proves to be right!
For example, ancients tended to think in terms of objects somehow “wanting” to go downward as the least wierd of explanations for gravity. It came from animism, which is the not-too-bizarre (to the ancients) idea that natural objects each have their own spirits, which animate their behavior. Rocks are hard because their spirits resist being broken. They fall down when released because their spirits somehow like down better than up.
What we now consider the most-correctest explanation, that we live in a four-dimensional space-time contiuum that is warped by concentrations of matter-energy so that objects follow paths that tend to converge with each other, wouldn’t have made any sense at all to the ancients. It, in fact, doesn’t make a whole lot of sense to anybody who hasn’t spent years immersing themselves in the subject of Einstein’s General Theory of Relativity.
Scientists then take all the hypotheses, and use them to make predictions as to what happens next if you set up certain relevant situations, called “experiments.” An hypothesis works if its predictions match up with what Mommy Nature produces for results of the experiments.
Scientists then do tons of experiments testing different predictions of the hypotheses, then compare (the analysis step) the results and eventually develop a warm, fuzzy feeling that one hypothesis does a better job of predicting what Mommy Nature does than do the others.
It’s important to remember that no scientist worth his or her salt believes that the currently accepted hypothesis is actually in any absolute sense “correct.” It’s just the best explanation among the ones we have on hand now.
That’s why the last step is to repeat the entire process ad nauseam.
While this long, drawn out process does manage to cover the main features of the scientific method, it fails in one important respect: it doesn’t boil the method down to its essentials.
Not boiling it down to essentials forces one to deal with all kinds of exceptions created by the extraneous, non-essential bits. There end up being more exceptions than rules. For example, science pedagogy website Science Buddies ends up throwing its hands in the air by saying: “In fact, there are probably as many versions of the scientific method as there are scientists!”
The much simpler explanation I’ve used for years to teach college students about the scientific method follows the diagram above. The pattern is quite simple, with only four components. It starts by setting up a set of initial conditions, and following through to the resultant results.
There are two ways to get from the initial conditions to the results. The first is to just set the whole thing up, and let Mommy Nature do her thing. The second is to think through your hypothesis to predict what it says Mommy Nature will come up with. If they match, you count your hypothesis as a success. If not, it’s wrong.
You do that a bazillion times in a bazillion different ways, and a really successful hypothesis (like General Relativity) will turn out right pretty much all of the time.
Generally, if you’ve got a really good hypothesis but your experiment doesn’t work out right, you’ve screwed up somewhere. That means what you actually set up as the initial conditions wasn’t what you thought you were setting up. So, Mommy Nature (who’s always right) doesn’t give you the result you thought you should get.
For example, I was once asked to mentor another faculty member who was having trouble building an experiment to demonstrate what he thought was an exception to Newton’s Second Law of Motion. It was based on a classic experiment called “Atwood’s Machine.”
I immediately recognized that he’d made a common mistake novice physicists often make. I tried to explain it to him, but he refused to believe me. Then, I left the room.
I walked away because, despite his conviction, Mommy Nature wasn’t going to do what he expected her to. He kept believing that there was something wrong with his experimental apparatus. It was his hypothesis, instead.
Anyway, the way this all works is that you look for patterns in what Mommy Nature does. Your hypothesis is just a description of some part of Mommy Nature’s pattern. Scientific geniuses are folks who are really, really good at recognizing the patterns Mommy Nature uses.
That is NOT what our legal system does.
Not by a LONG shot!
The Legal Method
While both scientific and legal thinking methods start from some initial state, and move to some final conclusion, the processes for getting from A to B differs in important ways.
First, while the hypothesis in the scientific method is assumed to be provisional, the legal system is based on coming to a definite explanation of events that is in some sense “correct.” The results of scientific inquiry, on the other hand, are accepted as “probably right, maybe, for now.”
That ain’t good enough in legal matters. The verdict of a criminal trial, for example, has to be true “beyond a reasonable doubt.”
Second, in legal matters the path from the initial conditions (the “charges”) to the results (the “verdict”) is linear. It has one path: through a chain of evidence. There may be multiple bits of evidence, but you can follow them through from a definite start to a definite end.
The third way the legal method differs from the scientific method is what I call the “So, What?” factor.
If your scientific hypothesis is wrong, meaning it gives wrong results, “So, What?”
Most scientific hypotheses are wrong! They’re supposed to be wrong most of the time.
Finding that some hypothesis is wrong is no big deal. It just means you don’t have to bother with that dumbass idea, anymore. Alien abductions get relegated to entertainment for the entertainment starved, and real scientists can go on to think about something else, like the kinds of conditions leading to development of living organisms and why we don’t see alien visitors walking down Fifth Avenue.
(Leading hypothesis: the distances from there to here are so vast that anybody smart enough to make the trip has better things to do.)
If, on the other hand, your legal verdict is wrong, really bad things happen. Maybe somebody’s life is ruined. Maybe even somebody dies. The penalty for failure in the legal system is severe!
So, the term “air tight” shows up a lot in talking about legal evidence. In science not so much.
For scientists “Gee, it looks like . . . ” is usually as good as it gets.
For judges, they need a whole lot more.
So, as a scientist I can say: “POTUS looks like a career criminal.”
That, however, won’t do the job for, say, Robert Mueller.
In Real Life
Very few of us are either scientists or judges. We live in the real world and have to make real-world decisions. So, which sort of method for coming to conclusions should we use?
In 1983, film director Paul Brickman spent an estimated 6.2 million dollars and 99 min worth of celluloid (some 142,560 individual images at the standard frame rate of 24 fps) telling us that successful entrepreneurs must be prepared to make decisions based on insufficient information. That means with no guarantee of being right. No guarantee of success.
He, by the way, was right. His movie, Risky Business, grossed $63 million at the box office in the U.S. alone. A clear gross margin of 1,000%!
There’s an old saying: “A conclusion is that point at which you decide to stop thinking about it.”
It sounds a bit glib, but it actually isn’t. Every experienced businessman, for example, knows that you never have enough information. You are generally forced to make a decision based on incomplete information.
In the real world, making a wrong decision is usually better than making no decision at all. What that means is that, in the real world, if you make a wrong decision you usually get to say “Oops!” and walk it back. If you decide to make no decision, that’s a decision that you can’t walk back.
Oops! I have to walk that statement back.
There are situations where the penalty for the failure of making a wrong decision is severe. For example, we had a cat once, who took exception to a number of changes in our home life. We’d moved. We’d gotten a new dog. We’d adopted another cat. He didn’t like any of that.
I could see from his body language that he was developing a bad attitude. Whereas he had previously been patient when things didn’t go exactly his way, he’d started acting more aggressive. One night, we were startled to hear a screetching of brakes in the road passing our front door. We went out to find that Nick had run across the road and been hit by a car.
Considering the pattern of events, I concluded that Nick had died of PCD. That is, “Poor Cat Decision.” He’d been overly aggressive when deciding whether or not to cross the road.
Making no decision (hesitating before running across the road) would probably have been better than the decision he made to turn on his jets.
That’s the kind of decision where getting it wrong is worse than holding back.
Usually, however, no decision is the worst decision. As the Zen haiku says:
In walking, just walk.
In sitting, just sit.
Above all, don’t wobble.
That argues for using the scientist’s method: gather what facts you have, then make a decision. If you’re hypothesis turns out to be wrong, “So, What?”