THE “PERRY MASON” BURDEN OF PROOF:
HAVING TO FIND THE “REAL CULPRIT”
A key issue in any litigation is who bears the burden of proof and just what that burden requires. Particularly with respect to the theory of unintelligent evolution, scientists do not approach challenges to the theory with the impartiality and sincerity that the scientific method is supposed to require of them. Instead, as noted above, scientists approach such challenges with the assumption that the reigning unintelligent evolution theory prevails if there is any reasonable understanding of observed data that can make the data consistent with the theory. This is the same mental process as that employed by a lawyer who seeks to interpret all of the data as evidence that supports a predetermined conclusion. The burden is on the challenger.
But this problem is small compared to the fact that in science, unlike law, a significant new element is added to that burden. As noted above, the science establishment will not abandon a theory unless some scientist shows not only that certain of the data cannot reasonably be understood as being consistent with the theory, but also that the data supports some new theory. To recall Stephen Jay Gould, “theories are overthrown by rival theories,” not by demonstrations that the accepted theories ought never to have become accepted in the first place. This too, is part of the sociology of science. The history of science demonstrates that because of career dynamics, individuals attain prominence, prestige, and position by advocating and convincing others in the scientific establishment of the validity of new or existing theoretical explanations, data, and observations. As sociologist Robert K. Merton stated almost fifty years ago, “On every side, the scientist is reminded that it is his role to advance knowledge” and to “have made genuinely original contributions to the common stock of knowledge.”23
This burden of proof in science is far greater than the burden of proof in law. To analogize, the “reigning theory” is that advanced by the prosecution, while the defense counsel’s job is to rebut that theory. But in law, unlike science, the defense counsel need not offer an alternate theory to explain the facts that led to the prosecution. While Perry Mason always exposes the real killer in the process of acquitting his client, real defense lawyers almost never provide the real culprit in order to get their clients off the hook. In law, the practitioner can have a very successful career as defense counsel by simply proving that prosecution theories are unsupported by the data; he need not go on to prove alternative theories. The defense lawyer can quite happily admit complete ignorance as to who is the real culprit.
Not so in science. No scientist sees a career advantage in proclaiming not only that the scientific establishment is ignorant of the truth, but that he or she is also ignorant. Indeed, as science writer Stephen Mihm commented in a March 9, 2003, Washington Post Book World review of the book Rational Mysticism, the “scientific” community … is understandably reluctant to concede defeat (in general it’s a poor strategy for getting grants).” Thus, science thrusts upon challengers the burden of offering an alternative theory before it will abandon the prevailing theory, despite all mathematical, logical, and evidentiary challenges to that theory.
What this means is that not only is the burden of proof on challengers immeasurably higher in science than in law, but there are also distinct and powerful career disincentives for anyone to take on the “defense counsel” role of disproving the flawed paradigm. Why should anyone do it when there is no reward for success? The scientific establishment, by demanding that those who challenge its theories must produce workable alternatives, is demanding that the defense counsel either produce “the real culprit” or else the jury must accept the prosecution’s case. This imposes an unfair burden of proof that, if it were applied in law, would require every defense lawyer to be as effective as the fictional Perry Mason. No wonder reigning scientific paradigms are so rarely abandoned.
