Spatial Data Analysis in the Formation of Public Policy and its Acceptance as Evidence: A Litigator's Perspective on Geographic Information and Analysis

Terry Simmons, Ph.D.
Attorney at Law


EXTENDED ABSTRACT

Scientific observation and data collection often begin innocently enough. Active inquiring minds explore the world today more efficiently, rapidly, and comprehensively than ever before. Massive amounts of data are available in spatial and other databases. Nevertheless, the fundamental issues of appropriateness, relevancy, clarity, and acceptance remain vital, before, during and after data analysis, despite--and sometimes because of--our technological sophistication. The interface of law, information policy, and spatial databases creates new versions of old themes relating to the use of scientific and other non-legal information in a legal context.

This [presentation] examines interrelationships between legal and scientific questions in the formulation of the research agenda, spatial data, the relative availability of and accountability of existing data and databases, and/or one's ability to generate new data within the public policy decision making process and within the adversarial system. Information and access to information are used competitively in the legal arena. Abstract contributions to knowledge and the cooperative quest for scientific understanding are subordinate to adversarial objectives and concerns. Win; protect the client's interests first. Solve the immediate problems by using spatial data to persuade the judge and the jury. Then, someone may salvage the data for scholarly purposes.

At the same time, public policy debates and legal proceedings often rely heavily on pre-existing environmental and natural resource inventory data. Paradoxically, the availability of spatial databases both fosters and hinders the development of environmental policy. The original purposes for the collection and analysis of and the dimensions of available, existing data may or may not be relevant for present public policy or legal needs. Nevertheless, all data will be disclosed, and much of it will be used, especially where new spatial databases make data retrieval practicable to more interested parties. Consequently, old data contains concealed decision-making bias hidden within assumptions concerning scale, timing, and research design. Accordingly, these old data contain errors and distortions as defined by the present legal or public policy concerns, but not necessarily those of the original investigators. While it is true enough that geographers, engineers, and other consultants are liable for the accuracy and suitability of their data and analysis, the adequacy of data is also relative to changing perceptions of accuracy and suitability.

Scrutiny of data goes beyond the immediate demands of current projects and controversies, however, when spatial data are used in the formulation of public policy and in litigation. Judicial discretion and/or the form and substance of administrative law may have more influence upon the ultimate acceptance and usefulness of the data than the quality of the data per se. Data analysis of spatial data is complicated further by legal standards of evidence and presentation contained within the Rules of Civil Procedure, especially discovery, and within the Rules of Evidence.

In particular, the 1993 U.S. Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. abandoned the Frye test and provides new, uncertain guidelines, based primarily upon judicial discretion, for the admissibility of expert witnesses and scientific information. Thus, the ultimate authority on the acceptability and/or quality of the spatial data may be an administrative law judge during an agency tribunal or a judge and jury during trial. If spatial databases are to be used effectively, and if those persons using them are to avoid the liability of using erroneous or inappropriate data, then one must consider the consequences of legal and public policy interpretations of one's data and consider how one might best educate the ultimate recipient of these data--a jurist with a political science degree and little or no geographic education.


NOTE: The following is an edited transcript of the presentation by Dr. Simmons given on October 30, 1994.

Good morning ladies and gentlemen.

Thank you, Mr. Kottman, for a fine introduction to some of the issues I wish to address. Certification is an important issue. Data for GIS users is evidence for lawyers and judges. In the legal system, judges do all the certifying, thank you very much.

During this conference, we have discussed intellectual property, privacy, access to information, tort law and various other ways GIS professionals and users might find themselves involved with the law. All of this is true enough. Anyone can be sued. You may have discussions about intellectual property, tort law, privacy and so forth in and outside the courtroom. However, most litigation will not touch on these discussion or resolve these issues. Instead, most litigation will concern your GIS products, and what you do with your data. How did you formulate your data? How did you collect it? How did you analyze and use it? How well have your customers or end users used spatial databases?

You may not be in the courtroom at a party, as someone suing or being sued. More often, you will participate in a trial or hearing or a deposition as a witness because you were involved in how the databases were developed or applied. Your analytical methods, data, software or hardware will be involved somehow in the dispute. Alternatively, you will be there as an expert witness explaining to the judge, jury, attorneys, and parties what GIS is, how it works, and why. Then, you will be asked your opinion of the quality of the GIS work in dispute -- good, bad or indifferent. Sooner or later, almost all participants at this conference will find themselves in the courtroom in one capacity or another.

Certainly, many legal issues (and potential law suits) exist concerning the themes of this conference: intellectual property, privacy and access to information, and tort liability. However, I predict that most legal actions will involve the application of spatial analysis and the use of spatial databases in planning and public policy. Thus, one must add administrative law and environmental law to the list. What are the expectations for geographic information systems and spatial databases within our highly regulated environment? What do the environmental and planning regulations say? What lurks in the fine print of the Code of Federal Regulations, for instance? Many years ago, I used Landsat photographs to map flora And fauna in northern British Columbia wilderness, where no other data existed, for an environmental impact assessment. Many more applications are possible today. Indeed, someone does apply GIS methods or use GIS data to assess wildlife habitat and wildlife populations in the Arctic. In the process, someone will study the musk ox, and question the status of musk oxen. Thus, while you may never have considered the musk ox or the Endangered Species Act of 1973, end users of your analytical methods, data, software or hardware may draw you into litigation about musk oxen. Sooner or later, it will happen.

This entire conference poses a new version of a classic problem -- the intersection of law and science. Science is not necessarily just the so called hard sciences of physics and chemistry. Science is anything technical, scientific, or simply beyond ordinary lay experience; GIS is certainly that. I recommend that one examine some of the voluminous literature on the subject. Look, for example, at the published presentations from the symposium on The Contrasting Cultures of Law and Science, held at the 1992 annual meeting of the American Association for the Advancement of Science, published in The Jurimetrics Journal of Law and Technology. [32 Jurimetrics Journal 313 (1992)]; and at Science and Technology in Judicial Decision Making: Creating Opportunities and Meeting Challenges, Carnegie Commission on Science, Technology, and Government [March 1993]. Unfortunately, time does not permit a discussion here. It is very powerful and important literature.

When science and law interact, judges and attorneys will inquire about your thought processes as well as your data. They will want to know about the quality of your spatial analysis. How did you collect and interpret your data? What did you do and why? How credible are your data? How credible are you as a professional geographer, cartographer, or computer scientist? Recall the similar issues raised and inferred by Mr. Kottman's presentation on GIS certification. It will not be good enough simply to present your data or to read your planning report.

GIS is to maps as word processing is to written text. I remember the first time I wrote and edited a long article with a word processor. The task of writing changed; the editorial process changed; the final product improved. My first experience with computer cartography was similar. Use of digitized overlays for planning reports instead of hand drawn maps changed the way data were assessed, and the easily revised maps were used. The final product was improved. Accordingly, an aware attorney will inquire about your work habits, and the appropriateness of your spatial databases. Raw data are not enough because GIS changes the planning process.

Most judges and attorneys know little or nothing about GIS and spatial databases. In preparation for your testimony, the attorney goes to the library. Presumably, the attorney thinks, GIS is related to maps and map making. Alas, our attorney friend finds a confusing literature, mostly beyond comprehension. Not to worry, our friend finds a relevant and understandable book, Mark Monmonier's How To Lie With Maps [1991]. Thus, during cross-examination, the attorney asks detailed questions about an as yet unpublished book, "How To Lie With Maps Made With Computers." After a day or more of testimony, defending your personal credibility and the reliability of data, one comes to understand the nature of the often uncomfortable intersections between science and law within the American legal system. When involved in a deposition, hearing or trial, one's fate is in the hands of the judge and/or the jury. Testimony and data have been transformed into evidence.

GIS analytical methods and data are evaluated according to the rules of civil procedure and the rules of evidence. Ideas and actions have metamorphosed into a new format, language and standard of behavior. Nevertheless, the fundamental standards of science and of evidence are quite similar. The questions are still ones of appropriateness, relevancy, validity, reliability, clarity, and acceptance. Fundamentally, did you do your job well?

The rules of law are interpreted and promulgated by the judiciary in judicial opinions or case law. As the Carnegie Commission on Science, Technology, and Government stated, "... [F]aith in science and ... commitment to judicial resolution of disputes ensure that the judiciary will ... decide questions on the frontiers of science; these questions will arise in cases that raise profound social, economic, and public policy concerns. [1993 at page 6] Little in the case law discusses geographic information systems directly or explicitly, although some older cases interpret maps. Seemingly unrelated cases may become important. For example, Keith Quinn was convicted of two bank robberies in the San Francisco Bay Area in part due to the expert testimony by a Federal Bureau of Investigation Agent interpreting bank surveillance videotapes. On appeal, the Ninth Circuit Court of Appeals upheld the admission of the FBI agent's "photogrammetry evidence." [United States v. Quinn, 18 F.3d 1461 (9th Cir. 1994)] In time, more directly relevant cases will appear as courts evaluate and rely upon geographic information system data and analytical methods.

Always an important topic of discussion, the interrelationship of science and law has been under intensive scrutiny in the courts and in law review articles since the 1993 United States Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. [509 U.S.__ 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)]. Daubert abandoned the Frye test and provided new, uncertain guidelines, based primarily upon judicial discretion, for the admissibility of expert witnesses and scientific information. The case itself concerns Merrill Dow's liability for an infant's birth defects caused allegedly by the mothers use of an anti-nausea drug, Benedectin. However, the U.S. Supreme Court opinion itself concerns standards of relevancy and acceptability of an expert witness' scientific testimony.

In formal terms, Daubert overturned the Frye test, the principle that scientific knowledge or interpretation must be accepted generally within the scientific community before it ought to be admitted as evidence. Under the Federal Rules of Evidence, the trial judge must ensure that scientific evidence is both relevant and reliable. Most importantly, Daubert has revitalized a major discussion of the ways the Federal Courts, -- and eventually all the state courts also -- assess the qualifications, validity, and veracity of expert witnesses and the technical and scientific information and opinions presented to the court.

Put simply, the judge is the gatekeeper of all evidence. The trial, or the litigation process generally, is an elaborate education project. The expert witness and the attorney seek to educate only thirteen people, the judge and twelve jurors. The trial is an educational process; the courtroom is a classroom.

In order to be allowed to present GIS data and analysis in court, one must demonstrate that it is relevant and reliable. The ultimate authority on the acceptability and/or quality of the spatial data presented will be the judge and jury during trial. If spatial databases are to be used effectively, and if they are to withstand the scrutiny of the judicial system, then one must consider the consequences of legal and public policy interpretations of one's data from the beginning. One's work --and testimony -- must be relevant and reliable in the broadest sense of these two terms. This is what Daubert means; this will be your burden when you are ensnared in the legal system.