Expert scientific evidence in the Israeli court.
Most judges, by the very nature of their educational background, are less than sufficiently prepared for the task to fully comprehend the problems in disputes concerning scientific subjects. Judicial cognizance in such matters gives no support. The judge has no recourse but to rely on Expert Evidence. However, such evidence, especially in the adversarial system, requires the ability to evaluate it. Back to square one? Almost. The Israeli court borrowed, and followed for many years, the American solution - the Frye Principle (Frye v. United States, 54 App.D.C. at 47, 293 F. 1013 (1923) 1014) - "the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs " - meaning that an Expert's view is held as true if proven that it had been held by "the scientific community." This solution presented an almost insurmountable problem for novel scientific ideas. The were also exceptions - several Israeli Courts made the rather difficult task of examining the Experts' "working papers", i.e. the "crude" data on which he based his deductions. The model of such effort seems to be the English decision, by Stuart-Smith LJ in Loveday v Renton and Wellcome Foundation Ltd. ( (QBD) 1 Med Law Review, 1990:117). Seventy years after Frye the U.S. Supreme Court reviewed the subject of evaluation of scientific evidence. The new requirements were "... (1) ... whether the theory or technique can be and has been tested; (2) ... whether the theory or technique has been subjected to peer review ... (3) ... the known or potential rate of error of[the] technique; (4) [no requirement of] a particular degree of acceptance of the theory or technique within that [scientific] community, ... and (5) the inquiry is a flexible one, and the focus must be solely on principles and methodology, not on the conclusions that such principles and methodology generate ". Namely - the Judge, guided by intelligence and logic, is sufficiently equipped to evaluate the facts and conclusions presented. On the Israeli scene, the Daubert principles guided a District Court in a highly publicized trial, the judge however was in the minority. Only ten years later the Supreme Court adapted Daubert (Justice M. Cheshin in Cr/A 9724/04 Mourad Abu-Chamed v. The State of Israel Tak-Sup 2003 (3) 2182 (22.10.2003)). Since then various Israeli Courts were guided by these principles in a variety of decisions concerned with scientific and technical problems. In contradistinction to U.S. Courts, the Israeli Judge rules both on admissibility as well as on the veracity of the evidence presented.
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The TelAviv University Sackler School of Medicine.
D019049:Developed Countries; D005104:Expert Testimony / Q000331:legislation & jurisprudence*; D006801:Humans; D007557:Israel; D011361:Professional Competence / Q000331:legislation & jurisprudence*